Delhi District Court
State vs 1. Mohd. Iliyas on 18 September, 2018
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
S.C. No.: 1299/2016
State Versus 1. Mohd. Iliyas
S/o Mohd. Mohsin
R/o C-22, Main Road,
Rani Garden, Delhi.
2. Mohd. Ikrar
S/o Mohd. Mohsin
R/o A-317, Main Road,
Rani Garden, Delhi.
FIR No. : 208/2015
Under Section : 302/201/34 IPC
Police Station : Geeta Colony
Chargesheet Filed On : 09.06.2015
Chargesheet Allocated On : 29.06.2015
Undersigned presided over this Court : 06.11.2017
Judgment Reserved On : 18.09.2018 (B.N.)
Judgment Announced On : 18.09.2018 (A.N.)
Corum: Sh. A.K. Mishra, ld. Addl. PP for the State
Sh. Rakesh Kochar, ld. counsel for both accused persons
JUDGMENT
1. For disposal of the present case, succinctly, material facts of the prosecution case, are that on 01.04.2015 a missing report was lodged by Rahis Ahned for his son Faizan, aged about 3 ½ years. Wireless message SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 1 of 31 was flashed for the same and an FIR No.208/2015 Under Sec. 363 IPC PS Geeta Colony was registered. Efforts were made to search the missing child but its in vain.
2. It is further case of the prosecution that on 02.04.2015 at about 8.30 p.m. DD No. 15 A was lodged at said Police Station regarding deadbody of a child lying near Exit Gae, Taj Enclave, on which police reached there. Said body was found of missing child namely Faizan by his parents and relatives. Crime Team was also reached at the spot. Body was found wrapped in black coloured plastic bag. Inquest proceedings were conducted and after getting the post-mortem conducted on the body. Body of deceased Faizan was handed over to its legal heir. Sections 302/201 IPC was added in the challan at the subsequent stage.
3. It is further case of the prosecution that on 04.04.2015 Kumari Shabnam, aged about 15 years, elder sister of deceased, informed the police that on the day of missing of his brother, at about 1.30/2 p.m. while she was present at Tea stall of his maternal grandfather, she noticed her missing brother, deceased Faizan, was playing with the counter of bakery of Mohd. Iliyas. She requested her brother to come to home but since then he ws found missing. Prosecution alleged that during interrogation, Mohd. Iliyas disclosed to the police that on 01.04.2015 at about 2 p.m. while his counter was lying outside the bakery on account of renovation of his bakery shop, he noticed one child playing with counter with stone and on seeing it, he became SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 2 of 31 annoyed and slapped the said child on account of which head of said child struck against counter. Said boy became unconscious and at that time on account of lunch time, none was present. He sprinkled water on the said boy so that he might regain consciousness but in vain and on seeing it, he kept the body of said child in a box of a counter which is being used for backery for keeping rusks etc. He further disclosed that he informed this fact to his younger brother with decision to dispose of the body of said child and for this purpose, he discussed the matter with Arif, his brother-in-law, but he refused to assist him in the matter. He further disclosed that later on Mohd. Ikrar brought one maruti van bearing registration no. UP-14DT-5618 from one Istkhar Ahmed on the pretext of supply of some items and then they disposed of the body. Accused Mohd. Ikrar was also arrested. It is also disclosed that said counter was sold to one Gaurav Kalra on 02.04.2015. Said counter was also seized and van used in the crime was also seized. Formal proceedings were conducted in the matter and on completion of investigation, the chargesheet was filed against both the accused persons before the court of Ld. Metropolitan Magistrate for the offence punishable under Section 302/201 IPC.
4. After compliance of the provisions of Section 207 CrPC by the court of Ld. MM, case was committed to the Court of Sessions as Sec. 302 IPC is exclusively triable by it.
5. Vide order dated 09.07.2015 passed by ld. predecessor, charge SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 3 of 31 was framed under Section 302 IPC against accused Mohd. Iliyas. Separate charge under Sec. 201/34 IPC was also framed against both accused persons. To the said charges, both these accused persons pleaded not guilty and claimed trial.
6. The Prosecution in support of its case has examined seventeen witnesses, who are as follows:
PW-1 Rahis Ahmed is the complainant. He proved his statement Ex.PW1/A with proceedings Ex.PW1/B & C. PW-2 Shabnam, alleged material witness, is sister of deceased while PW-3 Smt. Sabiban is mother of deceased. .
PW-4 Gaffar informed the police on came to know about deadbody lying opposite the gate of Taj Enclave Society.
PW-5 Afzal is formal witness who identified body of deceased vide proceedings Ex.PW5/A & 1/C. PW-6 Gaurav Kalra and PW-8 Mohd. Arif, stated to be material witnesses, did not support the prosecution case on material aspects.
PW-7 SI Sanjay Saxena, Crime Team Official, proved his SOC report as Ex.PW7/A prepared on 02.04.2015. This witness also proved his other reports Ex.PW7/B &7/C prepared on 03.04.2015 and 06.04.2015 respectively.
SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 4 of 31 PW-9 Mohd. Naseem Ahmed and PW-10 Nadeem Ahmed are witnesses to the maruti van bearing registration no. UP-14DT-5618.
PW-11 Mohd. Mohsin, father of accused persons, deposed that he had purchased a bakery along with other persons and one accused Mohd. Iliyas used to run bakery.
PW-13 Istikar Ahmed, other material witnesses, is with regard to vehicle bearing registration no. UP-14DT-5618 and proved memo Ex.PW13/A regarding seizure of the same.
PW-14 Dr. Astitesh Bajwa proved post-mortem report as Ex.PW14/A. PW-15 ASI Sonu Kaushik proved the scaled site plan Ex.PW15/A. PW-16 Const. Nitin proved PCR information as Ex.PW16/A received on 02.04.2015 at about 8.25 a.m. PW-17 Const. Vineet handed over the original ruqqa and copy of the FIR to the Investigating Officer and went in search of missing child but in vain.
During prosecution evidence, accused persons in their statement recorded under Sec. 294 CrPC admitted TIP proceedings; CDRs; photographs; FIR; DD No. 14 A; FSL report; statementsof Cont. Vinit; Const. Krishan Kumar, Const. Sant Kumar, HC Ravinder and SI Vinit Kumar and SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 5 of 31 proceedings conducted by IO/Inspt. Arun Chauhan as Ex.C1 to C8 respectively.
Detailed testimonies of the witnesses concerned shall be discussed at the relevant stage of the judgment.
7. After conclusion of the prosecution evidence, the statement of the accused persons were recorded under Section 313 CrPC in which they denied all the incriminating circumstances put against them. Both accused persons pleaded their innocence and their false implication. Both of them took the plea that police had obtained their signatures on end number of blank papers and later on same were manipulated and fabricated to suit the prosecution case. Neither of them opted to lead any defence evidence.
8. Ld. Addl. PP for the State argued that prosecution has been able to prove the charges against both the accused persons through evidence of prosecution witnesses and recovery of deadbody. He argued that residues of rusks/biscuits and white til found on the body of deceased matched with FSL report, duly admitted by the accused persons. Ld. Addl. PP submits that as the case is based on the circumstantial circumstances as well as on the last seen evidence and these points are fatal to the accused persons and pin point towards the commission of offence committed by the accused persons. Ld. Addl. PP further argued that it is well known factor that public witnesses did not support the prosecution case for various reasons including monetary, fear etc and there is no reason for false implication of the accused persons in such SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 6 of 31 like matters. Ld. Addl. PP, therefore, prayed for conviction, against both accused persons, as per charges framed against the accused persons.
9. Ld. counsel for both accused persons argued that prosecution has miserably failed to prove its case against either of these accused persons. Ld. defence counsel argued that none of the public witnesses including parents, sister and independent material witnesses did not support the prosecution case. Ld. defence counsel also pointed out that even sister of deceased also did not support the prosecution case in her statement recorded under Sec. 164 CrPC. Qua, arguments raised by ld. Addl.PP regarding FSL report, ld. defence took plea that only presence of residues of biscuits etc. on the body of deceased cannot be connected with either of accused for the crime in question. Ld. defence counsel further submitted that case is based on the circumstantial evidence and prosecution has even failed to prove last seen evidence and failed to prove the points of circumstantial evidence as mentioned in the judgment reported as Sharad Birdichand Sarda V. State of Maharastra (AIR 1984 SC 1662) . Ld. defence counsel further contended that under all these circumstances, both these accused persons are liable to be acquitted for the charges framed against them.
10. Rival submissions considered and record perused with law on the issues in question.
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11. Having heard the rival submissions and the judgments cited as well as the relevant provisions in order to analysis the testimony of the prosecution witnesses in consonance with the statement of accused persons under Section 294 CrPC for admission of the statements of prosecution witnesses and documents.
12. Before arrival to any conclusion, let be analysis the sanctity of admission of Section 294 CrPC. Learned defence counsel has made admission all the material witnesses like TIP conducted by learned MM as Ex.C1; CDR of mobile no. 9990620732 in the name of Mohd. Iliyas and 9213706373 as Ex.C2 & C3; the photographs as Ex.C4/1-29 showing body of deceased, showcase, maruti van etc; the FIR as Ex.C5; DD No. 14-A dated 02.04.2015 as Ex.C6 in respect of found of deadbody; FSL report Ex.C7; all the documents pertaining to statements recorded under Sec. 161 CrPC of Pws Constable Vinit; Constable Krishan Kumar; Constable Sant Kumar; HC Ravinder and SI Vinit Kumar - the witnesses mentioned at serial no. 13,15,16,20,21, 23 to 26, 28 to 30 and 32 & 33 as per the list of witnesses vide his statement recorded on 13.07.2018. Thereafter vide statement recorded on 04.08.2018, accused persons also admitted documents of MHCM, PS Geeta Colony (witness mentioned at serial no. 27 in the list of witnesses) and all the proceedings conducted and documents prepared by Inspt. Arun Chauhan,Investigating Officer, as Ex.C8 (colly.). SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 8 of 31
13. Section 294 CrPC defines - (1) where any document is filed before any court by the prosecution or the accused, the particulars or every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document (2) the list of document shall be in such form as may be prescribed by the State Government (3) whether the genuineness or any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceedings under this Code without proof of the signature of the person to whom it purports to be signed - provided that the court may, in its discretion require such signature to be proved.
14. The object in enacting this new Section is to shorten the proceedings. It provides the mode or manner in which the documents relied upon by the prosecution and defence can be proved without any formal proof thereof. In case reported as Shabbir Mohammad Vs. State of Rajasthan, 1996 CrLJ 2015 (Raj.-FB), it is mentioned that where the genuineness of the document, filed by one party is admitted by the other party, the document can be read as substantive evidence by the Court.
15. In case reported as Dharampal Singh Vs. State of Rajasthan, 1998 CrLJ 3372 (Raj-DB), it is clearly observed that - where the genuineness of arrest memo of the accused, seizure memo of rifle and live and empty SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 9 of 31 cartridges is admitted by the counsel under Sec. 294 (3) CrPC, and their formal proof is also dispensed with, the examination of the sub-inspector who made the arrest and recoveries is not necessary.
16. Where genuineness of the post-mortem report is not disputed by the defence, it can be relied upon as a substantive piece of evidence even if the Medical Officer who conducted the post-mortem examination is not examined in the case. Section 294 (3) CrPC covers the post-mortem report, if the genuineness of the report is not disputed by the accused, it may be read as substantive piece of evidence without examining its author. This view is supported from the case reported as Sadre Alam Mullick Vs. State, 1997 Crl LJ 2441 (Cal.-DB) and Boraidh V. State (2003) 1 Kant 368.
17. So far as the contentions raised by the learned defence counsel that does not pertain to the authenticity and genuineness of document as admitted under Sec. 294 CrPC. Learned defence counsel contending and focusing to the testimony of the police witnesses including the other public witnesses though forgetting the other facet of the coin. Proceedings of the statement under Sec. 164 CrPC is Ex.C1 are not disputed. Hence, same has been admitted as substantive piece of evidence. Ms. Vidhi Gupta, the then learned Metropolitan Magistrate, vide proceedings dated 07.04.2015 recorded the statement of Shabnam D/o Sh. Rahees, aged about 15 years with certificate that the statement recorded is true and correct and read over to the witness Since the witness was 15 years old, certain questions were put to her SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 10 of 31 in order to ascertain whether said witness is capable of understand the sanctity of oath and after being satisfied herself by learned Metropolitan Magistrate only then recorded statement of the witness. Witness clearly replied to the query raised by court that one should speak truth. In the said statement, she stated that while she was returning back from her work, she found her brother standing near the counter of bakery of Mohd. Iliyas and when she asked her brother to go to house, her brother replied that she should go and he would come later on. At the house she took meals and thought her brother has not come yet and she again visited the bakery of Iliyas and asked about her brother on which it was replied that they did not see him and do not know his whereabouts. Thereafter she made search of his brother at other places. Learned Metropolitan Magistrate also appended the certificate about correctness and genuineness of the proceedings recorded by her mentioning that statement has been read over to the witness. On the contrary, PW Shabnam (PW-2) did not support the prosecution story while appeared before the court. Though she admitted that she made her statement as Ex.PW2/A but she was under the pressure of one police officials whose name now she did not remember. It is observed in case reported as Ram Lakhan Sheo Charan Vs. Stae of UP 1991 CrLJ 2790, 2792(All-DB) that where the witnesses do not support the prosecution story in the court, then their statements under Section 164 CrPC cannot be used as substantive piece of evidence. The proper way is first to marshall the evidence against the accused SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 11 of 31 excluding the confession altogether from consideration and see whether if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared toact on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing that without the aid of the confession he would not be prepared to accept. Section 164 CrPC is a protective measure, as it itself contains warning to the accused by the Magistrate before making any confessional statement. The provisions of Sec. 164 CrPC do not violate the provisions of Art. 21 of the Constitution. The Privy Council has ruled that a statement made under this Section can never be used as substantive evidence of the facts stated, but it can be used to support or challenge evidence given in Court by person who made the statement (Sec. 157 of Indian Evidence Act).The statement made by an approver under this section does not amount to corroboration in material particulars which the Courts require in relation to the evidence of an accomplice. The said statement can be used for corroborating the statement of witness or to contradict the witness before the court has made a contradictory statement. Though witness deposed before the court that she made said statement under Section 164 CrPC under duress but did not lodge any report/complaint for the same. SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 12 of 31
18. During the course of investigation, prosecution has collected the CDRs which was also admitted under Section 294 CrPC. It is also matter of record that accused persons have made calls at different intervals on the relevant period and time of the incident. Similarly the documents prepared during the course of investigation and its genuineness as well as the report of FSL, recovery of showcase, entries effected in register no. 19 and also statement of other police official on that aspect including of Const. Vinit; Const. Krishan Kumar, Const. Sant Kumar, HC Ravinder and SI Vinit Kumar has been accepted under Sec. 294 CrPC.
19. Next evidence, as collected during the investigation, is seizure of maruti Omni van bearing registration no. UP-16DT-5618. Said vehicle was seized vide memo Ex.PW13/A. From the maruti van rusks dust with white til was also seen to be observed. The body of the deceased was recovered while wrapped in a white coloured plastic bag. His body was identified vide statements Ex.PW5/A & B and also 6/B & C. The accused persons also admitted photographs of the deceased. As per the FSL report and post- mortem report, residues of rusks, biscuits and white til were available on the body, counter and the maruti van. PW-4 Gaffar has initially informed the police at 100 number from his mobile phone regarding lying of a body of child near exit gate, Taj Enclave. PW-7 SI Sanjay Saxena, Incharge Crime Team, deposed that on 02.04.2015 on receipt of information, he reached at the spot SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 13 of 31 and proved his report as Ex.PW7/A. He also proved his report Ex.PW7/B and 7/C prepared by him on different dates in the present matter. This witness was not cross-examined by learned defence counsel. PW-14 Dr. A.S. Bajwa, who conducted post-mortem on the body of the deceased opined the cause of death as 'cranio cerebral damage' consequent upon blunt force impact and time since death was around 12-16 hours but there is no cross-examination. Accused persons also admitted the statement of police officials Const. Vinit; Const. Krishan Kumar, Const. Sant Kumar, HC Ravinder and SI Vinit Kumar who joined the investigations of this case from time to time at different stage of the case.
20. Accused persons in their statement recorded under Section 313 CrPC stated that they have been implicated falsely in order to extort money and police obtained their signatures on end number of blank papers and later on same were manipulated and fabricated to suit the prosecution case and only in order to solve the blind murder case. Both of them further pleaded that nothing incriminating has been recovered either from them or at their instance.
21. To facilitate the matter, court will discuss the matter point wise like public witnesses/last seen evidence; articles wise evidence and scientific SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 14 of 31 evidence and same is here as under:
PUBLIC WITNESS/LAST SEEN EVIDENCE:
22. There are five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. Reference can also made to judgment of Hon'ble Supreme Court reported as K.T. Palanisamy V State of T.N. (AIR 2008 Supreme court 1095).In Ramreddy Rajesh Khanna Reddy and Another vs. State of A.P [(2006) 10 SCC 172], the Hon'ble Supreme Court observed as follows:
" It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must from such a chain of event as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only the basis of the circumstantial evidence".
23. Present case is solely based on the circumstantial evidence. In the judgment reported as Sharad Birdichand Sarda V. State of Maharastra (AIR 1984 SC 1662) the Hon'ble Supreme Court held as follows:
"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 15 of 31 accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' as was held by this curt in Shivaji Sahebrao Bobade v. State of Maharastra where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, there is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for this conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
24. The prosecution in order to constitute the offence as charges levelled against the accused persons examined PW-1 Rahis Ahmed, father of deceased; PW-2 Shabnam, sister of deceased and PW-3 Sabiban, mother of the deceased, who lodged missing report and also identified the body of deceased as being recovered from gunny bag as well also received the body of deceased after its post-mortem. PW-2 Shabnam, sister of deceased, is last seen witness as she has lastely seen the deceased near the counter of bakery of accused Mohd. Iliyas. Her statement was recorded initially during the SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 16 of 31 course of investigation, under Sec. 164 CrPC by learned Metropolitan Magistrate. Said statement in toto was admitted by learned defence counsel under Sec. 294 CrPC. Discussion with regard to sanctity of the proceedings under Sec.294 CrPC has already been made in the preceding paragraphs of the judgment. PW-2 Shabnam, sister of the deceased, has in clear terms stated that his deceased brother was found missing, report was made and she came to know about the death of his brother only on 02.04.2015. Further, she in clear terms stated that police did not make any inquiry from her and that she made statement to learned Metropolitan Magistrate under pressure of a police official, whose name she do not remember and that she did not lodged any report about said police official who had threatened her to make such statement. PW-2 Shabnam in her statement stated as follows:
"xxx I am not aware as to what happened after making complaint to the police. On 01.04.2015 when I had seen Faizan lastly, he was wearing clothes but I do not remember the colour or type of the clothes. I came to know about the death of Faizan on the next date i.e. 02.04.2015. Police never made any inquiries from me nor recorded my statement. However, my statement was recorded before the Magistrate and I had signed the same. But I say that I was threatened by the police officials to make at that statement.
I do not know any person by the name of Md. Iliyas.
25. She was put for cross-examination on behalf of the State, and during said cross-examination, she stated as follows:
"xxThe police officials threatened me a day before recording SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 17 of 31 of my statement Ex.PW2/A before ld. MM at my house. They threatened me only once. The said police official was not present in the courtroom or that ld. MM. I am not aware of his name. I did not complain to the ld. MM that I was being threatened by police official to make that statement. I have not made any complaint against any police official regarding the said threatening."
26. The law has been explained by Hon'ble Apex Court in case reported as Bhajju Vs. State of M.P. (2012) 4 SCC 327, that the evidence of a hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the court, in its discretion, to permit the person who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.
27. Mere because prosecution witness did not state before the court about the involvement of the accused in the crime, though the same was mentioned in the complaint, such a witness could not be termed hostile, (Ref. State Vs. Murugan, 2002 CrLJ 670, 674 - para 21 & 22).
28. In Phipson of Evidence, 15th Ed. 2000 para 11-58, page 276 it is SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 18 of 31 observed that "adverse" means "hostile" that is, when in the opinion of the Judge, he bears a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth to the court.
29. Mere presentation of an application by the prosecution or representation that a certain witness had been won over is not conclusive of allegations. In such a case the witness can be produced for cross-examination by the answers given by him and to some extent from the demeanour. Where the earliest information of the occurrence as given by the witness was recorded by the police official who was not shown not to have cordial relations with the witness, nor the witness at any point of time complained about recording of version as told by him, the grant of permission to the prosecution to treat the official as a hostile witness and put the question to him in cross- examination simply because the prosecution itself had given different version to suit its convenience, was not warranted. When a witness depose contrary to the stand of the prosecution and his own statement recorded under Sec. 161 CrPC, 1973, the prosecutor with the permission of the Court can pray to the Court for declaring that witness hostile and for granting leave to cross- examine the said witness. If such a permission is granted by the Court, the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such a witness, if he so desires. In other words, there is a limited examination-in-chief as well as cross-examination of the said witness by the prosecutor as well as counsel for SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 19 of 31 the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution.
30. The testimony of the witnesses, as discussed above, is clear to the aspect that recovery of articles was effected at the instance of the accused persons. The recovery cannot be discarded merely because some of the witnesses have turned hostile where the witness are of seizure of showcase/counter and maruti van and other incriminating articles found at the instance of the accused persons and since all the public witnesses have categorically identified the incriminating articles duly corroborated with testimony of police officials as well as expert witnesses whose testimonies have been admitted under Sec. 294 CrPC and that testimonies remained unchallenged and unrebutted.
31. PW-2 Shabnam has identified her signatures on Ex.PW2/A, statement recorded under Sec. 164 CrPC wherein she has clearly named the accused Mohd. Iliyasto whom she has lastly seen her deceased brother at the bakery shop of the said accused.
32. So far as the recovery of showcase/counter and recovery of maruti van bearing registration no. UP-16DT-5618. PW-6 Gaurav Kalra from whose showcase/counter was recovered has identified his signatures on the seizure memo Ex.PW6/A but has denied having purchased it from Iliyas. Similarly, maruti van bearing registration no. UP-16DT-5618 was seized vide SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 20 of 31 memo Ex.PW13/A. PW-13 Istikar Ahmed is a witness to that effect. Said witness stated that he had purchased the said vehicle from one Naseem for Rs. 65,000/- about 1½ months back prior to the day of incident and he used to use the said vehicle for supply of his items. The said vehicle was seized on 06.04.2015 vide memo Ex.PW13/A. He was declared hostile by ld. Addl. PP and denied that the said maruti van was taken by Ikrar to deliver some bakery items at Seemapuri. PW-7 SI Sanjay Saxena, Incharge Crime Team, has submitted his reports Ex.PW7/A to C regarding deadbody and also about presence of residues of biscuits and white til in maruti vehicle bearing registration no. UP-16DT-5618 and in the showcase.
33. So far as the running of bakery at shop No. C-222, Main Road, Rani Garden, PW-11 Mohd. Mohseen and PW-12 Mohd. Haroon categorically stated that said shop was purchased from Ms. Nazra Begum and Razia Khatoon for a sum of rupess sixty five lakh on 15.03.2012 and same was being run as a bakery. Documents Mark 11/A to C were produced to that effect. This witness stated that he himself used to run said shop/bakery and accused Mohd. Iliyas, his son, used to remained with him. The residues of biscuits/rusks and white til were also seized from the showcase/counter, bakery shop, maruti van and body of the deceased and all were sent to FSL for comparison. Report received from the FSL which has been admitted under statement under Sec. 294 CrPC and residues of biscuits/rusks and white til were tallied with each other.
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34. Section 45 of the Indian Evidence Act lays down that the opinion of the expert is relevant fact and is admissible as evidence. Unless it is established in the cross-examination that the opinion given by the expert is incorrect, the said evidence cannot be discarded on showing minor discrepancies. The court has to consider the expert's opinion as pieces of evidence and after examining the evidence, the court has to accept one or the other opinion. An opinion of an expert is not beyond the pale of judicial review. It would certainly not be so when the statutory authority transgresses its jurisdiction. A decision taken in excess of jurisdiction would render the same nullity. In case reported as Basu Hrijan Vs. State of Orissa, 2003 CrLJ 2270-2272 (para 12) (Ori), it is observed that the post-mortem report submitted by the doctor conducting autopsy of the dead body is admissible in evidence even without examining the doctor in Court. However, Bombay High Court has held that the post-mortem report or the medical certificate is not substantive piece of evidence. It was held that only a statement given by the medical officer in the Court is substantive evidence. PW14- Dr. A.S. Bajwa has been produced by the prosecution in this case. Apart from this, learned defence counsel also admitted statements of Const. Vinit; Const. Krishan Kumar; Const. Sant Kumar; HC Ravinder and SI Vinit Kumar as well proceedings conducted by inspt. Arun Chauhan. The real evidence as brought by the prosecution in terms of the statements of police officials who are not SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 22 of 31 been examined as well the admission made by accused persons in statement recorded under Sec. 294 CrPC, same are indifference and unambiguous.
35. The accused persons in their statement recorded under Sec. 313 CrPC have taken the defence that the IO has obtained their signatures on end number of blank papers and same have been manipulated to suit the prosecution case in order to solve blind murder case. Both accused also pleaded that they did not make any disclosure statement at any point of time and nothing incriminating was recovered from them or at their instance. Though on the contrary, accused persons have not put any suggestion to any of the prosecution witnesses for recovery of the counter/showcase and maruti van. They have not denied the documents prepared by the Investigating Officer during the course of investigation as well as taken into possession of mobile phones and maruti can and showcase/counter and CDRs. The seized residues of biscuits and white til from deadbody of deceased Faizan, counter/showcase and maruti van which were sent to FSL during the course of investigation. The accused persons also admitted documents prepared by the Inspt. Arun Chauhan, Investigating Officer, during the course of investigation as well their signatures on the disclosure statements. The disclosure statements led to the recovery of the incriminating articles and same are admissible under the Indian Evidence Act.
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36. Dealing with retracted confession, a four Judge Bench of Hon'ble Apex Court speaking through Subba Rao, J, in Pyre Lal Bhargava Vs. State of Rajasthan, AIR 1963 SC 1094 clarified the legal proposition thus:
" A retracted confession may form the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily made. But it has been held that a Court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only rule of prudence. It cannot even be laid down as an inflexible rule of pragmatic or prudence that under no circumstances, such a conviction can be made without corroboration; for a Court may, in a particular case, be convicted of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon confession much less on a retracted confession unless the Court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars."
37. The accused persons nowhere stated at any point of time that their statement recorded during investigation is under duress or coercion by using the third degree method. Rather under Section 294 CrPC admitted the documents prepared by Inspt. Arun Chauhan, Investigating Officer, during the investigation of present matter.
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38. From the over all facts and circumstances of the above discussions, testimonies of witnesses as brought on record as well statement of the accused persons recorded under Sec. 294 CrPC and there is no defence evidence with respect to the admission under Sec. 294 CrPC as well as statement of accused under Sec. 313 CrPC, Court is of the view that it reveals that the death of deceased Faizan is homicide. The accused Mohd. Iliyas in his disclosure statement disclosed that Faizan had been rubbing the counter/showcase which irritating him (accused) and then he has slapped said Faizan, 3½ years old boy. As the deceased was only 3½ years old only, he could not tolerate the slap and could not regained conscious. Therefore, it revealed that accused Mohd. Iliyas had no intention to cause death of said child but only slapped him in order to teach him a lesson. As the death of Faizan was opined as on account of cranio cerebral damage consequent upon blunt force impact which was sufficient to cause death in the ordinary course of nature, as such, it reveals that there is no intention to kill the deceased.
39. The Indian Penal Code recognizes two kinds of homicide: (1) culpable homicide, dealt with between Sections 299 and 304 of Indian Penal and (2) Not culpable homicide, dealt with by Section 304-A of the IPC. There are two kinds of culpable homicide: (i) Culpable homicide amounting to murder (Sec. 300 and 302 of IPC) and (ii) culpable homicide not amounting to murder (Sec. 304 of IPC).
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40. The Section provides punishment for culpable homicide not amounting to murder. Under if there are two kinds of punishments applying to two different circumstances:
(1) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life; or imprisonment of either description for a term which may extend to ten years and fine;
(2) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years or with fine, or with both.
If there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II.
41. Besides this, the contention of ld. Addl. PP for the State about presence of residues of rusks and biscuits, white til etc. on the body of deceased, there is FSL report Ex. C7. As per this report -
"The material from Exhibit-1, Exhibit-6, Exhibit-7 were examined SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 26 of 31 physically and under magnification using VISPEC, these were found to be similar in respect of colour, texture, microscopic appearance, solubility tests and under UV light."
No foreign material was found present in Exhibit-3(a), Exhibit- 3(b) and Exhibit-5."
42. Perusal of the said report is clear that Ex. 1 is plastic container sealed with the seal of 'SUBZI MANDI MORTUARY DELHI CMO I/CAAA GH' at one place stated to be containing the material of biscuit/rusk recovered from the shop counter; on opening material as stated was found and it was marked as Exhibit 1 in the laboratory. While Ex. 6 is stated to be one sealed plastic container sealed with the seal of GC-03 PS GEETA COLONY EAST DISTT' at one place stated to be containing the material of biscuit/rusk recovered from the shop counter; on opening material as stated was found and it was marked as Exhibit 6 in the laboratory. Said report is also clear to the aspect that Ex. 7 is one sealed plastic container sealed with the seal of GC-03 PS GEETA COLONY EAST DISTT' at one place stated to be containing the material of biscuit/rusk recovered from the Maurti van; on opening material as stated was found and it was marked as Exhibit 7 in the laboratory.
43. This report is clear and unambiguous that contents of articles of biscuits, white til etc recovered from counter/showcase and maruti van are of same as recovered from the body of the deceased.
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44. In case reported as Surjan Singh Vs. State, 2003 CrLJ NOC 233 (MP), it was observed that death was caused by an axe and iwas done in retaliation of an earlier incident between accused and deceased's son . Doctor confirmed the homicidal death and it was held that offence fell within four corners of Sec. 304 Part II IPC. Moreover, in another case reported as Sheikh Nurjehan Vs. State, 2004 CrlLJ 78 (AP), it was observed that the accused in a fit of anger had thrown a lighted lamp over the deceased. The plea of accused that he did the act in a fit of anger without any intention to do it was not accepted and his conviction under Section 304 Part II was held proper. Ini one of the cases reported as Hanuman Vs. State of Haryana, 1994 CrLJ2090 (SC), Hon'ble Apex Court observed that - accused had given a single blow on the head of the deceased with the blunt side of the axe, so his conviction was altered to Section 304 Part II IPC.
45. In case reported as Vinod Kumar & Abil Kumar Vs NCT of Delhi (2018 VIII AD (Delhi), Hon'ble High Court in para 43 of the said judgment clearly observed that:
"It has been repeatedly pointed out by the Supreme Court that in cases of circumstantial evidence the trial court should not succumb to the temptation of pronouncing the guilt of the accused without every link in the chain of circumstances being proved beyond reasonable doubt. Reference in this regard may be made to the SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 28 of 31 decision of the Supreme Court in Ramesh Vs. State of Rajasthan 2011 III AD (SC) 101 wherein it was opined as under:
.....It has to be borne in mind that this case depends upon circumstantial evidence and, as such, as per the settled law, every circumstance would have to be proved beyond reasonable doubt and further the chain of circumstances should be so complete and and perfect that the only inference of the guilt of the accused should emanate therefrom. At the same time, there should be no possibility whatsoever of the defence version being true."
46. With the above discussion and observation made court has come to the conclusion that prosecution has been able to prove its case against accused Mohd. Iliyas S/o Mohd. Mohsin beyond all reasonable doubts for the offence punishable under Sec. 304-II IPC and as such, accused Mohd. Iliyas S/o Mohd. Mohsin is held guilty and convicted for the offence punishable under Sec. 304-II IPC.
CHARGE UNDER SECTION 201 IPC:
47. Qua, charge under Sec. 201 IPC against accused Mohd. Iliyas SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 29 of 31 and Mohd. Ikrar for disposing of the body of deceased Master Faizan to disappear the evidence with the intention of screening Mohd. Iliyas from the legal punishment, as discussed and observed above, it was proved that accused Mohd. Iliyas has committed the offence punishable under Sec. 304-II IPC, and that body was deceased was found near Exit Gate, Taj Enclave wrapped in plastic bag, court has come to the conclusion that none-else would be responsible for disposing of body of child namely Faizan except the accused persons. Prosecution has also brought CDRs of accused persons who has admitted the same in their statement recorded under Sec. 294 CrPC. Accused persons admitted the same in their statement recorded under Sec. 294 CrPC. Discussion on this aspect has been made in the earlier paragraphs of the judgment.
48. With the above said discussion and circumstances, court is of the view that prosecution has proved its case beyond all reasonable doubts against accused persons Mohd. Iliyas and Mohd. Ikrar - both sons of Mohd. Mohsin for the charge under Section 201/34 IPC, framed against them. As such, accused persons Mohd. Iliyas and Mohd. Ikrar - both sons of Mohd. Mohsin are held guilty and convicted for the offence punishable under Sec. 201/34 IPC.
CONCLUSION:
49. Sum up of the above observations is that accused Mohd. Iliyas is acquitted of the offence punishable under Sec. 302 IPC, but held guilty and SC No. 1299/2016 State Vs. Mohd. Iliyas etc. Page No.: 30 of 31 convicted for the offence punishable under Sec 304-II IPC. Besides the above, accused persons namely Mohd. Iliyas and Mohd. Ikrar are held guilty and convicted for the offence punishable under Sec. 201/34 IPC.
Announced in the open Court SATINDER
Digitally signed by
SATINDER KUMAR GAUTAM
on 18th day of September, 2018 KUMAR GAUTAM Date: 2018.09.18 16:22:17
+0530
(Dr. Satinder Kumar Gautam)
Additional Sessions Judge-03 (East):
Karkardooma Courts: Delhi.
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