Delhi District Court
The State vs Sher Khan @ Sheru on 20 November, 2014
FIR no. 85/2012
D.O.D 20.11.2014 P.S Narela
u/s 302/34 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 83/14
UID NO . : 02404R0142282012
FIR No : 85/2012
P. S : Narela
u/s 302/34 IPC
The State versus Sher Khan @ Sheru
S/O Kalu Khan
R/O 10 Village Kureni,Narela, Delhi.
Date of committal to session court : 04.08.2012
Date of argument : 20.11.2014
Date of order : 20.11.2014
JUDGMENT
1 Facts and circumstances giving rise to the present case, as per the story of the prosecution are that:
a) On 19.2.2012, at about 6:25 am, an information was received at P.S Narela, from control room that near a park in front of Narela Industrial area, E -812, a dead body of a person having blood stains on his clothes is lying . The said information was recorded vide DD no.9 B at P.S Narela and same was entrusted to S.I Deepak Sangwan for investigation. On receipt of aforesaid DD , S.I Deepak SC No.83/14 State vs Sher Khan @ Sheru (Page 1 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC Sangwan along with constable Vipin reached at the spot and found a dead body of male. There were injury on the stomach and chest of the dead body. The name of deceased was disclosed as Vinod. Crime team was called at the spot who inspected the spot
b) S.I Deepak Sangwan made the endorsement on aforesaid DD no.9 B and got registered the FIR. Inspector Naresh Kumar also reached at the spot and took over the investigation. He lifted the blood stained concrete soil from the place of occurrence and sealed and seized the same. He also lifted the blood gauze on a piece of cloth and seized the same after sealing it. He also lifted earth control sample and put the same in small plastic box which was also sealed and seized . Inspector Naresh Kumar prepared the site plan of the place of occurrence and dead body was removed to BJRM Hospital for postmortem. Dr. Sudesh Kumar is shown to have conducted the postmortem, who opined the cause of death as hemorrhage shock due to sharp weapon stab wound consequent upon heart and lung and other parts of body.
Injuries were opined to be ante mortem in nature and sufficient to cause death in ordinary course of nature. After the postmortem dead body was handed over to the relative of deceased.
c) According to the case of prosecution on 29.2.2012, accused Sher Khan @ Sheru along with his two associates namely Chirag and Nazim were arrested by Anti Snatching cell, police staff near the picket near SRHC Hospital vide kalandra u/s 41.1(B) CrPC where accused Sher Khan @ Sheru SC No.83/14 State vs Sher Khan @ Sheru (Page 2 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC made disclosure statement regarding his involvement in present case. It is alleged that pursuant to said disclosure statement of accused Sher Khan @ Sheru , the weapon of offence i.e one knife was recovered at his instance. Knife was sealed and seized by the IO. As per the subsequent opinion , the stab injuries mentioned in the post mortem report could be possible by said knife or such like other weapon. It is also alleged that accused Sher Khan @ Sheru pointed out the place of occurrence of the present case .
h) After completion of investigation , accused Sher Khan along with his associates namely Chirag and Nazim were chargesheeted for offence u/s 302/34 IPC.
2 Vide order dated 21.5.2012, Ld MM took the cognizance of the offence and subsequently, since the offence u/s 302 IPC was exclusively triable by the court of sessions, therefore vide order dated 04.08.2012, case was committed to the court of sessions.
3 Here it is pertinent to mention that Chirag and Nazim were declared Juveniles and proceeding against them were ordered to be filed before Juvenile Justice Board.
4 Vide order dated 12.9.2012 , ld predecessor of
SC No.83/14 State vs Sher Khan @ Sheru (Page 3 of 25 )
FIR no. 85/2012
D.O.D 20.11.2014 P.S Narela
u/s 302/34 IPC
this court decided the charge and accordingly,
accused Sher Khan @ Sheru was charged for the
offence u/s 302/34 IPC to which he pleaded not guilty
and claimed to be tried.
5 In order to prove its case, prosecution has
examined as many as eighteen witnesses. Although,
the detailed testimonies of the relevant witnesses shall be discussed herein after in the subsequent para's, however, it would be appropriate to discuss in brief the testimonies of those prosecution witnesses to have an overview of the nature and kind of evidence which has come on the record.
6 PW1 Constable Babu Khan , DD writer recorded DD no. 9 B ExPW1/A when information was received that dead body of a person is lying near a park in front of Narela Industrial Area.
7 PW2 HC Surender Singh was posted as duty officer at P.S Narela on 1.3.2012. He proved the recording of DD no. 10 A ExPW2/A regarding information about arrest of accused by Anti Snatching cell SC No.83/14 State vs Sher Khan @ Sheru (Page 4 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC where accused made a disclosure statement about his involvement in the present case.
8 PW3 Ravi is the brother-in-law of deceased and identified the dead body of deceased Vinod vide statement ExPW3/A. 9 PW4 Retd. S.I Prem Singh , Incharge Mobile Crime Team on 19.2.2012 , on receipt of call from Control Room, reached E Block Opp. Park, NRJP Dharamkanta, Narela , Delhi where a dead body of male was found lying near the corner of the park. He inspected the spot and prepared his report ExPW4/A and handed over the same to the IO.
10 PW5 Constable Vipin Kumar was with S.I Deepak Sangwan (PW18) during investigation.
11 PW6 Dr. Sudesh Kumar conducted postmortem on the body of deceased Vinod on 21.2.2012 and proved his detail PM report ExPW6/A and subsequent opinion ExPW6/C. SC No.83/14 State vs Sher Khan @ Sheru (Page 5 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC 12 PW7 HC Shivam was posted as photographer with Mobile Crime team and on 19.2.2012, he along with crime team reached at the spot and took the photographs ExPW7/B-1 to B10. He proved the negatives as ExPW7/A-1 to A10.
13 PW8 Ct. Vinod was with IO Inspector Naresh Kumar (PW17 on 1.3.2012 , when accused Sher Khan @ Sheru was arrested from the court situated at Rohini Court and in his presence pointing out memo of accused Sher Khan @ Sheru was prepared by the IO.
14 PW9 Ct. Siddharth was with the Anti-
snatching cell officials at the time when the recovery of kinife was effected at the instance of the accused Sher Khan @ Sheru and his two associates namely Chirag and Nazim(juvenile).
15 PW10 S.I Ajay Karan , PW 14 HC Ravinder Kumar, PW 15 HC Sunil are the witnesses who were posted with Anti snatching cell on 29.2.2012 . It would be suffice to mention the testimony of PW14 HC Ravinder Kumar , as all other witnesses have deposed SC No.83/14 State vs Sher Khan @ Sheru (Page 6 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC exactly on the lines of PW14. PW14 HC Ravinder Kumar deposed that on 29.2.2012, he along with HC Sunil Kumar(PW15) and S.I Ajay Karan(PW10) had left office to collect some information and when they reached , 80 foota road , Narela , a secret informer informed them that three persons who were involved in snatching, were roaming on their motorcycle in the area near Satyawadi Harishchander Hospital , Narela and if raided ,they could be apprehended. They placed the picket near Harish Chandra hospital along with secret informer and at about 5:45 pm, three person were seen coming on motorcycle bearing number DL 9S V 6072 and on the pointing out of secret informer , the said motorcycle was stopped and on interrogation, their names were revealed as Sher Khan @ Sheru , Nazim @ Kallu and Chirag( both JCL) . On interrogation , it was revealed that this motorcycle was stolen from the area of P.S Nazaf garh and an FIR no.164/11 has been registered in this respect. The said motorcycle was seized u/s 102 CrPC vide seizure memo ExPW10/A . All the three accused persons including accused Sher Khan @ Sheru were arrested u/s 41.1(d) ( b) CrPC. Accused Sher Khan was arrested vide memo ExPW10/B and his personal SC No.83/14 State vs Sher Khan @ Sheru (Page 7 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC search was conducted vide memo exhibit ExPW10/C . Accused Sher khan also made a disclosure statement ExPW10/H and also made another disclosure statement ExPW10/L . Accused Sher Khan led the police party to Beriwala Bagh, near Kasturi Ram School, Narela and took out a polythene bag by scratching near the wall of the park and that polythene was checked and it was found to contain knife . The knife was measured and the sketch of the knife ExPW9/A was prepared . The knife was converted into a parcel with the help of cloth , sealed with the seal of AKS and seized vide seizure memo ExPW9/B. Motorcycle bearing no. Dl 9 S V 6072 was seized vide memo ExPW10/V . Accused also pointed out towards the place of occurrence i.e DSIDC Narela and I- block industrial Area and several other places and pointing out memo's in that regard were prepared and accused also pointed out a motorcycle bearing no. DL 8 S AH 8634 which was parked outside the his house and that motorcycle was seized vide seizure memo ExPW10/O u/s 102 CrPC and he disclosed that said motorcycle is involved in the present case. All the aforesaid witnesses were cross examined by Ld counsel for the accused.
SC No.83/14 State vs Sher Khan @ Sheru (Page 8 of 25 )
FIR no. 85/2012
D.O.D 20.11.2014 P.S Narela
u/s 302/34 IPC
16 PW11 HC Rajesh was posted as MHC(M) P.S
Narela and case properties were deposited with him by the IO.
17 PW12 Ct. Yogesh on 24.4.2012, collected six sealed pullandas along with two sample seal and deposited the same to FSL Rohini vide RC no. 64/21/12 and handed over the receipt acknowledgment and copy of RC to MHC(M).
18 PW13 Inspector Mahesh Kumar, draftsman, on 7.4.2012 at the request of Insp. Naresh Kumar visited the place of incident and took measurements and prepared rough notes on the basis of which he prepared scaled site plan ExPW13/A. 19 PW16 Sh Ram Kumar is the owner of motorcycle bearing no. DL-9SB-6072 who got his motorcycle released on superdari.
20 PW17 Inspector Naresh Kumar is the IO of the present case. He deposed that on 19.02.2012, DD no.9B SC No.83/14 State vs Sher Khan @ Sheru (Page 9 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC Ex.PW1/A was entrusted to SI Deepak Sangwan who had reached at the spot and from the perusal of site and of the dead body it was observed by SI Deepak Sangwan that it was a murder case and he accordingly, prepared a rukka u/s.302 IPC and sent the same to PS through Ct. Vipin. After registration of the case, u/s.302IPC, further investigation of the case was entrusted to him. He reached at the spot where other police staff from PS Narela was already present and one dead body was lying near the boundary of the park. The crime team was called at the spot and SI Prem Singh along with photographer HC Shivam reached at the spot. SI Prem Singh inspected the spot and prepared report Ex.PW4/A . HC Shivam took the photographs exhibits PW7/B1 to B10.
21 PW17 Inspector Naresh Kumar further deposed that he lifted the blood stained concrete soil from the place of occurrence and same was put in a small plastic box which was further put in a piece of cloth and pulanda was prepared which was sealed with the seal of NK and it was given Exhibit no.1 and was taken into possession vide seizure memo Ex.PW17/A. He also lifted the blood SC No.83/14 State vs Sher Khan @ Sheru (Page 10 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC gauze on a piece of cloth and put that piece of cloth in a small plastic box which was further put in a piece of cloth and a pulanda was prepared which was given Exhibit no.2 and was sealed with the seal of NK and was seized vide seizure memo Ex.PW17/A1 . He also lifted earth control sample and put the same in a small plastic box which was further put in a piece of cloth and a pulanda was prepared which was given Exhibit no.3 and was sealed with the seal of NK and was seized vide seizure memo Ex.PW17/A2. He also prepared a rough site plan of the place of occurrence Ex.PW17/A3 . Thereafter, the dead body was sent to BJRM hospital and on 21.02.12, postmortem on the dead body was conducted by the concerned doctor.
22 PW17 further deposed that from the spot, he returned to the PS and deposited the exhibits in the malkhana. On 23.02.2012, he had gone to the BJRM hospital where Ct. Vipin met him who handed over to him one envelope sealed with the seal of FMT BJRM Hospital Jahangir Puri Delhi which was containing blood of deceased Vinod in gauze piece. One pulanda sealed with the seal of FMT BJRM Hospital Jahangir Puri Delhi which SC No.83/14 State vs Sher Khan @ Sheru (Page 11 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC was containing clothes of deceased Vinod and one sample seal with impression FMT BJRM Hospital, Delhi was also seized vide seizure memo Ex.PW17/A4. Exhibits were got deposited in the malkhana.
23 PW17 further deposed that , on 29.02.2012, accused Sher Khan was arrested u/s. 41 Cr.P.C. by SI Ajay Karan/Anti Snatching Cell Outer District along with JCLs namely Nazim and Chirag and during interrogation before SI Ajay Karan, all three of them had disclosed about stabbing a person at E-Block, DSIDC Narela around 10-11 days back, accused persons had also pointed out the place of occurrence and had also got recovered one knife with which they had stabbed a person and one diary was also got recovered by Nazim form his house which they had looted from the person whom they had stabbed at E-Block, DSIDC Narela and all these proceedings were conducted by SI Ajay Karan and all the seized articles which were having the seal of AKS, were deposited by SI Ajay Karan in malkhana PS Narela.
24 He further deposed that on 01.03.12, accused Sher Khan @ Sheru along with Nazim and Chirag was SC No.83/14 State vs Sher Khan @ Sheru (Page 12 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC produced before the court. Accused Sher Khan @ Sheru was interrogated and arrested vide memo Ex.PW8/A. PC remand of accused Sher Khan @ Sheru along with his two associates were taken. During police custody remand, all the accused persons, led police party near the park in front of E-812, DSIDC Narela and pointed out towards a spot stating that around 10-12 days back, they had tried to rob a person and when that person resisted, they had stabbed him number of times and had robbed a small diary and a cash amount of Rs.400/- from that person. He prepared the pointing out memo Ex.PW8/D. He obtained subsequent opinion Ex.PW6/C from the doctor. He got prepared the scaled site plan of the place of occurrence ExPW13/A from draftsman SI Mahesh Kumar . PW17 Insp. Naresh Kumar was cross examined on behalf of the accused.
25 PW18 S.I Deepak Sangwan deposed that in the intervening night of 18/19.02.2012, at about 6:25AM, duty officer informed him that a dead body of a male was lying at E-812, Near Park, DSIDC, Narela, Delhi. He along with Ct. Vipin reached at the spot. He noticed that a dead body of male was lying near the park and blood was lying SC No.83/14 State vs Sher Khan @ Sheru (Page 13 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC near the dead body and face of the dead body was towards the sky and head of the dead body was on the west side and there were injuries on the stomach and chest of the dead body. No eye witness was present there. Meanwhile, Ct. Ajay came to him along with DD no.9B Ex.PW1/A . During the enquiry, the name of the deceased was disclosed as Vinod s/o Shivdhar r/o Gali no. 7, Gautam Colony, Narela. Crime team was called at the spot. He made his endorsement on the DD no.9B Ex.PW18/A and got register the FIR through Ct. Vipin. In the meanwhile, Insp. Naresh came back at the spot and he prepared the site plan Ex.PW17/A3. Further he has deposed on the lines of PW17 Insp Naresh Kumar as stated herein above. He was also cross examined by the Ld counsel for the accused.
26 Thereafter prosecution evidence was closed and statement of accused u/s 313 Cr. PC was recorded . During the statement recorded u/s 313 CrPC , accused denied the allegations however, he did not opt to lead any evidence in his defence.
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FIR no. 85/2012
D.O.D 20.11.2014 P.S Narela
u/s 302/34 IPC
27 I have heard the ld Addll P.P for the state and
Ld counsel for the accused . I have also perused the record very carefully.
28 Accused Sher Khan @ Sheru is facing trial on the allegations that he along with his two associates namely Chirag and Nazim , both juvenile, committed the murder of Vinod (deceased) with knife. Nobody witnessed the occurrence and the case rests on circumstantial evidence. It is well settled law that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116, SC No.83/14 State vs Sher Khan @ Sheru (Page 15 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC 29 In the case in hand the prosecution in order to prove its case mainly relied on the following circumstances:
i) The death of Vinod was homicidal in nature;
ii) The weapon of offence i.e.Knife was recovered at the instance of the accused Sher Khan @ Sheru and it was used for committing the murder of Vinod (deceased).
THE DEATH OF VINOD WAS HOMICIDAL IN NATURE 30 It is not in dispute that Dr. Sudesh Kumar (PW6) who was posted at BJRM hospital, conducted the post mortem on the body of Vinod (deceased) and he noticed the following injuries :
External injuries :
i) Incised stab wound present medial and lateral side at lower end of left elbow separately of sized respectively i.e medial side is equal to 2 X.5X2 and second 2 ½ X .5X1 i.e length X breadth X depth.
ii) Incised stab wound present at medial side of upper left arm of size 5 X 3 X ½ cm.
Iii) incised stab wound present at Centre of the chest placed obliquely toward upper and left side and from the left nipple 10cm. far from the wound. It is 24 cm . far SC No.83/14 State vs Sher Khan @ Sheru (Page 16 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC from the chin. Size of the wound is 2.5 X 1.5 X 6 cm i.e length X breadth x depth.
iv) incised stab wound present below costal region left side lateral to left hypochondrium of size is equal to 2X .5 X 6 cm i.e length X breadth X depth and it is 6 cm from the left nipple.
v) Incised stab wound present medial side upper part of right arm of size 5 X 2.5 X 3 cm.
Internal injuries Blood and blood clot present in the plural cavity in 500 ml. Left lung was punctured.
Heart is punctured at right atrium through and through of size 1 X 2.5 X 2 cm i.e length X breadth X depth.
31 Dr. Sudesh Kumar proved the postmortem report as ExPW6/A. He opined the cause of death "hemorrhage shock due to sharp weapon stab wound consequent upon heart and lung and other parts of the body. All injuries are ante mortem in nature , fresh in duration sufficient to cause death in ordinary course of nature " This has not been disputed by the accused .
32 As per the subsequent opinion Ex.PW6/C ,
the injuries mentioned in the Postmortem report
ExPW6/A on the body of deceased Vinod were possible
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by the weapon i.e knife ExP-1 or such like other
weapon. Accused has not disputed the medical
evidence. Accepting the medical evidence, it is clear that Vinod suffered a homicidal death.
The weapon of offence i.e.Knife was recovered at the instance of the accused Sher Khan @ Sheru and it was used for committing the murder of Vinod (deceased).
33 In order to prove its case , prosecution has examined 18 witnesses but their testimonies is not sufficient to convict the accused for the alleged offence. PW1 Constable Babu Khan (DD writer), PW2 HC Surender(DO), PW3 Ravi(identified the dead body), PW4 Retd S.I Prem Singh (Crime team incharge), PW5 Ct Vipin (was with SI Deepak Sangwan), PW7 HC Shivam , (photographer), PW8 Ct Vinod (was with IO), PW9 constable Siddharth (was with Anti Snatching Team), PW11 HC Rajesh (MHCM), PW12 Ct. Yogesh (deposited the case property to FSL) and PW13 Inspector Mahesh (draftsman) are just formal witness who assisted the IO during investigation one way or other to take the SC No.83/14 State vs Sher Khan @ Sheru (Page 18 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC investigation to final conclusion.
34 PW10 S.I Ajay Karan, PW14 HC Ravinder and PW15 HC Sunil were members of the Anti-Snatching cell . They have testified to the effect that on 29.2.2012, accused Sher Khan @ Sheru along with his two associates Chirag and Nazim(both Juvenile) were coming on a motorcycle number DL 9SV 6072, belonging to Ram Kumar (PW16) . They were stopped by the them, near SRHC Hospital. Said motorcycle was stolen and was case property of FIR no.164/11 P.S Najafgarh Motorcycle was seized vide seizure memo ExPW10/A . Accused Sher Khan @ Sheru was arrested vide kalandra u/s 41.1(B)
(d)/102 CrPC is ExPW10/Q and vide arrest memo ExPW10/B. His personal search was carried out vide memo ExPW10/C and he made a disclosure statement ExPW10/H and supplementary disclosure statement ExPW10/L . Accused Sher Khan @ Sheru along with his aforesaid associates led the police party to Beri wala Bagh near Kastoori Ram School, Narela and from there accused Sher Khan @ Sheru picked up polythene bag and produced the same before S.I Ajay Karan (PW10) who checked the same and it was found containing one SC No.83/14 State vs Sher Khan @ Sheru (Page 19 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC knife. Accused Sher khan @ Sheru claimed that the said knife was used in the robbery. Sketch of the knife was prepared vide ExPW9/A and it was sealed and seized vide seizure memo ExPW9/B. Later on accused Sher Khan @ Sheru is shown to have been arrested in the present case by Inspector Naresh Kumar (PW17) vide arrest memo ExPW8/A .
35 From the entire evidence on record, as adduced by the prosecution, the only evidence against the accused Sher Khan @ Sheru is the alleged recovery of knife at his instance from Beri wala Bagh near Kastoori Ram School, Narela which was seized vide seizure memo ExPW9/B. From the cross examination of PW17, Inspector Naresh Kumar, it is abundantly clear that this was the only evidence against the accused Sher Khan @ Sheru as during his cross examination he replied "...the evidence against the accused Sher Khan @ Sheru is the pointing out memo of the spot from where the dead body was recovered, one knife was recovered at the instance of the accused Sher Khan @ Sheru which was used for committing the murder . Except this no other evidence against accused Sher Khan @ Sheru is surfaced..."
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36 That being so, the moot question for
consideration for this court is whether the said piece of evidence itself is sufficient to convict the accused Sher Khan @ Sheru or not. The answer is "NO" .
37 As per the story of prosecution there are three-four witnesses to the recovery of weapon of offence i.e knife i.e PW9 Ct Siddharth, S.I Ajay Karan(PW10), HC Ravinder (PW14) and HC Sunil (PW15) . They all have deposed on the same lines qua the recovery of Knife as discussed herein above. Their testimony is of stereo type and wound not is safe to place reliance as there is no corroboration from any independent evidence.
38 Further, the knife in question is shown to have been recovered from the Beriwala Bagh near Kastoori Ram School , Narela . It has come on record that Knife was recovered in the presence of all the three persons who were apprehended by Anti Snatching Cell. An impression has been created that it was a join recovery at the instance of all the three accused persons i.e SC No.83/14 State vs Sher Khan @ Sheru (Page 21 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC accused Sher Khan @ Sheru and two of his associates ,who are juvenile. In these circumstances, it is very difficult to hold accused Sher Khan @ Sheru alone responsible for the same. Joint recovery has no value in the eyes of law.
39 It has come on record that the place from where the "knife" was allegedly recovered was a open place , therefore, the possibility of having access by other public persons, cannot be ruled out. It is not the case of the prosecution that accused Sher Khan @ sheru was in exclusive possession of that place. The said place was visible to public at large , therefore, recovery of knife itself has become further doubtful in the background of the fact that there was no public witness to the said recovery.
40 The incident is of dated 18.2.2012. The recovery of knife is shown to have been effected after about 10-11 days therefore, tempering with the place or weapon of offence, cannot be ruled out .
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41 Further, as per FSL report ExPW17/A9, no blood
could be detected on the aforesaid knife. Even scientific evidence does not supports the story of the prosecution. It is true that as per subsequent opinion Ex.PW6/C given by Dr. Sudhesh Kumar (PW6), the stab injuries mentioned in the Postmortem report ExPW6/A could be possible by said knife ExP-1 or such like other weapon , but is not sufficient to convict the accused for the offence like murder.
42 Only on the basis of this sole circumstance i.e recovery of a possible weapon of offence at the instance of the accused Sher Khan @ Sheru , he cannot be convicted for the offence of murder. In this regard , I may mention the authority of Deepak Chaddha vs State of Delhi, 2012 (1) JCC 540 wherein Hon'ble High Court of Delhi held " We do not propose to deal with the purity of the evidence relating to the two recoveries i.e the recovery of the shirt and the knife at the instance of the appellant, for the reason, in the decisions reported as Kallo Passi Vs State, 2009(2) vs Chhatrasing & Ors., AIR 1977 SC 1753; Surjit Singh vs State of Punjab, AIR 1994 SC 110; Deva Singh Vs State of Rajasthan , 1999 CriLJ 265 , & Prabhoo vs State of UP, AIR 1963 SC 1113 the Supreme Court held that in the absence of other incriminating evidence, the SC No.83/14 State vs Sher Khan @ Sheru (Page 23 of 25 ) FIR no. 85/2012 D.O.D 20.11.2014 P.S Narela u/s 302/34 IPC circumstances of seizure of blood stained clothes at the instance of the accused as also the recovery of a possible weapon of offence at the instance of the accused are wholly in sufficient to sustain the charge of murder against the accused".
43 Another circumstance against the accused Sher Khan @ Sheru , as brought by the prosecution is pointing out memo of the place from where dead body was recovered. During cross examination of Inspector Naresh Kumar (PW17) it has come on record that the place of incident was already in the knowledge of the police authorities, therefore, it would not help them much.
44 In the present case, I find that the prosecution has failed to prove the offence against the accused beyond shadow of doubt. Thus, I am left with no option but to acquit the accused. Accused Sher Khan @ Sheru therefore stands acquitted from the charge u/s 302 /34 IPC .
45 Accused Sher Khan @ Sheru be released immediately, if not wanted in any other case.
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46 In terms of section 437(A) CrPC, accused Sher
Khan @ Sheru is directed to furnish bail bond in the sum of Rs 10,000/- with one surety in the like amount.
47 File be consigned to record room.
Announced in the open (Rajesh Kumar Goel) Court today i.e 20.11.2014 ASJ-5, North Rohini Court SC No.83/14 State vs Sher Khan @ Sheru (Page 25 of 25 )