Delhi District Court
Sc No. 57995/16 State vs . Shamim Khan @ Salman Khan Etc Page No 1 Of ... on 14 May, 2018
IN THE COURT OF MS. SUKHVINDER KAUR, ADDITIONAL SESSIONS
JUDGE04 (NORTH), ROHINI COURTS, DELHI
1. Serial Number 57955/16
2. Name of the Police Station and Mangolpuri
the Crime No. of the offence Crime No. 104/12
3. Name 1. Shamim Khan @ Salman Khan
S/o Chiddu Khan
occupation: Pvt. Work
R/o: Y1763, Mangolpuri, Delhi
Age : 22 years
Date of apprehension:23.03.2012
Date of release on bail: in JC
2. Samar Khan
S/o Mohd. Miya
Occupation: Pvt work
R/o Y1763, Mangolpuri, Delhi
Age: 20 years
Date of apprehension: 25.03.2012
Date of release on bail: in JC
3. Zahida Begum
W/o: Jalaluddin
Occupation: House wife
R/o Y1758, Mangopuri, Delhi.
Age: 40 years
Date of apprehension: 16.04.2012
Date of release on bail:17.05.2012
4. Javed
S/o: Jalaluddin
Occupation: Pvt. Work
R/o Y1758, Mangolpuri, Delhi
and A81, Gopal Vihar Vijay Vihar
Delhi.
Age: 20 years
Date of apprehension: 23.03.2012
Date of release on bail: in JC
SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 1 of total pages 46 Date of occurrence: 19.03.2012 Date of complaint: 08.06.2012 Commitment: 06.07.2012 Commencement of trial: on 03.07.2013 Close of Trial: on 18.05.2016 Sentence or order: Conviction
4. Service of copy of judgment or 17.05.2018 finding on accused
5. Explanation of delay No Delay FIR No. : 104/12 Police Station : Mangolpuri Under Sections : 307/302/34 IPC Date on which judgment was reserved: 10.05.2018 Date on which Judgment pronounced: 14.05.2018 JUDGMENT
1. Succinctly the case of the prosecution is that on 19.03.12 at about 11.25 p.m telephonic call from phone 9871852744 was received at P.S Mangolpuri regarding injuries inflicted with a knife on the husband of caller. On the intimation DD No. 57A was registered and same was marked to SI Uma Dutt who went to the spot alongwith Ct. Vishwa Murti.
2. On reaching at the spot i.e. Y1768, Mangolpuri, they found blood stains at the corner of the gali. On interrogation they came to know that the injured had already been removed to Sanjay Gandhi Memorial Hospital by his family members. No eye witness met them at the spot. SI Uma Dutt left Ct. Vishwa Murti at the spot and reached at Sanjay Gandhi Memorial Hospital, SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 2 of total pages 46 where he found Mohd. Asif under treatment and his brother Mohd Shakir had already been removed to some other hospital by his family members. He collected the MLCs of both the injured and recorded statement of injured Mohd. Asif who implicated accused Shamim Khan @ Salman Khan, Javed, his mother Zahida Begum, JCL M and Samar Khan. Doctor produced three sealed pullandas to IO, out of which two were containing blood stained clothes of both injured and one was containing blood sample of injured Mohd. Asif, which were seized by SI Uma Dutt after preparing seizure memo.
3. Thereafter, he reached at the spot and made endorsement on the statement of Mohd. Asif and got registered the FIR by sending the Tehrir to the police station through Ct. Vishwa Murti. In the meanwhile intimation was received from Jaipur Golden Hospital regarding death of injured Mohd. Shakir, which was recorded in DD register vide DD No. 11B dated 20.03.12. After recording of DD No. 11 B, Inspector Gajender Kumar alongwith staff reached at the spot vide DD No. 4A dated 20.03.12 and further investigation was conducted by inspector Gajender Kumar. Offence u/s 302 IPC was added in the case. District crime team was called at the spot. SI Anil Kumar alongwith his team came at the spot and inspected the spot. The spot was also got photographed through Ct. Manoj of the crime team.
4. IO recorded statement of SI Anil Kumar and Ct. Manoj. He also inspected the spot and collected the blood stained earth and earth control from the place where the blood stains were found which were seized in two separate sealed boxes sealed with the seal of GK. Ct. Vishwa Murti returned to the spot after registration of FIR and handed over the copy of FIR to SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 3 of total pages 46 Inspector Gajender. IO examined Mohd. Zakir who had removed both the injured to the hospital and recorded his statement u/s 161 Cr.P.C.
5. Thereafter, he alognwith SI Uma Dutt reached Jaipur Golden Hospital where he collected the documents and removed the dead body at mortuary of Sanjay Gandhi Memorial Hospital. He also recorded statement of SI Uma Dutt and Ct. Vishwa Murti u/s 161 Cr.P.C. He returned to the spot and prepared the site plan of the spot at the instance of eye witness and complainant Mohd. Asif. He went to SGM hospital mortuary, prepared the inquest proceedings and got conducted the postmortem of the dead body of the deceased. After postmortem he was handed over exhibits detail by the autopsy surgeon which was seized by him after preparing memo and deposited the same in the Malkhana. He tried to trace the culprits but all of them had absconded.
6. On 23.03.12 on secret information he arrested the accused Shamim Khan @ Salman Khan and delinquent 'M' from DBlock, Bus Stand, Outer Ring Road. He recorded their disclosure statement and prepared pointing out memos at their instance. At the instance of Shamim Khan @ Salman Khan and the delinquent he seized a knife from North direction of Masjid wala Park, near the gate which was disclosed to be the same knife which was used for commission of offence. The blood stained knife was measured and sealed in a pullanda with the seal of GK. He also prepared the site plan of the place of recovery of knife and deposited the knife in the Malkhana.
SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 4 of total pages 46
7. On 24.03.2012, he recorded supplementary disclosure statement of accused Shamim Khan @ Salman and seized the wearing pant of Shamim Khan @ Salman and Tshirt of JCL M which they were wearing at the time of offence, which were also sealed pullandas and seized vide seizure memos. Both the accused were produced in the Court and remanded in JC.
8. On 25.03.12, on the basis of secret information, he arrested accused Samar Khan from in front of Pole Star School, Kanjhawala. Accused Samar Khan also pointed out place of occurrence and made his disclosure statement. He also got recovered his blood stained light blue coloured shirt from his residence bearing house No. Y1763, 4th floor, which he was wearing at the time of incident. IO recorded statement of witnesses and produced Samar Khan also in the Court who was remanded to JC.
9. On 06.04.2012, during investigation SI Mahesh, draftsman, Crime Branch came to police station, who inspected the site on pointing out of SI Uma Dutt and prepared the scaled site plan of the spot.
10. On 16.04.2012, IO got the information that coaccused Zahida Begum and Javed had come to their house i.e. house No. A81, Gopal Vihar, Vijay Vihar, Delhi. He immediately conducted the raid at the residence of Zahida Begum and Javed and arrested both of them. He recorded the disclosure statement of both of them who had also pointed out the place of occurrence. IO recorded the statement of witnesses and produced both the accused in the Court who were also remanded to JC.
SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 5 of total pages 46
11. During investigation he called the PCR phone from police control room and found that on 19.03.12 two calls were received at 100 number about the incident from different numbers. He collected the owner slip and CDR from the concerned service provider. Phone No. 8860033740 was registered in the name of Mohd. Jabir, s/o Rishaq Mohd and phone number 9871852742 was registered in the name of deceased Mohd. Sagir.
12. On 02.05.12 he recorded statement of the eye witness Smt. Sayra u/s 161 Cr.P.C. He collected the school record of all the accused to ascertain their age. All of them except JCL M were above the age of 18 years. Delinquent had no school record, therefore, with the permission of the Court he got conducted his ossification test. He collected the postmortem report and on 05.05.12 he collected the subsequent opinion of the weapon of offence from the autopsy surgeon, who opined that the injury mentioned in the postmortem report and MLC could be possible by the knife in question or knife of similar kind.
13. On 08.05.12. the exhibits were sent to FSL, Rohini, through Ct. Narender vide road certificate, which were deposited in the FSL. He recorded the statement of Ct. Narender and MHC(M) u/s 161 Cr.P.C. IO also collected MLC result of injured Mohd. Asif from SGM hospital.
14. After completing the investigation on the basis of statement of witnesses and other evidence collected during investigation, IO prepared the charge sheet pending the result of FSL. Final report in respect of delinquent was submitted in J.J.B. SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 6 of total pages 46
15. The charge sheet was filed in the Court of Ld. M.M on 08.06.12. After supplying copies u/s 207 Cr.P.C the case was committed to the Sessions Court u/s 209 Cr.P.C and assigned to Ld. Predecessor of this Court on 06.07.12.
16. After hearing the counsel for parties charge u/s 302/307/34 IPC was framed against all the four accused namely Shamim Khan @ Salman Khan, Samar Khan, Zahida Begum and Javed vide order dated 03.07.13, to which they pleaded not guilty and claimed trial.
17. In order to establish its case prosecution has examined 32 witnesses, detail of which is as under: PW Name of PW Relevancy Documents exhibited No. PW1 Mohd. Asif Complainant Ex. PW1/A and Ex. P1 PW2 Smt. Shahana Wife of deceased Ex. PW2/DA PW3 Mohd. Javed Ali Neighbour of Nil deceased PW4 Mohd. Nawab Witness of Ex. PW4/A and Ex. PW4/B deadbody identification PW5 Mohd. Sadik @ Witness of Ex. PW5/A Raju deadbody identification PW6 SI Anil Kumar Incharge Crime Ex. PW6/A Team PW7 Ct. Manoj Kumar Photographer of Ex. PW7/A1 to Ex. PW7/A4 crime team and Ex. PW7/B1 to Ex.
PW7/B4
PW8 WCt Manju Witness of Ex. PW8/A to Ex. PW8/F
investigation
PW9 Ms. Saira Neighbour of Ex. PW9/A
SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 7 of total pages 46
deceased and
accused
persons/eye
witness
PW10 Dr. Mahipal Singh CMO Ex. PW 10/A and Ex. PW10/B
PW11 Ct. Kamal Witness of control Ex. PW11/A
room
PW12 Ct. Arvind Kumar do Ex. PW12/A
PW13 HC Mahvir Prasad MHC(M) Ex. PW 13/A(OSR) to Ex.
PW13/C and Ex. PW13/DA1 to
Ex. PW13/DA4
PW14 Ct. Narender Witness of Ex.PW14/A
investigation
PW15 Ct. Sumit Computer operator Ex. PW15/A
PW16 HC Haripal Duty Officer Ex. PW16/A(OSR)
PW17 HC Babu Lal Duty Officer Ex. PW17/A(OSR), Ex.
PW17/B(OSR), Ex. PW17/C
and Ex. PW17/D(OSR)
PW18 HC Lakshman DD Writer Ex. PW18/A(OSR) and Ex.
Singh PW18/B(OSR)
PW19 Dr. Manoj Kumar Medical witness Ex. PW19/A and Ex. PW19/B
PW20 Mohd. Jakir Brother of Nil
deceased
PW21 Inspector Mahesh Draftsman Ex. PW21/A
Kumar
PW22 HC Satish Kumar Incharge Ex. PW22/A
CIPA/computer
operator
PW23 WSI Somna Duty Officer Ex. PW23/A
PW24 Surender Kumar Nodal Officer Ex. PW24/A(OSR) to Ex.
PW24/E
PW25 SI Uma Dutt Link witness Ex. PW25/A to Ex. PW25/E
and Ex. P25/1 and Ex. P25/2
PW26 HC Vishwa Link witness Ex. Nil
Moorthy
PW27 D.K Chhabra Record Incharge of Ex. PW27/A(OSR)
Jaipur Golden
hospital
PW28 Anuj Bhatia Nodal Officer Ex. PW28/A to Ex. PW28/E
SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 8 of total pages 46
Vodafone mobile and Ex. PW28/D
PW29 SI Sachin Maan Witness of Ex. PW29/A to Ex. PW29/F and
investigation Ex. P1
PW30 Ct. Hoshiyar Witness of Ex. PW30/A to Ex. PW30/G,
Singh investigation Ex. P30/1 to Ex. P30/3(colly)
PW31 Ms. Imrana Sr. Scientific Officer Ex. PW31/A to Ex. PW 31/B
PW32 Inspector Investigating Officer Ex. PW 32/A to Ex. PW32/E
Gajender Kumar and Ex. PW32/1 and Ex.
PW32/2
18. Pws Sh. S.R Pandla and Dr. Munish Wadhawan were dropped on the statement of Ld Additional P.P record on 01.10.15 and 04.11.15 respectively.
STAR WITNESSES
19. PW1 Mohd. Asif being the complainant, PW9 being the eye witness and PW20 being the witness who reached at the spot immediately after the incident are the material/star witnesses.
20. PW1 has materially supported the prosecution case and testified that he was running mobile phone repairing shop near his house. On 03.03.12, his marriage function was going on in his house and on the same day some function was going on at the house of Shamim Khan @ Salman Khan living three houses away from his house. Shamim Khan @ Salman Khan had played D.J in a loud voice to which his family members had objected. On this, Shamim Khan @ Salman Khan, Samar, JCL M and Javed started quarreling with them, but with the intervention of residents of locality a compromise had taken place. From that day onwards Shamim Khan @ Salman Khan was nursing grudge against him & his family and made SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 9 of total pages 46 comments on them when ever they crossed his house. Being the members of business community, they ignored and kept mum.
21. On 19.03.12, at about 11. p.m, after closing his shop he was coming towards his house. As soon as he reached near the corner of their gali, he found Shamim Khan @ Salman Khan, Samar, JCL M, Zahida and Javed standing at the corner of gali. Thereafter, Salman uttered the words "
Sale hamari khushi ko dekh ke jalta. Aaj tera aisa haal karenge ki tu khushi manane layak nahi rahega." Then, Zahida uttered the words "Aaj iska kam tamam kar do" and also asked the others to catch hold of him.
22. On this the accused Samar, Javed and JCL M caught hold of him firmly. In the meantime Shamim Khan @ Salman Khan assaulted him with some sharp edge weapon on his head. He shouted loudly and on hearing his noise, his brother Shakir came there to save him. Then, Zahida again said "Aaj ishka bhi kaam tamam kar do." On this accused Javed, JCL M and Samar caught hold of his brother, then accused Shamim Khan @ Salman Khan assaulted his brother Mohd. Shakir on chest and abdomen with knife. His brother Shakir fell down on the ground in injured condition. Thereafter, his family members came there and removed him and his brother Shakir to Sanjay Gandhi Memorial hospital. He remained under treatment at SGM hospital for a day and was discharged on the next day. Later on he came to know that his brother Shakir was taken to another hospital from SGM hospital. All the accused persons assaulted him and his brother out of jealousy and there was no previous enmity from their side. Police recorded his statement Ex. PW1/A.
23. On the next day, S.H.O came to their house and on his pointing SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 10 of total pages 46 out the site plan was prepared. His brother Shakir had expired in the hospital and he came to know about the said fact after he was discharged from the hospital. The witness also identified the knife, which was used in commission of offence, which is Ex. P1.
24. PW9 though cited as eye witness by prosecution has not supported the prosecution case. She testified that on 19.03.12 at about 11 to 11.30 p.m on hearing noise from gali, she came out of the house and saw Shakir and Mohd. Asif lying in injured condition on the road. She was not aware as to how Shakir and Asif sustained injuries and had not seen as to who had inflicted injuries on them. Accused Shamim Khan @ Salman Khan, Javed, Samar and Zahida were residing in her neighbourhood, but she had not seen them at the spot on the said date.
25. She further submitted that she was not interrogated by the police and refused having given any statement to the IO. She was declared hostile by Ld Additional P.P and cross examined by Ld Additional P.P at length. However, nothing incriminatory against accused could be elicited from her cross examination.
26. PW20 is the brother of the deceased, who materially supported the prosecution case. He testified that on 19.03.12 at about 11 p.m on hearing the noises from the corner of the gali his brother Shakir went outside the house. The said noises continued and when the pitch of noises increased, he came out of his house and saw his brother Shakir lying in pool of blood infront of the house situated in the corner of the gali. He also saw his other brother namely Asif lying in pool of blood near Shakir and accused persons namely Shamim Khan @ Salman Khan, Samar Khan, Javed and Zahida alongwith SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 11 of total pages 46 their accomplice JCL M running away from the said gali who were using abusive language against both his said brothers. All accused except JCL M were resident of his gali and JCL M was residing in another gali in their locality and all of them were known to him.
27. He further testified that accused persons had developed enimical terms with them since he has not invited them in the marriage of his younger brother Asif. They used to tease them and create nuisance while passing through the gali in front of their house, prior to the date of occurrence. He immediately took his brothers in a rickshaw to the hospital at Mangolpuri. Since the condition of his brother Shakir was serious, he took him in Jaipur Golden hospital, where he was declared dead by doctor.
FORMAL WITNESSES
28. PW2, wife of deceased Shakir testified that she made call to the police at 100 number on seeing her husband lying in the street from the mobile phone of her husband.
29. PW3 also testified that on hearing the noise from the gali "Chaku maar diya", he made a call to the police at 100 number from his mobile phone number 8860053740. Thereafter he came down in the street and saw his neighbour Shakir lying in injured condition and blood oozing out from his body.
30. PW4 proved his statement Ex. PW4/A, regarding identification of dead body and handing over of dead body to him after postmortem. He also identified his signatures on the carbon copy of receipt Ex. PW4/B. PW5 is also witnessed of identification of dead body, who proved his statement as SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 12 of total pages 46 Ex.PW5/A and his signature on the carbon copy of receipt Ex. PW4/B at point B.
31. PW11 is the witness posted at PCR, Control Room, who deposed regarding receipt of call regarding quarrel at 1770, YBlock, Mangolpuri, near Chuni Lal and hotel from Mr. Jaiveer Ali from his mobile phone bearing No. 8860053740 in the Control room of PCR, which was recorded by him in PCR form and transmitted to Wireless Operator for necessary action. He proved the PCR form as Ex. PW11/A.
32. PW12 is also the witness posted in PCR, who recorded the call received by him regarding knife blow given to the husband of the caller. He proved the attested copy of PCR form as Ex. PW12/A and deposed about transmission of the same to the wireless operator for necessary action.
33. PW14 is the link witness who testified that he collected 11 sealed pullandas sealed with the seal of GK and one sample seal sealed with the seal of SGM hospital from MHC(M) vide road certificate No. 17/21/12 and deposited the same in FSL, Rohini Delhi on 08.05.12 on the instructions of IO Inspector Gagender Kumar. He collected the acknowledgement from FSL Rohini and handed over the same to MHC(M). The exhibits/pullandas were not tempered in any manner so far as it remained in his possession.
34. PW15 is the computer operator, who typed the FIR No. 104/12. He testified that nothing adverse happened during the period he typed the FIR so as to cause any error regarding the information feeded in the computer. He also proved the certificate u/s 65B issued by him as Ex. PW15/A and identified his signature at point A on the certificate. He testified that after typing the FIR, he handed over the copy of FIR to Duty Officer HC SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 13 of total pages 46 Babu Lal.
35. PW16 is the duty officer, who testified that on 21.03.12 S.I Sachin Maan lodged DD No. 23B in Roznamcha. He produced the original Roznamcha and proved the true copy of DD as PW16/A.
36. PW17 is Duty Officer, who testified that on 19.03.12 at about 11.25 p.m he received information through wireless operator, Control Room and accordingly lodged DD No. 57 A. He passed on information regarding lodging of DD No. 57 A to SI Uma Dutt through telephone. He produced the original Roznamcha and proved the true copy of DD No. 57A as Ex. PW17/A. He further testified that at about 12.59 a.m Ct. Vishwa Murti brought rukka sent by SI Uma Dutt on the basis of which he got registered FIR through the computer installed in the PS. He produced the original FIR register and proved the computerized copy of FIR as Ex. PW17/B. He also proved the endorsement made by him on the rukka at point X to X1 as Ex. PW17/C and deposed that after registration of FIR he handed over copy of FIR and original Rukka to Ct. Vishwa Murti. He further testified that on 20.03.2012 at about 1.17 a.m., Inspector Gajender Singh lodged DD No. 4A regarding his departure from P.S Mangolpuri alongwith other official for Jaipur Golden Hospital. He also proved the attested copy of the said DD entry as Ex.PW17/D and produced the original DD register.
37. PW18 is also DD writer, who testified that on 20.03.12 at about 7.15 p.m Inspector Gajender Singh lodge DD No. 19A regarding conducting of investigation by him on the said day. He produced original DD register and proved the attested copy of DD entry as Ex. PW18/A. He also proved the DD No. 28A lodged by Inspector Gajinder Singh on the same day, the attested SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 14 of total pages 46 copy of which is Ex. PW18/B.
38. PW22 who was working as Incharge CIPA on 20.03.12 testified that on 20.03.12 Ct. Sumit Kumar was on duty as Computer Operator. On the said day at about 1 a.m Duty Officer Ct. Babu Lal produced original rukka before Ct. Sumit on the basis of which he typed the contents of FIR on the computer system installed in P.S under his supervision. He further testified that the computer installed was under his custody during the relevant period and there was no tampering in the said computer system at the time of typing the FIR by Ct. Sumit Kumar. He also proved the certificate u/s 65B issued by him in this regard as Ex. PW22/A.
39. PW23 is Duty Officer, who testified that on 16.04.12 at about 3.30 p.m Inspector Gajinder Kumar had received secret information regarding the offenders namely Zahida and her son Javed to be present at their house No. A81 Gopal Vihar, Vijay Vihar. Accordingly, Inspector Gajinder Kumar alongwith Ct. Narender, lady Ct. Manju alongwith driver and operator left P.S in official jipsy in respect of which he recorded DD No. 23A. He produced the original DD register and proved the DD entry as Ex. PW23/A.
40. PW4 is the Nodal Officer, Bharti Airtel Ltd. who produced the Call Details Record in respect of Mobile phone no. 9871852742 in the name of Mohd. Shakir for the period w.e.f. 15.03.2012 to 31.03.2012. He produced the original Customer Application Form and proved the attested copy of the same as Ex.PW24/A, attested copy of Election ICard of the subscriber as Ex.PW24/B, CDRs for the period 15.03.2012 to 31.03.2012 as Ex.PW24/C, Certificate U/s 65B of Indian Evidence Act issued by him as Ex.PW24/D and Cell ID Location Chart of the said mobile connection for the said period as SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 15 of total pages 46 Ex.PW24/E.
41. PW28 is the Nodal Officer, Vodafone Mobile Services who produced the CDR details in respect of mobile phone no. 8860053740 in the name of Jabir Ali for 19.03.2012. He produced the original Customer Application Form, the copy of which as compared with the original CAF, is Ex.PW28/A, the attested copy of Election Icard of the subscriber as Ex.PW28/B, the CDR of the said mobile phone for the period 19.03.2012 as Ex.PW28/C, Certificate U/s 65B of Indian Evidence Act issued by him as Ex.PW28/D and the covering letter vide which the Call Details Record was provided to the IO as Ex.PW28/E. MEDICAL AND SCIENTIFIC EVIDENCE
42. PW10 Dr. Mahipal Singh who conducted the medical examination of Shakir on 19.03.2012 described in detail the injuries sustained by him. He testified that Shakir was admitted in the hospital with the alleged history of stab injury as told by the patient himself. He proved the MLC of Shakir prepared by him as Ex.PW10/A and testified that patient was given primary treatment and during treatment, a blood stained white colour sando baniyan was sealed with the seal of SGM Hospital and handed over to IO SI Uma Dutt vide his endorsement appearing at pointA to A1 duly signed by him at point B on the MLC Ex.PW10/A. He further testified that the said patient was examined by Dr. Suryottam, S.R. Surgery, who had left the services of SGM Hospital. He identified the noting in the handwriting of Dr. Suryottam from point C to C1 in MLC Ex.PW10/A and his signature at pointB. He further testified that patient was advised admission in Surgery Department for further treatment, however, he was discharged on the personal request made by his SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 16 of total pages 46 brother Akil, which was recorded from point E to E1 on MLC Ex.PW10/A. The patient was declared not fit for statement by him vide endorsement made at point F to F1 and signed by him at pointX on MLC Ex.PW10/A.
43. He further testified that another patient namely Asif S/o Akhtar was also brought in the hospital by his brother Zakir with the alleged history of physical assault by a sharp weapon as told by the patient himself. He testified that the said patient was also examined under his supervision vide MLC Ex.PW10/B. He described in detail the injuries found on the said patient. He also identified the signature of Dr. Abhishek, J.R. Casualty at pointX on the MLC Ex.PW10/B. He testified that the nature of injuries was opined by him as simple with sharp edged weapon. During treatment, a blood stained blue coloured Tshirt was sealed with the seal of SGM and handed over to IO SI Uma Dutt vide endorsement at pointA to A1 on MLC Ex.PW10/B. He further identified the noting in the handwriting of Dr. Suryottam at pointB to B1 and his signature at point X3 on MLC Ex.PW10/B. The said patient was declared fit for statement and the nature of injuries were opined simple by Dr. Suryottam vide his endorsement and signatures at pointA on the MLC Ex.PW10/B.
44. PW19 Dr. Manoj Kumar conducted the postmortem examination on the body of deceased Mohd. Shakir S/o Mohd. Akhtar. He proved the postmortem report as Ex.PW19/A. He testified that the body was brought to him with the alleged history of stab injuries on 19.03.2012 at about 11 pm and taken to SGMH and thereafter, to Jaipur Golden Hospital, where he was declared brought dead on 20.03.2012 at about 12.30 am. He further testified that he gave his opinion that cause of death was hemorrhagic shock due to injury to abdomen organs. All the injuries were antemortem in nature and SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 17 of total pages 46 caused by single edged weapon and injury No. 2 as mentioned in his report was sufficient to cause death in ordinarily course of nature. He further deposed about the handing over of pullandas containing the clothes of the deceased and blood samples of the deceased in gauge piece sealed with the seal of SGMH to the IO Inspector Gajender Kumar. He further deposed that on an application received by the IO on 05.05.12 regarding the subsequent opinion alongwith the sealed pullanda sealed with the seal of GK containing the knife, after going through the injuries mentioned in the postmortem report, he gave the subsequent opinion Ex. PW19/B to the effect that injuries mentioned in the postmortem report Ex. PW19/A were possible by the weapon examined by him or a similar knife.
45. PW27 proved the casualty card in respect of accused Mohd Shakir prepared by Dr. Sushant Goel as Ex. PW 27/A and identified the signatures of Dr. Sushant Goel at point A on Ex. PW27/A.
46. PW31, the Senior Scientific Officer FSL has proved the examination report of exhibits from biological side as Ex.PW 31/A and examination report from serological side as Ex. PW31/B. WITNESSES OF CRIME TEAM
47. PW6, the then Incharge of crime team testified that on the intervening night of 19/20.03.12 at about 2 a.m he received an information to reach at house No. 1772, YBlock, Mangolpuri. He alongwith his crime team reached at the spot an inspected the spot in presence of SI Uma Dutt and Inspector Gajender Singh. Victim had already been removed to the hospital but there were blood spots in the gali. Photographs of the spot were taken by Ct. Manoj on the directions of IO from different angles. He proved the crime SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 18 of total pages 46 team report prepared by him as Ex. PW6/A and testified that same was handed over to the IO then and there.
48. PW7 corroborated the testimony of PW6 regarding inspection of spot and taking photographs of the spot by him. He produced the negatives of the photographs which are Ex. PW7/A1 to Ex. PW7/A4 and positive photographs as Ex. PW7/B1 to Ex. PW7/B4.
WITNESSES OF INVESTIGATION
49. PW25 testified that on the intervening night of 19/20.03.12 while he was on emergency duty and attending another call, at about 11.25 p.m duty officer of P.S Mangolpuri made a phone call to him and informed him about the contents of DD No. 57A. Accordingly, he alongwith Ct. Vishwamurti reached at the place of information I.e at the corner Y1768, Mangolpuri where he noticed blood stains lying in the gali infront of house No. 1768, Y Block Mangolpuri. At the spot it was revealed that injured persons were removed to hospital by their family members. Accordingly, he left Ct. Vishwamurti at the spot and went to Sanjay Gandhi hospital where he collected the MLCs of injured Shakir and Asif. Shakir was declared unfit for statement and had already been removed to some other hospital, whereas Asif was fit for statement. Therefore, he recorded statement of Asif. The concerned duty Constable of Sanjay Gandhi Hospital I.e Ct. Vishal handed over to him three pullandas sealed with the seal of SGMH, Mangolpuri alongwith sample seal of similar specimen. Two pullandas were containing the clothes of the injured persons and one pullanda was containing blood sample of injured Asif. The pullandas were sealed and seized vide seizure memo Ex. PW25/A. SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 19 of total pages 46
50. Thereafter, he returned to the spot and on the basis of statement of Asif and contents of MLCs he prepared rukka Ex. PW25/B which he gave to Ct. Vishwamurti who went to police station for registration of FIR. At about 1.15 a.m when he was present at the spot he received DD No. 11A regarding death of Mohd Shakir in the hospital. Ct. Vishwamurti returned to the spot and in the meantime SHO Inspector Gajender Kumar alongwith staff also reached there and Ct. Vishwamurti gave copy of FIR No. 104/12 and original rukka to Inspector Gajender Kumar who took over the further investigation of the present case. Inspector Gajender Kumar prepared the rough site plan at the instance of injured Asif and called the crime team at the spot for inspection of the place of the occurrence. Crime team Incharge inspected the spot and got the site photographed. Inspector Gajender Kumar lifted the blood stained earth from infront of house No. Y1773, Mangolpuri after breaking the same with the help of hammer and chheni.
51. IO kept the blood stained earth in a plastic container which was sealed with seal of GK and seized vide seizure memo Ex. PW25/C. IO also lifted earth control which was also kept in a plastic container which was sealed and seized vide seizure memo Ex. PW25/D. He identified his signatures at both the memos at point A. Thereafter, he alongwith IO and Ct. Vishwamurti went to Jaipur Golden hospital where IO collected death summary of deceased Shakir and body of Shakir was shifted to mortuary SGM hospital by him on the instructions of IO. IO got conducted the postmortem of the deceased Shakir and after postmortem the concerned doctor handed over to the IO one sealed plastic box, pullanda containing blood sample of deceased Shakir on gauge piece and sample seal of SGMH mortuary to the IO which was seized by the IO vide memo Ex. PW25/E. After SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 20 of total pages 46 postmortem IO handed over the dead body of Shakir to his relatives and recorded his statement.
52. PW25 identified the case property I.e one sealed plastic container got out from parcel No. 6 containing earth material having light brown stains described as blood stained earth as Ex. PW25/1 and the plastic container got out from parcel No. 7 sealed with the seal of FSL containing earth material described as earth control which is Ex. PW25/2.
53. PW26 corroborated the testimony of PW25 regarding his visit to the spot alongwith PW25 on receipt of DD No. 57A on the intervening night of 19/20.03.12. He deposed on the lines of testimony of PW25. He further deposed that at about 9.30 a.m he alongwith SI Uma Dutt had reached at Jaipur Golden Hospital from where he had got shifted body of deceased to the mortuary of Sanjay Gandhi Hospital. IO got conducted postmortem on the body of deceased and after postmortem, the body of deceased was handed over to relative of deceased on their identification.
54. PW29 SI Sachin Maan testified that he joined the investigation with the IO Inspector Rajinder Kumar on 23.03.12. On that day while they were present at Pather Market Mangolpur Kalan in the government vehicle at about 5.30 p.m one secret informer gave information to the IO that accused Shamim Khan @ Salman Khan and JCL M would come at the bus stand in front of outer ring road, F Block, if raided they could be apprehended. They alongwith informer went to place of information and at about 6.15 p.m on the pointing out of secret informer accused Shamim Khan @ Salman Khan and JCL M were apprehended.
55. In the meanwhile Ct. Hoshiyar Singh also reached at the spot. After SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 21 of total pages 46 interrogation IO arrested accused Shamim Khan vide arrest memo Ex. PW29/A and conducted his personal search vide memo Ex. PW29/B. He also arrested JCL M. IO also recorded disclosure statement of Shamim Khan @ Salman Khan which is Ex. PW29/C. Disclosure statement of JCL was also recorded. Both the accused pointed out the place of occurrence vide memo Ex. PW29/D. Pursuant to disclosure statement of both the accused, they led the raiding party towards Northern side gate and pointed out towards grass of Western side gate and accused Shamim Khan @ Salman Khan picked out one chhura(knife) from inside the grass and disclosed that said chhura was used in commission of offence. The knife was blood stained. IO prepared the sketch of the knife Ex. PW29/E and after measurement kept the same in a cloth pullanda and sealed with seal of GK which was seized vide seizure memo Ex. PW29/F. IO also prepared the site plan and got both the accused medically examined. IO deposited the case property in the Malkhana and recorded his statement. The witness also identified the case property i.e knife taken out of parcel No. 8 as Ex. P1. He also proved arrest memo of JCL as Ex. PW29/F, his personal search memo as Ex. PW29/G and his disclosure statement as Ex. PW29/H.
56. PW30 deposed on the lines of testimony of PW29 regarding his participation in the investigation on 23.03.12 at the time of arrest of accused persons and recovery of knife at the instance of accused Shamim Khan @ Salman Khan. He also identified his signature on the various memos Ex. PW29/A to Ex. PW29/F and Ex. PW25/F to Ex. PW25/H at point B. He further admitted that on the next day i.e 24.03.12 he again joined the investigation in the present case with IO Inspector Gajender Kumar. He further testified that during interrogation accused Shamim Khan @ Salman SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 22 of total pages 46 Khan made supplementary disclosure statement Ex. PW30/A in his presence regarding the fact that the Jeans pant which he was wearing was worn by him at the time of commission of offence.
57. He testified about the seizure of jeans pant by the IO vide seizure memo Ex. PW30/B. He also testified about the supplementary disclosure statement made by accused JCL M to the effect that the Tshirt which he was wearing was also worn by him at the time of commission of offence. He further deposed regarding seizure of Tshirt of JCL M by the IO. He further testified that on 25.03.12 he again joined the investigation in the present case with IO Inspector Gajender Kumar. On the said date at about 5.45 p.m while they were present at YBlock, Masjidwala Park, near Kanjhawala road in search of coaccused persons, one secret informer met the IO and informed him that accused Samar Khan would come on foot after some time from the Kanjhawala side road towards Pole Star school and would go towards YBlock to meet some known person. If raided he could be apprehended. Thereafter, at about 5.50 p.m they reached at the place of information and took their respective position. At about 6 p.m on pointing out of secret informer accused Samar Khan was apprehended while he was coming on foot. IO interrogated and arrested him vide memo Ex. PW30/C and conducted his personal search vide memo Ex. PW 30/D. He also recorded the disclosure statement of accused Samar Khan which is Ex. PW30/E and prepared pointing out memo Ex. PW30/F at the instance of accused Samar Khan. Thereafter, the accused Samar Khan led them to his residence i.e Y1763, Mangolpuri and from inside a room he got recovered one shirt of light blue colour and one blue colour jeans pant.
58. On inspection the shirt was found having dry blood stains. IO SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 23 of total pages 46 seized the shirt and jeans pant in the cloth pullanda and after sealing the same seized the same vide memo Ex. PW30/D. The witness also identified the case property I.e the knife Ex. P1 and one jeans pant having blood stains taken out from the sealed pullanda bearing parcel No. 9 as Ex. PW30/1. He also identified Tshirt having brown stains taken out from the sealed pullanda bearing parcel No. 10 as Ex. PW30/2. He further identified one shirt having 23 stains and one jeans pant taken out from parcel No. 11 as Ex. PW30/3(colly).
59. PW8 testified that she joined the investigation of the present case on 16.04.12 and went with SHO Inspector Gajender Singh, operator and driver in a government gypsy at house No. A81, Gopal Nagar, Vijay Vihar, Delhi. Police team raided the said house and on the first floor of the house, one lady and her son were found whose name was revealed as Zahida Begum and Javed. Both were interrogated and arrested vide arrest memo Ex. PW8/A and Ex. PW8/B. Their personal search was conducted vide memo PW8/C and Ex. PW8/D. Both of them were interrogated and their disclosure statement was recorded by IO vide memo PW8/E and Ex. PW8/F. She identified her signatures on the memos Ex. PW8/A to Ex. PW8/F at point A and deposed that accused Zahida Begum was got medically examined at Sanjay Gandhi Memorial hospital and thereafter she was brought to police station and was given under the custody of lady constable on duty on the relevant night.
60. PW14 deposed on the lines of PW8 and testified about the arrest of accused Zahida Begum & Javed from house No. A81, Gopal Nagar, Vijay Vihar, Delhi. He also identified his signatures on the memo Ex. PW8/A to Ex. PW8/F at point B. He further deposed that both the accused had led the SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 24 of total pages 46 police party to the place of occurrence i.e. at the corner of Gali, YBlock, in front of H No. 17721773, Mangolpuri and pointed out the place of commission of offence and IO prepared the pointing out memo Ex. PW14/A. He identified his signature at point A on Ex. PW14/A.
61. PW32 is the Investigating Officer, who deposed in detail about the investigation conducted by him on lines of testimony of PW23, PW25, PW29, PW30, PW6, PW7, PW8 and PW14. He further added that after registration of FIR at about 1.15 am, while SI Uma Dutt was present at the spot he received DD No. 11 D regarding death of Mohd. Shakir in hospital, which is Ex. PW32/1. He deposed about his visit to the spot. He further deposed that he prepared the rough site plan Ex. PW32/A on the instructions of injured Mohd. Asif. He testified that he also recorded supplementary statement of said injured. During morning hours of 20.03.12 he alongwith SI Uma Dutt went to the mortuary of Sanjay Gandhi Memorial hospital, where he met the relatives of the deceased as well as Ct. Vishwa Murti. He moved application Ex. PW32/B to the Incharge department of Forensic Medicine, Sanjay Gandhi Memorial hospital for conducting autopsy on the body of Mohd. Shakir. He prepared brief facts Ex. PW32/C and filled From No. 25.35(1)(B) Ex. PW32/D.
62. He further testified that during investigation of the present case on 23.03.12 vide DD No. 67B Ex. PW32/2, he alongwith SI Sachin Maan was present at Pathar Market, Mangol Pur Kalan. He further deposed about the receipt of secret information in respect of Shamim Khan @ Salman Khan and JCL M. He further deposed that he prepared the site plan Ex. PW32/E of the place of recovery at the instance of accused Shamim Khan @ Salman Khan. He also proved DD No. 21/A vide which they had left police station on SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 25 of total pages 46 25.03.12 in search of accused as Ex. PW32/F. He further deposed that during investigation he collected the postmortem report of deceased.
63. On 05.05.12 he collected one pullanda sealed with the seal of Gk containing Chhuri(Knife) from the MHC(M) HC Mahavir and alongwith postmortem report he took the same to the concerned autopsy surgeon. The concerned autopsy surgeon after examining the said Chhuri gave subsequent opinion. He collected the subsequent opinion and the pullanda containing Chhuri sealed with seal of Autopsy Surgeon and deposited the said pullanda in Malkhana and kept the subsequent opinion on the file. During investigation on 08.05.12 upon his instructions Ct. Narender collected 11 sealed pullandas sealed with the seal of GK and one sample seal sealed with the seal of SGM hospital from MHC(M) and deposited the same in FSL Rohini. He collected the scaled site plan and photographs.
64. During the investigation the bone age examination of JCL M was got conducted and ossification report was filed before Ld M.M who declared JCL M to be JCL. After completing the investigation he prepared charge sheet in respect of the major accused persons and separate final report in respect of JCL and filed the same. He also collected the FSL result and filed the same in the Court. IO identified his signatures on the various documents prepared by him.
65. He identified the case property i.e knife Ex. P1. Earth material having light brown stains described as blood stained earth as Ex. PW25/1, earth material described as earth control as Ex. PW25/B, one jeans pant belonging to accused Shamim Khan @ Salman Khan as Ex. PW30/1, one T shirt having brown stains belonging to JCL M as Ex. PW30/2, one Tshirt and SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 26 of total pages 46 one jeans pant belonging to accused Samar Khan as Ex.
PW30/3(collectively).
66. PW Sh. S.R Pangla cited at serial No. 30 of list of witnesses and PW Dr. Munish Wadhawan were dropped from the list of witnesses vide separate statement of Ld Additional P.P dated 01.10.15 and 04.11.15 respectively.
67. After completing prosecution evidence separate statement u/s 313 Cr.P.C of accused persons was recorded wherein the accused persons either denied the evidence against them or expressed their ignorance about the evidence. All of them pleaded that they were innocent and were falsely implicated in the present case. All of them took the plea that accused Shamim Khan was running a mobile shop in the same locality and due to business rivalry and since they were known to coaccused Shamim Khan @ Salman Khan they were falsely implicated by the victims so that business of Shamim Khan @ Salman Khan does not flourish. They further took the plea that it was Arif, the brother of victim who had assaulted the victim due to the fact that he was demanding his share in the shop of Mohd Asif and when Mohd Asif refused to give share to Arif he assaulted the victim with knife and ran away.
68. Accused persons examined Sh. Neeraj Kumar as DW1 in their defence. DW1 testified that on 17.03.12 accused Zahida had asked him to accompany her for offering prayers at Dargh of Rurki and accordingly he purchased railway tickets for himself, Zahida, Javed, Shamim Khan @ Salman Khan, Shama and Salma. They all boarded train from old Delhi Railway station for Rurki on 17.03.12 and returned on 19.03.12 and de SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 27 of total pages 46 boarded the train at railway station at 11 p.m. They reached at the house of Zahida at Gopal vihar at about 12 to 12.15 a.m(night). They remained at the house of Zahida for about 15 minutes and thereafter left. While he was present at the house of Zahida 23 police officials came and inquired from them and they stated the same facts to the police. He also produced the railway tickets which are Ex. DW1/A collectively.
69. I have heard the arguments addressed by Ld. Additional PP for the State and Ld. Defence counsel for the accused. Ld. Defence counsel has also filed written arguments.
70. Ld. Additional PP has mainly argued that injured Asif i.e. PW1, who is also the eye witness, has supported the prosecution case and assigned specific role to all the accused persons. PW20, who is also the brother of the deceased and had reached at the spot immediately after the incident, has also supported the prosecution case and categorically deposed that he had seen the accused persons running away from the spot and while running away, they were also using the abusive language against his deceased brother as well as his other brother i.e. PW1. He further testified that the prosecution has also been able to recover the weapon of offence and there is no reason to discard the testimony of PW1, who had also sustained injuries.
71. On the other hand, Ld. defence counsel has pointed out certain improvements and contradictions in the testimony of witnesses. He urged that PW1 stated that the motive of the incident was that on 03.03.2012, his marriage was going on and at the same time, some function was also going on at the house of accused Shamim Khan @ Salman Khan and an altercation had taken place between them on the issue of playing DJ in a loud SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 28 of total pages 46 voice, whereas his brother i.e. PW20 deposed that the accused persons had developed inimical terms with him as they had not invited the accused persons on the marriage of PW1. Further, PW1 deposed that accused Salman Khan was not running any shop of mobile phones, whereas PW20 has deposed that accused Shamim Khan @ Salman Khan was also running a mobile shop during those days. He emphasized that the said fact shows that PW1 deliberately tried to conceal the factum of mobile shop of accused Shamim Khan @ Salman Khan in the same vicinity and specially when the accused are raising the issue that they have been falsely implicated in this case on account of his business rivalry.
72. He further argued that admittedly accused Zahida Begum and Javed were arrested on 16.04.2012 from their house at Vijay Vihar, which favours the defence of accused persons. He further argued that no person would stay at home after committing such a heinous crime and specially when both the parties are known to each other. He also pointed out that PW9 Ms. Saira also deposed that accused Zahida was not present at the spot since she was not in Delhi as about two days back she had seen accused Zahida leaving her house for going to Majaar at Kaliar. Even PW20 deposed that accused Zahida and her son were having their house at Vijay Vihar at the time of incident, which shows that they were not available at the spot. He further argued that no public/independent witness was joined during entire proceedings despite availability of public witnesses, like at the time of recovery of weapon, clothes and at the time of pointing out of spot by the accused persons. In support of his arguments, he relied on judgment delivered in Devi Prashad Sharma Vs. State MANU/DE/0645.
73. He further argued that the recovery of knife was allegedly effected SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 29 of total pages 46 at the instance of accused persons namely Shamim Khan @ Salman Khan and JCL from a park, which is in open place which is accessible to all. Therefore the alleged recovery of weapon of offence is also seriously doubtful. He urged that there is in ordinate delay in submitting the case property in FSL. As per the prosecution story accused Shamim Khan @ Salman Khan and JCL were arrested on 23.03.12 and recovery of knife was also effected on the same day. The blood stained clothes of the accused Salman Khan and JCL were seized on 24.03.12. Coaccused Samar was arrested on 25.03.12 and on the same day his clothes were recovered. Thus all the articles were available with the investigating officer since 25.03.12 but surprisingly the said articles were sent to CFSL on 08.05.12 and there is no explanation about the inordinate delay on the part of investigating agency. He relied on judgement delivered in Santa Singh Vs. State of Punjab MANU/SC/0167/1976.
74. He contented that as per the prosecution case the accused persons namely Shamim Khan @ Salman Khan and JCL M were arrested on 23.03.12 on secret information by the raiding party. After all the formalities and their personal search they were put in lockup in police station. On the next date I.e on 24.03.12, investigating officers made further interrogation and accused persons themselves disclosed that they were wearing the clothes which they were wearing at the time of incident. He urged that recovery of blood stained clothes also creates dent on the story of prosecution as it is extremely unlikely that 3 to 4 days after the incident the accused persons would still be roaming around wearing the blood stained clothes which were not even noticed by the police officials at the time of their arrest. He relied on the judgment passed by Hon'ble Apex Court in Ali Khan Vs. State of M.P SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 30 of total pages 46 MANU/SC/0786/2003.
75. He further argued that the biological division of FSL gave its report only on the blood group found on the blood stained clothes. No request was made by the investigating officers for DNA profile of the blood found on the clothes of the accused persons. He argued that in the absence of DNA it can not be assumed that the blood which was found on the clothes of the accused persons was the same as that of the deceased. He placed reliance on the judgment of Hon'ble Supreme Court delivered in Prakash Vs. State of Karnataka MANU/SC/0313/2014.
76. He further argued that PW1 in his cross examination had admitted that there was no prior enmity between the accused persons and family of witness and deceased and no complaint was lodged on 03.03.12 when verbal altercation had allegedly taken place between accused Shamim Khan @ Salman Khan and family of the witness. Thus there could not have been any reason to kill the deceased.
77. Prosecution also could not prove any motive to kill the deceased since even if the prosecution story is believed to be correct the applicants/accused persons inflicted injury on PW1 and after hearing the noise of PW1 the deceased came at the spot and was allegedly stabbed by accused Shamim Khan @ Salman Khan all of a sudden. Thus, no case is made out against the accused as there was no motive or mens rea on the part of accused persons to commit murder of deceased. He placed reliance on the judgment in Surender Pal Jain Vs. Delhi Administration 1999(supplementary) 3SCC 681; Balraj Singh Vs. State of Punjab, 1976 CriLJ 1471(DB) (Punjab); Tika Vs. State of UP AIR 1974 SC 155 and Bnikari SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 31 of total pages 46 Vs. State of U.P AIR 1966 SC 1 in support of his arguments on mens rea and the burden on prosecution to prove the case beyond reasonable doubts .
78. Ld defence counsel during his verbal arguments also argued that register No. 19 produced by MHC(M) reveals that ante dated entires had been made in the register since as per prosecution case the case property was seized on 24.03.2012 whereas the entires had been recorded on 20.03.12. He also pointed out that as per the prosecution case rukka was sent on 12.50 a.m on 20.03.12 and the crime team had visited the spot from 2.15 p.m to 3 p.m as is revealed from the report Ex. PW6/A. In the report Ex. PW6/A the suggestions have been made to examine the injured and to establish the identity of culprits, which reveals that the identity of the culprits was not established till the time the crime team had visited the spot which leads to the inference that FIR is ante timed.
79. He further argued that even otherwise the allegation of giving knife blow is only on accused Shamim Khan @ Salman Khan. There is no evidence to show the intention of other accused. Even qua accused Shamim Khan @ Salman Khan the intention to murder Shakir is not established since he was only an intervener. He also argued that PW1 has admitted that they had strained relations with his brother Arif who was not residing with them. In the facts and circumstances there is every possibility that that deceased was killed by his own brother, who had property dispute with the other family members.
80. Before dealing the rival contentions the relevant provisions of law are reproduced herein under for the sake of convenience..
" 302. Punishment for Murder: SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 32 of total pages 46 Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine".
In order to appreciate the evidence available on record in the light of offence charged against the accused, it would also be appropriate to refer to the provision contained in Section 300 IPC which reads as under: Section 300 IPC Murder: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly: If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly: If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly: If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
The essential ingredients of the offence under sec. 302 are as follows:
1. Death of a human being was caused;
2. Such death was caused by or in consequence of the act of the accused;
3. Such act was done
(a) with the intention of causing death, or SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 33 of total pages 46
(b) that the accused knew it to be likely to cause death, or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
"Sections 307Attempt to murderWhoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishable as is hereinbefore mentioned.
Attempts by life convicts When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.
81. PW1 has mainly reiterated the contents of his statement Ex. PW1/A in his testimony. Though he admitted that he has not stated to the police in his statement Ex. PW1/A that on the issue of plying the DJ at loud volume accused Samar, JCL and Javed had also started quarrel with them and he further admitted that he had not stated to the police in his statement that Shamim Khan @ Salman Khan had assaulted him with a sharp edged weapon on his head and that he had only stated that accused Shamim Khan @ Salman Khan had attacked with some knife like thing, however, merely because of the said improvements it can not be said that his testimony is not reliable. It is the settled law that the witnesses show slight discrepancies as to number of blows and whether the victim was at that time standing or lying posture. In S. T Sindhey Vs. Maharashtra AIR 1974 SC 791 Hon'ble Supreme Court observed that such SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 34 of total pages 46 discrepancies in matters of details may occur even in the evidence of truthful witnesses. In Shyam sunder Vs. State of Chhattisgarh AIR 2002 SC 3292 Hon'ble Supreme Court held that when an incident is narrated by a same person to different persons on different occasions, some difference in the mode of narrating the incident is bound to arise. However, such differences do not militate against the trustworthiness of the narration unless the variations can be held to be so abnormal or unnatural as would not occur if the witness could have really witnessed what he was narrating.
82. In the testimony of PW1 though there is improvement regarding presence of coaccused Samar, JCL and Javed in the earlier incident dated 03.03.12, however, there is no improvement in respect of the incident dated 19.03.12 which resulted in the murder of deceased Shakir. There are only slight discrepancies which do not go to the root of the prosecution case.
83. PW1 has categorically deposed that when he was coming from his shop and had reached near the corner of gali Shamim Khan @ Salman Khan, Samar, JCL M, Zahida and Javed were standing near the corner of the gali. Shamim Khan @ Salman Khan uttered " sale hamari khushi dekh kar jalta hai, aaj tera aisa haal karenge ki tu khushi manane layak nahi rahega".
Thereafter Zahida also exhorted and all the three accused Samar, Javed and JCL M caught hold of him and Shamim Khan @ Salman Khan had assaulted him with some sharp edged weapon on his head. When he shouted loudly his brother Shakir came there. Though ld defence counsel has also argued that PW1 has concealed the fact that accused Shamim Khan @ Salman Khan was also running his mobile shop in his testimony which has been admitted by his brother PW20, the testimony of PW1 reveals that in his SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 35 of total pages 46 cross examination PW1 has stated that he was not aware if accused Shamim Khan @ Salman Khan was running shop of mobile in 100 meter area of his shop.
84. He clarified that he did not get any time as he remains busy in his shop. He categorically denied the suggestion that he used to feel jealous of accused Shamim Khan @ Salman Khan as he had more sale. He also denied the suggestion that he had stated in his statement before JJB that accused Shamim Khan @ Salman Khan was running mobile shop. Ld. defence counsel did not confront PW1 with his statement recorded in JJB to show that he was intentionally concealing the said fact or he had any business rivalry with the accused. Even PW20 testified that he came to know about the shop of Shamim Khan @ Salman Khan from some body. Even otherwise besides the bald suggestions the defence counsel has failed to show any substance on record to suggest that there was any business rivalry between parties.
85. The contention of ld defence counsel that there is likelihood that PW1 and deceased had quarrel with their brother Mohd. Arif as admittedly he had stained with his family members can not be ruled out as PW1 in his cross examination had admitted that prior to 19.03.12 his brother Mohd. Arif had broken some household articles and had quarrel with family members and abused them, does not appeal to the reasons since PW1 in his cross examination has deposed that he did not know the whereabouts of his brother. Merely because of the admission that he/Mohd. Arif had visited their house prior to 19.03.12 and had a quarrel with family members does not lead to an inference that he was responsible for the incident in question. Ld defence counsel has not even clarified from PW1 as to when prior to SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 36 of total pages 46 19.03.12 he/Mohd. Arif had raised quarrel with his family members.
86. In Jony @ Vikram Vs. State (NCT of Delhi) 2013 (iv) JCC 2282 Hon'ble High Court held that testimony of injured witness is accorded a special status in law. This is as a consequence of fact that the injury of the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailants go unpunished merely to falsely implicate a third party for commission of offence. Thus, the deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contractions and discrepancies therein.
87. There is no doubt about the presence of PW1 at the spot who also sustained incised wounds over his body as is revealed from testimony of PW1 and his MLC Ex. PW10/B. His testimony with regard to injuries sustained by him is corroborated by the medical evidence, PW20 and even by the hostile witness PW9. Thus I do not find any reason to disbelieve the testimony of PW1.
88. PW20 though is not an eye witness, however, his testimony is relevant and important since he had reached to the spot immediately after the incident. PW20 categorically deposed that when the pitch of the noises increased he came out of his house and saw his brother Shakir lying in pool of blood in front of the house situated in the corner of their gali. He had also seen his other brother Asif lying in the pool of blood near Shakir. He had also seen the accused persons Shamim Khan @ Salman Khan, Samar Khan, Javed and Zahida Begum alongwith their accomplish JCL M running away from the gali and while they were running away they were also using abusive SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 37 of total pages 46 language against both his said brothers. Nothing material could be elicited from the cross examination of PW20 to discard his testimony. The conduct of the accused persons immediately after the incident is relevant and from their conduct an adverse inference is drawn against them.
89. The contention with regard to the motive of offence is not sustainable since both the witnesses have deposed about the motive as per their subjective opinion. As per the understanding of PW1, the accused had committed the offence since there was a quarrel over the playing of DJ by the accused Shamim Khan @ Salman Khan at a loud volume when the marriage function was going on in the house of PWs, whereas as per the understanding of PW20 the offence was committed by the accused persons since the accused persons were not invited by them on the marriage of PW
1. From Ex. PW29/C I,e the disclosure statement of accused Shamim Khan @ Salman Khan, it is revealed that as per the prosecution case the motive of offence was that accused Shamim Khan @ Salman Khan was not invited in the marriage as well as playing of DJ in the house of Shamim Khan @ Salman Khan. Since the motive of offence has been duly established, the contention of ld defence counsel that there is no motive available on record for commission of offence is not sustainable. The contention of ld defence counsel that PW1 during his examination in chief has admitted that there was no prior enmity between the accused persons and the family of witnesses is not sustainable in view of testimony of PW1 and PW20 regarding previous quarrel between them.
90. So far as the contention of ld defence counsel that accused Zahida Begum was not residing near the place of offence is concerned, same is not sustainable since PW1 in his cross examination categorically denied the SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 38 of total pages 46 suggestion that on the day of incident Zahida was not residing in their street. Even PW9, on whose testimony ld defence counsel has placed reliance also deposed that Shamim Khan @ Salman Khan, Samar Khan, Javed and Zahida Begum were residing in her neighbourhood. PW20 also though admitted the suggestion that Zahida and her son were having their house at Vijay Vihar, however, he explained that they were residing in a house in their gali at that time. He had categorically denied the suggestion that they were not residing or that they were residing at their house at Vijay Vihar. Though as per the prosecution accused Zahida and Javed were arrested on 16.04.12 from their residence at H.No. A 81, Gopal Vihar, Vijay Vihar, Delhi, however from the charge sheet it is revealed that the address of both the said accused was Y1758, Mangolpuri Delhi and their present address was A81, Gopal Vihar, Vijay Vihar, Delhi, which itself shows that the accused had subsequently shifted at Vijay Vihar address. In the said facts and circumstances the contention of ld counsel for accused persons that no person would stay at home after committing such a heinous crime especially when both the parties are known to each other is not sustainable. There is sufficient evidence on record to establish that both the said accused were residing in the same gali at the time of incident and they were absconding till 16.04.12 I.e for more than three weeks and then had shifted at the new address.
91. The contention of ld defence counsel regarding nonjoinder of public witnesses like at the time of recovery of weapon, clothes etc is also not of much importance. I rely on the judgment Ambika Prasad & anr vs. State 2002 (2) CRIMES 63 (SC), wherein Hon'ble Supreme Court held that it is known fact that independent persons are reluctant to be a witness or to assist SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 39 of total pages 46 the investigation.
92. Even otherwise in the present case investigating agency had joined PW9 as a public witness of the crime, however, she has turned hostile, which is not under the control of prosecution.
93. I agree with the contention of ld defence counsel that the recovery of blood stained clothes of accused Shamim Khan @ Salman Khan who was arrested on 23.03.12 is doubtful since the blood stained clothes were found worn by him even after 3 to 4 days of incident and there also appears that MHC(M) had made ante dated entry in respect of recovery of clothes in the register No. 19 and also since DNA profile of the blood on the clothes of the accused was not conducted it could not be proved that the blood on the clothes of the accused matched with the blood of deceased, however, it is found that there is a general tendency of investigating agency to fill the lacunae which does not in any way is a reason to disbelieve the testimony of the victim. Regarding recovery of knife, I do not agree with the contention of ld defence counsel since as per the testimony of witnesses of investigation the knife was got out by Shamim Khan @ Salman Khan from the grass of the North side gate near the wall of Western side of Masjidwala park which shows that though the place of recovery is a public place however the same was not visible to public as it was hidden under the grass. Even otherwise, as per the settled law even the non recovery of weapon of offence is no ground for rejecting the testimony of eyewitness. I rely on the judgment titled as State of Karnataka Vs. Vithal Laxman Chatawadi and others, 2007 CrI.L.J(NOC) 129(Kar.), 2007(1) AIR Kar R 65, wherein it was held that non recovery of weapon of offence viz knife during investigation will not be a ground to reject testimony of eyewitness.
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94. Further, though ld defence counsel has been able to point out that from the suggestion given by the crime team in report Ex. PW 6/A, it can be inferred that the culprits were not known at the time the report was prepared, however, from the report Ex. PW 6/A, it is revealed that suggestion has also been given by the crime team to examine the injured as soon as possible. Whereas from the rukka Ex. PW1/A it is revealed that the same was prepared on the statement of injured and sent to police station for registration of FIR on 20.03.12 at 12.50 a.m. From Ex. PW6/A it is revealed that the crime team had examined the spot the spot from 2.15 to 3 a.m. In these facts, it appears that crime team report has been prepared in a mechanical manner. Merely because the suggestions have been made by the crime team does not establish that FIR was ante timed as argued by ld defence counsel. Neither PW6 nor the IO have been cross examined on the anomaly in the timings. Even otherwise, at the most the same can be treated as a lapse on the part of investigating agency. I rely upon the judgment passed in Karnel Singh Vs. State of M.P(1995) 5 SCC 518, wherein Hon'ble Apex Court has held that "
in case of defective investigation the Court has to be circumspect in evaluating the evidence. But it could not be right in acquitting an accused solely on account of defect; to do so would tantamount to playing in the hands of the Investigating Officer if the investigation is designedly defective".
Further, I also rely upon in Paras Yadav Vs. State of Bihar (1999) (2) SCC, 126, where it was held that " if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts, SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 41 of total pages 46 otherwise the designed mischief would be perpetuated and justice would be denied to complainant party".
95. I have perused the various judgement relied by ld defence counsel in support of his arguments. The judgments do not fit in the matrix of the present case since they pertain to the cases based on circumstantial evidence, whereas there is direct evidence in the present case and the presence of PW1 at the spot can not be questioned since he also had sustained injuries in the incident. As already discussed there is no reason to disbelieve the testimony of PW1.
ROLE ASSIGNED TO ACCUSED PERSONS
96. As per testimony of PW1 the role assigned to accused Zahida is that she had exhorted the accused persons, the role assigned to accused Shamim Khan @ Salman Khan is that of exhortation and giving knife blow to the injured as well as the deceased and the role assigned to Javed and Samar alongwith JCL M is that they had caught hold of the PW1 and deceased.
97. Though PW1 has testified that accused Zahida has exhorted to kill PW1 and deceased, however, there does not appear to be a reason for her to exhort since PW1 has not deposed that Zahida had any enmity with them. Even as per his own testimony when PW1 entered in the gali Salman had exhorted first in the words "aaj tera aisa haal karenge ki tu khushi manane layak nahi rahega." I rely on the judgment of Hon'ble Supreme Court in Jainul Haque Vs. State of Bihar, (1974) 3 SCC 543, wherein it was held "evidence of exhortation is, in very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 42 of total pages 46 addition to actual assailant while attributing that person an exhortation to the assailant to assault the victim. Unless the evidence in that respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant."
98. In view of law laid down by Hon'ble supreme court and considering that Zahida had no previous enmity with PW1 and his family or any motive, it appears that she has been roped in only because she was present alongwith coaccused at the place of occurrence. The role played by the other accused persons showed the common intention on their part.
99. The contention of ld. Defence counsel that no case is made out against accused persons since there was no mensrea or intention on the part of accused persons to commit the murder of deceased since deceased was only intervener and hence provisions u/s. 300 IPC are not attracted, is not sustainable. I do not agree with the contention of ld defence counsel that the case is covered under the exception IV of Section 300 IPC.
100. In order to cover the case u/s. 304 IPC, the act must fall within one of the exceptions of section 300 IPC. The case of the accused persons is not covered under any of the exceptions and not even under exception IV of Section 300 IPC since it was not a case where the accused persons had assaulted the deceased in a sudden fight in the heat of passion. There is no evidence on record to show that there was any provocation either by deceased or injured. In fact, accused persons had premeditated mind since one of the accused namely Shamim Khan @ Salman Khan was also carrying knife. It is not a case where accused persons had a grudge only against SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 43 of total pages 46 PW1. There is evidence to prove that accused Shamim Khan @ Salman Khan was nursing grudge against injured i.e. PW1 and his family members over the issue of playing DJ and for not inviting him and his family in the wedding of PW1.
101. From the postmortem report Ex.PW19/A and testimony of PW19, it is revealed that the deceased Shakir was found having two incised wounds i.e. one wedge shape incised wound obliquely placed 7 x 1.8 cm x muscle deep, with clean cut margins on the lateral aspect of left chest, 5 cm below the shoulder point and 10 cm from the left nipple and incised penetrating wound wedge shaped obliquely placed with clean margins 3.2 x 1.5 cm on front of the left abdomen, 6 cm below umbilicus and .5 cm from midline, injury track running upwards and towards right side clearly cutting the underlying skin, s/c tissues muscles, blood vessels and intestine with extensive blood extravasation with total depth of the wound 14 cm. As per the opinion of the doctor, the cause of death was hemorrhagic shock due to injury to abdominal organ and injury no. 2 was sufficient to cause death in the ordinary course of nature. All the injuries were antemortem in nature and caused by single edged sharp weapon. Thus, from the postmortem report, it is revealed that deceased was not only stabbed once but there were repeated injuries which is sufficient to gather the intention of accused persons. Further considering that injury no. 2 was sufficient to cause death during the ordinary course of nature, the knowledge can also be attributed to accused persons. Thus, I am of the considered opinion that the case is not covered under the exceptions of Section 300 IPC but the prosecution has been able to establish the intention as well as knowledge on the part of accused persons and thus the case is covered under section 302 IPC.
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102. I do not agree with the contention of ld. Defence counsel that since the knife blow is attributed to accused Shamim Khan @ Salman Khan, coaccused cannot be said to have intention to kill the deceased. There is sufficient evidence on record that accused Samar, Javed along with the JCL M had caught hold of the deceased while Shamim Khan @ Salman Khan had given the knife blow. Their act of holding the deceased is sufficient to gather the common intention of all of them.
103. In view of above discussion, I am of the considered opinion that charge u/s. 302 read with section 34 IPC is proved against accused Shamim Khan @ Salman Khan, Samar Khan and Javed qua the deceased Mohd. Shakir beyond reasonable doubts.
103A. All the accused persons have also been charged u/s. 307/34 IPC for having given knife blows to complainant Mohd. Asif on his chest. From the MLC of injured Mohd. Asif which is Ex.PW10/B, it is established that he had sustained incised wound over chest 8 cm x 1 cm x depth to be assured by surgery and another incised wound over right side of chest 3 cm x .5 cm x 2.5 cm. Doctor opined the nature of injury as simple. Though the injury was opined by the doctor as simple in nature, the intention can be gathered from the weapon used in the commission of offence, the part of body selected for inflicting the injuries, repeated injuries and size of injuries. From Ex.PW10/B, it is established that there was not a single injury but repeated injuries described as incised wounds on the chest of complainant which is vital organ. In view of the testimony of PW1, MLC Ex.PW10/B, nature of weapon used by accused persons and the role played by accused Shamim Khan @ Salman Khan, Samar and Javed, I am of the opinion that the prosecution has been successfully able to establish the charges u/s. 307 read with section 34 IPC SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 45 of total pages 46 as well against the accused Shamim Khan @ Salman Khan, Samar and Javed beyond reasonable doubt.
104. So far as the testimony of DW1 is concerned, the same does not inspire confidence since the railway tickets Ex. DW1/A produced by DW1 do not bear the name of passengers who had travelled in the train and admittedly DW1 is known to the accused persons since 4 to 5 years prior to the incident. So far as accused Zahida Begum is concerned in view of the discussion already made, she is given benefit of doubt. Accordingly, accused Shamim Khan @ Salman Khan, Samar Khan and Javed are convicted of the charge u/s. 302/307/34 IPC and accused Zahida Begum is acquitted of charge u/s. 302/307/34 IPC.
Announced in the open Court
On 14th , May 2018 (Sukhvinder Kaur)
Addl. Sessions Judge: 04 (North)
Rohini Courts: Delhi:
It is certified that this order contains forty six pages and each page is signed by me.
(Sukhvinder Kaur) Addl. Sessions Judge: 04 (North) Rohini Courts: Delhi SC No. 57995/16 State Vs. Shamim Khan @ Salman Khan etc page No 46 of total pages 46