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IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, I.S.MEHTA, JJ.
Chhota Salman S/o Late Md. Jamshed Ali - Appellant
Versus
The State - Respondent
CRL.A. No. 287 of 2018
Decided On : 23-10-2018
Conviction - Eyewitness Testimony - Section 302/34 IPC, Section 307 IPC - [Eyewitness Testimony] - [Conviction] - [Section 302/34 IPC, Section 307 IPC] - The court discussed the reliability of the eyewitness testimony and found it lacking due to the witness's highly inebriated condition, lack of corroboration, contradictions in his statements, and doubts about the identification of the accused. The court also highlighted the failure to recover the weapon of offence and the lack of evidence connecting the accused to the crime, leading to the acquittal of the appellants.
Fact of the Case:
The case involved an appeal against the conviction of two appellants for the offence under Section 302/34 IPC and Section 307 IPC. The prosecution's case was based on the testimony of an injured eyewitness, Pankaj Gupta (PW7), who claimed to have witnessed the assault on the victims. The appellants challenged the reliability of PW7's testimony, citing his highly intoxicated state, lack of corroboration, contradictions in his statements, and doubts about the identification of the accused.
Finding of the Court:
The court found that the eyewitness testimony of PW7 was not entirely reliable due to his highly inebriated condition, lack of corroboration, contradictions in his statements, doubts about the identification of the accused, and failure to recover the weapon of offence. As a result, the court acquitted both appellants from the charges framed against them.
Issues: The key issues revolved around the reliability of the eyewitness testimony, the lack of corroboration, contradictions in the witness's statements, doubts about the identification of the accused, and the failure to recover the weapon of offence.
Ratio Decidendi: The court's decision was influenced by the lack of credibility in the eyewitness testimony, as evidenced by the witness's highly inebriated condition, lack of corroboration, contradictions in his statements, doubts about the identification of the accused, and failure to recover the weapon of offence. These factors led to the acquittal of the appellants.
Final Decision: The court set aside the judgment and order on sentence, acquitting both appellants and allowing the appeal. The appellants were ordered to be released forthwith, and any deposited fine amount was to be refunded to them.
I.S. Mehta, J.
1. The instant appeal assails the impugned judgment dated 22.01.2018 and order on sentence dated 30.01.2018 passed by learned Additional Sessions Judge, Rohini Courts, New Delhi in Session Case No.149/17, arising out of FIR No.829/16 registered at Police Station Prashant Vihar, Delhi convicting both the Appellants – who were accused Nos.1 and 2 for the offence under Section 302/34 IPC and sentencing the appellants to life imprisonment and a fine of Rs.5,000/- each. In default of payment of fine, they have been directed to undergo further simple imprisonment for 6 months. They were further sentenced to 7 years Rigorous Imprisonment under Section 307 IPC with fine of Rs. 5,000/- each, in default of payment of fine, to undergo further simple imprisonment for 6 months. There were 3 other accused in the case. Accused Nos. 3 and 4 Sunil Kumar @ Lala and Salman Khan respectively were acquitted. Accused No.5 Kapil was not tried as he was declared as proclaimed offender. A Juvenile in conflict with the law (JCL) Adil was also allegedly involved in the crime.
2. Brief facts stated are that on 21.11.2016 in the night hours at about 11:00-11:15 PM one Lakshit Gaur (PW3) heard some noise and he went out of his house. His two neighbours also came out of their house. He noticed a boy lying injured in front of a shop No. G-2/34, Sector 11, Rohini and made a call from his mobile no. 9650044092 to the PCR. ASI Jagbir (PW11) on receiving the said information reached to the spot alongwith driver of PCR van and met the injured Ashish, and took him to hospital. On the way to the hospital, injured informed them that 3-4 unknown persons gave beatings to him and stabbed him and thereafter they ran away from the spot. He also informed that another person is lying nearby that spot. S.I. Vijay Kumar (PW34) alongwith Ct. Sunny (PW23) reached the spot and found that the other injured person Pankaj Gupta (PW7) was already taken to BSA hospital. They found blood on chabutra, ground, mattress, quilt and concrete block and seized samples of the same vide seizure memo Ex.PW23/A. Ct. Sunny was kept to guard the crime spot. S.I. Vijay Kumar reached BSA hospital. He found the injured Ashish admitted vide MLC No. 15206 and he was unfit for statement. Another injured Pankaj Gupta (PW7) was also admitted in the same hospital vide MLC No. 15207. S.I. Vijay Kumar received pulandas containing clothes of the injured Ashish and blood sample alongwith seal of BSA hospital, which was seized vide seizure memo Ex.PW34/A. He made endorsement Ex.PW34/B; prepared rukka, and handed over same to Ct. Sunny for registration of FIR No. 829/16 Ex.PW9/B. On 22.11.2016 S.I. Vijay received information that the injured- Ashish succumbed to his injuries.
3. On 22/11/2016, investigation was handed over to Inspector Hans Raj Thakran (PW35). He prepared the death report Ex.PW35/B and got conducted Post Mortem of Ashish Ex.PW8/A, in BSA Hospital. Thereafter, Inspector Hans Raj alongwith S.I. Vijay Kumar reached the spot and found one CCTV camera installed at G-2/30 Sector 11, Rohini i.e. house of Faisal Raza. He collected the relevant CCTV footage of 21.11.2016 midnight in a pen drive and seized it vide seizure memo Ex.PW35/C. On 23.11.2016, he recorded the statement of injured eye witness Pankaj Gupta who was admitted in BSA Hospital. PW7- Pankaj Gupta handed over his clothes worn by him at the time of incident to PW35 and the same were seized vide seizure memo Ex.PW7/A.
4. On 25.11.2016, PW35 received secret information on 25.11.2016 on the basis which, JCL Adil was apprehended. His version was recorded and during his personal search one mobile phone bearing phone No. 9717825490 was got recovered. The IO received further secret information on 28.11.2016, on the basis of which, Chhota Salman (A-1) was apprehended and arrested vide Arrest Memo Ex.PW14/A. His personal search was conducted vide Personal Search Memo Ex.PW14/B. On 28.11.2016, accused Sunil Kumar @ Lala was ap
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