Delhi District Court
Jagdish vs . State Of U.P 2005(12)Slc 425' Relied By ... on 15 September, 2012
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-04, NORTH-EAST DISTT.
KARKARDOOMA COURTS, DELHI
Unique I.D. : 02402R0747232008
S.C. No. : 45/2010
FIR No. : 244/08
Under Section : 302/34 IPC
Police Station : Bhajan Pura
In the matter of
STATE
Versus
1. SAJID S/o Mohd. Arif
R/o D-26, Gali No. 2, Noor Ilahi, Delhi ........................Accused
2. FURKAN S/o Abdul Rehman
R/o D-20/21, Gali No.1, Noor Ilahi,
Delhi (sent up for trial before JJB).
Date of Institution : 29.09.2008
Date of committal : 10.11.2008
Date of reserving judgment : 11.09.2012
Date of pronouncement : 15.09.2012
J U D G M E N T
1. This charge-sheet has been filed against accused Sajid and Furkan for facing trial for commission of offences under Section 302/34 IPC.
2. The facts of the prosecution case in brief are that an information was received on 30.06.2008 at about 2.44 a.m., vide DD No. 45-A, on which, ASI Dev Raj alongwith Const. Ram Naresh went to the spot i.e. FIR No. 244/08, P.S. Bhajan Pura 1 of 22 Pages near House No. D-53, Gali No. 2, Noor Ilahi, Delhi, where he found blood lying at the spot. He came to know that injured Nawab @ Raja had already been taken to the GTB Hospital. Thereafter, IO/ASI Dev Raj alongwith Const. Naresh went to the GTB Hospital. IO collected the MLC of injured Nawab, who was declared 'unfit for statement' by the doctors. One witness namely Mohd. Imran, who brought the injured in GTB Hospital, met him in the hospital. IO recorded his statement which is as under:
"I am residing at the above address with my family and doing the embroidery work. Today dated 30.06.2008, I was sleeping along with my family at my house. At about 2 a.m. in the night, I heard someone knocked at the door and called me from my name. I immediately opened the door and found that my brother-in-law Nawab @ Raja was standing in injured condition at the door of my house. On inquiry, Nawab @ Raja told me that the thieves had stabbed him with knife and on saying this, he fell down and became unconscious. On this, I raised alarm and people from the neighborhood gathered there. My elder brother-in-law namely Akbar who lives nearby at D-95, also came there and he informed the police and thereafter I and Akbar took the injured to GTB Hospital in a TSR."
3. On the basis of his statement, FIR U/s 307 IPC was registered. ASI Dev Raj went to the spot and prepared site plan, lifted the blood and seized the same vide seizure memo. He got the photographs of the place of occurrence taken. He also recorded the statement of eye witness namely Akbar s/o Yamin which is as follows:-
FIR No. 244/08, P.S. Bhajan Pura 2 of 22 Pages "On the night intervening 29/30.6.2008, I was sleeping on the roof of my house. I heard some noise and when I came down stairs, I saw that Sajid and Furkan, whom I knew prior to the incident, had stabbed my brother with knife. On hearing my noise, both of them fled away from there."
4. On 30.6.2008, an information was received regarding the death of deceased Nawab vide DD No.48A at about 5.45 p.m. and thereafter the investigation of the present case was handed over to Inspector Dalbeer and an offence u/s 302 IPC was found to be made out. He got the postmortem on the dead body conducted. IO/Inspector Dalbeer arrested accused Sajid on the identification of eye witness Akbar. On 2.7.2006, accused Sajid led the police party and pointed out the place of occurrence and made a disclosure statement. Thereafter 14 days police custody remand for accused Sajid was obtained from the court. On 8.7.2008, IO Inspector Dalbeer arrested accused Furkan who also pointed out the place of occurrence and made a disclosure statement. On 9.7.2008, accused Furkan led the police party to his house at D-21, Gali No.1, Noor Ilahi and got recovered a knife which was used in the commission of offence. After the completion of the investigation, charge-sheet was filed against the accused persons.
5. Vide a separate order dated 22.5.2010, accused Furkan was declared as juvenile and supplementary charge sheet was filed against the accused Furkan before Juvenile Justice Board and now he has been acquitted by Juvenile Justice Board.
6. My Ld. Predecessor, vide order dated 11.05.2009, charged accused Sajid for offence punishable U/s 302/34 IPC, to which, he pleaded not guilty and claimed trial.
FIR No. 244/08, P.S. Bhajan Pura 3 of 22 Pages
7. The prosecution in support of their case examined as many as 15 witnesses.
8. The prosecution examined following material witnesses:-
i) PW-1 Mohd. Imran is the witness took the injured Nawab (his brother-in-law) alongwith his elder brother-in-law namely Akbar to GTB Hospital . He proved his statement Ex.PW1/A. He also identified the dead body of Nawab @ Raja in mortuary of GTB Hospital and after postmortem received his dead body vide receipt Ex.PW1/B.
ii) PW-2 Sh. Mohd. Islam deposed that in the year 2008, his neighbour Ikramuddin went to him and told to him that his mobile phone had been lost and requested him to call at 100 number. He called the police at 100 number. Thereafter he did not know what had happened. He did not support the case of the prosecution and was declared hostile.
iii) PW-3 Mohd. Akbar is the eye-witness of the incident. He also identified the dead body of his brother Nawab in the hospital vide his statement Ex.PW3/A. He also stated that accused Sajid was arrested on his pointing out from MTNL Park, Yamuna Vihar, Delhi. He is also the witness of disclosure statement made by accused Sajid. He is also the witness of seizure memo Ex.PW3/C regarding seizing of clothes of the accused Sajid by the IO.
9. The prosecution also examined following formal witnesses :
i) PW-4 SI E.S. Yadav stated that on the intervening night of 29/30.6.2008, he was called by the IO at Gali No.2, Noor Ilahi, Bhajan Pura, Delhi and found blood in front of H. No. D-53 in FIR No. 244/08, P.S. Bhajan Pura 4 of 22 Pages street No.2. He inspected the spot and prepared the scene of crime report Ex.PW4/A.
ii) PW-5 Const. Mahavir was the photographer and as per the instructions of the IO, he took six photographs of the spot from different directions which are Ex.PW5/P1 to PW5/P6. He also proved the negatives of the same.
iii) PW-6 Dr. A.K. Gupta, proved the MLC of patient Nawab Ex.PW6/A, which was prepared by Dr. Ashar, Jr. Resident.
iv) PW7 H.C. Raj Kumar proved DD No.45A Ex.PW7/A which was recorded by him on the night intervening of 29.30.6.2008 at about 2.44 a.m. and handed over the same to ASI Dev Raj for inquiry. He has also proved the copy of FIR Ex.PW7/B which was recorded by him on the basis of Rukka Ex.PW7/C. He also proved the DD NO.48A Ex.PW7/D which was recorded by him on the basis of a message received from Duty Const. GTB Hospital regarding death of injured Mohd. Nawab.
v) PW-8 S.I Mukesh Jain, Draftsman, prepared scaled site plan Ex.PW8/A, as per the request of the IO.
vi) PW-10 Const. Hawa Singh deposited the exhibits at FSL, Rohini on 27.8.2008 after receiving the same from MHC(M).
vii) PW-11 HC Bhopal Singh was posted as MHC(M) on 30.06.2008 at PS Bhajan Pura. He sent the parcels alongwith seal to FSL Rohini through Ct. Hawa Singh vide RC No. 88/21/08. He proved the copy of the relevant entries as Ex.
PW11/A.
viii)PW-13 Dr. Sumit Tellewar was posted as Asstt. Professor, GTB Hospital, Delhi on 30.6.2008 and conducted the postmortem on dead body of Nawab vide postmortem report FIR No. 244/08, P.S. Bhajan Pura 5 of 22 Pages Ex. PW-13/A. He also opined the cause of death "shock as a result of haemorrhage due to antemortem injuries to the heart and pulmonary trunk produced by sharp cutting / stabbing weapon and opined that injury no. 3 & 4 mentioned in the postmortem report, were sufficient to cause death individually and collectively in ordinary course of nature."
10. The prosecution also examined following witnesses of arrest and investigation :
i) PW-9 Const. Ashok Pathak was posted at PS Bhajan Pura on the intervening night of 29/30.6.2008 and was on patrolling duty in the area of Noor-E-Illahi, North Ghonda, Delhi and while patrolling when he reached at Gali No.2, at about 3 a.m., he found some public persons gathered and ASI Dev Raj alongwith Const. Ram Naresh were also present there. He also found blood lying in the street. ASI Dev Raj left him at the spot to safeguard the same and he alongwith Const. Ram Naresh went to GTB Hospital. At about 4.30 a.m., IO reached at the spot. Crime team was called, photographs of the place of occurrence were taken. In his presence, IO lifted blood sample, blood stained earth control and sample earth control from the spot and seized the same vide seizure memo Ex.PW9/A. He also proved the arrest memo Ex.PW9/B and personal search memo Ex.PW9/C of accused Sajid.
ii) PW-12 Inspector S.P. Rawat to whom the investigation of this case was marked on 17.7.2008. He examined the case file and found that the investigation of the case had already been completed and thereafter he prepared the charge sheet. On 27.8.2008, he recorded the statement of MHC(M) HC Bhopal Singh and on 23.9.2008, he also recorded the supplemenwtary statement of FIR No. 244/08, P.S. Bhajan Pura 6 of 22 Pages Imran and Akbar and proved the FSL report which was filed in the court as Ex.PW12/A and Ex.PW12/B.
iii) PW-14 SI Dalbir Singh was posted at PS Bhajanpura on 30.06.2008. On receipt of DD No.48A Ex.PW7/A he alongwith Const. Jitender reached GTB Hospital where he came to know that injured Nawab had expired during his treatment. He went to the spot where ASI Dev Raj handed over to him the Rukka and copy of FIR alongwith parcels and exhibits lifted from the spot. IO got the postmortem on the dead body conducted after filling up the form No. 25.35 Ex.PW14/A and handed over the dead body of deceased to his relatives vide receipt Ex.PW1/B. He also seized the articles handed over by the doctor containing the clothes of deceased and blood on gauze vide seizure memo Ex.PW14/B. He arrested accused Sajid on 2.7.2008 vide arrest memo Ex.PW9/B, conducted his personal search vide memo Ex.PW9/C and recorded the disclosure statement Ex. PW-3/B. He also proved the seizure memo Ex.PW3/C containing the clothes of accused Sajid. He also prepared the pointing out memo at the instance of accused Sajid and proved the same as Ex.PW14/C. He also identified the clothes of the deceased collectively Ex.PW3/Article-1.
iv) PW-15 ASI Dev Raj was the initial IO who on receipt of DD No.45A Ex.PW7/A on 30.6.2008 reached at the spot i.e. at H.NO.53, Gali No. 2, in front of Noor-E-Illahi, Delhi, alongwith Const. Ram Naresh and found blood lying on the road and came to know that injured namely Nawab @ Raja had already been taken to GTB Hospital. In the meantime Const. Ashok Pathak reached there and he left him at the spot to guard the same and thereafter he alongwith Const. Ram Naresh went to GTB Hospital, where, he obtained the MLC of injured Nawab. He recorded the statement of witness Mohd. Imran FIR No. 244/08, P.S. Bhajan Pura 7 of 22 Pages Ex.PW1/A and endorsed the same vide endorsement Ex.PW15/A and got the FIR registered and thereafter he returned back to the spot, summoned the crime team and got the scene of crime photographed, recorded the statements of Mohd. Imran and Akbar, prepared the site plan Ex.PW15/B at the instance of Mohd. Imran, lifted the exhibits from the spot i.e. blood sample, sample earth control and bloodstained earth from the spot and seized the same through seizure memo Ex.PW9/A and thereafter the investigation of this case was entrusted to Inspector Dalbir Singh.
11. After conclusion of the Prosecution Evidence, statement of accused Sajid was recorded U/s 313 Cr.P.C, wherein, he denied the Prosecution Evidence and claimed innocence.
12. Accused Sajid in his statement U/s 313 Cr.P.C. has stated that he had been falsely implicated by the police in connivance with the complainant as the complainant wanted to grab his house. The complainant was the secret informer of the police. He had not committed any offence. He did not make any disclosure statement and police obtained his signatures on blank papers forcibly.
13. I have heard submissions from Sh. Virender Singh Ld. Addl. PP for the State and Shri Naseem Ahmed, Ld. Defence counsel. I have also gone through the record.
14. Ld. Defence counsel has submitted that prosecution has relied on the testimony of PW-2 and PW-3. From the testimony of PW-2, it is clear that he had not witnessed the occurrence of the case. He admits that injured had arrived at the door of his house and knocked the door and only at that stage, this witness had noticed the injured. As regards PW-3 Mohd. Akbar, Ld. Defence Counsel has submitted that FIR No. 244/08, P.S. Bhajan Pura 8 of 22 Pages according to the prosecution, as per information received vide DD No. 45-A, dated 30.06.2008, the message was received that thieves have entered into the house near Gali No. 1 Masjid and there was no mention of name of accused. Rukka was prepared on the statement of Mohd. Imran PW-2 in which he had stated that at about 2.00 midnight, he heard the noise of knocking on which he opened the door and saw injured Nawab @ Raja who was related to him as brother-in- law (looser). On his asking, injured told that offenders have stabbed him with knife and thereafter, he became unconscious. Thereafter, public gathered and his other brother-in-law Mohd. Akbar PW-3 also arrived and they called the police on phone. Injured was taken by them in TSR to GTB Hospital where he was admitted. If PW-3 Mohd. Akbar had witnessed the occurrence, he would have disclosed about the alleged commission of offence by accused to PW-2 and name of accused would have been mentioned in the Rukka Ex. PW-1/A. However, name of accused was not mentioned. PW-3 in his testimony has taken the plea that he had seen the accused committing the offence and injured had confirmed the names of accused persons while he was being shifted in TSR to the GTB hospital but PW-2 could not hear conversation between him and the injured. This plea cannot be believed because while PW-3 was talking to injured, PW-2 was also traveling in the same TSR and would have certainly heard conversation, if any. As per the Rukka, injured was unconscious and could not have spoken any word with PW-2 and if there had been any conversation, PW-2 must have been aware of the conversation. Ld. Defence counsel further submitted that PW-3 Mohd. Akbar claims to have chased the offender upto about 70 meters and the distance remained same but could not catch the offender. He also stated that the offender escaped in the darkness and therefore, he could not have seen offender. PW-2 on the other hand, has stated that PW-3 FIR No. 244/08, P.S. Bhajan Pura 9 of 22 Pages had told him that injured Nawab had chased the offender whereas injured was not in a position to walk. Moreover, if the injured had disclosed the names of the offenders to PW- 3 Mohd. Akbar, name of the offender could have been disclosed to the doctor at GTB hospital but in the MLC Ex. PW-9/A, there is no mention of the offender and therefore, testimony of PW-3 does not inspire any confidence and cannot be believed.
Ld. Defence counsel has further submitted that as per prosecution case, Sajid was arrested on 02.07.2008 when his clothes were allegedly seized in the presence of PW-3 and IO but MHC(M) Head Ct. Bhopal Singh had deposed that he had received pullanda containing clothes on 30.06.2008 itself which was impossible and is a material contradiction and therefore, prosecution story cannot be believed. He also submitted that as per prosecution the clothes of the accused were got changed on 02.07.2008. As per PW-14 Inspector Dalbir Singh, mother of the accused was called by knocking the door of her house who handed over the clothes of accused to him whereas, PW-15 ASI Dev Raj has deposed that clothes of accused were hanging on the Khoonti of wall and Constable Ashok had lifted the clothes from Khoonti which is also a material contradiction which suggests that clothes of accused were not seized by the police on 02.07.2008. Ld. Defence counsel therefore, submitted that testimony of PW-3 cannot be believed and there is no corroboration of prosecution story by any other witness.
15. Ld. Defence Counsel has also submitted that co-accused Furkan was juvenile who had allegedly caused stab injury to the deceased and as per prosecution case, accused Sajid had caught hold the deceased. The main offender juvenile Furkan has been acquitted by JJB vide judgment dated 21.10.2011 and certified copy thereof has been FIR No. 244/08, P.S. Bhajan Pura 10 of 22 Pages placed on record. PW-3 Mohd. Akbar and IO PW-14 have admitted that the accused Sajid has not been involved in any criminal case till date nor there is any FIR for commission of any offence of theft against him in any Police Station. Ld. Defence Counsel has relied on the authority reported as 'Koppula Jagdish @ Jagdish as State of U.P. (2005) 12 Supreme court cases 425', wherein it is held that if the main accused has been acquitted for the offence then his associate cannot be convicted for the said offence by applying section 34 IPC and therefore it is prayed that accused Sajid also deserves acquittal and accordingly he be acquitted.
16. Ld. Addl. PP, however, has submitted that PW-3 Mohd. Akbar is a star witness of the prosecution and has fully corroborated the prosecution version. He has also proved the exhibits and documentary evidence and other witnesses have also fully corroborated the testimony of PW-3 Mohd. Akbar and the prosecution case has been proved beyond reasonable doubt.
17. In order to establish the commission of an offence of murder, it is incumbent upon the prosecution to prove following ingredients :-
(1) death of a human being, (2) that it was caused by the accused persons, (3) that the act by which the accused persons caused it was done:-
(a) with an intention of causing death; or
(b) with the intention of causing such bodily injury as the accused persons knew to be likely to cause the death of the person to whom the harm was caused; or
(c) with the intention of causing injury to the deceased person and the injury intended to be inflicted was FIR No. 244/08, P.S. Bhajan Pura 11 of 22 Pages sufficient in the ordinary course of nature, to cause death, or
(d) with the knowledge that the act was so imminently dangerous that it must, in all probabilities, cause death or such bodily injury as is likely to cause death and committed such act without any excuse of causing death or such injury as aforesaid.
18. In order to see whether the above ingredients have been established by the prosecution on record, the facts have to be appreciated. It has to be first seen whether the prosecution has been able to prove on record the death of injured Nawab @ Raja.
PW-6 Dr. A.K Gupta has proved the MLC of injured Nawab Ex.PW6/A which was prepared by Dr. Ashar. As per the MLC, the injuries on the body of injured were "a penetrating wound of 4 x 3 x 2 cm on left side of chest" and a "penetrating wound of 3 x 2 x 1 cm on the left side of chest", and the injury on the body of patient was caused by sharp edged weapon.
PW13 Dr. Sumit Tellewar, Asst. Professor, Army College of Medical Sciences, has proved postmortem report of deceased Nawab Ex.PW13/A. The cause of death in this case was "Shock as a result of haemorrhage due to ante-mortem injuries to the heart and pulmonary trunk produced by sharp cutting / stabbing weapon". The injury No.3 and 4 as mentioned in Postmortem report No.714/08, are sufficient to cause death individually and collectively in ordinary course of nature.
PW-3 Mohd. Akbar has deposed that he identified the dead body of his brother deceased Mohd. Nawab @ Raja vide his statement Ex. PW3/A. PW-1 has deposed that he identified dead body of his FIR No. 244/08, P.S. Bhajan Pura 12 of 22 Pages deceased brother-in-law Nawab @ Raja in the GTB hospital Mortuary and received his dead body vide receipt Ex. PW1/B. From the testimony of these witnesses, it has been proved on record that deceased Nawab @ Raja has died in this case.
19. The prosecution was further required to prove that the death of Nawab was caused by the accused Sajid and Juvenile Furkan. Ld. Defence counsel has placed on record certified copy of judgment dated 21.10.2011, passed by Juvenile Justice Board-II whereby the juvenile Furkan has been acquitted giving him benefit of doubt. The prosecution has cited and examined three public/material witnesses PW-1 Mohd. Imran, PW-2 Mohd. Islam and PW-3 Mohd. Akbar.
PW-1 Mohd. Imran has deposed that on 30.06.2008 at about 02.00 AM midnight while he was sleeping some one knocked his door and called him by his name. He opened the door and found his brother-in- law Nawab @ Raja standing in bent position in injured condition and he was having two stab injuries on his left side chest and told him that he was stabbed by thieves. The injured became unconscious and fell down. In his statement Ex. PW1/A, this witness had actually stated that the injured fell down in unconscious condition. He raised alarm, mohalla people gathered there and his brother in law PW-3 Mohd. Akbar who lives in his street also reached there. Someone called the police, he and Akram (sic) took Nawab @ Raja to the hospital in a TSR and got him admitted there. Police officials met them at the hospital and police recorded his statement Ex. PW1/A. After sometime, doctor declared injured Nawab @ Raja dead. From the testimony of this witness, it is established on record that he had not witnessed the injured being assaulted either by accused Sajid or by anyone else. It is pertinent to note that in cross-examination by Ld. Defence counsel, this witness denied the suggestion that deceased FIR No. 244/08, P.S. Bhajan Pura 13 of 22 Pages Nawab knocked his door on the date of fateful incident and he saw him in injured condition.
PW-2 Sh. Mohd. Islam has deposed that he does not remember the date but in the year 2008, his neighbourer Ikramuddin came to him and told him that his mobile phone was lost. He requested him to call at 100 number on which he made a call. No police came there and thereafter he slept and does not know what happened thereafter. Ld. Addl. PP with the permission of court has cross-examined this witness (PW-2) as he was resiling from his previous statement. In the cross- examination by Ld. Addl. PP, he denied having given any statement to IO in this case. This witness denied the suggestion put by Ld. Addl. PP that he stated to the IO in his statement that on 30.06.2008 while he was strolling on the road after taking dinner due to hot weather, he heard some noise on the street No. 2 and on this he went there and saw that Imran R/o D-53 Gali No. 2, Noor-E-Ilahi was coming from the street speedily and on this he asked him about the matter on which he told that thief had stabbed his brother-in-law Nawab and he was not having any telephone and that he told that he has to remove his brother in law to GTB hospital and on that he told him to bring TSR and he called police on 100 number from mobile number 9211155925. This witness denied the suggestion that his statement Ex. PW2/A was true and correct statement. He also denied the suggestion that he was won over by the accused and as such he was deposing falsely in the court. He also denied the suggestion of Ld. Addl. PP that he called the police at 100 number about stabbing of Nawab by thieves as stated by Imran to him. From the testimony of this witness it is established on record that he has resiled from his statement Ex. PW2/A and he is also not an eye-witness of commission of alleged offence.
20. PW-3 Mohd. Akbar has deposed that deceased Mohd. Nawab @ Raja FIR No. 244/08, P.S. Bhajan Pura 14 of 22 Pages was his younger brother. On the night intervening 29/30.6.2008, he was sleeping in his house and at about 2 a.m.(mid night) he woke up due to feeling of uneasiness, hence, he went to the roof of the house for strolling. In the meantime, he heard noise from the side of gali No. 2 and got down from the roof and proceeded towards gali No.2 and reached at the corner of gali No.2 where he saw the accused Mohd. Sajid, who was known to him previously and was residing in the same mohalla in gali No.2, holding his brother from behind and Furkan (facing trial before Juvenile Justice Board) who was also the resident of same locality, was giving knife blows to his brother. Furkan stabbed Nawab with knife on the chest and other parts of his body. On this, he raised alarm loudly. On seeing him, both the accused persons ran away from the spot. He chased them but they could not be apprehended and he returned back to the spot and took his brother to the GTB Hospital with the help of Imran in a TSR. After about 15 minutes of admission, he came to know that his brother had expired. He identified the dead body of his brother in the hospital vide his statement Ex.PW3/A. He further deposed that after about 3-4 days of the incident, he was called by the IO and he alongwith the IO and 3-4 police officials reached MTNL Park, Yamuna Vihar, Delhi, where they found that accused Sajid was sitting on the wall. He pointed out towards accused Mohd. Sajid and at his instance he was arrested and interrogated by the police. He further deposed that accused Sajid had made a disclosure statement Ex.PW3/B in his presence. He also deposed that the clothes of the accused Mohd. Sajid which he was wearing at the time of incident i.e. jeans pant of blue colour having embroidery work on the back right side pocket and shirt having red/pink colour having strips were seized by the police vide seizure memo Ex.PW3/C. In the cross-examination this witness admitted that he had no enmity with accused Mohd. Sajid and denied the FIR No. 244/08, P.S. Bhajan Pura 15 of 22 Pages suggestion that he was having previous enmity with accused that is why he has falsely implicated the accused. He denied the suggestion that he had not witnessed the accused Sajid holding his brother and Furkan (juvenile) giving knife blows to his brother. According to this witness, no public person gathered at the spot when he called the accused persons by their names. He voluntarily added that public persons started coming when he returned after chasing them. According to this statement of witness, no other public person was present on the spot till he returned back after his failure to apprehend the accused. He admits that he did not tell the police in his first statement that Imran was not able to hear conversation between him and his brother as his brother was speaking at a very low voice and Imran was busy in directing the TSR to be driven fast. He admits that he told the police about this fact in his second statement after 15 days. He admits that the clothes worn by the accused at the time of his arrest were sealed by the police after two days of his arrest vide seizure memo Ex. PW3/C. He denied the suggestion that the accused was not arrested at his instance from MTNL park Yamuna Vihar. This witness admits that arrest memo of accused Sajid does not bear his signatures. This witness also admits that he heard the voice of 2/3 persons while he was standing on the roof of his house and on hearing the same he thought that a thief had come who has been apprehended. He admits that at the time when he reached the spot no public person reached there apart from injured Sajid, accused Nawab and Furkan (juvenile). This witness claimed that he had seen the assailants from a distance of about 100 meters and he chased them upto 50 meters but could not apprehend them who fled away taking advantage of darkness. He deposed that house of accused Sajid is adjoining the house of his brother in law Imran. The distance between the house of deceased and place of incident is about 100 meters. He FIR No. 244/08, P.S. Bhajan Pura 16 of 22 Pages claims that his clothes got stained with blood but he did not handover his clothes to the IO as the IO did not ask for the same. He denied the suggestion that he did not take deceased Nawab to GTB hospital as such his clothes were not stained with blood, and he did not handover his clothes to the IO. According to this witness, IO had seized the clothes of accused Sajid on 02.07.2008. He denied the suggestion that he reached the hospital after receiving the information at his house and had not witnessed the incident. He claimed that his signatures were taken by the IO on the arrest memo of accused Sajid but the arrest memo Ex. PW9/B admittedly does not bear his signatures. He denied the suggestion that accused Sajid was not arrested in his presence nor his clothes were seized in his presence. He denied the suggestion that he was informer of police. This witness admits that there is no previous record of accused Sajid regarding the offence of theft. In view of arguments raised by Ld. Defence Counsel, veracity of testimony of this witness has to be considered.
21. This witness PW-3 Mohd. Akbar has deposed that he had witnessed the accused Sajid holding the deceased Nawab @ Raja in the night intervening 29/30.06.2008. while juvenile Furkan stabbed him. PW-1 Mohd. Imran has deposed that on 30.06.2008 at about 02.00 AM (midnight) someone knocked the door at his house and called his name and on opening the door he found that his brother in law Nawab @ Raja was standing in injured condition with two stab injuries on left chest and told that he was stabbed by thieves. Thereafter, he became senseless (unconscious) and fell down and PW-1 alongwith PW-3 Mohd. Akbar took the injured to the hospital in TSR. PW-1 Imran deposed that police officials met him at hospital and police recorded his statement Ex. PW1/A. As per PW-3 Mohd. Akbar, he identified the dead body of his brother in the hospital vide his statement Ex. PW3/A FIR No. 244/08, P.S. Bhajan Pura 17 of 22 Pages to Inspector Dalbir Singh, IO. Strangely, the IO did not record the statement of PW-3 Mohd. Akbar who claims to be eye witness of alleged occurrence. PW-3 has deposed that at the hospital the doctor had told him to arrange the blood as such he left the hospital to arrange the blood and returned back to the hospital after about 15 minutes and came to know that his brother has died. As per the MLC of deceased Ex.PW6/A, he was got admitted in the hospital on 30.06.2008 at 02.40 AM and has been shown admitted by this witness. However, ASI Dev Raj PW-15 has deposed that Mohd. Imran PW-1 met him at GTB hospital whose statement Ex. PW1/A was recorded by him and he made endorsement Ex. PW15/A. PW-3 Mohd. Akbar therefore, was not present when ASI Dev Raj on receipt of DD No. 45-A Ex. PW7/A visited the spot alongwith Ct. Ram Naresh where they came to know that injured Nawab @ Raja had already been taken to GTB hospital. PW-15 ASI Dev Raj therefore went to GTB hospital but PW-3 Mohd. Akbar was not present there. PW-14 Inspector Dalbir Singh, IO has deposed that On receipt of DD No. 48- A Ex. PW-7/D, he alongwith Ct. Jitender reached at GTB hospital on 30.06.2008 and came to know that injured Nawab has expired during his treatment. Thereafter, he alongwith Ct. Jitender reached at the spot where ASI Dev Raj alongwith police staff, complainant Imran Khan and Akbar brother of deceased met him. PW-3 was not available to IO/ASI Dev Raj PW-15 at GTB hospital and therefore, Rukka Ex. PW1/A was prepared by PW-15 on the statement of PW-1 Mohd. Imran who in the said statement had stated that his brother-in law Nawab @ Raja had told him that thieves had stabbed him and thereafter he fell down in unconscious state. Even though, PW-3 has claimed that he had witnessed the occurrence and had seen the accused at the time of commission of offence having seen the accused Sajid, it does not appeal to the reason that he did not FIR No. 244/08, P.S. Bhajan Pura 18 of 22 Pages disclose to PW-1 Mohd. Imran the name of accused.
22. Accused persons and deceased person, all are immediate neighborers. It is impossible that deceased would not have identified his neighborers as assailants. His remarks or utterances that, "thieves have stabbed me" brings the case of prosecution under the shadow of reasonable doubt in reaching the conclusion that the assailants were thieves.
23. PW-1 Mohd. Imran in his statement Ex. PW1/A had stated that thieves had stabbed the deceased and this fact was disclosed to him by the deceased himself. After disclosing this fact the injured Nawab had become unconscious and fallen down, and unless the prosecution is able to show that the injured had at any point of time regained his senses, it cannot be believed that he could have told or confirmed the names of the assailants to anyone. In case PW-3 Mohd. Akbar had actually seen the assailants committing the offence, his normal conduct would have been, that names of the assailants would have been disclosed by him to PW-1 Mohd. Imran, on whose statemen Rukka was recorded and endorsement was made by PW-15 ASI Dev Raj, while sending the Rukka for registration of the FIR, and on the Rukka, names of the accused persons were not mentioned because PW-1 was not aware of the names of the assailants. DD No. 5A, Ex. PW7/A reveals that the information to the District Control Room, North- East was given, that thieves have entered in a house in Noor-A-Ilahi, Gali No. 2, near Masjid. On that information, ASI Dev Raj PW-15 alongwith Ram Naresh, went to the place of occurrence and came to know that injured was shifted to GTB Hospital. Thereafter, DD No. 48-A Ex PW7D was also received at the PS whereby intimation about the death of injured Nawab was communicated. PW3 Mohd. Akbar was not present at the hospital FIR No. 244/08, P.S. Bhajan Pura 19 of 22 Pages where ASI Dev Raj PW-15 recorded the statement of Mohd. Imran PW-1. PW-3 has deposed that he has seen the assailants/accused persons stabbing the injured Nawab, and he also claimed that he knew the accused persons previously and therefore, his normal conduct would have been that names of the accused person should have been disclosed by him to PW1 who had accompanied him, while the injured was being taken to the hospital in TSR. It is very strange that PW3 claims that he already knew the accused persons, having seen them causing the injuries to the deceased but stated that while injured was being shifted to hospital in T.S.R, he inquired from his injured brother Nawab (now deceased) as to why accused Sajid & Furkhan had stabbed him, and in the cross-examination, he stated that he did not tell the police in his first statement that Imran was not able to hear the conversation between him and his brother as his brother was speaking in a very low voice and Imran was busy in directing the TSR to drive fast. If he had already seen the accused persons committing the offence, PW-3 himself could have easily told PW1 Md. Imran, that the accused Sajid and Juvenile Furkhan had committed the alleged offence but has not done so. Moreover, if he had any conversation with the injured in the TSR confirming the names of the accused persons, the PW1 Md. Imran would have definitely heard the conversation and would have come to know the names of the assailants. Since, the PW1 has deposed that injured Nawab after telling him that the thieves had stabbed him and he became unconscious, it cannot be believed that PW3 Md. Akbar could have any conversation with the deceased, as it is not the prosecution version that injured regained consciousness during his transit to the hospital. Testimony of PW 3 who Mohd Akbar does not inspire confidence, he is an interested witness, as such his testimony cannot be believed.
FIR No. 244/08, P.S. Bhajan Pura 20 of 22 Pages
24. Prosecution version does not inspire confidence because the arrest of accused Sajid has been shown to have been effected in the presence of PW-3 Md. Akbar on 2nd July 2008 but surprisingly the seizure memo of blood stained clothes of accused Sajid which he was wearing on the date of the alleged offence was shown to have been committed on 30.06.2008 for which no explanation has been furnished by the I.O. Moreover, the version of the PWs are also contradictory on the aspect of handing over of the seal after use, in as much as PW-14 Dalbeer Singh has deposed that the seal after use was handed over to PW15 ASI Devraj, where PW15 ASI Devraj in turn has deposed that he had handed over the seal after use to Ct. Ashok. However, PW9 Ct. Ashok has deposed that seal after use was handed over to ASI Devraj. No handing over memo or taking over memo of seal has been prepared. Besides that, as per PW 15, he alongwith Ct. Ashok & IO had gone to the house of accused at the time of recovery of clothes. The clothes of accused were hanging on the khoonti on the wall in the room and Ct. Ashok had lifted the clothes from the khoonti at the instance of the accused in his presence. PW14 Inspector Dalbeer Singh has deposed that mother of accused was called from her house and the clothes were given to him by the mother of the accused and he or any other police official did not enter the house of accused to collect the clothes. Therefore, the alleged recovery of blood stained clothes from the accused and his arrest at the instance of PW3 also appears to be doubtful. Admittedly PW-3 Md. Akbar is brother of deceased Nawab and is an interested witness. The testimony of PW3 Md. Akbar does not inspire confidence and cannot be believed. PW-1 Mohd. Imran and PW-2 Mohd. Islam have not identified nor alleged that accused Sajid had committed the alleged offence and they had witnessed the commission of alleged offence by accused Sajid, as such the prosecution has failed to prove FIR No. 244/08, P.S. Bhajan Pura 21 of 22 Pages on record that accused Sajid in furtherance of common intention with juvenile Furkan, caused the death of Nawab. Juvenile Furkhan has already been acquitted by the Juvenile Justice Board vide judgment dated 21.10.2011. The authority titled as 'Kappula Jagdish @ Jagdish vs. State of U.P 2005(12)SLC 425' relied by Ld. Defence Counsel, in my considered view is also appliable on the facts and circumstances of the case.
25. In view of the above discussion, the prosecution has failed to prove on record beyond reasonable doubt that accused Sajid has committed the alleged offence, as such the accused Sajid is entitled for benefit of doubt and acquittal. Accused Sajid is in JC, therefore, he be released from jail, if not required in any other case. He is directed to furnish Bail Bond and Surety Bond in sum of Rs. 10,000/- each as per section 437-A Cr.PC within a week. Case file be consigned to Record Room.
Announced in the open court (T.S. KASHYAP) today i.e. on 15.09.2012 ASJ-04/NORTH-EAST/DELHI FIR No. 244/08, P.S. Bhajan Pura 22 of 22 Pages