Delhi District Court
State vs 1. Mohd. Saleem S/O Mohd. Nishar on 16 November, 2011
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 42/10
State Vs 1. Mohd. Saleem S/o Mohd. Nishar
R/o Village Kanpur Jajamu,
PO Shivan Tanduri, PS Chakeri,
Distt. Kanpur.
2. Mohd. Wasim S/o Mohd. Nishar
R/o Village Kanpur Jajamu,
PO Shivan Tanduri, PS Chakeri,
Distt. Kanpur.
3. Nasim S/o Mohd. Nishar
R/o Village Kanpur Jajamu,
PO Shivan Tanduri, PS Chakeri,
Distt. Kanpur.
4. Bismillah S/o Mullajim
R/o Village & PO Jumai,
PS Sikender Pur, Distt. Balia,
UP
5. Wajid S/o Nasim (facing trial in Juvenile court)
6. Ajay Kumar s/o Ram Dev Mandle (facing trial in
Juvenile court)
FIR No: 726/07
P.S. Okhla Industrial Area
U/s. 147/148/149/323/307/302/34 IPC
DATE OF INSTITUTION : 23.09.2010 (Initial date
of Institution 22.01.2008)
JUDGMENT RESERVED ON : 04.11.2011
DATE OF DECISION : 16.11.2011
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-1)
JUDGMENT:
1. In this unfortunate incident a trivial dispute between the neighbours turned into fatal tragedy resulting in loss of life and injuries to one party and long incarceration in jail to other party besides ruining of both families. Famous saying "when time is bad, nobody knows what evil will happen to you or what evil will be committed by you".
2. Prosecution facts in brief are that on receiving information vide DD no.36 at around 12.16 am regarding quarrel at D48 jhuggis, Okhla , HC Bhura Singh alongwith SI Mahender, SI Bhagat Ram and Ct. Bhagwan Singh reached the spot and on inquiry at the spot they found that injured were already taken to AIIMS hospital by PCR thereafter, by leaving SI Mahender at spot, Ct. Bhagwan Singh, SI Bhagart Ram and HC Bhura Singh reached hospital and found deceased Ram Singh brought dead and injured Mani Ram unfit for statement. Further, on receiving DD No. 58 B dated 26.07.08 Inspector Z.H. Khan also reached AIIMS hospital where he was handed over the MLC's of deceased Ram Singh and injured Mani Ram @ Ram Lal by SI Bhagat Singh and Ct. Bhagwan Singh, thereafter inspector Z.H. Khan alongwith staff reached the spot where he found SI Mahender Singh and one Manoj S/o Lala Ram.
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-2)
3. Inspector Z.H.Khan recorded the statement of Manoj s/o Lala Ram who alleged in his statement that he is permanent resident of District Kanpur, UP and presently he is living with his cousin Ram Singh (deceased) and working at B55 Okhla PhaseI as a tailor. He further alleged that in their neighbourhood there is a jhuggi of one Saleem who has Murga meat shop near railway track and brothers of Saleem namely Naseem and Wasim also have Murga meat shop near hotel Chawla. He further alleged that Saleem used to tease ladies and quarrel with people after taking liquor. He further alleged that before 2025 days, he made comments on the ladies but as he felt sorry nothing happened. And at around 11 O'clock in the night Saleem and his servant Bismillah had come after closing their shop and sat on a takhat in front of their jhuggi and started making fun of one Rama Devi who was sitting nearby and to this his brother Ram Singh objected, on this hathapai had taken place between the two and in that hathapai Saleem fell down and got some injury on his head. Thereafter, Saleem and his servant Bismillah by threatening them had left the place. He further alleged that after 2025 minutes Saleem alongwith his brothers Naseem, Wasim and servant Bismillah, Wajid and Ajay had come to the spot in two Bajaj Pulsor motorcycles. Accused Saleem, Naseem Wasim, Bismillah and Wajid had in their hands big meat cutter knife and Ajay had a danda in his hand and all of them had taken out Ram Singh from his jhuggi and started beating him in front of factory B48. He further alleged State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-3) that he, his neighbour Kalu and Mani Ram tried to free him but they started beating them also. He further alleged that Saleem and Bismillah had inflicted injuries from the knives they were holding and therefore, his brother got grievously injured and fallen down. Thereafter, all these people had followed them and they also ran to save themselves. But Naseem, Wasim and Wajid had apprehended Mani Ram and inflicted stab injuries on Mani Ram. Saleem and Bismillah had also inflicted stab injuries on Mani Ram. Further Ajay had inflicted injuries over his (Manoj) hand by danda and somehow, they managed to save their lives and thereafter all these boys left the spot on their motorcycles. Thereafter, Kalu had called police from his mobile no. 9868788931. After that Kalu had taken his brother and Mani Ram in PCR van to AIIMS hospital. Pursuant to his statement, rukka was prepared and FIR was registered u/s 147/148/149/32/307/302/34 IPC and investigation was handed over to Inspector Z.H. Khan.
4. During investigation, rough site plan of the spot was prepared. Crime team was called at the spot and photographs of the spot were taken. And from spot earth control blood stain, earth control and blood in gauze were seized and statement of witnesses were recorded. And thereafter, postmortem of the dead body of deceased Ram Singh was conducted and it was opined in the postmortem that cause of death is respiratory arrest consequent upon injury to the lung and all the injuries are antemortem State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-4) and fresh in duration. Injury no.1 is sufficient to cause death in ordinary course of nature and injury no.1 & 2 are both caused by double edged stabbing weapon.
5. Further, accused Ajay Kumar, Wajid, Naseem, Waseem, Mohd. Saleem, Bismillah were arrested and from them the used weapon of offence (meat cutter knife) and danda were recovered and opinion of doctors over the weapon of offence were taken and as the accused Ajay was found to be Juvenile, he was sent to JJB and on the MLC of injured Ram Lal @ Mani Ram grievous injury caused from sharp object was found and on completion of investigation, chargesheet was filed.
6. During inquiry court found accused Wajid as juvenile and was sent to JJB and charges against accused Saleem, Nasim, Wasim and Bismillah u/s 147/148/149/326/307/302/34 IPC were framed.
7. Prosecution for substantiating charges examined 23 prosecution witnesses. Preeti (PW1), Rajesh @ Kalu (PW2), Rama Devi (PW3) are eye witnesses. Mani Ram (PW6) is injured. PW4 Khushi Ram identified dead body. PW5 Dr. Shiva Prasad, PW16 Dr. Aman Gautam and PW19 Dr. Rajneesh Kumar are doctors. Others are police officials. Summary details of their depositions are as follows.
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-5) Depositions of PW1, PW2 and PW3 (eye witnesses), PW4 (identified deceased) and PW6 (injured witnesses)
8. PW1 Preeti wife of deceased Ram Singh deposed that she was residing at Okhla opposite to B48 company alongwith her husband and child. She further deposed that on 25th of month in 2007, it was a summer time and at around 11.30 pm Saleem came and caught hold of her husband and alongwith him 4 persons i.e, his brothers and employees also came. She further deposed that he came with his brother Waseem and Naseem and his employee whose name she do not know . Saleem struck her husband with knife. Saleem and Naseem then both caught hold of her and Naseem had caught hold of her neck and only she and her husband were at the spot and she do not know how many times her husband was struck with knife as she was not in her senses. She further deposed that the police had come and taken her husband to hospital and she also went to hospital but her husband expired at hospital. She further deposed that the persons who had come had fled away from the spot on motorcycles, Naseem had also a knife with him and he also struck her husband with knife. This witness pointed out towards accused Saleem present in court. She also deposed that accused Wasim is present in court. And pointed out towards accused Naseem and stated that person named Naseem and not Wasim. But again this witness has pointed out the said witness as Wasim and not Naseem.
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-6) She further deposed that there is another person present in the court as accused but she do not know his name however, on court query she stated that the person whose name she do not know is employee of accused and not the brother of the accused. In reply to specific court query, the accused named his name as Bismillah. She further deposed that she do not recognize any other person in court as accused.
9. On being declared hostile in cross examination by Addl. PP she deposed that police made inquiries from her and recorded her statement. She further deposed that it is correct that accused Saleem used to run meat and chicken shop near their house. She further deposed in specific court query whether accused Saleem often used to tease women passing by. Witness replied that she never used to come out of the house. She further deposed that it is correct that accused Saleem was sitting on spot on that day and starting making fun and talking to Rama Devi and the same was objected by her husband . She further denied the suggestion that the quarrel took place between Saleem and her husband and also denied the suggestion that in such a quarrel, a scuffle took place between Saleem and her husband and Saleem fell down and had injured his head. This witness is confronted with her statement u/s 161 Cr.P.C. She further denied the suggestion that the incident between Rama Devi and Saleem took place in morning rather it took place in evening. She further deposed that it is correct that accused came at about 10.30 pm on motorcycles. She further State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-7) deposed that there was no danda with any person named Ajay. In reply to specific court query, she stated that each one had chakus in their hand, those chakus are the churas. She further replied to court query that she knows Ajay but he is not present in court. She further stated it is correct that her husband was pulled out by accused persons and it is also correct that Bismillah and Saleem had struck her husband with knife. She further stated that she do not know any person namely Manoj nor do she had any brother in law (devar) the name of Manoj. She further stated it is correct that Mani Ram also known as Ram Lal and Kalu had intervened at that time. She further denied the suggestion that Mani Ram had also been assaulted. She further deposed that she do not know who is Manoj nor any Manoj was assaulted by danda in her presence by Ajay. She further deposed that she had not stated to the police that Naseem, Wasim and Wajid had apprehended Mani Ram and further told that all the accused persons who were present at the spot had knife with them assaulted her husband. On specific question by Addl. PP that due to lapse of time there is some confusion in identification of Naseem and Wasim. In answer this witness stated that she do not come out of house and it is correct that Mani Ram was also injured in this incident and Police had taken Mani Ram to hospital and had seen the incident taking place with her own eyes and do not know any Manoj s/o Lala Ram.
10. In cross examination, she stated that she had not told to the police that State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-8) she had lost her senses at the time of incident and also denied suggestion that she was in the house at the time when her husband was assaulted. She further stated that she had come out with child . She further stated that the incident took place at the gate of company in front of her house. But could tell the specific distance of gate of her house and gate of company but it was at some distance and there was street light at that time. She further deposed that when she had come out of the house with child accused Naseem caught hold of her and Naseem had handed over her to any other friend and himself fled away. She further denied the suggestion that at the time when Saleem assaulted her husband, the child was in her arms and Naseem had caught hold of him. And she had become unconscious and fallen down. She further deposed that she was not in her senses for about 1520 minutes after her husband was assaulted with knife and thereafter water was put on her and police had already come on the spot when she regained her consciousness. She further denied suggestion that she do not know the accused because she do not come out of her house. She also stated that rather the accused Saleem used to take tea regularly from their shop. She further deposed that apart from her husband and child nobody else was living in that house. She further deposed that it is correct that she was called number of times by police. She further denied that accused were shown to her at PS. She further deposed that police had never brought accused handcuffs near her house and gave statement to police after 15 days of the incident and presently living with her parents. She State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-9) further deposed that doctors made inquiries from her as to how she is related to injured. She further denied suggestion that she had not seen the person who had ran away after assaulting her husband, she further could not answer how long was the duration of the incident. She further stated that vehicles of the assaulters were just at the side of her shop. And she had screamed when her husband was assaulted but none came. She further denied suggestion that the name of accused persons were told by the police and deposed that rather they used to come regularly to her shop for tea. She further deposed that police had not taken her signatures and thumb impression on her statement.
11. PW2 Rajesh @ Kalu @ Ram Kumar deposed that deceased Ram Singh used to reside near his jhuggi. Mani Ram and Rama Devi also resides near jhuggi and on the intervening night of 25/26.08.07 at about 10/11 pm accused Saleem and Bismillah were sitting on takhat outside his jhuggi on road and both the accused were started teasing Rama Devi, Ram Singh objected to the same, then both the accused started quarreling with him and in process accused Saleem fell down and sustained injury on his head. He further deposed that Saleem and Bismillah went away from there by threatening Ram Singh. He further deposed that he Mani Ram and Ram Singh were sitting and talking to each other and after 1520 minutes Saleem, Wasim, nasim and Bismillah, Wajid and Ajay came there on two motorcycles Accused Saleem, Wasim, Naseem Bismillah and Wajid were State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-10) having chura in their hands and accused Ajay was having danda and all the accused pulled Ram Singh out and started beating him at the factory situated at B48. He further deposed that he and Mani Ram tried to save Ram Singh but accused also started beating him. All the accused attacked Ram Singh with knife as a result of which he fell down and became unconscious . Thereafter, he and Mani Ram started running and at that time Manoj was also with them. And while they were running accused Ajay gave danda blow to Manoj and accused Wajid, Nasim Bismillah, and Saleem caught hold of Mani Ram and attacked with churas as a result of which he fell down and he called 100 number and PCR took them to hospital . In hospital doctor declared Ram Singh brought dead and condition of Mani Ram was serious . He further deposed that local police also reached hospital and he alongwith police officers had gone to Shaheen Bagh near Masjid. He further deposed that accused Saleem, Bismillah and Naseem and Wasim met them there and they were arrested by the police and accused Wajid was arrested from his house. He further deposed that accused persons got recovered churas in front of B48 Sanjay camp and from a khoka near chawla hotel. He further deposed that arrest memo and personal memos of accused were prepared and all accused were interrogated in his presence and they made disclosure statements. He further identified accused Saleem., Wasim, Bismillah and Nasim present in court and he further deposed that he can identify accused Ajay and Wajid who are facing trial in juvenile court.
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-11)
12. In cross examination, he deposed that he cannot tell as to which chura was used by which accused. And further it is correct that there was only one danda and no other danda. He further denied suggestion that he works for filling gas cylinder and selling kerosene oil without license for which he has got patronage of police. He further deposed that he is first time deposing in court and before he has not deposed in any other case. He further deposed that PW Manoj used to reside near Ram Singh in a shop and Ram Singh and Manoj belongs to same village and Manoj is also known as Alam. He further denied suggestion that Manoj was having illicit relations with the deceased wife. He further denied suggestion that Ram Singh came to know about their illicit relations and then Ram Singh objected the same and that was the bone of contention of their strain relations. He further denied the suggestion that Ram Singh was murdered by Manoj. He further denied that he had some dispute with Saleem 2025 days prior. He further denied suggestion that due to enmity he and Manoj had implicated accused persons. He further stated that Ram Singh told accused Saleem and Bismillah "hamare biwi bache rehte hai, galat mat bolo". Confronted with statement . He further stated that he, Ram Singh and Mani Ram were sitting on takhat of Ram Singh and at that time wife of deceased and children were inside the room. He further deposed that he was at a distance of around 12 steps away from deceased when Ram Singh was being beaten by accused and accused had dragged the deceased State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-12) Ram Singh from takhat to place of incident. He further deposed that there was a company's tubelight by which light was coming and incident had taken place in front of gate of that company and there was no government light at that place and there was a visibility at the spot. He further deposed that he and Mani Ram were trying to intervene and tried to rescue deceased and wife of deceased was standing outside on the road when deceased was beaten by accused person. He further deposed that though he had not stated in examination in chief that he received injuries during incident however he had sustained injuries in the incident. He further deposed on asking by concerned doctor, he informed that injured Ram Singh was brought by him, Vol. that he left hospital after about 2025 minutes i.e, about 12 to 12.30 am. He further deposed that he had met the IO first time at the place of incident and at about 3 am to 4 am IO had took him to Shaheen Bagh and he further deposed that they went there in government vehicle and 56 other police officials also sitting in that and some were following on motorcycles. And at first IO had first apprehended accused Naseem, Wasim, Wajid and Ajay and they were taken into police vehicle to the PS. And all the above accused told IO that accused Saleem and Bismillah were in Jasola village and also informed about the weapons used by them. He further deposed that at the instance of 4 accused accused Saleem and Bismillah were apprehended and it took around 2 days in interrogating the accused persons. He further deposed that he alongwith police official went to Jasola village at the time of State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-13) apprehension of accused Saleem and Bismillah and no other public witness was present. He further deposed that at the time of preparing at FIR he alongwith Manoj were present at the PS and thereafter, he went to his house and after that never visited the IO and nor made any statement to IO nor signed a paper after that. He further deposed that the fard etc. which were prepared by IO in their presence were signed by him and Manoj in PS. He further deposed that all 6 were interrogated jointly by IO. He further denied that accused have been falsely implicated by him, Manoj @ Alam in this case.
13. PW3 Smt. Rama Devi w/o Dharmender deposed that he is residing alongwith her husband and 3 children and her in laws, Mani Ram resides separately and she know accused Saleem as her neighbour who runs meat shop but she do not know name of his servant. But can identify him and pointed towards Bismillah in the court. She further deposed that on 25th of last year she do not remember the month, at 11 pm she heard siren of police gypsy and found Ram Singh in injured condition and found her devar also in injured condition and both were removed by PCR to hospital and further deposed that she could not see who inflicted injuries to Ram Singh and her devar Mani Ram. She further deposed that before incident accused Saleem and Bismillah had not teased her. On being turned hostile on examination by Ld. Addl.PP she denied the incident of teasing on that day by Saleem and also denied that quarrel had taken place on that point.
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-14) And further denied the incident of beating and inflicting injuries to Ram Singh and Mani Ram. And she was duly confronted with her statement recorded by police. In cross examination she stated that one Alam used to reside in jhuggi of Ram Singh in those days and Manoj is nephew of Ram Singh but she do not know if Alam had illicit relations with wife of Ram Singh but she had heard this.
14. PW4 Khushi Ram had identified the dead body of his brother Ram Singh on 26.08.07 and further stated that his statement was recorded by IO and his brother expired as he sustained knife injuries on his body. In cross examination he deposed that he is the real brother of deceased Ram Singh. And he had never met anybody by the name of Manoj Kumar and further he do not know any person namely Manoj Kumar closely associated with his brother Ram Singh.
15. PW6 Mani Ram deposed that on 25.07.07 he was sleeping outside his jhuggi and at 11 pm he heard a sound of commotion from the side of market and when he was running towards his jhuggi Ajay who was having rod hit on his head and he fell down in gali and became unconscious. Again said he was lying in the gali when somebody hit with knife thrice on his abdomen. He deposed Wasim whom he knew was also there. He further stated that when he tried to get up he was hit by 34 persons and they stabbed him on his stomach and he regained consciousness after 15 State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-15) days. He further deposed that no other persons sustained injuries in his presence and on being turned hostile in cross examination by Addl. PP he deposed that his statement was not recorded by police as he was unconscious. He further deposed that he knew Saleem but do not know Bismilla and Rama devi is wife of his brother Dharmender. He further denied of any incident of teasing Rama Devi or quarreling thereafter between Saleem and Ram Singh. He further not supported the prosecution case on the infliction of injuries by accused persons to deceased Ram Singh or to him.
Depositions of doctors and FSL expert:
16. PW5 Dr. Shiva Prasad Sr. Resident AIIMS hospital deposed that he is deputed on behalf of Dr. Puneet Setia who has left the services of hospital and his present whereabouts are not known to the hospital and as per record he conducted the postmortem of deceased Ram Singh on 26.08.07 with alleged history of deceased had a fight with some people who stabbed him on 25.08.07 as per postmortem report he received two stab wounds first of size 3.4X2 cms vertically placed present over right side of chest and second 2.4X3 cm on abdominal cavity and further deposed that the cause of death was respiratory arrest consequent to the said injury and all the injuries are antemortem and fresh in duration. Injury no.1 is State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-16) sufficient to cause death in ordinary cause of nature and injury no1 & 2 are both caused by double edged stabbing weapon. He further deposed that he worked with Dr. Puneet Setia and seen him signing and writing during the course of his official duty. He further deposed that the possibility of injury no.1 & 2 as mentioned in postmortem report to be produced by weapon no. 3 & 5 could not be ruled out and weapon 3 and 5 were the weapons which were allegedly recovered from Wajid and Mohd. Wasim.
17. PW16 Dr. Aman Gautam deposed that on 26.08.07 he examined deceased Ram Singh who was brought to hospital at around 12.48 am with alleged history of assault vide detailed report Ex. PW16/A and the said patient was declared brought dead. In cross examination he stated that it is correct that particulars of injuries are in carbon and others are in ink.
18. PW19 Dr. Rajneesh Kumar deposed that he had examined Ram Lal @ Mani Ram (PW6) on 26.08.07 aged around 18 years, male, patient was conscious and oriented with alleged history of assault by knife around one hour back. He further deposed that patient had injuries on chest, intestine, right abdomen and head, but no history of LOC, vomiting of ENT bleed and on examination patient was conscious and oriented. In cross examination he deposed that injured himself had given the history and State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-17) cannot tell the date when he reported the injury as grievous neither he initialled at that point of time. He further denied suggestion that MLC Ex. PW19/A is manipulated and tampered. And also submitted that patient on arrival in hospital was fit for statement and patient remained under his observation till 8 am on 26.08.07 but he do not remember if any police official came to record the statement of injured. He further deposed that he had not treated the patient after 26.08.07.
19. PW23 Sh Naresh Kumar, Sr. scientific officer, Biology Department, FSL Rohini deposed that he examined 15 sealed parcels biologically and blood was detected on Ex. 1,2A,2B,3,4,5A,5B,6,8,9,13,15 and blood could not be detected on 7.10.11.12 & 14. and also examined the exhibits serologically.
Deposition of Police officials:
20. PW7 HC Thankappan NK deposed that he was on PCR van and at about 12 midnight on 25/26/08.07 he received information about quarrel near jhuggi D48 he reached there and found two injured person and both were unconscious and with help of one person he had taken injured to AIIMS hospital where doctor on duty declared one injured Ram Singh brought dead.
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-18)
21. PW8 SI Mahesh Kumar deposed that he made the scaled site plan of the spot on the instance of witness Rajesh. PW9 Rameshwar stated that on 26.08.07 at around 6.15 am HC Bhura Singh had brought rukka and he registered the FIR and after registration sent the rukka alongwith copy of FIR to Inspector Z.H. Khan. PW10 HC Rajender Singh deposed that he received information about quarrel at 12.16 am from PCR and recorded information vide DD No.36 and handed said DD to HC Bhura Singh. SI Mahender Singh, SI Bhagat Ram and Ct. Bhagwan Singh left for the spot. PW11 Ct. Girdhar Singh crime team photographer had taken eight photographs of place of occurrence.
22. PW12 HC Bhura Singh deposed that on receiving DD no. 36A at around 12.16 am he alongwith SI Mahender, SI Bhagat, Ct. Bhagwan Singh reached jhuggi B48 Okhla and came to know that injured had been taken to AIIMS and found blood at spot and they left SI Mahender at spot and he alongwith SI Bhagat and Ct. Bhagwan reached hospital and collected MLC's of Ram Singh who was brought dead and injured Mani Ram was declared unfit for statement. Thereafter they came back to spot where Inspector Z.H.Khan came to spot who recorded statement of Manoj. He further deposed that he took rukka and got case registered and after registration of case he handed over original rukka and copy of FIR to IO.
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-19) He further deposed that crime team reached the spot and inspected the spot. Photographs of the spot were taken. Blood stained earth control lifted by IO form the spot. He further stated that blood stained shirt of PW Rajesh was also seized in pulanda with seal of ZH and taken into possession. And after postmortem doctor handed over sealed pulanda containing clothes of Ram Singh. He further deposed that accused Ajay was arrested from Shahin Bagh and other accused Naseem, Saleem, Wasim, Wajid and Bismillah were also arrested. This witness states that he can identify accused Saleem, Wasim, Wajid, Bismillah but could not identify them in court by name. Further also identified one accused person Raju as an accused in present case though he was present in some other case. He further deposed that one motorcycles was recovered at instance of accused Wajid and other at instance of accused Nasim. In cross examination he deposed that they reached the spot after 57 minutes. Some public persons were collected at spot but no eye witness met them at spot. And they reached the hospital within 3040 minutes and further states that no public person met them at hospital. And at spot one Manoj met whose statement was recorded by IO. And received rukka at around 6 am on 26.08.07. he further deposed that he do not remember if all accused were arrested from same place or different places. Further stated that all accused were arrested on same day but do not remember exact time. He further deposed that accused were arrested in day time but do not remember exact time from Shahin Bagh area but do not remember State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-20) whether that house was single storey or double storey. He further deposed that he do not remember if other persons were also with them at the time of arrest. He further deposed that he do not remember from which place they had gone to arrest accused persons. Accused Salim, Nasim, Wasim Bismilla were arrested at the instance of Manoj. He further deposed that Manoj was not with them at the time of arrest of accused persons. He further stated that he do not recollect on whose identification accused were arrested. He further deposed that accused were arrested on instance of one public person whose name he do not remember. He further deposed the he do not remember if IO lodged departure entry in Shahin bagh after arrest of accused and nothing was recovered from accused in his presence. He further deposed that after arrest accused were brought to PS in vehicle but do not remember the name of the vehicle. He further deposed that he do not remember from which place accused Wajid and Naseem got recovered the motorcycles. He further deposed that his statement was recorded in PS.
23. PW13 SI Bhagat Ram deposed that on receiving DD no. 36A at around 12.16 am on the night of 25/26.08.07 he alongwith SI Mahender, SI Bhura Singh, Ct. Bhagwan Singh reached in front of B48 OIA and on inquiry came to know that injured had been taken to hospital and on the spot some blood stains and one pair of chappal was found. SI Mahender was left at spot and he alongwith HC Bhura Singh and Ct. Bhagwan Singh State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-21) reached AIIMS hospital where he found Ram Singh dead and Mani Ram unfit for statement and further investigation was handed over to Inspector ZH Khan and found no eye witness in the hospital. Thereafter he left to spot alongwith IO HC Bhura Singh and Ct. Bhagwan Singh. In cross examination he deposed that they went to the spot on two motorcycles and found no police official at spot and one side of the spot there are some jhuggis and on other side there are factories. And one of the public person had informed that the injured was taken to hospital by PCR. However, he had not recorded the statement of that person. He further deposed that he left the hospital between 12.20 to 12.40 am and IO ZH khan reached hospital between 1 am to 2 am and IO had recorded the statement of HC Bhura Singh, Ct Bhagwan Singh in PS when they reached there. However, he had not recorded the statement of any doctor in his presence and IO had also not called the crime team at spot in his presence. He further deposed that he reached back to hospital alongwith other staff and IO between 1 to 2 in day time.
24. PW14 Ct. Vijender deposed that he handed over the copy of FIR to MM on 26.08.07. PW15 SI Mahender Singh deposed that on the intervening night of 25/26.08.07 he alongwith SI Bhagat Ram, SI Bhura Singh and Ct. Bhagwan. On reaching spot SI Bhagat Ram left him at the spot and went to hospital and after 23 hours inspector ZH Khan also reached the spot State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-22) alongwith staff and one eye witness Manoj came to the spot and Inspector ZH Khan recorded his statement. And made his endorsement and got registered the case. Crime team was also called at the spot IO lifted the exhibits from the spot. Thereafter, he accompanied IO to AIIMS hospital where Ct. Bhagwan Singh handed over 4 sealed pulandas to IO and after postmortem of deceased Ram Singh, he alongwith IO came to spot on the same day i.e, 26.08.07 and accused Ajay (juvenile) was arrested from the jhuggi at New Sanjay camp and at his instance one danda was recovered. Thereafter, IO alongwith Ajay went to F167, Shaheen Bagh from where all the 4 accused persons present in the court were arrested. And their disclosure statements were recorded and two public witnesses were present at the time of recording disclosure statements namely Manoj and Rajesh. He further deposed that accused Wajid got recovered a motorcycles bearing No. DL3SA L 8417 and again said DL 3SAL 9317 and accused Nasim also got recovered a motorcycle. Thereafter, accused Mohd. Saleem got recovered a chura blood stained chappals from under the takhat outside Chawla hotel. And accused Bismillah got recovered a chura at his instance from jhuggi no. B48 Okhla. And accused Wasim got recovered a chura from his meat shop from in front of jhuggi B48 OIA. Accused Nasim also got recovered a chura from near Chawla hotel. And all the accused had also pointed out place of occurrence. In cross examination, he deposed that it is correct that in sketch Ex. PW2/B of chura Ex. PW15/P3 a ripit (or an hole) was shown but there is not such State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-23) ripit or hole in Ex. PW15/P3. He further stated that it is correct that the name of metal of handles of churas are not mentioned in their respective sketches. It is also correct that in sketch Ex. PW2/T it is not mentioned that handle is of wood. He further deposed that IO did not put any specific marks on Exhibits / articles recovered. He further deposed that statement of Manoj was recorded at the spot and statement of Rajesh and Manoj u/s 161 Cr.P.C was recorded after the recovery of earth control and shirt and other recoveries. He further deposed that he do not know where were Manoj and Rajesh before the reaching of IO. He further deposed that Rajesh and Manoj were called at spot after reaching of the IO at the spot and he do not know who called them at the spot. He further deposed that he do not remember to whom the seal was handed over by the IO. And also do not remember whether it was given to him or not. He further deposed that Rajesh and Manoj came to PS at around 9 am on 26.08.07 and he do not know who had written the proceedings and memo except the personal search memo and disclosure of accused which was in his handwriting. He further deposed that place of arrest of accused falls in the area of PS Sarita Vihar and Chawla hotel falls within the jurisdiction of PS. OIA. He further deposed that the meat shop which was run by Bismillah of Mohd. Saleem was opposite to factory no. B48 OIA and adjoining shops are of Pan and vegetables. He further deposed that no person from Chawla hotel was associated at the time of recovery of churas at instance of accused Md.Saleem and Nasim. He further deposed that State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-24) accused were arrested at the pointing out of Manoj and Rajesh. He further deposed that he do not remember that how they went to the place of arrest. And further even could not tell whether the premises F167 exists in Shaheen Bagh or not and no site plan was prepared from both the places from where motorcycles were recovered. He further deposed that he do not know whether at the time of arrest of accused Ajay his family members or neighbours were called by the IO. He further deposed that he do not know whether the motorcycle were recovered alongwith ownership papers or not and motorcycles were taken to PS by plying them and also do not know who produced the keys of those motorcycles. He further do not know who drove the motorcycles to PS. He further denied the suggestion that there is no person by the name of Manoj as complainant in present case and further denied suggestion that Rajesh @ Kalu was inducted as false witness. In cross examination by Ld. Counsel for accused Bismilla he deposed it is correct that neither the site plan of place of arrest nor the site plan of place of recovery of weapon was prepared and further it is correct that the place of recovery was in their knowledge before arrest of accused and also could not tell the measurement of Khoka from where recoveries took place.
25. PW17 Inspector Vinod Pal stated that he reached the spot being Incharge of crime team on 26.08.07 and inspected the spot and took photograph of State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-25) the spot and some blood was found on the spot. PW18 Shri Desraj deposed that Ajay Kumar was admitted in their school and as per school recorded his date of birth is 20.07.92.
26. PW20 HC Ram Chander deposed that on 26.08.07 he was posted MHC(M) in PS OIA and on that date Inspector ZH Khan had deposed 15 sealed pulandas and two motorcycles and 4 personal search item including money, mobile and diary in malkhana. In cross examination he stated that it is correct that time when these were deposited is not mentioned.
27. PW21 HC Bhagwan Singh deposed that on 26.08.07 on receiving DD no. 36 A he alongwith HC Bhura, SI Bhagat reached spot where they came to know that injured had already been taken to hospital by PCR and blood was found scattered at spot and SI Mahender was left at spot. And in hospital injured Mani Ram was found unfit for statement and Inspector ZH Khan collected MLC of Ram Singh who was declared brought dead and no eye witness was found present in the hospital. And when they came back to spot with Inspector ZH Khan one witness was found present with SI Mahender. ZH Khan recorded statement of Manoj and prepared rukka and SI Bhura was sent for registration of case. Meanwhile, crime team also reached at the spot and took photographs. IO lifted the earth control with blood and without blood and IO also lifted the slipper of State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-26) deceased from the spot he further deposed that other injured namely kalu also came to spot and he was sent to hospital by IO. Thereafter they went to hospital with IO and at hospital IO prepared inquest paper and postmortem of deceased was conducted and after postmortem doctor handed over two sealed parcels to IO. Thereafter, dead body was handed over to the relatives of deceased and they came back to spot with IO. And eye witness Manoj was also with them and they went to Majdoor camp and on the pointing out of Manoj accused Ajay was arrested from the jhuggi and thereafter, they went in search of other accused alongwith Ajay and at the instance of accused Ajay they apprehended accused Bismillah, Saleem, Wajid, Nasim and Wasim. Their disclosure statements were recorded and at the instance of accused 4 knives were recovered. In cross examination he stated that he found blood scattered at 23 places at spot and IO Bhura Singh had not made inquiries by people gathered at the spot about the details of incident and Bhura had not prepared any site plan in his presence. He further deposed that no relatives or friends of deceased met them at hospital and deceased was brought to the hospital in PCR and they remained in hospital for one and half hours. He further deposed that he do not know at what time MLC was received by Inspector ZH Khan and also could not tell when he left hospital and further he and Bhura singh left hospital and came to spot in auto. He further deposed that at spot he met SI Mahender and public person Manoj and SI Mahender had not recorded statement of Manoj and ZH Khan recorded statement of State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-27) Manoj at 5/6 in the morning. He further deposed that he left the spot at around 9 am in the morning and he do not know who called crime team at the spot. He further denied suggestion that no such person in the name of Manoj existed. He further deposed that no pointing out memo of house /jhuggi of accused Ajay was prepared on pointing out Manoj. He further deposed that after leaving the spot they went to PS in car of SI Mahender Singh and he do not know how Inspector ZH Khan reached the PS. He further deposed that proceedings of this case were conducted in PS for half an hour and exhibits were deposited in malkhana and thereafter they went from PS to AIIMS and at AIIMS inquest papers were prepared by IO. He further deposed that Manoj was not associated during the proceedings in PS and he do not remember at what time postmortem was conducted and dead body was handed over. He further deposed that at the time of handing over of dead body Inspector ZH Khan was also there and it was afternoon time but he cannot tell whether it is 3,4 or 5 pm. And thereafter, he alongwith IO ZH Khan, IO SI Mahender Singh, HC Bhura Singh and Bhagat Ram went to Sanjay camp near spot and IO had prepared the rough site plan in his presence. Further, IO had prepared the rough site plan in his own handwriting on the pointing out of Manoj and site plan was prepared before registration of FIR. He further deposed that when they reached at AIIMS after handing over they found Manoj at spot and no statement of Manoj at that time was recorded. He further deposed that he joined Rajesh as independent witness before apprehension accused State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-28) Ajay and Rajesh was one of the injured in incident and sent to hospital in morning. He further deposed that there was no statement of any of police official that injured Rajesh was sent to hospital and no statement in this regard was recorded till he left the hospital at 9/9.30 am he further stated that Rajesh was discharged from hospital after first aid. He further deposed that he had not taken witness Manoj to hospital. And cannot tell anything about MLC mark Ex.PW21/DA of Manoj s/o Lala Ram. He further deposed at the time of arrest of Ajay from his jhuggi his family embers were also present. And no other public witness except Rajesh and Manoj were associated in the recovery of knife. He further deposed that the motorcycles were brought to PS by driving, one was driven by him and other by HC Bhura Singh. In cross examination by counsel for accused Bismillah from DLSA he cannot say whether they came to hospital in car of IO and that car was santro car and not official vehicle and went to Shaheen Bagh in the same car. And further stated Shaheen Bagh was 5 kms from the spot. He further could not tell how much storeys on plot at Shaheen Bagh were constructed. He further deposed that apart from accused parents of accused were also present in the house and he do not know from whom IO inquired about the house and he cannot tell the names of parents of accused persons and they were not joined as witness to arrest of accused persons and no public persons were joined though no. of public persons gathered.
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-29)
28. PW22 Inspector ZH Khan deposed that on the intervening night of 25/26.08.07 on receiving DD no. 58A, he reached AIIMS and found there one Ram Singh declared dead and injured Mani Ram unfit for statement and thereafter reached spot alongwith HC Bhura and Ct. Bhagwan Singh who joined him from AIIMS and at the spot he recorded statement of Manoj thereafter prepared rukka and further prepared site plan at the instance of complainant and further seized the shirt of Rajesh @ Kalu who removed injured to hospital vide Ex. PW2/Z. He further deposed that at the instance of complainant accused Ajay was arrested and thereafter his disclosure statement was recorded and stick/danda was recovered from his jhuggi at his instance. Thereafter, he came back to PS and deposited the case property in malkhana and reached with staff to AIIMS mortuary where dead body was identified by Manoj and Khushi Ram and thereafter postmortem was conducted and dead body was handed over to Khushi Ram. He further deposed that after coming back he went to spot and called the crime team and on the same day he alongwith Ajay and staff went to Shaheen bagh and at the pointing out of Ajay went inside H.No. F167 Shaheen bagh from where accused were apprehended on the identification of accused Ajay. Thereafter all the accused persons were arrested and their disclosure statements were recorded. Thereafter all the accused were taken to the spot and pointing out memo was prepared. He further deposed that during the aforesaid investigation Manoj and Rajesh @ Kalu were with them. Thereafter, at the State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-30) instance of accused persons respective churas were recovered. He further deposed that thereafter Wajid led them in from of H.No. 167 Shaheen Bagh and at his pointing out two motorcycles were recovered. Thereafter, he came back to PS with accused and case property.
29. In cross examination he deposed that Manoj was introduced at spot by Rajesh @ Kalu and he recorded the statement of Manoj first and reached the spot at around 6 am in the morning and accused Ajay was arrested at the instance of Manoj. He further deposed that he had asked the neighbours to join the investigation but they refused. And he was arrested before recording of his disclosure statement and after his disclosure he was brought to Shaheen bagh. He further deposed that information of his arrest was given to his blood relation. He further deposed that he reached Shaheen bagh at around 7.40 pm and crime team reached the spot at around 6.am in the morning. He further denied suggestion that there is no person in the name of Manoj at present. He further deposed that he reached the hospital between 4 and 5 am and no relative of deceased met them at hospital. Kalu had also accompanied PCR but they could not find Kalu in hospital. He further deposed that two motorcycle were taken to PS by Bhagwan Singh and Bhura and no seizure of keys of motorcycle were prepared. And no public witness was associated with arrest of accused and disclosure were not recorded in his writing. He further deposed that no employee or owner of Chawla hotel was associated in recovery of State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-31) weapons. When they had taken accused Saleem to his shop it was not locked but simply shut. He further deposed that he had not recorded the statement of Mani Ram on first day neither any relatives statements were recorded on first day. He further deposed that Manoj is cousin of deceased Ram Singh and had recorded the statement of Ms. Preeti w/o Ram Singh on 27.08.07. he further denied the suggestion that nothing was disclosed by accused Bismilla and no blood was visible on the knife.
30. All the accused persons in their statement u/s 313 Cr.P.C have denied all the incriminating circumstances put to them and stated that they are falsely implicated, in addition stated that complainant Manoj is a fictitious person and his identity has not been even established by the witnesses who are supposed to be the relatives.
Material Exhibits:
31. ExPW10/A is the DD no. 36 B dated 25/26.08.07 recorded at PS at around 12.16 am in the night regarding the quarrel at jhuggi B48 OIA. ExPW9/D DD no. 58B recorded at 4 am on 26.08.07 at PS regarding information of death of deceased Ram Singh from hospital. ExPW9/C DD no. 41A recorded at around 6.35 am on 26.08.07 regarding State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-32) registration of FIR and sending the copy of FIR alongwith rukka at spot through HC Bhura Singh. Ex.PW22/A is the rukka prepared by Inspector ZH Khan at 6 am on spot on the basis of the statement of one Manoj which was sent to PS for registration of FIR and an endorsement ExPW9/B was made on the said rukka by HC Rameshwar pursuant to which FIR u/s 147/148/149/323/307/34 IPC was registered vide ExPW9/A.
32. ExPW22/B is the site plan of the spot, ExPW8/A is the scaled site plan of the spot. ExPW2/Z1 is the seizure memo dated 26.08.2010 of blood stained earth control, blood in gauze. And one pair of blood stained raxine chappal. ExPW2/Z2 is the seizure memo of the blood stained earth control seized from the spot i.e, in front of the factory B48. ExPW2/Z is the seizure memo of blood stained shirt of PW Rajesh @ Kalu.ExPW12/A is the seizure memo of blood stained shirt of deceased Ram Singh produced by SI Bhagat Ram.
33. ExPW12/B is the seizure memo of motorcycle No. DL 3 S AL 9317 dated 26.08.07 recovered at the instance of accused Wajid. ExPW12/C is the seizure memo of motorcycle DL 6SN 5143 dated 26.08.07 recovered at the instance of accused Nasim. Ex.PW2/Y is the seizure memo of blood stained knife, one pair of chappals taken out from plastic thaili and State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-33) pointation memo of place of recovery of these articles at instance of accused Saleem. Ex. PW2/X is the seizure memo of chhura recovered at the pointing out of accused Bismillaha from a khokha at C Block near Chawla Hotel from under a takhat. Ex. PW2/W is the seizure memo of chhura recovered at the pointing out of accused Wajid from the khokha under the takhat. Ex. PW2/B is the seizure memo of chhura recovered at the pointing out of accused Saleem from the khokha under the takhat. Ex. PW2/U is the seizure memo of chhura recovered at the pointing out of accused Naseem from the khokha under the takhat. Ex. PW2/V is the seizure memo of chhura recovered at the pointing out of accused Wasim from the khokha under the takhat. Ex. PW2/P, Ex. PW2/Q, Ex. PW2/R, Ex. PW2/C, Ex.PW2/T are sketches of churas recovered from accused.
34. Ex. PW22/D, Ex. PW22/E, Ex. PW22/F, Ex. PW22/H and Ex. PW22/G are the seizure memos of pointing out of place of occurrence by accused Saleem, Wasim, Naseem, Bismillaha and Wajid respectively. Ex. PW2/K, Ex. PW2/L, Ex. PW2/M, Ex. PW2/N and Ex. PW2/O are the disclosure statements of accused Wajid, Saleem, Bismillaha, Naseem and Wasim, respectively. Ex. PW2/F, Ex. PW2/G, Ex. PW2/H, Ex. PW2/I and Ex. PW2/J are the personal search memos of accused Wajid, Naseem, Wasim, Bismillaha and Saleem, respectively. Ex. PW2/A, Ex.
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-34) PW2/B, Ex. PW2/C, Ex. PW2/D and Ex. PW2/E are the arrest memos of accused Mohd. Saleem, Bismillah, Wasim, Naseem and Wajid respectively, showing the place of arrest from a vacant plot opposite F167, Shaheen Bagh at 7.40 p.m. on 26.08.2007.
35. Ex. PW15/A is the seizure memo of the clothes, blood in gauze of deceased Ram Singh alongwith sample seal of Department of Forensic Medicines, AIIMS.
36. Ex. PW17/A is the crime report prepared by SI Vinod Pal showing the time of inspection of spot on 26.08.2007 between 2.15 a.m. to 3.00 a.m. Ex.PW11/1 to Ex.PW11/8 are the photographs of place of occurrence and negatives are exhibited as Ex.PW11/9 collectively.
37. Ex.PW5/A is the postmortem report of deceased Ram Singh showing the date and hour of inquest receipt and dead body on 26.08.07 at 12.45 pm and time of completion of atopsy is 2.30pm. As per postmortem report he received two stab injuries and injury no.1 is sufficient to cause death in ordinary course of nature and both injuries were caused by double edged stabbing weapon. Ex.PW5/B is the subsequent opinion given by Dr.Puneet Setia showing that after examining the all 5 weapons whose sketches were drawn by him, the possibility of injury no. 1 & 2 on State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-35) deceased Ram Singh to be produced by weapon no.3 & 5 cannot be ruled out. And it was further directed to send these weapons to CFSL for detection of blood stains. Ex.PW19/A is the MLC of injured Ram Lal @ Mani Ram showing his date of arrival in the hospital at 12.48 am by HC Thankappan of PCR with alleged history of assault by knife one hour back and the injury appears to be sharp and grievous in nature. There is an endorsement on MLC that injured was unfit for statement at 5.10 am, 8pm on 26.08.07 and 9.25pm on 27.08.07 and declared fit for statement on 4.9.07.Ex.PW16/A is the MLC of deceased Ram singh who also stated to be brought in hospital at 12.48 am on 26.07.08 and patient was declared brought dead. Mark PW1/DA is the photocopy of MLC of Manoj S/o Lala Ram shown to be taken in hospital by HC Bhagat Ram at 6.29 and as per this MLC history of assault on 25.08.07 at around 10.30pm and patient was conscious and alert , tenderness over left thumb was found. Ex.PW23/A is the biological examination of articles at FSL lab showing blood stains on the shirt Ex.15 on one shirt alleged to be worn by PW2 Rajesh while he was taking deceased to hospital. Ex.PW23/B is the serological report of the articles. Asper this report on one chura human blood was found but no group is ascertained and further no group is ascertained on the shirt though the blood is found to be of human.
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-36)
38. Ld. counsel for the accused submits that as per prosecution case, the FIR was registered on the basis of the statement of one Manoj Kumar alleged to be relative of deceased Ram Singh but the said Manoj Kumar was not produced by prosecution for examination before the court. Further, PW1 Preeti wife of deceased RamSingh and PW4 Khushi Ram brother of deceased Ram Singh had deposed that they do not know any person in the name of Manoj Kumar. Ld. Counsel for the accused submitted that this in itself make the witness Manoj Kumar a fictitious person and the FIR lodged on his statement has no value. Ld. Counsel for the accused further submits that PW1 and 2 are not the reliable witnesses firstly as they are not promptly examined in the hospital and PW1 had improved her version on being declared hostile and no reliance can be placed on her statement. Ld. Counsel further submits that PW2 is an interested witness and was not present at the spot. Ld. Counsel further submits that all the proceedings of recovery of churas and arrest of the accused persons are false and fictitious. PW2 in his testimony stated that all the accused persons were arrested and recoveries of churas were made in the night itself even before the registration of FIR which is contrary to the prosecution case. Even otherwise, the deposition of police officials over the recovery of weapons and arrest of accused persons is contrary and inconsistent.
39. Ld. counsel for the accused further submits that the doctor who conducted the postmortem of the deceased was not produced to depose State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-37) before the court and the statement of PW5 who deposed on behalf of Dr. Puneet Setia is not admissible because PW5 in his cross examination stated that permanent address of Dr. Puneet Setia might be available in hospital record and prosecution has not made any efforts to trace that witness i.e, Dr. Puneet Setia. Ld. counsel for the accused further submits that PW1 even could not identify accused Nasim and Wasim and PW3 and PW6 had not supported the prosecution version. Ld. counsel for the accused further submits that PW3 Rama Devi had not supported the prosecution on the factum of teasing, therefore, prosecution could not prove the motive of the case. Ld. counsel for the accused further submits that PW6 the injured Mani Ram had not supported the prosecution case and attributed no role to the accused persons. Ld. counsel for the accused further submits that prosecution has given no explanation why they have not recorded the statement of injured Mani Ram in hospital when he was conscious and oriented. Ld. Counsel for the accused stated that the prosecution is miserably failed to prove its case against the accused persons. Ld. counsel for the accused Nasim, Saleem, Wasim has also filed written submissions/ brief synopsis.
40. Ld. Addl. PP for the State submitted that PW1 and PW2 eye witnesses have fully supported the prosecution case. And even the hostile witness PW3 and PW4 had supported the prosecution case on the date, time and place of occurrence. Ld. Addl. PP further submits that presence of PW1 State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-38) and 3 at that spot is natural being the residence of the same place. And further in cross examination their testimony is unimpeached. Ld. Addl. PP further submits that prosecution had recovered the incriminating weapon of offence at instance of accused persons and medical evidence also supported that deceased and injured had received the injuries from the knives. Ld. Addl. PP further submits that benefit of mere lapses and defects in investigation cannot be given to the accused persons and Ld. Addl. PP further submits that prosecution able to prove its case against the accused persons beyond doubt.
41. Arguments heard. Record perused.
42. Vide order dated 07.04.2008, my Ld. Predecessor had charged accused Wajid, Nasim, Mohd. Wasim, Mohd. Saleem and Bismillah u/s 147/148/149/326/307/302/34 IPC and charges was framed against the accused persons u/s 147/148/149/326/307/302 IPC but due to some omission charge u/s 34 IPC against the accused persons could not be framed. However, in my view that not a material omission causing prejudice to the accused. Further, neither the counsel for the accused since the day of order of framing of charge i.e, 07.04.2008 had not brought it into the notice of the court. Even otherwise offence u/s 34 IPC is of constructive liability and not a susbtantive offence. Apex court in "Garib State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-39) Singh & Ors. Vs. State of Punjab, 1972 Crl. L.J, 1286" had observed that section 34 IPC would apply even if no charge is framed when evidence establishing it is clear and free from doubt. Accused Wajid was declared juvenile vide order dated 04.10.2008 and accused Ajay was sent to juvenile court at the time of filing of chargesheet by the police and the trial before this court is conducted for accused Saleem, Wasim, Nasim and Bismillah only.
43. Genesis of the prosecution story is that on the night of 25/26.08.07 at around 1011 pm there was a scuffle took place between deceased Ram Singh and accused Saleem because the accused Saleem had teased one Rama Devi (PW3) and during that scuffle, accused Saleem got injuries on his head and therefore, threatened deceased Ram Singh for dire consequences. After 2025 minutes accused Saleem alongwith his brothers Nasim, Wasim and servant Bismillah, Wajid and Ajay reached the spot on two motorcycles and at that time except Ajay all the accused were carrying churas. Thereafter, they inflicted stab injuries on deceased Ram Singh and Mani Ram and fled away from the spot.
44. This entire incident as per prosecution story is witnessed by one Manoj stated to be cousin brother of deceased Ram Singh, Rajesh @ Kalu (PW2), Rama Devi (PW3) and Preeti wife of deceased Ram Singh (PW1). And FIR was registered on the basis of the statement of Manoj but the State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-40) prosecution unable to produce Manoj for his deposition before the court. Ld. Counsel first objection is that Manoj is a fictitious person and FIR recorded on the statement of fictitious person has no value. Whether Manoj is real or imaginary person:
45. Ld. counsel for the accused submitted that as per prosecution case FIR was registered on the basis of statement of one Manoj who alleged to be the cousin brother of deceased Ram Singh and working as a tailor at B55 Okhla PhaseI. But prosecution witnesses PW1 Preeti wife of deceased Ram Singh and PW4 Khushi Ram, brother of deceased Ram Singh in their depositions before the court had completely disowned this Manoj and stated that they do not know this Manoj and PW1 Preeti in her examination in chief stated that she do not know any person namely Manoj nor she had any brother in law (devar) in the name of Manoj. PW4 Khushi Ram also stated in cross examination that he had never met anybody by the name of Manoj Kumar and further do not know any person namely Manoj closely associated with his brother. Thus, Ld. Counsel for the accused submitted that this Manoj is some imaginary person because if he would be cousin brother residing with deceased Ram Singh then PW1 Preeti and PW4 Khushi Ram must have known his identity. The FIR as per record is registered on the basis of statement of Manoj and once this Manoj is a imaginary person, then the substratum of State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-41) the prosecution case i.e, FIR is completely falsified.
46. Though, PW1 and PW4 had not stated anything about the fact that they knew Manoj Kumar but PW2 had stated specifically that at the time of incident, Manoj was also with them and accused Ajay (Juvenile) gave danda blow to Manoj and further in cross examination he stated that PW Manoj used to reside with Ram Singh in shop and Ram Singh and Manoj belongs to same village and Manoj is also known as Alam. He was asked specific question by ld. Counsel for the accused in cross examination that PW Manoj was having illicit relations with the wife of deceased but he denied that suggestion and also denied the suggestion that Ram Singh know about their illicit relations and because of that Ram Singh was murdered by Manoj. He further denied the suggestion that because of that enmity he and Manoj had implicated the accused persons. As per deposition of this PW2 Manoj @ Alam is some real person who was residing with Ram Singh and belongs to his village. PW3 Rama Devi also stated that one Alam used to reside in jhuggi of Ram Singh and Manoj is nephew of Ram Singh and she do not know whether he had any illicit relations wtih wife of Ram singh but had heard of this. Therefore, these PW3 and PW2 have confirmed that there is a person in the name of Manoj exists and was residing with deceased Ram Singh. Thus it cannot be inferred that Manoj was some imaginary person and do not exists at all. From mere denial of PW1 and PW4, it cannot be inferred that no such State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-42) person Manoj exists. It only shows that PW1 and 4 due to some extraneous reasons are not disclosing of their knowledge of knowing PW Manoj. The other police officials who recorded the statement of Manoj also confirmed his identity and there is no reason why the police persons will record the FIR on the basis of statement of some imaginary person. Therefore, the Ld. Counsel argument that no person in the name of Manoj exists is not tenable and the non examination of Manoj by prosecution does not in itself make the prosecution story unreliable. Eye witnesses and injured witness account (PW1 Preeti, PW2 Rajesh @ Kalu, PW3 Rama Devi and PW6 injured Mani Ram):
47. PW1 Preeti in her deposition stated that she resides at Okhla but do not remember the house number that was opposite to B48 company and they were having a tea shop in front of that company and on 25 th of a month in 2007 at around 11.30 pm it was a time of summer accused Saleem came and caught hold of her husband and alongwith him 4 persons came i.e, his brothers and employee. She further deposed that accused Saleem came with Wasim, Nasim and his employee whose name she do not know and accused Saleem struck her husband with knife and then Saleem and Nasim both caught hold of her by neck and at that time only she and her husband were at spot and further stated that she do not know how many State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-43) times her husband was struck with knife as she was not in senses and police had taken her husband to hospital and she had also gone to hospital and those persons fled away from the spot on motorcycles. She also deposed that Nasim had also struck her husband with knife and correctly identified accused Saleem present in the court. And also stated that accused Wasim present in the court but pointed towards accused Nasim and again by stating Nasim pointed towards Wasim and further stated that there is another person in court as an accused but she do not know his name and on specific court query she stated that he is the employee and not the brother of the accused and further deposed that she do not know his name and on specific court query she stated that he is the employee and not the brother of the accused and further deposed that she do not recognize any other person present in the court.
48. Therefore, as per this deposition she deposed that at around 11.30 pm accused Saleem came with 4 persons and accused Saleem had struck her husband with knife thereafter both accused Nasim and Salim caught hold of her and she became conscious and cannot tell how many blows of knife were inflicted on her deceased husband and unable to distinguish accused Nasim and Wasim in the court and also pointed towards accused Bismillah. But had not stated anything that accused Bismillah had given the knife blow to her deceased husband Ram Singh.
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-44)
49. Thereafter, this PW was declared hostile . On being cross examined by Ld. APP, she deposed that it is correct that accused Saleem used to run a meat shop near her house and on being specific court inquiry she stated that she do not know whether he often used to tease women passing through his rehdy and stated that she never used to come out of house and also stated that it is correct that once accused Saleem had apologised to a woman but again said she do not know the same and not stated the same to the police. She further stated that it is correct that at around 11 pm on fateful day accused Saleem was sitting on a cot outside his jhhuggi and started making fun and talking to Rama Devi to which her husband objected but denied the factum of any scuffle between her husband and accused Saleem. She further stated that she do not know the name of any employee of saleem and it is correct that Saleem, Nasim, Wasim Bismillah and Ajay had come around 10.30 pm on motorcycle and there was no danda with any person named Ajay. On specific court query she stated that each one of accused had churas in their hands. And further her husband was pulled out of his jhuggi. She further stated it is correct that Bismillah and accused Saleem had struck her husband with knives. She further denied the fact that she know any person in the name of Manoj and also stated that it is correct that Mani Ram @ Ram Lal and Kalu neighbour intervened at that time. This witness denied the suggestion that accused Saleem had also assaulted injured Mani Ram and further stated that all accused had knives and assaulted her husband. Specific question State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-45) was put by Addl. PP that due to lapse of time there might be some confusion in her mind about the identification of Nasim and Wasim but she had not given any specific answer to that and on the other hand stated that she do not come out of the house and also stated that it is correct that Mani Ram was also injured in the incident and police had taken him to the hospital.
50. This witness in the later part of his testimony on being declared hostile had supported the prosecution on the fact that on that day accused Saleem started making fun and talking to Rama Devi but denied of any scuffle on this aspect between the accused Saleem and her husband. Further she denied of any danda brought by any of the accused and stated all the accused came with churas and assaulted his husband with knives. She also deposed that injured Mani Ram and Rajesh @ Kalu intervened at that time though in first part of her statement at the time of incident she stated that only she and her husband were at the spot. But she denied of any assault on Mani Ram whereas in the last lines she again stated that Mani Ram also received injuries in the said incident. And she altogether denied the factum of knowing of Manoj who as per prosecution is the relative of deceased Ram Singh residing with them.
51. In cross examination by counsel for the accused she denied that she stated to police she lost her senses at the time of incident and also deposed that State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-46) she was inside the house when her husband was assaulted and also stated that incident took place in front of gate of company not in front of her house but could not tell the specific distance between her house and the company. She further stated that when she come out of her house , accused Nasim caught hold of her and handed over to another friend and himself fled away and further denied suggestion that at the time when Saleem assaulted her husband she was unconscious. She further stated that when her husband ran she also ran with her child out of her house and was not in senses for about 1520 minutes after assault and when she regained her consciousness police had already come to the spot. She further denied suggestion that she do not know the accused because she did not used to come out of home and rather stated that accused Saleem used to take tea from the shop. She further deposed that she had gone in the same vehicle with the police in which her husband was taken and doctor also made inquiries with her and denied suggestion that she had not seen the accused persons who had run away after assaulting her husband. She further stated that when she screamed none came and further stated that these accused used to come regularly to take tea at her shop.
52. From her cross examination it is also confirmed that she knew the accused persons as they used to come to take tea at her shop and was very much present at the time of assault and also confirmed that the assault State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-47) took place in front of company gate and accompanied her husband to hospital with police and denied to have not seen the accused who assaulted her husband. Nothing came in cross examination of this witness that she had not seen the incident or was not present at the spot at the time of incident.
53. PW2 Rajesh @ Kalu is other eye witness to the incident who deposed in his testimony that on the intervening night on 25/26.08.07 at around 10/11 pm accused Saleem and his servant Bismillah were sitting on a takhat outside his jhuggi and used to tease the passerby woman of the area and on that day they teased one Rama devi to which Ram Singh objected and told them that "hamare biwi bache rehte hain, galat mat bolo" and both started quarreling thereafter Saleem fell down and suffered injury on his head and thereafter Saleem and Bismillah went from there after threatening Ram Singh and after 2025 minutes accused Saleem alongwith his brothers Wasim and Nasim and servant Bismillah, and wajid and Ajay came there on two motorcycles and accused Saleem, Wasim, Nasim, Bismilla and Wajid were having chura and accused Ajay was having danda pulled Ram Singh and started beating him in front of B48 and he and Mani Ram tried to save Ram Singh but accused also started beating them. He further stated that all accused attacked with knife on Ram Singh as a result of which Ram Singh fell down on ground and became unconscious and thereafter he and Ram Singh started running and State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-48) while running accused Ajay also gave danda blow to Manoj and accused Wajid, Bismillah, Wasim and Nasim and Saleem also attacked Mani Ram with churas pursuant to which Mani Ram fell down, he informed PCR thereafter Ram Singh and Mani Ram went to AIIMS where doctor declared Ram Singh dead and condition of Mani Ram was serious.
54. This witness had deposed that due to teasing firstly the scuffle took palce between accused Saleem and deceased Ram Singh and thereafter accused alongwith his brother Wasim, Nasim and his servant Bismillah, Wajid and Ajay came to spot on motorcycles and Ajay was having danda and others were having churas in their hands and first they attacked deceased Ram Singh with churas thereafter also attacked Mani Ram with churas and he informed the police who had taken both to AIIMS. This witness had stated that all the accused persons except Ajay was having churas and had attacked accused Ram Singh with those churas and further also attacked Mani Ram with those churas. And Manoj got injury from the danda blow and supported entire prosecution case.
55. In cross examination he stated that he cannot tell which chura was used by which accused and deposing in the court first time and had never deposed anywhere in any court before and further PW Manoj also used to reside with Ram Singh and both belonged to same village and Manoj is also known as Alam and denied that Manoj was having any illicit relations State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-49) with deceased wife. And stated that when accused persons came, he, Mani Ram were also sitting on takhat and wife of Ram Singh and his children were inside the room and accused persons pulled Ram Singh from his takhat to place of incident and incident had taken place in front of gate of said company and Mani Ram was standing one two steps away from deceased while deceased was being beaten by accused and they both tried to rescue and wife was standing outside the road situated outside the house of deceased. He further deposed though he had not stated that he had sustained injuries during the incident but he had received injuries in said incident and left hospital after 2025 minutes.
56. This witness in cross examination confirmed the presence of PW1 Preeti wife of deceased at the spot at the time of incident who was seeing the incident and also stated that he and Mani Ram tried to save deceased Ram Singh. Nothing material came which could show that this witness PW2 was not present at the spot or had not seen the incident. This witness further appears to be natural witness as residing in adjoining jhuggi.
57. PW3 another eye witness Smt. Rama Devi deposed that she resides in the jhuggi near B48 New Sanjay camp and her in laws and devar Mani Ram resides separately and also stated that she knew accused Saleem being her neighbour and he runs meat shop and also knows his servant Bismillah though not know his name. This witness deposed that she State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-50) heard the siren of police gypsy and found deceased Ram Singh lying in injured condition in front of factory and her devar was also lying in injured condition near her jhuggi and police removed them to the hospital and further stated that she had not seen who inflicted injuries to Ram Singh and her devar Mani Ram. She further denied that before incident accused Saleem, and Bismillah had not teased her. On being declared hostile, in cross examination she denied the facts that accused came on motorcycle with churas and attacked Ram Singh and Mani Ram and had not supported the prosecution story on the factum of attack by accused persons. In cross examination she stated one Alam used to reside in jhuggi of Ram Singh and Manoj is the nephew of Ram Singh and she do not know if Alam had illicit relations with Preeti wife of Ram Singh but had heard this. This witness though had denied the entire incident but had confirmed that accused Saleem resides in their neighbour and having servant named Bismillah and further on that day at the time of incident deceased Ram Singh and her devar Mani Ram suffered injuries and Ram Singh was lying in front of factory and Mani Ram was lying injured near her jhuggi. And further confirmed that one Manoj @ Alam also resides with deceased Ram Singh.
58. PW6 Mani Ram deposed that on 25.08.07 at around 11 pm he was sleeping on a takhat outside his jhuggi opposite to factory B48 and heard a commotion and thereafter he started running towards his jhuggi and one State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-51) Ajay who was having shop in market hit him with rod and he became unconscious and again said somebody hit him with knife thrice on right side of abdomen. He further stated that Wasim he knew was also there. And further he was stabbed by 34 persons. And further stated that no other persons suffered injuries in his presence. On being hostile by Addl. PP he denied the factum of teasing of Rama Devi by Saleem and thereafter also denied quarrel between Saleem, and Ram Singh. Further stated he do not know whether after 2025 minutes accused persons came on motorcycle because he had not seen the incident. He further deposed that he cannot say whether the accused had inflicted injuries to Ram Singh in front of factory. This witness had not supported the prosecution case over the role of accused in the said incident. But one thing has come in his evidence that incident took place at 11 pm on that fateful night in which he received injuries from 34 persons near his jhuggi.
59. As per testimony of PW1 Preeti, accused Saleem has struck Ram Singh with knife but she is confused over the identity of Naseem and Waseem, who among them had strucked the deceased Ram Singh with knife and also confirmed the presence of servant Bismillah at the spot but no stated about his role regarding giving of chhura blow. Though in cross examination by Ld. Addl. P.P. She stated that all the accused came on motorcycle with churas and accused Saleem and Bismillah strucked Ram Singh with chhura and later on also stated that all the accused assaulted State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-52) his husband with chhura and regarding injured Mani Ram, once she stated that she had not seen him and later again stated that Mani Ram was also injured at the spot and further denied the incident of scuffle between her husband and Saleem, though supported the incident of teasing. Again she unable to clear the confusion over identity of accused Naseem and Wasim but nothing came in her cross examination by counsel for the accused that she had not seen the incident.
60. Therefore, from her over all testimony it is not doubtful that she was not present at the spot or had not seen the incident. Though in her first part of testimony she had only name Saleem who strucked Ram Singh and Naseem also but cannot distinguish between Naseem and Wasim but later on in cross examination by ld. Addl. P.P. She also stated that Bismillah also strucked with knife and all accused struck knives blow on Ram Singh but had not supported the prosecution on the prior scuffle between Saleem and her husband Ram Singh and also denied the existence of any person in the name of Manoj.
61. PW2 supported the entire prosecution version over the factum of seeing the incident and assault cause to Ram Singh and Mani Ram by accused persons with chhuras. PW2 also stated that he informed police. According to FIR police was informed by his mobile and same is corroborated by DD no. 36. PW3 Rama Devi though turned hostile but it State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-53) is settled proposition of law that testimony of hostile witness cannot be thrown out completely and if any credible portion of his testimony which could be relied upon can be considered by the court. Thus, this witness also corroborated the prosecution story over the factum of time and place of occurrence. Further supported the factum that Ram Singh and injured Mani Ram received injuries on the said date, time and place. PW6 injured Mani Ram though not supported the prosecution version but it has come from his testimony that he received injuries on the same date, time and place.
62. From over all appreciation of testimony of these PW1, PW2, PW3 and PW6 it is evident that deceased Ram Singh and injured Mani Ram had suffered the injuries in the said incident at said date, time and place by accused persons and were taken to hospital by the police from the spot. Further, their presence is natural as they are resident to that palce and living in their jhuggi situated there.
Circumstance of arrest of accused persons:
63. As per arrest memo's Ex.PW2/A,B,C, D and Ex.PW2/E, accused Mohd. Saleem, Bismillah, Wasim, Nasim, and Wajid were arrested from a vacant plot opposite F167, Shaheen Bagh at 7.40 pm (evening) on 26.08.07. PW2 State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-54) Rajesh @ Kalu PW15 SI Mahender Kumar and Manoj are shown as witness to the arrest of these accused persons as per arrest memos.
64. PW22 IO Inspector ZH Khan deposed that after seizing of exhibits from the spot, he went back to PS and deposited the case property in malkhana and thereafter went to AIIMS hospital and came back to spot and called the crime team and on the same day he alongwith accused Ajay and staff came to Shaheen Bagh and at the pointing out of accused Ajay arrested the accused Mohd. Saleem, Nasim, Wasim, Bismillah and Wajid from F167 Shaheen Bagh. In cross examination he stated that Manoj remained present in investigation even after arrest of Ajay and he had taken Manoj and Kalu (PW2) alongwith Ajay during investigation and arrested accused from Shaheen Bagh at 7.40 pm in presence of Ajay, Manoj, Kalu and other staff. This witness stated that accused persons were arrested from Shaheen Bagh at around 7,.40 pm in the evening in presence of Manoj Kalu (PW2) and accused Ajay.
65. PW2 Rajesh @ Kalu in examination in chief stated that after the incident he informed the police on 100 number and thereafter Ram Singh and Mani Ram were taken to AIIMS hospital where Ram Singh was declared brought dead and condition of Mani Ram was serious. And local police also reached the hospital and he alongwith police had gone to Shaheen Bagh near Masjid and accused Salim,, Bismillah, Nasim and Wasim were State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-55) arrested by police officers form there and accused Wajid was arrested from his house. In cross examination, he stated that at about 3 4 am the investigating officer took him to Shaheen Bagh and within 1520 minutes they reached Shaheen Bagh in government vehicle and 5/6 police officials were also sitting in that government vehicle and first the accused Nasim, Wasim, Wajid and Ajay were apprehended thereafter all the accused persons had told that accused Mohd. Saleem and Bismillah were in Jasola village near nala and at the instance accused Md. Saleem, and Bismillah were apprehended and were taken to PS. And after that IO prepared fard and FIR in PS and he alongwith Manoj were present in PS. Therefore, as per testimony of this witness, all the accused were arrested by police in the night itself even before registration of FIR . Police firstly arrested accused Nasim, Wasim,, Wajid and Ajay and thereafter from Jasola arrested Md. Saleem and Bismillah. This witness completely falsified the arrest memos and PW22 IO who stated that accused were arrested at 7.40 pm from Shaheen Bagh. This witness also stated that accused Saleem and Bismillah were arrested from Jasola and not from Shaheen Bagh.
66. PW12 HC Bhura Singh who is also witness to the arrest of the accused persons in examination in chief stated that accused Ajay was arrested from Shaheen Bagh and thereafter other accused Wajid, Salim, Nasim Bismillah and one Wasim were arrested but he could not identify the accused persons in the court by name and also identified some other State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-56) accused present in the court. In cross examination he stated that he cannot tell whether all accused were arrested from same place or different places and also could not tell the time when the accused persons were arrested however, it was day time and also could not tell whether the house of Shaheen Bagh from where accused were arrested was single storey. He further deposed that he do not remember if other accused were also present a the time of arrest. And also deposed that he do not remember from which place they had gone to arrest accused persons. This witness also deposed that accused persons were arrested at the instance of Manoj but against stated that Manoj was not with them at the time of arrest of accused persons. And again stated that accused were arrested at the instance of one public person whose name he do not remember. He further deposed that nothing got recovered by accused persons in his presence. Therefore, this witness who is stated to be present at the time of arrest of the accused persons could not tell anything about the place of arrest of accused nor the time of arrest nor could tell whether who other were accompanied during arrest. This all create doubt over the circumstance of arrest as projected by the prosecution.
67. PW15 SI Mahender singh also witness to arrest of accused stated that accused Ajay was arrested from his jhuggi at Sanjay camp whereas PW12 HC Bhura Singh stated that Ajay was arrested from Shaheen Bagh. PW15 SI Mahender Singh further deposed that thereafter all the 4 State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-57) accused present in the court were arrested from F167 Shaheen Bagh. In cross examination he deposed that he could not tell how they went to place of arrest and further could not tell whether premises F167 exists in Shaheen bagh or not.
68. On overall consideration of the circumstance of arrest of accused persons, the deposition of PW2 categorically directs towards the point that all the accused were arrested even before the registration of FIR and other witnesses of arrest i.e, PW12 HC Bhura Singh, PW15 SI Mahender Singh and PW22 IO ZH Khan also contradicted on the time, place and sequence of arrest of accused persons and their testimony is wholly unreliable on the circumstance of arrest of the accused persons. Thus, prosecution unable to prove circumstances of arrest of accused persons as projected by it.
Circumstance of recovery of alleged churas/knives:
69. As per seizure memo Ex. PW2/Y,PW2/X, PW2/W, PW2/V & PW2/U. All the churas were recovered from under the takhats by accused Bismillah, Wajid, Saleem, Nasim and Wasim. PW2 stated that accused persons recovered churas from B48 Sanjay camp and from khokha near Chawla hotel. But he cannot identify which chura was recovered by State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-58) which accused in the court. PW12 HC Bhura Singh though also accompanied the IO at the time of recoveries of churas, but stated in cross examination that nothing is recovered in his presence nor stated anything in examination in chief that any chura was recovered from the accused persons. PW15 SI Mahender deposed that accused Saleem got recovered a chura and blood stained chappal from under a takhat from Chawla hotel. Accused Bismilla got recovered a chura at his instance from jhuggi in front of B48 and Wajid (juvenile) got recovered chura from his meat shop. And accused Wasim also got recovered chura from meat shop and accused Nasim also got recovered chura from near Chawla hotel. This witness had not stated that the accused persons had recovered the churas under the takhat. Further there is no site plan or place of recovery was prepared. PW15 SI Mahender Singh not stated that any blood was there on the chura recovered from Saleem where as per seizure memo there is blood on chura recovered from accused Saleem. PW22 IO deposed that accused Saleem and Bismillah had recovered the churas from the same khokha and whereas accused Naseem recovered khokha from koyla siding and Wasim recovered chura from his own khokha and Wajid had taken them to near B48 khokha therefore, as per this witness churas were recovered from different khokhas and had not stated that they recovered churas from under the takhat. This PW stated that Saleem and Bismillah recovered chura from same place but as per seizure both recovered churas from different places. All witnesses are inconsistent over the place of State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-59) recoveries of alleged churas. Thus, circumstance of recoveries of churas as alleged by prosecution is also doubtful.
Circumstance of recording of FIR:
70. As per rukka Ex.PW22/A it was prepared at 6 am on the spot on the basis of statement of Manoj pursuant to which FIR was registered. As per DD no. 36 the information about incident was received in PS at about 12.16 am and pursuant to which SI Mahender alongwith SI Bhagat Singh, HC Bhura Singh, Ct. Bhagwan Singh reached at the spot and thereafter they immediately left to hospital by leaving SI Mahender Singh on the spot. As per cross examination of PW12 they reached spot after 57 minutes and reached hospital after 3040 minutes i.e, at best between 1 am to 2 am. But as per the statement of Bhagat Singh, Bhagwan Singh and Bhura Singh no eye witness was found at hospital, therefore, they had not recorded any statements and injured Mani Ram was declared unfit for statement. There is another DD no. 58B which shows that information of death of the deceased was communicated at PS vide this DD at 4 am. It is unlikely that the death of the deceased Ram Singh was communicated to the PS at 4 am when all the police officials had already reached AIIMS hospital around 1 am in the night and found Ram Singh dead. And on the other hand if this DD 58B is correct, it shows that none of the police State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-60) officials had gone to AIIMS hospital before 4 am and as per DD no. 58B IO ZH Khan had reached hospital on receiving this DD. It means that the IO had received the information of death of deceased Ram Singh at around 4 am whereas as per MLC accused was declared brought dead at around 12.48 am in the night. There is unexplainable delay of 3 ½ hours of reporting of death to the PS. All the police officials who went to AIIMS hospital stated that no eye witness was found whereas PW2 Kalu, PW1 Preeti all stated that they went in police gypsy to AIIMS hospital and further as per MLC of injured PW6 Mani Ram he was conscious and oriented and PW19 Dr. Rajneesh Kumar who examined this injured PW6 stated that injured had given the history of assault himself and when the patient arrived at hospital he was fit for making statement and he also deposed in cross examination that he do not remember if any police officials came to record statements of injured. Thus it could be inferred that if any police officer had reached the hospital at around 1 am then he should have recorded the statements of injured or must have found any of eye witnesses at hospital but it appears that none of police official had reached the hospital in the manner as stated by them at around 1 am.
71. PW2 Rajesh @ Kalu stated that all the accused were arrested and recoveries were made by police officials in the night itself by 34 am whereas rukka was prepared at 6 am. Therefore, the preparation of this rukka is all after the investigation and not prior to the investigation, it State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-61) creates doubt on the entire police proceedings i.,e, circumstance of registration of FIR, arrest of accused persons and consequent recoveries. Prosecution even could not explain in these facts and circumstance why they have not registered FIR immediately by reaching at hospital itself. And this circumstance that Mani Ram was not fit for statement is also belied by the deposition of PW 19 Dr. Rajneesh Kumar and even the MLC Ex.PW19/A shows that the patient was unfit for statement at around 7.10 am in the morning and there is cutting on that and that cutting shows that this witness was unfit for statement at 5.10 am. There is no explanation by prosecution why the statement of injured witness was not recorded in the night itself when he was conscious. On the other hand why the police had stated that the injured was unfit for statement when they reached the hospital at night which is contrary to the medical record and deposition of PW19. This all creates doubt about the veracity of police proceedings and recording of the FIR in the manner alleged by the prosecution. Motive
72. According to prosecution genesis of incident is that accused Saleem had teased PW3 Rama Devi on the night at around 1011.00 p.m on 25/26.07.2008 and due to which a scuffle took place between Ram Singh and Saleem and in that scuffle accused Saleem received some injuries and State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-62) thereafter he alongwith his servant accused Bismillaha had threatened deceased Ram Singh of dire consequences and came back to spot after 2025 minutes on two motorcycles with accused persons with chhuras and thereafter they inflicted the injuries. PW3 Rama Devi who was alleged to be teased by accused had denied this fact of teasing and not supported the prosecution on this fact and further also denied any scuffle between accused Saleem and deceased Ram Singh. PW6 injured Mani Ram also had not supported this incident. PW1 Preeti also not fully supported this incident of teasing by accused Saleem, however, PW2 Rajesh @ Kalu had stated that both the accused Saleem and his servant Bismillaha used to tease the ladies and on that night both had teased their neighbour Rama Devi on which deceased Ram Singh objected. Though prosecution could not prove motive of incident conclusively but an inference of motive of teasing could be drawn if other circumstances are reliable. Medical Evidence:
73. As per MLC's Ex.PW19/A and Ex.PW16/A deceased Ram Singh and injured Mani Ram were brought to hospital by PCR at around 12.48 on 26.08.07, deceased Ram Singh was declared brought dead and injured Mani Ram @ Ram Lal found to be conscious and oriented. As per postmortem report Ex. PW5/A deceased Ram Singh was inflicted with State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-63) two stab injuries and injury no.1 is sufficient to cause death in ordinary course of nature and both injuries were caused by double edged stabbing weapon. A subsequent opinion was also given by the doctor vide Ex. PW5/B on the basis of the sketches prepared by the doctor and as per the opinion of the doctor the injuries no. 1 & 2 inflicted on deceased Ram Singh was produced by weapon no. 3 & 5 and weapon no. 3 is shown to be recovered from Wajid and weapon no. 5 is shown to be recovered from Bismillah. And weapon no.3 & 5 are the only weapons which had both ends sharp edged.
74. The injured Mani Ram was examined Dr. Rajneesh (PW19) and as per his deposition and MLC Ex.PW19/A he suffered following injuries:
1. CLW around 4 CM X 2 cm over right interior axillary line over chest.
2. CLW around 3 cm over abdomen right from the umbilical around 6 cm.
Intestine comes out.
3. CLW around 4 cm over right head.
75. In cross examination PW19 could not tell the date when he reported the injury as grievous neither intialled at that point. Ld. counsel for the accused submitted that therefore prosecution unable to prove that injury as suffered by Mani Ram is grievous in nature.
76. Perusal of the MLC of injured Mani Ram shows that he suffered injuries State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-64) on chest, abdomen and his intestine also came out and also on head from knife. And was unfit for statement on the morning of 16.08.07 at 8 pm. And further unfit for statement also on 27.08.07 and found fit for statement on 04.09.07. It was not suggested to PW19 that injured Mani Ram had not received grievous injuries. Therefore, mere lapse of not initialling at point where 'grievous' written could not be considered, as a lapse, from which it could be inferred that injured Mani Ram not received grievous injuries in the said incident. The nature of injuries clearly shows that injured Mani Ram suffered grievous injuries.
77. Ld. counsel for the accused had raised an objection that postmortem of the deceased Ram Singh was conducted by one Dr. Puneet Setia but that doctor was not produced before the court for examination instead of Dr. Puneet Setia PW5 Dr. Shiva Prasad was examined just on the basis that he worked with Puneet Setia and can identify his handwriting and signatures. Ld. Counsel for the accused stated that this PW5 in cross examination stated that permanent address of Dr.Puneet Setia may be available with the hospital. Ld. Counsel submits that when permanent address of this Dr. Puneet Setia is available in hospital record, then postmortem report must be proved through doctor Puneet Setia.
78. PW5 Dr. Shiva Prasad in examination in chief stated that he was deputed by MS concerned on behalf of Dr. Puneet Setia who had left the services State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-65) of the hospital and his present whereabouts were not known to the hospital. Once the particulars of doctor is not known to the hospital has come on the record then mere saying of PW5 that permanent address might be available with hospital record do not show any lapse on part of prosecution in not producing Dr. Puneet Setia. Thus, there is no embargo in proving postmortem report through PW5.
Crime Team Report
79. As per crime team report Ex. PW17/A, prepared by PW17 SI Vinod Pal showing the time of inspection of spot as 2.15 a.m. to 3.00 a.m. on 26.07.2008. PW17 stated that he reached the spot on being called by the IO and had come with his team and photographs of the spot were taken. PW22 IO stated that after registration of FIR, he prepared site plans, collected blood etc from spot, thereafter arrested accused Ajay thereafter, deposited the case property in malkhana and again went to AIIMS and after coming from AIIMS called crime team. In cross examination he stated that he reached the spot at around 6.00 a.m., therefore, as per his statement the crime time have reached after completion of lot of formalities and hence crime team cannot be present at the spot between 2.15 a.m. to 3.00 a.m. as alleged in the crime team report, which creates doubt over the preparation of crime team report as suggested by State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-66) prosecution and cast doubt over the proceedings conducted by the police. FSL report
80. As per seizure memo of chhura Ex.PW2/Y, chhura and blood stained chappal were recovered from accused Saleem. But PW2 Kalu @ Rajesh, PW22 IO had not stated in their statement that there was blood on the chhura recovered from accused Saleem, surprisingly none of these witnesses stated that alongwith chhura blood stained chappal was also recovered from accused Saleem. As per FSL report, there is blood stains found on the chhura recovered from accused Saleem but there is no reaction and no blood group was found on chhura, but there is blood group A is found on chappal, but as the recovery of chappal and chhura itself is in doubt, therefore, the FSL report is of no help to prosecution case.
Subsequent Opinion by doctor over weapon of offence:
81. Subsequent opinion given by doctor vide Ex. PW5/B over the weapons of offence used, as per this opinion, there is a possibility that weapon no. 3 and weapon no. 5 both stated to be double edge weapons could be used in infliction of injuries and these two weapons are shown to be recovered State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-67) from accused Wajid and Bisimillah.
Other lapses in prosecution story
82. Prosecution derelicts in not examining the eye witnesses PW1 Preeti, PW2 Kalu @ Rajesh and injured Mani Ram PW6 in the hospital promptly, despite fact PW6, Mani Ram was conscious when admitted in hospital.
83. Therefore, on over all appreciation, the circumstances of arrest, recoveries of chhuras, blood stained chappal etc, appears to be doubtful and further there is an unexplained delay in recording of FIR coupled with the lapse that injured was not examined in the hospital when he conscious and oriented. Even there is a doubt that police reached the hospital immediately after the incident and as per DD no. 58 B, police might have reached the hospital after 4.00 a.m. Even police unable to examine material witness Manoj before court on whose statement FIR was registered. As per PW1 the injuries were effected by accused Saleem on deceased Ram Singh but chhura which was recovered from accused Saleem do not connect him with the injury on the body of deceased Ram Singh in view of subsequent opinion Ex. PW5/B. State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-68)
84. On the other hand, on appreciation of eye witness account i.e, deposition of PW1, PW2, PW3 and PW6, the time and place of occurrence of infliction of injuries on deceased Ram Singh and injured Mani Ram is not in doubt. Further, PW1 and PW2 are consistent on the factum that all the accused persons were present at the spot at the time of infliction of injuries and the presence of PW1 and PW2 at the spot do not appears to be doubtful and their version of the incident also appears to be credible and not inconsistent with each other.
85. Ld. counsel for the accused submitted that prosecution unable to prove first information report, not examined PW Manoj and further the circumstance of arrest and recoveries are all fictitious, manipulated by the police. Now the question arouse whether this court can disbelieve eye witnesses PW1 and PW2 because police unable to prove other circumstances, recoveries and circumstance arrest etc.
86. Apex court in case titles as Amar Singh vs. Balwinder & Ors. (2003) 2 SCC 158 had observed:
"..... The failure of the investigating officer in sending the fire arms and the empties for comparison cannot be completely throw out the prosecution case when the same is fully established from the testimony of eye-witnesses whose presence on the spot cannot be doubted State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-69) as they all received gun shot injuries in the incident. In Karnail Singh vs. State of M.P. (1995) 5 SCC 518 it was held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav & Ors. vs. State of Bihar (1999) 2 SCC 126 while commenting upon certain omission of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined de hors such omission to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav vs. State of Bihar (1998) 4 SCC 517 when this Court observed that in such cases the story of the prosecution will have to be examined de hors such omissions and contaminated conducted of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice.
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-70) In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eye-witnesses, which is corroborated by by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief."
Thus prosecution case could not be thrown out or disbelieved because of defective or tainted police investigation if direct testimony of PW1 and PW2 is found reliable . Fictitious circumstance of recovery of churas therefore inconsequential if direct testimony is reliable on the factum that accused persons came to spot with churas. Even otherwise, if police might not have recovered the churas, and if Pw1 and PW2 are found reliable , then factum of use of churas in the incident could be relied upon their testimony.
87. Now the situation is that except version of PW1 and PW2, eye witnesses, the prosecution failed to prove any other circumstance as already discussed. ld. Counsel for the accused submitted that these two witnesses PW1 and PW2 are not reliable witnesses as PW1 in her testimony stated State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-71) that she was alone at the spot at the time of incident and also improved over her testimony in cross examination by Ld. Addl. PP by submitting that all the accused persons came to the spot with churas and assaulted deceased Ram Singh and even denied the factum of knowing of any Manoj and also not stated firstly that Mani Ram got injury in said incident though later stated that he got injured. Ld. counsel for the accused further submitted that when PW1 herself stated that she was alone at the time of incident then the presence of PW2 at the spot is doubtful. Ld. Counsel further submits that PW1 being a wife is a highly interested witness and because of these inconsistencies and improvements her evidence cannot be relied upon and because of her candid statement that she was alone at the spot therefore, the deposition of PW2 also cannot relied upon.
88. PW1 in first part of his deposition stated that accused Saleem came with his brothers and employee and Saleem inflicted injuries alongwith one other brother but she is confused over the identity over Wasim and Nasim. and on being declared hostile by Addl. PP she stated that all came with churas and assaulted her husband (deceased Ram Singh). Now the question is whether these improvements variations and omissions in the testimony of PW1 on cross examination by Addl. PP made this witness unreliable witness or not.
89. Apex court in "State of UP Vs. Anil Singh, AIR 1988 SC 1998" had State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-72) deprecated the practice of rejecting the prosecution version either for want of corroboration by independent witnesses or for some falsehood stated or embroidery added by the witnesses. The court held that if there is a ring of truth in the main, the case should not be rejected. Apex court in "
Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753,"
the Apex court pointed out that discrepancies which do not go to the root of the matter and shake the basic version of the witness cannot be annexed with undue importance and over much importance cannot be attached to minor discrepancies for following precise reasons:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. (4) By and large, people cannot accurately recall a conversation and State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-73) reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. One cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the timesense of individuals which varies from person to person. (6) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span.
A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel and doubt of nervousness may mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-74) witnessed by him. Perhaps, it is a sort of a psychological defence mechanism activated on the spur of the moment".
90. Ld. counsel for the accused also raised objection that PW1 is a highly interested and related witness therefore, in view of the variations in her statement she cannot be relied upon. Apex court to repel this argument in "Dalip Singh & Ors. Vs. State of Punjab, AIR 1953 SC 364" had observed as under:
"Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is 'personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness hs a grudge alongwith the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts".
91. Thus in light of above legal propositions, the mere variations and State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-75) additions by PW1 on cross examination by Addl. PP that all the accused persons came to the spot with churas and inflicted injuries on the deceased Ram Singh do not make her version improved or make her unreliable witness. It is not uncommon that when the incident happens in such a manner when 56 persons came with churas and attack her husband, in this situation, it is hardly possible for such type of lady witness to catch every gesture of the accused persons and it is more difficult to depose every gestures which she noticed in the same manner in the court after considerable time. Therefore, the variations and additions which came after being cross examined by Addl. PP do not in any way make this witness unreliable. Further, she had concealed the identity of Manoj or given two versions first that she had not seen Mani Ram injured at spot but later stated that she had seen him at the spot do not in any way hit at the core of the prosecution case or otherwise do not in any way show that she was not present at the spot. Therefore, Ld. Counsel submissions that PW1 not reliable is not tenable. Further mere saying that she was alone at the time when the injuries were inflicted to Ram Singh though later also stated that Kalu and Mani Ram were also present at the spot at that time, does not in any way indicates that PW2 was not present at the spot. And there comes nothing in cross examination of PW2 that he was not present at the spot or not witnessed the incident. Nor any suitable plea was raised by the Ld. Counsel for the accused in oral arguments as well as in written synopsis from which it could be State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-76) inferred that PW2 was not present at the spot and not seen the incident.
92. Thus, on overall consideration of evidence on record, it is not in doubt that PW1 and PW2 were not at spot at the time of incident or had not seen the incident. And further that the present accused namely Saleem, Wasim, Nasim, Bismillah alongwith Wajid had not come to spot with churas.
93. As per subsequent opinion Ex.PW5/B over the weapons of offence, it is opined that injury on the deceased Ram Singh is caused by double edged sharp weapon and as per this exhibit, sharp edged weapons were shown to be recovered from accused Wajid and Bismillah by the police, whereas as per the testimony of PW1 in her first part, she stated that deceased Ram Singh was first attacked by Saleem and thereafter by Nasim or Wasim. Thus, it is clarified that as prosecution unable to prove its recoveries, then due to circumstance of showing of recovery of sharp edged weapon from Wajid and Bismillah cannot in any manner effect the testimony of PW1 and no precedence could be attached to the circumstance that the sharp edged weapon was used by Wajid and Bismillah and not by accused Saleem over and above the testimony of PW1.
94. Now the next most important test is to examine the deposition of PW1 and PW2 visavis the medical evidence on record. As per postmortem State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-77) report and MLC of deceased Ram Singh he suffered two injuries, one on chest and other on abdominal cavity and as per opinion of doctor injury no.1 is sufficient to cause death in ordinary course of nature. PW1 and PW2 both stated that all the accused persons had attacked deceased Ram Singh with churas but it is inconceivable if all the accused persons have attacked Ram Singh with churas then he will receive only two injuries. Therefore, it could be inferred that actual physical assault on the body of the deceased was inflicted at most by two persons. PW1 Preeti in her first part had stated that accused Salim had inflicted the injury and also accused Nasim but he confused over the fact whether it was Nasim or Wasim. As per the MLC of injured Mani Ram he was inflicted 3 injuries and therefore, it also shows that all the 5 persons have not attacked physically to injured Mani Ram. Now the next question arose whether this medical evidence belies the presence of the eye witnesses at the spot. The answer in affirmative is 'No". There are number of circumstances as already discussed which shows that PW1 and PW2 are present at spot and seen the incident and further it is also established that all the accused persons came to spot with churas. Thus, by mere saying that all the accused persons had attacked the deceased and the injured with churas do not mean that PW1 & PW2 are not present at spot and not seen the incident.
95. Apex court in State of UP Vs. Anil Singh (Supra) had observed that it is State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-78) necessary to remember that a judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. It is unfortunate to note that the trend is to have easy recourse of appreciating evidence and reject it on the ground of some discrepancy here and there without making any effort to disengage the truth from falsehood. The pertinent observations of the Supreme court are as under (para 13):
"Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-79) not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard of falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version".
96. Apex in case titled as State of Punjab vs, Karnail singh (2003) 11 SCC 271 in paragraph 12 has observed:
"Exaggerated devotion to the rule of benefit of doubt must not be nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the pleas that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (see Gurbachan Singh vs. Satpal Singh). The prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. Vs, Ashok Kumar Srivastava). A State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-80) reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case, if a case is proved perfectly, it is argued that it is artificial if a case has come flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape.
Proof beyond reasonable doubt a guideline, not a fetish. (See Inder Singh vs. State (Delhi Admn.). Vague hunches cannot take place of judicial evolution . "A judge does not preside to see that guilty man does not escape. Both are public duties". (Per Viscount Simon in Stirland vs. Director of Public Prosecution quoted in State of U.P. vs. Anil Singh, SCC, p. 692, para 17). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-81) cannot afford any favourite other than the truth. (See:
Shivaji Sahabrao Bobade vs. State of Maharashtra, State of U.P. vs. Krishna Gopal and Gangadhar Behera vs. State of Orissa).
97. Thus in light of above proposition this court is not supposed to disbelieve the eye witnesses on the ground that their version not exactly matches with the medical evidence on record. The court has the duty to take out the embroideries exaggerations and falsehood if it is convinced that they are present at the spot and had seen the incident. Again said it is not uncommon that in the incident of present nature, witnesses are not naturally able to see each and every act of the accused persons and it is also not unnatural that they will not exaggerate the role of the accused persons when deposes before the court. The duty of the court is to disengage the truth out of their version and reject the other part. Thus on reconciling the medical evidence visavis the version of PW1 it is clear that accused Salim and one more accused Nasim or Wasim had inflicted two injuries found on the body of deceased Ram Singh and as injury no.1 was sufficient to cause death, therefore, accused Salim and one of the two other accused are liable for commission of murder of deceased Ram Singh. And further it is also not in doubt that all the accused persons have participated in inflicting injuries on injured Mani Ram but it cannot be State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-82) chaffed out that which of the accused had inflicted injuries actually to injured Mani Ram.
98. After teasing episode accused Saleem, Wasim, Nasim, Bismillah, Wajid came to spot with churas alongwith one Ajay. Wajid and Ajay are juvenile and facing trial before the juvenile court. But seeing the background, the genesis of the incident and the promptness by which these accused persons came to the spot after the teasing incident, it cannot be inferred that all accused shared the common intention to murder Ram Singh or had pre planned to murder Ram Singh. At best the coming of accused persons at the spot with churas, the common intention which could be inferred is that they had come to the spot for inflicting injuries or to threaten deceased Ram Singh etc. Particularly, in view of the fact neither of the accused have any criminal background further they are almost neighbours to each other and known to each other and further carrying of churas by them is not at all unnatural in these circumstances because they all were running the meat shops.
99. Thus, because of infliction of fatal injuries on Ram Singh, all the accused persons cannot be made responsible for the overt act committed by accused Saleem and Wasim or Nasim. Therefore, none of the accused persons are liable for commission of offence of murder of deceased Ram Singh u/s 302 IPC except accused Saleem. As PW1 unable to distinguish State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-83) between Nasim and Wasim who had inflicted the second blow on the deceased Ram Singh, the benefit of doubt goes to both of them and hence, only accused Salim is liable to be convicted u/s 302 IPC for his overt act of inflicting fatal injuries to the deceased Ram Singh.
100. All these present accused persons alongwith Wajid had also inflicted injuries to injured Mani Ram, though none of the witnesses could state which injury is inflicted by which accused but in these circumstances it is also not necessary to explain which injury was inflicted by which accused when all accused are attacking and present at the spot. As already discussed it cannot be inferred in present set of facts that all the accused came to spot with intention to murder therefore, it cannot be inferred they inflicted injuries with intention to cause murder however,it is clear that they had come to the spot with common intention to inflict injuries or to threaten deceased, during the same transaction caused grievous injuries to Mani Ram therefore, they are also liable for causing grievous injuries to Mani Ram and hence committed offence u/s 326/34 IPC. As there is no common intention to murder thus no offence u/s 307 IPC is made out against accused persons.
101. Accused Saleem, Wasim, Nasim, Bismillah alongwith juvenile Wajid and Ajay had formed a unlawful assembly and in furtherance of their common object had caused grievous injuries to injured Mani Ram. Therefore, State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-84) liable for commission of offence u/s 326/149 IPC and further liable for commission of offence u/s 147 IPC and also liable for commission of offence u/s 148 IPC.
102. On overall appreciation of facts and circumstances, the prosecution is able to prove its case beyond reasonable doubt. Thus, accused Saleem is convicted u/s 302 IPC and further accused Saleem , Wasim, Nasim and Bismillah are convicted u/s 326/149/34 IPC. Further, accused Saleem, Wasim, Nasim and Bismillah are also convicted u/s 147 IPC and 148 IPC. Accused persons be heard on point of sentence.
Announced in Open Court
On 16th November, 2011 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-85) State Vs. Mohd. Salim etc., SC no. 42/10, (Contd.. pg-86)