Delhi District Court
State vs Intzar Khan, S/O Late Sh. Bhure Khan, on 12 March, 2014
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE : NORTH EAST
KARKARDOOMA COURTS : DELHI
SC No. 90/2012
FIR No. 473/2000
Police Station Gokal Puri
U/Section 302/201/120B/174A IPC
Received in this Court on 15.09.2012.
Reserved for orders on 12.03.2014.
Judgment announced on 12.03.2014.
State V/s Intzar Khan, S/o Late Sh. Bhure Khan,
R/o C580, Village Gharoli, Mayur Vihar,
Phase - III, Delhi.
:J U D G M E N T:
1.As per prosecution case on 18.11.2000 on receipt of DD no.29A, SI Rohtash alongwith Ct. Rajender reached at ganda nallah, Jagdamba Colony, Johripur, Delhi, where dead body of a young male person was found lying there. A large crowd was also found gathered there. Head of the dead body was in the north side and legs were towards the south side. Dead body was having lining shirt, gray colour pant, lining underwear and black colour socks on it. Sharp edge injuries were also found on the stomach and chest portion of the dead body. Injuries were also found on the neck of the body and the neck was found tightly closed with a yellow cloth. They tried to get identify the dead body from the persons gathered there, but the dead body could not be identified. From the personal search (State Vs. Intezar Khan) (SC No.90/2012) Page No.1 of pages 15 of dead body, one comb, a bundle of bidi of 102 number as well as a cash of Rs.20/ was recovered from the pant. From the pocket of underwear, cash amount of Rs.29.25 paise were recovered. All these articles were taken into possession by SI Rohtash vide a separate seizure memo. Thereafter, SHO and other Senior Officers also reached at the spot. Rukka was prepared and a case U/s 302/201 IPC was got registered. Further investigation was conducted by Addl. SHO Insp. Harpal. Crime Team and Dog Squad was also called on the spot. Insp. Harpal inspected the spot, got the spot photographed and collected the exhibits from the spot. On 24.11.2000 postmortem was got conducted on the dead body. Since dead body could not be identified, so untraced report was filed in this case on 21.12.2001. Thereafter, on 21.09.2002 a telephone was received from HC Amar Chand of Special Staff, East Delhi that accused Irshad S/o Sh. Bhure Khan has made a disclosure statement regarding the commission of offence. Case was reopened and Inspector Harpal Singh collected the papers from HC Amar Chand. On 24.09.2002, accused Irshad was formally arrested, who made a detailed disclosure statement wherein he disclosed the names of his other coaccused persons. Thereafter, PC remand of accused Irshad was taken. At the instance of accused Irshad, accused Sitara was arrested. On 26.09.2002 accused persons namely Rahis, Shamim @ Guddu, Sharif and Mohd. Islam were arrested and they too made disclosure statements regarding the commission of offence. Accused persons namely Nanwa and Intezar could not be arrested. After completion of investigation, challan was filed against the arrested accused persons before the concerned court of Ld. MM. Since the offence committed by accused persons was exclusively triable (State Vs. Intezar Khan) (SC No.90/2012) Page No.2 of pages 15 by the court of sessions, Ld. MM committed the case to the sessions. During the course of trial, accused Irshad absconded and proceedings U/s 82/83 Cr.P.C, were initiated against him. Finally on 11.08.2008, accused Irshad was declared as Proclaimed Offender.
2. It is pertinent to mention here that my Ld. Predecessor vide judgment dated 28.08.2010 acquitted four accused persons out of eight accused persons against whom the FIR was registered. In addition to those four acquitted persons i.e. Rahish Ahmed, Mohd. Islam, Mohd. Shamim and Sharif @ Ismail, three accused persons namely Nanwa, Intezar and Irshad were shown as Proclaimed Offenders and one accused namely Sitara was shown as to have expired at that time. Again on 30.01.2012, accused Irshad was rearrested in this case and a Kalandra U/s 41.1(c) Cr.P.C was filed against him and vide order dated 07.05.2012 said accused Irshad was also acquitted by my Ld. Predecessor.
Subsequently, one more accused namely Intezar (who was declared proclaimed offender), accused present in court, was arrested in this case on 18.07.2012 and then by way of separate supplementary charge sheet, he was sent up for trial in the court on 11.09.2012. Since the case in hand was exclusively triable by the court of sessions, so on 15.09.2012, this case was received in this court for trial.
3. After hearing the arguments and on perusal of the material placed on record, a prima facie case U/s 120B/302/201/174A IPC was framed against the accused Intezar, to which he pleaded not guilty and claimed trial.
4. In order to prove the guilt of accused Intezar, prosecution could produce and examined only thirteen witnesses (i.e. PW1 HC Rambir Singh, PW2 HC Jeevan Singh, PW3 Ct.
(State Vs. Intezar Khan) (SC No.90/2012) Page No.3 of pages 15 Sandeep, PW4 ASI Surender Pal Singh, PW5 Pankaj Madan, PW6 Insp. Jai Pal Singh, PW6A SI Ajeet Malik, PW7 HC Padam Singh, PW8 SI Amul Tyagi, PW9 HC Rajender, PW10 Insp. Mukesh Kumar Jain, PW11 Imran Ali and PW12 Insp. Harpal Singh) in its support and vide order dated 11.03.2014, prosecution evidence was closed on account of non production of witnesses despite of giving numerous opportunities and then the case was fixed for recording of statement of accused u/sec. 313 Cr.P.C, during which he controverted all the allegations as alleged against him and submitted that he is innocent and was falsely implicated in this case. He did not desire to lead defence evidence, therefore, the case was fixed for final arguments.
5. PW1 HC Rambir Singh and PW3 Ct. Sandeep are the witnesses, who confirmed that after the arrest of the accused Intezar his personal search was conducted vide memo Ex.PW1/B. He also testified that after getting the accused Intezar medically examined, he was produced before the Court concerned by way of Kalandara U/s 41.1 (c) Cr.P.C Ex.PW1/C. PW2 HC Jeevan Singh is the witness, who proved on record the copy of DD No.31B dated 18.07.2012 as Ex.PW2/A. PW4 ASI Surender Pal Singh is the witness who accompanied to Insp. Jai Pal Singh (to whom the DD No.31B was assigned) to Karkardooma Court, where accused Intezar was produced by HC Rambir Singh and accordingly Insp. Jai Pal Singh formally arrested and interrogated the accused Intezar vide arrest memo Ex.PW4/A and his personal search was also conducted vide personal search memo Ex.PW4/B. Accused was interrogated and during that course he made disclosure statement Ex.PW4/C. He also stated that thereafter, accused was produced before the court concerned and his one (State Vs. Intezar Khan) (SC No.90/2012) Page No.4 of pages 15 day PC remand was obtained by Insp. Jaipal Singh and during that course accused Intezar led the police party at Jagdamba Colony, Johri Pur, near the Kikar Tree and pointed out the place, vide pointing out memo Ex.PW4/D, while saying that he alongwith his other coassociates had thrown the dead body of his Fufa namely Kallu.
PW5 Sh. Pankaj Madan, while resiling from his earlier statement given to police, stated that he knows nothing about this case. He also stated that neither he knew anything about TATA Sumo no.UP13C2789 of chocolate colour nor he gave said vehicle to Mohd. Islam on rent of Rs.1,700/ to go to Delhi. He categorically stated that he does not know accused (present in the Court) nor he has seen him earlier.
This witness was duly cross examined by Ld. Addl. PP for the State but he did not change his stand and stated that police neither inquired from him about the facts of this case nor recorded his statement on 26.09.2002. He categorically denied that he is not deposing the true facts before the court to save the accused Mohd. Intezar, who hails from their area or that he has been won over by the accused.
PW6 Insp. Jai Pal Singh is the witness, who proved on record the factum of arrest of accused Intezar (who was declared PO in this case), conducting of his personal search and recording of disclosure statement of accused Intezar vide arrest memo, personal search memo and disclosure statement Ex.PW4/A, Ex.PW4/B and Ex.PW4/C respectively. He stated that accused Intezar led them to near the tree of Keekar, Jagdamba Colony, Johri Pur, Delhi and pointed out, vide pointing out memo Ex.PW4/D, that after committing murder of of his Fufa namely Kallu, he alongwith his coassociates had thrown the dead body of Kallu there.
(State Vs. Intezar Khan) (SC No.90/2012) Page No.5 of pages 15 During cross examination by Ld. Counsel for accused Intezar, he stated that no public witness had joined for this proceeding. He denied that accused was not taken for pointing out or that this proceeding was done at the PS itself.
PW6A SI Ajeet Malik is the witness, who obtained NBWs against the accused Intezar Khan and Nanua and got executed the process issued U/s 82 & 83 Cr.P.C against them and submitted his reports in the court qua the said accused persons Ex.PW6/C & Ex.PW6/D respectively. Thereafter, both the accused persons were declared PO on 31.03.2003.
PW7 HC Padam Singh is the photographer, who took five photographs of the dead body at the instance of IO Insp. Harpal Singh. He proved on record the positive photographs as Ex.PW2/A1 to A5 and its negatives as Ex.PW7/B1 to B5.
PW8 SI Amul Tyagi stated that in the intervening night of 25/26.09.02 he had joined the investigation with IO SI Sanjeev Kumar along with HC Tara Chand, Ct. Pushpender, Ct. Azaz, Ct. Sehan Singh and accordingly they left the PS along with accused Irshad (who was on police remand) at about 11.00 p.m in a private vehicle i.e qualis and reached at PS Baniya Ther of Distt. Muradabad. They made their arrival at PS Baniya Ther and thereafter, one Ct. from Home Guard accompanied them to the house of Nanua (since expired) but he did not find present there. Thereafter, they raided the house of another accused Sharif (since acquitted) at the instance of accused Irshad, who was found present at his house and he was interrogated by SI Sanjeev Kumar. During course of interrogation accused Sharif (since acquitted) confessed his involvement in the present case. Thereafter, accused Sharif was arrested vide arrest memo Ex.PW 8/A and his personal search was also conducted vide memo Ex.PW8/B and his (State Vs. Intezar Khan) (SC No.90/2012) Page No.6 of pages 15 disclosure statement Ex.PW8/C was also recorded during the course of interrogation. He also added that when they left PS Gokal Puri, father of deceased namely Kallan also accompanied them as he was called at PS Gokal Puri. Thereafter, accused Sharif led them to Kasba Chandosi at the house of Mohd. Islam (since acquitted), who met them there and then he was interrogated and arrested vide arrest memo Ex.PW8/D and his personal search memo was also conducted vide memo Ex.PW8/E. His disclosure statement was also recorded during the course of interrogation vide memo Ex.PW8/F. Thereafter, accused Mohd. Islam led the police party to the house Rahis Ahmed in the area of PS Bilari Distt. Muradabad, who was found present at his house. He was apprehended and interrogated and during that course, he confessed his involvement in the present case. Thereafter, he was arrested vide memo Ex.PW8/G. His personal search was conducted vide memo Ex.PW8/H and his disclosure statement Ex.PW 8/J was also recorded by the IO. Thereafter, accused Rahis Ahmed led the police party to the house of another accused namely Mohd. Shamim @ Guddu @ Maama at new Basti Chandosi, Muradabad. Accused Mohd. Shamim met them and he was apprehended at the instance of Rahis Ahmed and interrogated and during that course he confessed his involvement in the present case. Thereafter, he was arrested vide memo Ex.PW8/K. His personal search was conducted vide memo Ex.PW8/L and his disclosure statement Ex.PW8/M was also recorded by the IO. Thereafter, all the above said accused persons led the police party to the house of accused Intzaar at kasba Islam Nagar but accused Intzar was not found present at his house. IO inquired about the whereabouts of the accused Intzaar from the neighbourhood but no clue could be (State Vs. Intezar Khan) (SC No.90/2012) Page No.7 of pages 15 found. Thereafter, all the accused persons were brought to Delhi and they all led the police party to the spot and pointed out the place of occurrence. Further on 21.11.02, he took the exhibits to FSL Malviya Nagar vide RC No. 148/21 and deposited the same there and after depositing the above said exhibits he handed over the acknowledgment receipt to MHC(M).
PW9 HC Rajender stated that on 18.11.2000 at about 6.55 a.m DD No.29A Ex.PW 5/A was recorded at PS Gokul Puri and it was assigned to SI Rohtash and after receiving the above said DD, he accompanied SI Rohtash to Jagdamba Colony and on reaching there they found that near Ganda Naala Johri pur, one dead body of a male was lying. The dead body was wearing linedar shirt, full sleeves baniyan of white colour and one yellow coloured cloth piece was tied around the neck, gray coloured pant and black socks and dharidar nicker. The search of the dead body was conducted by SI Rohtash and on search one bundle of bidi, cash amount of Rs. 20/ and one comb were recovered from the pocket of its wearing pant and cash amount of Rs.29.25 were recovered from the pocket of nicker (half pant)/underwear. The personal search articles were sealed in an envelope parcel and the parcel was taken into possession vide memo Ex.PW9/A (dated 25.04.09). There were stab injury marks on stomach, chest, chin and on hand. They tried to get establish the identification of the dead body but no body could identify the dead body. Thereafter, Crime Team and Dog squad were called. Crime Team inspected the spot and photographer took the photographs. The dog squad also tried to find out the clue but no result could be found. In the meantime Addl. SHO Inspector Harpal Singh also reached at the spot. Thereafter, the blood, which was lying at the spot, (State Vs. Intezar Khan) (SC No.90/2012) Page No.8 of pages 15 was lifted from the spot and it was put in a plastic container and container was converted into parcel with the seal of HPS and parcel was taken into possession vide memo Ex.PW9/C (dated 25.04.09). Blood stained earth was also lifted by Inspector Harpal Singh and it was also put in a plastic container and container was converted into parcel with the seal of HPS and parcel was taken into possession vide memo Ex.PW9/B (dated 25.04.09). Earth control was also lifted from the spot by Inspector Harpal Singh and it was also put in a plastic container and container was converted into parcel with the seal of HPS and parcel was taken into possession vide memo Ex. PW9/E (dated 25.04.09). SI Rohtash prepared rukka on the basis of DD No. 29A, prior to lifting the above said exhibits by Inspector Harpal Singh, and same was sent to PS through Ct. Vijay Bahadur. Thereafter, he along with SI Rohtash removed the dead body from the spot to GTB hospital and it was got preserved in the mortuary and he was deputed by the IO in the mortuary. On 24.11.2000 postmortem on the dead body was got conducted and after the postmortem doctor handed over four sealed parcels including sample seal to him and he handed over the same to IO, who took the same into possession vide memo Ex.PW10/A (exhibited on 20.05.09). The dead body was also taken to Vijay Garden (Electric crematorium) and it was cremated there.
During cross examination he conceded that he was directed by the IO to cremate the dead body at Electric Crematorium being the body of Hindu male.
PW10 Insp. Mukesh Kumar Jain stated that on 18.02.2001 on the request of IO Insp. Harpal Singh, he reached at the spot i.e. Ganda Nala, Shiv Vihar, Jagdamba Colony, Gokul Puri, where he took rough notes and (State Vs. Intezar Khan) (SC No.90/2012) Page No.9 of pages 15 measurements and on the basis of which, he prepared scaled site plan Ex.PW10/A. PW11 Imam Ali, while resiling from his earlier statement given to the police, stated that he along with Kallan Khan (his neighbour) came to Delhi at PS Gokul Puri, where police officials had shown the photographs of deceased Kallu and on seeing the photographs they both had identified the photograph Ex.PW11/A of Kallu. Deceased Kallu had come to Delhi about 11½ years prior of their arrival at PS Gokul Puri. The deceased Kallu was married with Sitara of Islam Nagar, who used to reside at Islam Nagar and sometimes Sitara used to visit Kallu at Delhi. Kallan told him that his son Kallu was missing and his whereabouts were not known. He stated that except this he does not know anything else.
He was cross examined by Ld. Addl. PP for the State and was confronted with his statement mark A recorded before the police but he denied that he had stated in his statement mark A that Kallan told him that it was Sitara w/o Kallu and one Irshad, friend of Kallu, who were involved in missing of his son kallu or that Kallan had told him that he was having suspicion that Sitara and Irshad had murdered his son Kallu @ Kalua.
PW12 Insp. Harpal Singh (IO of the case) stated that on 18.11.2000 he alongwith HC Satpal and Ct. Ram Swaroop was on patrolling the area of Gokalpuri in TATA 407 and when at about 10.00 a.m they were present at Gokalpuri Pul Ganda Nala, there Ct. Vijay Kumar met them and he handed over the copy of FIR and rukka in original to him, as investigation of the case was assigned to him after registration of the FIR. Thereafter, they all including Ct. Vijay Kumar, went to the spot i.e. near Ganda Nala, Jagdamba Colony and on reaching there, they found that a dead body of one male was lying in (State Vs. Intezar Khan) (SC No.90/2012) Page No.10 of pages 15 between the bank of nala and wall of a house. At that time SI Rohtash, Ct. Rajender and Insp. K.G. Tyagi (SHO) alongwith staff were already present there. SI Rohtash handed over the belongings of the deceased recovered in his personal search to him alongwith its seizure memo Ex.PW9/A. Crime Team and dog squad were also reached at the spot. Photographer from Crime Team took the photographs of the crime scene. Fingerprints proficient tried to lift the fingerprints, but could not lift the same. Dog squad also tried to find out the clue, but they also could not find any clue. Blood was also found lying at the spot. The dead body was having stabbed injuries on its neck, abdomen, on chest and on the hands, etc. Thereafter, the blood sample was lifted with the help of cotton and it was put in a plastic container and container was converted in a parcel with a seal of HPS and the parcel was taken in possession vide seizure memo Ex.PW9/A. Blood stained earth and earth control was also lifted from there and they were put in two separate plastic containers and the said containers also converted in parcels with seal of HPS and both the parcels were taken in possession vide seizure memos Ex.PW9/D and Ex.PW9/E respectively. They tried to get established the identity of the dead body but nobody could identify. He prepared inquest papers Ex.PW12/A (i.e. brief facts), Ex.PW12/B (death report) and statements of one Kumar Dutta and Dayanand Sharma Ex.PW12/C & Ex.PW12/D respectively. Request for preserving the dead body for 72 hours Ex.PW9/F was made and thereafter, the dead body was got removed to GTB Hospital through SI Rohtash and Ct. Rajender. Thereafter, he came back to the police station and exhibits were deposited with the MHC(M). He sent the photograph of the dead body to Doordarshan, Hue and Cry Notice was got pasted in the area (State Vs. Intezar Khan) (SC No.90/2012) Page No.11 of pages 15 and also sent to all the Police Stations and WT Message was also got fleshed, informed to the NCRB but nobody came forward to identify the dead body. During that period, the dead body was got preserved upto 24.11.2000 and on 24.11.2000 its postmortem was got conducted vide P.M. report Ex.PW20/A. After postmortem the dead body was got cremated. Ct. Rajender handed over three parcels and one sample seal to him and he took the same in possession vide seizure memo Ex.PW10/A. Further the spot was also got inspected by him through draftsman SI Mukesh, who prepared rough notes and measurements and thereafter he handed over scaled site plan Ex.PW10/A to him. He had also prepared site plan Ex.PW20/A on 18.11.2000 at the spot and it bears his signatures at point A. He tried to find out the clue of the accused persons/assailants, but nothing could be done. Thereafter, the file was filed as untrace. Thereafter, on 21/09/2002, HC Amar Chand of Special Staff, East District, got recorded DD in P.S. Gokalpuri regarding arrest of one accused Irshad (since acquitted) and his disclosure statement, in which he admitted his involvement in the present case and about producing the accused Irshad before the court concerned. Thereafter, he came to Karkardooma Courts, collected the documents and moved a production warrant before the court concerned for 24.09.2002. On 24.09.2002, the relatives of the deceased namely Kallan (father of deceased), Imam Ali and Tahir Ali came to the Police Station and they had identified the dead body of deceased as of Kalwa after seeing the photographs. On 24.09.2002, accused Irshad was produced before the court concerned on production warrant, he was formally arrested and interrogated by him and he was also remanded to P.C and during that course, he got arrested one Smt. Sitara (wife of deceased) (State Vs. Intezar Khan) (SC No.90/2012) Page No.12 of pages 15 (since expired during trial) and accused Irshad had also led the police party consisting of SI Amul Tyagi and other staff and father of deceased. On the next day, he had produced Smt. Sitara before the court concerned and after that she was remanded to J.C. During cross examination he conceded that the dead body was inspected and was presuming that it was of a Hindu, the dead body was got cremated according to Hindu rites.
6. I have heard the rival submissions of both the sides. I have also perused the entire material placed before me and in my considered opinion the prosecution has been failed to prove the guilt of accused beyond reasonable doubt. Admittedly, in this case except the disclosure statement and pointing out memo of accused, there is not an iota of evidence on record against the accused. It is well settled that where the disclosure statement does not lead to any recovery, the same is not admissible in evidence. In the present case, nothing has been recovered pursuant to the disclosure statement of accused and as such the same is not admissible in evidence. As regards to the pointing out memo prepared at the instance of accused, it is important to mention here that the place of occurrence was already known to the police before recording the disclosure statement and as such pointing out of the place of occurrence by the accused has also no evidentiary value. Further out of the thirteen witnesses examined, PW5 Pankaj Madan and PW11 Imam Ali, who are the public witnesses have not spoken anything against the accused. While distracting from his earlier version given to the police, PW5 has flatly expressed his unawareness about the instant case and even claimed that he does know anything about TATA Sumo No.UP13C 2789 of chocolate colour. Similarly, PW11 (State Vs. Intezar Khan) (SC No.90/2012) Page No.13 of pages 15 Imam Ali too has deviated from his statement given to the police and denied that Kallan told him that it was Sitara W/o Kallu and one Irshad, friend of Kallu, who were involved in missing of his son Kallu. He was duly cross examined by Ld. Addl. PP but despite that he did not change his stand. Moreover, in their respective statements of PW8 SI Amul Tyagi and PW12 Insp. Harpal Singh have put further dent in the case of prosecution by saying that the dead body recovered was of a Hindu male and therefore, he was cremated at Electric Crematorium according to Hindu Rites. Lastly, the material lacuna remained on the part of prosecution is that it failed to produce and examine Kalan Khan, father of deceased Kallu, before the court despite of the fact that opportunities were given in that regard. Moreover, it is also to be added that the said witness namely Kalan Khan when was produced and examined twice (during the course of trial of other accused persons) had not supported the case of prosecution despite cross examination by Ld. Addl. PP for the State, as a result of which all of them were acquitted.
7. Since there is no evidence on record against the accused Intezar, so I hereby acquit him of the charges levelled against him. Bail bond of accused Intezar is extended for another period of six months in the light of the directions of Hon'ble High Court of Delhi.
8. File be now consigned to Record Room with the directions that it be recalled for trial qua the accused Nanwa (who is proclaimed offender) as and when he is arrested.
(Announced in Open court (RAKESH KUMAR)
on 12 th March, 2014) Addl. Sessions Judge/North East
Karkardooma Courts, Delhi
(State Vs. Intezar Khan) (SC No.90/2012) Page No.14 of pages 15
SC No.90/2012
FIR No.473/2000
PS Gokal Puri
State Vs. Intezar Khan
12.03.2014
Present: Sh. Dharam Chand, Ld. Addl. PP for the State.
Accused Intezar Khan is present on bail with counsel. Statement of accused Intezar Khan recorded U/s 313 Cr.P.C.
Arguments heard.
Put up at 3.00 p.m for orders.
(RAKESH KUMAR) ASJ(NE)/KKD/12.03.2014 12.03.2014 (at 3.00 PM) Present: Sh. Dharam Chand, Ld. Addl. PP for the State.
Accused Intezar Khan is present on bail with counsel. Vide a separate judgment, accused Intezar Khan is acquitted of the charges levelled against him.
Bail bond of accused Intezar is extended for another period of six months in the light of the directions of Hon'ble High Court of Delhi.
File be now consigned to Record Room with the directions that it be recalled for trial qua the accused Nanwa (who is proclaimed offender) as and when he is arrested.
(RAKESH KUMAR) ASJ(NE)/KKD/12.03.2014 (State Vs. Intezar Khan) (SC No.90/2012) Page No.15 of pages 15