Delhi District Court
State vs Munir on 30 January, 2020
IN THE COURT OF ADDITIONAL SESSIONS JUDGE03
(NORTH EAST), KARKARDOOMA COURTS, DELHI.
PRESIDED BY: LALIT KUMAR
SC No. 166/17
State Vs Munir
FIR No. 60/17
U/s. 302/34 IPC
PS : Khajuri Khas
State
Versus
Munir
s/o Naseem
r/o H.No.425, Gali no.03,
E block, Shri Ram Colony,
Delhi.
Date of Assignment : 07.07.2017
Date of Arguments : 21.01.2020
Date of Pronouncement : 30.01.2020
JUDGMENT :
Case of the prosecution 1 Brief facts: On 02.02.2017, PW13 Inspector Yogesh Malhotra was on duty as SHO and at about 5.25 p.m., FIR of present case was FIR No. 60/17 State Vs. Munir 1/23 registered on the basis of DD no.28A Ex.PW 1/A and investigation was assigned to him by DO ASI Nepal Singh. HC Satender delivered rukka recorded by SI Satya Dev Ex.PW 1/B and copy of FIR Ex.PW 1/D to him and thereafter he alongwith HC Satender and Ct.Shamim left the PS and reached at the spot i.e.place in front of Pintu's Shop, after slope from old PS Cut, Shri Ram Colony, Khajuri Khas at about 6.00 a.m, where SI Satyadev was already present alongwith other officials. SI Satyadev handed over MLC of deceased Akhlaq and other documents to him. PW13 recorded statement of Asif, brother of deceased, wherein it was revealed that on 30.01.2017 at about 2.00 p.m.he was informed by Raja @ Bunda that his brother Akhlaq was being beaten by accused Munir and his two associates/JCLs namely, Salman and Illyas at the spot and had seen the incident. Asif further told in his statement that he had taken his injured brother to the hospital for medical examination. PW13 prepared the site plan at the instance of Asif as Ex.PW 13/A and recorded statement of Raja @ Bunda. Raja @ Bunda told PW13 that he had seen the incident and he had disclosed that some boys were giving beatings to Akhlaq and he had informed to Asif about the incident. PW13 checked the CCTV camera which was installed outside the shop of one Avasthi Electronics and the owner of said Avasthi Electronics namely, Udaiveer Sharma was present at the shop and he had played DVR of relevant time in which the incident with Akhlaq was shown. Asif was also present when he had checked the CCTV footage and one CD was prepared from the DVR of incident which was seized. Statement of Smt.Anwari, grandmother of deceased u/s 161 FIR No. 60/17 State Vs. Munir 2/23 Cr.PC was recorded.
2 On 04.02.2017, JCL Salman alongwith his brother came at PS and surrendered before PW13 and PW13 arrested him vide arrest papers. He was produced before court and was taken on PC for one day. JCL Salman had disclosed name of his associate i.e.accused Munir and Illyas and Shahrukh, Faheem and two unkwown persons. In pursuance of disclosure statement, accused Salman got recovered one TSR bearing no.UP 14 ET 9895 belonging to him from the parking at Kushal Park, Loni which had been used in crime and same was seized vide seizure memo Ex.PW 10/A. The said TSR was being driven by JCL Salman at the time of incident and since accused Salman was below the age of 18 years, he was sent to observation home being a juvenile.
3 On 09.02.2017, PW13 reached at the shop of Udaiveer Sharma and seized hard disk of DVR containing incident of present case from his shop in his presence vide memo Ex.PW 9/A. Serial number and model of DVR were mentioned in the said seizure memo. Thereafter, he returned to PS and deposited the parcel with MHC(M). Other JCL Illyas was apprehended and was also sent to observation home.
4 On 15.02.2017, postmortem report Ex.PW 12/A was got collected through SI Sayadev and placed on file. PW13 collected the site plan Ex.PW 3/A from draftsman Inspector Mahesh Kumar after 30.03.2017 and FIR No. 60/17 State Vs. Munir 3/23 placed the same on file.
5 On 17.03.2017 at about 6.00 p.m., accused Munir surrendered himself before PW13 at PS, who interrogated and arrested him vide arrest and personal search memo Ex.PW 10/B and Ex.PW 10/C. Disclosure statement of accused Munir was also recorded as Ex.PW 10/D. PW10 made efforts to recover weapon of offence I.e.danda which had been used in crime by associate Illyas, but same could not be recovered. During course of investigation, PW13 recorded statement of official witnesses, got collected PCR form Ex.PW 4/C and got collected certificate u/s 65(B) of I.E Act as Ex.PW 9/B. Certificate u/s 65(B) I.E.Act issued by Udaiveer Sharma for his DVR Ex.PW 9/C was also collected and placed on file. PW13 added section 302/34 IPC after recording the statement of eye witnesses Asif and Raja @ Bunda. PW13 completed investigation and prepared chargesheet against the accused Munir for offence u/s 302/34 IPC which was sent to court for trial.
6 This chargesheet committed to this court after compliance of Section 207 Cr.P.C.
Charge 7 Charge under Section 302/34 IPC framed against accused Munir vide order dated 24.08.2017 and he pleaded not guilty and claimed trial.
FIR No. 60/17 State Vs. Munir 4/23 Prosecution Evidence 8 To prove the allegations, prosecution has examined following witnesses: 9 PW1 ASI Nepal Singh is the duty officer who has proved on
record DD no.28 A as Ex.PW 1/A, rukka as Ex.PW 1/B, endorsement on rukka as Ex.PW 1/C, copy of FIR as Ex.PW 1/D, certificate u/s 65(B) of I.E.Act as Ex.PW 1/E. 10 PW2 ASI Vijay Singh has deposed that on 09.02.2017, he was posted as MHC(M) at PS Khajuri Khas. He has proved on record copy of entry at S.No.2325 as Ex.PW 2/A. 11 PW3 Inspector Mahesh Kumar has deposed that on 15.03.2017, he took the rough notes and measurements of the spot at the instance of Asif and Inspector Yogesh Malhotra and on 31.03.2017, he prepared the scaled site plan as Ex.PW 3/A. 12 PW4 HC Manoj Kumar has deposed that on 30.01.2017, at about 2.40 p.m. copy of DD no.59B was assigned to him by the duty officer to take action in the matter in connection of quarrel in Shri Ram Colony, A block, Gali no.7, Kacchi Khajuri and in pursuance of said DD, he alongwith Ct.Pramod reached at Gali no.7, A block, Shri Ram Colony, but FIR No. 60/17 State Vs. Munir 5/23 there was no quarrel. He has proved on record copy of DD no.59 as Ex.PW 4/A, copy of DD no.76 as Ex.PW 4/B, PCR form as Ex.PW 4/C. 13 PW5 Raja @ Bunda has deposed that he is a kabadi by profession and used to purchase paper etc.from mohalla to mohalla. On 30.01.2017 at about 1.45 p.m., he was going to take medicine from the market for his mother and when he reached at a slope near old Khajuri Khas Police building near the shop of one Pintoo, he had seen some crowd, but he did not see any known person in that crowd. No one told him about the incident. Thereafter he went to purchase the medicine and reached at his home. Accused is known to him being a resident of Shree Ram Colony. He has further deposed that on 02.02.2017, it came to his notice that dead body of one Akhlaq who was murdered 1 or 2 days earlier, was brought in his colony from the mortuary of GTB hospital. This witness did not support the case of the prosecution and turned hostile. He was cross examined by Ld.Addl.PP for the State.
14 PW6 Dr.Shalabh, Medical Officer, JPC Hospital has proved MLC of injured Akhlaq prepared by Dr.Pragya Tiwari as Ex.PW 6/A, endorsement made by Dr.ajiv, the then Senior Resident Surgery as Ex PW 6/B. 15 PW7 Smt.Anwari, grandmother of deceased Akhlaq has deposed FIR No. 60/17 State Vs. Munir 6/23 that on 30.01.2017 at about 1.30 p.m. she was present at his home and at that time one Raja @ Bunda came and informed to his grand son Asif that his elder brother was given beatings at a place of near shop of one Pintoo. Asif joined Raja @ Bunda and went to the spot. She and other public persons followed Asif and Raja @ Bunda to the spot, where she saw that her grandson Akhlaq aged about 1617 years was being beaten by accused Munir, Salman and Illyas and she had seen danda in the hand of Illyas. Illyas had hit danda on the head of Akhlaq. Asif saved Akhlaq and lifted injured Akhlaq from the spot. Accused Munir and his associates Illyas and Salman ran away from the spot in TSR. Injured Akhlaq qas taken to the hospital by Asif. She reached at GTB hospital as she came to know that Akhlaq was referred to GTB from JPC Hospital. On the same day, injured was shited to ICU and on next day, he was declared dead by the doctor during medical treatment in GTB hospital. Thereafter, body was brought at the home and they had completed his last rites. PW7 further deposed that accused Munir is known to him prior to the incident being a resident of the colony.
16 PW8 Asif, brother of deceased Akhlaq has deposed that he has been doing the work of electrician in the area of Bhajanpura. On 30.01.2017 at about 7 a.m. his younger brother Akhlaq had gone to the shop of one barber namely, Salman in Gali no.3 to do his work as he was doing the work of barber with Salman in those days. He had gone there by Hero Splendor bearing no.0199. He did not remember complete registration FIR No. 60/17 State Vs. Munir 7/23 number of motorcycle beloning to him. He has deposed that on the same day at about 1.30 p.m., one boy namely Raja @ Bunda resident of his mohalla came at his home and informed him that his younger brother Akhlaq was being beaten at a place near shop of Pintoo at a slope at some distance old police station building Khajuri Khas. He alongwith aforesaid Raja @ Bunda reached at aforesaid spot and his friend Nawab also accompanied him at that time. On reaching at the spot, he saw that his younger brother Akhlaq was being beaten by accused Munir, Salman and Illyas. Illyas was having danda who hit the same on his brother Akhlaq and caused injured. Accused Munir had lifted and thrown him on the ground. Thereafter, Illyas had hit the danda to his brother and aforesaid three persons had caused injuries to his brother by beating him. Accused Munir and his associates namely, Salman and Illyas ran away in TSR. He took his injured brother at one doctor shop in gali no.8, where his brother was not attended by the doctor. He made a call at 100 number about the incident. PCR officials did not reach at the spot and we remained in wait for about 1015 minutes. PW8 with the help of his friend Nawab took the injured Akhlaq to JPC Hospital. Thereafter, his injured brother was sent to GTB hospital for medical examination. His mother came at JPC hospital alongwith his friend namely, Sartaj. His mother and Sartaj accompanied injured in Ambulance to GTB hospital. He alongwith his friend Nawab reached at GTB hospital by his motorcycle. His injured brother was admitted in ICU on the same day after conduting surgery. On next day in evening hours, his injured brother was declared dead during medical FIR No. 60/17 State Vs. Munir 8/23 treatment. He and Raja @ Bunda had identified the dead body of injured Akhlaq during inquest proceedings and their statements were recorded as Ex.PW 8/A and Ex.PW 8/B. He has further deposed that police did not meet him in the hospital and on 01.07.2017, he had gone to PS and met the police officials. He had not shown the place of incident to police at any point of time. Police had taken DVR from the shop of Pintoo on 02.02.2017. Police had seen the incident after playing DVR prior to taking into possession. He deposed volunteered that SHO had shown the incident on computer to him at PS. Thereafter, PW8 did not support the case of the prosecution and turned hostile.
17 PW9 Udaiveer Sharma has deposed that he is running electronic shop at a place near old police station building Khajuri Khas. He got installed three CCTV cameras near his shop. One CCTV camera was affixed on the electricity pole near his shop. He did not remember the exact date. Police officials of Khajuri Khas had visited his shop and had played DVR to find out any clue about the assailants. He is the owner of DVR and had taken his DVR after some days. IO seized the hard disk of his DVR containing clipping of incident. Police had kept his DVR in cloth parcel and sealed with the seal of 'YM'. Police officials again visited his shop and asked about the proper care and maintenance of DVR and he had issued certificate to this effect. PW9 has proved on record seizure memo as Ex.PW 9/A and certificate as Ex.PW 9/B. FIR No. 60/17 State Vs. Munir 9/23 18 PW10 SI Manish Tyagi has proved on record seizure memo of TSR bearing no.UP 14ET9895, arrest memo of accused Munir as Ex.PW 10/B, personal search memo as Ex.PW 10/B and disclosure statement as Ex.PW 10/D. 19 PW11 SI Satyadev Panwar has deposed that on the intervening day of 1/ 2.02.2017, at about 11.20 p.m., copy of DD no.28A already Ex.PW 1/A was assigned to him by duty officer and in pursuance of said DD, he reached at GTB hospital and inspected the dead body in mortuary of GTB hospital. Name of the deceased came into his notice as 'Akhlaq s/o Babu aged about 16 years'. DD no.59B dt.30.01.2017 was assigned to HC Manoj Kumar (PW4), but same was filed as 'untrace'. He has further deposed that no eye witness of the incident and relative of deceased met him in the mortuary of GTB hospital at that time. He met with doctor who had prepared death summary of deceased Akhlaq and told that MLC of deceased may be collected from JPC hospital. He collected the MLC of deceased Akhlaq as Ex.PW 6/A. Thereafter, he reached at PS and narrated the incident to SHO and made endorsement on DD no.28A and prepared rukka already Ex.PW 1/B. He presented tukka before DO ASI Nepal Singh who registered FIR of the case. Thereafter, investigation was assigned to Inspector Yogesh Malhotra.
20 PW11 has proved on record inquest form as Ex.PW 11/A, request for postmortem as Ex.PW 11/B, copy of death certificate of deceased as FIR No. 60/17 State Vs. Munir 10/23 Ex.PW 11/C1, copy of death summary as Ex.PW 11/C2. On 09.02.2017, he had joined investigation with IO and reached at the shop of one Udaiveer Sharma near the spot of present case, where CCTV camera was installed having clipping of incident of giving beatings to deceased Akhlaq. IO seized the hard disk of DVR containing video clipping of case with permission of shop owner Udaiveer Sharma vide seizure memo. The shop owner namely, Udaiveer Sharma had told that DVR and CCTV camera were in his custody.
21 PW12 Dr.Ankit Kumar, Junior Demonstrator UCMS and GTB Hospital has proved on record postmortem report of deceased as Ex.PW 12/A. 22 PW13 Inspector Yogesh Malhotra is the IO of the case and has proved on record site plan as Ex.PW 13/A. Post Mortem As per postmortem report, Dr.Shalney Razdan had conducted the postmortem on the body of deceased Akhlaq on 02.02.2017. The following external antemortem injuries were noticed on the dead body of the deceased:
(1) Surgically created craniotony wound of size 20 cm x .5 cm (shaped, present over right side of head, lateral and is 3.5 cm above right mastoid process medial and is 8 cm from midline with eighteen stitches in situ. (2) Stitched lacerated wound 2.5 cm x .5 cm, obliguely placed, over left side FIR No. 60/17 State Vs. Munir 11/23 of head, 6 cm from midline, 6 cm above left supra orbital ridge, with three stitches in situ.
(3) Reddish brown scabbed abrasion measuring 2 cm x 1 cm in size present over right side of face, 6 cm from midline, 25 cm below right supra orbital ridge.
(4) Reddish brown scabbed abrasion measuring 0.8 cm x 0.3cm present over right supra orbital ridge 4 cm from midline. (5) Reddish brown scabbed abrasion measuring 2 cm x 0.3 cm present over dorsal aspect of right forearm, 5 cm below right elbow joint.
The cause of death is shock as a result of antemortem injuries to head produced by blunt force impact. All injuries are antemortem in nature. Injury no.2, 3 & 4 and internal injury to head is sufficient to cause death in ordinary course of nature collectively.
Statement of accused 23 Thereafter, PE was closed and statement of accused under Section 313 Cr.P.C has been recorded wherein he pleaded his innocence and denied all the allegations leveled against him and has not preferred to lead defence evidence and thereafter the matter was fixed for final arguments.
Arguments and appreciation of evidence 24 I have heard the arguments on behalf of Sh.D.K.Singh, Ld.Addl.PP for the State and Sh.Ravinder Pal Singh, Ld.Counsel for the accused and have perused the record carefully.
FIR No. 60/17 State Vs. Munir 12/23
25 The prosecution has mainly based its case on the eye witness namely
Asif, brother of deceased Akhlaq who has been examined as PW8.
Law relating to eye witness testimonies 26 Before proceeding to discuss the ocular evidence of PW8 Asif, the legal position in that regard may be recapitulated in brief. The settled legal position is that the Court must attempt, while appreciating the evidence of a witness, separate the truth from falsehood and not reject an eye witness testimony entirely only because there are some embellishments. In Ugar Ahir vs State of Bihar AIR 1965 SC 277, the Supreme Court explained the legal position as under:
"the maxim falsus in uno, falsus in omnibus false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it can not obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
27 Further as explained in State of U.P vs Krishna Master 2010 VIII AD(SC) 401AIR 2010 SC 3071, the Supreme Court emphasized that 'it is the duty of the Court to separate falsehood from the truth, in sifting the FIR No. 60/17 State Vs. Munir 13/23 evidence'.
28 At the same time, the eye witness testimony must be credible and reliable. It should not be contradicted by other eye witnesses or by the medical and forensic evidence, if any. The Court should also take into account the possible pressure that may be brought upon prosecution witnesses arising out of the vulnerable position visavis the police.
29 In the present case, prosecution has examined Raja @ Bunda as PW5, Smt.Anwari, grandmother of deceased as PW7 and Asif, brother of deceased Akhlaq as PW8 and as far as their testimonies are concerned, there are certain improvements, discrepancies and contradictions in the statements of P.Ws, which are relevant to be discussed as under:
(a) PW7 Anwari during her examination has deposed that on reaching at the spot, she saw that her grand son Akhlaq was being beaten by accused Munir, Salman and Illyas and she had seen danda in the hand of Illyas and he hit the danda on the head of Akhlaq, whereas during cross examination, she has been confronted with her statement made to the police Ex.PW 7/DA, wherein the said facts were not so recorded , which shows that she has made improvement in her statement.
(b) PW7 Anwari during her examination has deposed that accused Munir and his associates Illyas and Salman ran away from the spot by TSR, whereas the said facts were not so recorded in her statement made to the police Ex.PW 7/DA , which shows that she has made improvement in FIR No. 60/17 State Vs. Munir 14/23 her statement.
(c) PW7 Anwari during his examination has deposed that she and other public persons followed Asif and Raja @ Bunda to the spot, whereas PW8 Asif has deposed that PW7 Anwari came in Jag Pravesh Hospital alongwith his another friend namely Sartaj and PW5 Raja @ Bunda has not deposed anything about following him and PW8 Asif to the spot.
(d) PW8 Asif during his cross examination has deposed that he had stayed in the hospital alongwith his injured brother for about 3 days, whereas PW11 SI Sayadev Panwar during his cross examination has deposed that no family member of the deceased was found present in the hospital on 01.02.2017.
(e) PW8 Asif during his examination has deposed that Illyas was having danda and he hit the same on his brother Akhlaq and caused injury, whereas during his cross examination, he has deposed that incident had not taken place in his presence.
(f) PW8 Asif during his examination has deposed that he had not shown the place of incident to police at any point of time and during his cross examination by Ld.Addl.PP for the State on the ground of preparation of site plan, he was confronted with his supplementary statement made to the police on 15.03.2017, wherein said facts were so mentioned, whereas PW13 IO Inspector Yogesh Malhotra has deposed during examination that he prepared site plan at the instance of Asif.
(g) PW9 Udayveer Sharma, owner of electronic shop in the
FIR No. 60/17 State Vs. Munir 15/23
name and style of Awasthi Electronics has deposed during cross examination that only one employee namely, Babloo Ali was present when hard disk was checked and played by the police, whereas PW13 IO Inspector Yogesh Malhotra during his testimony has deposed that eye witness PW8 Asif was also present , when he had checked the CCTV footage.
30 Furthermore, prosecution in support of its case has examined Raja @ Bunda as PW5 who did not support the case of the prosecution and has resiled from his previous statement made to the police. He has deposed in his examination in chief that he did not see any known person in the crowd and when he asked some unknown persons as to what happened there, noone told him about the incident. Therefore, this witness has failed to support the prosecution case and has failed to connect the accused with the offence.
31 It may be seen that PW8 Asif during cross examination has deposed that he and his friend Nawab had signed the medical papers in the hospital regarding operation and other medical treatment, whereas persual of the MLC shows that signatures of PW8 Asif is not appearing anywhere in the said document, which casts doubt about the version of PW8 Asif.
32 Furthermore, no document has been placed on record to show that PW8 eye witness Asif had taken his injured brother/deceased Akhlaq to the FIR No. 60/17 State Vs. Munir 16/23 hospital to show that his brother Akhlaq received injuries due to the incident, which casts doubt about the version of the eye witness PW8 Asif.
33 It may further be seen that PW13 IO Inspector Yogesh Malhotra during his cross examination has deposed that as per MLC, deceased Akhlaq was got admitted in the hospital by one Nawab and since he was not the witness of incident, he was not cross examined, whereas PW8 Asif during his cross examination has deposed that he had seen JCL Illiyas giving danda blow to his brother when he reached at the spot alongwith Nawab. Therefore, two different statements have come on record with regard to presence of Nawab alongwith PW8 eye witness Asif at the spot, which is fatal to the case of prosecution. Moreover, the said Nawab who is stated to be friend of eye witness PW8 Asif, has not been cited as a witness to corroborate the testimony of eye witness PW8 Asif, which makes the prosecution story doubtful.
34 There is one another interesting aspect to be discussed that when one CD having CCTV footage of the incident was shown to the eye witness PW8 Asif, he submitted that he had seen deceased brother Akhlaq, accused Munir, JCL Illyas, JCL Salman in the CD, but when he was cross examined, PW8 Asif deposed that he had not seen entire incident of beatings and he further admitted that person who is visible in the CD wearing white clothes is not having danda in his hand and he further deposed that danda was used in crime by JCL Iliyas. This witness during cross examination further FIR No. 60/17 State Vs. Munir 17/23 deposed that in CCTV footage, person wearing white dress is not depicting to participate in the beatings with his brother Akhlaq and he had seen JCL Illiyas giving danda blow to his brother.
35 Moreover, even if PW8 Asif had witnessed the incident then it was natural aspect to save his brother when he was being given danda blow, which fact was not seen in the CCTV footage. Thus, from the above, it proves that PW8 Asif was not present at the spot and had not witnessed the incident.
36 It may further be seen that as per deposition of PW7 Smt.Anwari, she had seen the incident. However, when CCTV footage was seen, PW7 Smt.Anwari was not depicting in the CD, which creates doubt about the trustworthiness of this witness. Moreover, CCTV being electronic digitalized form of evidence and to prove the authencity of the CCTV footage, IO had not taken any step to send the DVR to FSL to prove that the alleged incident was captured in CCTV footage, in view of the provisions of section 65(B) of Indian Evidence Act.
37 Law is well settled in case titled as Anwar P.V Vs P.K.Basheer & ors.(2014) 10 SCC 473, wherein it has been held that certificate u/s 65B of Indian Evidence Act is necessary for admissibility of secondary evidence of electronic records. It was further held that the safeguards provided u/s 65B of the Indian Evidence Act are to ensure the source and authenticity and FIR No. 60/17 State Vs. Munir 18/23 electoronic records and without such safeguards, whole trial based on proof of electronic records can lead to travesty of justice.
38 Keeping in view the aforesaid inconsistencies and infirmities, court is of the opinion that the possibility of tampering or manipulation in the CD containing CCTV footage can not be ruled out as the DVR which was taken into possession by the police from the concerned shopkeeper was not sent to FSL alongwith CCTV footage. Hence, prosecution has failed to prove that DVR was in proper working condition at the time of recording of CCTV footage and the same was not tampered in any manner.
39 It is further pertinent to mention that the weapon of offence i.e. danda could not be recovered in the present case and even no explanation has been given by the prosecution as to what efforts were made by the IO to get recovered the weapon of offence in the present case and as such prosecution has failed to connect the accused with the offence.
Motive 40 In the present case, there is no motive that can be attributed to the accused which impleaded him to kill the deceased Akhlaq. There is no corroboration of eye witness, statement of even natural and potential witnesses who could have heard about the commotion or fight, was not recorded. Even no evidence has come on record to prove as to why deceased had been murdered by accused. Therefore, the prosecution has failed to FIR No. 60/17 State Vs. Munir 19/23 prove the motive which can be ascribed or attributed to the accused which impleaded him to kill the deceased. The nonexplanation of any motive on the part of accused creates a doubt regarding the prosecution story, benefit of which has to go to accused.
Unproved site plan 41 It is interesting to note that site plan drawn up of the place where the incident had taken place, raises more question than provides answers. In the site plan Ex.PW 13/A, it finds mention that letter 'A' is the place where the incident had happened, but in the scaled site plan Ex.PW 3/A, it is mentioned that point A is the place where dispute started between Akhlaq and JCL Salman, Shahrukh and Fahim, JCL Illiyas attacked with danda on Akhlaq and other JCL beaten him, injured Akhlaq hospitalized to JPC hospital, referred to GTB hospital and exired on 01.02.2017 and it also shows that there were electric pole , CCTV camera, Shutter Avasthi Electronics and Bharat Furniture and Handloom on Shri Ram Colony. The said places have not been indicated by the IO in the site plan Ex.PW 13/A. Moreover, in the scaled site plan Ex.PW 3/A, the place from where eye witness PW8 Asif had witnessed the incident has been shown at point B, whereas no such place has been shown by the IO in the site plan Ex.PW 13/A. It is very strange that if the site plan Ex.PW 13/A has been prepared on the basis of scaled site plan Ex.PW 3/A then how the abovesaid things/places have not been indicated by the IO. Reliance can be made in FIR No. 60/17 State Vs. Munir 20/23 State of Madhya Pradesh vs Puran (2003) 12 SCC 485 wherein the Supreme Court held that the failure to mention the existence of articles in the site plan created a doubt as to the possibility of there being such articles for identification. Therefore, the site plan does not give any help to the prosecution.
42 Moreover, PW13 IO Inspector Yogesh Malhotra deposed that he prepared site plan at the instance of PW8 Asif, whereas as per PW8 Asif, he had not shown the place of incident to police at any point of time. It may be seen that if the IO would have prepared the site plan Ex.PW 13/A at the instance of PW8 Asif then his signatures would have been obtained by the IO, which is not appearing on the site plan. Therefore, it casts doubt on the aspect of preparation of the site plan at the instance of PW8 Asif.
43 It may be seen that PW8 Asif during his cross examination has deposed that mohalla people had also followed him and Nawab to the spot, but mohalla people were not cited as a witness in the present case.
44 It is further pertinent to mention that public persons were not joined as witnesses by the IO despite their availability at the place of incident. IO had not asked the public persons who were present in the area to be witness of his arrest. PW13 IO Inspector Yogesh Malhotra during his cross examination has deposed that he had not noted the specific name of the public persons who were present at the spot at that time.
FIR No. 60/17 State Vs. Munir 21/23 45 From the testimonies of the P.Ws, it can be inferred that public witnesses were available at the place of incident m but there was no
explanation tendered during trial as to why they were not joined in proceedings being public place and evidence of police officials alone, unassociated by testimony of any independent witnesses does not inspire confidence at the time of arrest of accused.
46 Since, no public witnesses were joined at the time of arrest of the accused even number of public persons were present at the spot being a public place, even at the place where arrest of accused was effected. It is thus evident that public witnesses available could have been joined as witnesses of arrest of the accused. It would have a different matter had there been no public witness available or none was willing to join. Here, as stated above, the public witnesses were available but no explanation on these lines is forthcoming. Thus, I am of the opinion that it would be unsafe to maintain conviction of the accused for the offences charged against him.
47 After having examined the testimonies of the aforesaid prosecution witnesses, which are full of contradictions, improvements and discrepancies which are material in nature and goes to the root of the matter and shake the basic version of the prosecution case and impeach the credibility of the witnesses. The testimonies of the witnesses are not only contradictory to that made by them in their statement made to the police but also appears to be a FIR No. 60/17 State Vs. Munir 22/23 deliberate attempt to change and improve upon on the original statement to the prejudice of the accused with regard to his involvement in the alleged incident and his arrest.
48 Since the untrustworthiness of testimony of PW8 Asif apart from it, there are material discrepancies, improvements and contradictions in the testimony of the PWs, which touched the root of the case and totally demolished the case of the prosecution. As such, prosecution has not been able to prove its case and to connect the accused with the offence.
49 Keeping in view the fact and circumstances of the case, I am of the considered opinion that prosecution has failed to prove the charges against the accused beyond reasonable doubt. Accused is entitled for a benefit of doubt. I hereby acquit the accused of all charges framed against him. Bail bond of the accused already on record is hereby extended under Section 437A Cr.P.C for six months on the request of accused.
File is consigned to record room.
Digitally signed by LALIT LALIT KUMAR
KUMAR Date:
2020.01.30
17:04:47 +0530
Announced in open court (LALIT Kumar)
today on 30th January,2020 Additional Sessions Judge03
(NE): Karkardooma Courts, Delhi.
FIR No. 60/17 State Vs. Munir 23/23
FIR No. 60/17 State Vs. Munir 24/23