Delhi District Court
State vs . on 13 January, 2023
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
SC No. 183 of 2021
CNR NO. DLSE01-003627-2021
State
Vs.
1. Vishal
S/o Sh. Raju
R/o H.No. A-2/563,
J.J. Colony, Bhalswa Dairy,
New Delhi.
FIR No. 376/2019
PS: Amar Colony
U/s: 307/34 IPC & 25/27 Arms Act
Instituted on : 06.03.2020
Committed on : 01.04.2021
Argued on : 13.01.2023
Decided on : 13.01.2023
JUDGMENT
1. The accused in the instant case has been sent to face trial for offence u/s 307/34 IPC & 25/27 Arms Act with the allegations that on 23.11.2019 at about 12.05 AM at E-252, Sant Nagar in front of shop within the jurisdiction of PS Amar Colony, he in furtherance of common intention with co-accused Akash (since not apprehended) stabbed the victim Shivam several times with a knife and caused him injuries with such intention and under such circumstances if he had caused death of SC No. 183/21, FIR No. 376/19, PS Amar Colony State vs. Vishal 1 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:15:16 +0530 injured he would have been guilty of murder. It is further the case of prosecution that said weapon of offence i.e. button actuated knife was recovered at the instance of accused on 09.12.2019.
2. The facts as discernible from record may be taken note of:
On 23.11.2019, on receipt of DD No. 6A, ASI Krishan Pal alongwith Ct. Kapil reached at Trauma Centre AIIMS and collected MLC of injured (who was admitted in ICU) wherein injured was declared as 'unfit' for statement. Thereafter, eyewitness Gaurav who took the injured to hospital went to police station and gave his statement alleging that in the night of 22.11.2019, he alongwith his friend Shivam, Gautam and Deepak were talking with each other while sitting on the stairs of a shop No. E- 252; that at about 12.05 AM, accused Vishal alongwith one of his associates came there; that Shivam and accused Vishal had previous enmity; that accused Vishal threatened Shivam that "tu bada chaudhary banta firta hai, tujhe aaj sabak sikhate hain" ; that accused Vishal and his associate took out the knives; that associate of accused Vishal caught hold of Shivam from behind and accused Vishal stabbed him many times with the knife; that accused Vishal also threatening Shivam that "aaj tera kaam tamam kar dunga"; that in the meantime, after hearing noise, public persons gathered at the spot and accused fled away from the spot; that he alongwith his friends took Shivam to Trauma Centre AIIMS in an auto and got him admitted there; that accused attacked upon injured Shivam in a pre-planned manner. On these allegations, FIR u/s 307/34 was registered in the instant case.
SC No. 183/21, FIR No. 376/19, PS Amar Colony State vs. Vishal 2 of 13
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.01.13
14:15:25 +0530
2A. During investigation, IO seized the wearing clothes of
injured Shivam and deposited the same in malkhana. IO also prepared site plan of the place of occurrence at the instance of complainant Gaurav. IO obtained the NBW against accused Vishal and later on at the instance of one secret informer, accused Vishal was arrested from Astha Kunj Park, East of Kailash and on his cursory search, one buttondar knife was recovered from the right side pocked of his wearing pant. During course of investigation, accused disclosed about his involvement in the crime in question alongwith his friend Akash. Accused Vishal also got recovered two stolen mobile phones from his house pertaining to case FIR No. 000708/19 and 000802/19, PS Amar Colony. An information regarding arrest of co-accused Akash in case FIR No. 409/19, u/s 445/447, PS Barsowa Mumbai was received but despite issuance of production warrant in the concerned jail, accused has not been produced till yet. The result on the MLC of injured Shivam was obtained wherein the doctor has opined the injuries as 'Grievous Sharp'. Seized clothes of injured and recovered buttondar knife were deposited in the FSL for examination.
3. Upon completion of investigation, charge sheet u/s 173 CrPC was filed against accused Vishal for offences u/s 307/34 IPC & 25/27 Arms Act. After statutory compliance, present case was committed to the court of Sessions by Ld. Magistrate vide order dated 25.03.2021.
4. Vide order dated 17.05.2022, accused Vishal was formally charged for commission of offences under section 307/34 IPC & 25/27 Arms Act, to which he pleaded not guilty and claimed trial.
SC No. 183/21, FIR No. 376/19, PS Amar Colony State vs. Vishal 3 of 13
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.01.13
14:15:34 +0530
5. In order to prove its case, prosecution examined eight (08) witnesses.
6. PW1/ victim Shivam deposed that on 22.11.2019 at about 12-12.30 am (midnight), he alongwith his friends namely Gaurav, Deepak and Gautam were sitting on the staircase of a shop bearing Shop No.E- 252, Sant Nagar, New Delhi; that in the meantime three persons came there from somewhere and they asked him to handover his scooty to them; that he told them since he did not know them, he cannot give his scooty to them; that an altercation took place between them and during that course, one of them had stabbed him on his left chest and abdomen repeatedly from his behind; that his friends who were present at that time got frightened and they did not do anything to save him; that after sustaining injuries, he fell on the ground and became unconscious; that his friend Gaurav took him to AIIMS Trauma Centre and got him admitted there. On court question if he can identify the person who gave him repeated knife blows, the witness deposed that he cannot identify the assailant as it was dark at that time. He further deposed that he cannot identify the knife by which he was stabbed.
6A. On being cross examined by Ld. Addl. PP for the state, the witness denied the suggestion that accused Vishal present in the court is the same person who had given him repeated knife blow on his abdomen and chest in the night of 22.11.2019. He further denied the suggestion that accused Vishal present in the court was known to him even prior to the incident as he had altercation with him once or twice SC No. 183/21, FIR No. 376/19, PS Amar Colony State vs. Vishal 4 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:15:44 +0530 before the present incident. He denied the suggestion that on 22.11.2019 at about 12 mid night, as soon as accused Vishal alongwith his friend came to the place of incident, he started threatening that 'tu bada chaudhary bana firta hai, aaj tujhe sabak sikhaunga '. He further denied the suggestion that during altercation, accused Vishal took out a knife and stabbed him on his abdomen and left chest repeatedly. He denied the suggestion that while giving him knife blows repeatedly, accused Vishal also threatened him that ' aaj tera kaam tamaam kar dunga'. He further denied the suggestion that police had recorded his statement Mark X in the present case or that he had stated the aforesaid facts in his statement Mark X.
7. PW2 Deepak deposed that in year 2019, he alongwith his friends Gautam, Shivam and Gaurav were sitting near his house at about 11.00 PM and it was dark; that Shivam told him that he was stabbed and showed his injuries; that he had not seen the assailants at the spot and did not know who injured Shivam.
7A. On being cross examined by Ld. Addl. PP for the state, the witness denied to have made statement Ex. PW2/DX1. He further denied the suggestion that on 22.11.2019 at around 12 midnight accused Vishal came with co-accused and threatened Shivam or that accused Vishal present in the court is the same person who had given him repeated knife blow on his abdomen and chest in the night of 22.11.2019. He further denied the suggestion that accused Vishal present in the court was known to him even prior to the incident as he had SC No. 183/21, FIR No. 376/19, PS Amar Colony State vs. Vishal 5 of 13 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:15:54 +0530 altercation with him once or twice before the present incident. He denied the suggestion that on 22.11.2019 at about 12 mid night, as soon as accused Vishal alongwith his friend came to the place of incident, he started threatening that 'tu bada chaudhary bana firta hai, aaj tujhe sabak sikhaunga'. He further denied the suggestion that during altercation, accused Vishal took out a knife and stabbed him on his abdomen and left chest repeatedly. He denied the suggestion that while giving him knife blows repeatedly, accused Vishal also threatened him that 'aaj tera kaam tamaam kar dunga'. He further denied the suggestion that police had recorded his statement Ex. PW2/DX1 in the present case or that he had stated the aforesaid facts in his statement. He failed to identify the accused despite pointing out by Ld. Addl. PP.
8. PW3 Gautam is the third eyewitness cited by prosecution. He deposed that he alongwith his friends Deepak, Gaurav and Shivam were sitting in the night time and thereafter he left from there; that he came to know that Shivam has been stabbed by someone; that he had not seen the assailants at the spot and did not know who injured Shivam. On being cross examined by Ld. Addl. PP for the state, he deposed on the lines of PW2 by denying all the suggestions given by Ld. Addl. PP. He also failed to identify the accused despite pointing out by Ld. Addl. PP.
9. PW4 Gaurav is the fourth eyewitness who deposed that on 22.11.2019 at about 12.00-12.30 midnight, he alnogwith his friends Shivam, Deepak and Gautam were sitting on the staircase of his shop No. SC No. 183/21, FIR No. 376/19, PS Amar Colony State vs. Vishal 6 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:16:06 +0530 D-252, Sant Nagar, New Delhi; that in the meantime, three persons came there and asked Shivam to handover his scooty to them; that Shivam told them since he did not know them, he cannot give his scooty; that thereafter an altercation had taken place between them and in the process one of them had stabbed Shivam on his left chest and abdomen repeatedly from behind; that after sustaining injuries Shivam fell on the ground and became unconscious; that he took Shivam to AIIMS Trauma Centre and got him admitted there; that he cannot identify the person who had stabbed Shivam; that he also cannot identify the knife by which the injury was caused to Shivam. On being cross examined by Ld. Addl. PP for the state, he denied the suggestion that accused Vishal is the same person who had stabbed victim or gave him repeated knife blows on his abdomen and chest. He further failed to identify the accused despite pointing out by Ld. Addl. PP.
10. PW5 Inspector Amit Prakash is the second IO of the present case who deposed about investigation conducted by him. He deposed that on 24.11.2019 he prepared site plan Ex. 4/DX2 of the place of occurrence at the instance of complainant Gaurav and recorded his supplementary statement; that he also recorded statement of first IO ASI Krishan Pal and other witnesses i.e. Deepak and victim Shivam; that on 07.12.2019 NBWs against accused were got issued from concerned court; that on 19.12.2019, accused was arrested vide memo Ex. PW5/1 on the basis of secret information and his personal search was conducted vide memo Ex. PW5/2; that one button operated knife was recovered from the right pocket of the pant of accused, sketch of which was prepared vide SC No. 183/21, FIR No. 376/19, PS Amar Colony State vs. Vishal 7 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:16:18 +0530 Ex. PW5/4 and same was seized vide memo Ex. PW5/5; that he prepared the site plan Ex. PW5/6 of the place of recovery of knife; that he prepared pointing out memo Ex. PW5/7 of the place of occurrence at the instance of accused.
10A. He further deposed that on 10.12.2019, accused was produced before concerned court and one day PC remand was obtained; that during PC remand, search of co-accused Akash was made at the instance of accused Vishal but could not succeed; that on 11.12.2019, two other stolen mobile phones were recovered at the instance of accused from his house which were seized; that on 14.12.2019, on receipt of DD No. 22B regarding arrest of accused Akash from Barsova Police Station, Mumbai, production warrants were got issued against him on two occasions but he could not be produced; that on 27.01.2020 final opinion regarding injuries of victim Shivam and weapon of offence were obtained from hospital and placed on record.
11. PW6 Retired SI Krishan Pal is the first Investigating Officer of the present case who deposed about the investigation conducted by him. He deposed that on 23.11.2019 at around 3.20 AM, on receipt of DD No. 6A (Ex. A2), he alongwith HC Kapil reached at AIIMS Trauma Centre where he procured the MLC of injured Shivam who was admitted in ICU and doctor opined him unfit for statement; that no other eyewitness was found in the hospital; that in the hospital, Duty Constable Sunil had handed over him one sealed pullanada of the clothes of the injured alongwith sample seal CMO JPNAPC and same was taken in SC No. 183/21, FIR No. 376/19, PS Amar Colony State vs. Vishal 8 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:16:37 +0530 possession by him vide seizure memo Ex. PW-6/1; that thereafter he came back in the police station; that one eyewitness namely Gaurav had arrived in the police station whose statement Ex. PW-4/X1 was recorded; that on the basis of MLC and statement, he prepared tehrir Ex. PW6/2 and got the case registered; that thereafter investigation was handed over to SI Amit Prakash; that he had deposited the case property in the malkhana.
12. PW7 HC Sajjan and PW8 HC Manoj Kumar are the witnesses to the investigation who deposed on the line of IO. They inter alia deposed about arrest of accused, their personal search, recovery of button operated knife from accused, preparation of its sketch and seizure memo, preparation of site plan of the place of incident.
13. Record transpires that during course of trial, accused admitted certain documents of prosecution i.e. registration of FIR alongwith certificate u/s 65B Indian Evidence Act Ex. A1 (colly), DD No. 6A dated 23.11.2019 Ex. A2, DD No. 22B dated 14.12.2019 Ex. A3, MLC dated 23.11.2019 of victim alongwith discharge summary Ex. A4 (colly), subsequent opinion No. 47/20 dated 26.02.2020 Ex. A5, X-ray report dated 23.11.2019 Ex. A6, copy of RC No. 25/21/20 dated 15.02.2020 Ex. A7, DAD Notification issued on 29.10.1980 by Deputy Secretary, Home (G), Delhi Administration Ex. A8 and FSL report of Bio Division dated 17.05.2022 Ex. A9 vide his separate statement recorded on 15.10.2022 under section 294 CrPC. Therefore, said documents can be read in evidence without formal proof of same in terms of section 294 Cr.PC.
14. On conclusion of PE, statement of accused u/s 313 CrPC was SC No. 183/21, FIR No. 376/19, PS Amar Colony State vs. Vishal 9 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:16:44 +0530 recorded, wherein he claimed to be falsely implicated. Accused chose not to lead any defence evidence in his favour.
15. I have heard rival contentions and perused the record.
16. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
17. In Sujit Biswas vs. State of Assam, (2013) 12 SCC 406, it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be"
true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture.
18. Further, in Jose vs. Sub Inspector of Police, Koyilandy & Ors., (2016) 10 SCC 519, the Supreme Court held as under:-
"In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence SC No. 183/21, FIR No. 376/19, PS Amar Colony State vs. Vishal 10 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:16:54 +0530 available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted."
19. In the instant case, as evident, none of the star witnesses of the prosecution i.e. injured Shivam (PW1) and other eyewitness Deepak, Gautam and Gaurav (PW2, PW3 and PW4 respectively) supported the prosecution version in the witness box. They failed to identify the accused as perpetrator of the alleged offence. Despite their elaborate cross examination by Ld. Addl. PP for the State, nothing material could be elicited out from them. They categorically denied the suggestion given by Ld. Addl. PP that accused Vishal had given repeated knife blows to victim Shivam. Therefore, in view of the hostile version of PW1, PW2, PW3 and PW4, the whole prosecution version crumbles for offence u/s 307 IPC and nothing survives thereafter on that count.
20. During course of arguments, Ld. Addl. PP for the state vehemently relied upon recovery of weapon of offence i.e. one button operated knife from accused. As per Ld. Addl. PP, the prosecution witnesses i.e. Investigating Officer (PW5), HC Sajjan (PW7) and HC Manoj Kumar (PW8) have proved the said recovery and therefore the case of prosecution has at least got proved beyond all reasonable doubts for offence u/s 25 Arms Act against accused. The arguments of Ld. Addl. PP on this count appears to carry some force at first instance, however same loses its sheen on closer scrutiny of the facts of present case. The case as set up by prosecution is that after the alleged incident, weapon of offence i.e. one button operated knife was recovered from possession of accused on 09.12.2019 at the time of his arrest by the IO i.e. PW5 SC No. 183/21, FIR No. 376/19, PS Amar Colony State vs. Vishal 11 of 13 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:17:03 +0530 Inspector Amit Prakash (then SI) in the presence of PW7 HC Sajjan and PW8 HC Manoj Kumar. As per prosecution, the alleged incident took place on 22.11.2019. Therefore, it is evident that accused had sufficient time of more than two weeks (after commission of the alleged crime) for disposal of the weapon of offence. However, surprisingly as per prosecution version, instead of disposing of the weapon of offence forthwith, which would otherwise be a natural human conduct of any accused after committing such a ghastly crime, accused was carrying the same in his pocket for police party to apprehend him and recover the same from his possession.
21. Be that as it may, during cross examination of witnesses, it has come on record that the public persons were available at the time of alleged recovery. However, no written notice was served upon them to join the proceedings in the present case or to face action u/s 187 IPC. Therefore it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution. The reliance is placed on Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Roop Chand Vs. The State of Haryana 199 (1) C.L.R. 69 and Sadhu Singh Vs. State of Punjab 1997 (3) Crime
55. Therefore, even the recovery of weapon of offence from accused becomes doubtful.
22. To summarize, not a scintilla of evidence has come on record against accused for offence u/s 307 IPC & 27 Arms Act in view of hostile version of all eyewitnesses including victim. Further, even the recovery SC No. 183/21, FIR No. 376/19, PS Amar Colony State vs. Vishal 12 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.13 14:17:12 +0530 of button operated knife becomes doubtful for non-joining of independent witnesses and due to huge time gap between the date of offence and alleged recovery. Hence, I have no hesitation in holding that prosecution has failed to prove guilt of accused beyond all reasonable doubts. Therefore, accused deserves to be acquitted in the instant case.
23. Accordingly, accused Vishal stands acquitted of the charge under section 307/34 IPC & 25/27 Arms Act. He be released from custody, if not required in any other case.
24. File be consigned to record room after due compliance.
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2023.01.13
14:17:20 +0530
Announced in the open (ANUJ AGRAWAL)
Court on 13th January, 2022 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
SC No. 183/21, FIR No. 376/19, PS Amar Colony State vs. Vishal 13 of 13