State vs 1. Afroz @ Sharib @ Shahbaz on 13 July, 2012

[Cites 12, Cited by 0]

Delhi District Court

State vs 1. Afroz @ Sharib @ Shahbaz on 13 July, 2012

    IN THE COURT OF SHRI AJAY KUMAR JAIN: ASJ03, SE, 
           SAKET COURT COMPLEX: NEW DELHI


Sessions Case No. 100/10
ID No. 02403RO4441522009



State Vs     1.  Afroz @ Sharib @ Shahbaz
               S/o Shri Kamruddin 
               R/o H.No. 147, Gali No.10,
               Zakir Nagar, New Delhi.
               (In judicial custody)
               2.    Shabbir Ali
               S/o Shri Kabir Ali 
               R/o 130C, Okhla Village,
              Jamia Nagar, New Delhi.
               (In judicial custody)


            FIR No:  310/09
            P.S.   Jamia Nagar
            U/s    324/326/307/34 IPC


Date of Institution            :      08.10.2010 (Old date of 
                                       Institution: 04.02.2010)   
Date of Reservation            :      09.07.2012
Date of Decision               :      13.07.2012
    




                        S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-1 of 79)
 JUDGMENT:

1. One can't achieve TRUTH by leaving natural ways through artificial and anxious ways irrespective of being saint or victim.

2. Prosecution case in brief is that on receiving DD no. 25A at around 9 pm on 14.10.2009, SI Sant Pal Singh alongwith Ct. Jitender reached Holy Family hospital where he collected the MLC of injured Javeria and her younger sister Samar and found that doctor referred injured patients to Safdarjung hospital. Thereafter, ASI Sant Pal reached Safdarjung hospital and found injured Javeria and Samar admitted in Safdarjung hospital and both were found fit for statement then recorded statement of injured Javeria.

3. Injured Javeria in her statement alleged that she runs a beauty parlour at shop no.16, Gali no.8 in the name of Kasab Beauty Parlour at Gafar Manzil and her sister Samar also works with her and on that day at around 7 pm after closing the shop she was going with her sister in rickshaw towards their house at Zakir Nagar and as soon as their rickshaw reached near Akhtar Manzil they saw two persons already sitting on blue coloured motorcycle aged around 3035 years, one was wearing white coloured shirt, blue coloured jeans and also wearing Himesh Reshamiya type cap, on back seat the other person aged around 40 years wearing helmet. She S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-2 of 79) further alleged that when their rickshaw reached nearby them, they poured over them some chemical type thing by a big jug, due to this, both of them felt burn irritation and both assailants ran away from that place but they could not note the number of motorcycle. She further alleged that thereafter from rickshaw they went to Holy family hospital from where they were referred to Safdarjung hospital. She further raised suspicion over one boy named Shahbaz whose father runs the utensil shop in Okhla Main market who one month back asked her for marriage and she refused the same and at that time he had given the threatening that he will pour acid over her, thereafter she will not be able live for anything. She further requested for initiation of action against him and his associate and further stated that she can identify him if brought before her. Pursuant to recording her statement rukka was prepared and FIR u/s 324/34 IPC was registered.

4. During investigation, IO at the instance of PW Tariq (brother of injured), prepared site plan and seized wearing clothes of injured Samar at Safdarjung hospital. On 15.10.09, accused Afroz @ Sharib @ Shahbaz went to Safdarjung hospital to know injured Javeria about what statement she had given to police, thereafter on pointing out of Javeria accused Afroz was arrested in Safdarjung hospital.

5. Accused Afroz in his disclosure statement stated that injured Javeria promising him to marry for one and half to two years but when he came to know that she had already married to somebody, he told this fact to his S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-3 of 79) friend Shabbir, thereafter both of them decided to finish this girl by pouring acid over her. Pursuant to disclosure statement of Afroz, the motorcycle alleged to be used in incident was recovered at the instance of accused Afroz.

6. On 20.10.09, accused Shabbir Ali was also arrested on some secret information, at the time of arrest, Javeria was coming after treatment from doctor and she identified the accused and further disclosure statement of accused Shabbir Ali also recorded. Accused Shabbir on 21.10.2009 produced one wearing T shirt which was found burnt from the right side. Lateron during investigation Section 326/307/34 IPC were added. Statement of witnesses were recorded and seized clothes were sent to FSL for opinion and as per MLC's doctors found injuries suffered as grievous in nature and on completion of investigation chargesheet was filed.

7. On committal, charges against both accused were framed u/s 307/34 IPC to which both pleaded not guilty and claimed trial.

8. Prosecution for substantiating charge examined 16 prosecution witnesses. Summary details of their depositions as follows.

Deposition of injured PW8 Javeria and PW12 Samar, their brother Tariq (PW5), sister Sheeba (PW15) and employee Uzma (PW9):

9. PW8 Javeria deposed that she is running a beauty parlour shop at Gaffar S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-4 of 79) Manzil and on 14.10.2009, after closing her shop at around 7 pm was going back to her home with her sister on rickshaw and when they reached near Gaffar Manzil at speed breaker rickshaw puller got down and one blue coloured motorcycle was standing at some distance from rickshaw. She further deposed that there were two persons on motorcycle who was having steel jug in his hand and a person who was on front side of motorcycle was Shabbir and person behind was Afroz (Court observation: At this stage, when PP asked whether she can identify accused persons, she stated because of injuries she is unable to see anything which is objected by Ld. counsel for the accused and for deciding this issue, the medical opinion is sought from RP Center, AIIMS and further examination in chief deferred). Further examination in chief of this witness recorded on 12.07.2011. She further deposed that the person threw some acid type liquid on her and her sister Samar which fell on her face and other parts of body and thereafter both accused fled away from spot on motorcycle which passed through in front of their rickshaw. She further deposed that thereafter they told rickshaw wala to take them to Holy Family hospital where, they were given the first aid and her brother was also contacted on telephone and thereafter they were referred to Safdarjung hospital, where they received further treatment. She further deposed that in meanwhile police also reached Safdarjung hospital, but as she was having severe pain and burning sensation and was not in proper position to give statement, doctor did not allow police to record her S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-5 of 79) statement. She further deposed that after some time when her treatment was going on Afroz came in Safdarjung hospital and threatened her that if she discloses her name, he will kill her, then after sometime police came and she told regarding that threat thereafter Afroz was apprehended by police in Safdarjung hospital. She further deposed that her statement was recorded by police in Safdarjung hospital and her treatment is still going on in the hospital. She further deposed that she could see till February 2011 and after that she lost her vision and not in position to see till date. She further deposed that accused Afroz @ Shahbaz used to tease her for last 56 months prior to incident and sometimes he used to park his motorcycle in front of her shop and used to blow whistle on seeing her and used to make comments that he wants to have friendship with her. Lateron also made offer of marriage but she denied the said offer. She further deposed that thereafter he threatened her and told that he will throw acid on her, as he deal with cleaning of utensil in which acid is used. He further threatened that she will never be in a position to get married with anybody as he will destroy her face. She deposed that one month prior to incident accused Afroz threatened her that if she will not marry him, he will make her bath in acid.

10. She further deposed that she did not disclose this fact on that day as it was birthday of her brother Shariq and marriage of cousin sister. She further deposed that when she was coming back from hospital she saw Shabbir in street no.20 apprehended by police and she identified him in presence of S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-6 of 79) police officials. She further deposed that she knew accused Afroz since childhood. (At this stage, Ld. Addl. PP requested that due to medical condition she cannot identify the accused by seeing them and witness submitted that she can identify accused through his voice) and thereafter identified accused Afroz from his voice but could not identify accused Shabbir through his voice.

11. In cross examination on behalf of accused Shabbir she deposed that normal time of closure of beauty parlour was 7 to 8 pm and she knows Afroz since childhood. She further deposed that she do not remember whether she told this fact to police or not. She further deposed that she never talked to Afroz on telephone and do not have mobile phone, there is no phone in beauty parlour. She further deposed that Afroz used to tease her for 56 months prior to incident (confronted with her statement U/s 161 Cr.P.C dated 15.12.2012 where it is written one and half years). She further deposed that Afroz started talking about marriage with her about one month prior to the incident (again confronted). She further deposed that she refused marriage proposal of Afroz. She further deposed that she cannot tell the distance between gali no.8 and Akhtar Manzil and accused persons were standing ahead of one Gali after Akhtal Manzil and she and Samar were talking to each other at the time of incident and had seen motorcycle alongwith person who were waiting through some distance. She further deposed that she cannot tell whether she had seen the motorcycle from mor (bend) or after crossing the same but had seen the S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-7 of 79) motorcycle from around 50 yards. She further deposed that at the time of incident road was deserted but there was a light coming on the road form the flats. She further deposed that she recognised accused Afroz from 50 yards and she was sitting on rickshaw on left side. She further deposed that their rickshaw stopped at breaker and rickshaw puller got down and in meanwhile accused came on motorcycle from back and threw acid on them. She further deposed that she do not know whether acid fell on rickshaw puller or not and acid was thrown from jug. She further deposed that she do not know what pillion rider was wearing since she was not able to look at him and he was wearing helmet (confronted with statement). She further stated that she had not told name of accused as she felt scared. She further deposed that accused Shabbir used to reside near her Mausi's house near Okhla and she do not know whether he had quarrel with her Mausi 3 years back. She further deposed that police had recorded her statement thrice, twice in hospital and once in gali. She further deposed that she had given the statement to police when she was in terrible pain therefore do not remember what she told to police.

12. She further deposed that doctors at Holy Family hospital had taken her clothes and when they were at Holy Family hospital her mother, brother and sister also came at Holy Family hospital and she told the names of assailants to her family members at that time. She further deposed that she cannot tell till what date she remained in hospital. She further deposed that her statement was recorded by IO in Safdarjung hospital and used to S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-8 of 79) go to hospital for bandages after 34 days. She further deposed that her eye sight became very weak after the incident, in November she felt that she cannot see anything. She further deposed that the person who was driving motorcycle was wearing red colour shirt (confronted with statement Ex. PW1/B as the colour of the shirt given as white). She further deposed that the driver of motorcycle was wearing cap (confronted with statement u/s 161 Cr.P.C dated 15.10.2011 wherein she stated that he was wearing helmet). She further denied suggestion that she had not seen accused persons therefore she had not given their names. She further deposed that she had not given the names of accused in Holy Family Hospital due to fear of accused persons. She further deposed that accused had not tried to conceal themselves after seeing them on rickshaw. She further deposed that accused Shabbir had never threatened her before the incident. She further deposed that police had taken her thumb impression as well as foot impression.

13. In cross examination on behalf of accused Afroz She deposed that it is incorrect to suggest that no such beauty parlour exists. She further deposed that all sisters resided together and sister Sheeba is working in Media. She further deposed that she had made complaint to her mother on the fact that Afroz used to tease her and used to obstruct her way but cannot tell date, time and month. She further deposed that she made complaint to her mother only once and also complaint to her sister Samar. She further deposed that every person in Gaffar Manzil knows about the S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-9 of 79) incident but cannot tell the name of persons of Gaffar Manzil who knows about the incident. She further denied suggestion that no such incident took place at Gaffar Manzil. She further deposed that rickshaw wala asked persons to catch assailants and also abused assailants and some acid might have fallen on rickshaw wala also. She further deposed that they have named assailants in Safdarjung hospital first time and due to fear they had not named assailants in Holy Family hospital. She further deposed that at Safdarjung hospital doctor asked her how incident took place but because of pain she had not given name of assailants to doctor. She further deposed that she had given the name of assailant to police when they came to record her statement in Safdarjung hospital. She further deposed that accused Afroz had come to Safdarjung hospital for threatening but she cannot tell the time. She further deposed that when accused was threatening in the meanwhile police also came and she was not totally conscious. She further deposed that she cannot tell whether police examined her in presence of any nurse. She further deposed that she cannot tell the date and time of threatening by accused Afroz, who threatened that in case she will not marry him he will throw acid on her. Vol., Afroz had given threatening of throwing acid one week prior to incident and proposal of marriage one month prior to incident. She further deposed that she had not made any complaint to police in this regard.

14. PW12 Samar deposed that when they reached near Akhtar Manzil it was S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-10 of 79) a deserted road. The bike of Afroz was already parked on road and Afroz and Shabbir were already sitting on motorcycle and their face was towards their faces and Afroz was having one steel jug in his hand and when on speed breaker rickshaw puller got down, both accused came on motorcycle and accused Afroz threw some liquid on their face and fled away from the spot and quantity of acid was so much that if it had fallen on one person, then that person might have died. She further deposed that acid fall on her eyes, face, neck, chest, hands, legs, back, shoulder and fingers and both sisters screaming due to pain and thereafter rickshaw puller immediately took them to Holy family hospital and she had not told names of assailant to doctor because of fear. She asked doctor to ring up at her residence and handed over mobile to the doctor. She further deposed that her family members and cousin reached at Holy family hospital and she knew Afroz and Shabbir since childhood as they were residing in the same area where their Khala was residing. She further deposed that she unable to see and cannot identify accused from their voices.

15. In cross examination on behalf of accused Afroz she denied suggestion that they do not have beauty parlour. She further deposed that no person from residential building as far as her knowledge came to the spot. And further denied suggestion that no such incident took place at alleged place of occurrence. And further denied suggestion that Afroz had never teased Javeria. She further deposed that she had not told incident of teasing to S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-11 of 79) her mother and only told to Sheeba who stated that she will see her after function. She further deposed that she cannot tell whether police had recorded her statement on 14th night or subsequently as she was in complete pain but recorded her statement in Safdarjung hospital. She further deposed that she cannot tell time when her statement was recorded. And further stated that she was discharged from hospital after 4 days. She further deposed that said incident was witnessed by one lady and a car passing by and that lady also came to their house after the incident.

16. In cross examination on behalf of accused Shabbir she deposed that in Holy Family hospital number of relatives reached but cannot tell the name of relatives. She further deposed that she was given first aid treatment at Holy Family hospital and she was made to wear medical gown. But cannot tell how she was taken to Safdarjung hospital. She further deposed that the person who was sitting on back was wearing helmet. But she stated that she do not remember whether she had told this fact to IO or not. She further deposed that she able to see till second week of November and everything was blurred thereafter. She further deposed that the jug was of steel colour. She further deposed that motorcycle was standing before speed breaker but cannot tell number of speed breakers on road. She further deposed that she had seen the motorcycle of accused Afroz number to time. She further deposed that she cannot tell whether the person holding jug was wearing gloves or naked hand and there was no S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-12 of 79) residential house at the place of incident. She further deposed that police had recorded her statement only once. She further deposed that she cannot tell whether her statement was recorded first or Javeria's statement was recorded first. She further deposed that she got to know about threat one week prior to incident. She further deposed that she do not know the name of police person who recorded her statement. She further deposed that assailants had not tried to conceal themselves and not said anything after the incident. She further denied suggestion that accused had not thrown acid over them. She further deposed that after throwing acid they ran towards front side and she was conscious when her statement was recorded by police.

17. PW5 Tariq brother of injured Javeria deposed that on 14.09.2010 when he was going to beauty parlour of her sister Gaffar Manzil while coming back from the office, he saw accused Shabbir and Afroz standing near Akhtar Manzil and a motorcycle was parked and Shabbir was sitting on front side and Afroz on back and Afroz was having jug in his hand. He further deposed that he thought that they are standing to take some liquor and he went towards beauty parlour and in beauty parlour he could not find his sisters and came back to his house. He further deposed that he received a call from Holy family hospital that some accident took place with his both sisters and he alongwith his brother Mohd. Shahid went to Holy Family Hospital and doctors told him that his sisters were attacked with acid. He further deposed that after first aid he took his sisters to S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-13 of 79) Safdarjung hospital and thereafter came back at Zakir Nagar. He further deposed that he received a call from his sister that police is looking for clothes of Javeria thereafter, he went to Holy Family Hospital but could not locate the clothes. And there he met police official and told them regarding the incident. Thereafter he with police officials had gone to place where accused were standing and shown them that place. He further deposed that his sister told him that Shabbir and Afroz had thrown acid on them.

18. In cross examination on behalf of accused Shabbir he deposed that the distance between beauty parlour and place where accused were standing was 300400 mtrs. and the shop was open and a girl employee was there in the shop who told that her sisters namely Javeria and Samar had gone out nearly 5 minutes back. Thereafter he straightaway came to his house and after receiving mobile call from the mobile of his sister Samar, he alongwith his brother Shahid went to the hospital. Thereafter, took his sisters to Safdarjung hospital in Ambulance. He further deposed that he did not had any word with them in hospital and his elder brother Sharib and cousin Bursha were alongwith them in Ambulance while going to Safdarjung hospital. He further deposed that his statement was recorded by police at around 1.45 to 2 am. He further deposed that he did not come to know regarding the incident while going to his house. Confronted with his statement Ex.PW5/DA . He further deposed that he told to police that he received information at his house. Confronted with his statement S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-14 of 79) Ex.PW5/DA . He further deposed that place where he saw accused is a deserted place and had not seen anybody except these two persons.

19. In cross examination on behalf of accused Afroz he deposed that he know accused Afroz since childhood and denied suggestion that Afroz and his sister were going to be married soon and further denied suggestion that accused Afroz had financed a sum of Rs. 5 lacs to his sister for running beauty parlour shop. He further deposed that it is incorrect that his sister Javeria was a married lady. He further deposed that he had not met ASI Sant Lal between 9 pm to 1.45 am at Safdarjung hospital and he was at Zakir Nagar between 11.15 pm to 12.45 am. He further deposed that he remained in Safdarjung hospital till about 11 to 11.15 pm and he had not talked with his sisters during his stay at Safdarjung hospital between 10 pm to 11.15 pm. He further deposed that he had not talked with his sister at Safdarjung hospital between 10 pm to 11.15 pm. He further deposed that between 1 to 1.30 pm his sister Sheeba called him to go to Holy Family hospital to get clothes of Javeria. He further denied the suggestion that at 4 am on 15.10.2009 he accompanied police officials to the house of Afroz for seizing his motorcycle. He further deposed that he cannot say when the police official seized the motorcycle of Afroz. He further deposed that he was not definite at that time that this act of throwing of acid was committed by Afroz. He further deposed that he got suspicion on getting information at 7.30pm but not told this fact to police as busy in looking after his sisters and further denied the suggestion that he S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-15 of 79) demanded Rs. 1 crore from accused family. And also denied the suggestion that he had not seen the accused Afroz and Shabbir on the date of incident at around 7.15pm on 14.10.2009.

20. PW9 Uzma deposed she works as Kasab beauty parlour of Javeria and 1012 days prior to the incident Javeria told her that accused Afroz used to tease her and telling her to have friendship and get married to him otherwise he will destroy her figure and face and will not leave her worth for anyone else. She further deposed that she asked Javeria to tell this fact at her house but she had not disclosed the same due to the marriage atmosphere in the house. She further deposed that on 14.09.2010 accused persons threw acid on Javeria and her sister Samar near Gaffar Manzil. In cross examination on behalf of accused Afroz she stated that she do not know when she made statement to the police and was working in beauty parlour for last one year prior to the incident. And had seen accused Afroz 1015 times before incident when he used to visit the parlour. He further denied that it is incorrect that accused Afroz had given Rs. 5 lacs to Javeria to run said beauty parlour. She further deposed that Javeria ever told her that she was getting married to Afroz and Javeria is not married as per her knowledge. In further cross examination on behalf of accused Shabbir she denied the suggestion that Javeria never told about any threat by accused Afroz.

21. PW15 Sheeba Naaz deposed that on 14.10.2009 when Javeria and Samar were coming from the beauty parlour near Akhtar Manzil Afroz and S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-16 of 79) Shabbir threw acid on their face. First they were shifted to Holy Family Hospital thereafter they were taken to Safdarjung hospital and were referred to RP Center AIIMS for treatment of their eyes. She further deposed that due to acid they became blind and she took photographs of her sisters vide Ex. PW15/A1 to A15 and these photographs were given to police on 29.01.2010. and the photographs Ex.PW15/A16 to A17 are photographs prior to this incident. She further deposed that she received threatening letters from jail and also received one threatening letter from accused Afroz. In cross examination she deposed that she was at Cannaught place when received information at about 8.30 pm. And before reaching Holy Family hospital injured were already removed to Safdarjung hospital and she was in ICU with doctor treatment and others were outside because they were not allowed to remain inside. She further deposed that police persons came to ICU at 11 pm but were not allowed to enter ICU. She further deposed that her injured sisters were not in position to move or walk in ward. She further deposed that she first time came to know the name of accused at Safdarjung hospital during treatment. She further deposed that she had not told names of assailants to police because police was not present and she was with her sisters in ICU. She further deposed that she do not know whether police had recorded her statement or not. She further denied suggestion that she was not told the name of accused by the injured.

S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-17 of 79) Deposition of Doctors and Forensic Experts

22. PW4 Dr. Mala Saini, Sr. CMO, Holy Family hospital deposed that on 04.12.2009 she received an application seeking her opinion regarding whether grievous injuries mentioned in MLC is possible by chemical acid and she opined 'yes' it is possible after going through MLC and discharge summary of Holy Family hospital vide Ex. PW4/B. She further deposed on behalf of Dr. Rajnikant Shastri who left Holy family hospital and his whereabouts are not known. She further deposed that Rajnikant Shastri examined patient Samar on 14.10.2009 with history of burns over face, both arms and chest and patient states while she was going through , two unknown persons on motorcycle threw unknown liquid on her face and there was pain all over the body and unable to see. Injured Javeria also stated the same . In cross examination she deposed that she had given the opinion on basis of MLC Ex.PW4/C and Ex.PW4/D and discharge summary Ex.PW4/B and there is nothing mentioned in discharge summary Ex.PW4/B about the reason and mentioned only about treatment of eyes. And as per discharge summary the condition of eye is not normal. She further deposed that chlorine smell mentioned in discharge summary is because of hydrochloric acid.

23. PW10 Dr. Monisha Kapoor Sr. Resident Burns and Plastic Surgery S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-18 of 79) Department, Safdarjung hospital deposed that she deputed to depose on behalf of Dr. D.N. Mishra who prepared discharge summary Ex.PW4/B in respect of injured Samar as he left the hospital and his whereabouts are not known and further also seen the discharge summary of injured Javeria and identified the handwriting and signature of Dr. D.N. Mishra on both discharge summaries. In cross examination she deposed that facial burns comes under grievous injury.

24. PW13 Dr. Radhika Tandon Professor Opthermology, RP Center, AIIMS deposed that on 27.01.2010 she examined Javeria and found patient only light perception in both the eyes and was bilaterally blind with 100% visual impairment and this was apparently due to both eyes severe chemical burn and also examined patient Samar and she was also bilaterally blind with 100% visual impairment due to severe chemical burn. And on court question she deposed that the extent of blindness is 100% in both patients and cause of same is chemical injuries. In cross examination she deposed that normal OPD days are Tuesday and Friday but she cannot say why patient came on Wednesday and there is no need of any urgency to mention in OPD card. She further deposed that it is incorrect to suggest that this is not the continuation card but it is correct that there is no stamp on OPD card. She further deposed that she had seen the patient earlier and cannot say whether she had seen the patient that day or not. And cannot tell from record whether patient suffered from superficial or deep burns. She further deposed that there is no medical S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-19 of 79) prescription or treatment on this card. And denied the suggestion that she had issued OPD card Ex.PW13/A and B at instance of IO.

25. PW14 Sri Narain Sr. Scientific Officer, Chemistry FSL Rohini deposed that on examination, exhibited clothes were found to contain sulphuric acid. In cross examination he deposed that he cannot say whether acid was thrown was diluted or concentrated condition. He further denied suggestion that he prepared the report at the instance of IO and residue can remain on property for long time and denied suggestion that residue disappears within one and half months.

Deposition of Police officials:

26. PW1 ASI Sant Pal deposed that 14.10.2009 on receiving telephone call from Holy Family hospital he alongwith Ct. Jitender reached Holy Family hospital where he got to know that injured girls were referred to Safdarjung hospital after first aid. Thereafter he collected MLC's of both girls and went to Safdarjung hospital and doctor declared her fit for statement on his application thereafter he recorded the statement of Javeria and also statement of Samar. He prepared rukka pursuant to which FIR was registered. He further deposed that he collected burnt clothes of injured Samar at Safdarjung hospital and came to Holy family hospital but doctor said that they threw the clothes of Javeria in dustbin. He further S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-20 of 79) deposed that in meanwhile Tariq bother of injured came to holy family hospital and stated that at 7 pm he had seen Afroz and Shabbir on blue coloured motorcycle and accused Afroz was havind jug in his hand and thereafter he alongwith Tariq went to Akhtar Manzil and prepared site plan. He further deposed that thereafter he went to Safdarjung hospital alongwith Ct. Jitender and SI Tika Ram also came to Safdarjung hospital. He further deposed that at around 4.40 p.m., Javeria told SI Tika Ram that Afroz who was standing there in hospital that if she makes any statement to police, he would commit severe acts and they apprehended accused Afroz in Safdarjung hospital at the instance of Javeria. SI Tika Ram recorded the disclosure statement of accused Afroz and arrested him and thereafter accused was brought to PS and he pointed out the place of occurrence. Thereafter accused Afroz took the police to his house from where the motorcycle was recovered.

27. In cross examination he deposed that he reached Holy Family hospital at around 9.10pm on 14.10.2009 and reached Safdarjung hospital at around 10.30pm and recorded the statement of injured Javeria from 11.30 pm to 12.45 am. He further deposed that he could not find clothes of Javeria at Holy family hospital as doctors deposed that they threw them in dustbin and brother Tariq met him at Holy Family hospital at around 1.40 am and apprehended the accused Afroz at hospital at around 3.15 pm on 15.10.2009 and motorcycle was recovered from house of Afroz at around 6.40pm and it is wrong to suggest that said motorcycle was recovered S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-21 of 79) from house of accused on 15.10.2009 at 4 am.

28. In further cross examination on behalf of accused Shabbir he deposed that he first recorded the statement of Javeria and thereafter of Samar and victim Javeria deposed about the hulia of assailants and he also asked some local persons during inquiry but none deposed anything and also searched for rickshaw puller but could not find him. He further deposed that brother of victim told about the motorcycle but he had not written the same on any paper. He further deposed that he inquired about the name of person who spilled the water at the spot but nobody disclosed about him.

29. PW2 Ct. Lokesh Kumar deposed that on 20.10.2009 he alongwith SI Tika Ram went to the house of Shabbir where he was not found and thereafter went in the search of Shabbir in Jamia Nagar and when SI Tika Ram reached at Gali no. 20 Jakir nagar a secret informer met him and told that he had seen accused Shabbir few minutes back and thereafter pointed out towards Shabbir and he was apprehended and in the meanwhile injured Javeria also reached there who identified accused Shabbir and stated that he is the same person who threw acid on her face and her sister. In cross examination he stated that they left the PS at 10 am and reached the spot at around 6.45 am and IO was not carrying any photographs / sketch of Shabbir Ali and he did not knew the colour of clothes worn by accused and when Javeria arrived at spot one lady and one gents was with her who were her parents and they were not asked to be witness to the arrest of the accused and denied the suggestion that Javeria had not come S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-22 of 79) to the spot at the time of arrest and further denied the suggestion that injured Javeria could not identify the accused since she was unable to see. In further cross examination he deposed that he do not know accused Shabbir prior to the incident and also not aware of name of accused Afroz. He further deposed that other injured Samar was not with Javeria at that time.

30. PW3 Ct. Mahipal deposited two parcels with the seal of TR and SPS on 17.10.2009 at FSL Rohini.

31. PW6 Ct. Kishan Kumar deposed that on 29.10.2009 he had taken out accused Shabbir from lock up and brought him to his shop at H15, Abul Fazal , PartI and the key of shop was brought by his brother and accused had taken out a red stripe shirt which was burnt on shoulder side by acid and handed over the same to IO who packed the same in parcel with seal of TR. In cross examination he stated that he do not remember the DD number when he left for PS Nizamuddin and no entry in DD register was made to this effect. And shop was on ground floor but he cannot tell how many storeys that building was having. And no statement of Gullu brother of accused was recorded nor any receipt or seizure was made. Nor any site plan of place of recovery of shirt was made and no photographs were also taken. No public persons though collected were joined as witness to recovery proceedings and polythene in which shirt was lying was not seized.

32. PW7 HC Mohan Singh recorded FIR .

S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-23 of 79)

33. PW11 Ct. Jitender deposed that on 14.10.2009 he alongwith SI Sant Pal reached Holy Family hospital where they came to know the girls already referred to Safdarjung hospital. Thereafter he went to Safdarjung hospital where injured Javeria and Samar were found admitted and IO recorded the statement of Javeria, thereafter prepared the rukka and he took rukka to PS for registration of FIR. Thereafter, he alongwith FIR and rukka came to spot where IO was found present alongwith one person namely Tariq and he prepared site plan on his pointing out. Thereafter, they went to Holy family hospital for inquiry about clothes of Samar but hospital officials told that they have thrown the clothes of Samar. He further alleged thereafter that they came to Safdarjung hospital and IO seized clothes of injured Javeria. He further deposed on next day after lunch that he alongwith SI Tika Ram went to Safdarjung hospital and told SI Tika Ram that the person who threw acid was asking them in hospital whether they had made any complaint to police and she pointed out one person standing there namely Afroz and thereafter Afroz was apprehended and arrested. He further deposed that accused Afroz admitted that he threw acid on Javeria and Samar and his disclosure statement was recorded. Thereafter he took the police party to spot and further one motorcycle was recovered at his instance.

34. In cross examination he deposed tha the reached Holy Family hospital on 14.10.09 at around 9 pm and he was present when ASI Sant Pal recorded statement of victim Javeria and Samar. He further deposed that it is S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-24 of 79) correct that Javeria was looking at ASI Sant Pal when he was recording her statement. He further deposed that he met victim Tariq at spot on 15.10.09 at around 2.30 night and motorcycle was recovered from Afroz on 15.10.09 at around 6 pm.

35. PW16 SI Tika Ram deposed tha ton 15.10.09 he was handed over the investigation and went to Safdarjung hospital where injured Javeria told that one person namely Afroz who had thrown acid on her were present in the hospital. Thereafter accused Afroz was apprehended and on interrogation his disclosure statement was recorded. Thereafter, he pointed out place of occurrence and further a motorcycle was recovered which was used by him and co accused in the incident. He further deposed that on 20.10.2009 accused Shabbir was arrested and was identified by Javeria. Accused Shabbir Ali was also pointed out place of occurrence. Further at his instance his shirt was recovered from shop no. 15 Azad road, Abul Fazal Enclave, and on inspection the right side sleeve of said shirt was found burnt with the acid.

36. In cross examination he deposed that he received the information at around 12 noon on 15.10.09 at reached hospital at around 12.30pm and at hospital he had not made any inquiries from relatives of injured girls standing outside the ward. He further deposed that injured Javeria told him that Afroz had come to the hospital and at that time no family member of injured was present in hospital and he arrested the accused Afroz in ward itself at that time but he had not taken any signature of any S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-25 of 79) nurse or any other medial staff on the arrest memo. He further denied the suggestion that he had not taken the photographs of the spot deliberately to conceal the spot. He further deposed that statement of injured was already recorded prior to reaching him in the hospital and he took the supplementary statement of Javeria in the hospital. He further deposed that he tried to search the rickshaw wala but could not traced him and had not inquired from thekedars of rickshaw walas and from MCD people. He further denied suggestion that rickshaw wala told him that present accused is not the person who thrown acid on her. He further deposed that he do not know till date what was the chemical used in acid. He further deposed that he had not found any acid on the spot as some tractor of water went from the spot. He further deposed that acid was found mixed in water that is why he cannot separate it and could not lift the same from spot. He further deposed that on arrest memo of accused Afroz he put thumb impression of injured Javeria and not taken the signatures of other injured Samar and asked doctors and nurses for their signatures but they denied. He further deposed that he had not given any notices to doctors and nurses in this regard. He further deposed that after arrest accused was first taken to spot thereafter at his instance motorcycle was recovered from his house. He further deposed that he had not taken any signature of family members and no public person was called at the time of seizure of the motorcycle. He further deposed that he had not seen any acid marks on motorcycle. He further deposed that clothes of the accused Afroz were S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-26 of 79) not seized because he thrown those clothes in Agra canal. This witness was shown the certain exhibits and stated that he had not done any alteration and modification on those exhibits. He further deposed that he do not remember at what time on 20.10.2009 he left from PS to apprehend accused Shabbir and had made DD entry in this regard but do not remember the DD number. He further deposed that he went alongwith Ct. Lokesh on private motorcycle. He further deposed that he left the police station not on any information but on investigation. He further deposed that he had not mentioned this fact in case diary that he had taken accused Afroz to the house of accused Shabbir during investigation neither written this fact int he statement of other police officials. He further deposed that he arrested accused Shabbir in Zakir Nagar at instance of secret informer. He further deposed that he received the secret information prior to 7.00 p.m. on 20.10.2009 but cannot tell the exact or approximate time. He further deposed that he can't tell whether he received the information 2,3,4,5 hours prior to apprehension. He further deposed that secret informer pointed out towards the accused Shabbir at the time of apprehension and no public person gathered at the time of his apprehension and after apprehension of accused they remained at the place of arrest for about 1 and ½ hours and after arrest of accused Shabbir, Javeria, Sheeba and Samar were coming to that place in TSR but he had not taken the signature of anybody except Javeria. He further deposed that at the time of recording of disclosure statement of accused S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-27 of 79) all the three sisters were present and on medical examination no external injury was found mention of accused Shabbir. He further deposed that key of shop no. 50 brought by some boy and he had not seized the said key. He further deposed that there is no need of TIP in the present case as the witness has identified the accused at the time of arrest itself, however, it is correct that he mentioned in his application that he was produced before the court in muffled face. He further deposed that he tried to recover the plastic jug but could not find out the same. He further deposed that he had not seized the papers of motorcycle of accused nor inquired from transport authority who is the owner of that motorcycle. He further deposed that he had sent the clothes to FSL on 0911.2009 and those were taken by Ct. Mahipal and Ct. Mahipal took out the clothes from Malkhana at his instructions. He further denied suggestion that he fabricated another shirt and clothes and put H2SO4 acid and thereafter sent that to FSL.

37. Accused persons in their statement u/s 313 Cr.P.C has denied all the incriminating circumstances put to them and accused Afroz categorically stated that at the time of incident he was sitting at his shop and further denied that he was apprehended at Safdarjung hospital on 15.10.09 however stated that he was lifted from his house on 15.10.09 and his signatures were taken on blank papers and lateron converted into disclosure and other memos. He further stated that three months prior to incident , his parents refused the proposal of marriage given by Javeria S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-28 of 79) and therefore, he was falsely implicated in the present case. Even brother of injured Tariq also demanded Rs. 1 crore as extortion from him after the case and further opted to lead defence evidence.

38. Accused Shabbir in his testimony also denied all the incriminating circumstance and stated that at the time of incident he was sitting at his shop at Abul Fazal Enclave and giving treatment to his clients and further stated that on 20.10.2009 he was called at PS by SI Tika Ram and therefore he alongwith his brother Zuber Ali went to PS where SI Tika Ram asked bribe of Rs. 50,000/ and on refusal he implicated him in present case. And further stated that he was falsely implicated in present case .

Defence Evidence:

39. DW1 Sh Anis Ahmed brought in defence by accused Shabbir who stated that at the time of incident accused Shabbir was present at Abul Fazal Enclave and he went for bandaged at his shop and remained at his shop for one hour. He also deposed that he went to his shop between 67 pm, on 14.10.2009. further he came to know about the incident 10 days after the incident. However, in cross examination he stated that he is the Jamia University employee and having medical card and could not produce any slip that he received treatment from Shabbir nor produced any MRI, Xray S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-29 of 79) that he was suffering from some disease.

40. DW2 Zuber Ali brother of accused Shabbir deposed that on 20.10.09 he alongwith his brother went to Patiala House court and thereafter at around 12.30 pm they reached at PS Jamia where one police officer asked Rs. 50,000/ from accused Shabbir, however Shabbir stated that he do not have such an amount, thereafter he was apprehended but in cross examination he could not state which police officer asked Rs. 50,000/ and further stated that they had not made any complaint before any higher officer or any court.

41. DW3 Inderjeet Arora stated that he know accused Afroz because having shop in front of his shop in Okhla market and know him since childhood and most of time they close their shop around 9 pm and on 14.10.09 accused was on his shop and they both were playing Ludo. In cross examination he stated that he had not made any complaint regarding false arrest of accused and further they used to play cards in shop if there is no work in shop and name of father of accused is Kamruddin and his father has another shop in market at opposite side.

42. DW4 Masroor Ahmed also stated that Afroz living in front of his house and when the accused was arrested at about 9 am he was in his house and 1215 people gathered at his house. In cross examination he could not state which police persons arrested the accused and also could not state what are neighbours who collected at time of his arrest and further he do not know Kamruddin and also cannot tell house number of accused Afroz.

S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-30 of 79) Material Exhibits:

43. Ex.PW1/B is the statement of Javeria recorded by the police at Safdarjung hospital pursuant to which rukka Ex. PW1/C was prepared. As per rukka, the time of incident is around 7.00 p.m. near gali Akhtar Manzil, Gaffar Manzil, Delhi and the rukka was sent at around 12.45 a.m. on the night of 14/15.10.2009 from Safdarjung Hospital and an endorsement Ex. PW7/B was recorded vide DD no. 3A and FIR Ex.PW7/A u/s. 324/34 IPC registered at 1.35 am on the night of 14/15.10.2009. Ex.PW1/A is the site plan of the spot. Ex.PW1/D is the seizure memo of clothes on which acid was thrown was taken into possession by taking off from the body of injured Samar at Safdarjung hospital. Ex. PW1/F disclosure statement of accused Afroz and Ex. PW16/A disclosure statement of accused Shabbir recorded by SI Tika Ram on 20.10.2009 and same is witnessed by Ct. Lokesh and also bears the signature of injured Javeria, though there is specifically no name mentioned of injured Javeria. Ex. PW1/1 the seizure memo of the motorcycle used in the incident. Ex.PW1/H the pointation memo of the spot prepared at the instance of accused Afroz. Ex. PW16/B is the pointation memo dated 21.10.2009 of spot prepared at instance of accused Shabbir Ali. Ex. PW6/A the seizure memo of the shirt which was found S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-31 of 79) to be burned from the right side hand received at the instance of accused Shabbir.

44. Ex.PW1/A the application regarding permission of recording the statement of injured Javeria and on this application the doctor endorsed at around 11.35 p.m. on 14.10.2009 that injured is in sound state of mind and declared her fit for statement and on another application doctor also declared injured Samar to be in fit state of mind and declared her also fit to give the statement. Ex.PW4/D the MLC prepared at Holy Family hospital and injury is found to be caused by chemical burns and grievous in nature and as per MLC the injury is caused by two unknown person on motorcycle. Ex.PW10/A is the discharge summary of injured Javeria from Safdarjung hospital. Ex. PW4/C is the MLC of injured Samar with 15% chemical burn with facial and opthalmic involvement and opined to be grievous in nature and found chlorine smell positive. . Ex.PW4/A is the opinion given by Dr. Mala Saini from Holy Family hospital that injuries could be possible from acid chemical. Ex.PW1/G the arrest memo of accused Afroz showing his place of arrest as Safdarjung hospital on 15.10.2009 at around 4.40 pm and the said arrest memo is witnessed by Ct. Jitender, ASI Sant Lal and Javeria bearing RTI of injured Javeria. Ex. PW2/A is the arrest memo of accused Shabbir Ali showing his place of arrest as Okhla village on 20.10.2009 at around 7 pm and also bearing the signature of brother of accused and RTI of injured Javeria. Ex.PW16/DX S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-32 of 79) the medical examination of accused Shabbir Ali conducted by the police at AIIMS hospital at around 1.00 a.m. on 21.10.2009 and as per medical examination no fresh external injuries found on the accused. Ex.PW14/A is the FSL report showing that the sulphuric acid found on the exhibited clothes. Ex.PW13/A OPD card bearing signatures and stamp of Dr. Radhika Tandon , Professor of Opthermology with diagnosis of severe chemical burns and also written that it is verified from the hospital record that patient Javeria has only light perception vision and is bilaterally blind with 100% visual impairment and Ex.PW13/B showing diagnosis of severe chemical burns and also written that it is verified from the hospital record that patient Samar has only light perception vision and is bilaterally blind with 100% visual impairment. Ex.PW15/A1 to Ex. PW15/A26 are the photographs of injured Javeria and Samar. Ex.PW16/DX are the photographs of the place of occurrence submitted by the defence.

ARGUMENTS OF COUNSELS:

45. Ld. counsel for both accused Sh Manish Kumar Singh submitted that accused persons were falsely implicated in present case and they have nothing to do with infliction of acid injuries to Samar (PW12) and Javeria (PW8). Ld. Counsel for accused further submitted that both injured at S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-33 of 79) first instance in Holy family hospital not named accused persons before the doctor. It is clearly mentioned in MLC of both these injured at Holy family hospital that acid was thrown by some unknown persons. Ld. Counsel further submits that even in FIR which is recorded after 56 hours of incident PW8 Javeria had not named the accused persons, however, in the supplementary statements name of accused persons surfaced. Ld. Counsel further submits that Supreme court in case titled "Husna and Ors. Vs. State of Punjab , (1996) 7SCC 382", have clearly observed that when the names of appellants were found missing in FIR then naming of accused persons in supplementary statements are hit by section 162 Cr.P.C and cannot be relied upon.

46. Ld. Counsel for accused further submitted that from the testimony of the PW8 and PW12 it can be easily inferred that they were not able to see accused persons as it was dark time and there was no light at the spot, therefore, they have not named assailants in hospital and in FIR. Ld. Counsel further submits that PW8 Javeria stated that there was no street light at the place of incident however some light was coming from the houses adjoining the road whereas PW12 Samar in cross stated that there were no houses at the place of occurrence. ld. Counsel submits that the incident took place between 77.30 pm on 14.10.09 and this is a complete dark time in the month of October and it is not feasible for the injured to see the assailants from 50 yards. Ld. Counsel further submits that PW8 in her statement before court and FIR stated that the accused Afroz was S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-34 of 79) wearing helmet whereas in her statement u/s 161 Cr.P.C she stated that accused Shabbir was wearing helmet. Ld. Counsel further submits that there is even contradiction over clothes worn by accused persons.

47. Ld. Counsel further submits that the seizure of clothes of Samar by PW1 ASI Sant Lal at Safdarjung hospital and recovery of burnt shirt at the instance of accused Shabbir is all false. Ld. Counsel further submits that as per MLC's from the clothes, chlorine smell was coming. PW4 Dr. Mala Saini CMO Holy Family hospital also stated that as chlorine smell was coming, therefore acid used in incident is hydrochloric acid whereas as per FSL report the acid found on clothes is sulphuric acid. Ld. counsel submits that itself shows that police planted these clothes and poured sulphuric acid themselves. Ld. Counsel further submits that there is no question of recovery of clothes of Samar from Safdarjung hospital because both injured PW8 and 12 in their cross examination stated that their clothes were already taken out at Holy family hospital and they were made to wear medical gown at Holy family hospital.

48. Ld. Counsel further submits that there is an apparent contradiction in the statement of the witnesses of arrest of accused Afroz and Shabbir and their circumstances of arrest are not at all reliable. Ld. Counsel further submits that neither the rickshaw wala nor rickshaw were examined in present case who could be independent material witnesses. Ld. Counsel further submits that all the witnesses in present case are highly interested witnesses and their testimony on the face of it appears to be false and do S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-35 of 79) not match with the circumstances appear from the record. Ld. Counsel further submits that there is tampering of the colour of motorcycle on Ex. PW1/B which is clear from fact because in FIR it was clearly written word 'black' whereas it was tampered in PW1/B and changed to 'blue'. Ld. Counsel further submits that there is no acid found on the recovered motorcycle at instance of Afroz nor the police could connect the said motorcycle with the incident. Ld. Counsel further submits that the motorcycle as per testimony of injured is of black colour and the recovered motorcycle is of blue colour therefore, recovered motorcycle is in no way incriminating circumstance against accused Afroz.

49. Ld. Counsel further submits that all the seizure memos were prepared in PS which is clear form record as FIR number and other sections which were added lateron were found on those seizure memos. Ld. Counsel further submits that no independent or public witness was joined at any point in the recovery of any of the articles. Ld. Counsel for the accused submitted that as per prosecution case the accused wearing shirts at the time of incident torned due to acid burns however, in their medical examination no injury was found on their body. Ld. Counsel submits that it is impossible if the acid is poured over the clothes worn by person, then acid will not cause injury on body. This itself shows that accused were not present when the acid injuries were inflicted and falsely named in this case. Ld. counsel further submits that accused persons were not duly identified in court by injured.

S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-36 of 79)

50. Ld. Counsel further submits that even the defence witnesses have clearly proved that accused were at their respective shops at the time of incident. Ld. Counsel further submits that prosecution not able to prove even a single circumstance against the accused persons. The false implication is writ large in prosecution case.

51. Ld. Addl. PP on the other hand submitted that PW8 Javeria and PW12 Samar unequivocally testified that accused Afroz and Shabbir have thrown acid over them and they have seen them when they thrown acid over them. Ld. Addl. PP submits that there is no reason why these injured will falsely implicate these accused in present when they know them since childhood. Ld. Addl. PP submits that medical evidence clearly corroborated their injuries which are found to be very grievous in nature and both injured almost lost their vision due to acid injuries and has to suffer the entire life because of agony of these acid injuries. Ld. Addl. PP submits that accused Afroz has threatened the injured Javeria prior to the incident that he will destroy her life by pouring acid when she refused to marry her and this fact is categorically stated by both injured.

52. Ld. Addl. PP submits that mere non mentioning of name of assailants before doctors at Holy family hospital is of no value when there is valid explanation given by injured that they felt scared from accused at that time. Ld. Addl. PP submits that the entire investigation conducted in natural way and immediately after recording of statement of PW8, PW1 ASI Sant Pal went to the hospital where he met brother of injured and at S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-37 of 79) his instance he prepared site plan. Ld. Addl. PP submits that accused Afroz was arrested in hospital at the instance of injured Javeria . Ld. Addl. PP submits that coming of accused at hospital itself shows that he was guilty as trying to verify whether his name is given or not. Ld. Addl. PP submits that both the accused had pointed out the place of occurrence and acid burnt shirt was recovered at instance of Shabbir and further motorcycle used in offence also recovered at the instance of Afroz. Ld. Addl. PP submits that even the employee PW9 Uzma had corroborated the factum of threats given by accused Afroz.

53. Ld. Addl. PP submits that even if there is some faults in investigation, those faults cannot outway the credible testimonies of injured PW8 and PW12. Ld. Addl. PP submits that in statement u/s 313 Cr.P.C both accused could not give any credible explanation why they are falsely implicated in present case and the defence witnesses produced by accused are not at all reliable. Ld. Addl. PP submits that if accused were falsely implicated by police then why they had not made any representation to police or higher authority in at any point of time. Ld. Addl. PP submits that defence witnesses could not prove any documentary proof like treatment slips etc. that accused were present at the relevant time at their respective shops. Ld. Addl. PP submits that the entire evidence given by these defence witnesses are all after thought and cannot in any manner be relied upon. Ld. Addl. PP submits that prosecution proved its case beyond doubt.

S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-38 of 79)

54. Arguments heard. Record perused.

APPRECIATION:

55. Prosecution case as evolved from record that on 14.10.2009 at around 7.00, p.m. when PW8 injured Javeria and PW12 injured Samar were going back to their house at Zakir Nagar after closing their beauty parlour shop in rickshaw, around Akhtar Manzil, their rickshaw wala got down because of some speed breaker. In the meanwhile accused Afroz and Shabbir came on motorcycle and accused Afroz has thrown acid on their faces which he was carrying in some steel jug and immediately rickshaw wala took them to Holy Family Hospital. There they provided first aid and then referred to Safdarjung Hospital. At Safdarjung Hospital, police recorded the statement of injured Javeria between 11.35 to 12.45 a.m. and thereafter FIR was registered at PS around 1.35 a.m. in the intervening night of 12/15.10.2009. Thereafter, in the night ASI Sant Lal went to Holy Family hospital for collecting clothes of Javeria where he met Tariq (PW5 brother of injured), who stated him that he had seen both the accused near Akhtar Manzil on motorcycle with jug in hand and suspected them as assailants, thereafter because of his suspicion ASI Sant Lal took him to spot and prepared site plan at his instance.

56. On 15.10.2009 accused Afroz came to Safdarjung Hospital for verification whether injured Javeria had named him in the incident or not and also S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-39 of 79) threatened her in the hospital. Then at the instance of Javeria, accused Afroz was apprehended in hospital by the police and was formally arrested, further recorded his disclosure statement, pursuant to which he pointed out the place of occurrence. Thereafter at his instance his motorcycle bearing no. DL3S AJ 2179 was recovered. On 20.10.2009 accused Shabbir was arrested from one gali at the instance of one secret informer and at that time by chance Javeria was also passing through gali in auto (TSR), therefore, she identified accused Shabbir. Thereafter, accused Shabbir was arrested and his disclosure statement was recorded. Further at his instance on next day one shirt having acid burns on the right hand sleeve was recovered. During investigation, seized acid burn clothes of injured Samar alongwith Shabbir shirt were sent to FSL. As per FSL report the chemical H2SO4 (sulphuric acid) is found on the clothes of injured Samar as well as on the shirt recovered from Shabbir.

57. During investigation, police has collected the MLCs of the injured prepared at Holy Family Hospital, where both the injured stated to the doctors that the acid was thrown over them by two unknown motorcyclist and had not named the accused persons at Holy Family Hospital. The injured as per MLC reached hospital by 7.30 a.m. and police was informed from hospital at 8.45 p.m. Thereafter injured were referred to Safdarjung Hospital and ASI Santpal recorded statement Ex. PW1/B of injured Javeria at around 12.45 in Safdarjung hospital. In that statement injured Javeria only give the description of assailants and stated that S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-40 of 79) assailant sitting on the front side of motorcycle was aged around 3035 years, wearing Himesh Reshamiya type cap and the second assailant sitting on the back seat aged around 40 years was wearing helmet having jug in his hand. In this statement she had not named accused Afroz and Shabbir, however, as per statement of PW8 Javeria and PW12 Samar and other witnesses, accused Afroz and Shabbir were known to injured since childhood. PW8 Javeria in her statement to the police though raised suspicion over one Shahbaz of the present incident because around one month back of the incident she refused his marriage proposal and Shabaz during investigation is found to be name of accused Afroz. Police during investigation also recorded the statement u/s. 161 Cr.P.C. of injured Javeria and Samar, and both these witnesses, though have not mentioned the name of accused Afroz and Shabbir in their previous statement at hospital but specifically mentioned the name of the accused in their later on statements recorded by the police u/s. 161 Cr.P.C. During investigation police has also recorded statement of Tariq (PW5) brother of injured.

58. Prosecution case dependent upon the circumstance that both the injured knows the accused persons since childhood and had injured categorically named them in their testimony in court over their role in throwing the acid. Other circumstance relied by the prosecution is that both the accused were seen on motorcycle alongwith jug at the place of occurrence by PW5 Tariq at the spot prior to incident. Both injured stated that accused Afroz threatened PW8 around one month back and PW9 Uzma also S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-41 of 79) corroborated previous threatening given by accused Afroz. Prosecution further recovered the motorcycle used in the offence at the instance of accused Afroz from his house and also recovered acid burnt shirt at the instance of accused Shabbir. The detail appreciation of material circumstances as follows.

Whether PW8 Javeria and PW12 Samar able to see accused Afroz and Shabbir as assailants at the time of incident or not:

59. Injured PW8 Javeria and PW12 Samar were first admitted at Holy Family Hospital after the incident and their MLCs Ex. PW4/C and Ex. PW4/B were prepared at hospital and as per MLC they arrive at the hospital at around 7.30 p.m. and in that MLC they stated that some liquid were thrown over them by two unknown motorcyclist. Both these witnesses had not named accused Afroz and Shabbir at the first instance at Holy Family Hospital despite the fact that both knew accused persons since childhood. Thereafter, the statement of injured Javeria vide Ex. PW1/B recorded at Safjdarjung Hospital when doctor declared her fit for statement at 12.45 a.m. and in that statement, injured Javeria given the particulars of the assailants but had not named the accused persons.

60. Both the injured in their testimonies before the court stated that due to fear they had not named the accused persons in the Holy family hospital, S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-42 of 79) however, injured Javeria and Samar stated that at first instance in Safdarjung hospital they disclosed the name of the accused persons to the police whereas per Ex. PW1/B recorded at Safdarjung hospital the names of the accused persons were not given to police. It is pertinent to be mentioned here that even Tariq, brother of injured, on whose instance site plan was prepared, do not know in the night itself whether the injured had named accused. He just on the guess work stated that as he had seen the accused persons near Akhtar Manzil raised suspicion on them . He was categorical in his statement that he do not have knowledge about the name of assailants during investigation in night when associated in police proceeding at about 2 am around 34 am or later.

61. The explanation given by both PW8 injured Javeria and PW12 injured Samar that they did not name the accused person because they were scared. But, as per Ex. PW1/B i.e, statement of injured Javeria given to the police, she raised suspicion over one accused Shahbaz @ Afroz. It is highly unlikely when injured PW8 could raise suspicion over the accused Afroz @ Shahbaz then why she would not name him in her statement Ex. PW1/B, if she had seen him throwing acid over her.

62. PW8 and PW12 in their cross examination stated that they have told the name of the assailants to their family members at Holy family hospital but not stated to family members that they have not given names to doctors due to fear. PW12 Samar in her examination in chief deposed that her family members, cousin sister etc. reached the hospital. PW15 Sheeba S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-43 of 79) (sister) also stated that she received the information from Holy family hospital from her sister Bushra and entire night her brother, herself and her cousin remained in the hospital and she came to know the name of assailants first time in Safdarjung hospital but had not told the name of assailants to police because she was present with her sister in treatment at ICU. PW5 Tariq brother who is examined before the court stated that he had not talked with his sisters and the inevitable inference drawn from his statement that he do not know the name of the accused even after reaching the Holy family hospital till time site plan was prepared at his instance. PW8 and PW12 categorically stated that they have told the name of the assailants to their family members at Holy family hospital but from statement of PW5 Tariq it can be inferred that he do not know the name of assailants though was present with injured at Holy family and Safdarjung and further PW15 also stated that she came to know the name of assailants first time in Safdarjung hospital. Therefore this also creates apparent doubt over the fact whether the injured had in fact stated the names of assailants in the Holy family hospital itself even to her family members.

63. It clearly demonstrates that the acid was thrown over the injured by unknown persons therefore the name of accused persons neither surfaced in MLC recorded at Holy family neither in statement (Ex.PW1/B) which was recorded at around 12.45 am in night recorded by IO SI Sant Ram. Therefore, atleast for 6 hours or infact till apprehension of accused Afroz S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-44 of 79) at 4.40 pm next day the name of the accused persons did not come into picture. Thus, the injured statement that they have given the name of the accused persons at first instance at Safdarjung hospital do not appear to be credible at all. It is also noticeable that if they had given the name of assailants to their family members then those family members must have disclosed the same to the police but that is not the case. It also fortify the fact that injured do not know the assailants when they poured acid over them. There is no reason given by injured why they scared of accused in their testimony . Their prior story and later conduct do not show that they were in any manner scared of accused person. According to both injured, assailants after throwing acid speed away without uttering even a word. Therefore, there explanation that they not named accused to doctors at Holy family due to fear not appears to be credible at all. Whether from description of incident as deposed by injured PW8 Javeria and PW12 Samar it can be inferred that they have seen accused as assailants:

64. PW8 Javeria in her testimony before court as well as in her statement Ex.PW1/B given to police on basis of which FIR was registered, categorically stated that after closing shop she alongwith her sister Samar (PW12) went towards their house at Zakir Nagar on rickshaw and at near S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-45 of 79) Gaffar Manzil at speed breaker rickshaw puller got down and a blue coloured motorcycle was standing at some distance where he saw accused Shabbir on front seat and accused Afroz on back seat having steel jug in their hand. And they threw the acid on her and PW12 Samar and immediately they were taken to Holy family hospital by the rickshaw wala. In cross examination she stated that at the time of incident she was talking to Samar and had seen motorcycle from some distance but could not tell whether seen motorcycle on mod (bend) or after crossing the same and had seen the motorcycle from 50 yards. And at that time the road was deserted and there was no street light on road, however volunteered that some light was coming from flats on road and further denied that face of flats are towards gali side and not on road side and further stated that she recognised Afroz from 50 yards and motorcycle was parallel to their rickshaw and she was sitting on left side and further stated that both the persons were sitting on motorcycle in moving condition and having legs on both sides. And also stated that at speed breaker rickshaw puller got down and in the meantime accused persons came from back side and threw acid on them and ran away. And further stated that she do not know what pillion rider was wearing and since she was not able to look at him as he was wearing helmet. And further stated that after throwing acid, accused persons had not said anything.

65. According to this witness, she alongwith injured Samar were on rickshaw talking to each other and the time of incident is between 77.30 p, on S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-46 of 79) 14.10.09 i.e, in month of October and there was no street light on road but could see the lights from the flats and had seen accused Afroz from 50 yards, it appears to be somewhat incredible if two persons talking and sitting in a rickshaw could see a person from 50 yards on motorcycle that too when motorcycle is in a moving condition and accused Afroz stated to be at the seat of pillion rider. It can easily be inferred that at 7 7.30 pm in October is dark time and further there is no lights on road and thus it is not easy to identify a person in this kind of situation from 50 yards. It is also worth to be noticed that in first part of examination she stated that she saw the accused from 50 yards and at that time, both accused were sitting on motorcycle in moving condition and in later part of examination stated that when the rickshaw puller stopped at speed breaker, then accused persons came on motorcycle from the "back" and threw acid on them. It appears to be somewhat improbable when she see the accused from the front then somehow they came from the back and threw acid on her. She further could not state whether the acid fell on the rickshaw puller and it also not come on record whether acid even fell on rickshaw or not.

66. PW12 Samar other injured in her examination in chief on the other hand stated that when they reached near Akhtar Manzil which was deserted road, the bike of accused was already parked on road and accused Afroz and Shabir were sitting on motorcycle . She has not stated that she had seen them while motorcycle was in moving condition however she S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-47 of 79) specifically stated that their faces were towards them and accused Afroz was carrying one big steel jug and when rickshaw puller stopped at speed breaker both accused came and threw acid on them and fled away from the spot. According to this witness, the accused were waiting for them and she had seen them on motorcycle in standing condition whereas PW8 Javeria stated that she had seen them in moving condition. PW12 stated that they thrown acid from front side however, PW8 stated that accused thrown liquid from back side. PW12 in cross examination stated that the road where the incident took place there is no residential house. This also creates doubt of presence of light at that place because neither there is any light nor it could be inferred that light was coming from the house.

67. Therefore, the incident as described by both PW8 and PW12 if read together or in isolation, it appears improbable that in such facts and circumstances both are able to see the assailants when acid was thrown over them. This factor coupled with the other factors that at first instance before the doctors at Holy family hospital they stated that unknown persons had thrown acid over them and even in the statement of Javeria recorded by police at Safdarjung hospital which culminated in FIR, she had not named the accused persons. Even the brother who reached Holy Family hospital immediately after the incident was suspicious about the name of accused persons at least the time the site plan was prepared in that night.

68. From testimony of both injured, it can be easily inferred that both injured S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-48 of 79) were not able to see the assailants at the time of incident and improved their versions by naming accused as assailants in their statement u/s 161 Cr.P.C and also before the court and these improvements are in nature of contradiction hit by section 162 Cr.P.C and cannot be relied upon. Circumstance of seizure of acid burnt wearing clothes of injured Samar:

69. As per prosecution case, vide Ex.PW1/D ASI Sant Pal has seized the acid burnt clothes of injured Samar (PW12) from Safdarjung hospital by taking out those clothes from her body. Thus, as per this Ex. PW1/D the clothes of injured Samar were removed at Safdarjung hospital from her body and seized by the police. And as per prosecution case the clothes of injured Javeria (PW8) were taken out at Holy family hospital and were thrown in the dustbin, that could not be traced. PW1 ASI Sant Pal deposed that after sending the rukka and collecting the burnt clothes of injured Samar at Safdarjung hospital, he came to the Holy family hospital where doctors stated that they threw the clothes of Javeria in the dustbin and met brother Tariq of injured (PW5) at the Holy family hospital. PW5 also stated that on telephone he was told by her sister Sheeba that clothes of Javeria were to be handed over to the police therefore, he went to Holy Family hospital. Thus, from the testimonies of these witnesses, the clothes S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-49 of 79) of injured Javeria could not be found at Holy Family hospital and clothes of injured Samar were seized at Safdarjung hospital after taking out from her body.

70. However, on the contrary PW8 injured Javeria in her cross examination categorically stated that doctors at Holy Family hospital had taken out their clothes which they were wearing at the time of incident and they were made to wear gown and further stated that when they were at hospital, her mother, brother and sister also came at hospital and met both the injured. PW Ct. Jitender on the other hand stated that at Safdarjung hospital, the clothes of injured Javeria were taken out and clothes of injured Samar were lost in Holy family hospital. This all created doubt over the factum of seizure of clothes of injured Samar at Safdarjung hospital.

71. PW12 Samar also deposed in cross examination that after first aid treatment at Holy family hospital she was made to wear medical gown. This is natural also because when the burnt patient were given first aid it is unnatural that patient will be sent to another hospital after first aid in those burnt clothes. This makes the circumstances of recovery of burnt clothes of deceased Samar from Safdarjung hospital fictitious. Circumstance of arrest of accused Afroz:

S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-50 of 79)

72. As per prosecution case, statement of injured Javeria was recorded at around 12.45 am in night of 14/15.10.2009 vide Ex. PW1/B pursuant to which FIR was registered at around 1.35 am and in FIR name of accused/assailants not mentioned. PW1 ASI Sant Lal in examination in chief stated that at around 4.40 pm (evening) on 15.10.2009 Javeria told SI Tika Ram in hospital that a boy who was standing there namely Afroz asking her whether she has made any statement against them and further threatened that if she makes any statement against them then he will commit severe against her and then SI Tika Ram apprehended accused Afroz at Safdarjung hospital. PW2 in cross examination on the other hand submitted that SI Tika Ram came to Safdarjung hospital at 3 pm on 15.10.09 and thereafter he apprehended accused Afroz at at 3.15 pm at Safdarjung hospital. PW11 Ct. Jitender in examination in chief deposed that SI Tika Ram came to hospital after lunch next day and was handed over the further investigation and he went inside the ward and Javeria told SI Tika Ram that person who had thrown acid on her and her sister came to hospital and was asking her whether they had made any statements to police and pointed towards accused Afroz and thereafter accused Afroz was apprehended in Safdarjung hospital. And further stated that accused arrested at around 4.40 pm in Safdarjung hospital.

73. PW8 Javeria deposed that when she reached Safdarjung hospital for treatment, meanwhile police also reached the hospital and as she was not in proper condition to give statement, therefore doctor did not allow S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-51 of 79) police to record her statement and after some time accused afroz came to her in hospital and threatened her if she discloses his name then he would kill her, then after sometime police came, she shown Afroz to police and police apprehended him in the hospital and her statement was recorded in hospital. As per this version of witness, she had not first given the statement to police because she was in pain and then she pointed towards Afroz who was apprehended by police then police recorded her statement which is in complete deviation to prosecution story because as per prosecution the injured gave statement in night at around 12.45 am accused was apprehended at around 4.40 pm next day i.e, after 15 hours. PW8 however in cross examination though stated that she reached Safdarjung might be around 89 clock and accused Afroz came to hospital for threatening them but could not tell time when he came to hospital and neither could not tell whether he came before statement or after statement. But from her statement it cannot be inferred that there could be such huge gap of time of more than 15 hours between her giving statement to police and apprehension of accused Afroz. PW12 injured Samar though as per testimony in same ward had not stated anything that accused Afroz came to threaten injured Javeria in hospital. None of the family members including PW5 Tariq and PW15 Sheeba stated that accused Afroz came in hospital to threaten PW8 Javeria and was arrested by the police in the hospital. No other relatives who were present in hospital were examined by the police.

S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-52 of 79)

74. As per statement of PW15 Sheeba , deceased was in ICU and completely covered and all the time monitored by doctors and the nurse. It is natural when a patient is in ICU, she is all the time monitored by nurses and doctors. It appears unnatural and improbable in these circumstances that an accused who has committed such heinous act to go in ICU to threaten the injured when the entire family members of the injured andpolice was in the hospital. None of the doctors and nurses were made witness to fact that accused entered in ICU and threatened injured Javeria.

75. As per testimony of PW8 Javeria, she pointed out the accused to the IO and thereafter IO SI Tika Ram arrested him. It shows that accused is conspicuously threatening the injured in presence of police. This all appears not credible. Further, as the injured herself was covered with clothes, it cannot inferred that she pointed out towards the accused in this state of injury. Further, the arrest memo of the accused even do not bear the signatures of any doctor, nurse or any relative of the injured, however the thumb impressions were taken of injured Javeria who was lying on the bed. This factor coupled with other factors already discussed makes the circumstance of arrest of accused Afroz from the hospital false and fictitious.

Circumstance of arrest of accused Shabbir:

76. As per arrest memo Ex. PW2/A , accused Shabbir was arrested from S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-53 of 79) Okhla village on 20.10.09 at around 7 pm and the same is witnessed by PW8 injured Javeria and PW2 Ct. Lokesh Kumar.

77. PW2 Ct.Lokesh Kumar deposed that on 20.10.2009 he alongwith IO Tika Ram went to house of Accused Shabbir at Okhla village where he was not found and thereafter they went to Jamia Nagar area in search of Shabbir, in the evening reached gali no.20 Zakir Nagar where a secret informer told SI Tika Ram that one person who had thrown acid was seen around a few minutes back and then after sometime he pointed out towards accused Shabbir thereafter he was apprehended and arrested. In the meanwhile, injured Javeria PW8 also reached there and she had identified accused Shabbir and told that he is the same person who threw acid over her and her sister. In cross examination this witness stated that they left PS at around 10 am but do not know by which DD number and first they went to Okhla village at house of Shabbir where accused was not found and found one lady , then they reached the spot at around 6.45 am and no other job was assigned to IO from PS during this period and they met secret informer around 45 minutes of their arrival there. He further deposed in cross examination that Javeria arrived at spot with one lady and gents who were her parents. And they were not asked to be witness of arrest of accused as both hands of injured Javeria were bandaged completely. In cross examination he stated that victim Samar was not with Javeria at the time of arrest of accused.

78. According to this witness on 20.10.09 he joined investigation with IO SI S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-54 of 79) Tika Ram for apprehending the accused at around 10 am and first they reached his house at Okhla village where he was not found and only one lady was found thereafter they reached spot at 6.35 pm however in meantime they were in search of accused and apprehended the accused at around 6.45 pm and received the secret information just 45 minutes before his apprehension and accused was arrested from Zakir Nagar. As per his statement Javeria alongwith her parents also reached spot of arrest and identified the accused, however none of them were made witness to arrest of accused. This witness stated that none of them were made witness to arrest however the arrest memo also bears thumb impression of Javeria which itself creates doubt about taking of thumb impression of Javeria at spot.

79. PW16 IO Sant Lal stated in cross examination that he do not remember at what time they left form PS to apprehend accused Shabbir and he do not remember the DD number and left PS without any information and gone to the house of Shabbir and on reaching there his father told him that accused Shabbir left sometime before thereafter they went to Zakir Nagar and Zakir Nagar arrested accused at instance of secret informer. He further deposed that he received secret information prior to 7 pm but could tell at what time he received the same and also could not tell the approximate time also. He further deposed that he cannot tell whether he received the secret information about 2,3,4,5 hours before and further stated that informer told them that accused shabbir is in gali no.20 and S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-55 of 79) pointed towards Shabbir at time of apprehension and he remained with Shabbir at place of his arrest for about one and half hour and in meanwhile Javeria and Samar also came in TSR at the place of arrest and he had taken thumb impression of Javeria on arrest memo. He further stated that at the time of recording disclosure statement of accused, all three sisters were present.

80. According to this witness, he joined the investigation with PW2 in morning and arrested the accused from Zakir Nagar on secret information but cannot tell at what time he received the secret information. There are apparent inconsistencies in statement of PW2 Ct. Lokesh and IO Tika Ram PW16 about the manner of arrest of accused. PW2 stated that they received secret information 57 minutes prior to arrest however, IO stated that he cannot tell time of secret information whether it was received

2.,3,4,5 prior to arrest. IO stated that on 20.10.09 first they went to house of accused Shabbir at Okhla village where they found the father of Shabir who told him that he just left the house however PW2 stated that one lady met at house of Shabbir. PW16 stated that at spot they met injured Javeria alongwith her sister Sheeba and Samar as they came in auto however PW2 stated that they met injured Javeria with her parents at the spot. PW2 stated that as injured Javeria hands are completely bandaged therefore she was not made witness to arrest memo on the other hand PW16 IO stated that thumb impression of Javeria were taken on the arrest memo. It is worth to be noticed that neither PW12 Samar nor PW15 Sheeba deposed S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-56 of 79) that accused Shabbir was arrested in their presence. PW8 Javeria stated that injured Shabbir was arrested in her presence however in cross examination when arrest memo was put to her she stated that she could not go through same as could not see and further stated that he was arrested from her gali. According to arrest memo Ex.PW2/A of accused Shabbir the place of arrest shown to Okhla village whereas as per versions 3 witnesses ,the place of arrest is Zakir Nagar. Thus all the 3 witnesses do not appear to be at all credible on this aspect.

81. Ld. counsel for the accused during arguments also pointed out that arrest memo also bear signatures of one Zuber Ali brother of the accused Shabbir and it is not the case of prosecution that accused Zuber Ali was also present at the time of arrest of accused shabbir Ali. This also created doubt over the circumstance of arrest. It is also worth to be noticing that the disclosure statement of accused Shabbir was stated to be recorded in gali in presence of injured Javeria, Samar and Sheeba but his disclosure is not witnessed by any of three sisters. Thus on overall appreciation, the circumstance of arrest of accused Shabbir appears to be all false and fictitious.

Circumstance of pointation of place of arrest and recovery of motorcycle at the behest of accused Afroz:

82. According to PW16 SI Tika Ram, accused Afroz was arrested at S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-57 of 79) Safdarjung hospital whereas arrest memo, personal search memo and disclosure statements were recorded and thereafter from hospital accused took the police party to place of occurrence and then took police party to his house at gali no.10, Zakir Nagar and got recovered motorcycle no. DL3S AJ 2179 passion blue coloured. In cross examination he stated that he had not taken Afroz to PS after arrest, first he was taken to spot, then after that motorcycle was recovered at his instance from his house and he had not taken signatures of any family members of accused neither any witness was called to become witness to seizure of motorcycle. PW1 SI Sant Pal in whose presence the accused was arrested at hospital on the contrary had categorically deposed that after arrest and recording of the statement of the accused Afroz, he was brought to PS and thereafter was taken to the place of occurrence. PW11 ct. Jitender also stated that from hospital he was taken to PS thus, there is inconsistency whether accused was taken after arrest to PS or to place of occurrence.

83. As far as the recovery of motorcycle is concerned, no one from the family or any independent witness was joined in the said recovery of motorcycle neither the said motorcycle in any way connected with the offence as no Acid or any other mark was found on the said motorcycle nor the said motorcycle was shown to any of the witnesses.

84. In statement Ex.PW1/B in which PW8 Javeria stated that she had seen the assailants on motorcycle black colour and in FIR the word also came as black colour however, there is an alteration noticed in Ex. PW1/B and as S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-58 of 79) per this alteration the word "Kale"(Black) written in Hindi was changed to 'Neela' (blue) and there was specific question put to IO Tika Ram in cross examination who stated on seeing Ex.PW1/B that the colour of motorcycle written in PW1/B is Neela not black and there is no tampering of word 'Kala' in Ex.PW1/B. But the alteration in word 'kala' is conspicuous in Ex. PW1/B which is fortified from the fact that in Handwritten FIR Ex. PW7/A the word is written Kala and not "Neela". Thus inference drawn is motorcycle used in incident is of black colour however, because the motorcycle recovered at the instance from accused Afroz is of blue colour therefore necessary alteration is also made in statement Ex.PW1/B. This circumstance indicates that recovered motorcycle appears to be not used in the incident.

Circumstance of recovery of acid burnt shirt of accused Shabbir at the instance of accused Shabbir and circumstance of non recovery of shirt of accused Afroz alleged to worn by them at the time of incident, coupled with circumstance that no acid injury found on the body of both accused.

85. According to PW16 IO accused Shabbir was arrested from Gali no.20, Zakir Nagar on 20.10.2009 at around 7pm and in that gali he had recorded the disclosure statement of the accused and thereafter took him to the place of occurrence for preparation of pointation memo. On 21.10.2009 accused Shabbir Ali got recovered his shirt from his shop at H15, Azad S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-59 of 79) Nagar, Abul Nagar Enclave and on inspection the right side sleeve of said shirt was found burnt with acid. In cross examination, he stated that he had not inquired who is the owner of shop H15 and accused had called the keys of his shop from his house and some boy had brought keys but he had not recorded his statement. As per prosecution at the time of arrest one Ct. Kishan Kumar (PW6) also accompanied SI Tika Ram who stated that the key of shop was brought by brother of Shabbir. In cross examination PW6 Ct. Kishan Kumar could not tell the DD entry when accused were taken from lock up and taken to the shop no. H15 nor any time was stated by any witness in their testimony. PW6 Ct. Kishan Kumar stated that IO did not inquire about the owner of the building. And IO prepared the site plan of place where shirt was recovered but that was not found on record.

86. According to IO PW16 Tika Ram, the keys were handed over by one boy but could not state his name or relation with the accused however, PW6 Ct. Kishan Kumar stated that said key was handed over by brother Gullu of accused Shabbir . However, his brother is not made witness to seizure memo and it is not the case of prosecution that he refused to become the witness. The shirt alleged to be found in some polythene but that polythene was also not seized.

87. One thing more to be noticeable is that the pointation memo of place of occurrence was also prepared at the instance of accused Shabbir when arrested on 20.10.2009 but that pointation memo (Ex.PW16/B) was S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-60 of 79) prepared on 21.10.2009 and same is witnessed by Ct., Kishan Kumar (PW6) however, PW6 in his testimony had not stated that on 21.10.2009 the accused was taken for pointation of place of occurrence neither IO PW16 stated that accused was taken for pointation on 21.10.2009. Further, no independent witness was joined at any point of time i.e, at the time of recovery of shirt or at the time of preparation of pointation memo. This all creates doubt on the factum of recovery of shirt and preparation of pointation memo(Ex.PW16/B). This further reinforce doubt even on factum of arrest of accused Shabbir in the manner suggested by prosecution.

88. As per PW16 IO Tika Ram the shirt of accused Afroz could not be recovered as he had thrown his acid burnt shirt in Agra Canal. It is worth to be noticing here that as per prosecution case the accused Afroz was arrested on next day of incident in Safdarjung hospital and had thrown his wearing acid burnt shirt in Agra canal prior to his arrest. But, second accused Shabbir arrest who was arrested on 20.10.2009 would keep it in his house. This all appears to be improbable and point towards the fact that police is manipulating circumstances.

89. As per prosecution the shirt recovered from accused Shabbir was having acid burns on right hand sleeve but when the medical examination of the accused Shabbir was conducted, no injury was found on his body. Further the medical examination of accused Afroz was also conducted after his arrest. In this circumstance even if it is believed that he had thrown his S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-61 of 79) acid burnt shirt in Agra canal then in those circumstance those burn marks must have come on his body but no such injury was found on the body of the accused Afroz also. This not only created doubt over the circumstance of recovery and non recovery of shirts of the accused persons however, also created doubts of their presence or physical involvement in commission of the offence.

Rickshaw and Rickshaw wala:

90. As per testimony of PW8 Javeria and PW12 Samar they left from their shop on rickshaw to their house at Zakir Nagar and at about Akhtar Manzil accused thrown acid over them when they were sitting in the rickshaw. In these circumstances it is natural that some acid might have fallen on rickshaw or rickshaw wala. But prosecution neither able to locate the rickshaw nor rickshaw wala. This is a case in which acid injuries were inflicted to the injured while sitting on rickshaw and that rickshaw wala took both injured to hospital and rickshaw wala belonged to local area and inability to locate rickshaw and rickshaw wala by prosecution appears to be a bit unnatural. At hospital there is always some guards and beat constables and when ricksha wala had brought the injured to hospital, it cannot be inferred that neither the guards nor any local police constables had noticed his presence.

91. None of prosecution witnesses stated anything about rickshaw and S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-62 of 79) rickshaw wala. IO PW16 though in cross examination stated that they tried to search rickshaw wala but was not traced however stated that he had not made inquiries from thekedar of rickshaw walas or the MCD people and Ld. Counsel for accused confronted him that he had not tried to search rickshaw wala but stated that he made efforts to search rickshaw or rickshaw wala and recorded this fact in his case diary but he cannot point out on seeing case diary that he tried to search rickshaw wala. A suggestion was also put to IO that rickshaw wala told in PS that accused persons are not the persons who were involved in incident therefore he was not made the witness.

92. Admittedly, neither the rickshaw wala nor rickshaw was located in present case. No statement of any prosecution witness was recorded that what efforts were made to locate this material evidence. Neither the case diary suggests that police had made any efforts to trace rickshaw and rickshaw wala. This material independent witness is completely missing from the prosecution case without any justifiable reason and creates some sort of doubt and indicates that this might be deliberately withheld as might not be suiting with the prosecution version.

Factum of leaving shop after CLOSING the same by injured PW8 and PW12 VisaVis testimony of PW5 Tariq:

93. PW8 Javeria in her statement Ex.PW1/B which culminated in FIR and S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-63 of 79) further both PW8 and PW12 in their statements u/s 161 Cr.P.C dated 15.10.2009 categorically stated that after closing their shop they went on rickshaw to their house and on the way near Akhtar Manzil, the said incident of throwing acid happened on them. PW8 Javeria also in her statement before court categorically stated in examination in chief that on 14.10.2009, she closed her shop at around 7 pm and was going to her home with her sister Samar on rickshaw. Thus, from the statement of PW8 Javeria it is clear that she went to her house after closing the shop on rickshaw alongwith her sister Samar.

94. But as per prosecution case, PW5 Tariq (brother) on that day at around 7.00 pm went to the shop and where he found PW9 Uzma (employee) of PW8 Javeria. However, PW9 had not stated that PW5 Tariq had come at the shop after Javeria and Samar left the shop. PW9 also not stated that she was at the shop at around 7 pm when Javeria and Samar left the shop.

95. PW8 categorically stated that she left the shop after closing the same therefore, this creates doubt on the testimony of PW5 Tariq who stated that on that day at around 7 pm ,he went to the shop but could not found them at the shop. PW5 Tariq had not stated that shop was closed however, stated that he was informed by the girl employee that they already left the shop. The girl employee i.e, PW9 Uzma had not stated that PW5 visited the shop after Javeria and Samar left the shop. PW9 Uzma even also not stated that she was present at the shop on 14.10.2009 after Javeria and Samar left the shop. Thus in these circumstances, the version of PW5 S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-64 of 79) Tariq that he went to the shop at 7 pm (when it was already closed as per testimony Javeria) and met girl employee becomes suspect and this itself creates doubt over his entire disclosure over chain of events as stated by PW5 Tariq.

Circumstance of Threatenings given by accused Afroz to Javeria (PW8):

96. Both injured PW8 and PW12 had not stated that accused Shabbir had ever made any threatenings to them. PW8 Javeria in her statement recorded by police Ex. PW1/B though had not named the assailants but raised suspicion on accused Afroz (though addressed him as Shahbaaz) and further stated that one month back accused Afroz had proposed her for marriage and that proposal she refused and at that time then he threatened her that he will throw acid over her and will not leave her for anybody. PW8 in her examination in chief stated accused used to tease her 56 months prior to incident and used to blow whistle over her and used to tell her that to have friendship with her and lateron also offered her for marriage but she refused the marriage proposal, therefore, one month prior to incident he threatened her that if she do not marry him she would be made to bath in acid. But she had not disclosed this fact to anybody as there was some function in her house and marriage of her cousin sister.

97. In cross examination she was confronted over the fact that she was teased S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-65 of 79) by Afroz for 56 months. In cross examination she stated that she cannot tell the date and time when threatenings were given by Afroz however volunteered that he had given threatening of throwing acid one week prior to incident and proposal of marriage one month prior to incident and had not complaint to police in this regard. Thus, there appears to be some contradiction on factum when accused asked her for marriage and on the date when he gave threatened her to throw acid. This also makes the manner of allegation of threatening a bit inconsistent. Site plan of place of occurrence prepared at instance of PW5 Tariq:

98. According to PW1 ASI Sant Pal (initial IO), he after recording the statement of injured Javeria (PW8) at hospital prepared rukka and sent it for registration of FIR through Ct. Jitender and further collected the clothes of Samar at Safdarjung hospital and thereafter went to Holy family hospital for recovery of clothes of Javeria. As per prosecution case the rukka was prepared at around 12.45 am in the night of 14/15.10.2009, therefore, necessarily this witness PW1 reached the Holy family hospital after 1 am. PW1 ASI Sant Lal in cross examination stated that he met PW5 Tariq in Holy Family hospital at around 1.45 am. PW1 also stated in his examination in chief that at Holy family hospital PW5 Tariq stated that he had seen accused near Akhtar Manzil at around 7 pm, therefore he alongwith Tariq went to Akhtar Manzil alongwith Ct. Jitender and S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-66 of 79) prepared site plan at his instance.

99. Thus, as per PW1 ASI Sant Lal he prepared site plan at the instance of PW5 Tariq just as he saw the accused persons near Akhtar Manzil. PW5 Tariq also stated in cross examination at that time he was not definite that throwing of acid was committed by Afroz. PW5Tariq also in cross examination stated that he had not talked to injured in hospitals and was not certain of name of accused persons. Thus the site plan appears to be made just on the suspicion of PW5 Tariq and not of actual place of occurrence.

100.One thing pertinent to be noticed her that the site plan not prepared at the instance of any person who has seen the incident or committed the incident but on guess of PW5 Tariq. Further, PW1 ASI Sant Lal stated that he had not collected the soil from the spot as the same was cleaned by water. PW16 IO Tika Ram also stated that he could not collect the acid from the spot as the same was mixed with the water. Firstly, it is strange that they have seen the water on place of occurrence when they themselves are not clear of the place of occurrence. Secondly, even if the water is there, they can take the acid mixed water from the spot but they did not choose to do same. Thirdly it is inconceivable that PW16 IO Tika Ram who went to spot after 12 hours of preparation of first site plan will go and watch scenario of spot i.e, water mixed with acid. This all shows the circumstance of preparation of site plan is all fictitious.

S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-67 of 79) Steel Jug or Plastic Jug:

101.During investigation somewhere it has come on record plastic jug used in offence and somewhere appears steel jug used but police has not recovered the said jug in the present case nor any plausible explanation came on record why that jug could not be recovered. Neither police investigated from where accused brought acid etc. FSL Report showing Sulphuric Acid but Medical Record showing Hydrochloric Acid:

102. PW4Dr. Mala Saini CMO Holy Family hospital deposed on behalf of Dr. Rajnikant Shastri who conducted MLC of injured Javeria and Samar and found that there is positive smell of chlorine from the clothes of the injured and further in cross examination deposed that chlorine smell mentioned is just because of hydrochloric acid. Therefore, as per medical evidence, the acid poured over the injured was hydrochloric acid, however as per FSL report Ex.PW14/A, the sulphuric acid was found over the clothes examined i.e, of injured Samar and accused Shabbir. This itself created doubt over the factum of seizure of clothes of Samar and recovery of shirt at the instance of accused Shabbir because on both these clothes sulphuric acid was found and not hydrochloric acid. It thus shows that there is manipulation and sulphuric acid (H2SO4) was poured over the S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-68 of 79) clothes and then sent to FSL . Further, shows that no original clothes were recovered in the present case which were infected with Hydrochloric acid. Testimony of PW5 Tariq:

103.According to prosecution, both the injured had stated to doctors at Holy family hospital that the acids were thrown over them by some unknown persons and further PW8 Javeria in her statement also not told the name of assailants which was recorded at around 12,.45 am in the night. Therefore, till night around 1 am the police was not in position to know the name of assailants. However, PW5 brother of Tariq had deposed that he had seen both the accused near Akhtar Manzil at around 7 pm, while he was going to the shop of his sister, after coming from his office but had not stated any special reason why he had gone to shop of his sister on that day. PW5 testified that when at around 7 pm he reached shop he could not find his sisters and girl employee told that they had already left. However the girl employee Uzma not stated that PW5 had come to the shop after leaving of injured Javeria and Samar from the shop. PW8 Javeria in her statement before the police and court on the other hand stated that they left the shop after closing the same. This itself creates doubt whether PW5 Tariq could find the shop open and met the girl employee.

104.PW5 in his testimony stated that he received the information of incident S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-69 of 79) at his house but he was duly confronted with his statement u/s 161 Cr.P.C wherein he stated that on the way he received information. Further PW5 had not stated in his testimony that he got the knowledge of name of accused at hospital from the injured or from the doctor. Whereas PW8 Javeria had categorically stated that she had told the name of accused persons to her family members in the Holy Family hospital and her family members in hospital as per testimony includes her mother, sister, brother and other relatives and PW5 himself stated that he was present in the hospital. Therefore, this itself create doubt over testimony of PW8 Javeria over the factum of knowing of assailants at the time of incident and also created doubt on the testimony of PW5 that is why he had not given the name of accused persons in definite manner. PW5 deposed stated that even at the time of preparation of site plan i.e, after 1.45 am he was not definite about the names of accused persons.

105.Therefore, there is an apparent doubt on reading testimony of PW5 alongwith testimony of other witnesses and factum of closure of shop, whether in fact he he had seen accused at around 7 pm and also over fact that he went to shop on that day. This in itself creates the doubt of his association in the investigation in preparation of site plan etc. This witness and PW1 ASI Sant Lal stated that PW Sant Lal met him at Holy family hospital, thereafter he was brought by PW1 ASI Sant Lal at spot alongwith Ct. Jitender (PW11) whereas on the other hand PW11 Ct. Jitender stated that he went to the spot after taking rukka where he met S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-70 of 79) ASI Sant Lal and this witness. There are apparent contradictions of meeting of these witnesses whether in hospital or at spot and this contradiction if read with entirety of statement of PW5, his testimony appears to be tainted and appears to made witness for suiting police version.

Defence Version:

106.As per defence of the accused Shabbir, he was at his shop at the time of incident and in this regard he produced on defence witness DW1 Anis Ahmed who stated that accused Shabbir was residing at the back side of his street and he used to do job of rectifying the bones (haddi ko jodne ka) and on that day he had some back problem and went to him between 67 pm at his shop and remained there for one hour but this witness in cross examination could not produce any proof that he went to his shop on that day neither any medical documents that he was suffering such pain.

107.Accused Shabbir also produced his brother Zuber Ali (DW2) who stated that on 20.10.09 on the day of arrest he alongwith accused Shabbir first went to the court and thereafter went to PS Jamia at around 12.30 pm and there a demand of Rs. 50,000/ was made from accused Shabbir and when he refused he was arrested in the present case. However, this witness had also not made any complaint to higher police officer in this regard but his version have some credence because his signatures were also found on S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-71 of 79) arrest memo, whereas, per prosecution case he was not present at the time of arrest of accused Shabbir on 20.10.09. This witness atleast dented the prosecution story to the extent that accused Shabbir was not arrested in the manner suggested by prosecution.

108.Accused Afroz has also produced DW3 Inderjeet Arora who stated that on the day of offence accused was playing Ludo at his shop and further in cross examination stated that he had not made any complaint to police or in court on his false arrest and further stated that accused used to play cards at his shop. Accused Afroz has also produced one more defence witness DW4 Masroor Ahmed who stated that accused was arrested at around 9 am on 15.10.09 from his house but even could not tell name of neighbours collected at the spot. These defence witnesses produced though appears to be independent but from their version nothing comes that what steps either the accused or they have taken after the false arrest of the accused. Their testimonies are hardly of any assistance to the accused because there is no communication or complaint to any authority after the arrest of accused persons either from accused or his family that he was falsely implicated in the present case. However, it is a settled principle of law that the prosecution case do not get any help from weak defence and prosecution has to prove its case by standing on its own legs. There comes nothing in the defence evidence which could in any way enhances the prosecution case and supplied any incriminating material which could give any credibility to the prosecution case. Thus, even if the S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-72 of 79) court do not agree with defence of accused even then no benefit could be given to the prosecution case.

109. Ld. Addl. PP submits that injured PW8 and PW12 had specifically stated the names of the accused persons being assailants and there nothing tangible comes nothing on the record why the injured will falsely implicate the accused. It is cardinal principle of criminal law that entire burden to prove its case is on prosecution and the accused is not obliged to raise even any defence. Apex court in "Hare Krishna Singh & Ors. Vs. State of Bihar, AIR 1988 SC 863", had categorically observed that accused is not bound to say anything in defence and prosecution has to prove the guilt of the accused beyond doubt. Therefore, this contention of the Ld. Addl. PP that accused could not made any reasonable explanation why they were falsely implicated has no force.

110. Ld. Addl. PP submitted that prosecution case cannot be thrown away because of defective investigation when the injured witnesses categorically named accused as assailants. There is no dispute with the proposition that even if the investigation is illegal or suspicious the rest of the evidence must be scrutinized independently of its impact. However, in present case, the testimony of injured witnesses is not at all reliable on the factum that they had seen the accused persons as assailants in the said incident.

111.Ld. Addl. PP vehemently submitted that PW8 Javeria and PW12 Samar were inflicted grievous injuries and the medical evidence produced by the S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-73 of 79) prosecution corroborate this fact. Ld. Addl. PP submits that there is no occasion for the injured to falsely implicate the accused persons.

112.No doubt the injured suffered the grievous injuries which has destroyed their entire life and the offence as committed is barbaric and heinous in nature but only on the factum that injured had received such a grievous injuries itself is no ground to convict the accused, there must be some legal evidence to connect the accused persons with infliction of injuriees. Ld. Addl.PP's argument that why injured will implicate the accused persons is in any way cannot absolve the prosecution from fulfilling its obligation to prove its case beyond reasonable doubt.

113.On overall appreciation of evidence, it is clear that injured had not named the assailants before doctors at Holy Family neither the name of assailants were given by PW8 in FIR, nor any of the family members had given the names of accused in evening and night of incident. Further as already discussed the testimony of PW8 and PW12 cannot be believed to the extent that they had seen the assailants at the spot. The other incriminating circumstances relied by prosecution are the recovery of acid burnt shirt of accused Shabbir and the motorcycle of the accused Afroz , however as already discussed both these then circumstances are not proved by the prosecution neither proved as incriminating. Further, as per medical record, the acid thrown over the injured was hydrochloric acid however, as per FSL report the acid found over the clothes sent to FSL was H2SO4 therefore, demolishes the entire prosecution story over the S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-74 of 79) seizure of the clothes.

114.There are apparent omissions in the police case. The site plan was neither prepared at the instance of the injured, nor any other eye witness but was prepared at the instance of PW5 on the basis of guess. Prosecution even could not locate the material independent evidences of rickshaw wala and rickshaw. And neither could connect the accused persons to any other incriminating evidence. It has also not come on record that prosecution has made any efforts to collect this evidence of rickshaw wala and rickshaw. Prosecution miserably failed to prove even single circumstance beyond doubt.

115.It is settled principle of criminal jurisprudence that a burden of proof lies on prosecution and it has to prove its charge beyond reasonable doubt. Apex court in case titled as "Paramjeet Singh @ Pamma Vs. State of Uttrakhand, 2010 (10) SCC 439" in para 10 clearly observed that "A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotion. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-75 of 79) judge the evidence by yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions". Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.

116.Apex court in "Swaran Singh Rattan Singh Vs. State of Punjab, AIR 1957, SC 637", have observed S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-76 of 79) " it is no doubt a matter of regret that a foul coldblooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused 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 the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted".

117.Apex court in various judgments including "Babu Singh Vs. State, (1963) 3 SCR 749, Duvver Vs. State, AIR 1971 SC 1461, Palvinder Vs. state AIR 1952 SC 354, has mandated that even the strongest suspicion against accused will not amount to legal proof and cannot be ground for depriving the life and liberty of the accused.

118.Thus, the prosecution has to prove its case beyond reasonable doubt and burden of proof never shifts to accused. Accused can't be convicted even on grave suspicion and prosecution has to prove its case by reliable and S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-77 of 79) unimpeachable evidence. However, in present case, the testimony of injured witnesses PW8 and PW12 do not at all inspire confidence that they have seen the accused being assailants who had thrown acid over them, further as already discussed there is no other incriminating evidence proved by the prosecution to connect the accused with said offence. The investigation conducted by the prosecution case in very showdy manner and all the circumstances of recovery of acid burnt shirts and arrest of the accused persons appears to be totally manipulated.

119. It is reiterated at the cost of repetition that this court is not at all convinced that injured had seen the accused as assailants at the time of incident and there is no other legally proved evidence found on record to connect the accused with said offence.

120.The prosecution miserably failed to prove its case against the accused and unable to discharge its burden of proof. Hence, the accused persons are granted benefit of doubt and acquitted of all charges framed against them. Accused Mohd. Afroz and Shabbir Ali are directed to execute the bail bonds in terms of section 437A Cr.P.C by furnishing personal surety in sum of Rs. 50,000/ and one surety in the like amount to the satisfaction of this court.

121. No doubt this incident has ruined the entire life of the injured and this judgment will further inflame their wounds. But courts are bound by law and not permitted to convict on moral grounds without any reliable legal evidence.

S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-78 of 79)

122. "Law do not authorize illegality even for good cause. Justice will look into eyes, can't be done indirectly".




Announced in Open court
On 13th day of July, 2012                       (Ajay Kumar Jain)
                                         ASJ03, SE, Saket Court Complex
                                                    New Delhi

S/v Afroz @ Sharib @ Shahbaz etc., SC No. 100/10, (Pg-79 of 79)

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Delhi District Court

State vs 1. Afroz @ Sharib @ Shahbaz on 13 July, 2012