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Delhi District Court

State vs Shahnawaj Etc. on 15 March, 2012

         IN THE COURT OF SH.SURESH CHAND RAJAN
              ADDITIONAL SESSIONS JUDGE/SPECIAL 
                                       JUDGE(NDPS), 
                       DWARKA COURTS, NEW DELHI

S.C.NO.11/1/09
FIR No.388/2008
U/s 302/34 IPC
PS Delhi Cantt.



State 

Vs.
 
1. Shahnawaj s/o Sher Aslam Khan
2. Sajib Khan s/o Sher Aslam Khan. 
                                                                      .......... Accused

Challan filed on :24.02.09
Reserved for order on: 27.02.2012
Judgment delivered on: 15.03.2012


JUDGMENT

Brief facts of the prosecution's case are that on 25.01.2008, on receipt of DD no.21A ASI M.Y.Khan alongwith Ct. Rameshwar reached in Sadar Bazar, Delhi Cantt in the service road near Agarwal's shop of Lassi and Singh Son's Bakery where State Vs.Shahnawaj etc. FIR No.388/08 Page No. 1 of 83 no eye witness met them. On enquiry it was revealed that the injured has been taken to Sood Nursing Home and Arif @ Sonu had sustained injuries in the quarrel. Ct. Rameshwar was left at the spot and ASI M.Y.Khan reached in the hospital where he came to know that doctor has advised to take the injured to another hospital. In the meantime he received DD no.23A vide which he reached in DDU Hospital where he collected the MLC of injured Arif in which he was declared brought dead. Uncle of deceased named Salimuddin Saifi met him and who got recorded his statement Ex.PW11/A wherein he has stated that on 25.11.2008 he had gone to Sadar Bazar, Delhi Cantt. Alongwith his nephew Farooq Saifi around 7.30 p.m and while they were between the shop of Aggarwal Lassi wala and Singh Sons Bakery, they heard alarm 'bachao bachao'. At this, he alongwith his nephew saw that his nephew Arif Saifi, who had gone to purchase fruit from the 'rehri' of late Vikram Arora was embraced by Sajid Khan, their neighbourer, who exhorted his co­accused Shah Nawaj that on that day Arif had given beatings to the son of their 'Phuphi' so he should be killed. At this Shah Nawaj, who was holding a 'churri' in his right hand stabbed Arif Saifi in his chest. At this both Salimuddin Saifi and Farooq Saifi raised alarm 'maar diya maar diya'. Arif Saifi was bleeding profusely and he was removed from State Vs.Shahnawaj etc. FIR No.388/08 Page No. 2 of 83 the clutches of Shah Nawaj and Arif Khan with great difficulty and taken to Sood Nursing Home, Sadar Bazar where the doctor opined that his condition was serious, so, he was removed to DDU Hospital, where he was declared dead. Shah Nawaj and Sajid Khan have killed his nephew to take the revenge of the quarrel took place in the morning with the children. On this statement, IO prepared his endorsement Ex.PW13/A and sent rukka for registration of the case and the present case FIR no. 388/08 was registered. Crime team was summoned and the member of crime team inspected the spot and clicked the photographs. Site plan was prepared. Blood stained earth and concrete and tarcoal were lifted and sealed in a pullanda. Post mortem on the dead body was got conducted. Both the accused persons were arrested and their disclosure statements were recorded. On the pointing out of accused Shahnawaj chhuri (knife) was recovered from his fruit stall. The investigation was done and after completion of the investigation challan was filed in the court.

2. This case being triable by the court of session and after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 13.03.09. State Vs.Shahnawaj etc. FIR No.388/08 Page No. 3 of 83

3. Both the accused persons were charged u/s 302/34 IPC on 06.04.2009 by my Ld. Predecessor Ms.Ravinder Kaur, ASJ/Special Judge(NDPS) to which both the accused persons pleaded not guilty and claimed trial.

4. The prosecution in support of its case in all has examined as many as 18 witnesses. Thereafter the prosecution evidence was closed.

5. The evidence against the accused persons were put to them in their statements of accused recorded u/s 313 Cr.P.C in which they have pleaded their innocence and stated that they have been falsely implicated in this case. Both the accused persons have pleaded that they were lifted from their house on the intervening night of 25/26.11.08 and were falsely arrested.

6. I have heard Ld. APP for the State as well as Ld. Defence counsel for the accused persons and perused the testimonies of the Pws and exhibited documents carefully.

State Vs.Shahnawaj etc. FIR No.388/08 Page No. 4 of 83

7. In view of the submissions made by the Ld.counsel for the accused persons as well as Ld.APP for the State I have also perused the testimonies of Pws. PW1 ASI Khajan Singh has deposed that on 25.11.2008 on receipt of information regarding murder near Aggarwal Lassiwala, Sadar Bazar, he alongwith Ct. Parveen Photographer went to the spot where M.Y.Khan met them at the spot. Blood was found lying there and Ct.Praveen took the photographs. He inspected the spot and prepared report which is Ex.PW1/A.

8. PW2 Ct. Babu Lal has deposed that on 25.11.08 he was on duty as special messenger and to delivered the copies of FIR at the residence of DCP, Joint C.P and Ilaqua MM.

9. PW3 Ct. Ramesh has deposed that on 25.8.08 he was on reserve duty and duty officer handed over him slip to hand over to ASI M.Y.Khan. He handed over the same to him. Duty officer received another call from the hospital and again handed over the slip to be handed over to ASI M.Y. Khan. He was declared hostile by the Ld. APP for the State and cross examined wherein he has admitted that he had gone to give the call to ASI MY Khan in State Vs.Shahnawaj etc. FIR No.388/08 Page No. 5 of 83 connection with the case on 25.11.2008. He is not confirmed whether he had given DD no.21A to IO. He admitted that HC Tara Dutt handed over the slip of quarrel to him. He also cannot say if duty officer had handed over the copy of DD no.23A for handing over to ASI M.Y.Khan. He does not remember the number of third DD. He cannot confirm the third DD number as DD no.25A.

10. PW4 Lady Ct Seema has deposed that on 25.11.08 she received a telephone call regarding a quarrel opposite Aggarwal Sweets and on verification she came to know that area falls in the jurisdiction of Delhi Cantt and she forwarded the information on Commander Net of the area of Delhi Cantt. Information recorded by her in form I is Ex.PW4/A.

11. PW5 Ct.Satyaveer Singh has deposed that on 29.11.2008 he took the case property to FSL Rohini vide RC no.127/21.

12. PW6 Ct.Rameshwar has deposed that on 25.11.08 on receipt of information regarding quarrel he alongwith ASI M.Y.Khan reached at the spot where they came to know that injured was removed to Sood Nursing Home. He was left at the spot and ASI M.Y.Khan went to the hospital. He came back and again went to State Vs.Shahnawaj etc. FIR No.388/08 Page No. 6 of 83 DDU Hospital. He returned at about 10.45 p.m and handed over him the rukka for registration of the case. He got the case registered and handed over the copy of FIR and original rukka to IO. He has further deposed that crime team reached at the spot who inspected the spot and took photographs. Insp Om Prakash reached after 5­10 minutes of his reaching and he lifted rori and tarcoal mixed with blood and earth control and sealed with the seal of OPA and seized the same vide seizure memo Ex.PW6/A. Statement of Salimuddin was recorded by ASI M.Y.Khan again said it was recorded by Insp. Om Prakash. Post mortem was conducted and after post mortem clothes of the deceased and blood sample was seized vide memo Ex.PW6/B. They went in search of accused persons but they were not found at their house. Complainant met them in Sadar Bazar while searching the accused and informed that both thte accused are present in front of Kranti Chowk near Sanatan Dharam mandir. They went there and apprehended both the accused Shahnawaj and Sajid Khan at the instance of complainant Salimuddin. He has further deposed that at the instance of accused Shahnawaz from an empty wooden fruit box, a knife was recovered which was slightly blood stained near its tip. It was sealed with the seal of OPA and deposited in malkhana. The accused persons were got medically examined. He State Vs.Shahnawaj etc. FIR No.388/08 Page No. 7 of 83 identified the knife as Ex.P1 and identity of rodi and tarcoal mixed with blood stains and earth control has not been disputed by the Ld. Defence counsel. PW6 did not depose on some material points so, Ld. APP for the State has cross examined him wherein he has admitted that site plan was prepared in his presence by Insp. Om Prakash and seal after use was given to ASI M.Y.Khan. The sketch of the knife was prepared which is Ex.PW11/J and knife was seized vide memo Ex.PW11/H.

13. PW7 Ct Hardeep Singh has deposed that on 03.12.2008 he visited the spot and thereafter on 5.12.2008 he prepared the scaled site plan which is Ex.PW7/A after taking rough notes on 3.12.08.

14. PW8 HC Shiv Lal has deposed that he was posted as MHCM on 26.11.08 when Insp. Om Prakash deposited the case property vide entry at sr.no. 2137 copy of which is Ex.PW8/A. He also made entry regarding sending the case property to FSL through Ct. Satbir vide RC no.127/21 copy of which is Ex.PW8/B. Acknowledgment slip is Ex.PW8/C. On 26.11.2008 Ins.Om Prakash had taken one sealed pullanda for seeking opinion of the doctor. On 28.8.09 pullandas were brought from FSL and entry to this effect was made in the register.

State Vs.Shahnawaj etc. FIR No.388/08 Page No. 8 of 83

15. PW9 HC Tara Dutt Joshi has deposed that he recorded DD no.21A copy of which is Ex.PW9/A. He again recorded DD no. 23A regarding admission of Arif in DDU Hospital. He further recorded DD no.25A copy of which is Ex.PW9/C. He sent the DDS to ASI M.Y.Khan one by one. He has further deposed that he received rukka sent by SI M.Y.Khan and recorded FIR copy of which is Ex.PW9/D. Endorsement on rukka is Ex.PW9/E. Kayami DD is Ex.PW9/F. He has further deposed that the copies of FIR were sent to sr. police officiers and Insp. Om Prakash left the PS vide DD no.28A.

16. PW10 HC Vijay has deposed that on 25.11.08 injured Arif Saifi was brought to the hospital by his brother Farooq Saifi and others as he had received injuries near Aggarwal Lassiwala and got admitted vide MLC no.23413/08 and he was declared brought dead. He gave this information to PS Delhi Cantt vide DD no. 23A.

17. PW11 Salimuddin Saifi is the complainant and eye witness in this case and he has stated that his statement Ex.PW11/A was recorded by the police. He has further stated that both the accused State Vs.Shahnawaj etc. FIR No.388/08 Page No. 9 of 83 persons were arrested vide memo Ex.PW11/B and C and their personal search were conducted vide memo Ex.Pw11/D&E and thereafter statements of both the accused were recorded which are Ex.PW11/F and G. He has further deposed that accused Shahnawaj got recovered a vegetable knife with which he had killed his nephew Arif Saifi @ Sonu. The seizure memo of Knife is Ex.PW11/H. Police prepared the site plan at his instance. He identified the dead body vide statement Ex.PW11/I. He identified the knife Ex.P1.

18. PW12 Farookh Saifi is also the eye witness in this case and he has deposed that accused Sajid had taken in grip his younger brother Arif Saifi and Shehnawaj was present there to whom Sajib was saying 'Aaj isko khatma hee kar detein hein' and accused Shahnawaj assaulted with a chhuri on the left side chest of Arif Saifi.

19. PW13 ASI Mohd. Yasin Khan is the first IO of this case who reached at the spot on receipt of DD no.21A mark PW13/A with Ct. Rameshwar. He did not find any witness at the spot, however some persons informed him that injured Arif has been removed to Sood hospital. He did not find injured. He reached State Vs.Shahnawaj etc. FIR No.388/08 Page No. 10 of 83 back at the spot and received DD no.23A and 25A Ex.PW13/B and C and came to know that injured has expired in DDU Hospital. He brought the entire facts into the notice of Insp. Banwari Lal. SHO reached at the spot and he alongwith SHO went to DDU Hospital. He collected the MLC of injured who was declared dead. He found Sh. Salimuddin present in the hospital who was the eye witness of the incident. His statement Ex.PW11/A was recorded. He made endorsement Ex.PW13/A and sent rukka through Ct. Rameshwar for registration of the case. Crime team official reached at the spot. Ct. Rameshwar also reached and informed him the FIR number as 388/08. Complainant Salimuddin also reached at the spot and joined in investigation by Insp. Om Prakash and site plan was prepared at his instance. He has further deposed about lifting of earth control and other exhibits from the spot vide seizure memo Ex.PW6/A. He has further deposed that Insp Om Prakash got the post mortem done and prepared the inquest papers. After post mortem the dead body was handed over to Farook Saifi and Salimuddin. He has further deposed that after post mortem the doctor has handed over the blood stained cloth of the deceased which were seized by the IO vide memo Ex.PW6/B. Pw13 has further deposed that both the accused were apprehended on 26.11.08 on the pointing out of State Vs.Shahnawaj etc. FIR No.388/08 Page No. 11 of 83 complainant from Kranti Chowk, Sadar Bazar vide arrest memo Ex.PW11/B and C and their personal search was conducted vide memo Ex.PW11/D and E and their disclosure statements Ex.PW11/F and G were recorded. He has further deposed that accused persons led the police party to the spot near their fruit shop and got recovered the knife used in the commission of offence. The said knife was blood stained. The sketch of the knife is Ex.PW11/J and it wax seized vide memo Ex.PW11/H. The seal after use was handed over to him. He identified the case property i.e.knife Ex.P1, khoon aluda rori tarcoal mixture Ex.P2, earth control Ex.P3, pant Ex.P4, sweater/jersy Ex.P5, one full sleeve T shirt of blue grey colour Ex.P6, two T­shirts of red and black colour Ex.P7 & 8, one underwear of light brown colour Ex.P9 and handkerchief as Ex.P10.

20. PW14 Ct. Praveen has deposed that on 25.11.08 he reached the spot where he took four photographs at the instance of Incharge crime team. The negatives are Ex.PW14/P1 to P4 and positives are Ex.PW14/P5 to P8.

21. PW15 Dr. Komal Singh has conducted the post mortem on the dead body of Arif. PW15 prepared the post mortem report State Vs.Shahnawaj etc. FIR No.388/08 Page No. 12 of 83 which is Ex.PW15/A. PW15 has further given subsequent opinion regarding the weapon of offence i.e. knife. The opinion is Ex.PW15/C.

22. PW16 W/Ct. Rakhi has deposed that on 25.11.08 she received information from telephone no.20517076 that in Sadar Bazar near fruit rehri Arif had been assaulted with knife, admitted in DDU Hospital and died. The information was recorded in CR DD no.1280979 Ex.PW16/A. Later on she was informed by the IO that DD no.25A was registered with PS Delhi Cantt relating to the above information.

23. PW17 Insp. Om Prakash is the second IO and he has deposed that he reached at the spot where he was handed over the crime team report Ex.PW1/A. Complainant Salimuddin had reached at the spot and he was interrogated. He prepared the site plan Ex.PW17/A. He lifted the exhibits from the spot and seized vide seizure memo Ex.PW6/A. Next day he moved an application Ex.PW17/B for conducting post mortem. He prepared the inquest papers i.e. death form Ex.PW17/C, brief facts Ex.PW17/D and recorded the statements of Salimuddin and Farooq Ahmed regarding identification of the dead body Ex.PW11/I and State Vs.Shahnawaj etc. FIR No.388/08 Page No. 13 of 83 Ex.PW12/A. After post mortem he was handed over the sealed pullanda containing clothes of deceased and blood sample which were seized vide seizure memo ex.PW6/B. The deposited the same in malkhana. Salimuddin met them at the spot at about 5 p.m and at about 5.30 p.m they reached Kranti Chowk, Sadar Bazar where both the accused Shahnawaz and Sajid were standing in front of Sanatan Dharam temple and were pointed out by Salimuddin and both were apprehended and arrested vide memo Ex.PW11/B and Ex.PW11/C and their personal search were conducted vide memo Ex.PW11/D and E. The disclosure statements are Ex.PW11/F and G. The accused persons took them to the fruit stall of their father and accused Shahnawaz took out a knife from an empty wooden box. The blade was of iron and the tip had a curve and it had wooden handle. The blade of the knife was blood stained and it was dry blood. The sketch of the knife is Ex.PW11/J and it was seized vide memo Ex.PW11/H. He had taken the opinion on the weapon of offence. On 29.12.2008 he sent the exhibits to FSL Rohini through Ct. Satbir. He got prepared the scaled site plan. He collected the FSL result and filed in the court alongwith application Ex.PW17/E. The true copy of DD no.21A is Ex.PW17/A1, the copy of which is already Ex.PW9/A.He further stated that true copy of DD no.23A is State Vs.Shahnawaj etc. FIR No.388/08 Page No. 14 of 83 Ex.PW17/A2 and true copy of DD no.25A is Ex.PW17/A3. The copy of MLC of Arif is Ex.PW17/A5.

24. PW18 Dr.Dhananjay had appeared on behalf of Dr. Atish Ranjan who had prepared the MLC no.23413 of deceased Arif Ex.PW18/A.

25. In the overall analysis of the testimonies of all the witnesses it is revealed that in this case PW11 Salimuddin Saifi is the uncle(chacha) of deceased and PW12 Farooq Saifi is the brother of deceased Arif and as per the version of prosecution, the incident of stabbing had taken place when they were going to Sadar Bazar from their house. So, this case depends on direct evidence. Considering this case to be on direct evidence, firstly I have perused the testimonies of PW11 and PW12 since these PWS are the main star witnesses of the prosecution case. PW11 Salimuddin Saifi has stated that on 25.11.2008 at about 7.30 p.m, he alongwith his nephew were going to Sadar Bazar from their house and when they reached on road in between the shop of Aggarwal Lassiwala and Singh Sons Bakery they heard the voice of 'Bachao Bachao', at this they saw his other nephew namely Arif @ Sonu (since deceased) was embraced by accused Sajib Khan State Vs.Shahnawaj etc. FIR No.388/08 Page No. 15 of 83 and Shehnawaj and saying 'Aaj isne hamarey phuphi ke lade ko mara hai,aaj iska khatma hee kar dete hai'. On this accused Shahnawaj had hit assaulted his nephew Arif Saifi @ Sonu on his left side chest (seene mai) with a vegetable cutting knife which he was holding in his right hand. After the assault, before his nephew could fall after he was left by accused Sajib Khan, he held his nephew Arif Saifi when he was profusely bleeding and removed him to Sood Nursing Home where they were told to take him to some bigger hospital. Thereafter they removed him to DDU Hospital where he was declared brought dead. He has further stated that on the same night he came to know that some quarrel between Shehnawaj, the children of his phuphi(bua) and Sajib on one side and Arif Saif @ Sonu on the other side had taken place during day time and on that account both the accused had killed the deceased. He has further stated that he was at the distance of 10 to 15 paces when he saw them quarreling and he ran towards them to intervene but by that time his nephew had already been stabbed by accused Shehnawaj. He gave statement Ex.PW11/A to the police. He has further stated that on the same day i.e. 25.11.08 his nephew Arif @ Sonu had gone to the market to buy some eatables as some guests had come to their house. They were residing in the same house however, there was a wall in between State Vs.Shahnawaj etc. FIR No.388/08 Page No. 16 of 83 his house and the house of Arif @Sonu. The guests had come to the house of Arif. When his nephew Arif did not come back for quite sometime, then he and his other nephew Farookh Saifi went to see him and then they saw the aforesaid incident. He has further deposed that next day the post mortem was conducted. On 26.11.2008 he came to know that both the accused persons are present in Kranti Chowk. He met ASI MY Khan and other police officials and went to the said place where accused persons were arrested vide memo Ex.PW11/B and C and their personal search were conducted vide memo ex.PW11/D and E. The statements of both the accused persons Ex.PW11/F and G were recorded. Accused Shehnawaz led the police party to his rehri at the service road near the shop of Singh Sons Bakery and Aggarwal Lassiwala at Sadar Bazar. There one empty wooden box was lying near his rehri from which he got recovered the vegetable knife with which he had killed his nephew. The knife was seized vide memo Ex.PW11/H. His statement was also recorded by IO on 2.2.09. He has further stated that on 25.11.08 there was a quarrel between the deceased on one side and the others already stated by him on the other side on the point of flying of kite. Site plan does not bear his signatures. He identified the dead body of his nephew deceased Arif vide statement Ex.PW11/I and dead body was handed over to State Vs.Shahnawaj etc. FIR No.388/08 Page No. 17 of 83 them vide receipt Ex.PW11/X. He identified the knife as Ex.P1. He was declared hostile and in cross examination conducted by the Ld. APP for the State he has admitted that Ex.PW11/J i.e. sketch of knife bears his signatures. In cross examination he has stated that he reached in DDU Hospital at about 8/8.15 p.m. He does not know how many public persons were present at DDU Hospital pertaining to the present case. He denied the suggestion that there were about 40 persons in the hospital. His son Mobin was present in the hospital. On the day of incident he had met him first time after the incident at Sood Nursing Home. He admitted that the mobile phone from which he had made call is in the name of his son Mobin. He informed the police at about 8.30 p.m. Whatever information was given to the police was correct. Now he does not recollect if he had informed the police that his son had died in a quarrel with some boys. He had not met the duty constable in the hospital at any point of time. He know Sunil Sharma s/o Sh Gunni Pandit. He does not know if Sunil Sharma had given the first information to the police regarding the present case incident. He admitted that whatever he knew till his statement was recorded on 25.11.2008 he had narrated to the police on that day. He made improvement that some guests had arrived at the house of Arif on 25.11.08. The statement of Farooq was recorded State Vs.Shahnawaj etc. FIR No.388/08 Page No. 18 of 83 in the hospital on 26.11.08 at the time when the dead body was taken for the post mortem. They had left their house at about 3.45 p.m for burial ceremony and returned at about 4.45/5.00 p.m. After burial ceremony he had gone to the PS on 26.11.08. However, he had met SI M.Y. Khan, Addl. SHO Om Prakash and one another police official in the market around 5.30 p.m on 26.11.08. He admitted that during the entire investigation he had not met Insp. Banwari Lal. He admitted that in the entire investigation which was carried out in his presence the public persons have not joined. At 7.15 p.m he was present at the house of Arif. Within 5/6 minutes of 7.15 p.m he had left the house of Arif for the market. Arif had left the house at around 7 p.m again said 7/7.10 p.m. He made improvement that he came to know that some quarrel between Shehnawaz, Children of his phuphi and Sajid on one side and Arif Saifi @ Sonu on the other side had taken during day time and Arif had slapped the son of Phuphi of Shehnawaz. The age of the children were around 8 to 10 years and they were children of neighbourers. They informed that the quarrel had taken place over the kite. He admitted that Sher Aslam Khan, father of both the accused used to sell the fruits on the fruit cart near Singh Sons Bakery. The police post was at the distance of about 10/15 paces from the shop of Aggarwal lassiwala. At the State Vs.Shahnawaj etc. FIR No.388/08 Page No. 19 of 83 time of incident the police post used to remain lock and no police official was available there. He did not notice how many persons were present at the spot at the time of incident. There were no hand carts (rehri) between the place where they were standing and where the incident took place. He had informed his son Mobin about the incident from Sood Nursing Home on telephone. Mobin was present at that time in the house. Mobine came in the car to nursing home. None from his house or from the house of Arif except Mobin had come either to the Sood Nursing Home or DDU Hospital so long they stayed there. He left alone from DDU Hospital at about 10.30/11 p.m for his house. He does not recollect if any police official were present at the spot when he returned from the DDU Hospital. He did not notice if the traffic at the spot was smooth when he returned from DDU Hospital for going to his house. He does not recollect the number of papers signed by him in the hospital on 26.11.08. Farooq had signed on some papers on 26.11.2008. He has further stated that he does not recollect if the police officials had met him for the first time on 26.11.08 in the hospital after he came back to his house from DDU Hospital on 25.11.08. He does not recollect if the police had conducted any investigation during the period he returned from the hospital on 25.11.08 and till he went to DDU hospital on State Vs.Shahnawaj etc. FIR No.388/08 Page No. 20 of 83 26.11.08. On 26.11.08 he remained in the company of ASI M.Y. Khan and his associates for about two hours. From the place of arrest they had gone to the place near rehri from where the knife was got recovered. He does not know if the similar type of knives were also available with the other persons on different hand carts. He admitted that the articles on the hand carts of both the accused persons were in open condition at the time of incident. It is correct that the fruit hand carts are stationed on the patri. The knife was got recovered at about 6.30/7.00 p.m. After about half an hour of the arrest of accused persons, the knife was got recovered by the accused Shahnawaj. He does not remember the no. of persons collected at the place of arrest of accused persons. He admitted that the distance between the place of incident and the place from where the accused persons were arrested was of 15­20 minutes run on foot. He has further stated that it is incorrect that Tahir Ansari had removed Arif in injured condition to the hospital. In his presence the statement of Farooq was not recorded on 25.11.08. Insp. Banwari Lal never recorded his statement nor interrogated him. He denied that he and Arif were residing as tenants and he does not know if the said property is owned by Delhi Wakf Board. He admitted that at the time of incident the building of Aggarwal Lassiwala was under construction and since then it is lying under State Vs.Shahnawaj etc. FIR No.388/08 Page No. 21 of 83 construction. He does not know if there was any dispute going on between the management of the Mosque or the father of both the accused persons over the construction of roof of his house. He denied the suggestion that he did not witness the quarrel between Arif and accused persons.

26. PW12 Farookh Saifi is another eye witness and he has stated that on 25.11.08 he alongwith his chacha Salimuddin reached near Singh Sons Bakery there they saw accused Sajib Khan who had taken in grip his younger Arif Saifi @ Sonu (since deceased) and at that time accused Shehnawaj was present to whom Sajib was saying 'Aaj iska khatma hee kar detein hein'. He heard this from the distance of about 10 to 12 paces. They started walking fast and before they could reach them, accused Shahnawaj assaulted with a chhuri on the left side chest of Arif Saifi @ Sonu and by that time we had reached the Arif Saifi and they held him and in the meantime both the accused ran away from the spot. They removed Arif to Sood Nursing Home where they were advised to take him to bigger hospital and they removed him to DDU Hospital where his brother was declared brought dead. He has further deposed that on that day his brother Arif Saifi @ Sonu had altercation with accused Shahnawaj about which he State Vs.Shahnawaj etc. FIR No.388/08 Page No. 22 of 83 had heard from the children of the mohalla. He does not know on what account there was an altercation and at what time there was altercation. He has further deposed that he identified the dead body of his brother vide statement Ex.PW12/A and after post mortem dead body was handed over to them. He identified the knife Ex.P1. In cross examination he has stated that he is residing in a tenanted house and Salimuddin is also residing as tenant. He admitted that the door of the house of Salimuddin opens in different gali than the door of the house in which he is residing. On the day of incident, the parents in law of his sister and her brother in law had visited their house. It is correct that deceased Arif was residing at the second floor of the house. It takes about 2 minutes to reach his house from the house of Salimuddin. He had seen deceased Arif leaving the house around 6.45/7 p.m. When he left they had no conversation nor any altercation. It was not raining on the day of incident. On the day of incident Salimuddin had met him in the morning and thereafter when his sister came to their house, he visited them. Thereafter Salimuddin went back at about 7­7.15 p.m. He might have come to their house one hour before 7 ­7.15 p.m but he cannot tell the exact time. When deceased Arif left the house he had also not talked with Salimuddin nor quarrel with him. He had heard the State Vs.Shahnawaj etc. FIR No.388/08 Page No. 23 of 83 name of Sunil Sharma s/o Brahm Dutt Sharma but he did not know him personally. There are three shops between Aggarwal Lassiwala and the fruit cart of Cheena. The adjoining building of Singh Bakery was not under construction at the time of incident. The dead body of Arif was taken for burial at about 4.15 p.m on 26.11.2008 and they returned at about 5.15/5.30 p.m. He admitted that so long the meals were being served his statement was not recorded by the police. Again said his statement was recorded by the police in DDU Hospital in the afternoon between 2 to 3 p.m. He admitted that his statement in DDU Hospital was recorded regarding receiving of the dead body. So, far he recollect his two statements were recorded in DDU Hospital. He admitted that on the day of incident, police had not made any enquiry from him nor recorded his statement. On 25.11.08 no police official met him in the hospital nor he was aware of that police official met him in the hospital. He remained in the hospital for two hours. He has denied the suggestion of the Ld. Counsel that before the burial of Arif, he had not given any statement to the police about the alleged incident. On 25.11.08 he had gone to the hospital at about 8­8.15 p.m and returned from there at about 9.30 p.m. He admitted that the traffic at the place where the incident had taken place was normal on 25.11.08 when he returned to his house from the State Vs.Shahnawaj etc. FIR No.388/08 Page No. 24 of 83 hospital at about 9.30 p.m. There was no police official at the spot at that time. He and Salimuddin only had removed Arif to Sood Nursing Home from the spot. From the place of incident to Sood Nursing Home and thereafter to DDU Hospital where Arif was removed, his chacha Salimuddin had never left his company nor had gone to the house. Tahir had not brought his car to Sood Nursing Home. Accused Sajib used to sit on the fruit cart of his father which was at the distance of about 15­20 feet from the fruit cart of accused Shahnawaj. In their mohalla nobody was indulging in Kabootarbaji. He had not stated before the police that a quarrel had taken place between Arif and the son of Bua of Shahnawaj over the issue of Kabootarbaji. There were 30/40 persons present in the hospital. In his presence police was not informed by any of those persons. No police official had asked about his name in the hospital before he had left the same for his house. AT the time when Arif was got admitted in the hospital besides him, his uncle namely Salimuddin and his son Mubeen were present. The doctor asked about his name which he told and he had also told that the said person is his brother Arif. Mobeen had met them in Sood Nursing Home for the first time and from there he had accompanied them to DDU Hospital. His uncle Salimuddin might have called Mobeen to Sood Nursing Home. He has further stated State Vs.Shahnawaj etc. FIR No.388/08 Page No. 25 of 83 that the distance between his house and the place where the alleged quarrel took place is of about four minutes walk on foot. At about 7/7.15 p.m when he left his house, there were about 14 persons present in his house excluding Arif. The distance between his house and Sood Nursing Home is of about 7 minutes walk. When he had reached at the spot, public persons had not gathered there. However, some public persons as well as vehicles were passing through. His clothes were got blood stained. Rehri of Shehnawaj was there at the spot when he came back from the hospital. He does not recollect if the fruits were lying on it or not. No items/petties were found lying scattered outside the rehri of Shehnawaj, Vikram and Cheena. So, far as he remember when he came back from the hospital, the rehri of accused Shahnawaj was covered with some tripal/plastic sheet used for covering. His uncle came back to house at about 11.30/12 midnight. He remained inside his house. In his presence no one was interrogated by the police nor his statement was recorded. The type of knife which was got recovered, might be available in the market and also available with other fruits seller. After the incident he had seen the knife Ex.P1 only in the court When his statement was recorded by the police, knife was not shown to him. He had identified the knife only on the basis that it was blood stained. The distance between State Vs.Shahnawaj etc. FIR No.388/08 Page No. 26 of 83 his house and the PS can be covered in 10/12 minutes on foot. PS falls on the way on return from hospital. He was returned from PS alongwith five other persons but none of them went to PS to inform about the incident. They had left Sood Nursing Home for DDU Hospital at about 8 p.m in the car via main road and there was no traffic jam near the police post. He does not recollect the name of the police officials who had recorded his statement on 26.11.08. Police had recorded his statements twice. His one statement was recorded in the PS and second was recorded in mortuary and he had signed both his statements. He admitted that he had not stated in his statement to the police that he heard 'aaj iska khatma hi kar dete hain' from the distance of about 10/12 feet. He also admitted that he had not stated that when they heard Sajib exhorting Shehnawaj they started walking fast. He denied the suggest that the grand father of both the accused has dispute with the Wakf Board and the local society and for this reason they have been falsely implicated. He admitted that the local association of their society is not permitting the grand father of the accused persons to construct roof over their property. EYE WITNESSES

27. There is well settled law in criminal jurisprudence "Stricter State Vs.Shahnawaj etc. FIR No.388/08 Page No. 27 of 83 the penalty, stricter the proof. This case depends on direct evidence. So, the testimony of eye witnesses/complainant has to be scrutinized minutely. In this case PW11 Salimuddin is the complainant/eyewitness and PW12 Farook Saifi is the eyewitness. So, firstly I will take into consideration the testimony of PW11 Salimuddin who is the complainant and eye witness in this case. In his statement recorded before the court he has stated that he was going with PW12 Farook to Sadar Bazar at about 7.30 p.m. When they had reached on the road in between the shop of Aggarwal Lassiwala and Singh Sons Bakery they hard the voice of Bachao Bacho and they saw his other nephew namely Aarif @ Sonu was embraced by accused Sajib Khan and he was saying to accused Shahnawaj 'Aaj Isne Hamarey Phuphi ke ladko ko mara hein, Aaj iska khatma hee kar dete hein. Now considering the testimony of PW12 Farood Saifi who is the brother of deceased Arfi @ Sonu he has not stated that he alongwith Salimuddin were going to Sadar Bazar. PW12 Farook Saifi has also not stated that he heard the noise of Bachao, Bachao while he was going with PW11 Salimuddin. Further PW12 Farook Saifi has stated that Sajid was saying 'Aaj iska khatma hee kar detein hein'. He has given different version from the version of PW11 as PW11 has stated that Sajid was saying ''Aaj Isne Hamarey Phuphi ke ladko State Vs.Shahnawaj etc. FIR No.388/08 Page No. 28 of 83 ko mara hein, Aaj iska khatma hee kar dete hein'.

28. However, PW11 has further stated that accused Shehnawaj had hit & assaulted his nephew Aarif Saifi on his left side chest (seene mai) with a vegetable cutting knife which he was holding in his right hand. PW12 Farook Saifi has also stated that on hearing this they started walking fast and before they could reach them, accused Shahnawaj assaulted with a chhuri on the left side chest of Arif Saifi@Sonu and by the time they had reached him and held him, in the meantime both the accused ran away from the spot. Both Pw11 and PW12 have stated that they had seen accused Shahnawaj giving chhuri blow on the person of Arif. Both these witnesses are near relatives of deceased Arif. Section 146 of the Evidence Act enlarges the scope of the provisions of Section 138 by allowing putting questions to a witness to :­

(a) test his veracity;

(b) to discover who is and what is position in life; and

(c) to shake his credit.

29. To test the veracity of these two witnesses in this respect as to whether they had seen the incident it is necessary to go through their cross examination. Before discussing the cross examination of these witnesses, I laid my hand on some DDs State Vs.Shahnawaj etc. FIR No.388/08 Page No. 29 of 83 recorded in this case. DD no.21A was recorded on 25.11.08 at 7.50 p.m stating 'Aggarwal ki shop ke samne Sadar Bazar Quarrel'. As per control room form Ex.PW17/DA this information was passed on by one Sunil Sharma who has not been examined in this case neither any investigation has been made by the IO from Sunil Kumar while his address is mentioned in the police control room form. Further it was reported by the PCR van that '2 minutes kele ki rehdi par jhagda hua tha filhal yaha kuch nahi hai public ke aadmi ne batlaya ek aadmi injured tha UK hospital ja chuka hai'. IO of this case has not interrogated any banana rehri vendor nor examined in this case to establish this fact. DD no.23A was recorded at 8.25 p.m wherein it is mentioned that Farooq Saifi has got admitted his brother Arif in the hospital who was injured in the quarrel taken place at the shop of Aggarwal Lassiwala, Sadar Bazar, Delhi Cantt. DD no.25A was recorded at 8.35 p.m and in the police control room form Ex.PW16/A it is mentioned that quarrel in Sadar Bazar Delhi Cantt 'Sheruki Fal ki Rehri ke pass, the information was passed by Mubeen wherein it has been mentioned that 'kuchh ladko ne mere bete Arif ko chaku mara tha jise lekar mai DDU Hospital Aaya hu. Mera beta expire ho gaya hai police bhejen'. Report from Van received stating that Arif s/o Saleem MLC no. 23413 declared brought dead. Pursuant to this State Vs.Shahnawaj etc. FIR No.388/08 Page No. 30 of 83 information IO SI M.Y Khan reached at the spot at 09.22 p.m and reported that 'mauka par kuch nahi mila pehle jhagra hua tha injured hospital chala gaya'. It is mentioned in the PCR form Ex.PW16/A that local police reached at the spot on 25.11.2008 at 21.42.38 (9.42 p.m). PW11 has alleged that he had given the information to the police vide DD no.25A from the mobile of his son Mubeen Vide DD no.25A. He had seen the incident with his own eyes and he knows the accused persons. But he did not disclosed the names of the accused persons at the time of passing the information. The name of complainant Salimuddin is not mentioned on the MLC prepared at Deen Dayal Upadhyay Hospital. Since the name of Salimuddin is not mentioned as informant on DD no.25A, it is not believable that he was the informer of the present case incident or that he did see the present case incident because the deceased Aarif was also not his real son. Therefore question for passing on information that his son has been stabbed does not arise and it seems that the father of deceased had given this information who has not been made as witness in this case. Further, Pw11 Salimuddin has stated that Arif had gone to buy some eatables as some guests had come to their house. He has further stated that they were residing in the same house however there was a wall in between his house and State Vs.Shahnawaj etc. FIR No.388/08 Page No. 31 of 83 the house of Arif Saifi @ Sonu. When there is wall between the house of PW11 Salimuddin and deceased Arif Saifi, it is not understandable as to how he came to know about coming of guests at the house of Aarif @ Sonu (deceased). Further PW12 Farooq who is the brother of deceased Aarif and nephew of PW11 has stated that it is correct that his chacha Salimudin is also living as a tenant in his house. It is correct that the door of the house of Salimuddin opens in different gali than the door of the house in which he is residing. He has further stated in cross examination that it took two minutes to reach his house from the house of Salimuddin. Admittedly Farood Saifi PW12 and deceased Aarif @ Sonu were residing in one house. From the version of PW12 that the house of Salimuddin opens in different gali than the door of house in which he is residing and the version of PW11 Salimuddin that there was wall in between the house create doubt about the version of PW11 Salimuddin regarding coming of guests in the house of Aarif on the alleged day of incident. PW11 as well as PW12 have further stated that none of the said guests have come to the hospital which further create doubt because after hearing of such an incident everybody would like to see the victim. Even PW11 has further stated in cross examination that none came to DDU Hospital from the family of Arif. PW12 has stated that there State Vs.Shahnawaj etc. FIR No.388/08 Page No. 32 of 83 were 14 persons present at the house when he left and the distance between his house and Sood Nursing Home is about 7 minutes walk in distance. He admitted that none out of the above persons had reached in Sood Nursing Home or at the spot of alleged incident. This is against the human behaviour. PW11 Salimuddin who is the complainant in this case has further stated in his statement that when Arif did not come for sometime then he and his nephew Farooq went to see him and saw the said incident. As per deposition of PW12 Farook Saifi left the house at about 6.45/7.00 p.m. As per rukka the present case incident has taken place at 7.30 p.m. First DD no.21A was got recorded by one Sunil Sharma at 7.50 p.m. This makes crystal clear that incident did not take place at 7.30 p.m and it might have taken place at 7.50 p.m. It is the case of the prosecution that PW11 Salimuddin and Farooq (PW12), went to see Aarif when he did not come for sometime and saw the said incident. It is therefore emphatically clear that they must have gone after quite a long time by when the incident would have already taken place since deceased Arif left the house at 6.45/7.00 p.m and allegedly he had gone to buy some fruits, as per statement of complainant PW11 Salimuddin. It might be that when he did not return for about half an hour or so, PW11 and PW12 had gone to see him where he was already found lying State Vs.Shahnawaj etc. FIR No.388/08 Page No. 33 of 83 because after buying fruits he would have returned back immediately since the market was not at far distance. The version of PW11 regarding seeing the incident is further doubtful because PW12 Farooq who is the brother of deceased Arif Saifi has stated in his cross examination that he (PW11 Salimuddin) has left the house at about 7/7.15 p.m. Admittedly deceased has also left at the same time. It is crystal clear that when PW11 had left for his house at 7 or 7.15 p.m, he would not have gone with PW12 Farooq since there is no evidence that Salimuddin had again came to the house of Farooq after 7 or 7.15 p.m and therefore he would not have witnessed the incident of this present case.

30. PW11 in cross examination has stated that now he does not recollect if he informed that his son has died due to quarrel with some boys. However, this fact is mentioned in DD no.25A which is allegedly got recorded by PW11 Salimuddin though name of Mobin is mentioned as an informant. He has further stated that he does not know if Sunil Sharma had given the first information. He know Sunil Sharma s/o Guni Pandit. Sunil Sharma who is the first informant in this case and informed about the quarrel and known to PW11 as well as PW12, has not been interrogated by the IO while he was the best and independent witness to tell as to who all State Vs.Shahnawaj etc. FIR No.388/08 Page No. 34 of 83 were quarreling and who stabbed the deceased. In case Law Shyam Sunder & Raj Kumar Vs. State (Delhi Admn), 1995 (33) DRJ (DB) High Court of Delhi in para 26 has observed that :­ 'It is significant to mentioned that one Sh Malhotra had given a telephone call to the police control room at 8 p.m that a number of persons had sustained injuries in quarrel at H.No.70 Western Extn Area, Karol Bagh. This report was recorded in DD no.180 copy of which is Ex.PW8/A. ........ Even the telephone number of said Sh Malhotra is recorded in DD report which is 5711372. Earlier to this report, a report had been received from the hospital recorded at 7.50 p.m in Daily Dairy copy of which is Ex.PW3/A , SI Laxmi Chand had been deputed to inquire into the matter. The place of occurrence was known to the police from these two reports and it is inconceivable that the police would not have taken steps to immediately reach the place of occurrence besides taking steps at the hospital in order to find out about the presence of any eye witnesses either at the hospital or at the place of occurrence. Nothing has come on the record to reveal as to whether the IO had contacted the said Malhotra or not and whether the said Malhotra was an eye witness of the occurrence or not.'

31. In case Law State of Rajasthan Vs. Teja Ram, 1999 II AD State Vs.Shahnawaj etc. FIR No.388/08 Page No. 35 of 83 (SC) 537 = (1999) 3 SCC 507 it is stated that :­ "..... If the court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against non­examination of such a person as a prosecution witness.'

32. In case law State of UP Vs. Jaggoo AIR 1971 SC 1586 It is stated that :­ 'It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witnesses whose evidence is essential to the 'unfolding of the narrative' should be called. This salutary principle in criminal trials has been stressed by this court in the case of Habeeb Mohammad Vs. The State of Hyderabad AIR 1954 SC 51, for eliciting the truth. The absence of Ramesh from the prosecution evidence seriously affects the truth of the prosecution case.'

33. In this case first informant Sunil Sharma was a crucial witness but he was withheld by the prosecution from the trial, whose testimony might be convenient, or might be contrary to the expectation of the prosecution and therefore there is legitimate ground for suspecting the prosecution version. State Vs.Shahnawaj etc. FIR No.388/08 Page No. 36 of 83

34. In case Law 2012 III AD (Delhi) 101 titled Ajay @ Chotu & Ors. Vs. State it is observed that :­ 'Cr.PC. 1973 - Sec.157 - Procedure for investigation - Indian Penal Code, 1860 - Sec. 302 & 34 - Murder - Acts done by several persons in furtherance of common intention - Conviction & Sentence - Challenged - FIR - Lodging of _ Independent witness - Non ­examination of - In view of the unreliability of prosecution story regarding time of lodging of FIR, lack of explanation why special report was received late by magistrate, conflicting versions with regard to arrest of accused V, and non examination of independent witnesses, S, this court is of opinion that accused's conviction was not justified.

35. PW12 Farooq Saifi has stated that he had gone to the spot with PW11 Salimuddin and saw the incident. But going to the spot of Salimuddin is doubtful. However, I have perused his cross examination. He has stated that house in which he is residing is tenanted house and house of Salimuddin is also a tenanted house. Pw11 Salimuddin has given different version and stated that they are having their own houses. He has further stated that Arif was residing at the 2nd floor. When Arif left he had not talked with Salimuddin nor quarreled with him. He has admitted that on the State Vs.Shahnawaj etc. FIR No.388/08 Page No. 37 of 83 day of incident police has not recorded his statement nor made enquiry from him. This version is clear from the testimony of PW13 ASI M.Y.Khan as he has also stated that he saw Farooq in the hospital and he was weeping. Farooq is the brother of deceased Aarfi @ Sonu. But IO did not record his statement on the day of incident in the hospital. His statement was recorded on 26.11.08. PW12 has further admitted that on 25.11.08 no police official met him in the hospital nor he was aware although police had arrived in the hospital. He has further stated that he and Salimuddin removed injured to hospital and his chacha remained with him and did not leave for house. But PW12 Farooq has no where stated that police has met his chacha Salimuddin and recorded his statement. He has further stated that no police official asked for his name in the hospital before he had left for the house. He has stated that his cloth were got blood stained. Cloth of both the witnesses got blood stained but IO has not recovered those blood stained clothes of PW11 and PW12 in this case which further create doubt about their presence at the spot. Further PW13 SI M.Y. Khan has stated in cross examination that he had recorded the statement of Salimuddin uncle of the deceased. He had asked Salimuddin while recording his statement as to in which vehicle injured was removed to the hospital as to verify that State Vs.Shahnawaj etc. FIR No.388/08 Page No. 38 of 83 whatever he was stating was truthful but he does not remember what reply was given by Salimuddin. He did not make efforts to see the car in the hospital to confirm that the injured was brought by them. PW13 has further stated in cross examination that he had asked both the witnesses if their cloth were blood stained, he was informed that their clothes were not blood stained. PW17 Insp.Om Prakash has stated that he met Salimuddin on 25.11.08 for the first time. He had not seen any blood on his cloth. Had PW11 and PW12 been present at the spot and removed the deceased to hospital, blood must have come on their clothes. But PW17 Insp. Om Prakash did not notice any blood on the cloth of Salimuddin on 25.11.08 i.e. the day of present case incident. It seems that IO was doubtful about the presence of these witnesses PW11 and PW12 at the spot and it is further clear that they did not witness the present case incident. PW12 has further stated that police has recorded his two statements, one in the PS and one in Mortuary. Pw13 ASI M.Y Khan has stated in cross examination that Farooq Saifi met him in DDU Hospital on 25.11.08 at about 9 p.m. Firstly this version of PW13 has been denied by PW12. Secondly, PW13 has alleged that he met Farooq at 9 p.m. I have perused DD no. 25A wherein it is mentioned that 'Time when Local Police reached at the spot 25 Nov.2008 21.42.38'. It is clear that local police did State Vs.Shahnawaj etc. FIR No.388/08 Page No. 39 of 83 not reach the spot at 9 p.m and therefore version of PW13 meeting Farooq seems to be wrong. Further, it is clear from this version of PW12 that his statement was recored by the IO in the PS.

36. PW1 ASI Khajan Singh is the witness from the crime team. He alongwith PW14 Ct. Praveen visited the spot at about 11.15 p.m as PW11 in cross examination has stated that they reached the spot at 11.15 p.m and left at 12 midnight. The report of crime team is Ex.PW1/A and photographs are Ex.PW14/P5 to P8. I have perused the said report on which time of inspection is shown as 11.15 p.m to 11.40 p.m. Incharge Crime team has advised the IO vide above report 'to take the statements of the eye witnesses on the spot'. I.O. had already met the Incharge Crime team at the spot. Rukka Ex.PW13/A was sent at 10.45 p.m. It is clear that by the time spot was inspected by the crime team, the statement of eyewitness/complainant was already recorded. But the crime team report Ex.PW1/A suggest that no statement of complainant/eye witness was recorded till 11.40 p.m. When no statement of complainant was recorded, it is not understandable as to how the FIR was recorded.

37. I have also considered the FIR in this case. PW9 HC Tara State Vs.Shahnawaj etc. FIR No.388/08 Page No. 40 of 83 Dutt Joshi has recorded the FIR in this case on the basis of rukka sent by ASI M.Y Khan brought by Ct. Rameshwar. The copy of FIR is Ex.PW9/E. I have perused the testimony of PW13 ASI M.Y Khan who has stated that he did not find any witness at the spot, however some persons informed him that the injured had been removed to Sood Nursing Home and some blood was lying at the spot. He has further stated that he met Salimuddin in the hospital who told him that he is chacha of Aarif and recorded his statement Ex.PW11/A. Thereafter he came back at the spot, prepared rukka and sent through Ct.Rameshwar at about 10.45 p.m. He has further stated that Ct. Rameshwar had reached at the spot and he had informed him the FIR number 388/08 u/s 302/34 IPC registered in this case. PW13 has no where stated that Ct. Rameshwar had returned from PS alongwith rukka and copy of FIR. I have considered the statement of PW6 Ct. Rameshwar in this respect. He has stated that leaving him at the spot IO went to the hospital from where he returned at 10.45 p.m and handed over rukka to him and he was sent to PS for registration of the FIR. The statement of Salimuddin has allegedly been recorded by the IO PW13 in the hospital where PW6 Ct Rameshwar was not available. But in his further statement PW6 has stated that statement of Salimuddiin was recorded by ASI M.Y.Khan. Again State Vs.Shahnawaj etc. FIR No.388/08 Page No. 41 of 83 said it was recorded by Insp. Om Prakash and thereafter they returned to PS. From the version of PW6 it seems that statement of Salimuddin was recorded by Insp.Om Prakash. But Insp. Om Prakash in cross examination has admitted that on 25.11.08 he did not record the statement of any public witness at the spot. PW12 Farook has stated in cross examination that on 25.11.08 he had gone to the hospital at about 8­8.15 p.m and returned from there at about 9.30 p.m. He has further stated that his family members might have come to know about the death of Arif before he had reached his house on the said day at about 9.30 p.m. As per version of PW12 he came back from the hospital at 9.30 p.m and he has also stated that Salimuddin remained with him till he remained in the hospital. But PW11 Salimuddin has stated that he left the DDU Hospital at about 10.30/11 p.m for his house. PW6 Ct. Rameshwar has stated in cross examination that it is correct that he had not brought the copy of FIR and rukka to the spot VOL. He had only brought the number of FIR. To clarify this court question was put to this witness which is appended below:­ Question: In your examination in chief you had stated that you withdraw the copy of FIR and original rukka to the spot after the registration of FIR and handed over both the documents to ASI M.Y.Khan and in your cross examination you have State Vs.Shahnawaj etc. FIR No.388/08 Page No. 42 of 83 stated that you had not brought the copy of FIR and original rukka to the spot and you had only brought the FIR number. What of your two statement is correct?

Answer: I had not brought the copy of FIR and original rukka and I had only brought the FIR number. I had stated in my examination in chief that I had brought copy of FIR and original rukka due to confusion.

38. The above clarification of PW6 Ct. Rameshwar who had taken rukka to the PS for registration of the case clearly show that he had only brought the FIR number from the Police Station and at that time there was no document i.e. statement of Salimuddin Ex.PW11/A and rukka Ex.PW13/A was with him. Therefore, recording the statement of Salimuddin in the hospital and preparing the rukka Ex.PW13/A by the IO are doubtful and seems to have been prepared after thought since only the FIR number was brought by Ct. Rameshwar from the PS and this can be further verified from the cross examination of PW6 wherein he has stated that ASI M.Y.Khan had recorded the statement of PW Salimuddin after he returned from Police Station on 25.11.08. This version of PW6 emphatically makes it clear that statement of Salimuddin was recorded after PW6 came from PS to the spot as State Vs.Shahnawaj etc. FIR No.388/08 Page No. 43 of 83 there is no other statement available on record which was recorded on 25.11.08 by ASI M.Y Khan except the one on the basis of which the present case was registered. So, it is crystal clear that only the FIR number was brought by PW6 Ct. Rameshwar from the Police Station and that no statement of Salimuddin was recorded in the hospital on which the present case was registered.

39. Allegedly PW11 had come to the spot after 10.30 or 11.00 p.m for his house. PW11 has stated in his statement that on the same night,he came to know that some quarrel between Shahnawaj, the children of his phuphi (bua) and Sajid on one side and Aarif Saifi @ Sonu on the other side had taken place during day time and on that account both the accused had killed the deceased. PW12 Farook has also stated that on that day his brother Aarfi Saifi @ Sonu had altercation with accused Shahnawaj about which he had heard from the children of the mohalla. He has also stated that on 25.11.08 there was a quarrel between the deceased on one side and the accused on the other side on the point of flying of kite Vol. He was informed about this quarrel by some children and the deceased had given a slap to the son of phuphi (bua) of accused Shahnawaj and this fact has also been told by State Vs.Shahnawaj etc. FIR No.388/08 Page No. 44 of 83 some children residing in their neighbourhood. In cross examination he has stated that he does not recollect if he had stated to the police in his statement dated 25.11.08 or 26.11.08 that on the same night he came to know that some quarrel had taken place. He has further stated in cross examination that he has heard about this fact from the mouth of some children in the street when he returned from the hospital at about 12 midnight. Pw11 himself has made contradictory statement. Sometime he has stated that he returned from the hospital at 10.30/11 p.m and sometime at 12 midnight. However, on perusal of his statement Ex.PW11/A it is found mention that 'mere bhatije ko Shahnawaj va Sajid Khan r/o Pata Uprokt ne subah bachcho ke saath huye jhagde mei ranjish sey erada kerke katl kiya hai'. This witness PW11 Salimuddin who is the complainant and alleged eyewitness had returned from the hospital as per his own version at 12 midnight or at 10.30/11 p.m. He has alleged that on the same night some children had informed him about this quarrel. But allegedly his statement Ex.PW11/A was recorded in the hospital. If he was informed about the incident of quarrel between children in the night, it is not understandable as to how it has been mentioned in his statement Ex.PW11/A made by him in the hospital when he had left the house to hospital at about 7.00 p.m on 25.11.08 and State Vs.Shahnawaj etc. FIR No.388/08 Page No. 45 of 83 returned only after 11 p.m by which time the rukka was already sent. The above discussions also create doubt about PW11 Salimuddin being eyewitness in this case.

INDEPDENDENT WITNESSES

40. IN CASE LAW titled Thangavelu VS. State of Tamil Nadu, 2002 (3) JCC 1434 it was observed in para 6 that :­ 'If we examine the evidence of these two witnesses in the background of the fact that there is some doubt as to the time of death of D1 and D2 as spoken to by the doctor, PW5 coupled with the fact that the incident in question had occurred on a midday at a place where there were nearly 50 hours and none of those persons are supposed to have seen the incident, creates doubt in our minds as to the prosecution case. Here we may notice that any independent eye witness cited by the prosecution PW6 has not supported the prosecution case. This witness being the sister of the VAO, PW11 who had written Ex.P1 cannot be presumed in any manner, as having been won over by the accused nor is there any suggestion to that effect. It is also to be noted at this stage that for reasons not explained, the prosecution has failed to examine the other two eye witnesses viz Rengasamy and Thulasi Ammal. The defence has pointedly suggested that these witnesses have not been examined because of property dispute in the family which is suggested one of the probability for State Vs.Shahnawaj etc. FIR No.388/08 Page No. 46 of 83 murder of D1 and D2. ..............In these circumstances we find it difficult to rely on the testimony of these two interested eye witnesses. In our opinion there is sufficient justification for the Ld.counsel for the appellant to contend that the prosecution having failed to examine all the eye witnesses in these facts and circumstances of the case, reliance can hardly be placed on the evidence of Pws.1 and 2 to convict the appellant.

41. In case Law titled State of Punjab Vs. Harbans Singh and Anr, AIR 2003 Supreme Court 2268 it is stated that :­ It is the prosecution that itself that Darshan Singh who was one of the witnesses to the incident who also helped PW4 and 11 to carry the injured to the hospital and remained with them almost right through has not been examined by the prosecution. The explanation given is that he has been won over by the accused. But then it is also to be noted that there were many neighbours also who came to the place of incident but none of them have been examined as witness leaving only PW4 and PW11 as the sole eye witness in this case. Further it is to be notice that these two witnesses alongwith Darshan Singh carried both the injured persons in the vehicle and thereafter helped in carrying the injured persons to primary Health Centre but no blood stained clothes were recovered from the possession of these witnesses which also throws considerable doubt about the presence of these witnesses at the time of incident. PW11 though says State Vs.Shahnawaj etc. FIR No.388/08 Page No. 47 of 83 that there was a little blood stain on his cloth, he washed the same in the hospital which explanation, in our opinion, is highly artificial.'

42. PW11 Salimuddin and PW12 Farooq are the near relatives of deceased Aarif. Their presence at the time of incident is doubtful in view of my above discussions. In the facts and circumstances of the case, it seems that they have not witnessed this present case incident with their own eyes. Further, it has come in the evidence that at that time many fruit rehriwalas were present at the spot. The time of incident is about 7.30 p.m which is not the odd hours. Alleged Aggarwal Lassiwala shop and Singh Sons Bakery must have been open. PW11 Salimuddin has admitted that Aggarwal Lassiwala is well know to him and was his friend. But none came to help PW11 at the time of incident. Further no rehriwala has been interrogated by the IO or made witness in this case while the incident had taken place near fruit rehris. Those rehriwala would have been the best witnesses to corroborate the version of PW11 and PW12. Even no witness from the Aggarwala Lassiwala shop and Singh Sons Bakery has been associated in this case who would have strengthened the case of the prosecution. Further, Sunil Sharma who is the first informant has not been cited as witness nor examined in this case. State Vs.Shahnawaj etc. FIR No.388/08 Page No. 48 of 83 The statements made by eyewitnesses PW11 and PW12 are found to be inconsistent, unreliable and untrustworthy. They even did not inform the police about the incident at first instance. PW11 has taken the plea that he has informed from the hospital from the mobile of his son. But it could not be established by way of leading evidence that he was the informant since name of PW11 is not mentioned in the information. Allegedly both the PWS removed the injured (deceased) to hospital. But their clothes were not blood stained and no such clothes has ever been recovered by the IO to establish that both the witnesses had really removed the injured(deceased to the hospital). Therefore they cannot be relied upon. Reliance placed on Shyam Sunder & Raj Kumar Vs. State (Delhi Admn.) 1995 (33) DRJ (DB) High Court of Delhi, State Vs. Teja Ram 1999 II AD (SC) 537, State of UP Vs. Jaggo AIR 1971 SC 1586 (supra) and 2012 III AD (Delhi) 101 titled Ajay @ Chotu and Ors Vs. State (Supra) STATUS OF F.I.R

43. PW9 HC Tara Dutt Joshi has recorded the FIR in this case on the basis of rukka sent by ASI M.Y Khan brought by Ct. Rameshwar. The copy of FIR is Ex.PW9/E. I have perused the State Vs.Shahnawaj etc. FIR No.388/08 Page No. 49 of 83 testimony of PW13 ASI M.Y Khan who has stated that he met Salimuddin in the hospital who told him that he is chacha of Aarif and recorded his statement Ex.PW11/A. Thereafter he came back at the spot, prepared rukka and sent through Ct.Rameshwar at about 10.45 p.m. It is to be borne in mind that the time of incident is 7.30 p.m. He has further stated that Ct. Rameshwar had reached at the spot and he had informed him the FIR number 388/08 u/s 302/34 IPC registered in this case. PW13 has no where stated that Ct. Rameshwar had returned from PS alongwith rukka and copy of FIR. I have considered the statement of PW6 Ct. Rameshwar in this respect. He has stated that leaving him at the spot IO went to the hospital from where he returned at 10.45 p.m and handed over rukka to him and he was sent to PS for registration of the FIR. The statement of Salimuddin has allegedly been recorded by the IO PW13 in the hospital where PW6 Ct Rameshwar was not available. But in his further statement PW6 has stated that statement of Salimuddin was recorded by ASI M.Y.Khan. Again said it was recorded by Insp. Om Prakash. From the version of PW6 it seems that statement of Salimuddin was recorded by Insp.Om Prakash. But Insp. Om Prakash in cross examination has admitted that on 25.11.08 he did not record the statement of any public witness at the spot. PW12 Farook has stated in cross State Vs.Shahnawaj etc. FIR No.388/08 Page No. 50 of 83 examination that on 25.11.08 he had gone to the hospital at about 8­8.15 p.m and returned from there at about 9.30 p.m. As per version of PW12 he came back from the hospital at 9.30 p.m and he has also stated that Salimuddin remained with him till he remained in the hospital. But PW11 Salimuddin has stated that he left the DDU Hospital at about 10.30/11 p.m for his house. In the statement Ex.PW11/A it is found mentioned that 'mere bhatije ko Shahnawaz va Sajid Khan r/o pata uprokt ne subah bachcho ke saath hua jhagde mei ranjish se erada katal kiya hai'. PW11 Salimuddin has admitted himself that this fact was told to him by some children on the same night. From this version, it can be very well inferred that Salimuddin had returned to his house from hospital at about 10.30/11 p.m. As per the case of the prosecution, this statement was recorded in the hospital. But it is not understandable as to how this fact came in his statement Ex.PW11/A recorded in the hospital when he himself has stated that it was told to him by some children of locality on the same night while his statement was already recorded by the IO by the time he reached in the house. The testimony of PW6 Ct. Rameshwar is of immense importance in this respect. He has stated in cross examination that it is correct that he had not brought the copy of FIR and rukka to the spot VOL. He had only State Vs.Shahnawaj etc. FIR No.388/08 Page No. 51 of 83 brought the number of FIR. To clarify this court question was put to this witness which is appended below:­ Question: In your examination in chief you had stated that you withdraw the copy of FIR and original rukka to the spot after the registration of FIR and handed over both the documents to ASI M.Y.Khan and in your cross examination you have stated that you had not brought the copy of FIR and original rukka to the spot and you had only brought the FIR number. What of your two statement is correct?

Answer: I had not brought the copy of FIR and original rukka and I had only brought the FIR number. I had stated in my examination in chief that I had brought copy of FIR and original rukka due to confusion.

44. The above clarification of PW6 Ct. Rameshwar clearly shows that he had only brought the FIR number from the Police Station and at that time there was no document i.e. statement of Salimuddin Ex.PW11/A and rukka Ex.PW13/A with him. Therefore, recording the statement of Salimuddin in the hospital and preparing the rukka Ex.PW13/A by the IO are doubtful and these seems to have been prepared after thought since only the FIR number was brought by Ct. Rameshwar from the PS and this can be further verified from the cross examination of PW6 State Vs.Shahnawaj etc. FIR No.388/08 Page No. 52 of 83 wherein he has stated that ASI M.Y.Khan had recorded the statement of PW Salimuddin after he returned from Police Station on 25.11.08. This version of PW6 emphatically makes it clear that statement of Salimuddin was recorded after PW6 came from PS to the spot as there is no other statement available on record which was recorded on 25.11.08 by ASI M.Y Khan except the one on the basis of which the present case was registered. So, it is crystal clear that only the FIR number was brought by PW6 Ct. Rameshwar from the Police Station and no statement of Salimuddin was recorded in the hospital. Bringing of only FIR number from the police station by PW6 and mentioning of fact about telling regarding quarrel in the morning by the children on the same night as well as above discussions revealed that FIR is is ante time and even antedated and prosecution has failed to prove the same. Reliance placed on 2012 III AD (Delhi) 101 titled Ajay @ Chotu and Ors Vs. State (Supra).

PLACE OF OCCURRENCE

45. In this case three DDs were recorded. DD no.21A shows that quarrel had taken place at 'Aggarwala ki shop ke samne, Sadar Bazar'. As per police control room form Ex.PW16/A the State Vs.Shahnawaj etc. FIR No.388/08 Page No. 53 of 83 incident address has been recorded as 'Sadar Bazar, Delhi Cantt, Sheru ki phal ki rehri'. This information has allegedly been passed on by complainant PW11 Salimuddin. Considering another DD no.23A information was passed on by duty HC Vijay Kumar from hospital that Farooq Saifi has admitted Arif after quarrel at Aggarwal Lasiwale, Sadarbazar, Delhi Cantt. No doubt that different place of incidents have been mentioned in DD no.21A and police control room form Ex.PW16/A. However, I have also considered the site plan prepared by the IO which is Ex.PW17/A as well as draughtsman which is Ex.PW7/A. In cross examination PW7 Ct. Hardeep Singh has admitted that he did not show the Aggarwal Lassiwala in site plan Ex.PW7/A. In consideration of the site plans, it is revealed that the Aggarwal Lassiwala shop has not been shown in the site plan.

ARREST OF ACCUSED PERSONS

46. The prosecution has examined PW6 Ct. Rameshwar, PW13 SI Mohd. Yasin Khan and PW17 Insp. Om Prakash. PW6 Ct. Rameshwar has stated that they went in search of accused persons and had reached at their house but they were not found present in their house. Complainant Salimuddin met them in Sadar Bazar while they were searching the accused persons and he had State Vs.Shahnawaj etc. FIR No.388/08 Page No. 54 of 83 informed the IO that both the accused are present in front of Kranti Chowk Near Sanatan Dharm Mandir. They went there alongwith Salimuddin where both the accused Shahnawaj and Sajid Khan were apprehended by them. First Sajid was apprehended. However, signature of PW6 are not available on arrest memos. In cross examination he has stated that they reached Kranti chowk at 5.45 p.m. On 26.11.2008. They stayed there for about half an hour. He does not know if any public witness of this case was enquired into during their stay at Kranti Chowk. He does not know which accused was in his custody. He admitted that many persons had collected at Kranti Chowk. Pw11 Salimuddin Saifi has stated that he came to know that both the accused are present at Kranti Chowk and at this he came out from his house to inform the police about presence of both the accused and he met the police again said ASI M.Y.Khan in Sadar Bazar, he informed him about the presence of the accused persons. He has further stated that on his pointing out both the accused were arrested vide memo Ex.PW11/B and C and their personal search were conducted vide memo Ex.Pw11/D and E. In cross examination he has stated that he does not recollect who had written the documents on 26.11.08. He does not know at what time and on what vehicle the accused persons were taken to the police station. State Vs.Shahnawaj etc. FIR No.388/08 Page No. 55 of 83 PW13 ASI M.Y Khan has stated that during the investigation of the case on 26.11.08 when the complainant was also with them, they had reached at Kranti Chowk, Sadar Bazar, Delhi Cantt in front of temple where two persons were pointed out by the complainant as accused Shahnawaj and Sajid Khan involved in the offence. PW13 has not stated that Complainant Salimuddin met him in the market. In cross examination PW13 has stated that it is correct that both the accused persons were in his custody from 6 p.m to 11 pm on 26.11.08. The clothes which they were wearing at that time were not blood stained and he had not asked them whether these were the same clothes which they were wearing at the time of incident.PW17 Insp. Om Prakash has stated that the direction was given to complainant Salimuddin in the hospital itself to meet them at the spot after the cremation of deceased. Salimuddin came to the spot at about 5 p.m and they reached Kranti Chowk. PW11 and 17 have made contradictory statements as PW11 had stated that he came to know about presence of accused persons at Kranti Chowk and then came out of the house to inform the police while as per deposition of PW17 he has stated about the directions given to PW11 Salimuddin to meet them at the spot. In cross examination PW17 has stated that there is a Sanatan Dharam Mandir near the Kranti Chowk. He admitted that State Vs.Shahnawaj etc. FIR No.388/08 Page No. 56 of 83 there were fruit rehris at the Kranti Chowk. He already had an information with him that accused persons would be reaching at Kranti Chowk in the evening. He was not told at what time they would be reaching there. As per the statement of PW17 he had already information about coming of accused persons at Kranti Chowk while as per the testimony of PW11 he came to know about the presence of accused persons at Kranti Chowk. Considering the above evidence on record it is crystal clear that there are contradiction in the testimonies of witnesses even regarding arrest of accused persons. Further no independent witness was associated at the time of arrest of accused persons. Reliance placed on case law 1997 IV AD (Delhi) 666 Pradeep Kumar Vs. State. Therefore arrest of accused persons from the alleged place of arrest is doubtful.

RECOVERY OF WEAPON OF OFFENCE

47. Both the accused persons made disclosure statements which are Ex.PW11/F and G. PW6 Ct. Rameshwar, PW11 Salimuddin, PW13 ASI M.Y.Khan and PW17 Insp. Om Prakash are the witnesses of recovery. Pw6 has stated that at the pointing out of accused Shahnawaz, from an empty wooden fruit box, a knife was recovered which was slightly blood stained near its tip. The knife State Vs.Shahnawaj etc. FIR No.388/08 Page No. 57 of 83 is Ex.P1. In cross examination he has stated that the recovery was effected from the fruit cart of one of the accused but he does not know to whom that rehri belonged. He does not know if any public person present near the fruit rehris was joined at the time of recovery of knife. PW11 has stated that accused Shahnawaj led the police party to his fruit rehri at the service road at the corner near the shop of Singh Sons Bakery where there was one empty wooden box (peti of fruit) was lying near his rehri from which he got recovered the vegetable knife. PW6 had stated that the wooden box was kept on rehri while PW11 has stated that it was lying near his rehri. PW11 has stated in cross examination that there was no specific identification mark on the knife on the basis of which he could identify the same. He does not know if similar type of knives were also available with the other persons on different hand carts. It is correct that the articles on the hand carts of both the accused persons were in open condition at the time of the incident. He does not know if the handcart of the accused persons was lying covered on 26.11.08 when he had seen it. Perhaps the other fruit sellers were selling their frutis on their respective hand carts. He admitted that fruit hand carts are stationed on the partri. PW13 ASI M.Y.Khan has stated that accused persons had disclosed that they had hidden the State Vs.Shahnawaj etc. FIR No.388/08 Page No. 58 of 83 knife/weapon of offence in the empty box of fruit where the incident had taken place and they can get recovered the same. Both the accused led the police party to the spot near their fruit shop of accused Shahnawaj and got recovered the knife used in the commission of the offence. PW13 who is the IO of this case has not stated as to from where the said weapon of offence was recovered. In cross examination he has denied the suggestion that the total length of the knife which was presented to the autopsy surgeon for opinion, was 19.5 cm. VOL. The length of the knife was 18.8 cm. He has further stated that no knife with the length of 19.5 cm was recovered in his presence. He has further stated that there was no identification mark on the knife recovered. However, it was the knife used for cutting the vegetables. It was a local made knife and was easily available in the market. No identification mark was put on the knife by the IO before it was sealed. PW17 Insp. Om Prakash has stated that the accused persons took them to the fruit stall of their father. Accused Shahnawaz took out the knife i.e. weapon of offence from an empty wooden box. The blade of the knife was blood stained and it was dry blood. The sketch of knife is Ex.PW11/J. In cross examination he has stated that the rehri of the accused was lying open and the other rehris shown by him in the site plan were lying State Vs.Shahnawaj etc. FIR No.388/08 Page No. 59 of 83 covered. The rehri mark A in the site plan Ex.PW17/A belonged to accused persons and this rehri was of Sher Aslam Khan. When he saw the rehri of the accused persons it was lying empty and nothing was lying on the rehri. Again said no uncovered fruit was lying on the rehri, however, some open and unopened petties were lying on the rehri of the accused. He admitted that when he received the opinion regarding weapon of offence from Dr. Komal Singh already Ex.PW15/C, the same was bearing the sketch of the knife prepared by the doctor and the total length of the same was mentioned as 19.5 cms. He admitted that there was no specific identification mark on the knife. He admitted that such type of knives are easily available with other fruit sellers and in the market. It has been stated in case law Satish Kumar Vs. State, 1995(34) DRJ (DB) in para 33 that :­ 'Now we are left only with the evidence with regard to the disclosure statement allegedly made by the appellant and the recovery of blood stained knife and blood stained shirt at the instance of the appellant. At the outset, we may mention that the group of the blood appearing on the said articles could not be deciphered by the experts. Only human blood was found on the said articles. So, strictly speaking, the said articles cannot be linked with the crime in question. Be as it may, both the SHO and SI Sher Singh and Shushil Kumar admitted that no efforts were made by the State Vs.Shahnawaj etc. FIR No.388/08 Page No. 60 of 83 police to join any independent witnesses before recording the disclosure statement of Satish and before effecting the recoveries. It is not understood as to how the basic principle of investigation has been lost sight................. Merely having the brother of the deceased with them for this purpose does not remove the suspicion about the genuineness of disclosure statement and the recoveries allegedly effected on the basis of such disclosure statement. (Reliance can also be placed on Kedar Singh @ Kedari Vs. State, 1996 JCC 111, para 21.)

48. In case titled Preetam Singh Vs. The State, 1998 (1) JCC (Delhi) 94 it is stated in head note that :­ Recoveries - Murder and theft case - Recoveries not made in presence of independent witnesses though available - Such recoveries cannot be considered by the court in evidence.

49. In view of the above evidence on record regarding recovery of weapon of offence i.e. knife, it is revealed that the recovered knife was not having any identification mark. Further, IO has also not tried to put any identification mark on the said recovered knife. Further the alleged 'peti' (empty box) from which the knife was recovered has not been taken into possession by the IO in this case. No other independent witness has been joined by the IO at the time of recovery of the said alleged knife. It has come in the State Vs.Shahnawaj etc. FIR No.388/08 Page No. 61 of 83 evidence that such like knives are easily available in the market. The alleged knife was also found lying in open. Allegedly it was left by the accused persons on 25.11.2008 and then recovered on 26.11.2008 in the evening. Till then, as per the case of the prosecution it kept on lying on rehri parked in open space. The said area was approachable by the public at large and even by other rehri vendors and passersby. Most importantly, PW11 Salimuddin and PW12 Farooq who are the alleged eye witnesses in this case have specifically stated in their statements that they saw accused persons stabbing the injured and thereafter they ran away. Both the said alleged witnesses have never stated that the accused persons thereafter thrown the said knife in the petti (box) of fruits. Had they seen the incident, they must have also seen the accused persons throwing the knife in the said box. Further as per the measurement of the sketch prepared by the IO, the total length of knife is 18.8 cm but as per subsequent opinion Ex.PW15/C, Dr. Komal Singh has prepared the sketch of the knife examined which is Ex.PW15/B and mentioned its total length as 19.5 cms. Considering the above circumstances, the recovery of knife at the instance of accused persons seems to be doubtful. MEDICAL EVIDENCE State Vs.Shahnawaj etc. FIR No.388/08 Page No. 62 of 83

50. The prosecution has examined PW15 Dr. Komal Singh, HOD Forensic Medicine who has conducted the post mortem. The post mortem report is Ex.PW15/A. I have also perused the said post mortem report. The following injuries are mentioned in the post mortem report:­ External Examination A clean incised wound on the left fourth intercoastal space below the left nipple and it was 8.5 cm lateral from the midline. Its size was 1.5x1 cm, viscera deep. Both angles were acute and it was obliquely placed.

Internal Examination Underneath the stab injury there were accumulation of clotted blood over the corresponding muscles. The penetrating injury went upto the left lung and the anterior surface of the heart. Paricardial and thoracis cavity were filled with the clotted and the liquid blood approx 2 ltr. Stomach contained 50 ml of creamish digested food. All the internal organs of the body were pale. Opinion The cause of death was hemorrhagic shock subsequent to the penetrating injuries to the lung and the heart and the same were sufficient to cause death in ordinary course of nature.

51. PW15 has also given the subsequent opinion on the weapon of offence. The said opinion is Ex.PW15/C. In cross examination State Vs.Shahnawaj etc. FIR No.388/08 Page No. 63 of 83 PW15 has denied the suggestion that the knife which was produced before him was having the total length 18.8 cms. I have perused the subsequent opinion Ex.PW15/C on which PW15 has prepared the sketch of the knife Ex.PW15/B. The doctor has opined that the clean incised wound with resulted the death of Arif could be caused by this weapon of offence. I have perused the sketch of knife. AS per the sketch prepared the doctor who conducted the post mortem and given subsequent opinion the length of the knife has been stated as 19.5 cm. However, as per the deposition of witnesses, PW13, PW17 as well as, on perusal of the sketch Ex.PW11/J prepared by the IO, the length of the knife is stated to be 18.8 cms. From this evidence, it seems that the knife allegedly recovered by the IO has not been sent for subsequent opinion and opinion was taken on some other knife. Difference in length of sketch prepared by the IO and examined by PW15 even create doubt about recovery of knife Ex.P1. In case Law 1990 (1) CC Cases 250 (HC) it is stated in head note that:­ 'Presence of injuries on the person of the deceased cannot be ground for commission of an offence'.

52. It is held in case titled State of U.P Vs. Madan Mohan & Ors, AIR 1989 Supreme court 1519 that :­ State Vs.Shahnawaj etc. FIR No.388/08 Page No. 64 of 83 'Penal Code (45 of 1860), S.300 - Murder - Appreciation of evidence - Presence of eye ­witnesses at place of occurrence found doubtful - No independent witness from locality whose presence would be natural, examined - Prosecution suppressing genesis of crime - No explanation by prosecution regarding injury on person of one of accused - Prosecution version about occurrence differing from version in dying declaration - Names of eye witnesses and some of accused not mentioned in dying declaration - Acquittal upheld'.

In case Law titled The State of Assam Vs. Bhelu Sheikh and Ors., 1989 CRI.L.J.879 it is stated in head note that :­ 'Penal Code (1860), Ss.300, 149 - Murder - Appreciation of evidence - No clear and cogent evidence to show that accused had caused injuries to victims - Statement of one of deceased not recorded by Magistrate even through he was alive for nine days after occurrence - Injuries on persons of accused not explained - Acquittal of accused - Held proper.' In case law titled Govind Narain and Anr Vs. State of Rajasthan, 1993 CRI.L.J. 2598 it is stated in head note that :­ 'Evidence Act (1872), S. 134 - Penal Code (1860), S.300 - Sole ­eye witness - Credibility - Murder Case­ Accused alleged to have assaulted and pushed deceased into dry well ­FIR vague - Eye­witness omitting vital details in FIR relating to manner of assault on deceased - His version not worthy of credence - It can be said that he was falsely introduced as eye - witness'. An important point has been observed in case Law 1998(8) State Vs.Shahnawaj etc. FIR No.388/08 Page No. 65 of 83 Supreme Court 435 that in absence of independent evidence merely on basis of police officer's evidence about seizure of pistol and cartridge conviction could not be upheld. It is well settled law in the Darshan Singh vs. State of Haryana, 1997(2) CC Cases HC 189 that :­ "When genuine attempts has not been made to join public witnesses - One is constrained to observe that in case of suppression and mis­statement of fact, it is difficult to believe the official witnesses".

It is stated in case Law 2004(2) JCC 1022 titled Sahdeo & ors. Vs. State of UP that :­ 'Criminal Trial - Co accused - Acquittal of by Sessions Judge - Offnce u/s 302 IPC - On appeal conviction and sentence by High Court - Legality of - Recovery of incriminating articles on the basis of disclosure statement not proved by independent evidence - Conviction set aside'. Reliance can also be placed on Chander Pal Vs. State, 1998(4&) DRJ (DB), High Court of Delhi , Dinesh Kumar Vs. State 1998 (2) CC Cases 46 (HC).

FSL RESULT

53. PW17 Insp. Om Prakash who is the IO of this case has State Vs.Shahnawaj etc. FIR No.388/08 Page No. 66 of 83 tendered in evidence the FSL result which is Ex.PX1. As per said report, human blood was detected on Ex.1 i.e. blood stained earth, Ex3 i.e. knife, Ex.4a i.e. pants, Ex.4b i.e. T­shirt, Ex.4c i.e. underwear, Ex.4d i.e. T­Shirt, Ex.4e i.e. T­Shirt, Ex.4f i.e. Sweater and Ex.5 i.e. blood stained gauze. Blood of 'O' Group was detected on Ex.1 i.e. blood stained earth, Ex.4b i.e. T­Shirt and Ex.5 i.e. Blood stained gauze. No reaction for ABO Grouping was found on Ex.3 i.e. knife.

54. It is admitted case of the prosecution that no clothes of the accused persons were recovered by the IO. Also IO has not recovered the clothes of PW11 Salimuddin and Pw12 Farooq who had removed the deceased to the hospital. Even IO has also not tried to recover the clothes of both the accused persons in this case nor made any enquiry in this respect. Allegedly the accused had given knife blow on the chest of deceased. Their clothes might have also got some blood stains which would have been one the circumstance and corroboration for connecting the accused persons with the present case crime. But the IO has not investigated the matter in this respect. ABO group on knife Ex.3 could not be established by way of FSL result. So, even the FSL result does not connect the accused persons or the weapon of State Vs.Shahnawaj etc. FIR No.388/08 Page No. 67 of 83 offence with the present case incident. Reliance placed on case law Satish Kumar Vs. State, 1995(34) DRJ (DB) (supra). MOTIVE

55. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. In the present case as per the facts and circumstances, the motive has been alleged that the present case incident has taken place due to quarrel between the children. PW11 Salimuddin has stated that Sajid Khan was saying to accused State Vs.Shahnawaj etc. FIR No.388/08 Page No. 68 of 83 Shahnawaj regarding Aarfi "aaj isne hamare phuphi ke ladke ko mara hai, aaj iska khatma hee kar dete hai'. He has also stated that he came to know about some quarrel between Shahnawaj, the children of his Phuphi and Sajib on one side and Aarif Saifi on the other side had take place during day time and on that account both the accused had killed the deceased. He has further stated that the quarrel took place on the point of flying the kite. In cross examination he has stated that he does not know if he had stated to the police in his statement dated 25.11.08 or 26.11.08 that on the same night he came to know that some quarrel between Shahnawan, children of his phuphi and Sajid on one side and Arif on the other side had taken place. PW11 was confronted on this aspect with his statement Ex.PW11/A and Ex.PW11/D1 where it was not found mentioned. He has further stated that he had heard this fact from the mouth of children when he returned from the hospital at about 12 midnight. They were children of neighbourer. Those children informed him that the incident has taken place over the kite. PW12 has also stated that Aarif had altercation with accused Shahnawaj about which he had heard from the children of mohalla. He does not know on what account there was an altercation and at what time there was an altercation. Admittedly no children who has informed PW11 and PW12 about the alleged State Vs.Shahnawaj etc. FIR No.388/08 Page No. 69 of 83 incident has been interrogated or examined in this case. PW12 has stated in cross examination that he had not stated to the police that quarrel had taken place on the issue of kabootarbaji VOL. He has stated that it was over Patangbazi. I have also taken into consideration the statement. In statement Ex.PW12/D1, PW12 Farooq has specifically mentioned that the quarrel had taken place on the issue of Kabootarbaji while in the statement of Salimuddin Ex.PW11/D3 he has mentioned that quarrel has taken place on the issue of flying of kite. Both these witnesses have given different version about taking place of quarrel. Both these witnesses have also given inconsistent statement regarding that they had seen the incident with their own eyes. PW17 Insp. Om Prakash who is the IO of this case has stated in cross examination that he had made enquiries from one child namely Arif about the quarrel which had taken place in the morning of 25.11.08. However, he had not recorded the statement of the said child u/s 161 Cr.PC. So, the children who informed about the quarrel to PW11 has not examined in this case nor his statement was recorded by the IO for the reasons best known to him. Therefore, in my view the prosecution could not prove the motive to kill deceased Aarif @ Sonu by the accused persons in this case. In case titled Preetam Singh Vs. The State, 1998 (1) JCC (Delhi) 94 it is stated in head State Vs.Shahnawaj etc. FIR No.388/08 Page No. 70 of 83 note that :­ 'Penal Code, 1860 - Sec. 302, 460 and 411 - Murder and theft­ A number of defaults in prosecution case and conviction - Circumstantial evidence - Prosecution failed to prove a complete chain of circumstantial evidence. In the present case the circumstantial evidence produced by the prosecution does not conclusively lead to the only irresistible conclusion that the appellants were the persons who committed the crime and none else - Hence the appellants are entitled to benefit of doubt.' 56 . I have taken into consideration the other evidence led by the prosecution. PW2 Ct. Babu Lal has stated that he delivered the copies of FIR to Ilaqua MM, DCP and Joint CP. PW3 Ct. Ramesh has handed over a slips to ASI M.Y.Khan regarding quarrel. However, PW3 has deposed wrong dated as 25.8.08 when he handed over these slips to IO regarding quarrel while the correct date was 25.11.08. In the cross examination conducted by the Ld.APP for the State, he has stated he is not confirmed whether he had given DD no.21A to IO. He also cannot say if Duty Officer has handed over copy of DD no.23A at about 8.25 p.m to him. He admitted that as he was posted with SHO on that day i.e. 25.11.08, SHO never visited the spot or he met the IO till 9 p.m in his presence. PW4 L/Ct. Seema has received call regarding quarrel opposite Aggarwal Sweets and filled up Form I which is State Vs.Shahnawaj etc. FIR No.388/08 Page No. 71 of 83 Ex.PW4/A. PW5 Ct. Satyaveer Singh has taken taken the exhibits to FSL, Rohini. PW6 Ct. Rameshwar in cross examination has stated that so far he remained there, there were fruit rehris on one side of the road near the spot. There were 5/6 rehries at the spot. He admitted that all the fruit sellers were selling fruits during the stay of SHO on their rehris. The distance between the house of accused persons from the spot was about 100 meters towards PS Delhi Cantt where rehri of fruit used to be present near Singh Bakery Wala. He admitted that on 26.11.08 when they went to the spot at that time the fruit was being sold on all rehris. PW8 HC Shiv Lal has made entries in the register of Malkhana regarding depositing the case property in malkhana. PW9 HC Tara Dutt Joshi has deposed about DD no.21A, 23A and 25A as well as recording of FIR. In cross examination he has stated that Insp. Banwari Lal was not present in the PS from 7.50 to 10.55 p.m since already in the area. From 8.35 to 10.55 no senior police official was present in the PS. He informed SHO Insp. Banwari Lal about he incident telephonically. He cannot assign any reason for not informing SHO about the murder from 8.35 p.m to 10.55 p.m. He had entrusted the investigation to Insp. Om Prakash on his own. He did not send the information to crime team to reach at the spot. PW6 HC Vijay has given information to PS about State Vs.Shahnawaj etc. FIR No.388/08 Page No. 72 of 83 admission of injured and brought dead vide DD non.23A. PW16 W/Ct Rakhi is also a formal witness who recorded CR DD no. 1280979 Ex.PW16/A. PW18 Dr. Dhananjay has appeared for Dr. Atish who had prepared the MLC of deceased Aarif Saifi. The MLC is Ex.PW13/D. PW13 ASI M.Y.Khan and PW17 Insp. Om Prakash are the main Investigating Officers. PW13 in cross examination has stated that when he reached in Singh Sons Bakery, he saw crowd collected near fruit carts in the service lane and that was the spot. He cannot tell the names of the persons who had informed him the name of the injured as Arif and that he had already been removed to Sood Nursing Home. When he reached at the spot at that time there was only one rehri of golgappa near the shop of Singh Sons Bakery. He admitted that there are shops near the spot. He admitted that DD no.21A related to the quarrel in front of the shop of Aggarwal Lassiwala. He made enquiry from Aggarwal Lassiwala and adjoining shops but none disclosed anything. All the shops were open. He admitted that in DD no. 23A place of quarrel is shown opposite Aggarwal Lassiwala. Farooq Saifi met him in DDU Hospital on 25.11.08 at 9 p.m. He was weeping and was not in a position to narrate. The incident took place where several rehriwala were present. When he met Salimuddin and Farooq in hospital he found blood on their State Vs.Shahnawaj etc. FIR No.388/08 Page No. 73 of 83 clothes. But no such clothes were seized. He has further stated that it is correct that the SHO did not participate in the investigation and did not record the statement of any witness. This version of PW13 makes it clear that the investigation of this case was done by PW13 only and not by PW17 Insp. Om Prakash while investigation should have been conducted by PW17. However, as per the case of the prosecution he has conducted the investigation which is contradictory to the statement of PW13 ASI M.Y.Khan. PW13 has further stated in cross examination that he does not remember that when the accused persons were arrested on 26.1.08 whether there was any blood on their clothes. He had not asked them whether these were the same clothes which they were wearing at the time of incident. On 25.11.08 he made enquiries form the shopkeepers as well as the cart owners, they denied that any incident had taken place at that place. He has stated that there was no identification mark on the knife. It was a local knife, easily available in the market. He has not conducted investigation regarding DD no.25A in which it was informed that 'my son has been stabbed'. PW17 Insp.Om Prakash who is the second IO, in cross examination has stated that during investigation he came to know that quarrel had taken place at about 7.30 p.m. As per his knowledge DD no.21A was recorded on the information received State Vs.Shahnawaj etc. FIR No.388/08 Page No. 74 of 83 from the father of the accused persons. This DD is regarding quarrel at the Shop of Aggarwal Lassiwala. PW17 Insp. Om Prakash has stated that this information was given by the father of accused persons while on the form the name of informant is mentioned as Sunil Sharma. In this respect court question was put to the witness which is as under:

Q On what basis you had stated that DD n o.21A was recorded on the information received from the father of both the accused persons?

A: I had inquired about this from the father of the accused persons and he disclosed that mobile from which the information was given recorded in DD no. 21A was in his possession.

57. He has further stated that he has never recorded the statement of Sher Aslam Khan, father of both the accused. He had made enquiries after 2­3 days of the incident. PW17 never tried to interrogate or search Sunil Sharma, informant of DD no.21A. Further court questions were put to PW17 that :­ Q Did you question Sher Aslam Khan as to how the name of Sunil Sharma and the address H.No.1/86 Sadar Bazar Delhi cantt was found recorded in PCR form Ex.PW17/DA?

A I had questioned Sher Aslam Khan in this regard State Vs.Shahnawaj etc. FIR No.388/08 Page No. 75 of 83 but he had told me that he had not given the above referred particulars to the police control room.

Q Then did you make any inquiry from the concerned police official of PCR as to how the above referred particulars were mentioned in the PCR form and did you take any action?

A I had interrogated lady constable Seema in this regard who told me that she had taken the above said name and address on the basis of the mobile number mentioned in Ex.PW17//DA and then she had mentioned the said address in the PCR form.

58. He has further stated that on the same day he was on election duty. He visited the Kranti Chowk where there was rally of Shatrughan Sinha had taken place. He admitted that in the entire investigation he did not join any public witness. He did not record the statements on 25.11.08 at the spot of any public witness. There used to be two permanent fruit rehris of Sher Aslam Khan near Singh Sons Bakery. He denied that distance between the spot and house of accused is 50 meters vol. It is 150­200 meters. He admitted that the entry gate of Singh Sons Bakery is at point towards X. He admitted that there were transparent glass fitted on both sides of Singh Sons Bakery. Salimuddin had simultaneously reached at the spot alongwith him. State Vs.Shahnawaj etc. FIR No.388/08 Page No. 76 of 83 Salimuddin had alone reached at the spot. He admitted that he was directed by the Incharge Crime Team to record the statement of the eye witness. He had recorded the statement of Salimuddin and Farooq in this case who are the eye witnesses relating to this incident. He did not come to know during investigation who had removed the injured to Sood Nursing Home. Salimuddin told him that he removed the injured to DDU Hospital in a three wheeler etc. When he met Salimuddin for the first time on 25.11.08 he had not seen any blood on his clothes. Salimuddin has allegedly met him at the spot after return from the hospital and as per his deposition his clothes were blood stained. PW17 has further stated in cross examination that to satisfy himself that both these witnesses had witnessed the incident and had removed the injured to the hospital he had asked both the witnesses if their clothes were blood stained, he was informed that there clothes were not blood stained. From this version of PW17, it seems that he himself was not sure that the eyewitnesses of this case had witnessed the present case incident. Further PW11 and PW12 who had allegedly removed the deceased to hospital have stated that their clothes were blood stained but no such clothes have been recovered by the IO. Information given to IO PW17 that the clothes of Pw11 and PW12 were not blood stains further create doubt about the State Vs.Shahnawaj etc. FIR No.388/08 Page No. 77 of 83 presence of both the witnesses about their seeing the incident. PW17 has further denied in cross examination that Mobeen, the nephew of injured Arif Saifi had removed him to DDU Hospital from Sood Nursing Home in the car while as per version of PW11 Salimuddin Mobeen had brought his car and then took the injured to hospital. To the contrary, PW17 has also stated in cross examination that on his enquiry he was told that the injured was removed in three wheeler to the hospital. PW17 has further stated that he had never seen the car in which the injured was removed to the hospital, so he cannot say if there was any blood in the car. He has further admitted in cross examination that the fruit sellers present near the spot were present and selling the fruits on their respective rehris. He admitted that the persons from the public were also passing through the footpath near the rehris where the fruits were being sold. He admitted that he had not deposited anything in the malkhana before 5.40 p.m on 26.11.08. The present case incident is of 25.11.08. As per the case of the prosecution, blood stained some concrete and earth controls were lifted on the same day in the evening. But as per admission of IO, he did not deposit the same on 25.11.08 itself and opted to deposit the same on 26.11.08. No explanation has been offered by the prosecution as to why the said case property lifted on 25.11.08 State Vs.Shahnawaj etc. FIR No.388/08 Page No. 78 of 83 was not deposited on 25.11.08 itself. PW17 has further stated in cross examination that it is correct that he had not made any enquiry from the doctor of Sood Nursing Home who had attended Arif Saifi. PW17 has further admitted that DD no.21A was related to quarrel at Aggarwal's shop, Sadar Bazar. He had made inquiries about the contents of DD no.21A and he came to know that no quarrel had taken place at Aggarwal's shop. It has come in the evidence of PW6 Ct. Rameshwar that all the fruit seller were selling the fruits on rehris when SHO came there which clears that the accused were present there when Inps., Om Prakash visited the spot in the evening since it is the case of the prosecution that accused persons used to sell fruits on their rehris. Allegedly Insp. Om Prakash has visited the spot after registration of case and by then as per rukka the names of accused persons were clear but it is not understandable as to why the IO has not arrested those present accused at that time itself. It has further come in the evidence of PW13 ASI M.Y.Khan that on 25.11.08 he made enquires from the shopkeepers as well as cart owners and they denied that any incident had taken place at that place. This version of PW13 further create doubt about the version of prosecution.

State Vs.Shahnawaj etc. FIR No.388/08 Page No. 79 of 83

59. In nutshell, the present case depends on direct evidence as allegedly PW11 Salimuddin and PW12 Farooq had seen the incident with their own eyes. But considering their deposition made in the court, cross examination conducted by the Ld. Counsel for the accused persons as well as investigation conducted by the IO and other facts and circumstances of the case, their testimonies are inconsistent, unreliable and untrustworthy. From their statements it cannot be inferred that they actually had seen the present case incident. Further the circumstances of the case are such which do not connect the accused persons with the present case crime. No doubt that murder has not been taken place. But at the same time, court has to see as to who is the culprit on the basis of evidence led before the court. I am pained to point out that the prosecution could not produce sufficient evidence to convict the accused persons and a case of murder is going unpunished.

60. Before an accused can be convicted, the fact of death should be proved by such circumstance as render the commission of the crime morally certain and leave no ground for reasonable doubt. But on consideration of the evidence available on file, the State Vs.Shahnawaj etc. FIR No.388/08 Page No. 80 of 83 prosecution could not connect the accused persons with the present case offence by leading cogent and reliable evidence. The eye witnesses could not give consistent statement in this case and even the chain of circumstances is not complete pointing the guilt of the accused persons. The IO of this case has taken the opinion about the weapon of offence from the doctor but the weapon produced before the doctor and one recovered from the spot seems to be different due to variation in their lengths. Keeping in view the above discussions, I am of the view that the Investigating Officer of this case has not conducted the investigation property and fairly and he had left many lacunas; the benefit of which ought to have been given to the accused persons. In case Law AIR 1974 SC 1822 it is stated in para 11 that : ­ "The duty of the IO is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth". It is stated in AIR 1974 SC 1822 in para 11 that :­ "Duty of IO is not to bolster up a false case to record conviction"

61. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond State Vs.Shahnawaj etc. FIR No.388/08 Page No. 81 of 83 reasonable doubt on the basis of acceptable evidence. It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considering as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. In view of the above discussions as well as observation of the case laws, I am of the opinion that prosecution could not completely establish the guilt of accused persons in this case without any reasonable doubt by leading cogent and reliable evidence.

62. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that :­ "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is State Vs.Shahnawaj etc. FIR No.388/08 Page No. 82 of 83 favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".

63. In view of my above discussions, I am of the opinion that the prosecution could not establish the guilt of accused persons in this case by leading legal, reliable and unimpeachable evidence. I am unhesitatingly of the opinion that the prosecution has utterly failed in proving this case to fasten the guilt on the accused persons leaving no room for doubt. So, the prosecution has failed to prove its case against accused persons and the accused persons are entitled to be given the benefit of doubt. I therefore give the benefit of doubt to both the accused persons Shahnawaz and Sajib Khan and they are acquitted in this case from the charges framed against them u/s 302/34 IPC. Both the accused persons are in JC. They be released from the jail forthwith if not required in any other case. File be consigned to record room.

ANNOUNCED IN THE OPEN COURT ON 15.03.2012.

(SURESH CHAND RAJAN) ASJ/SPECIAL JUDGE(NDPS) NEW DELHI State Vs.Shahnawaj etc. FIR No.388/08 Page No. 83 of 83