Delhi District Court
State vs 1. Shamim @ Gunga S/O Malkhan on 13 September, 2011
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 117/10
State Vs 1. Shamim @ Gunga S/o Malkhan
R/o H.No. 1678, I Block, Gali No. 20,
Sangam Vihar, New Delhi
2. Rahul Gupta S/o Shri Ram Babu Gupta
R/o G8A/101, Sangam Vihar, New Delhi
3. Zafar Khan S/o Nizam Khan
R/o Gudia Ka Makaan, near Goshiya Masjid
Gali no.18, Block K, Sangam Vihar, New Delhi
FIR No : 106/10
P.S. : Sarita Vihar
U/s. : 302/394/397 IPC
DATE OF INSTITUTION : 19.10.2010 (Initial date
of Institution: 28.07.2010 )
JUDGMENT RESERVED ON : 03.09.2011
DATE OF DECISION : 13.09.2011
State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-1)
JUDGMENT:
1. An information regarding stabbing incident near Sarita Vihar flyover was received and recorded vide DD no. 18A. On receiving the same, ASI Jagdish Chhillar alongwith Ct.Vinod reached spot and found one white coloured maruti swift car parked on the left side of the road and one slipper of injured found lying near car and at a distance of about 90 ft towards flyover blood was lying on the ground. During inquiry it was revealed that the injured was taken to Apollo hospital where deceased was found brought dead.
2. At spot one eye witness Manoj Pal met whose statement was recorded. He in his statement stated that on 10.04.2010 while he was going with his friends namely Sh Santosh Srivastav, Pradeep Rajora and Sh Vijay Kumar by their Alto car from Jasola to Sarojini Nagar they noticed at around 1.20 pm that one person was being beaten by four assailants and further one maruti swift car was found parked on the side. They stopped car and as soon as they stopped car injured rushed towards them and told that he had been stabbed and fell down on the footpath. Blood was oozing from his neck and thighs. The said Manoj Pal and his friends tried to chase the assailants but one of them attempted to throw stone upon Manoj Pal and his friends and thereafter, all of them ran away towards railway line. Pursuant to his statement, an FIR was State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-2) registered.
3. During investigation, deceased was identified as K.N. Jha s/o Sh Pitamber Jha. Crime team inspected spot and took photographs, exhibits were seized from the spot and postmortem of the deceased was conducted on 11.04.2010 and doctor opined the cause of death as hemorrhage consequent to the injuries received on neck and thighs. Police further recorded the statement of other eye witnesses.
4. On secret information, accused Zafar Khan was arrested on 20.04.2010 and he in his disclosure statement stated that he alongwith his associates namely Mohd. Shamim @ Gunga, Rahul Gupta @ RK and Sumit had gathered below Sarita Vihar flyover at around 1 pm on 11.04.2010 and enjoyed ganja as drugs and thereafter, planned to rob the passersby and at around 1.15 pm one maruti swift car came from Kalindi Kunj side and driver parked car near the road side to have piss in the bushes where he was overpowered by accused Zafar and his associates and they attempted to take out his purse and mobile phone resulting scuffle between them and in that scuffle accused Mohd. Shamim stabbed that man on thighs as well as on neck and on seeing four boys who got off from the car, they ran towards railway track. This accused refused to participate in TIP and on 23.04.2010 he was identified by complainant and other witnesses at police station.
State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-3)
5. On 22.04.2010 an information was received that accused Rahul Gupta was arrested in FIR No. 131/10 at PS Sangam Vihar and had disclosed to have committed the present offence and he also refused to participate in TIP proceedings. On 24.04.2010 accused Mohd. Shamim was arrested on secret information from the area of container depot at Tuglakabad and sharp edged knife was recovered at the instance on 25.04.2010 from the place near container depot and he also refused to participate in TIP proceedings. Despite best efforts the identity of the remaining co accused Sumit was not traced and both these accused persons were also identified by eye witness in police station on 04.05.2010. On completion of investigation, chargesheet was filed.
6. On committal, charges were framed against accused persons u/s 397/302/34 IPC to which they pleaded not guilty and claimed trial.
7. Prosecution for substantiating charge had examined 26 witnesses. PW1 Manoj Pal, PW2 Vivek Kumar, PW4 Pradeep Rajora and PW5 Santosh Srivastava are eye witnesses. Other witnesses are police officials, doctors, magistrate and the persons who identified the dead body.
Deposition of eye witnesses:
8. PW1 Manoj Pal deposed that on 10.04.2010 he alongwith his friends State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-4) Santosh were going to Sarojini Nagar and after crossing Sarita Vihar flyover saw 34 persons beating one person. Santosh Srivastava stopped car and came out of the car and on seeing them those boys freed that man and fled away. They gave some support to that injured man and tried to chase those boys and one of them threw stones on them and fled away towards railway line. Meanwhile, PCR van came and injured was taken to hospital. He further deposed that on 23.04.2010 he received call from PS and saw one boy sitting in PS and he told IO that he is not the boy whom he saw at spot. On being declared hostile, he stated that it is correct that on 23.04.2010 the boy who was in PS told the police that his name was Zafar however, not identified accused Zafar present in the court. He further deposed that he was informed by the police that other accused persons are also apprehended but he deposed that he told the IO that these are not the persons involved in the incident. And further stated that he had seen the present accused persons in the court first time. In cross examination he deposed that one of the four assailants threw stone towards him and Vivek and could see only that assailant very well but none of the assailants are present in the court. He further deposed that he is not sure if the police official met him in connection of this case prior to 23.04.2010.
9. PW2 Vivek Kumar also deposed on same lines and stated that he and Manoj chased all the 4 boys and during the course of chasing one State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-5) boys pelted a stone and made threatening gesture towards him. And further deposed that he had recognised all the said boys at the time of occurrence. He further deposed that on 23.04.2010 he alongwith Santosh Srivastav, Pradeep and Manoj went to PS where they saw one boy was being interrogated in the room of SHO and they immediately identified him whose name is revealed as Zafar. And at this stage, he pointed towards accused Zafar stating that he was the same boy whom he identified at PS on 23.04.2010 and was present among the assailants. He further deposed that on 04.05.2010 they were again called at PS and shown two boys standing in SHO room and we all immediately identified them being the same person who were found grappling with the deceased and trying to flee from the spot and their names were revealed as Shamim and Rahul and pointed out his finger towards accused Shamim and Rahul present in court. And further stated that it was accused Shamim who threatened him by showing stones while fleeing from the spot. This witness again stated that he identified accused Shamim while picking up chappal and of other accused he had seen the back. On being declared hostile, he deposed that he cannot say with confirmation and surety whether accused Rahul and Zafar are the same assailants present amongst the 4 assailants at the time of occurrence. He stated that it is correct that he identified the accused in the PS. He further denied the suggestions that he had duly recognised the accused persons while they were fleeing from the spot.
State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-6)
10. In cross examination, he deposed that they saw the assailants and injured grappling from around 15 mtrs and at once Santosh stopped the car and on seeing all of them assailants ran away in different directions. Santosh and Pradeep stayed with injured and he and Manoj ran after the other assailants. Further deposed that they identified the Zafar in PS on 23.04.2010. He further deposed that he stated to the police that Shamim had left the chappal confronted with his statement where it is not so recorded. He further deposed that he is not sure whether Shamim was a person who threatened him with stone. He further deposed that he do not know whether his friends visited PS prior to his visit on two occasions. He further deposed yesterday he came to court, IO met him and briefed him about the incident. He further denied that he identified accused at the instance of police/IO.
11. PW4 Pradeep Rajora also deposed on the same lines. He also deposed that Manoj Pal and Vivek chased those 4 boys but had not identified the accused persons present in court and on being declared hostile, he deposed that it is correct that on 23.04.2010 he was informed by police that the accused has been arrested in the case and it is correct that one of the accused persons was found present with IO in the PS whose name was revealed as Zafar but he had not identified him as one of the four boys. And also stated it is correct that on 04.05.2010 he again went to PS alongwith his friend Manoj, Santosh and Vivek State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-7) and found two boys in the PS but had not stated that they are the same boys whom he saw fleeing towards railway line. In cross examination, he stated that it is correct that none of the accused persons present in the court was present at the spot and were the assailants.
12. PW5 Santosh Srivastava also deposed on the same lines and stated that Manoj and Vivek chased the assailants and Pradeep called the police and further stated that on 24.04.2010 he was called at PS and shown a boy but he had not identified that boy, thereafter, went back to home and came back to Delhi on 17.05.2010. On being declared hostile, in cross examination by Ld. APP he denied to have gone to PS on 04.05.2010 with Manoj, Pradeep and Vivek Kumar. He had not identified accused persons in court.
Deposition of other witnesses:
13. PW7 Anant Jha & PW8 Surender Kumar Jha are Uncle and father of K.N. Jha deceased and identified his dead body.
14. PW23 Sh Sanjeev Kumar, Ld. MM Saket deposed that accused Zafar had refused TIP on 31.4.2010.
Deposition of police officials:
State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-8)
15. PW6 Ct. Ved Pal received a call on wireless that somebody had been stabbed near the Sarita Vihar flyover at around 1.10 pm on 4.10.10 thereafter he reached the spot and found SHO,ACP and SI Jagdish Chillar at spot. SI Jagdish prepared rukka and handed over to him and after registration of FIR, he came back and handed over FIR and rukka to SI Jagdish Chillar.
16. PW9 ASI Jagdish Prasad deposed that on 10.04.2010 on receiving DD no. 18 A regarding stabbing of one person near Sarita Vihar flyover he alongwith Ct. Dinesh reached the spot and found one maruti swift car and a blood stain on the footpath and on inquiry found that the injured was removed to hospital. He alongwith SHO went to Apollo hospital and found injured dead, collected the MLC and came back to spot. Thereafter, recorded the statement of eye witness Manoj vide Ex. PW1/A pursuant to which rukka was prepared and FIR was registered. Further investigation of the case was handed over to Inspector Rohtash. IO from the spot lifted earth control with blood and also lifted one chappal which was lying under maruti swift car belonging to deceased. In cross examination stated that he received DD at PS and when he first reached the spot he did not found any witness and witness Manoj Pal and others met him at the spot when he came back from hospital. He further deposed that he did not met him in hospital as he was not knowing him. Though PCR officials informed State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-9) that witnesses are outside the hospital. He further deposed that no blood stain was found in the chappal and cannot say whether the chappal was of deceased or not.
17. PW10 HC Sunil Kasana recorded FIR at around 3.50 pm on 10.04.2010.
18. PW11 HC Santosh Kumar deposed that on 12.04.2010 he was posted as a rider at PS Sarita Vihar and had taken Inspector Rohtash Kumar to Kamla Market and Manoj Pal and complainant also reached there and after about 1 hour Manoj Pal came back and brought him to PS Sarita Vihar on said motorcycle.
19. PW12 Ct. Satpal deposed that on 20.04.2010 on secret information he alongwith SHO ASI Suraj Singh, Ct. Ram Kumar and Ct. Dharambir went on raid, first at Ali village, Khader village Okhla jungle and other leaving Mall Jasola and one boy came from Sarita Vihar Janta flats sand going towards Jasola Vihar side and on the directions of SHO, they apprehended that boy whose name was revealed as Zafar Khan who was arrested at the spot and his personal search was also conducted and thereafter they came to spot and at the instance of accused Zafar khan pointing out memo was prepared. Thereafter IO recorded his disclosure statement. He further deposed that after that they went to Sangam Vihar in search of other accused State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-10) persons and raided some places including house of Zafar but other accomplices could not be traced out and came back to PS at around 8.158.30 pm. He further deposed that on 22.04.2010 on receiving DD no. 42B regarding arrest of co accused Rahul Gupta , he alongwith SHO reached at PS Sangam Vihar and found accused lodged in PS Ambedkar Nagar lock up and at PS Ambedkar IO interrogated accused Rahul Gupta and formally arrested him. He further deposed that on 24.04.2010 on secret information received by SHO, he alongwith Ct. Ram Kumar and IO went to container depot, Tuglakabad and in the meanwhile secret informer also came and they kept waiting for accused. After some time, a boy came inside a container depot and secret informer pointed out towards him and accused Mohd. Shamim was arrested and interrogated and brought thereafter to PS. And after that he was taken to spot and on his instance pointing out memo was prepared.
20. In cross examination he deposed that there was a sketch of suspect with IO and when the mukhbir met the IO he was sitting in the vehicle. And Mukhbir met the IO at Living style Mall, Jasola. Further deposed that traffic was flowing near spot and went to Sangam Vihar in search of other accused. In cross examination he further submits that IO arrested accused Mohd. Shamim and thereafter took him to spot and then came to PS. He further deposed that apart from taking him to spot, he was not taken anywhere.
State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-11)
21. PW13 SI Raghunath Prasad deposed that on 20.04.2010 he alongwith SHO K.L. Yadav, ASI Suraj Singh, Ct. Satpal, Ct. Ram Kumar, driver and HC Dharamvir reached at Ali village, Madanpur Khader , Mohan Cooperative and Sarita Vihar DDA Flats in search of accused persons and also went to forest of Okhla. Thereafter at about 2.30 pm they reached at police beat near Living Style Mall, Jasola and one secret informer met them there who informed IO that one accused wanted in this case would come from Sarita Vihar side and would cross road no. 13 and would go towards pocket 12 Jasola. At about 4 pm a boy wearing white shirt came from Sarita Vihar and crossed the road and when he reached near Mall he was apprehended and interrogated and on intensive interrogation he revealed his name as Zafar and confessed his involvement in present case. And during course of interrogation he stated that he can show the place where he had committed offence with his accomplice and took them at the spot . This accused told them that he can get arrested co accused Shamim, Rahul Gupta and Sumit Kumar. He also told that Shamim @ Gunga and Rahul reside in Sangam Vihar but he did not know the address of Sumit. Thereafter they raided 34 places in Sangam Vihar but could not trace accused and weapon of offence and came back to PS. He further deposed that on 22.04.2010 he was present in PS and on visiting DD No. 42B regarding arrest of accused Rahul he alongwith SHO, IO, reached at Sangam Vihar and met SI Sanjay Kumar who State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-12) handed over disclosure statement of accused Rahul Gupta. In cross examination he deposed that he cannot tell the names of addresses of persons from whom they inquired. He further deposed that he do not know whether SHO was having any information that accused could be found at a place where they went. And when he saw accused he was about 56 ft. away and was in uniform. But however, he cannot say whether other were in uniform or not. He further deposed that Living Style Mall is a lively place and number of people were present there. He further deposed that IO was having a file and site plan was already there and IO knew the spot. He further deposed that he do not know whether any DD was made in PS regarding arrest of accused and for bringing him to hospital.
22. PW14 SI Jitender Kumar is the mobile crime team incharge who prepared the crime report at the spot on 10.04.2010. he further in cross examination deposed he had not found any fingerprint or footprint at the spot.
23. PW15 HC Sohan Vir deposed that on 10.04.2010 at about 4.30 pm, duty officer handed over 4 sealed envelopes containing copy of FIR to deliver the same to senior police officer and Ld. MM. PW16 HC Bhim Singh deposited 4 exhibits and one sample seal in FSL Rohini on 24.04.2010.
State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-13)
24. PW17 HC Ram Kumar deposed that on 20.04.2010 he was on patrolling duty with SHO K.L. Yadav, Raghunath Singh ASI Suraj, Ct.Satpal and HC Dharamvir at Living Style Mall at Jasola and a secret informer came there and informed SHO K.L. Yadav that accused would come at Jasola Vihar and on the pointing out of the secret informer, SI Raghunath, ASI Suraj Singh and Ct. Satpal apprehended him and in the course of interrogation name of that boy was revealed as Zafar Khan. Thereafter, IO recorded his disclosure statement and stated that other accomplice could be arrested from Sangam Vihar but no accused was found there and they came back to PS and on 24.04.2010 on secret information he alongwith SHO and IO went to container Tuglakabad and arrested accused Mohd. Shamim on the pointing out of secret informer. And after his arrest they came to PS.
25. In cross examination he deposed that they left PS at 11.15 am and reached Living Mall at Jasola at around 11.30 am and remained there till 4 pm. Mukhbir met the SHO at around 3 pm and they kept waiting in gypsy till 4 pm and the accused was about 400 yards away when they first saw him. He further deposed that they reached Sangam Vihar at around 7.30 and found nobody at H. No. 1678 at Sangam Vihar but do not remember whether it was locked or not. He further deposed that at the time of arrest of accused Zafar, he came straight towards them. He further deposed that he do not remember the DD of their departure on 24.4.2010 and also could not tell whether they reached container State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-14) depot at 5,6 or 7 pm however it was a dark time and secret informer met the SHO at that place. He further deposed that after arrest and disclosure of accused Shamim he was brought to PS. He further deposed that he do not know whether there was any guard at container depot or not.
26. PW19 SI Mahesh Kumar prepared the scaled site plan of the spot on 11.05.2010.
27. PW20 Inspector Rohtash Kumar deposed that on 10.04.2010 he alongwith ASI Jagdish Chillar came from hospital to the spot and found Manoj Pal, Santosh Srivastava, Pradeep Rajora and Vivek Gupta at spot and recorded the statement of Manoj Pal and prepared rukka and sent it for registration of FIR. Crime team was called at the spot who had taken the photographs of the spot from various angles. He further deposed that he lifted blood stained soil and earth control from the spot and also seized the maruti swift car and lifted slippers and seized the same. He further deposed that postmortem of deceased was conducted and dead body was handed over to one Sunder Jha.
28. PW21 SI Sanjay Kumar deposed that on 21.04.2004 as accused Rahul was wanted in FIR no. 131/02 u/s 147,148,149,343 IPC, on secret information he was arrested near Aggarwal Sweets , Sangam Vihar and during the course of interrogation, he disclosed that he was also State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-15) involved in the present case. And informed this fact to SHO Sarita Vihar. In cross examination he deposed that accused Rahul was apprehended by him at around 6 pm and no public person was joined at the time of arrest of accused though number of public people were present there. He further deposed that information about arrest of Rahul was given on next day. He further deposed that he had also not kept accused Rahul in muffled face.
29. PW22 SI Adesh Prakash deposed that on 24.04.2010 he alongwith IO and Inspector and other staff taken accused Shamim in search of weapon and during search accused Mohd. Shamim lead the police party to container depot and produced one knife. Sketch of the knife was prepared and same was sealed. In cross examination he could not tell the DD entry by which they left PS and further had no idea if guard etc. was present at container yard and the site plan of place of recovery was also not prepared. He do not know if any blood stain was visible by naked eye on knife. He further deposed that height of bushes might be around 1 ½ ft and it was a open place.
30. PW25 Inspector K.L. Yadav SHO deposed that on 19.04.2010 he was handed over the investigation of the case and on 20.04.2010 at around 11.15 am he alongwith SI Raghunath, ASI Suraj, Ct. Satpal, HC Dharamvir left PS in official gypsy and reached Madanpur Khader Ali village Jasola regarding investigation of case and met secret informer State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-16) at Jasola. And told him that he will given information regarding accused involved in case at about 3 pm in Living Style Mall and at about 3 pm he gave the secret information that accused would come from Sarita Vihar side and would go towards Jasola Vihar and thereafter, he alongwith raiding party and secret informer reached at Jasola T point and apprehended accused Zafar at around 4 pm while coming towards them. He further deposed that he alongwith accused came to Living Style Mall and interrogated accused Zafar Khan and his disclosure statement was also recorded and thereafter he led them to place of occurrence and pointing out memo was prepared. He further deposed that after investigation they came to PS and on 21.04.2010, he was produced in court in muffled face but there he refused to participate in TIP. He further deposed that thereafter his PC remand was taken in order to arrest other accused persons and to recover weapon of offence. During PC remand he went to Sangam Vihar and Dheeraj Nagar in search of other accused persons but they were found to be absconding from their houses. He further deposed that on 22.4.2010 he received a DD regarding arrest of Rahul in case FIR no. 131/10, PS Sangam Vihar in which he disclosed his involvement in the present case. Thereafter accused Rahul was formally arrested in the present case and was produced in court in muffled face for TIP. And his date of TIP was fixed for 26.4.2010.
31. He further deposed that on 23.4.2010 he called eye witnesses Manoj, State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-17) Santosh, Vivek and Pradeep in PS and asked them to identify the accused persons and he recorded the statement on the same day to this effect. He further deposed that on 24.4.2010 in the evening he received information that one accused namely Mohd. Shamim involved in the present case in order to flee from Delhi would board the container from Pul Prahad Pur area and then he had organised raiding party consisting of SI Raghunath, Ct. Satpal and Ram Kumar and at pointing out secret informer arrested accused Shamim @ Gunga from MB Road near container, containers parked on both sides. And on sustained interrogation in PS, his disclosure statement was recorded and accused was kept in muffled case and informed TIP was to be conducted and asked him to be in muffled face and during course of investigation he pointed out the place of occurrence and further on 25.4.10, a knife was recovered in the bushes near the container depot. And the same was seized vide seizure memo Ex. PW22/B. He further deposed that TIP was fixed for 30.04.2010 and on 30.04.2010 when he reached Tihar Jail alongwith witnesses, Ld. MM stated that both the accused refused to participate in TIP and on 4.5.2010 he called the eye witnesses at PS and they identified accused Shamim and Rahul in PS. In cross examination he deposed that on 19.4.2010 he did not call the eye witnesses and shown them the dossier of criminals. He further deposed that he do not remember vide which DD number he departed from PS on 20.4.10 at 11.15 am and met the secret informer at Jasola at 12.30 pm. He further deposed that he had not recorded the statement State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-18) of persons whom he inquired about the case at Madanpur Khader, Ali village, Jasola. He further deposed that the living Style Mall is at a distance of half kilometer from Jasola where he met secret informer and all the police officials were in uniform. He further deposed that there was no previous involvement of accused Zafar and was apprehended as soon as he came and did not tried to run as there was no opportunity but no site plan of the accused was prepared. He further deposed that it is correct that in arrest memo it is not mentioned that accused Zafar be kept in muffled face. He further deposed that he made instruction in DD entry to keep him in muffled but do not remember the number of said DD entry. He further deposed that Dheeraj Nagar, Faridabad is a kacchi colony but he do not remember the names of the person whom he inquired about the accused persons in case diary and accused Zafar was with them when they went to Faridabad. He further deposed that he had not given any instructions in writing to accused to keep himself in muffled face. No notice in writing was also given to witnesses to come to PS for investigation and were called in PS through Ct. Neeraj and statement of Ct. Neeraj was also not recorded in this regard. He further deposed that he do not know how the witnesses were informed by Ct. Neeraj but he brought all the witnesses alongwith him in PS in noon time. And no identification memo was prepared regarding the identification of accused Zafar by the witnesses.
State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-19)
32. He further deposed that at around 7.30 pm he received secret information regarding accused Mohd. Shamim and he reached at MB road near container depot at around 8 pm and at that time secret informer and accused were also present there. And accused was brought to PS where he was interrogated and arrest memo was also prepared at the PS. And remained at the place from where accused was arrested for about 23 minutes and there were no drivers or conductors found near the containers which were parked on the road side. He further deposed that on arrest memo nothing was mentioned that accused be kept in muffled face and further no instructions in writing were given to keep accused in muffled face. He further deposed that the place where the knife was recovered was 5060 yards on the back side of container depot and the bushes were about one and half ft. height . And place of recovery of knife was accessible to general public and no blood stain was visible on the knife.
33. He further deposed that no notice was given to the witnesses to come to PS on 4.5.10 and they were called by telephone to PS.
34. PW26 HC Vedpal posted as MHCM at PS Sarita Vihar deposed that on 10.4.2011 Inspector Rohtash deposited 4 sealed parcels in malkhana and further deposited two envelopes on 11.4.10 and on 24.4.10 Inspector K.S. Yadav one parcel containing knife.
State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-20) Deposition of medical witnesses:
35. PW3 Mohar Pal Chouhan supervisor of Apollo hospital handed over 7 articles recovered from the dead body of deceased P.N. Jha to the IO. PW18 Dr. Rajesh Jain medically examined the deceased on 10.04.2010 and prepared MLC Ex. PW18/A and declared patient brought dead. PW24 Dr. Sudhir Gupta Addl. Professor AIIMS hospital conducted the postmortem of deceased K.N. Jha and opined the cause of death shock due to loss of blood and found that injury no. 1,2 & 3 sufficient to cause death in ordinary course of nature. In cross examination he deposed that when the weapon of offence was received, he was not present and injuries in PM report Ex. PW24/A could be possible by any other more or less similar weapon. Material Exhibits:
36. Ex.PW10/A is DD no. 18 regarding receiving of information of stabbing of a person. Ex.PW1/A is the statement of eye witness Manoj Pal pursuant to which rukka was prepared and FIR was recorded vide Ex.PW10/A, Ex.PW PW20/A, is rough site plan on the spot, Ex.
PW19/A is scaled site plan on the spot , Ex.PW14/A is the report of mobile crime team.
State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-21)
37. Ex. PW22/D dated 25.4.10 seizure memo of recovery of knife at the instance of accused Mohd. Shamim. Ex. PW22/A is the sketch of knife recovered at the instance of accused Mohd. Shamim. Ex. PW12/A dated 24.4.10, arrest memo of accused Rahul dated 20.4.10 Ex. PW12/G, arrest memo of accused Shamim dated 24.4.2010.
38. Ex. PW18/A is the MLC of the deceased prepared at Apollo hospital showing accused brought dead to the hospital. Ex. PW24/A is the postmortem report of the deceased showing the opinion of doctor regarding cause of death is hemorrhagic shock consequent upon injury no. 1 to 3.
39. Ex.PW23/B is the statement of accused Zafar before the Magistrate of refusal to participate in TIP as has been shown to the witnesses by the witnesses. Ex. PX and Ex.PY are TIP proceedings dated 30.04.2010 wherein accused Rahul Gupta and accused Mohd. Shamim refused to participate in TIP on the ground that they were shown to witnesses in police station.
40. Ld. Counsel for the accused from Legal Aid submitted that PW1, PW4 and PW5 have not identified the accused persons in the court though the PW2 had identified the accused persons in first part of his examination in chief but in later part he had not examined accused State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-22) Rahul Gupta and Zafar. Further Ld. Counsel for the accused submitted that this witness could not state that which of the accused has shown stone to him at the time of incident. Further, this PW2 had improved from his statement u/s 161 Cr.P.C before the court by stating that accused Mohd. Shamim had come to pick his chappal which is not recorded in his statement u/s 161 Cr.P.C. This witness PW2 also stated that he was briefed by the IO before deposition in the court which itself shows that this witness had lost credibility. Therefore, the eye witnesses could not identify the accused persons in court. Ld. Counsel for the accused further submitted that the all other incriminating circumstance s of arrest of accused persons are false and fictitious as no independent witnesses were joined at the time of arrest of accused persons. Ld. Counsel further submitted that the recovery of knife had taken place from an open place and in absence of any independent witnesses, therefore, the circumstance of recovery of knife is not at all reliable and credible. Ld. Counsel further submits that the circumstance of identification of accused persons in police station is not inspiring as no notice was served to the witnesses to identify the accused persons in police station neither the identification memo in this regard was prepared. Ld. Counsel further submits that the statement of the constable who brought the witnesses to the police station is also not recorded. Thus, the prosecution unable to prove its case beyond any reasonable doubt.
State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-23)
41. Ld. Addl. PP for the State submitted that PW2 Vivek Kumar had identified the accused persons before the police as well as in the court. PW25 IO also deposed that the accused persons were identified by the eye witnesses in his presence at PS, therefore, the identity of the accused persons is duly proved despite of turning hostile of other eye witnesses on the aspect of identification of accused persons. All the eye witnesses had supported the prosecution case completely on other aspects of seeing the assailants beating the deceased at the spot. Ld. Ld. Addl. PP further submits that the prosecution also proved the circumstance of the arrest of accused persons and consequent recovery of knife at the instance of accused Mohd. Shamim. Therefore, prosecution had discharged its burden of proof and proved its case beyond reasonable doubt.
42. Arguments heard. Record perused.
43. According to prosecution accused persons were found beating deceased K.N. Jha at spot and the said incident was seen by the eye witnesses Manoj Pal, Santosh Srivastava, Pradeep Rajora and Vivek Kumar while they were coming from Jasola and going towards Sarojini Nagar in their car. When they came out of the car, on seeing them accused persons ran away and injured told them that he was stabbed thereafter police was called and injured was taken to Apollo hospital where he was declared dead. On the statement of eye witness Manoj, State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-24) FIR was registered and during investigation on secret information accused Zafar was arrested on 20.04.2004 who refused TIP and was identified in PS by all these eye witnesses on 23.04.2010. Thereafter, accused Rahul @ R.K was arrested in some other case on 21.04.2010 and in that case he disclosed about his involvement in the present case and was formally arrested by police on 22.04.2010 in present case, he also refused TIP. Lastly on secret information, accused Mohd.Shamim was arrested on 24.04.2010 from container Depot Tuglakabad consequent to which a knife was recovered at his instance on 25.4.2010, both these accused Mohd. Shamim and Rahul Gupta refused TIP's, therefore on 4.5.2010, all the eye witnesses were called at the PS who identified the accused persons. Thereafter, on completion of investigation, the chargesheet was filed. Eye witnesses were examined as PW2, 3, 4 & 5. The main points of appreciation are eye witnesses account, circumstance of arrest of accused persons and their identification in police station.
Eye witnesses account:
44. Four eye witnesses PW1 Manoj Pal, PW2 Vivek Kumar, PW4 Pradeep Rajora and PW5 Santosh Srivastava were examined before court as prosecution witnesses. All these witnesses testified that on 10.04.2010 at around 1 pm all of them were going from Jasola to Sarojini Nagar in the car of Santosh Srivastava (PW5) and after crossing Sarita Vihar State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-25) flyover they saw 34 persons beating one person and on this Santosh Srivastava stopped the car and they came out of the car and on seeing them the injured came to them and they tried to chase those assailants but all ran away and thereafter, called the police.
45. PW1 Manoj Pal had not supported the prosecution on the point of identity of the accused persons in court and in his cross examination by Addl. PP, though he admitted that the person who was arrested by the police in present case had told his name Zafar when they were called in PS on 23.4.2010 but refused to identify accused who were present in the court and further also stated that when he went to the PS he found 23 boys sitting in the PS and he stated to IO that these are not the persons who are involved in the said incident. And further stated that he is seeing all accused persons present in the court for the first time. In cross examination by the counsel for the accused he further stated that he could see only one assailants well but not the other 3 assailants and none of the accused persons standing in the court were among the assailants.
46. PW2 Vivek Kumar in his examination in chief stated that on seeing the incident they came out of the car and after seeing all of them all the 4 boys started running towards Patri and he and Manoj chased them and during course one of the boys lifted a stone and made threatening gesture. He further stated that he had recognised all the State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-26) said boys at the time of occurrence and on 23.04.2010 all of them were called at PS and they identified accused Zafar in the PS and further pointed out towards accused Zafar present in the court. He further stated that on 4.5.10 he was again called in the PS and identified accused Shamim and Rahul in the PS thereafter and also further identified them in court. He further stated in his deposition before court that accused Shamim shown stone to them and he also left the chappal at the spot. He further deposed that he identified accused Shamim while picking up the chappal and other accused he had seen from back. Again said, that he had seen only Shamim at the spot and identified him at PS and not identified other accused at PS because he had seen them from the back and only given their description. At this stage, Ld. Addl. PP cross examined the witness and on cross examination he deposed that he cannot say with confirmation and surety whether accused Rahul and Zafar are the same assailants. And further denied the suggestions that he identified them at PS. In cross examination by the counsel of accused persons, he again deposed that on 23.4.10 he found Zafar in PS and further stated in statement before police that accused Shamim left his chappal but confronted with his statement where not so recorded. He stated that he is not sure whether Shamim is the accused who tried to threaten him with stone. He further stated that he had not stated to the police that Zafar was the person who tried to threaten him with stone. Confronted with his statement where it is so recorded. He further deposed that when he State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-27) came to the court for his statement IO Mr. Yadav met him and briefed him about the present case.
47. PW4 Pradeep Rajora deposed that police called them in PS on 23/24.4.10 and 04.05.10 and shown them the assailants but he could not identify them. On being declared hostile, though he stated that it is correct that one of accused was found with IO in PS whose name was revealed as Zafar but he had not identified him as one of the 4 boys who fled away from the spot on 10.04.2010. He further stated that it is correct that when again he was called on 04.05.10 two boys who were apprehended by police told their names as Shamim and Rahul Gupta but cannot say whether they are the same persons who fled away from the spot on the day of incident. In cross examination he stated that none of the accused persons present in the court was present at the spot and were not assailants. PW5 Santosh Srivastav deposed that on 24.4.10 he was called at PS but IO had not asked anything from the boy present in the PS and he could not identify that boy. And thereafter, he came back to Delhi on 17.5.10 and further had not identified the accused in the court and on being declared hostile in cross examination he had denied suggestion that he identified accused in PS.
48. PW1 and PW4 though have supported the prosecution case on the point that when they were called at PS on 23.04.2010 the boy sitting there had stated his name as Zafar but had not identified the accused State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-28) Zafar in the court and also stated in the PS that he was not among the accused persons. And both these witnesses had not identified any of the accused persons in the court. PW5 Santosh Srivastava even had not stated that the police had asked name of accused in his presence at PS and also had not identified the accused persons in the court.
49. PW2 Vivek Kumar in his deposition stated that the had recognised all the boys at the time of occurrence and thereafter identified accused Zafar in PS on 23.4.10 and further identified accused Shamim and Rahul in PS on 4.5.10. but in later part of examination in chief he stated that he identified accused Shamim while picking chappal and other accused he had seen from the back and stated that he had seen only accused Shamim at the spot and identified him in PS and not identified other accused in PS because he had seen them from the back. He resiled from his statement in his examination in chief in itself. On being declard turned hostile in cross examination he deposed that he cannot say with confirmation and surety whether the accused Rahul and Zafar are same assailants and further denied the suggestion that he had duly recognised accused while fleeing from the spot. He further stated that he had not stated to the police that Zafar was the person who tried to threaten him with stone and confronted with statement u/s 161 Cr.P.C Ex.PW2/A where he has stated that the accused Zafar had tried to threaten him with stone but in his statement before the court that he is not sure whether Shamim was the person State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-29) who tried to threaten him stone. This witness also in cross examination stated that he was tutored by IO when he came for his statement. This is the only eye witness which supported the prosecution case to some extent on point of identification of the accused person but this witness also doubted himself in identifying the accused persons as he stated that he could not identify two accused because he had seen only back and could only identify accused Shamim because he was picking up the chappal. But that instance of picking of chappal was not found mention in his statement u/s 161 recorded by police. And further he stated that it was accused Shamim who wielded stone at him but in cross examination he was not sure that accused Mohd. Shamim wielded stone at him whereas in 161 Cr.P.C statement he stated that accused Zafar shown stone to him. Therefore, this witness also appears to be vacilating in identifying the accused in court. Further the probative value of his testimony also got diminished as he deposed that he was briefed by IO before deposing in court.
Circumstance of arrest of accused persons:
50. According to deposition of PW25 Inspector K.L. Yadav IO, he alongwith SI Raghunath (PW13) Ct. Satpal (PW12) HC Ram Kumar (PW17) and HC Dharamvir (not examined) left PS in official gypsy for investigation of case on 20.04.2010, this witness PW25 stated that on 20.04.2010 he left the PS with above persons at around 11.15 am for State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-30) investigation of the case and reached Madanpur Khader, Aali village and at the same time met secret informer at Jasola and secret informer asked him to meet at Living style mall at 3 pm. This PW had not stated that he left the PS on any secret information but for investigation whereas PW12 Ct. Satpal stated that they went from PS on raid on getting some secret information and first they went to Ali village, then Okhla jungle and thereafter at living style Mall Jasola. Whereas PW17 HC Ram Kumar stated that he was on patrolling duty on that day with SHO K.L. Yadav, ASI Raghunath Singh, ASI Suraj Singh and HC Satpal. This witness has not talked about the investigation of the case or raid due to some secret information. PW13 SI Raghunath only stated that he joined SHO K.L. Yadav in investigation on that day.
Therefore, there is no consistency whether the entire team had left for PS on secret information , or on patrolling duty or for investigation of the case.
51. PW25 IO Inspector K.L. Yadav stated that when they reached at Madanpur Khader, Aali village at that time met secret informer at Jasola who asked him to meet him at Living Style mall at 3 pm to have information about the accused, whereas PW13 stated that secret informer met at Living Style mall at around 3 pm only but not stated that he earlier met at Jasola.
52. PW 25 IO stated that he reached with staff at Living Style mall at State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-31) around 2.30 pm and kept waiting for informer who reached at about 3 pm. Whereas, HC Ram Kumar (PW17) stated that they reached the Living Style mall at 11.30 am and remained present there till 4 pm.
53. PW 25 in his examination in chief stated that after arrest, disclosure statement of the accused Zafar was recorded and thereafter he led them to the place of occurrence and after that they came back to police station. PW17 in cross examination stated that after arrest from Jasola Vihar , Living Style Mall, they went to Sangam Vihar and came back to police station. This witness had not stated that the accused Zafar was taken to the place of occurrence. PW12 stated that after arrest, they came to Sangam Vihar, thereafter, to police station, whereas PW13 stated that after arrest they came to place of occurrence thereafter Sangam Vihar and then to police station. All these four witnesses of arrest of the accused Zafar are inconsistent over the factum of taking accused to other places then to police station. PW25 IO in cross examination deposed that they all were in uniform but PW13 in cross examination stated that he was in uniform but can't say whether others were in uniform or not.
54. None of the prosecution witness could state about the DD entry nor any police official from the police booth of Living Style Mall or any independent witness was joined at the time of arrest of the accused nor any site plan of the place from where the accused was arrested was State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-32) prepared. Therefore, from over all appreciation circumstance of arrest of accused Zafar as discussed do not appear to be trustworthy and worth relying upon.
Circumstance of arrest of accused Rahul Gupta
55. PW25 IO/inspector K L Yadav stated that he received DD no. 42 B on 22.04.2010 that accused Rahul Gupta was arrested case FIR no. 131/2010, PS Sangam Vihar and after getting this information he alongwith SI Raghunath and Ct. Satpal reached PS Sangam Vihar and formally interrogated him and arrested vide arrest memo Ex. PW12/E and was sent to judicial custody on production before court on 22.04.2010. But no material documents of other case in which accused were arrested filed. No reasonable explanation came out why accused disclosed his involvement in present case in that case. Circumstance of arrest of accused Mohd. Shamim @ Gunga
56. PW25 IO Inspector K L Yadav stated that on 24.04.2010 in the evening he received a secret information that accused Mohd. Shamim who was involved in this case, tried to flee from Delhi by boarding into container at Pul Prahladpur area. Thereafter, he immediately organized a raiding party consisting of SI Raghunath (PW13), Ct. Satpal (PW12) and Ct. Ram Kumar (PW17) and on the pointing out of State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-33) secret informer accused Shamim @ Gunga was apprehended from M B Road near container parked on the road side. Whereas, PW12 stated that accused Shamim came from inside container depot and on pointing out arrested the accused. Whereas, SI Raghunath PW13 had not stated anything about the circumstance of arrest of accused Mohd. Shamim. PW17 on the other hand stated that accused was seen coming from Sangam Vihar side and on pointing out of secret informer he was apprehended. PW25 IO stated that the accused Shamim was arrested on MB Road, PW12 stated that accused Shamim was apprehended while coming from inside the container depot, PW13 SI Raghunath had not stated anything about the arrest of accused and PW17 on the contrary stated that accused was arrested while coming from the Sangam Vihar. None of the witnesses give the consistent view regarding the fact how accused Mohd. Shamim was arrested and further there is no independent witness joined at the time of arrest nor any site plan of the place of arrest was prepared. Therefore, circumstance of arrest of accused Mohd. Shamim in the manner as suggested do not appear to be credible and reliable. Circumstance of recovery of knife at the instance of accused Mohd. Shamim
57. PW25 IO/Inspector K L Yadav deposed that on 25.04.2010 he alongwith SI Adesh Prakash and Ct. Satpal taken out accused Mohd.
State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-34) Shamim from lock up and took him in official vehicle near container depot in order to recover weapon of offence and accused led them to bushes near container depot and taken out one knife from the bushes. PW12 Ct. Satpal had not stated anything about the recovery of knife in his presence at the instance of accused on 25.04.2010. PW22 SI Adesh Prakash stated that on 25.04.2010 that during search they reached container depot yard from where the accused Shamim had taken out one knife from the bushes. In cross examination he deposed that he do not know if there was any guard present at the container deport or not. Further height of bushes might be 1 or 1 ½ feet and recovery of knife was from an open place. In cross examination PW25 stated that recovery was effected from the place 5060 yards behind the container depot near railway track. But PW22 had not stated that the place of recovery of knife was behind the container depot. Further no site plan of place of recovery was prepared nor any independent witness was joined at the time of recovery of knife and knife is recovered from an open place, therefore, the circumstance of recovery of knife as alleged by the prosecution do not appear to be credible.
58. Thus, on over all appreciation the circumstance of arrest of accused Zafar, Rahul Gupta and Mohd. Shamim do not appear to be reliable and further consequent recovery of knife appear to be fictitious and fabricated. There is no reason frunished stated why police had not tried to recover knife from the container depot from where accused State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-35) Shamim was apprehended on 24.04.2010. Further, no person from container depot was examined.
Circumstances of Identification of accused persons in police station:
59. According to prosecution, accused Zafar was arrested on 20.04.2010 and thereafter produced before the Magistrate on 21.04.2010 where an application for his TIP was moved but he refused to participate in TIP on the ground that he was shown to the eye witnesses and his photograph was also taken. Thereafter IO taken his 3 day police custody remand from the court of Metropolitan Magistrate. In the said order Ld. Metropolitan Magistrate observed that as weapon of offence has to be recovered, the police was granted 3 days police remand of accused Mohd. Zafar. And thereafter, on 23.04.2010, all the eye witnesses were called at the PS who identified the accused in the PS. PW25 IO Inspector K.L. Yadav in cross examination stated that eye witnesses were called to PS through Ct. Neeraj but he has not recorded the statement of Ct. Neeraj nor any notice is sent to the witnesses to come to PS for investigation. He further deposed that Ct. Neeraj brought all the witnesses alongwith him and he do not know how Ct. Neeraj called them and no identification memo was prepared regarding identification of accused Zafar by the witnesses. PW1 stated that on 23.04.2010 he received call from his friend Pradeep that one of the boy State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-36) was arrested and on reaching PS he met IO and stated that he is not the same boy who ran from the spot. PW4 Pradeep Rajora and PW5 Santosh Srivastava, have also not identified that boy. PW2 though stated to have identified that boy on 23.4.10 in PS but lateron changed his stance and stated that he had not seen accused Rahul and Zafar on that day. And further it is stated by PW2 Vivek Kumar in cross examination that he was tutored by Mr. Yadav before deposing in court. Further, IO had sought the police custody remand from the Magistrate on the ground of recovery of weapon of offence and not for the purpose of any identification by the witnesses.
60. PW25 had not prepared any memo of identification of the accused, further neither Ct. Neeraj was examined nor any notice in writing was given to the witnesses for identifying the accused in the PS neither any DD entry was prepared regarding the fact that the accused was kept in muffled face all the time and further as PW1, PW4 & 5 had not supported the prosecution story on identification in PS and even PW2 had changed his stance on the point of identification of accused Zafar, further as the circumstance of the arrest of the accused is already disbelieved by the court, therefore, on cumulative appreciation this circumstance of identification of the accused Zafar in police station do not appear to be reliable and trustworthy.
61. According to prosecution accused Rahul Gupta was arrested on State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-37) 22.04.2010 from PS Ambedkar Nagar and thereafter, was sent to judicial custody and lateron the accused Mohd. Shamim was arrested on 24.07.2010 and at his instance the knife was recovered on 25.04.2010 and thereafter sent to judicial custody. And both the accused had refused to participate in TIP on 30.04.2010 on the ground that they have been shown to the witnesses. Consequently on 03.05.2010 police custody remand was sought of accused Rahul Gupta and Mohd. Shamim vide order dated 3.5.2010. The police had sought the police custody remand of accused on the ground that custodial interrogation is required for identification of 4th accused and recovery of clothes worn by the accused at the time of incident and for that purpose the police custody remand was given by court of Ld.Metropolitan Magistrate for 2 days but in the said two days there is nothing on record that the police had tried to search the 4th accused person during that time neither tried to recover the clothes of accused persons and only called the eye witnesses to identify accused Rahul Gupta and Mohd. Shamim in PS on 4.5.2010. In this regard neither any notice was served to eye witnesses to come to PS nor any identification memo was prepared and as per IO they were called through telephone. PW1, 4 & 5 have not stated to identify the accused Rahul Gupta and Mohd. Shamim in PS though PW 2 had stated that he identified both accused in PS but in later part he stated that he had not seen accused Rahul Gupta and also stated that he was tutored by IO before deposition in court. One thing worth noticeable in this case is State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-38) that PW2, Vivek Kumar stated that he got the information of arrest of accused and immediately he alongwith others went to PS on 4.5.2010 and identified both accused Rahul and Shamim. TIP proceedings were conducted by Ms. Surya Malik Grover, Ld. Metropolitan Magistrate in Tihar Jail on 30.04.2010 vide Ex. PX & PY and in proceedings recorded that IO had met her outside the jail premises and identified the witnesses and thereafter she proceeded to TIP room where accused produced by Asstt. Superintendent in unmuffled face and accused stated that they do not want their TIP's to be conducted as they told that they were shown to witnesses in PS. From this statement it is evident that the witnesses had prior knowledge that accused Rahul and Mohd. Shamim were already arrested and they had come to jail for identification of these two accused on 30.04.2010, it shows that PW2 Vivek had knowledge of arrest of accused Rahul Gupta and Mohd. Shamim atleast on 30.04.2010 therefore, his statement that on getting the information of arrest of accused Mohd. Shamim and Rahul on 4.5.2010 they immediately rushed to PS appears to be suspect and if it read in conjunction with fact that he had stated in cross examination that he was tutored by police before deposition in court and further apprehension of accused in refusal to participate in TIP, then in these circumstances it can not be ruled out that the accused were shown to the witnesses before being identified in the police station.
62. In view of overall appreciation of evidence prosecution unable to prove State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-39) the circumstance of arrest of accused Zafar and Mohd. Shamim and further consequent recovery of knife at the instance of Mohd. Shamim. Circumstance of arrest of accused Rahul Gupta also do not appear to be completely trustworthy. Prosecution also failed to prove the circumstance of identification of accused in the police station. Only PW2 has supported the prosecution case by identifying accused in court but in later part of his examination in chief he stated that he had not seen the accused Rahul Gupta and Mohd. Zafar and further improved himself on the fact that he had seen the accused Mohd. Shamim while picking up the chappal and accused Zafar throwing the stone and also stated that he was tutored by the police by briefing about the case before deposition in the court . Therefore, in these circumstances this testimony of PW2 without concrete corroborating evidence cannot be relied upon for convicting the accused persons in such a heinous offence of murder, which is lacking in present case.
63. It is settled principle of criminal jurisprudence that the more serious is the offence, the stricter is the degree of proof required to convict the accused. Apex court in "Swarn Singh Rattan Singh Vs. State of Punjab, AIR 1957, SC 637" had observed "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 unimpeachable evidence". This proposition is recognised by Apex court in subsequent State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-40) decisions till date. But the prosecution in present case unable to bring on record legally reliable and unimpeachable evidence to reach on reasonable conclusion that accused persons had committed the offence as alleged.
64. Burden of proof is on prosecution but, prosecution unable to prove its case beyond reasonable doubt. Thus, accused persons are granted benefit of doubt and acquitted of charge u/s 397/302/34 IPC. Each accused is directed to furnish personal bond in sum of Rs. 20,000/ and one surety in the like amount in terms of section 437A Cr.P.C.
Announced in Open Court
On 13th September, 2011 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Mohd Shamim etc. SC No. 117/10 ( Pg-41)