Delhi District Court
Sc No. 19/14, State vs . Thierry Chukwuyem A, Fir No. 239/2014, ... on 6 July, 2017
IN THE COURT OF SH. AJAY KUMAR JAIN,
ADDITIONAL SESSIONS JUDGE02, SOUTH DISTRICT,
DISTRICT COURT SAKET, NEW DELHI
Session Case No. 19/2014
In the matter of :
State
Versus
Thierry Chukwuyem A
S/o Mr. Ogunbor
R/o A27, 2nd floor, Khanpur Extn.,
New Delhi.
Permanent Address:
TownAgbor Delta State,
Nigeria.
FIR No. : 239/2014
Police Station : Neb Sarai
Under section. : 307/302 IPC
Date of assignment : 07.07.2014
Reserved for judgment : 01.07.2017
Date of decision : 06.07.2017
JUDGMENT
1. Prosecution case in brief is that on the intervening night 24/25.03.2014 at around 12 to 12.30 am during birthday party of one Mr. Friday, an altercation took place between the accused and a lady and PW2 OsasuKelvin intervened in that altercation due to which scuffle had taken place between the accused and the injured PW2. Thereafter, accused went downstairs at 2nd floor at his room and picked up a kitchen knife thereafter injured PW2. In order to save the SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 1 Of 44) injured deceased Osifo Omegie intervened, then the accused hit the deceased on his chest. Consequent to receiving of the injuries, injured took the deceased in PCR van to the hospital where during treatment deceased died and injured found unfit for statement.
2. On receiving the intimation through DD no. 6A recorded at around 12.55 am on 25.03.2014, PW11 SI Rajender Singh alongwith PW24 Ct. Anuj reached in front of Relaxo showroom Devli road from where both the injured were taken to hospital by PCR and noticed huge quantity of blood lying there. PW11 SI Rajender Singh rached hospital where he found deceased died during treatment and the injured PW2 found unfit for statement, thereafter, returned to spot and traced the blood drops upto the second and third floor of H.No. A27, however not found any eye witness. Crime team was also called which inspected the spot and photographs were also taken. On the basis of these facts and circumstances, rukka was prepared and sent to the police station at around 3.35 am consequent to which present FIR u/s 302/307 IPC was registered at 4 am.
3. During investigation, rough site plan of third floor, second floor, track leading to the main road and the place in front of Mittal Timber Trader Shop where large quantity of blood was lying was prepared. On the same day, at the instance of secret informer, accused Theirry was arrested, thereafter his disclosure statement was recorded. At his instance blood stained blade of knife was recovered from the front gate of building no. A27. The blood stained jeans pant of accused was also seized. Postmortem of the deceased was conducted. As per postmortem report the cause of death is haemorhagic shock consequent upon the injury to the lung resulting from the injury mentioned in external injury No. 1. This injury could be produced by pointed, sharp edged SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 2 Of 44) weapon. This injury is fatal in ordinary course of nature. All injuries are ante mortem in nature and could be possible in the manner alleged.
4. Thereafter, during investigation on 05.04.2014 statement of injured PW2 OsasuKelvin u/s 161 Cr.P.C was recorded. Statement of PW23 Sarah @ Bawra eye witness to the incident was also recorded on 17.06.2014 ie around after 82 days of the incident. Accused refused to participate in TIP as known to the complainant. Scaled site plan of place of occurence was prepared. Exhibits were sent to FSL for biological and serological examination. During investigation, the police also made inquiries from the owner of the premises Harminder Singh (PW1) and the comission agent Ajit Kumar Tiwari (PW3) who provided rental accomadation to the accused and other occupants of third floor namely Mr. David, Mr. Friday, Mr. Mathew Paul and Ruth Nabisivi. The verification of the documents ie passport, visa etc was also obtained. On completion of investigation, chargesheet was filed.
5. On committal, vide order dtd. 16.7.14, charges u/S 302/307 were framed against the accused to which he pleaded not guilty and claimed trial.
6. Prosecution for subtantiating its case examined 33 witnesses. Injured Osasu Kelvin examined as PW2. The other eye witness Sarah was examined as PW23. Other material official witnesses IO Inspector Ashok Kumar, SI Rajender Kumar and Ct. Manish Kumar are examined as PW30, PW11 and PW15. Depositions of prosecution witnesses in brief are reproduced as below:
7. PW2 Osasu Kelvin deposed that in the month of April he came to India and on the day of incident and prior to that, staying at H. No. F132, Jawahar Park and deceased was also staying with him, and joined him three months prior to the incident. Accused Thierry was staying on the 2 nd Floor of H. No. A027, SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 3 Of 44) Khanpur and met him twice in a Church at Devli Road prior to the incident. He further stated that on 24.3.14, he alongwith his friend Omigo went to attend the birthday party of his friend Friday at 3 rd floor of A27 Khanpur Extension, about 1520 persons attended the party. At about 12:30 in the night, hot talks took place between the accused and one lady whose name he do not know but tried to settle the matter, then scuffle took between him and the accused, thereafter, accused came downstairs to his flat and came back with knife and attacked him with knife on his right cheek and on his back with intention to eliminate him, when his friend Omegi came to save him, he was also attacked with knife on his right chest ribs with intention to eliminate him, however knife broke into two pieces, and Omegi started bleeding from his wound, thereafter, accused ran away leaving the handle at the spot as it was fallen. Thereafter, he alongwith his friend came to main road and saw policeman, then they were taken to hospital. Doctor tried to find out what happened but unable to tell because of his condition, then fell unconscious. He further stated that he remained under treatment in the hospital till 29.03.2014 and in the morning of 25.03.2014 came to know that his friend had died. He further stated that the accused committed murder, further identified the handle of the knife.
8. In cross examination, stated that he alongwith deceased joined the party at around 11:30 pm and was not acquainted with anyone except Friday whose birthday was celebrated. He also do not know how many persons present in the party were known to the deceased and also do not remember the number of male and female persons in the party. He further stated that he do not know the cause of hot arguments between the accused and the said lady. He also do not know whether the said lady was known to his friend. Also stated that he cannot tell whether the lady came alone or with someone. He further stated that he cannot tell the duration of the altercation with the accused. The accused was SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 4 Of 44) not carrying any knife at the time of altercation. It is correct that there was no enmity between the accused and the deceased. He further stated that he do not remember the exact time when accused went to the second floor and brought the knife. However, he had seen the knife but cannot describe the same. He further stated that he tried to run away when the accused assaulted him and accused first assaulted him and thereafter assaulted Omegie. He further stated that when accused assaulted him, all the persons present in the party moved away. However, he do not know who called 100 number. He further stated that he could not see the lady with whom altercation took place at the time of assault as paying attention upon himself. He further stated that he was not having enmity with the accused and also do not remember whether Friday remained present there or moved away. He further stated that he did not make any call to police however having mobile phone. Music was also played in the party but he do not remember whether the music system was stopped or not. He further stated he do not know who handed over the knife to the police. He further denied suggestion that fight had taken place between him and the deceased and he assaulted the deceased, as deceased came to know that he was carrying some illegal business or due to money dispute. He also denied the suggestion that the deceased assaulted him and not accused Theirry.
9. PW6 Mr. Ahameful Arinze B.N. identified the dead body of the deceased Osifo Omigie at mortuary, however stated the deceased was not known to him prior to the incident and identified the dead body being General Secretary of All India Nigerian Students and Community Association, and also collected letter from High Comission of Nigeria regarding identification of dead body and burial. PW7 Anuma Nwajide E., also identified the dead body of the deceased at AIIMS. PW23 Ms. Sarah stated that she is residing in Krishna Park and citizen of Uganda. On 25.3.14, she consumed liquor, police called her SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 5 Of 44) at the PS and recorded her details and she do not know anything about the present case. She further stated that she do not know the accused and had not seen him ever. On being declared hostile, in cross examination denied the suggestion that she attended the birthday party, saw quarrel between accused and Kelvin, and also infliction of knife injury by accused to the deceased and Kelvin, further denied suggestion that she had been won over by the friends and relatives of the accused. PW1 Harvinder Singh owner of the flats in building no. A27. PW3 Ajit Kumar Tiwari comission agent who facilitated in providing the flats at second and third floor to accused and other foreign nationals.
Statement of the Doctors:
10. PW4 Dr. Adarsh Kumar, stated that the postmortem of the deceased Osifo Omegi was conducted by Dr. Azfar Mateen, Sr. Resident, Forensic Medicines who left AIIMS and his whereabouts are not known and he can identify his signatures as he worked under him, further exhibited the postmortem report and stated that as per postmortem report, the death is result of haemorhaggic shock consequent to the injury to the lung resulting from injury as mentioned under Injury No.1. In cross examination stated that neither the postmortem was conducted nor postmortem report was prepared in his presence. PW5 Dr. SK Krishna Sr. Resident AIIMS deposed on behalf of Dr. Sagar who examined the accused and exhibited the MLC dated 07.04.2014 of the accused. He stated as per MLC, accused was produced in muffled face and no fresh injury was seen on the person of the patient, however, there was old injury scar mark on the forehead lateral to the left eyebrow. PW19 Dr. Guru Ayyappa Jr. Resident AIIMS stated that he examined injured Kelvin, and exhibited his MLC and referred the injured to Department of Surgery for further SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 6 Of 44) management. PW26 Dr. Saroop K. Raj stated that on 25.03.2014, working as a Casualty Medical Officer who examined deceased and exhibited his MLC. Also, examined patient Kelvin and declared him unfit for statement. In cross examination stated that the history of assault was given by the accompanied police official who brought the injured and he has no personal knowledge of the assault.
Statement of police officials and other official witnesses
11. PW11 SI Rajinder Kumar stated that on getting information of the contents of DD No.6A on his mobile phone, he alongwith Ct. Anuj proceeded to Devli road near Relaxo Showroom and noticed blood lying near the aforesaid showroom, thereafter, proceeded to Trauma Centre AIIMS and collected the MLC of the injured. Injured Kelvin declared unfit for statement and after some time doctor declared injured osifo dead, and thereafter returned to the spot, however, no material witness met at hospital or spot. Thereafter, he alongwith senior officials visited the place of incident i.e. second and third floor of house no.A27 and also noticed several drops on blood on the way between Devli Road near Relaxo showroom to place of incident and also noticed blood lying on the floor in the room at Second floor and Third floor flats. Crime team was also called, thereafter, he prepared rukka and FIR was registered. During investigation blood samples were lifted, site plan of the track from Devli Road to the place of incident was prepared, site plan from where the injured was taken to hospital by PCR was also prepared, IO also prepared the site plan of the second floor and third floor where the stabbing took place, IO lifted handle of knife lying on third floor. Thereafter during investigation arrested accused Thierry at around 3.05pm on 25.03.2014 from the place near IGNOU beat, then recorded his disclosure statement, then recovered the blade of knife lying SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 7 Of 44) near the main gate of house no.A27 near one wooden box at instance of accused and noticed blood stains on the said knife.
12. In cross examination stated that he reached the spot at around 1am after receiving a call. He further stated that place of incident is 5 storeyed building consisting 15 flats, 56 persons were present when he reached and all were foreigners, however, he do not know whether IO noted their particulars or their statements were recorded or not. One foreigner Sarah disclosed about the party and the quarrel. The other persons also said that the quarrel took place in their presence. He further stated that it is correct that there were drops of blood on the second and third floor, and blood was not splashed. He further stated that it is correct that the blood was found oozed out on the road. He further stated that Ms. Sarah and other persons told him that incident had taken place at third floor and these public persons remained there till 9.30/10am. He further stated that second floor was not bolted and the occupant of third floor was also present there. The handle of the knife was lying out of the door of the flat at third floor. He further stated that he do not remember if the chance prints were lifted from the handle or not. The blood in gauge were lifted from second and third floor. Blood sample was not lifted from the road and the blood samples were given different identification marks. He further stated that distance between PNB Devli road and the spot is around 300400 metres and he accompanied the IO there but he do not know the purpose. He further stated that from there IO took them to IGNOU and from there the accused Theirry was arrested. Accused was wearing blue colour jeans pant but he do not remember about the shirt. He further stated that he alongwith accused reached at the spot at around 4.30pm, and recovery of blade of knife was effected at the instance of accused. The knife was got recovered by the accused on the left side of the wooden box on the ground floor near entrance of premises number SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 8 Of 44) A27. The knife was not visible before recovery. He further stated that he had not met Friday, occupant of third floor after completion of investigation. He further stated that he do not know whether accused had told him about any Shefford.
13.PW30 Inspector Ashok Kumar, Investigating officer of this case stated that on receiving the call during patrolling duty, reached at the spot and noticed blood lying near Mittal Timber store and the trail of blood followed upto the premises No.A27. After registration of FIR, inspected the spot and called mobile crime tream, photographs were taken, chance prints were lifted and he was handed over the crime scene inspection report. He noticed one knife handle at third floor, blood on a table at third floor, some whisky bottle and beer bottle at third floor. He also lifted blood from the second floor and from the table at third floor. In search of accused reached PNB Devli road, where he got the information, thereafter with staff reached IGNOU gate, then on pointing out of informer apprehended accused, his disclosure statement was recorded, at his instance one blade of knife recovered underneath a wooden box lying near entry gate of premises no.A27, prepared its sketch, thereafter seized the blue jeans pant of the accused, then brought the accused to police station and sent him for medical examination. Dead body of the deceased was identified, post mortem was conducted. During investigation also took blood sample of the other injured, recorded the statement of the injured Osasu Kelvin, then moved an application to take the blood sample of the accused. Accused refused to participate in the TIP. At the instance of Insp. Mukesh Kumar scaled site plan was prepared.
14. In cross examination stated that at spot he came to know that PCR took the Nigerians to the hospital. He also stated that no lady by the name of Sarah was SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 9 Of 44) present there and made inquiries from the occupants of the building, however, nothing concrete came and he cannot tell the exact number of the Nigerians present in that building, however, one David, Mathew and Friday used to reside there, but they had not met him. He further stated that he inquirred from the occupants of each floor however nothing concrete came out and no person told him about the incident. He further stated that he could not trace Friday, Mathew and David, and also cannot say whether belongings of Friday, Mathew and David were there in the flat or not. He further stated that he is not aware whether any person came to collect their belongings or not and, had not seen the third floor flat. Crime team reached at the spot at around 2.30am and remained there till 4.30am. Chance prints were taken in his presence, however, no report was prepared. He further stated that no chance prints were taken from the handle of the knife, however handle of the knife was there. He further stated that sample of blood of accused was taken but cannot tell about the blood group of the accused, blood was not lifted from the road. He again stated that Sarah was in the party, therefore, he interrogated her, however, could not come across the women, with whom the quarrel had taken place. He further stated that Sarah met him in the month of June, however, he cannot tell the exact date. He further stated that PW Sarah told him about Theirry, Kelvin and Osifo Omigie. He further stated that he lifted the blood samples from second and third floor but he does not know to whom the said blood sample belongs. He further stated that he received the secret information at about 2 am, and met secret informer at Devli road near PNB, and at that time was searching the accused. He further stated that secret informer followed them to IGNOU gate but he does not know, how secret informer reached IGNOU gate but they went in their private zypsy, and accused was found present on main gate. He further stated that he does not know whether the blood on the knife is of deceased or injured. No public witness was joined at the time of recovery. The place of SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 10 Of 44) recovery of knife is near the entry gate. The knife was underneath the wooden box and not lying in open, and they had not taken the photographs of the place of recovery of knife. Accused shirt was not having blood stains however, wearing pant was having blood stains. He further stated that they had not done any inquiry with Shafford. He further denied the suggestion that the blood lying on the second and third floor was of the accused and not of the deceased, as there was a fight between Michael and accused on third floor and accused was hit by broken whisky bottle by Micheal. He also denied the suggestion that quarrel had taken place between the injured and the deceased, and also denied the suggestion that injured and deceased gave stab injuries to each other because of money dispute, and accused had not caused injuries to them. He further stated that after arrest accused was taken to hospital for his medical examination and was found to have suffered minor injuries. He further stated that he had not called Michael to the police station as he was not found. He further stated he can't say whether the blood group over the recovered pant/jeans of the accused carrying accused blood group. He denied the suggestion that accused was apprehended from the house of Shafford where he had gone to take treatment. He further denied the suggestion that the shirt of accused was also seized however not shown because containing blood stains of the accused. He also denied the suggestion that Michael was also called but later let off.
15. PW15 Ct. Manish Kumar deposed to have accompanied IO Inspector Ashok Kumar and noticed bloodstains, on the road and on 2 nd and 3rd floor at the house no. A29, Khanpur Extension. However, no eye witness met him. Crime team offiicals and photographer were also called. He further stated that during investigation IO lifted the bloodstains from 2nd and 3rd floor, crime team also inspected the scene and photographer took the photograph prior to seizing the SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 11 Of 44) handle of knife and blood etc. He further deposed that accused was arrested at the pointing out of secret informer and after recording the disclosure statement, blade of the knife was recovered at the above said house near wooden khokha. In cross examination, stated that at timber store, Devli Road, blood was found on the road. No lady by the name of Sarah was present at the spot. He also stated that they checked the house of the accused but not checked the other houses. Crime team reached at the spot at 6 a.m. and handle was found at 3 rd floor in front of the gate. Blood sample were not taken from road. He further stated that he do not remember whether the secret informer was male or female , however accompaning them to IGNOU but was not in their vehicle and when accused was apprehended, he was wearing blue colour jean and tshirt. No mobile was recovered from him and he did not meet secret informer at IGNOU. The bloodstains knife was recovered from the left side of the door behind the wooden box. No person was called from the flats. Blood was also found on the pant of the accused. He further stated that he do not remember whether chance prints were lifted from the spot or not, and bloodstained knife was not visible as was kept behind the wooden box. He further stated that he cannot say whether accused was taken to the house of some other person namely Shafford.
16. PW8 HC Brij Mohan Duty Officer exhibited the DD entry and the FIR.
PW9 ASI Ram Niwas finger print proficient of the crime team stated that he along with Ct. Sandeep ( photographer) reached the spot at 2AM on 25.3.14 and made efforts to trace chance prints and 7 chance prints were developed by him from the beer can and whiskey bottle. In cross examination stated that no public persons were present at that time and he remained at the spot from 2am to 4.30am. Landlord was also not present. He also stated that one handle of knife was also there but he did not mention the handle in his report and denied SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 12 Of 44) suggestion that he has not menitoned the same because the handle was not found at the spot. PW10 Ct. Dharamveer stated that he was on duty at PCR along with ASI Ramesh Chand and Driver / HC Rajender, and while patroling took two injured Nigerians to AIIMS Trauma Centre namely Kelvin and Osifo. In cross examination stated that he reached at AIIMS Trauma Centre at about 1.05am and one injured was declared dead at about 1.20am. PW12 Ct. Sandeep is the crime team photographer stated that he took 20 photograph of the spot i.e. 2nd floor and 3rd floor and one handle of the knife was lying at 2 nd floor. In cross examination stated that he reached at spot at 2am and remained there till 4pm. One Nigerian lady was also present but he does not remember whehter her statement was recorded or not. He further stated that he had not told in his statement to IO that he had seen the handle of the knife and broken bottles at the spot. He further stated that there were 21 photograph in the judicial file and 20 negative are available in the file. PW13 Ct. Rakesh is the witness who accompanied IO with accused to the court on 07.04.2014 and also to AIIMS hospital where the blood on gauze of the accused was taken by the doctor. In cross examination stated that accused was produced around 5pm in court, and reached the hospital at around 12.30pm and remained there for an hour. PW14 Ct. Jaswant accompanied IO to the hospital from where sealed parcels containing viscera etc were collected. PW16 Ct. Anil Kumar also associated in investigation on 07.04.2014 with the IO, and stated the accused was produced before the court of MM, thereafter accused taken to AIIMS for the purpose of blood samples. In cross examination stated that police custody from the court was taken at around 11.30am and accused was produced before the court back at around 4.30 / 05.00 pm. PW17 Ct. Rajesh Kumar deposited the sealed parcels to FSL, Rohini. PW18 Ct. Nisha stated that on 17.06.2014 she joined investigation with IO, and IO examined and recorded statement of SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 13 Of 44) one lady Sarah @ Bawura. PW20 ASI Ramesh Chand / PCR official who took the injured to the hospital. PW21 Ct. Om Parkash also deposited exhibits at FSL. PW22 HC Jeet Pal Singh is the witness of handing over the blood samples of injured Kelvin by the doctor at AIIMS. PW24 Ct. Anuj Dev accompanied SI Rajender Singh to the spot. PW25 Ct. Ravi Dutt delivered the copies of FIRs to area magistrate and other officers. PW27 Inspector Mukesh Kumar Jain preapred scaled site plan. PW28 Ms. Gurmohina Kaur, MM, conducted TIP proceedings, however accused refused to take part. PW29 HC Om Prakash Malkhana Moharar exhibited the malkhana register. PW31 Ms. Manish Upadhyay, Asstt. Director, Biology, FSL, Rohini exhibited the biological and scrological reports. PW32 Shri Santosh Tripathi exhibits the viscera report which gave negative test for common poison. PW33 Dr. Mukesh Kumar gave the subsequent opinion after seeing the viscera report about the cause of death which remains the same.
17. Accused in his statement u/s. 313 CrPC denied all the incriminating circumstances put to him, however raised the plea that at 2 nd and 3rd floor, his blood was lying because he had a fight with Michael and there is no blood either of injured Kelvin or deceased on 2 nd and 3rd floor. He further stated that he made no disclosure statement, and the truth which he had disclosed to the police was not written by the police. He further stated that he was arrested from his friend house Shafford as he had gone to take his assistatce from him because of the injuries on his face due to the fight between him and Michael. He further stated that no blood stained broken blade was recovered at his instance, and on his pant, his own blood was there. He further stated that injured Kelvin known to him prior to the incident, therefore, refused TIP, and he wanted to implicate him, and want to save himself as he himself killed SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 14 Of 44) deceased. He also stated that no fight took place between him and injured Kelvin and deceased, however had fight only with Michael, and IO made false story. He further stated that because of the fight between him and Michael, he sustained some injuries on his face and at that time Kelvin and Osifo were consuming alcohol, and he went to Shafford house to assist him for going to doctor. He further stated that his friend want to come to the court but IO threatened them to faslely implicate. Furthermore, he is in custody for last more than two years so not in touch with them.
18. This accused also examined himself as DW1 in his defence. In his testimony stated that on 24.03.2014, he was in his house at 2 nd floor and Michael came to his house and took his knife from his kitchen, then he ran after him to take back the knife and caught hold him at 3rd floor where male and female were dancing and consuming alcohol, when he tried to get the knife from Michael, he took whiskey bottle and hit on his forehead, thereafter suffered an injury on his forehead and left hand finger, however unable to overpower Michael and ran to 2nd floor leaving the knife with Michael. Thereafter he called his friend Shafford to assist him to the hospital but he sent his friend Peter then he left the bloodstains shirt at home and went to hospital, but no one was found at the hospital, thereafter, Shafford took him to his house where he was given the first aid and in the following morning, police officers knocked the door, accompaning five Africans, then taken to PS Neb Sarai. He further stated that his bloodstains jean and shirt was taken into custody. He also saw Michael and Sarah who were witness in his charge sheet at PS. He further deposed that he pointed out towards Michael but police did not pay any heed. IO took him to the hospital and thereafter his blood samples were taken. IO also told to the doctor not to indicate his injuries in the medical documents. He further stated that he also stated in the court that he sustained injuries due to fight with SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 15 Of 44) Michael. He also stated that it was his blood which was lying on 3 rd and 2nd floor. In cross examination stated that he does not know Mr. Friday residing at 3rd, floor, and also does not know Osasu Kelvin and Omigie Osifo, however stated that there was birthday party at night and Mr. Friday was celebrating the same. He denied to have attended the party. He also denied section that he assaulted injured and deceased. He however admitted his signature on the exhibits as well as on his disclosure statements. He further deposed that he did not inform any authority in writing about what he deposed in his examination in chief. He further stated that it is correct that he is aware that Kelvin sustained injuries and Osifo died in the said incident. He further stated that he was arrested by the police on 25.03.2014, volunteered that police apprehended him at about 8.30/9.00 am, and denied suggestion that he caused injury and ran away and later on, blade of knife was recovered from his house. He further denied that blood lying on the 3rd floor or 2nd floor was of injured Kelvin or Osifo. Thereafter, after allowing of his application u/s 311 Cr.P.C exhibited his MLC dated 26.03.2017 prepared during police custody.
Material Exhibits
19. Ex PW8/A is DD no. 6A dated 25.3.2014, Ex PW8/B rukka, Ex PW8/C is FIR. Ex PW8/D is endorsement on the rukka, Ex PW8/E is the certificate u/s. 65B. Ex PW11/D is the rough site plan of place from where the injured was picked up by the PCR van, Ex PW11/C is the rough site plan of the track from where from the injured was picked by PCR and to the place of incident i.e. House No. A27. Ex PW11/E is the rough site plan of the 2nd floor, Ex PW11/F is the rough site plan of the 3 rd floor. Ex PW27/B is the scaled site plan of the path / road from where the injured was taken to hospital by PCR and the place of occurrence i.e. A27. Ex PW27/A is the scaled site plan of 2nd SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 16 Of 44) floor and 3rd floor. Ex PW30/M is the PCR form. Ex PW9/A is crime team report. Ex PW11/I is arrest memo of the accused. Ex PW11/J is personal search memo of accused. Ex PW11/K is the disclosure statement of accused. Ex PW11/L is pointing out memo of the blade of knife at the instance of knife. Ex PW15/A is the seizure memo of clothes of injured Kelvin and sample seal. Ex PW15/B is the seizure memo of clothes of deceased and sample seal. Ex PW11/A is the seizure memo of blood taken from the floor of the 2 nd floor. Ex PW11/B is the seizure memo of blood taken from the table kept on the 3 rd floor. Ex PW11/N is the seizure memo of blade of knife at the instance of accused. Ex PW11/O is the seizure memo of pant of the accused. Ex PW14/A is seizure memo of clothes of deceased, plastic container containing swab, blood in gauze and sample seal. Ex PW22/A is the seizure memo of blood sample of injured Kelvin and sample seal. Ex PW30/C is the seizure memo of viscera and sample seal. Ex PW13/A is the seizure memo dated 07.04.2014 of blood sample of the accused and sample seal. Ex PW11/G is the seizure memo of the handle of the knife. Ex PW13/H is the seizure memo of Sternum and sample seal. Ex PW11/H is the sketch of the handle. Ex PW11/M is the blade of the handle. Mark X is the MLC of the deceased showing 4cm X 1cm deep stab wound in left postereo lateral chest and incised wound 5cm X 2cm in left forearm lateral aspect, Mark Y and Ex PW19/A is the MLC of the injured Kelvin showing stab injuries in mandible region, left stapula and right lower back and injuries are opined to be simple in nature. Ex PW5/A is the MLC of the accused dt. 07.04.2014 showing no fresh injury and old injury scar on the forehead lateraly to left eye brow. Ex. PW30/G is the request for TIP. Ex PW30/F is TIP proceedings showing accused refused to participate in it. Ex PW30/B his request to conduct postmortem. Ex PW4/A postmortem report of SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 17 Of 44) the deceased. Ex PW1/P is the rent agreement of the accused. Ex PW1/PB is the letter of identification of accused. Ex PW12/A1 to A20 are the photographs of the place of incident along with negatives Ex PW12/B1 to B20. Ex PW30/O is the subsequent opinion dt. 29.04.2014 given by Dr. Mahesh Kumar. Ex PW30/N is the viscera report. Ex PW29/A (colly) copy of malkhana entries. Ex PW19/A is road certificate. Ex PW13/A and Ex PW13/B are biological and serological reports. Ex.DW1/A is MLC dated 26.03.2014 of accused showing 3cm laceration over forehead, 2 cm laceration at middle finger, abrasion about 0.2 cm over the lip.
20.Ld. Counsel for the accused submitted that the accused is falsely implicated in this case and he had not caused any injury to injured PW2 Kelvin and to the deceased. Ld. Counsel submits that in fact in the said incident, accused was injured by one Michael and blood was found lying on the 2nd & 3rd Floor was of the accused and not of the injurded or deceased. Ld. Counsel submits that accused was injured by one Michael by hitting broken bottle on his head. Ld. Counsel submits that the blood found on the spot, is found to have been matched with the blood group of accused. Ld counsel submits that the testimony of PW2 Injured Kelvin on the face of it is not reliable. Ld counsel stated that the injured PW2 had not stated about cause of quarrel between the accused and lady, and why the accused will interfere and hit the injured and the deceased due to quarrel with the said lady. Ld counsel submits that injured even not told the name of that lady in his cross examination.
21. Ld counsel submits that recovery of handle is alleged to be material incriminating circumstance against the accused, however the said recovery of handle is not shown in the Crime Team Report. Ld counsel submits that there is contradiction in the statement of the witnesses regarding the fact from where SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 18 Of 44) the said handle was recovered. Ld counsel submits that some witness stated that the handle was recovered from the 2nd floor and other from the 3rd floor. Ld counsel submits that the incident stated to be caused while the Birthday party was going on and there was number of witnesses to the said incident, however police had not examined a single witness. Ld counsel submits that the non examination of those witnesses categorically suggests that police had concealed the material circumstances which led to the said incident. Ld counsel submits that the statement of PW2 cannot be believed because he has neither given the name of assailiants to the PCR officials nor to the doctor who has prepared their MLCs. Ld counsel submits that the the blood found near the Relaxo Showroom was not lifted. Ld counsel submits that the said blood was not lifted because the incident primarily occurred at that place and the blood of the deceased was at that place and not at the 2nd or the 3rd floor.
22.Ld defence counsel further submits that the recovery of the blade is all false and fictitous. There is inconsistencies in the statements of the police officials over the arrest and recovery of the blade of the knife. Ld counsel submits that finger prints were not tried to be lifted from the handle of the knife as well as from the blade of the knife which suggest that the accused finger prints were not there on both these weapons. Ld counsel submits that the no public witness was joined during the seizure of handle as well as the blade of the knife. Ld counsel also submits that no subsequent opinion of doctor was taken over the blade of knife to suggest whether from the said weapon, the alleged fatal injury could be caused or not. Ld counsel submits that the length of the blade is shown to be 3.8 cm and the stab wound was around 3.1 therefore it is not clear that the said knife is not used, and it can be inferred that some third person who caused the injuries.
SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 19 Of 44)
23.Ld counsel has relied upon the judgment of Abdul Sattar Vs State 2009 (4) JCC 3179 for impeaching the credibility of witness on the ground that PW2 had not told the name of the assailiants to the PCR officials nor informed the name of assailants to the doctor at the time of preparation of MLC. Ld counsel submits that recovered jeans is not incriminating as PW2 even not stated that the accused was wearing the said jeans at the time of incident (relief upon Shauqat Ali Bechen Vs State 2008 (2 ) Crimes 121 (Delhi).
24. Ld counsel submits that the statement of PW2 is contrary to the medical evidence as PW2 stated that injury on the right side whereas as per MLC and postmortem report, injury on the right side, therefore it can be inferred that PW2 was not present at the spot (relied upon Devatha Venkata Swamy @ Rangaiah Vs Public Prosecutor High Court of A.P., Arjun Pawar Vs State of Maharashtra 2016 (4) JCC 2590. Ld counsel further submits that when the name of assialiants is not given to the police or to the doctor then it suggests that the injured does not know the name of the assailiants (relied upon Kripa Shankar Vs. State 2009 (4) JCC 2541). Ld counsel submits that recovery of knife and blood stained pant is all fictituous ( relied upon Sanjay Vs State 2009 (3) JCC 2337 and Jahid Lambu Vs State 2009 (3) JCC 1360). Ld counsel submits that no public witness was joined at the time of recovery of knife, therefore the recovery cannot be relied upon (relied upon Sita Ram Vs State 1997 JCC 637, Dalbir Vs. State of Haryana 1992 (2) CCC 477). Ld counsel submits that there is no indication in the testimony of PW2 regarding the number of blows given, therefore this witness cannot be believed (relied upon Maheshwari Prasad Vs State 2013 (1) CCC (Delhi) 515. Ld counsel further submits that PW2 also cannot be believed as not given the name of the assialiants to the doctor (relied upon Kishan Pal Vs State 2004 (2) JCC 1149). Ld counsel submits that weapon is not shown to the doctor therefore, cannot be SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 20 Of 44) held to be incriminating (relied upon State Vs Khem Singh 2015 (1) JCC 578, State vs Mohd Akhtar 2006 (2) JCC 662). Ld. Counsel further submitted that as per PW2 the injury was caused on the right side of the chest whereas as per MLC injury was on the left side. Ld. Counsel that when there is a discrepency between the ocular and medical evidence Court has a discretion to reject the ocular evidence. (relied upon Khambam Rajareddy vs Public Prosecutor Andhra Pradesh 2006 (3) JCC 1775 and Abdul Rahim vs State of Delhi 2012 (7) LRC 7 (Delhi) (DB). Ld. Counsel further submits that prosecution not explained the injuries on the head of accused found to have suffered in the incident which creates clear doubt over the prosecution story. Ld. Counsel further submits that mere presence of the accused and the deceased by itself cannot be strong incriminating circumstance (relied upon Kamla Devi vs State 2012 (2) JCC 1457). Besides oral arguments, written arguments also filed by accused.
25. Ld. Additional PP for the State on the other hand stated that the injured witness PW2 has given the clear and cogent version about the incident. This witness is not found to have been impeached during the crossexamination on the aspect of injury suffered by him and the deceased, inflicted by the accused through sharp weapon. Ld. Addl PP submits that there are corroborating evidences on the record, i.e. recovery of the broken handle and the knife blade at the instance of the accused. Ld. Additional PP for the State further submits that the defence as raised by the accused is on the face of it not believeable. Ld. Addl. PP stated that this defence is neither put to PW2 in his cross examination. Ld.Addl. PP also submits minor discrepancy and omissions are bound to happen, however on the basis of these discrepancies, statement of injured witness can't be ignored. Ld. Addl. PP submits that prosecution able to prove its case beyond reasonable doubt.
SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 21 Of 44)
26. Arguments heard. Record perused.
27. Marshalling of evidence is the skill of picking up various pieces of evidence on an particular disputed point and putting them together so as to analyse them for arriving at a conclusion. Therefore, when proceeding to marshall evidence, a judge must have clear picture of various disputed points regarding which the evidence has to be marshalled. Unless the judge has a clearcut idea about the points on which he has to appreciate the evidence, the exercise of marshalling of evidence can never be properly performed. The expression 'appreciation' means analysing and assessing the worth, value of particular piece of evidence. Once a piece of evidence is found to be relevant admissible, the judge is required to examine its quality by skillfully analysing it, however there is no emperical formula to appreciate the evidence. In appreciating evidence the approach of the court must be intergrated and not truncated or isolated meaning thereby infrences should not be drawn by picking up an isolated statement from here or there; rather the evidence on a particular point should be examined in the background of remaining statement of witness as well as other evidence, documentary or oral (Ref Harijana Thirupala Vs. Public Prosecutor, High Court of A.P, 2006(6) SCC470). This implies that the finding should be based on objective assessment of the evidence and not on conjunctures and surmises. Keeping this perspctive in mind the court has to appreciate the evidence.
28. The circumstances primarily which this court has to appreciate in the present case are as follows:
(i) The testimony of the injured eye witness PW2 Osasu Kelvin.
(ii) The recovery of broken handle of the knife found at the spot.
(iii) The recovery of the blood stain blade of knife at the instance of accused. SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 22 Of 44)
(iv) The effect of various omissions, discrepancies, lapses and concealments on the part of prosecution.
(v) The defence of the accused and its effect.
29. Before appreciating the testimony of the injured eye witness and the incriminating recoveries, let me first appreciate the omissions, discrepancies and the concealments made during investigation as well as in evidence. The present incident ocurred when a brithday party was going on in the flat of one Mr. Friday at the third floor of the house no.A27 in question. It is alleged that at around 12:30 am in the intervening night of 24/25 March 2014 some hot altercation took place between the accused and one lady, however to cool down the said altercation PW2 interfered due to which scuffle took place thereafter accused went to his flat at second floor and brought one kitchen knife thereafter inflicted injuries to PW2 and when deceased Osifo Omigie interfered to save him then accused gave a fatal blow on his chest, and during infliction of the said injury the knife broken into two pieces separating the handle from the blade, however handle fallen on the spot and accused ran away. Thereafter, injured PW2 alongwith the deceased rushed out to the flat, and came on the main road where they got PCR van which taken them to the hospital, and at hospital PW2 is found to be unfit for statement and deceased Osifo Omigie died to the injury suffered at around 2:00 am in the night.
30. The intimation regarding the present incident recorded at around 12:55 am in the police station Neb Sarai vide DD no.6A dated 25.03.2014 (Ex.PW8/A) pursuant to which PW11 SI Rajinder and PW24 Constable Anuj reached the Relaxo Showroom on main Devli Road from where the injured were found to have been taken to the hospital by PCR. There, as per rukka (Ex.PW8/B), they noticed large quantity of blood lying on the road. Then, SI Rajinder went to the hospital found injured Kelvin unfit for statement and injured Osifo declared SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 23 Of 44) dead during treatment, thereafter came back to spot and tracked the trail of the blood to the second and third floor of house no.A27. However, as per rukka 'no eye witness' was found, therefore on the basis of the MLCs and the blood found the spot present FIR under section 307/302 IPC was registered.
31. The rukka was prepared at around 3:35 am and the FIR was registered at around 4:00 am. Incident allegedly to be reported by 12:55 am. As per crime team report Ex.PW9/A the crime team also remained at the spot i.e. at third floor and second floor of the Flat from 2:30 am to 4:30 am. Now one thing pertinent to be noticed that at the time of incident, a birthday party was going on of one Mr. Friday attended by 15 to 20 persons including the accused and the injured, however as per rukka police did not find any eye witness of the incident before the registration of the FIR at 4:00 am. PW13 IO/Inspector Ashok Kumar also stated in cross examination that he made inquires from the occupants of each floor on the spot but nothing concrete came out and no person told him about the incident. PW15 Constable Manish another material police witness also stated that no eye witness met him. But PW11 SI Rajinder who has prepared the rukka (Ex.PW8/B) in his cross examination stated that after they reached the spot at around 1:00 am after receiving the call, and the place of incident is five story building consisting of 15 flats and they met 56 persons at flat all were foreigner however, he do not know whether IO noted their particulars or their statements but one foreigner Sarah disclosed about the birthday party and the quarrel, the other persons (foreigners) who were members of the birthday party also told that the quarrel took place in their presence. This witness in cross examination also stated that Ms. Sarah and other public persons i.e. foreigners told that the incident had taken place at third floor and these public persons remained there almost till the time they remained there. This raises suspicion over the manner of recording of the FIR SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 24 Of 44) by the police. The police explicitly concealed the factum of meeting of the eye witneses in rukka and not recorded FIR on the statement of the eye witnesses who noticed the factum of quarrel but recorded just on the basis of MLCs.
32. One thing more noticable that PW11 in his cross examination stated that one Sarah told them about the incident however police not recorded his statement U/s 161 Cr.P.C at the first instance but after 82 days of the incident. This witness is examined as PW23 but not supported the prosecution version. The recording of FIR without recording the statement of the eye witnesses found to be material concealment. From the circumstance of non recording of the statement of the eye witnesses despite availability prior to registration of FIR, suggests that police do not want to bring the unconcoted, natural or fresh version of the incident.
33. Furthermore, surprisingly police recorded the statement of the injured witness PW2 u/s 161 Cr.P.C first time on 05.04.2014 i.e. after 10 days of the incident. As per MLC Ex.PW19/A of injured Kelvin is found to have suffered simple injuries. It is also not the case of the prosecution that the delay in recording the statement of the injured after 10 days of the incident is due to the fact that his medical condition is not fit. MLC Ex.PW19/A of PW2 and Mark X of the deceased shows that both are in conscious condition when arrived at hospital, however, an endorsement is there on the MLC of PW2 at around 2:25 am that he is unfit for statement. Police has not placed any other treatment documents of PW2 on record. PW2 in his testimony stated that he remained admitted in the hospital till 29.03.2014, and he also stated that in the morning of 25.03.2014 he came to know that the deceased died. This suggest that this injured is in complete senses in the morning of 25.03.2014 but police has not tried to record his statement on the morning of 25.03.2014 or thereafter, SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 25 Of 44) however chooses to record his statement u/s 161 Cr.P.C belatedly on 05.04.2014. It is surprising that police is investigating this case for more than 10 days without recording statement of any eye witness despite their availability. There is nothing on record which suggests when again police went to record his statement till he remained admitted in hospital.
34.Another noticeable circumstance which could be inferred from investigation that without knowledge of the incident through any witness, police arrested the accused on the same day i.e. 25.03.2014 at around 03.00 pm on secret information from IGNOU Gate. The witnesses to the arrest of the accused are PW30, PW11, & PW15. Now, it is pertinent to appreciate whether the manner of arrest of the accused as projected by the prosecution is reliable or not. IO/PW30 Insp Ashok Kumar stated that he went in search of accused at PNB Devli Road where he got the information that the accused involved in the present case is present at IGNOU gate thereafter, he alongwith the staff reached at the IGNOU gate and at the pointing out of the informer, apprehended the accused. In cross examination stated that he received a secret information at Devli Road at around 02.00 pm, when he was searching the accused that accused could be found at IGNOU gate. Thereafter, they went to IGNOU gate but he does not know how the secret informer reached at the IGNOU gate, however in the later part, stated that he reached on the bike. PW11 in examination in chief, nowhere stated that they were searching the accused at PNB Devli Road where they got the secret information about the presence of accused at IGNOU gate, however in cross examination stated that they reached PNB Devli Road at 11.00 - 12.00 noon and from there IO took them to IGNOU but does not know whether IO was called there by someone and also does not know if someone had met IO there, but he alongwith the IO, Ct. Manish and one another person went to IGNOU, and that third person SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 26 Of 44) pointed out the accused at IGNOU Road. This witness nowhere stated that the third person is a secret informer. There is complete inconsistency in the timings of meeting of the secret informer. It is incomprehensible if the secret informer will inform at around 1112 noon or at 02.00 pm, then the accused will remain at IGNOU Gate till the time of arrest i.e. 03.00 pm. PW15 stated that he is not aware that whether the secret informer was male of female. Furthermore, no departure and arrival entry placed on record in this regard. In these circumstances, the arrest of the accused in the manner relied upon by the prosecution do not appear to be credible.
35.After arrest of the accused, the police recovered the blade of knife at the instance of the accused. As per seizure memo Ex.PW11/N, the blade of the knife was recovered at the instance of accused from the left side of the wooden box kept near the entry gate of Building No. A27, Khanpur Extension. PW11 SI Rajender also stated that the blade of the knife was alse recovered from the left side of the wooden box whereas PW30 IO stated that the blade of the knife was recovered from underneath the wooden box. PW15 Ct. Manish other witness stated that the blood stain knife was recovered from the left side of the door behind the wooden box. There is inconsistency in the statements of all these three witnesses regarding the place of recovery of blood stained knife. The knife is recovered from the building in question i.e. A27, however no occupant of the flats, owner of the flat (PW1) or any other public witness joined during the said recovery. IO/PW30 categorcally stated that he has not joined any public witness at the time of recovery of blood stained blade of the knife. Neither any site plan of recoery nor any photographs were also taken. Furthermore, these discrpencies appears to be material from the factum that PW2 who is the injured witness to the incident, nowhere in his testimony stated that accused ran away from the spot with the blade of the knife. It also appears SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 27 Of 44) unnatural that after infliction of injuries accused will run with blade leaving handle at the spot. Thus, the circumstance of recovery of the blade of the knife at the instance of accused, do not appear to be reliable and cannot be held to be incriminating. Therefore, the circumstance of finding of blood stains on the knife as per serological report is of no consequence.
36. Ld. Counsel for the accused vehemently argued that police during investigation not taken any opinion from the doctor regarding the use of said blade of knife in inflicting the injuries to the accused. Ld. Counsel submits that this subsequent opinion is not taken deliberately by the police because the said blade of knife was not used in the offence. Ld. Counsel in this regard relied upon the judgment of Hon'ble Delhi High Court in case titled "State Vs. Khem Singh, 2015 (1) JCC 578". Admittedly, no subsequent opinion was taken from the doctor over the fact whether the said blade of knife could be used in inflicting injuries to PW2 and deceased. It cannot be inferred that the said omission is due to oversight because the IO has taken subsequent opinion after obtaining the viscera report from PW33 Dr. Mukesh Kumar who opined after seeing the viscera report that the cause of death remains the same. The knife at that stage could also be shown to the said doctor but it appears IO not find it proper to take such opinion. Thus, this omission could be inferred to be deliberate as IO might be thinking that the doctor could have given different opinion. Furthermore, in absence of such opinion even if recovery is assumed to be proved cannot be held to be incriminating.
37.The Crime Team was called at the spot after the incident and as per Crime Team Report Ex.PW9/A, chance prints were lifted from beer and whiskey bottles at the spot, however the Crime Team Report do not suggest that one handle of the knife was also found at the spot. The prosecution case is that after SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 28 Of 44) infliction of the injuries, the accused ran away from the spot leaving the handle of the knife at the spot as it was fallen. This suggests that the handle of the knife was fallen on the 3rd floor inside the room, however as per the photographs and the site plan prepared, handle of the knife was found outside the gate of the 3rd floor. PW1 Harwinder Singh and PW12 Ct. Sandeep, the photographer of the Crime Team stated that the handle of the knife was recovered from the 2nd Floor whereas PW11 & PW13 & PW15 stated that handle of the knife was recovered near the gate of the 3 rd Floor. There is clear inconsistency over the place of recovery of handle of the knife. This discrepancy is more material due to omission of the fact that no finger prints were lifted from the handle of the knife. It is also not the case of the prosecution that this handle of the knife was touched by any other person, therefore they had not taken the finger prints. This is the material evidence which could connect the accused with the crime with more certainity that he had used the said weapon/knife. It is also not the case of the prosecution that accused or somebody else has cleared the finger prints from that knife.
38. From the testimony of PW2, it is clear that accused ran leaving the handle of the knife at the spot. The non lifting of the finger prints from the handle of the knife, is major flaw in the prosecution case. It is pertinent to mention at this stage that as per prosecution case, the blood stained blade of the knife was recovered at the instance of the accused. This recovery itself suggests that accused must have taken the blade stained knife alongwith him in his hand. Firstly, it is very difficult to carry the blade of the knife in this scenerio. Secondly, police had also not chosen to lift any finger prints from the blade of the knife. Thirdly, PW2 nowhere stated that accused ran away taking blade of knfe. This creates doubt not only on the manner of recovery of the blade of the knife used in the crime but also over the fact whether said knife was infact SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 29 Of 44) used in the said incident.
39.As per prosecution case, blood stains were found at 3 rd floor, 2nd floor as well as on the track leading to the main road and also on road infront of Mittal Timber shop. The blood stains at the 2 nd & 3rd floor as per photographs as well as the site plan, are in the nature of droplets, however as per photograph in front of the shop of Mittal Timber Traders, blood stains found scattered in splash (large quantity). Rukka Ex.PW8/B also suggests that large quantity of blood was found in front of that shop. Police lifted the blood stains only from the 2nd & 3rd floor and not from the track or from the road infront of the said shop. Crime team report (Ex.PW9/A) also do not suggest that track/way and the place in front of Mittal Timber Traders was inspected.
40. As per prosecution case, the stabbing incident took place on the third floor room. No incident took place at 2nd floor. As per Ex. PW 11/B, the blood stains in the room at 3rd floor appears to be only on the table, where the alleged incident stated to have taken place but the blood stains noticed in the shape of droplets only. The blood is not found in the shape of splash and not at all appears to be in huge quantity whereas blood on road in front of Mittal Timber shop found to be lying in large quantity. Prosecution not tried to explain how the blood in large quantity in a single patch found on the road in front of Mittal Timber traders and not at the third floor where the incident taken place or on the track leading to the road, which is stated to be around more than 230 mtrs (as per scaled site plan Ex.PW27/B) from third floor. The blood stains are also found on the second floor, but prosecution not tried to explain how the blood stains came at second floor room. It is also not the case of the prosecution that the deceased or injured suffered injuries at second floor. Prosecution even not lifted the blood stains from the track or from the road in front of Mittal Timber SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 30 Of 44) Traders. These lapses of the investigating agency somehow created suspicion whether infact the incident taken place at third floor or at other places also.
41. In this background, it is pertinent to refer to the injuries suffered by the accused in the said incident. At the outset, it can be inferred from prosecution case as presented before the court (ie through body of chargesheet and statement of witnesses) that accused has not suffered any injury in the said incident. As per prosecution case, the accused was medically examined on 07.04.2014 after obtaining a police remand from the court for around 45 hours when accused was produced before this court during judicial custody. The MLC (Ex.PW5/A) of the accused dated 07.04.2014 suggest no fresh injury seen and it is also recorded that old injury scar mark on the forehead lateral to the left eyebrow. Thus the prosecution tried to present the case before the court that in the said incident accused did not suffer any injury. PW2 the main injured witness also not stated about the fact that accused suffered any injury in the said incident. However, it is pertinent to notice that after arrest on 25.03.2014, the accused was taken by the police to the AIIMS trauma center for his medical examination on 26.03.2014 and as per MLC (Ex.DW1/A) the accused found to have suffered 3 cm laceration over forehead, 2 cm laceration in the middle finger, abraison approximately 0.2 cm over the lip. PW30 IO Inspector Ashok Kumar in cross examination admitted that the accused also suffered minor injuries in the said incident and his medical examination was conducted. Admittedly, the injuries suffered by the accused is in the same incident and injuries on head in its very nature required to be explained. Prosecution is obliged to explain the said injuries.
42. Leave aside explaining the said injuries, investigating agency to obviate said MLC took police remand of the accused on 07.04.2014 for conducting his SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 31 Of 44) medical examination. It appears, investigation agency took the said remand to show that the accused suffered no injuries in the said incident and conspicously concealed the MLC which was prepared after his arrest on 26.03.2014. This MLC is filed as photocopy (even original MLC not placed on record) but not exhibited through doctor, even the doctor namely Ms. Akansha Tiwari from AIIMS who prepared this MLC is not cited as prosecution witness, however Ld. Defence counsel exhibited the same in the defence evidence, otherwise, this court will not be in a position to appreciate the factum of injuries suffered by the accused in the said incident. The effect of nonexhibition of this MLC alongwith other concealments as discussed above also suggest that police not tried to present before the court entire facts and circumstances. Fair investigation is fundamental right of accused. Investigating agency is obliged to present facts both in favour and against the accused (See: Babubhai Vs. State of Gujarat, 2010 (12) SCC 254, V.K. Sasikala Vs. State, 2012(9) SCC 771 and Parampal Singh Gandhi Vs. State of Bihar, case no. 993/2016 dated 28.10.2016).
43. Now in this background, it is pertinent to appreciate the testimony of the injured witness PW2. The other eye witness PW23 Sarah have not supported the prosecution case. Nothing came in her testimony which could be used for substantiating prosecution or defence case. PW2 in his examination in chief stated that he alongwith the deceased attended the birthday party of his friend Friday, and the said party was attended by 1520 persons. At around 12.30 in the night, hot talks took place between the accused and one lady, whose name he does not know, however tried to settle the matter, then scuffle took place between him and the accused, thereafter accused came down stairs to his flat and come back with a knife and attacked him with knife on his right check and also on the back with intention to eliminate him, and when his friend deceased SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 32 Of 44) Omigie came to save him, he was also attacked with knife on his right chest ribs with intention to eliminate him. However, knife broken into two pieces and Omigie started bleeding from his wound, thereafter accused ran away leaving the handle of the knife at the spot as it was fallen, then he alongwith deceased came on the main road, and saw the police who taken him to the hospital and in the hospital doctor tried to find what happened but he unable to tell because of his condition then fell unconcious. Thereafter, he remained under treatment till 29.03.2014, however in the morning of 25.03.2014, he came to know that his friend has died. This witness in examination in chief stated that the accused was having some hot altercation with one lady, however not narrated what kind of hot altercation was going between the accused and the said lady. He further stated that he does not know the said lady and in cross examination, stated that he does not know how many persons present in the party known to the deceased. He also stated he do not know the cause of hot arguments and also do not know whether the said lady was known to his friend. He also stated he does not know whether the said lady came alone or with someone. In cross examination also stated that accused was not carrying any knife at the time of altercation, and also admitted that there was no enmity between the accused and the deceased. He further stated in cross examination that he tried to run away when the accused assaulted him and the accused first assaulted him thereafter assaultted Omigie. He further stated in cross examination that all the persons present in the party moved away and he also does not know who called 100 number.
44.This injured witness though narrated about the stab injury inflicted by the accused over him and the deceased but not stated what was the cause of assault. As per the version of this witness, the cause of injury is the altercation between the accused and one lady but he conveniently not named the lady. It SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 33 Of 44) appears somewhat suspicious why the injured PW2 is not naming the lady. This incident took place in a birthday party attended by 1520 Nigerian Nationals, it can be presumed that all the Nigerial Nationals present in the party know each other. The interference by PW2 in the altercation between the lady and the accused also suggest that he must be knowing the lady but PW2 conveniently stated that he do not know the said lady. This witness also not disclosed that the accused also suffered injuries while the birthday party was going on during that incident. Nothing came in his testimony which could suggest that how the blood stains came at second floor or in huge quantity in front of Mittal Timber Traders on road. This witness is found to be conscious as per MLC Ex.PW19/A when brought to the hospital, however this witness has not named the assailants. The MLC of the deceased and this witness do not show the name of the assailants. As per MLC of the deceased the deceased was hit by some unknown assailant. PW10 Ct. Dharamvir and PW20 ASI Ramesh Chand PCR officials who took them to hospital also not stated that these injured has named anybody. On the other hand, MLC of deceased, Mark 'X' shows injury by unknown assailants. PW26 Dr. Saroop stated he written history on the basis of what is told by police official who brought him. MLC show PW20 Ramesh Chand brought him. Therefore, it could be inferred that injured might have stated to PW20 that they were caused injury by unknown person.
45. Ld. Addl. PP stated that the testimony of this witness is credible because this witness has described the incident cogently and furthermore having no enmity with the accused, therefore there is no occasion for this witness to falsely implicate the accused. However, as discussed, this witness has not stated the cause of altercation not even stated that the accused also suffered injuries in the said incident. This witness has also not stated how the blood stains came on the SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 34 Of 44) second floor. The testimony of this witness is too narrow to decipher the incident. It is not expansive or broader in nature to explain the entire incident. Admittedly, accused has not gone to attend the party to cause injuries to these two persons. Nothing came out from the testimony of this witness why the accused had injured them. Mere saying the scuffle took place due to hot altercation, do not appear to be sufficient explanation, particularly in view of the fact that the police after the incident have made enquiries from the eye witnesses as discussed above, but not disclosed outcome, on the contrary concealed this fact. Now, question arose whether this witness falls under the category of wholly reliable witness and conviction could be based on his testimony alone.
46.At this stage, it is also pertinent to look at the defence of the accused. Accused also examined himself in defence evidence as DW1. Accused in his defence stated that on the said date, he had not participated in any birthday party, however one Michael came to his house and went straight away to his kitchen from where took the knife and ran away, thereafter, he chased him and caught hold him at 3rd floor where male and female were dancing and consuming alcohol, and when he tried to take back the knife from the Michael, Michael took the whiskey bottle from the table and hit it on his head due to which he sustained injuries on his forehead and left hand finger. But as he unable to over power Michael came back to 2nd Floor leaving the knife with the Michael and his blood fell on the ground of the 3 rd Floor as well as on the 2 nd Floor, thereafter he called his friend Shefford but he did not come and sent his friend Peter thereafter he left his blood stained Tshirt in his flat and went to hospital but no one was found at the hospital, thereafter he alongwith Shefford went to his house at Khanpur Extension, one and half kilo meter from his house where he was given first aid and in the morning at around 08.30 - 09.00 am, police SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 35 Of 44) official knocked the door accompanied with 5 Africans then taken to PS Neb Sarai where they seized their blood stained jeans as well as shirt from his house and took the signatures on the blank sheets.
47.This accused in his defence evidence took another stance that he was assaulted on the said day by one Michael when he ran after him to take back his knife. This accused nowhere stated why Michael has taken the knife from his room and even if he has taken the knife, why the altercation between him and Michael took place on this small issue of knife. It is also not clear what prompts Michael to hit on his head on this trivial issue. Accused also not put his defence to PW2 that he suffered injuries form Michael during the said incident. Accused only confronted PW30 IO Ashok Kumar with this defence. Therefore, this defence of the accused do not appear to be believable. Accused in his defence as well as in cross examination of PW2 stated that it was the mutual fight between PW2 and the deceased due to which both suffered injuries and deceased died due to those injuries. However, this explanation do not appear to be at all plausible. But the fact remains that accused suffered injuries in the said incident as already discussed. PW 30 IO Insp. Ashok Kumar also strengthens this fact in cross examination by stating that accused suffered injuries in the incident. The injuries on the head cannot be said to be minor injury because the injury on the head in the same incident has potential to raise inference that incident might have taken place in some other manner. This head injury also creates suspicion over the genesis of incident which alleged to be only on the basis of hot talks between the lady and the accused. Though the defence of the accused do not appear to be probable, however this defence do not in any way strengthen the case of the prosecution.
48. It appears that accused as well as the prosecution trying to conceal from the SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 36 Of 44) court the real manner in which the incident took place. But, it is fundamental principle of criminal jurisprudence that the onus of proving everything essential to the establishment of the charge against the accused lies on the prosecution. The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused.
49. In Sarwan Singh Rattan Singh V. State of Punjab, AIR 1957 SC 637, it was held by the Apex Court that in criminal cases mere suspicion, however, strong, cannot take the place of proof. The court must also take into consideration that an accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. It was held : "considered 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 legal, reliable and unimpeachale evidence befoe an accused can be convicted".
50. As per the case of the prosecution, after the arrest of the accused, the accused wearing jeans pant containing blood stains was seized vide seizure memo Ex.PW11/O. Accused also admitted the said fact but stated that he was apprehended from the house of his friend Shefford and thereafter his jeans pant was seized having his own blood stains. Though the defence of the accused is not found reliable, however the part of his testimony that he suffered the injuries in the said incident could be relied upon irrespective of the fact that the manner of injury do not appear to be probable. This fact is also duly corroborated by cross examination of IO though stated accused suffered minor injuries. As per MLC Ex.DW1/A, the accused suffered laceration injuries on the head as well as on middle finger and lips, therefore it is probable that the blood stains of the accused might have fallen on his jeans. As per serological SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 37 Of 44) report, the blood stains over the jeans pant is of AB group, accused during proceedings also requested to ascertain his blood group and the jail authorities sent the report dated 09.11.2016 that on examination blood group of accused found to be AB positive which is also duly mentioned in order dated 22.11.2016. PW2 also nowhere in his testimony stated that during the said incident accused also suffered injuries, his blood or blood of deceased fallen on accused clothes. Therefore, the recovered jeans pant of the accused having blood stains could not be held to be incriminating against the accused, however this recovery also substantiates that this accused also suffered injuries in the said incident.
51.Accused refused to participate in the judicial TIP proceedings, but this circumstance can't be read against the accused as the injured PW2 and the accused were acquainted with each other prior to the incident. PW2 also named accused in his statement u/s 161 Cr.P.C.
52.Ld. Defence counsel raised plea that the testimony of PW2 cannot be relied upon as inconsistent with the medical records. Ld. Counsel submits that PW2 stated that knife injury was caused on the right side of the chest of the deceased whereas as per MLC Mark X injury is on left side of the chest. However, this kind of discrepency is not material because the left and right change from the perspectives of the observer and the observed.
53.PW3 Ajeet Kumar Tiwary, the comission agent in his testimony stated that he arranged accommodation to the accused as well as to one Mr. David, Mr. Friday, Mr. Mathew Paul and Mr. Nabisibi at House No. A27. PW1 Harwinder Singh, owner of the house also stated that one flat at the 2 nd floor was rented out to the accused and the flat in front of the flat was rented out to Nabisibi and three flats at 3rd floor were rented out Mathew Paul, David G and SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 38 Of 44) Mr. Friday Alugvebebhotor. Both these witnesses confirmed that the nigerian national were residing in the said building. PW2 also stated that the birthday party of Mr. Friday in which Mr. Friday was also present. Though, PW11 SI Rajender not named the persons whom he met at the spot, who narrated the incident, but stated that 56 foreign nationals were present and IO made inquiries from them and one foreigner lady Sarah and other public persons i.e. those foreigners told about the party was going on when the quarrel had taken place in their presence. 56 eye witnesses were found to the police just after incident regarding the quarrel, however police not made them the witness in the present case. PW30/IO in his cross examination on the other hand, though admitted David, Mathew and Mr. Friday used to reside there, but stated they did not met him and he enquired from the occupants of each floor but nothing concrete came and no person told him about the incident. IO thus appears to deliberately concealing the factum of knowledge about the incident from the independent eye witnesses on the day itself. IO/PW30 on the other hand gave a bald explanation in cross examination, without making any efforts, that Mr. Friday, Mathew and David are not traceable. This omission coupled with other concealments, omissions and lapses on the part of the investigating agency creates doubt over the manner of comission of incident.
54. To sum up, the following omissions, deficiencies, concealments and anomolies noticed in the present case :
(i) despite the presence of eye witnesses and their knowledge about the incident, no statements of eye witnesses were recorded prior to FIR or just after FIR. On the contrary, rukka mentioned "no eye witness was found" showing police deliberately not recorded the statement of the eye witness. This omission has a potential to give rise an inference that the SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 39 Of 44) incident might have taken place in some other manner and genesis of the incident might be different.
(ii) incident took place at third floor, however there is no explanation how the blood stains also found at second floor.
(iii) blood stains found in droplets at third floor on table, however found in large quantity on the main road in front of the Mittal Timber Trader shop, but prosecution could not explain how the large quantity of blood found on the main road.
(iv) accused suffered injuries in the said incident duly corroborated by his MLC Ex.DW1/A, however investigating agency not tried to deal the said aspect in the body of chargesheet and thereafter in the statement of witness recorded u/s 161 Cr.P.C, even the doctor who prepared MLC (Ex. PW 1/A) not cited as prosecution witness, furthermore avoided this fact by not exhibiting the said MLC during evidence. Injuries are found to be on the head of the accused, however not explained. This concealment somehow create doubt over the manner of happening of the incident and the genesis of the incident.
(v) no name of assailant mentioned in the MLC despite the fact that the injured PW2 and even the deceased were conscious while their journey to hospital and when reached the hospital, on the other hand it is mentioned unknown person.
(vi) PW2 found to have suffered simple injuries but his statement was recorded after more than 10 days of the incident.
(vii) no finger prints were lifted from the handle of knife recovered from the spot, furthermore there is inconsistency as discussed regarding the recovery of the handle.
SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 40 Of 44)
(viii) no finger prints were lifted from the blade of knife. The recovery of the blade of knife do not appear to be credible as discussed. Even PW2 not testified that accused has run away with the blade of knife alongwith him after the incident.
(ix) delay in recording the statement of eye witness PW3 Sarah of about 70 days though the inquiries were made from her as per testimony of PW11 on the day of incident itself.
(x) non lifting of blood stains from the track leading to the main road or from the main road in front of Mittal Timber Trader shop where the blood was lying in huge quantity.
(xi) no subsequent opinion from the doctors taken over the use of the recovered blade of knife in causing the said injuries.
55. The prosecution case is entirely dependent upon the testimony of PW2, however as discussed PW2 appears to had been concealing all attending circumstances in his deposition regarding the name of lady, genesis of dispute, concealment of injuries suffered by the accused, how the blood stains came on second floor, thereafter why there are blood in droplets on third floor and why not in large quantity, how the large quantity of blood found on the main road. Furthermore, his statement is challenged through other circumstances ie non lifting of the finger prints, non recording of the statement of the eye witnesses found at the spot after the incident and other lapses and concealments as already discussed. But it is settled law that the testimony of injured witness is not to be overlooked because of the deficiencies and drawbacks in the prosecution case unless there appears miscarriage of justice. Delhi High court in case titled "Mukesh Singh Vs. State 2014 SCC Online Del. 912, after dealing with various cases of apex court held ".......the injury to the witness is an inbuilt guarantee of his presence at the scene of crime and unless threre are SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 41 Of 44) strong grounds for rejection of his evidence, his testimony should not be easily disbelieved or discarded. Thus, the deposition of the injured witness should be relied upon unless there are compelling reasons for rejection of his evidence on the basis of some major contradictions and discrepancies threin (Refer:
Balraje @ Trimbak Vs. State of Maharashtra (2010) 6 SCC 673: Jarnail Singh (supra)".
56. However, on overall appreciation of evidence, merely on the testimony of PW2 shrouded with various concealments, deficiencies, drawbacks etc as discussed this court is not in a position to decipher the manner in which the incident took place and the genesis of the incident. Therefore, at this stage it is pertinent to notice the cardinal principles /parameters which the court has to keep in view while appreciating the evidence.
(i) That the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defense version by proving its case.
(ii) That onus of the prosecution never shifts.
(iii) If two views are possible on the evidence adduced by the prosecution, one pointing to the guilt of the accused and other to this innocence, the Court should adopt the latter view favorable to the accused. (Harender Narain Singh v. State of Bihar, 1991 SCC (Cri) 905).
(iv) Fouler the crime, greater the degree of Proof. Dhananjoy Chatterjee vs. State of W.B., I(1994) CCR 89 (SC)=1994 SCC (Cri.) 358. (para 7) SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 42 Of 44)
(v) Suspicion, howsoever strong, cannot take the place of legal proof. These is a long distance between may be true and must be true. Shankarlal Gyarsilal Dixit v. State of Maharashtra, 1984 SCC (Cri) 487 (para 33)
(vi) It is also settled law that prosecution cannot rely on the weakness or falsity of defense to sustain the guilt of the accused. It must succeed on its own evidence. It has been held in State of U.P. v. Ram Swamp and Anr., 1974 SCC (Cri) 674 (paras 9,21) the Court can find a plea in favor of the accused without accused having taken that plea. The defense need not lead evidence to prove defense plea. Prosecution evidence and facts emerging out of the case be relied upon by the defense for the purpose.
(vii) In Tika and Ors. v. State of U.P., 1974 SCC (Cri) 67 (para 6), it has been reiterated that the case of the prosecution has to be tested independently of the defense version. Falsity or weakness of defense version does not establish the case of the prosecution.
(viii) The prosecution or the Court cannot reconstruct a story different from the one propounded by the prosecution to convict the accused on that basis i.e. the prosecution must prove beyond doubt the very story it alleges and nothing else. Reliance in this regard is placed on Bhagirath v. State of M.P., 1975 SCC (Cri) 742 (paras 14 & 15). On the same point is Dinesh v. State of Haryana, I (2002) CCR 76 (SC)=JT 2001 (10) SC 144 (Para 16)
(ix) In Koli Trikam Jivraj v. State of Gujarat, 1969 Crl.L.J.409 (paras 15, 16 and 18), it has been held that suggestions put in crossexamination are no evidence at all against the accused and on the basis of such suggestions, no inference can be drawn against the accused that he admitted the fact referred to in the suggestions.
SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 43 Of 44)
57. It is settled law that fouler the crime, the greater the degree of proof required and the suspicion however strong cannot take place of legal proof and there is a long distance between may be true and must be true. The concealments and the lapses as discussed above has the ability to displace the prosecution case over the manner of comission of offence and the genesis of the incident, therefore merely on the basis of the restrictive statement of PW2, the prosecution unable to prove its case beyond reasonable doubt. Hence, accused Thierry Chukwuyem A is acquitted of all charges by granting benefit of doubt. Accused Thierry Chukwuyem A directed to execute bail bonds under section 437A Cr.P.C. in the sum of Rs 75,000/. After compliance of section 437A Cr.P.C, file be consigned to record room.
Announced in the open court (Ajay Kumar Jain)
On 06th day of July, 2017 Additional Sessions Judge02
South District, Saket Courts
New Delhi
SC No. 19/14, State vs. Thierry chukwuyem A, FIR No. 239/2014, PS Neb Sarai (Page no. 44 Of 44)