Delhi District Court
State vs Amit Messay on 13 September, 2023
IN THE COURT OF SH. VISHAL SINGH, ADDITIONAL
SESSIONS JUDGE-05: SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
CNR No. DLSE01-007203-2023
SC No. 148/2020
FIR No. 42/2020
U/S. 302/34 IPC
PS : SUNLIGHT COLONY
STATE Vs. AMIT MESSAY & ANR.
JUDGMENT
1. Sr. No. of the case : 148/2020. 2. Date of Committal to Sessions : 19.08.2020. 3. Name of the complainant : Sh. Srikant.
4. Date of Commission of Offence : 20.02.2020.
5. Name and Parentage of Accused : (i) Amit Messay &
(ii) Maical Messay Both S/o. Lt. Bably Sashi Messay R/o. Jhuggi No. J-39, I.G. Camp, Siddharth Basti, Hari Nagar Ashram, New Delhi.
6. Offence Complained of : U/s. 302/34 IPC.
7. Offence Charged : U/s. 302/34 IPC.
8. Plea of Guilt : Not guilty.
9. Final Order : Acquitted.
10. Date on which Order Reserved : 21.08.2023.
11. Date on which Order Announced : 13.09.2023.
SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.1/33BRIEF FACTS AND REASONS FOR DECISION:
1. The prosecution case is that on 20/02/2020, at about 03:30PM, at road in front of DIB2, Raziya Building, Hari Nagar Ashram, New Delhi, accused Amit Messay and Maical Messay, in furtherance of their common intention, murdered victim Rakesh Kumar by causing stab injury on left side of his neck with knife. On the statement of complainant Srikant and considering the injury caused to Rakesh Kumar, accused Amit Messay and Maical Messay were arrested for offence U/s. 302/34 IPC. On completion of investigation, the charge sheet was filed for offence U/s. 302/34 IPC.
2. Detailed arguments on charge were heard from Ld. Defence Counsel and Ld. Addl. PP for State. Vide order dated 25/11/2021, the Court charged the accused persons for offence U/s. 302/34 IPC. The accused persons pleaded not guilty to the charge and preferred trial.
3. The prosecution led evidence and examined 11 witnesses to bring home the charged offence against the accused.
4.(i) PW1 Smt. Kamal and PW2 Rohit were public witnesses, however, they turned hostile to prosecution case and deposed that they had no knowledge about the present case, neither did police record their statement. Since PW1 and PW2 resiled from their statement recorded U/s. 161 CrPC, they were cross examined by Ld. Addl. PP for State.
SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.2/334.(ii) In cross-examination by Ld. Addl. PP, PW1 denied the suggestion that on 20/02/2020 he went to Dhobi Colony Park to attend a meeting on the issue of Prevention of Atrocities against the women and a small tent was installed there. He denied the suggestion that at about 03:15PM, on hearing about some quarrel, he went behind the tent and saw that accused Maical was quarreling with Rohit and Rakesh (since deceased), and they were abusing and scuffling. He denied the suggestion that Maical left from there saying that he would teach a lesson to Rohit and Rakesh, and returned after sometime, having a maroon colour danda alongwith his brother Amit, who was having iron pipe, and started abusing. He denied the suggestion that on seeing Maical and Amit, Rohit fled from there towards railway line. He denied the suggestion that Maical and Amit chased Rohit and Rakesh. He denied the suggestion he followed all of them and on reaching in front of Razia Building, he saw that accused Maical and Amit were beating Rakesh. He denied the suggestion that there was crowd and Amit had caught hold of Rakesh from behind, and was giving fist blows to him. He denied the suggestion that accused Maical had a small knife. He denied the suggestion that on instigation of accused Amit, accused Maical stabbed Rakesh on his neck and on lower side of his waist, and, because of injury Rakesh fell down. He denied the suggestion that on seeing Rakesh bleeding, he cried and the knife of Maical fell down. He denied the suggestion that Maical and Amit fled towards their house and he went to his house. He denied the suggestion that on next day police reached the spot and recorded his statement Mark 'A'. He denied the suggestion that he deliberately did not identify SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.3/33the accused persons in order to save them from legal punishment since he was won over by them.
4.(iii) In cross-examination by Ld. Addl. PP, PW2 denied the suggestion that on 20/02/2020, at about 10:00AM, he met Rakesh in Dhobi Basti Park, from where they went to liquor shop at Machhli Market and after Rakesh purchased a case of beer, they returned to the Park, where accused Maical Messay @ Kaley alongwith Shri Kant and other boys was playing cards. He denied the suggestion that on being called Shri Kant came to them to consume beer. He denied the suggestion that when three of them were consuming beer, Sonu, maternal uncle of Rakesh, came there to call Rakesh, and Rakesh gave him a beer. He denied the suggestion that after finishing beer, he asked Rakesh to take money from Maical Messay @ Kaley, however, Maical refused to give the money and, on that issue, a quarrel arose between them. He denied the suggestion that, thereafter, Maical went away from there saying that he would teach a lesson, and returned after sometime, having a maroon colour danda alongwith his brother Amit, who was having iron pipe, and started abusing. He denied the suggestion that on seeing Maical and Amit he ran away towards railway line. He denied the suggestion that Maical and Amit chased him and Rakesh also followed them. He denied the suggestion that he hid in Marwah House and when came to spot, he found a crowd as well as police present there. He denied the suggestion that he came to know that accused Maical Messay @ Kaley had stabbed Rakesh, and on seeing the police, he visited the spot. He denied the suggestion SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.4/33that police recorded his statement Mark 'B', on next day of incident. He admitted that he identified the accused persons in Court being his neighbours. He denied the suggestion that he deposed falsely in order to save the accused persons, being won over by them.
5. PW3 Dharampal deposed that on 20/02/2020 he used to run a workshop in the name of Pal Motors near Raziya Building and, on that day, at about 03:30PM, while taking his lunch on backside of his workshop, he heard hue and cry. When he came out on road, he found a crowd gathered there and that blood was oozing out from neck of a person. He dialed 100 number to report the incident to police, however, it could not be connected. Thereafter, he went to Police Station Sunlight Colony and informed the police about the incident. He deposed that he did not see if any blood stained knife was lying at the spot. Since PW3 resiled from his previous statement recorded U/s. 161 CrPC, he was cross examined by Ld. Addl. PP for State.
In cross-examination by Ld. Addl. PP, PW3 denied the suggestion that he saw blood stained knife lying at the spot near the injured. He denied the suggestion that he did not depose the true facts in order to save the accused persons from legal punishment, being won over by them.
6.(i) PW4 Smt. Rajni @ Rajjo stated that the accused persons were repeatedly threatening her, through some unknown persons who kept visiting her home, that if she deposed before the Court, SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.5/33she would be killed. She deposed that on 20/02/2020, at about 03:00PM - 03:30PM, when she was present near bridge in the area of Sardar Basti, she saw accused Maical Messay and Amit Messay stabbing Rakesh, son of her elder sister Kamlesh. She deposed that the accused persons had knives in their hands with which they stabbed Rakesh twice on his neck and, thereafter, fled from there. She deposed that Rakesh had other stab wounds too on his body. She deposed that she immediately rushed towards injured Rakesh, searched for auto and shifted him to hospital, where doctor declared Rakesh as brought dead. She deposed that her sisters Santosh and Sonu also accompanied her to hospital. She deposed that she saw one knife lying at the spot. She deposed that on next day, she identified dead body of deceased Rakesh in mortuary and IO recorded her statement Ex. PW4/1 in that regard. After conducting of postmortem examination, the dead body was handed over to her vide handing over memo Ex. PW4/2. She identified the knife Ex. P-1 as the same with which accused Maical Messay caused stab injury to Rakesh and, thereafter, left it at the spot while fleeing from there.
6.(ii) In cross examination by Ld. Defence Counsel, PW4 replied that her daughter Shefali had signed, as 'Rajni', on the identification statement Ex. PW4/1 as well as handing over memo, Ex. PW4/2, of the dead body, at police station, at per her instructions. She replied she kept no mobile phone with her. She replied that she did not know if police recorded her statement or made any inquiry from her about the incident. She replied that she could not admit or deny the suggestion that police recoded SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.6/33her statement twice. She denied the suggestion that police inquired from her about the incident. She replied that she did not know if deceased Rakesh was involved in number of criminal cases. She denied the suggestion that she did not see the accused persons stabbing Rakesh and she came to know about stabbing, after the incident. She denied the suggestion that she did not witness the incident. She denied the suggestion that she did not see the accused persons giving knife blows to Rakesh.
6.(iii) PW4 replied that she did not know why, despite being an eye-witness, she was not cited as an eye-witness in this case. She denied the suggestion that she sent a message to accused persons in Jail, through Srikant, to either pay her or she would implicate them in this case by deposing falsely. She denied the suggestion that she did not see any knife at the spot. She denied the suggestion that no knife was lying at the spot. She denied the suggestion that there were pending criminal cases against her. She admitted that despite being an eye-witness she made no complaint about the incident to police station. She replied that she did not know the auto driver in whose auto they took the victim to hospital. She replied that her sister Santosh paid Rs.300/- towards the auto fare. She denied the suggestion that she deposed falsely to implicate the accused persons.
7. PW5 Smt. Santosh stated that the accused persons were repeatedly threatening her, through some unknown persons who kept visiting her home, that if she deposed before the Court, she would be killed. She deposed that on 20/02/2020, at about SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.7/3303:00PM, her sister Rajni (PW4) came to her and shouted "rakesh ko chaku maar diya". On hearing this, she rushed to the spot and saw Rakesh bleeding profusely from his neck and he was having stab wounds all over his body. She deposed that she tried to revive Rakesh but he did not respond. She deposed that Sumit, Rajni and Sonu were present at the spot and she came to know that one Kaley and Amit had stabbed Rakesh. She deposed that they searched for an auto and took Rakesh to hospital, where he was declared as brought dead. On next day, she identified body of deceased Rakesh in mortuary, IO recorded her statement in that regard, and, after conduction postmortem examination, the body was handed over to them. She deposed that while shifting Rakesh to hospital in auto, she saw one big knife lying beneath the body of Rakesh and one small knife lying near his body. She identified the knife Ex. P-1 as the same which was lying at the spot near Rakesh.
In cross-examination by Ld. Defence Counsel, PW5 admitted that she did not witness the incident. She replied that she went to fetch auto but did not remember who paid the auto fare. She denied the suggestion that she deposed falsely, neither did she see any knife at the spot. She denied the suggestion that no knife was lying at the spot.
8. PW6 Sonu, maternal uncle of deceased Rakesh, deposed that the incident occurred on 20th day of the month, however, he did not remember the year and it might have occurred 03 years ago. He deposed that on that day he went to Dhobi Basti Park to SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.8/33call Rakesh for taking lunch and found him consuming liquor in Park alongwith one Rohit and Shrikant. He deposed that when he asked Rakesh to go home for lunch, Rakesh gave him a beer bottle to drink. He deposed that after taking beer bottle, he left from there for the house, whilst Rakesh told him that he would come soon. He replied that some persons were playing cards in the park, however, he did not notice them. Since PW6 resiled from his previous statement recorded U/s. 161 CrPC, he was cross examined by Ld. Addl. PP for State.
In cross-examination by Ld. Addl. PP, PW6 admitted that Rakesh used to live with him since his childhood. He admitted that on 20/02/2020, at about 03:00PM, he went to Dhobi Basti Park in search of Rakesh for taking lunch. He denied the suggestion that he saw accused Maical Messay playing cards with some other boys in the park. He admitted that after calling Rakesh for lunch, he went to his home. He admitted that at about 03:45PM, his sister Rajni came home and informed him that Rakesh had been stabbed with knife and was lying on road of railway line. He denied the suggestion that Rajni informed him that Rakesh was stabbed with knife by accused Maical Messay and his brother Amit. He admitted that on receipt of said information, he immediately reached near Raziya Building, where he found that Rakesh was lying there and blood was oozing out from his wounded neck. He admitted that his other sister Santosh and Sumit also arrived there and, thereafter, Rajni brought an auto. He admitted that Rajni, Santosh and Sumit took injured Rakesh to hospital in auto. He denied the suggestion that SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.9/33deceased Rakesh was stabbed by Maical Messay and his brother Amit. He admitted that a knife was lying near deceased Rakesh. He denied the suggestion that he deposed falsely to save the accused persons from legal punishment, being won over by them.
9.(i) PW7 HC Bajrang deposed that on 20/02/2020 he was posted at PS Sunlight Colony as Constable and was on emergency duty with SI Jitender. He deposed that on that day, on receipt of DD No.31B, he alongwith SI Jitender and HC Jaipal reached the spot i.e. near Raziya Building, I.G. Camp, Siddharth Basti, Hari Nagar Ashram, in front of D1B2, where they found blood scattered on road and a blood stained knife was lying there. On inquiry, they came to know that some unknown persons had stabbed one Rakesh and he had been shifted to some unknown hospital by his family members. He deposed that the spot was preserved and SI Jitender called the crime team. He deposed that, in the meanwhile, on receipt of DD No.34-B, Ex. A-3, SI Jitender left HC Jaipal at the spot, whereas, he alongwith SI Jitender reached AIIMS Trauma Center, where SI Jitender procured MLC of injured and searched for the eye witness of the incident, but met no one at that time. Thereafter, they went back to the spot, where they found present other police officials. He deposed that crime team as well as FSL team reached the spot and inspected it. He deposed that SI Jitender got the spot photographed by a private photographer namely Kuldeep and seized the exhibits i.e. blood, blood stained knife and blood stained cemented material from the spot vide seizure memo Ex. PW7/1, after sealing them with the seal of JK.
SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.10/339.(ii) PW7 deposed that while searching for eye-witness, SI Jitender met one Shrikant at the spot and recorded his statement. Thereafter, SI Jitender prepared tehrir and got the FIR registered at police station through HC Jaipal, who, after registration of FIR, returned to the spot alongwith copy of FIR and original rukkka. He deposed that the case was further investigated by Inspector Pawan Kumar, who prepared the site plan at the instance of complainant and recorded statement of one Dharampal. He deposed that the IO searched for CCTV footage and, on inquiry, two cameras were found operational. Thereafter, they searched for the accused but to no avail and they returned to the police station, and deposited the case property in Malkhana. He identified the knife Ex. P-1 as the same that was found lying at the spot and was seized by SI Jitender.
9.(iii) In cross-examination by Ld. defence counsel, PW7 replied that there were 10-15 public persons present at the spot when they first reached the spot, however, he could not tell how many of them were inquired by SI Jitender to trace eye-witness of the incident, neither did he remember their names. He replied that eye-witness Shrikant was found at the spot and his statement was recorded at the spot. He denied the suggestion that neither was Shrikant found present at the spot nor was his statement recorded there. He replied that the cameras found operational were installed at a pole near the spot. He replied that as far as he remembered, one camera was installed on a pole, however, he did remember the pole number, neither did he know where the second camera was installed. He denied the suggestion that he SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.11/33did not join investigation of present case, neither was anything seized in his presence. He denied the suggestion that he deposed falsely.
10.(i) PW8 ASI Jaipal deposed that on 20/10/2022 he was posted at PS Sunlight Colony as Head Constable and, on that day, at about 03:30PM, on receipt of DD No.31B, he alongwith SI Jitender and Ct. Bajrang reached the spot i.e. Razia Building (supra), where they found blood scattered on road and a blood stained knife was lying there. On local inquiry, they came to know that one Rakesh had been stabbed by some persons and was shifted to hospital by his family members. He deposed that the spot was preserved and SI Jitender called the crime team. He deposed that, in the meanwhile, on receipt of DD No.34-B, SI Jitender alongwith Ct. Bajrang left for hospital, after leaving him there to preserve the crime scene. He deposed that before leaving for hospital, SI Jitender called crime mobile team as well as FSL team. He deposed that after returning from hospital, SI Jitender met one eye witness Shrikant at the spot, recorded his statement and sent him to police station for registration of FIR. He deposed that after registration of FIR, the concerned SHO directed him to hand over the investigation to Inspector Pawan Kumar, whereafter, he returned to the spot alongwith original rukka and copy of FIR. He deposed that the exhibits lifted by SI Jitender from the spot including weapon of offence were handed over to Inspector Pawan, who prepared the site plan and searched for the offenders but found no clue. IO recorded his statement and the case property was deposited in Malkhana.
SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.12/3310.(ii) PW8 deposed that on 21/02/2020 he alongwith the IO as well as SI Jitender reached the spot, where IO recorded statement of witnesses Smt. Kamal and Rohit; IO also recorded statement of Rajni @ Rajjo, Santosh, Sumit and Sonu, who were family members of deceased, at their respective jhuggi. Thereafter, they went to AIIMS mortuary, where Rajni @ Rajjo and Santosh identified dead body of deceased and, after postmortem, the body was handed over to its family members. He deposed that during investigation, on receipt of secret information, they visited Sarai Kale Khan and apprehended accused Amit Messay from near Yamuna Khadar, Power House, at the instance of informer. He deposed that during interrogation accused Amit admitted his involvement in present offence. Thereafter, IO formally arrested accused Amit and seized his T-shirt and Nike shoes, that he wore at the time of committing murder, as stated by accused himself. He deposed that accused Amit got recovered one iron pipe from his home i.e. Jhugg No.39, I.G. Camp, Hari Nagar, Asharam, disclosing that it was used in committing the murder. IO seized the recovered pipe and deposited the case property in Malkhana. He identified accused Amit Messay in Court.
10.(iii) In cross-examination by Ld. defence counsel, PW8 denied the suggestion that he never joined the investigation alongwith SI Jitender or Inspector Pawan. He denied the suggestion that accused Amit Messay was not arrested in his presence, nor made any disclosure statement. He denied the suggestion that no T-shirt, shoes or iron pipe were recovered in his presence and he deposed falsely.
SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.13/3311.(i) PW9 SI Jitender Kumar deposed that on 20/02/2020 he was posted at PS Sunlight Colony on emergency duty and, on that day, on receipt of DD No.31-B, he alongwith HC Jaipal and Ct. Bajrang reached the spot i.e. near Razia Building (supra), where he saw that blood was scattered and a blood stained knife was lying there. He deposed that, on inquiry, it was revealed that one Rakesh had been stabbed and was taken to some unknown hospital. He deposed that the crime scene was preserved and, in the meantime, on receipt of DD No.34B from AIIMS Trauma Center, he, after leaving HC Jaipal at the spot, alongwith Ct. Bajrang reached AIIMS, where he collected MLC of injured, disclosing the history of stab wound and the injured was declared brought dead. He deposed that he met no eye-witness in the hospital and he went back to the spot, where he found Inspector Pawan Kumar present alongwith other police staff. He deposed that crime team as well as FSL team were also present at the spot, which inspected the spot and got it photographed. The exhibits were lifted with the assistance of FSL expert and he seized them vide memo Ex. PW7/1. He deposed that one eye-witness Srikant also met him at the spot and he recorded his statement Ex. PW9/1. Thereafter, he prepared tehrir Ex. PW9/2 and handed it over to HC Jaipal, who, after registration of FIR, returned to the spot alongwith copy of FIR and tehrir. He deposed that the case was assigned for investigation to Inspector Pawan Kumar, who prepared site plan and he handed over the seized exhibits alongwith seizure memo, MLC and Form 25.35B to Inspector Pawan Kumar. He deposed that Inspector Pawan recorded statement of witness Dharampal and searched for accused SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.14/33persons but to no avail. Thereafer, they returned to police station and deposited the case property in Malkhana.
11.(ii) PW9 deposed that on next day he alongwith IO Inspector Pawan again visited the crime scene, where IO examined and recorded the statements of public persons as well as relatives of deceased. Thereafter, they went to AIIMS Trauma Center, where the body of deceased was identified by its family members vide statement Ex. PW4/1 and Ex. PW9/3, respectively, and after postmortem examination, the body of deceased was handed over to its relatives vide handing over memo Ex. PW4/2. He deposed on receipt of secret information regarding presence of accused Amit Messay, they reached near Sarai Kale Khan Bus Stand and the IO, at the pointing out of secret informer, apprehended accused Amit Messay from near Power House, Yamuna Khadar vide arrest memo Ex. PW9/4, conducted his personal search vide memo Ex. PW9/5 and recorded his disclosure statement. His clothes and shoes were seized vide memo Ex. PW9/6. He deposed that pursuant to his disclosure statement, accused Amit Messay got recovered one iron pipe from his house. IO seized the recovered iron pipe vide seizure memo Ex. PW9/7 and prepared site plan Ex. PW9/8 of place of recovery. He deposed that the accused pointed out the place of commission of offence vide pointing out memo Ex. PW9/9. Thereafter, they searched for accused Maical Messay, brother of accused Amit Messary, but he could not be traced and they returned to police station, and deposited case property in Malkhana.
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FIR No. 42/2020 PS : Sunlight Colony Page No.15/3311.(iii) PW9 deposed that on 22/02/2020 accused Maical Messay surrendered before the Court and he, with permission of the Court, interrogated as well as arrested him vide arrest memo Ex. PW9/10, conducted his personal search vide memo Ex. PW9/11, recoded his disclosure statement and obtained his two days PC remand. He deposed that he got the accused persons medically examined and the doctor preserved their blood sample that he seized vide seizure memos Ex. PW9/12 and Ex. PW9/13 respectively. Thereafter, they returned to police station, where the IO seized clothes and shoes of accused Maical Messay that he wore at the time of incident, vide seizure memo Ex. PW9/14 and deposited them in Malkhana. He deposed that on 23/02/2020 accused Maical Messay got recovered baseball bat, used in commission of offence, from bushes near Railway Line, DDA Park. IO seized the recovered baseball bat vide seizure memo Ex. PW9/15 and prepared site plan of its recovery vide memo Ex. PW9/16. He deposed that accused Maical Messay also pointed out the place of commission of offence vide pointing out memo Ex. PW9/17 and, thereafter, he deposited the case property in Malkhana. He identified both the accused persons in Court. The production of case property was dispensed with being not disputed by Ld. Defence Counsel.
11.(iv) In cross-examination by Ld. defence counsel, PW9 replied that the spot was crowded and he made inquiry from number of people, however, they were not aware about the incident. He replied that the name of eye witness Srikant was revealed during investigation, however, he made no inquiry SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.16/33about his background; neither did he know if Srikant was a bad character of the area. He replied that Srikant was not drunk when he met him. He replied that the crime team as well as FSL team were called by him and they reached the spot within 30-60 minutes, however, he did not know the names of the officials of crime team. He replied that the statement of Srikant was recorded by him at the spot, in 01 hour. He denied the suggestion that he did not record statement of Srikant as there was no sitting place. He replied that IO recorded his statement at police station. He replied that the name of the victim was revealed in local inquiry made near the spot. He replied that he did not see the dead body of victim Rakesh and, therefore, he could not tell the number of stab injuries sustained by Rakesh. He replied that they visited several places like Asha Flyover, near Railway Tracks etc., in search of the accused. He replied that no public person was joined at the time of recovery of baseball bat. He replied that the respective statements Ex. PW4/1 and Ex. PW9/3 were signed by Rajni and Santosh as well as handing over memo Ex. PW4/2 of the dead body of deceased was signed by Rajni, in his presence. He denied the suggestion that he never visited the spot, neither did he join investigation alongwith IO at any point of time. He denied the suggestion that nothing was recovered in his presence and all the proceedings were conducted while sitting in police station.
12.(i) PW10/IO Inspector Pawan Kumar deposed that on 20/02/2020 he was posted at PS Sunlight Colony and on that day, on receipt of DD No.31-B regarding murder, he went to the spot SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.17/33i.e. H. No. D1-B2, Razia Building, Hari Nagar, Ashram, where he met HC Jaipal and other police staff; SI Jitender and Ct. Bajrang also reached there from hospital. He deposed that the crime team as well as FSL team also reached the spot. He deposed that SI Jitender lifted exhibits from the spot, recorded statement of eye-witness Srikant, prepared rukka that he handed over to HC Jaipal, who after registration of FIR returned to the spot alongwith copy of FIR and original rukka and, thereafter, the investigation was assigned to him. He deposed that he recorded supplementary statement of Srikant as well as statement of other witness Dharampal and searched for the offenders. He deposed that SI Jitender handed over exhibits to him that he deposited in police station. SI Jitender also handed over MLC of deceased and Form 25.35B to him and he recorded statement of other witnesses.
12.(ii) PW10 deposed that on next day he alongwith SI Jitender and HC Jaipal again visited the spot, where they met two more eye-witnesses Rohit and Smt. Kamal and he recorded their statements. Thereafter, they reached Siddharth Basti, Hari Nagar, Ashram, where they met two Mausi/aunt namely Rajni and Santosh, maternal uncle Sonu and Mausa, husband of Rajni, of deceased and he recorded their statements. Thereafter, all of them including relatives of deceased went to AIIMS Mortuary, where Rajni and Santosh identified dead body of deceased Rakesh and, after postmortem examination, the body was handed over to its family members vide memo Ex. PW4/2. He deposed that, thereafter, they reached Sarai Kale Khan in search of the SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.18/33offenders, where they met one secret informer, who informed them about presence of accused Amit Messay in Yamuna Khadar area. He deposed that he asked 4-5 public persons to join investigation but none agreed. Thereafter, they reached Yamuna Khadar, near Power House, where they arrested accused Amit Messay, conducted his personal search and recorded his disclosure statement, in which Amit admitted his involvement in murder of deceased and disclosed that the clothes and shoes that he wore at the time of his apprehension were the same as he had worn at the time of commission of offence. He deposed that he arranged a fresh pair of slippers as well as clothes from nearby market through HC Jaipal for accused Amit Messay and seized his wearing clothes and shoes vide memo Ex. PW9/6. He deposed that accused Amit got recovered the weapon of offence i.e. one iron pipe from his house i.e. J-39, I.G. Camp (supra). He seized the recovered iron pipe vide memo Ex. PW9/7 and prepared site plan of its recovery vide memo Ex. PW9/8. He deposed that at the pointing out of accused Amit, he prepared pointing out memo Ex. PW9/9 of place of incident and, thereafter, they returned to police station, where he deposited all the exhibits in Malkhana and recorded statement of witnesses.
12.(iii) PW10 deposed that on next day he produced accused Amit Messay in Court and, on the same day, co-accused Maical Messay surrendered in Court, whom he arrested vide memo Ex. PW9/10, conducted his personal search vide memo Ex. PW9/11, recorded his disclosure statement and obtained his two days PC remand. He deposed that during medical examination of the SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.19/33accused persons, their blood samples were collected that he seized vide memos Ex. PW9/12 and Ex. PW9/13 respectively. Thereafter, they returned to police station, where accused Maical Messay disclosed that the clothes and shoes that he wore at that time were the same as he had worn at the time of commission of offence. He seized the clothes and shoes of accused Maical vide memo Ex. PW9/14 and recorded statement of witnesses. He deposed that on next day accused Maical Messay got recovered the baseball bat, used in committing the offence, from DDA Park, C-Block, Asharam. He seized the recovered baseball bat vide memo Ex. PW9/15, prepared site plan Ex. PW9/16 of place of its recovery and the pointing out memo Ex. PW9/17. He deposed that on next day, he produced both the accused persons in Court, from where they were sent to judicial custody and, on the same day, private photographer Kuldeep handed over 07 photographs Ex. AD1 (Colly.) to him. He identified the said photographs in Court.
12.(iv) PW10 deposed that he prepared two site plans Ex. PW10/A, on his own. He deposed that on 04/03/2020, Inspector Mukesh prepared rough notes of spot and prepared scaled site plan Ex. A-4. He deposed that on 07/03/2020 he alongwith Ct. Rupinder reached AIIMS mortuary, where the hospital staff handed over nail clippings, clothes, viscera and blood gauze to him and he seized them vide memos Ex. PW10/B to Ex. PW10/E, respectively. He deposed that on 14/05/2020 he sent all the exhibits to FSL through Ct. Ganga Ram and after completion of investigation, filed the charge-sheet in Court. He deposed that SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.20/33during investigation he moved an application U/s. 91 CrPC, Ex. PW10/F to PWD (HQs) for providing CCTV footage, however, it was not received. He identified both the accused persons in Court. The production of case property was dispensed with being not disputed by Ld. Defence Counsel.
12.(v) In cross-examination by Ld. Defence Counsel, PW10 replied that the investigation of present case was assigned to him at around 10:30 PM, when he was present at the spot on receipt of information given by witness Dharampal to Duty Officer. He replied that he did not know the time of registration of FIR, however, it was registered on complaint of Srikant, whom he met at the spot. He replied that FSL team was called by SI Jitender and it remained at the spot for about 1-1½ hours. He replied that he recorded supplementary statement of complainant after 2-2½ hours of recording of his statement by SI Jitender and he reached police station at about 01:30AM - 02:00AM (night). He replied that the photographer was called by SI Jitender at the spot. He replied that he did not pay charges of photographer, neither did he know if it were paid by SI Jitender nor did he place any bill on record raised by photographer.
12.(vi) PW10 replied that on next day i.e. 21/02/2020 he visited the spot at about 07:00AM - 07:30AM. He replied that he did not remember whose statement he recorded first, either Rohit or Smt. Kamal. He replied that the body of deceased was handed over to its relatives Rajni and Pooja. He denied the suggestion that he prepared arrest memo of accused Amit Messay while sitting in SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.21/33police station. He replied that no public person was present at the time of arrest of accused Amit Messay. He admitted that there was no public witness of pointing out memo, arrest memo and recovery memo. He voluntarily stated that he asked the public persons, however, they refused to join investigation. He replied that he did not remember the names of public persons whom he requested to join investigation. He replied that HC Jaipal brought clothes for accused Amit after his wearing clothes were seized, however, he did not inquire from HC Jaipal about the money spent by him to purchase the clothes.
12.(vii) PW10 denied the suggestion that iron pipe was not recovered at the instance of Amit Messay, neither was the baseball bat recovered at the instance of Maical Messay and they were planted upon the accused persons. He replied that while recording supplementary statement of complainant Srikant, he was not aware if Srikant was bad character of area. He denied the suggestion that complainant Srikant was extorting money from accused persons. He replied that he did not know if Srikant used to visit jail to meet the accused persons. He denied the suggestion that the witnesses dropped from list of witnesses were dropped as they could depose against prosecution case. He replied that he moved application for obtaining CCTV footage, however, due to Covid pandemic, he did not obtain it. He denied the suggestion that the accused persons were falsely implicated in present case in connivance with the complainant.
SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.22/3313.(i) PW11 Inspector Kanwar Sain deposed that he did not remember the exact date, however, the present case was marked to him by SHO, PS Sunlight Colony, in the month of September- 2021 for filing the supplementary charge-sheet. He deposed that during investigation he verified and obtained FSL result (viscera report) from Malkhana of PS Sunlight Colony. He deposed that since the previous IO had already applied for CCTV footage to Executive Engineer, PWD, Govt. of NCT, Delhi, he verified and sent Ct. Satish to said department on 20/09/2021, who collected CCTV footage in two CDs as well as letter, Ex. A-D4 and Ex. A- D6 respectively, issued by Executive Engineer and Certificate U/s. 65B Indian Evidence Act Ex. A-D5 in that regard, and handed them over to him; He seized them vide memo Ex. PW11/A. He deposed that on being called, complainant Srikant came to police station on 25/09/2021 to see the CCTV footage and he prepared memo Ex. PW11/B in that regard. He deposed that on watching the footages, complainant identified accused Maical Messay, who had a baseball bat in his hand, and accused Amit Messay, who had an iron pipe in his hand, and he recorded statement of complainant Srikant in that regard.
13.(ii) Two CDs attached with judicial file were untagged for playing in Court. CD-1 was played which found containing two folders i.e. 01_33_202002200234006633.mp4 and 01_34_20200 220234026434.mp4. Folder No. 01_33_202002200234006633. mp4, recording time 09:47, was played in which two persons could be seen having iron rod and baseball bat. The footages Ex. A-D3 and Ex. A-D4 were shown to PW11, who stated that SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.23/33complainant Srikant identified accused Amit Messay as the person who had iron rod and accused Maical Messay as the person who had baseball bat. Thereafter, Folder No. 01_33_20200220234026434.mp4, recording time 09:45, was played in which two persons could be seen running having iron rod and baseball bat in their hands. The footages Ex. A-D3 and Ex. A-D4 were shown to PW11, who stated that complainant Srikant identified accused Amit Messay as the person who was running with iron rod and accused Maical Messay as the person who was running with baseball bat. He deposed that after completion of investigation, he filed the supplementary charge- sheet in Court. He deposed that he could not identify the accused persons as he never met them during investigation.
13.(iii) In cross-examination by Ld. Defence Counsel, PW11 admitted that no time or date had been mentioned in the CCTV footages. He admitted that no timing was mentioned on CCTV footage watching memo Ex. PW11/B. He denied the suggestion that no such footages were ever shown to complainant Srikant. He replied that he sent Beat Constable to house of complainant to call him for the purpose of showing CCTV footages, however, he did not remember the name of Constable. He admitted that no notice was served upon complainant for that purpose. He admitted that except the complainant he did not make anyone else a witness to memo Ex. PW11/B. He replied that he did not remember out of two CDs which he showed to complainant first. He replied that he identified complainant Srikant through Beat Constable and did not retain any document in proof of his SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.24/33identity. He replied that he did not record statement of beat constable when he identified complainant. He admitted that incident was not captured in footages and only accused persons were seen running on road. He stated that it was footage prior to the incident, in which the accused persons were running after deceased Rakesh to stab him. He admitted that in footage the accused persons were not seen having knives in their hands.
14. Since both the accused persons, through their separate statements recorded U/s. 294 CrPC on dated 27/05/2022, 28/09/2022 and 11/10/2022, admitted contents and genuineness of the following documents, therefore, the requirement to prove the said documents through concerned PWs was obviated:
i) Ex. A-1 : FIR alongwith Certificate U/s. 65-B Indian Evidence Act (Colly.);
ii) Ex. A-2 & : DD No.31-B & 34-B, both dated
Ex. A-3 : 20.02.2020, respectively;
iii) Ex. A-4 : Scaled site plan Ex. A-4;
iv) Ex. A-5 : Postmortem report of victim Rakesh;
v) Ex. A-6 : MLC of victim Rakesh;
vi) Ex. A-7 : Report No. SFSL DLH/3007/BIO/665/
2020, Bio No. 700/2020 dated 09.12.2021
(consisting of three pages);
vii) Ex. AD-1 : 07 Photographs (Colly.);
viii) Ex. AD-2 : FSL Report dated 29.09.2020;
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ix) Ex. AD-3 : Letter dated 20.09.2021 issued by
Executive Engineer (Elect.)-I (CCTV,
Wi-Fi Street Lights) alongwith two DVDs;
x) Ex. AD-4 : CCTV footage Certificate dated 20.03.2020;
xi) Ex. AD-5 : Certificate U/s. 65-B Indian Evidence Act
regarding CCTV footage;
xii) Ex. AD-6 : Copy of letter dated 11.03.2020 issued by
Executive Engineer (Elect.)-I (CCTV, Wi-Fi
Street Lights);
15. All the incriminating evidence that came on record in the deposition of prosecution witnesses was put in detail to the accused persons and their separate statement was recorded U/s.
313 CrPC. The accused persons denied all incriminating evidence and asserted that they were falsely implicated in the present case. Accused Amit Messay asserted that he was lifted from his house and was falsely implicated in this case. They asserted that Rajni (aunt/Mausi of victim Rakesh) demanded money from them through Srikant, who visited them at Central Jail No.08, Tihar to demand money.
The accused persons did not avail of the opportunity to lead evidence in defence. I have heard the elaborate final arguments from both sides. The evidence is analyzed as under:-
16. Whether PW4 Rajni @ Rajjo was an eye-witness to the incident :
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16.(i) PW4 Rajni deposed that she was an eye-witness to the incident. On 20/02/2020, at about 03:00PM-03:30PM, while standing near bridge of the area of Sardar Basti she saw accused Maical Messay and Amit Messay stabbing her nephew i.e. victim Rakesh with knives. She stated that both the accused persons stabbed Rakesh twice with their knives on his neck. She saw that Rakesh had stab wounds on other body parts too. She stated that both the accused fled from the spot after stabbing Rakesh. She stated that she immediately rushed to injured Rakesh and, thereafter, she searched for an auto-rickshaw. She alongwith her sister Santosh and Sonu rushed victim Rakesh to the hospital, where Rakesh was declared brought dead. PW4 stated that she saw one knife lying at the spot.
16.(ii) In cross-examination, PW4 stated that she did not know if police recorded her statement. She replied that police did not make any inquiry from her regarding this case. She denied the suggestion that she did not witness the incident, neither saw accused persons giving knife blows to Rakesh. She replied that she did not know why despite being an eye-witness, she was not examined by police as an eye-witness to the incident.
16.(iii) Ld. defence counsel argued that PW4 Rajni grossly exceeded the scope of her statement recorded U/s. 161 CrPC as per which she was not an eye-witness and only came to know from some unknown persons that her nephew Rakesh had been stabbed with knife. As per statement given to police, PW4 Rajni was standing at a distance from the spot when she was told about SC No. 148/2020 State Vs. Amit Messay & Anr.FIR No. 42/2020 PS : Sunlight Colony Page No.27/33
the incident by some unknown person.
16.(iv) It was argued that if PW4 Rajni was an eye-witness to the incident, it would be highly improbable that neither police examined her as an eye-witness nor she approached the police for recording of her statement as an eye-witness. She was, after all, the real aunt (Mausi) of victim Rakesh.
16.(v) PW5 Smt. Santosh, another aunt of deceased Rakesh, stated that on 20/02/2020, at around 03:00PM, her sister Rajni (PW4) came to her shouting 'Rakesh ko chaku maar diya' (Rakesh had been stabbed with knife). Notably, Rajni did not disclose to Santosh that Rakesh was stabbed with knife by accused Maical Messay and Amit Messay. PW5 stated that on reaching the spot where injured Rakesh was lying, she came to know that one Kaley and Amit had stabbed Rakesh. PW5 did not disclose who gave this information to her. If PW4 Rajni had witnessed the incident, she would have told her sister i.e. PW5 Santosh about involvement of the accused persons the moment she reached her home at 03:00PM.
16.(vi) PW6 Sonu, maternal uncle (mama) of deceased Rakesh and brother of PW4 Rajni and PW5 Santosh, deposed as a hostile witness and was cross examined by Ld. Addl. PP for State. In cross-examination by Ld. Addl. PP, he stated that at about 03:45PM his sister Rajni came to house and informed him that Rakesh had been stabbed by knife and was lying on road of railway line. He denied the suggestion that Rajni disclosed to him SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.28/33that Rakesh was stabbed with knife by accused Maical Messay and Amit Messay.
16.(vii) PW8 ASI Jaipal Singh and PW9 SI Jitender Kumar deposed that on receipt of information through DD No.31-B on 20/02/2020, at 03:30PM, when they reached he spot, they found no eye-witness, however, lot of blood was spilled on the road and one blood stained knife was lying there. They found no eye- witness in the hospital too, where injured Rakesh was admitted. Finally, when they went back to the spot from hospital, SI Jitender met one eye-witness namely Srikant, on whose statement the FIR was registered.
16.(viii) It is observed that if PW4 Rajni was an eye-witness to the incident, it was not possible that she neither disclosed to her relatives nor to police officials that she saw accused persons stabbing her nephew Rakesh with knives. PW4 could not be so casual and reckless about coming forward as an eye-witness, being real aunt (Mausi) of the victim.
16.(ix) The testimony of PW4 Rajni is neither completely untruthful nor completely truthful; she introduced new facts into what she witnessed, rendering her deposition suspicious. The Court has viewed her deposition with circumspection and required corroboration in material particulars by reliable testimony, direct or circumstantial (Ref.: Vadivelu Thevar Vs. The State of Madras, 1957 SCR 981). The testimony of PW4 remained uncorroborated by her own relatives i.e. PW5 Smt. SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.29/33Santosh and PW6 Sonu. In fact, PW6 Sonu contradicted PW4 Rajni in material particulars pertaining to stabbing incident.
Evidently, PW4 deposed as an interested witness to secure conviction of accused persons for murder of her nephew Rakesh. Her deposition is not truthful and not worthy of reliance.
17. Complainant Srikant, an eye-witness to the incident, expired before deposing in the Court. PW1 Kamal, PW2 Rohit and PW3 Dharampal were completely hostile to prosecution case. Their cross-examination by Ld. Addl. PP did not yield anything favorable to prosecution case.
18. Forensic Report :
Forensic report Ex. A-7 established that the blood stained knife (Ex.2) recovered as abandoned at the spot was smeared with blood of the deceased (Ex.12). However, it was not established that the recovered knife was used by the accused persons to stab victim Rakesh or was recovered at their instance or from their possession. The knife was not found smeared with blood of accused persons (Ex.8 & Ex.9). Similarly, the DNA of accused persons was not found on nail clippings of the deceased (Ex.11A & Ex.11B). As per forensic report, blood was not detected on baseball bat (Ex.4) and iron pipe (Ex.5), allegedly recovered at the instance of accused persons.
Thus, the forensic report Ex. A-7 does not indicate towards culpability of accused persons.
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19. CCTV Footage :
19.(i) PW10 Inspector Pawan Kumar stated that he applied to PWD (HQs) through application U/s. 91 CrPC, Ex. PW10/F, for supply of CCTV footage from the CCTV cameras installed by government near the spot.
19.(ii) PW11 Inspector Kanwar Sain deposed that in pursuance of application of Inspector Pawan Kumar, Executive Engineer, PWD, Govt. of NCT of Delhi, furnished CCTV footage in two CDs Ex. A-D3 and Ex. A-D4 alongwith Certificate U/s. 65-B Indian Evidence Act, to him, that were collected through Ct. Satish.
19.(iii) The CDs containing CCTV footages were played in Court during testimony of PW11 Inspector Kanwar Sain. He stated that in the CCTV footage two persons are seen running, having iron rod and baseball ball. PW11 stated that in the CCTV footage, the person holding iron rod was identified as accused Amit Messay, whereas, the person holding baseball bat was identified as accused Maical Messay, by complainant Srikant (expired before deposing in Court).
19.(iv) In cross-examination, PW11 Inspector Kawnar Sain admitted that no time and date was displayed in the CCTV footages Ex. A-D3 and Ex. A-D4. He denied the suggestion that no CCTV footage were shown to complainant Srikant. He replied that he identified complainant Srikant through the beat constable, SC No. 148/2020 State Vs. Amit Messay & Anr.
FIR No. 42/2020 PS : Sunlight Colony Page No.31/33who went to home of complainant to call him to police station. He replied that he did not take any documentary proof from complainant to identify him, neither recorded statement of beat constable, who identified the complainant. PW11 admitted that in the CCTV footages incident of stabbing of victim Rakesh was not captured and only accused persons were seen running on the road. He admitted that in the CCTV footages accused persons are not seen holding knife in their hands.
19.(v) It is observed that CCTV footages Ex. A-D3 and Ex. A-D4 are not helpful in elucidating the incident. They did not display date and time of recording of event, neither did they capture the spot of incident. Victim Rakesh is not seen in the CCTV footage. The accused persons could be seen holding iron pipe and baseball bat that were not used in commission of offence. The accused persons are not seen holding weapon of offence i.e. knife used in stabbing of victim Rakesh.
19.(vi) Thus, CCTV footages Ex. A-D3 and Ex. A-D4 have no probative value in affirmation or denial of involvement of accused Amit Messay and Maical Messay in commission of offence.
20. As a result of foregoing observation and analysis, the charge remained unproved against the accused persons. Accused Amit Messay and Maical Messay are acquitted of the charged offence U/s. 302/34 IPC. However, they shall furnish fresh bail bonds U/s. 437A CrPC.
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FIR No. 42/2020 PS : Sunlight Colony Page No.32/3321. File be consigned to record room after completion of all necessary formalities.
Announced in the open Court dated: 13.09.2023 (VISHAL SINGH) ADDL. SESSIONS JUDGE-05, SOUTH-EAST, SAKET COURT NEW DELHI SC No. 148/2020 State Vs. Amit Messay & Anr.
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