Delhi District Court
State vs Gulistan 1 Ors on 17 February, 2025
IN THE COURT OF SUSHANT CHANGOTRA
ADDITIONAL SESSIONS JUDGE (FTC)
EAST DISTRICT, DELHI
Session Case No.: 230/2016
State Vs : Gulistan & Anr.
FIR No. : 838/2015
U/s : 302/34 IPC
PS : New Ashok Nagar
CNR No.: DLET01-000161-2015
Date of Institution : 24.09.2015
Date of Judgment reserved on 27.01.2025
Date of Judgment : 17.02.2025
Brief Details Of The Case
Offence complained of or
proved : U/s 302/34 IPC
Name of the accused : (1) Gulistan
S/o Salim
R/o H. No. E-365, New
Ashok Nagar, Delhi
(2) Rizwan Saifi
S/o Sagir Ahmad
R/o Village Julena, P. S
Sardana, Distt. Meerut, U.P.
Plea of the accused : Pleaded not guilty
Final order : Both accused convicted
u/s 302/34 IPC.
FIR No. 838/2015 PS New Ashok Nagar
State Vs Gulistan & Ors. Page no. 1 of 52
JUDGMENT
1. In this case, accused Gulistan and Rizwan Saifi are facing trial on the allegations of having committed murder of Saleem S/o Sh. Yasin in furtherance of their common intention on the intervening night of 24/25.06.2015 in H.No. E-365, Third Floor, New Ashok Nagar, Delhi.
2. The brief facts of the case of prosecution as set out in the chargesheet are as follows:-
(a) On 25.06.2015 at 10:20 pm, telephonic information was received from control room at PS New Ashok Nagar whereby a lady had called the police at 100 number and had informed that her husband had died and his body had injury marks. The aforementioned information was recorded vide DD NO.16-A dated 25.06.2015 in PS New Ashok Nagar. The investigation was marked to SI Rajeev Gautam who alongwith Ct. Rakesh went to the spot i.e. E-365, New Ashok Nagar, Delhi.
Upon reaching at the spot, the aforementioned police officials found that lot of public persons were present there. Inspector Vijay Shrotiya alongwith ATO also reached at the spot.
(b) A dead body of a male person was found lying on a double bed kept in a front room of two bed room flat at the third floor of aforementioned H.No. E-365, Third Floor, New Ashok Nagar, Delhi. The head of deceased was towards the southern direction and his feet were pointing towards east.
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Fresh scratch marks were found around the neck of deceased and slight blood was found in the eyes of deceased.
(c) The police officials met Ms. Gulistan i.e. wife of deceased, his son Samir aged 11 years, daughter Sonam aged 5 months and another person namely Rizwan S/o Sagir Ahmed R/o Village-Jullera, Meerut, U.P. at the spot. Ms. Gulistan and Rizwan informed that Ms. Gulistan alongwith her husband Salim (deceased) and two children were residing in the aforementioned flat as tenants. Rizwan was a relative of Ms. Gulistan and he was also staying at the aforementioned flat for the last 3-5 months. All of them had fallen asleep after having dinner. The main gate of the house was locked from inside. At about 6:00 am, they found that Salim was lying dead on the bed.
(d) During enquiry, both the aforementioned persons failed to give any satisfactory reply to the queries of IO. In the meanwhile beat constable Kapil and ERV staff came to the spot. Crime team was also called at the spot, but their camera was not working due to which private photographer Mr. David was called and photographs of the spot were taken. Crime team inspected the spot. A burnt incense stick (Agarbatti) and broken pieces of glass bangle were found at the spot. There was no sign of any forcible entry inside the flat.
(e) SI Rajeev Gautam prepared inquest papers. The dead body was taken to LBS Hospital and was shifted to mortuary for postmortem. Dr. S. Lal conducted the postmortem FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 3 of 52 examination and informed the IO that the deceased had died as a result of Manual Strangulation. After the postmortem examination the dead body was handed over to Umaid Ali i.e. real brother of deceased Salim. The commission of offence u/s 302 IPC was disclosed and the FIR was registered.
(f) IO of the case examined the spot and prepared site plan. He seized the broken bangle found at the spot. The father of deceased namely Yasin S/o Sadiq gave a complaint i.e. DD no. 50B dated 25.06.2015 and alleged that Gulistan and Rizwan had committed murder of Salim. On 26.06.2015, IO recorded statements of Master Samir i.e. son of deceased Salim, father of deceased namely Yasin and brothers of deceased namely Umaid Ali and Nizamuddin.
(g) In his statement, Master Samir narrated the incident to the IO. He stated that Rizwan who was a distant relative of his mother was also residing with them for last eight months. His father used to consume liquor due to which altercations took place between his parents. His father used to fight with his mother upon seeing her talking to Rizwan and he also used to ask Rizwan to leave their house, but his mother did not let him go.
(h) On the night of 24/25.06.2015, he alongwith his younger sister Sonam went to sleep at about 10 PM in the outside room of the flat. His mother and Rizwan were also present in the same room. At about 1:30 AM, he got up upon FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 4 of 52 hearing noise and his mother and Rizwan were not present in the room. He realized that the noise was coming from the other room of their flat and he peeped inside the room of his father and saw that his mother was sitting on the abdomen of his father and Rizwan had caught hold of hands of his father and his mother was strangulating his father. He further stated that he got scared and his mother alongwith Rizwan had killed his father by strangulating him. His mother and Rizwan threatened to kill him by strangulating him if he disclosed the said facts to anyone. Thereafter, they locked him in the room in which his sister Sonam was sleeping. In the morning, his mother called their relatives and started crying upon the dead body of his father by latching on to it. He got scared due to which he did not tell anyone about the incident.
(i) In their statements, the father and brothers of deceased Salim stated that Gulistan was having extra marital relation with Rizwan due to which Salim used to fight with Gulistan. Rizwan was a distant relative of Gulistan and Salim regularly used to ask Rizwan to leave their house, but Gulistan would not let him go. Therefore, on 25.06.2015 Gulistan and Rizwan in furtherance of their common intention had committed murder of Salim by strangulating him.
(j) On 27.06.2015, IO received secret information about presence of accused Gulistan and Rizwan. Consequently, both of them were arrested. During interrogation both of them FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 5 of 52 confessed their crime. The IO also collected the call record of PCR call made with respect to the incident. He got the scaled site plan prepared and recorded statements of witnesses.
(k) On 21.08.2015, the viscera of deceased was deposited in FSL Rohini for examination. Statement of Master Samir u/s 164 Cr. PC was also recorded. Subsequently, the chargesheet was filed. Later on FSL report dated 23.09.2015 with respect to examination of viscera of deceased was filed by way of supplementary chargesheet.
3. The court of Ld. Metropolitan Magistrate took cognizance of the offences. After completion of necessary legal formalities u/s 207 Cr.P.C the case file was committed to the Court of Sessions. Pursuant to order of Ld. District & Sessions Judge, East, the matter was fixed for hearing on point of charge. Vide order dated 18.11.2015 charge u/s 302/34 IPC was framed against both the accused to which they pleaded not guilty and claimed trial.
4. In order to establish its case, prosecution examined 24 witnesses. A brief account of the depositions made by the prosecution witnesses is reproduced herein below:-
Evidence of Eye-Witness:
5. Prosecution examined PW-1 Master Sameer. He deposed that he alongwith his parents and younger sister Sonam was residing at E-365, New Ashok Nagar, Delhi. One Rizwan who was distant relative of his mother was also residing in the FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 6 of 52 said house for about 8 months prior to the incident. In the intervening night of 24/25.06.2015 at about 1:30 am, he woke up and saw that his mother Gulistan was sitting on the stomach of his father Salim and Rizwan was holding legs of his father. He saw that Gulistan was strangulating his father with her hands.
His mother saw him there and she threatened him not to disclose this to anyone or else she would also kill him similarly. Rizwan also threatened him in the same manner. Thereafter, he went to his room and closed the door and slept with his sister. In the morning, he woke up and saw that his mother was saying that his father was not waking up. Many persons came to their house and police came there as someone had called the police. His mother started crying by embracing their relatives and she pretended that she was in deep sorrow due to death of his father. He also stated that though his mother was weeping, but he knew that she was only pretending. He believed that his mother killed his father either for money or for Rizwan.
The witness further deposed that his father used to ask his mother to send Rizwan from their house, but she did not allow Rizwan to go and rather used to quarrel with his father. He identified both accused in the court. He also identified clothes of his father i.e. one cream colour shirt and one pant of dark gray colour.
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He also deposed that on 14.09.2015 he had come to the court and his statement u/s 164 Cr. PC Ex. PW1/A was recorded.
Evidence of Other Relatives of Deceased:
6. PW-3 Yasin (father of deceased), PW-4 Nizamuddin and PW-5 Umed Ali (brothers of deceased) deposed that Saleem was residing in the area of Ashok Nagar, Delhi with his wife Gulistan and their two children Sameer and Sonam. One Rizwan who was relative of Gulistan also used to reside with them. On 25.06.2015, Manoj telephonically informed them that Saleem had died. They immediately rushed to Delhi. They came to know that Gulistan and Rizwan were having illicit relationship and they had committed murder of Saleem. The said facts were disclosed to them by Sameer. Earlier Saleem had also told them that Gulistan was having illicit relationship with Rizwan and he tried to throw Rizwan out of the house, but Gulistan did not agree. They also tried to make Gulistan understand regarding her illicit relationship, but she did not listen to them.
They further deposed that after postmortem examination dead body of Saleem was handed over to them vide memo Ex. PW4/A. They took dead body to their Village Nagla Mal and last rites were performed. They correctly identified both accused.
Evidence of Other Public Witnesses:
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7. PW-6 Ashok deposed that he was the owner of house bearing no. E-365, New Ashok Nagar which was constructed upto 3rd Floor. Salim was his tenant in the said house and he was residing with his wife and children. He used to collect rent from deceased Salim or from his family through one boy namely Kanchan.
8. PW-7 Manoj Kumar deposed that he used to visit house of Saleem and he was residing there with his wife Gulistan. He had also seen Rizwan there. At that time, accused Rizwan was doing the work of carpenter in the area of New Ashok Nagar near Vasundhara Enclave. There was quarrel between deceased Saleem, his wife/accused Gulistan and accused Rizwan. Deceased Saleem had told him that he was not able to bear expenses of house as accused Rizwan was residing with him in said house. At that time, deceased Saleem was doing work of car repairing with him at his garage at Samastpur, Pandav Nagar. Delhi. Deceased Saleem used to meet him daily at his garage and they also used to talk about personal issues.
He further deposed that on 25.06.2015, between 6.00/ 6.30 am, he received a phone call from accused Gulistan and she told him that Saleem was not getting up and asked him to come. After about an hour, he alongwith his wife Smt. Babita Devi, his brother in law Vinod and his friend Anil went to the house of Saleem. Saleem was lying on his bed in his room. He noticed nail marks/injuries on the neck of Saleem and it seemed FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 9 of 52 that he was dead. Gulistan, her two children namely Master Sameer & Baby Sonam and accused Rizwan were present there. He also stated that upon receiving phone call he had sent his brother in law and wife to the house of deceased Saleem as he was busy in Yoga Class. Later on he also went to the house of Saleem with his friend. Relative of deceased Saleem from the parental side were not present there. Accused Gulistan gave phone number of her in laws to him and he called them from his mobile no. 9810941314. He also stated that about 20-25 neighbours/ public persons had also gathered there. Thereafter, within two and half hour of his call, two brothers of deceased and 5-6 other persons also came there. Someone called police at 100 number. Police officials came to the spot and inspected the deadbody of Saleem.
He was cross-examined by ld. Addl. PP for the State. In the said cross-examination, the witness deposed that deceased Saleem alongwith his family was residing in H. No. E-365, New Ashok Nagar on rent and Rizwan had also started residing in the aforesaid house for the last 7-8 months. He also admitted the suggestions that accused Rizwan was in relation of accused Gulistan and deceased Saleem was disturbed on account of the fact that accused Rizwan was residing with his family. He also admitted that deceased used to tell him that he used to ask Rizwan to leave his house.
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9. PW-13 David Kumar deposed that on 25.06.2015 at about 10 AM, he saw a crowd outside House No. E-365, New Ashok Nagar. On inquiry, he came to know that dead body of a person named Salim was lying at third floor of the said house. He went to the third floor and saw that dead body of a man was lying on the double bed in the room situated in front of staircase. He saw fresh nail scratches on the neck of the deceased. Broken bangles were lying on the floor of the room. He did not find forceful entry of any person in the said house. Besides accused Gulistan (wife of deceased Salim) and her children accused Rizwan was present in the flat. He got suspicious and called police at number 100 from his mobile phone no. 9990005057 and. At his instance, accused Gulistan also talked to the police, but while talking she was perplexed.
He further deposed that after sometime, SI Rajiv Gautam alongwith police staff came to the spot. On the direction of SI Rajiv Gautam, he took photograph of the place of incident from different directions with his digital camera. Crime team officials inspected the spot. SI Rajiv Gautam conducted some writing work and sent dead body to Mortuary, LBS Hospital. Later on, he handed over 15 photographs of crime scene to the IO which are Ex.PW13/A1 to PW13/A15.
Formal Witness-
10. PW-11 Ms. Neha Paliwal, the then ld. MM deposed that on 14.09.2015 an application Ex. PW11/A was put up before FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 11 of 52 her with request of recording statement of witness Sameer. The witness was produced before her and he was identified by SI Vipin vide statement Ex. PW11/B. Thereafter, she recorded statement of witness Sameer i.e. Ex. PW11/C and also issued certificate Ex. PW11/D regarding correctness of the proceedings. Medical Evidence-
11. PW-8 Dr. Manoj deposed that on 25.06.2015 at about 12:05 P. M he examined Salim S/o Yasin aged about 35 years. He was brought to the causality by Ct. Rakesh with alleged history of "found dead in his house with some injuries ". After examining the body, he declared the patient brought dead and shifted the body to mortuary. He observed multiple linear abrasions over neck of the body. He prepared his MLC no. 9289 Ex. PW8/A. Expert Evidence-
12. PW-9 Dr. S. Lal, HOD and Specialist, Forensic Medicine deposed that on 25.06.2015 he had conducted postmortem examination on the body of deceased Salim S/o Yasin and prepared his detailed report Ex. PW9/A. Blood and viscera were preserved in common salt solution to rule out any intoxication. Blood was soaked in gauze piece. All clothes worn by the deceased were preserved. All items were sealed with the seal of LBSH/DFMT and the same alongwith sample seal were handed over to police officer. He further deposed that time since death was about 12-18 hours. The cause of death was FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 12 of 52 Asphyxia due to ante mortem manual strangulation and was sufficient to cause death in ordinary course of nature. All injuries were ante mortem in nature and fresh in duration. Injuries no. 1 to 4 and injuries no. 6 to 14 were caused by nails and injuries no. 5, 15 and 17 were caused by blunt force impact.
13. PW-12 M. L. Meena, Sr. Scientific Officer (Chemistry) deposed that on 21.08.2015 one sealed wooden box with forwarded letter was received in FSL. He examined the same and gave his report Ex. PW12/A. During examination, articles 1A, 1B and 1C were found to contain Ethyl Alcohol and Ex. 1C was found to contain Ethyl Alcohol 95.9 mg/100 ml of blood.
Police Witnesses-
14. PW-2 Insp. Mahesh Kumar i.e. draftsman deposed that on 19.08.2015 at the request of Insp. Vijay, SHO of PS New Ashok Nagar he went to the third floor of house no. E-365, New Ashok Nagar and took rough notes and measurements of the crime scene. He also stated that on 07.09.2015, he prepared scaled site plan Ex. PW2/A on the basis of above-said rough notes and measurements and he handed over the same to IO.
15. PW-10 SI Sanjay Saxena deposed that on 25.06.2015 on receipt of information from wireless set, he alongwith Ct. Ravinder and Vikas went to the spot i.e. E-365, 3 rd Floor, New Ashok Nagar and met IO and other police officials. He inspected the spot and prepared his report Ex. PW10/A. FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 13 of 52
16. PW-14 Insp. Gayatri Daspa deposed that on 25.06.2015 at about 10:03:42 hours a call was received from mobile no. 9990005057. On 23.07.2015, he issued certificate Ex. PW14/A.
17. PW-15 Ct. Rakesh deposed that on 25.06.2015 on receipt of DD No. 16A, he alongwith IO SI Rajiv Kumar Gautam went to 3rd floor of house no. E-365, New Ashok Nagar, Delhi. A dead body was lying on a double bed in a room (of a two room flat) of said house. There were scratches on the neck of body. They met Mrs. Gulistan wife of Saleem, her children i.e. Samir aged about 11 years and Sonam aged about 5 months and Rizwan son of Shagir. Gulistan told them that on the night of 24.06.2015 deceased Salim had retired to his bed at about 10:00/11:00 P.M after taking dinner and he had closed the door from inside. On 25.06.2015 at about 06:00 A.M she found that her husband Salim was dead. After sometime, Ct. Kapil alongwith ERV staff came to the spot. SHO/Inspector Vijay Shrotriya also reached there. SI Rajiv Gautam made a call to Crime team but due to malfunction of their camera and heavy rainfall they could not come on time. Private photographer David was called at the spot and photographs of the spot were taken from different angles. He alongwith IO took the dead body of Salim to mortuary of LBS hospital for postmortem examination. Dr. S Lal conducted postmortem examination and handed over blood gauze and clothes of the deceased alongwith sample seal of the hospital to the IO. The articles were duly sealed with the seal of LBSH DFMT. Same was seized by IO FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 14 of 52 vide memo Ex. PW15/A. Doctor also handed over viscera in the wooden box alongwith sample seal of the hospital to the IO. He seized it vide memo Ex. PW15/A1. Dead body of Saleem was identified by his relatives namely Nizamuddin and Umed Ali vide memos Ex. PW15/B and Ex. PW15/C. The body was handed over to them vide memo Ex. PW4/A. SHO Insp. Vijay Shrotiya had discussion with doctor and thereafter IO SI Rajiv made endorsement on DD no. 16A and prepared rukka. IO handed over rukka to him for registration of FIR. He went to PS and got the FIR registered. He came back to the spot and handed over copy of FIR and original rukka to IO.
In his cross-examination conducted by ld. Addl. PP for the State, the witness admitted that fresh nail scratch marks were present on the neck of deceased. They also came to know that accused Rizwan was also residing in the flat of Saleem and Gulistan for last 4-5 months. The used 'Agarbati' and broken bangles were also found in the flat and there was no sign of forcible entry inside the flat. Dr. S Lal gave opinion regarding cause of death as manual strangulation. He identified both accused present in the court.
18. PW-16 HC Prempal Singh i.e. duty officer deposed that on 25.06.2015 at about 18:45 hours on receipt of rukka from Ct. Rakesh he got the FIR recorded. He proved copy of FIR Ex. PW16/A and endorsement on rukka Ex. PW16/B. He also issued certificate u/s 65-B of Indian Evidence Act Ex. PW16/C. After registration of FIR he handed over the copy of FIR and FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 15 of 52 original rukka to Ct. Rakesh for handing it over to Insp. Vijay Shrotiya.
19. PW-17 Ct. Kapil deposed that on 25.06.2015 as per directions of senior officials, he reached the spot i.e. 365, 3 rd Floor, E Block, New Ashok Nagar and met SI Rajiv Gautam and other staff. One dead body was lying there and it was sent for postmortem examination. He was directed to remain at the spot for safeguarding the scene of crime. At about 6:30 pm, Insp. Vjay Shrotiya came back to the spot and inspected the scene of crime. He noticed pieces of bangles (red colour) and it was seized with seal of NAN-01 PS New Ashok Nagar. Seal was handed over to him after its use.
20. PW-18 HC Sandeep Baliyan deposed that on 27.06.2015 at about 9.00 am, he alongwith SHO Insp. Vijay Shrotiya, SI Vipin and L/Ct. Sunita reached near Old Police station in search of accused persons. IO met a secret informer who told that accused persons would come to House No. E-365, New Ashok Nagar for taking their belongings. SHO requested 4-5 passersby to join the raiding party but no one agreed. Thereafter, informer also left the spot. They all went to the area near E-365, New Ashok Nagar and concealed themselves by the side of that house and started waiting for the accused persons. After sometime, they saw that a lady alongwith one male went towards the stairs of E-365, New Ashok Nagar. Both the said persons were apprehended at the instance of IO. SHO inquired from the apprehended persons and they disclosed their names as Gulistan W/o Saleem and Rizwan.
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IO recorded disclosure statement of accused Gulistan i.e. Ex.PW18/A. Thereafter, she was arrested vide memo Ex.PW18/B and her personal search was conducted by W/Ct. Sunita. In her personal search, five glass bangles of red colour and Rs.45/- were recovered. IO also recorded disclosure statement of accused Rizwan i.e. Ex. PW18/C. Accused Rizwan was arrested vide memo Ex. PW18/D and his personal search was conducted vide memo Ex. PW18/E. The witness identified both accused in the court.
21. PW-19 ASI Shaji John deposed that on 21.08.2015 on the instructions of IO, he deposited sealed wooden box in FSL, Rohini. He obtained the receipt i.e. PW19/A. He also deposed that the case property was not tampered in any manner till it remained in his custody.
22. PW-20 SI Vipin Kumar deposed that on 27.06.2015 at about 9.00 am, he alongwith IO Insp. Vijay Shrotiya, HC Sandeep and W/Ct. Sunita reached Old PS New Ashok Nagar. IO got secret information regarding accused persons. Thereafter, all of them alongwith informer went to H.No. E-365. New Ashok Nagar. After some time, they apprehended accused persons namely Gulistan and Rizwan Saifi at the instance of secret informer. Thereafter, IO arrested both the accused persons vide arrest memos Ex.PW18/B and PW18/D. Personal search of accused Rizwan was conducted vide memo Ex.PW18/E and personal search of accused Gulistan was conducted by W/Ct. Sunita. IO recorded their disclosure statements Ex.PW18/C and FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 17 of 52 PW18/A. Both accused persons were medically examined at LBS Hospital.
He further deposed that on 14.09.2015, the abovesaid case file was marked to him by the SHO for further investigation. He went to KKD. Courts and met one child namely Sameer alongwith his relatives. He produced the said child before the court for recording of his statement u/s 164 Cr.PC. He obtained copy of the said statement. He also identified both accused in the court.
23. PW-21 W/HC Sunita deposed that on 25.06.2015 she alongwith IO Insp. Vijay Shrotiya, SI Vipin and HC Sandeep reached in the area of New Ashok nagar in search of accused persons. One secret informer met IO and informed about the accused persons Gulistan and Rizwan. Thereafter, IO constituted a raiding party. IO asked 4-5 public persons to join the raiding party but none of them agreed. Thereafter, they took their positions around H.No. E-365. After waiting for 5-10 minutes, at the instructions of IO accused persons were apprehended and she had apprehended accused Gulistan. IO recorded disclosure statement of accused i.e. Ex. PW18/A and also recorded disclosure statement of accused Rizwan. Accused Gulistan was arrested by IO vide arrest memo Ex.PW18/B and she conducted her personal search vide memo Ex.PW21/A. IO also arrested accused Rizwan and conducted his personal search. During personal search of accused Gulistan, five red colour glass bangles and Rs.45/- cash were recovered from her possession. She identified both accused in the court.
FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 18 of 52 24. PW-22 SI Rajeev Gautam deposed that on
25.06.2015 at about 10.20 am on receipt of DD no.16-A Ex.PW22/A, he alongwith Ct. Rakesh reached at the spot i.e. H.No. E-365, 3rd Floor, New Ashok Nagar and found dead body of a male person. The head of dead body was towards south and legs were towards north side. Accused Rizwan and Gulistan were present at the spot. Two children were also present there with accused Gulistan. In the meantime, ATO Insp. Vijay Kumar and SHO NAN also came at the spot. Some broken bangles were found in the room where dead body was lying. He inspected the dead body and found the eyes of dead body were red. He also found fresh injuries on the neck of the dead body. During inquiry, he came to know the name of deceased was Saleem and he was husband of accused Gulistan. He called crime team at the spot. Later on he came to know that camera of crime team official was not in working condition, therefore, he called private photographer namely David at the spot who took photographs of the spot. Crime team also inspected the spot and handed over report to him. Thereafter, on the instructions of SHO dead body was sent to mortuary of LBS hospital through Ct. Rakesh. He also reached LBS Hospital and prepared rukka Ex.PW22/B on the abovesaid DD and handed over the same to Ct. Rakesh for registration of FIR. He also conducted inquest proceedings prior to the postmortem. After postmortem examination, the concerned doctor handed over two sealed parcels containing blood sample and viscera box duly sealed with the seal of hospital. He took the same into possession vide FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 19 of 52 seizure memos Ex. PW15/A and Ex. PW15/A1. The dead body was identified by Nizamuddin and Umed Ali vide their statements Ex.PW15/B and PW15/C respectively. After postmortem examination, dead body was handed over to its relatives vide handing over memo Ex.PW4/A. Thereafter, he returned back to the spot and Ct. Rakesh handed over copy of FIR and original tehrir to Insp. Vijay. IO Insp. Vijay collected broken glass bangles from the spot and kept it in a white paper which was sealed with the seal of NAN 01 PS New Ashok Nagar, East District. IO also prepared seizure memo Ex.PW22/C. They all returned back to PS and case property was deposited in the Malkhana. He identified both accused in the court and also identified the case property i.e. pieces of glass bangles Ex. PW22/Article-1.
25. PW-23 ASI Ramesh Chand deposed that on 25.06.2015 at about 5:50 pm Yasin came to PS and gave a written complaint Ex. PW23/B regarding deceased Saleem. The said complaint was handed over to SI Rajiv Gautam for taking necessary action. He recorded DD no. 50-B i.e. Ex. PW23/A regarding receiving of above-said complaint. Evidence of Investigating Officer-
26. PW-24 Insp. Vijay Shrotiya deposed that on 25.06.2015 on receipt of DD no. 16-A (which was marked to SI Rajiv) he went to the spot i.e. H.No. E-365, 3 rd Floor, New Ashok Nagar and found that many persons were present there. The above-said house consisted of a two bed-rooms and one FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 20 of 52 kitchen. He entered the room which was connected with kitchen of said flat/house. The area of the kitchen was extended to the lobby and he saw a dead body of man on the double bed without mattress inside that room. The head of dead body was towards south and legs were pointing towards north. He inspected the dead body and noticed fresh nail marks around its neck. He checked eyes of dead body and found some blood in it. During inquiry, they came to know the name of deceased was Saleem. He also met Gulistan i.e. wife of deceased, her children namely Sameer (aged about 11 years) and Sonam (aged about 5/6 months). He also met Rizwan who was relative of Gulistan. He came to know that the said house was a rented accommodation and above-said Rizwan was residing with the family of Gulistan for the last 4-5 months. Both Gulistan and Rizwan stated that after taking their meals, all of them went to sleep inside the said flat and house was locked from inside. They woke up at 6.00 am and found that Saleem was dead. Both of them did not give any satisfactory reply. In the meantime, Ct. Kapil alongwith ERV Staff and crime team also came at the spot. Camera of the photographer of crime team was not working properly due to rain. He called private photographer at the spot and he took 15 photographs of the crime scene. After inspection, crime team officials prepared report and handed over the same to SI Rajiv. One burnt Agarbatti/ incense stick and some broken glass bangles were found on the floor. He also noticed that there was no sign of forcible outside entry in the said house. At his instructions, SI Rajiv conducted inquest proceedings and dead FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 21 of 52 body was shifted to emergency of LBS Hospital by Ct. Rakesh. It was later on shifted to the mortuary for postmortem examination. He also went to the hospital and Ct. Kapil remained at the spot. Postmortem examination of the dead body was conducted and dead body was handed over to Umed Ali i.e. brother of deceased. After postmortem examination, the concerned doctor informed him that the cause of death was manual strangulation. Case was got registered on said DD entry by SI Rajiv Gautam.
He further deposed that after registration of FIR, he took up further investigation. He returned back to the spot and collected the exhibits i.e. broken pieces of glass bangles and kept them in envelope and sealed the envelope with seal of NAN-01 PS New Ashok Nagar East District. He took them into possession vide seizure memo Ex.PW22/C. He prepared site plan Ex.PW24/A and recorded statements of crime team officials, private photographer namely David and Ct. Kapil. He returned back to PS and exhibits were deposited in the Malkhana. He recorded statements of SI Rajiv and Ct. Rakesh. On the same day, father of the deceased gave an application with respect to incident i.e. Ex. PW23/B and it was registered vide DD no.50-B. On 26.06.2015, relatives of deceased including son of deceased namely Sameer, father of deceased namely Yasin, his brothers i.e. Umed Ali and Nizamuddin came to PS and he recorded their statements u/s 161 CrPC. He sent official to visit the house of deceased for calling both Rizwan and Gulistan, but FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 22 of 52 they were not found there. Initially he was informed that they were going to participate in the cremation of deceased but he came to know that they did not join in the cremation as well.
On 27.06.2015, he alongwith SI Vipin, HC Sandeep, L/Ct. Sunita proceeded for further investigation of the case and they reached near Old Police Station building of New Ashok Nagar and he met a secret informer. He constituted a raiding party consisting of above-said officials and reached near the house of accused persons alongwith secret informer. He asked 4-5 neighbours/passersby to join the proceedings but no one agreed. They went to house of accused persons at about 9.30 am. After some time, both accused were arrested vide arrest memos Ex.PW18/B and PW18/D. Personal search of accused Gulistan was conducted by L/Ct. Sunita vide memo Ex.PW21/A and personal search of accused Rizwan was conducted vide memo Ex.PW18/E. One purse containing some cash and mobile phones were recovered during personal search of accused Rizwan. He recorded their disclosure statements Ex.PW18/A and PW18/C. After their medical examination, both accused were produced before the court and were remanded to J/C. During investigation, he sent the exhibits to FSL. The witness Sameer was taken to the court by SI Vipin for purpose of recording of his statement u/s 164 Cr.PC. He also collected report from FSL and PCR form Ex.PW24/B alongwith Certificate u/s 65B of Indian Evidence Act from police Head Quarter. He also collected photographs from the private photographer. During investigation, he got the scaled site plan FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 23 of 52 i.e. Ex. PW2/A prepared through SI Mahesh. He identified both accused in the court. He also identified case property i.e. broken pieces of bangles Ex.PW22/Article-1 (colly).
27. Statement of Accused U/s 313 Cr. PC:
28. In their separate statements both accused denied all the incriminating evidence. Accused Gulistan took a plea that on the intervening night of 24/25.06.15, she was not present at the house where incident had taken place. She had already left the said house on 22.06.2015 with her daughter Sonam after a quarrel took place between her and her deceased husband. She went to her parent's house at Vill. Fafunda, Distt. Meerut, U.P. On 27.06.2015 upon completion of last rites of deceased Saleem as she was returning with her mother, police arrested her at Anand Vihar ISBT and she was falsely implicated in this case.
29. Accused Rizwan took a plea that he had been falsely implicated in this case. He stated that PW-1 Master Sameer was a tutored witness and he had levelled false allegations against him at the instance of his family members. Statement of PW Master Sameer was recorded after few days from the date of incident. He was not residing in the house of accused Gulistan where alleged incident had taken place. In fact, one Intezar (relative of accused Gulistan) was residing in said house at the time of incident and police had let him free and falsely implicated him in this case at the place of said Intezar.
30. Both accused opted to lead defence evidence.
FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 24 of 52 Defence Evidence:
Defence Witnesses examined by accused Rizwan-
31. Accused Rizwan examined DW-1 Sh. Sonath Singh Tyagi. He deposed that he knew accused Rizwan as his grandfather was working as carpenter in his house. On 24.06.2015, accused Rizwan came to Village Juledha in the evening and stayed there till afternoon of 26.06.2015. On 26.06.2015, accused Rizwan received information regarding a murder of present case from Village Dhadhera, Distt. Meerut, U.P. and he went to Delhi on receipt of said information. On 27.06.2015, the SHO of PS New Ashok Nagar called the grandfather of the accused Rizwan while he was at his house and informed him that unless he comes to Delhi and meets him, he would implicate Rizwan in the present case. During conversation with SHO, Rizwan's grandfather handed over the phone to him. He told the SHO that they were not coming to Delhi to meet him and he could do whatever he deemed fit. He also informed the SHO that Rizwan had stayed in his house from 24.06.2015 to 26.06.2015. However, SHO did not release accused Rizwan from his custody and falsely implicated him in this case.
32. Accused Rizwan himself stepped into the witness box. He deposed that on 23/24.06.2015 he went to his native village Gram Juledha, PO Sardhana, Distt. Meerut and remained there for three days. He also worked as helper alongwith his FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 25 of 52 grandfather who was carpenter and at that time he was working at the house of Sonath Tyagi. He received a telephon call from PS New Ashok Nagar on his mobile phone. Police official told him to come to PS for inquiry in some matter. He came to Delhi and went to the PS on 26.06.2015 at about 3.00-4.00 pm. Initially police made inquiries from him about the present case. He was beaten by police and his little finger was also fractured. Police did not release him and he was detained in PS. Thereafter, he was arrested by police and falsely implicated in this case on 27.06.2015. He never visited flat of accused Gulistan, but he was taken to said place by the police after his arrest and police took him back from said flat. One relative of accused Gulistan namely Intezar was residing in said flat before the incident. Police did not interrogate Intezar in his presence. Intezar was the resident of Vill. Thadra, PS Rohta, Distt. Meerut and was working as carpenter in Delhi. He had been falsely implicated in this case by the police.
33. DW-3 Sh. Rahishu deposed that accused Rizwan was brother of his brother in law (behnoi) namely Irfan. He met accused Rizwan in the marriage of his sister namely Rahisa. Javed was his brother in law and he never introduced Javed to accused Rizwan.
34. DW-4 Mohd. Irfan deposed that on 24/25.06.2015 he was present in his house at village-Julera. His brother Rizwan was also present in the aforementioned house on that FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 26 of 52 day. His brother Rizwan was carpenter by occupation and on the aforementioned dates he was doing job work in the adjoining house. 5/6 police officials came to their village and arrested him.
Defence Witnesses examined by accused Gulistan-
35. Accused Gulistan examined her mother i.e. Ms. Anwari. She deposed that her daughter Gulistan was married with Saleem who was residing at New Ashok Nagar, Delhi. She came to know about death of said Saleem three days after his death. At the time of death of Saleem, her daughter Gulistan was residing with her. On receiving information about death of Saleem, she came to the house of Saleem along with her daughter and then last rites of said Saleem were performed at village Nangla, Distt. Meerut at about 11 p.m. She left Gulsitan at her matrimonial house. Later on Guilstan was implicated in this case at the instance of her in-laws. When Gulistan came to her house prior to death of said Saleem, she was accompanied with her seven months old daughter. Her daughter Gulistan used to visit her several times.
Arguments:
36. I have heard the oral final arguments advanced by ld. Addl. Public Prosecutor for the State as well as by ld. Defence counsels. I have also gone through the written arguments filed by ld. counsel for accused Rizwan.
37. Ld. Addl. PP for the State has argued that the allegations against both accused have been proved beyond FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 27 of 52 reasonable doubt. Testimony of PW-1 master Sameer is totally reliable. It is well supported by depositions of PW-3 Yasin, PW-4 Nizamuddin, PW-5 Umed Ali, PW-7 Manoj Kumar and PW-13 David Kumar. The postmortem report of deceased Ex. PW9/A shows that the deceased was murdered by way of manual strangulation. Hence, guilt of both accused has been proved beyond doubt and they may be convicted for commission of offences u/s 302/34 IPC.
38. On the other hand, ld. defence counsel for accused Gulistant vehemently argued that she has been falsely implicated in this case. Accused was not present at the place of incident on the date of alleged incident. The testimony of PW-1 Master Saleem shows that he is a tutored witness. The prosecution has alleged that accused Gulistan was present at the spot on the next morning, whereas, she had gone to stay at her mother's residence about two days prior to the death of Saleem. As per case of prosecution, the call at 100 number was made by photographer i.e. PW-13 David Kumar, but DD no. 16 A shows that the call was made by wife of deceased i.e. accused Gulistan. The prosecution has not been able to connect the mobile number from which call was made with accused Gulistan. As per IO Insp. Vijay Shrotiya he had called the photographer at the spot, however, as per DW-13 David Kumar he had himself reached at the spot. DW-2 Smt. Anwari also deposed that accused Gulistan was present at her house in Village Nangla, Distt. Meerut on the day of incident. The prosecution has alleged that they came to know about involvement of accused FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 28 of 52 from the complaint given by father of deceased namely Yasin, but perusal of said complaint Ex. PW23/B shows that it does not bear his signature. He further argued that accused Gulistan and Rizwan are shown to have been arrested from the street near the place of incident on 27.06.2015. The arrest memo of accused Gulistan Ex. PW18/B shows that she was arrested at 10:15 AM, whereas, arrest memo of accused Rizwan i.e. Ex. PW18/D shows that he was arrested on 27.06.2015 at 10:25 PM. Thus, the entire investigation of the case is faulty and it has been manipulated to falsely implicate both accused persons. Therefore, the benefit of doubt may be given to accused Gulistan and she may be acquitted.
39. The ld. counsel for accused Rizwan orally argued that accused has been falsely implicated. PW Master Sameer is a tutored witness. PWs Yasin, Nizamuddin and Umed Ali are interested witnesses and their depositions are based on hear-say evidence. Ld. defence counsel also filed written arguments wherein it is argued that as per FIR, accused Rizwan was present at the spot and he failed to give satisfactory answers and there is no explanation as to why police did not arrest him at the same time. The delay in arrest of accused has not been explained and it is inconsistent with the contents of FIR and chargesheet. PW-6 i.e. owner of the flat did not support the prosecution version that accused Rizwan used to live with deceased and accused Gulistan. The prosecution has not been able to establish motive of commission of crime. The prosecution has propounded a theory that accused Rizwan and Gulistan were involved in illicit FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 29 of 52 relationship and deceased used to object to it, but no previous complaint was given by anyone in that regard. As per chargesheet the death of deceased was due to manual strangulation, but postmortem report shows 17 multiple marks on body of deceased. There is no evidence to establish finger marks or nail marks of either of accused on the body of deceased. The statement of master Sameer is contradictory qua the exact role played by accused Rizwan in the commission of offence. Mere statement of PW-1 Master Sameer is not sufficient to establish guilt of accused. There is no CCTV footage of the incident nor any other independent witness was examined to show involvement of accused.
40. It is also argued that DW-1 Somnath Singh categorically deposed that on the day of incident accused Rizwan was present in village Dhadhera, Distt. Meerut, UP. Accused Riwan also stepped into the witness box and his brother DW-5 Md. Ifran also narrated the same facts and their testimonies have gone unrebutted. In support of aforesaid arguments, emphasis has been laid down on the following judgments:
(i) Sagar Dinanath Jhadhav Vs. State of Maharashtra, 2018 BOM 987;
(ii) Ashok Verma Vs. State of Chhattisgarh, 2024 INSC 1011;
(iii) Ritesh Chakravarti Vs. State of Madhya Pradesh AIR Online 2006 SC 87; & FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 30 of 52
(iv) Satish Vs State of U.P. decided by Hon'ble Allahabad High Court on 21.09.2024.
Thus, it is argued that accused Rizwan may also be acquitted.
Appreciation of Evidence vis-a-vis Allegations of Commission of Offences by Accused Persons:
41. I have considered the submissions and combed through evidence on record very carefully.
42. At the outset, it is required to be noted that section 101 of Indian Evidence Act 1872 mandates that the burden of proving existence of any fact lies on the party which desires that a court should give a judgment on the basis of existence of the said facts. The provision of the section 101 of the Indian Evidence Act is reproduced below in this context:-
"101. Burden of proof - whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Therefore, it can be safely concluded that it is the duty of prosecution to prove its case beyond reasonable doubt by examining reliable witnesses.
43. In the present case both accused i.e. Gulistan and Rizwan are facing charge on the ground that they had committed murder of deceased Salim in furtherance of their common FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 31 of 52 intention by manually strangulating him on the intervening night of 24/25.06.2015 in the house bearing no. E-365, 3 rd Floor, New Ashok Nagar, Delhi.
44. At first, the prosecution was under obligation to prove that death of deceased was homicidal. The prosecution has examined PW-9 Dr. S. Lal who has proved postmortem examination report of deceased Saleem as Ex. PW9/A. As per said report, the deceased had 15 injuries in the form of abrasions, scratches, bruises with nail marks around his neck region and he had two abrasions on the right elbow. The cause of death of Saleem was found to be "Death due to asphyxia due to ante mortem manual strangulation and it was sufficient to cause death in ordinary course of nature." Thus, the prosecution has proved beyond reasonable doubt that deceased Saleem died as a result of manual strangulation.
45. The case of prosecution revolved around testimony of eye witness of the incident i.e. son of deceased and accused Gulistan namely Master Sameer. He was about 11 years of age at the time of incident.
46. The law with respect to appreciation of evidence of child witness and its evidentiary value is well settled. In Yogesh Singh vs. Mahabeer Singh, MANU/SC/1349/2016 : (2017) 11 SCC 195, Satish vs. State of Haryana, MANU/SC/1586/2017 :
(2018) 11 SCC 330 and State of Madhya Pradesh vs. Ramesh, MANU/SC/0255/2011 : (2011) 4 SCC 786, the Hon'ble Supreme Court culled out the following principles, regarding the FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 32 of 52 treatment of the evidence of child witnesses and the value to be attached thereto. It is as follows:
(i) There is no absolute principle, to the effect that the evidence of child witnesses cannot inspire confidence, or be relied upon.
(ii) Section 118 of the Indian Evidence Act, 1872 discounts the competence, of persons of tender age, to testify, only where they are prevented from understanding the questions put to them, or from giving rational answers to those questions, on account of their age.
(iii) If, therefore, the child witness is found competent to depose to the facts, and reliable, his evidence can be relied upon and can constitute the basis of conviction.
(iv) The Court has to ascertain, for this purpose, whether (a) the witness is able to understand the questions put to him and give rational answers thereto, (b) the demeanour of the witness is similar to that of any other competent witness, (c) the witness possesses sufficient intelligence and comprehension, to depose, (d) the witness was not tutored, (e) the witness is in a position to discern between the right and wrong, truth and untruth, and (f) the witness fully understands the implications of what he says, as well as the sanctity that would attach to the evidence being given by him.
(v) The presumption is that every witness is competent to depose, unless the court considers that he is prevented from doing so, for one of the reasons set out under Section 118 of the Indian Evidence Act, 1987. It is, therefore, FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 33 of 52 desirable that judges and Magistrates should always record their positive opinion that the child understands the duty of speaking the truth, as, otherwise, the credibility of the witness would be seriously affected, and may become liable to rejection altogether.
(vi) In as much as the Trial Court would have the child before it, and would be in a position to accurately assess the competence of the child to depose, the subjective decision of the Trial Court, in this regard, deserves to be accorded due respect. The appellate court would interfere, therewith, only where the record indicates, unambiguously, that the child was not competent to depose as a witness, or that his deposition was tutored. Twin, and mutually opposing, considerations, have to be borne in mind, while ascertaining the competency of a child witness to justify. On the one hand, the evidence of the child witness has to be assessed with caution and circumspection, given the fact that children, especially those of tender years, are open to influence and could possibly be tutored. On the other hand, credibility is attached, to the evidence of a competent child witness, as children, classically, are assumed to bear no ill-will and malice against anyone, and it is, therefore, much more likely that their evidence would be unbiased and uninfluenced by any extraneous considerations.
(vii) It is always prudent to search for corroborative evidence, where conviction is sought to be based, to a greater or lesser extent, on the evidence of a child witness. The availability of any such corroborative evidence would lend additional credibility to the testimony of the witness.
FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 34 of 52
47. Now, I will proceed to examine the deposition of the child witness i.e. Master Sameer in light of the aforementioned settled principles of law.
48. At the outset, it is necessary to note that prior to recording of his statement u/s 164 Cr.PC i.e. Ex. PW1/A, ld.
Metropolitan Magistrate i.e. PW-11 Ms. Neha Paliwal had put questions to him for examining the capacity of witness to give statement. Similarly, before recording of his evidence during trial the ld. Predecessor of this court had also put basic questions to the witness. Thus, the deposition of child witness i.e. Master Sameer and his statement u/s 164 Cr. PC were recorded after arriving at a satisfactory conclusion that he was able to comprehend the questions put to him and was competent to depose.
49. Now, coming to the deposition of PW-1 Master Sameer, perusal thereof shows that he categorically deposed that on the night of 25/26.06.2015 at 1:30 AM, he woke up and saw that his mother Gulistan was sitting on the stomach/ abdomen of his father and she was strangulating him with her hands, whereas, accused Rizwan was holding legs of his father Saleem. He further deposed that accused Rizwan was residing in their house since 8 months prior to the incident and he was distant relative of his mother. He was cross-examined at length by the ld. defence counsels for both accused on multiple dates, but nothing material came out in his cross-examination which could impeach his credibility.
FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 35 of 52
50. The main argument of ld. defence counsels has been that PW Master Sameer had been tutored by the family members of his deceased father to depose against his mother Gulistan and accused Rizwan.
51. The fact that Master Sameer did not disclose anyone about involvement of his mother and Rizwan immediately after the incident is admitted even by the prosecution. However, the witness himself clarified the reason for not disclosing about the incident to anyone by saying that his mother i.e. accused Gulistan and accused Rizwan had threatened to kill by strangulating him immediately after the incident. In such circumstances, it is not abnormal for the child of 10/11 years of age who had witnessed such a ghastly act, wherein his mother was strangulating his father in the middle of night, to get scared and thereafter decide not to disclose the incident specially in the presence of such culprits. What is more important is to see the nature / quality of deposition as well as manner of deposition of said child witness.
52. The testimony of PW-1 Master Sameer is consistent with his statements recorded u/s 161 Cr. PC i.e. Ex. PW1/X and 164 Cr. PC i.e. Ex. PW1/A vis-a-vis commission of offence. In his cross-examination, PW-1 Master Sameer was confronted with his previous statement u/s 161 Cr. PC Ex. PW1/X vis-a-vis certain facts which were disclosed by the witness in his deposition, but were not recorded in his said statement i.e. u/s 161 Cr. PC. They are as follows:
(i) That he had closed the door of his room;
FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 36 of 52
(ii) That on the next morning his mother started crying by embracing relatives and propounded that she was in deep sorrow due to death of his father; &
(iii) The ld. defence counsels had also argued that in his statement u/s 161 Cr. PC Ex. PW1/X, Master Sameer stated that accused Rizwan was holding hands of his father, but in his deposition recorded in the court he stated that accused Rizwan was holding his legs.
Perusal of statement of PW Master Sameer u/s 164 Cr.PC i.e. Ex. PW1/A shows that he had stated that accused Rizwan was holding hands and feet of his father while his mother was strangulating him. Moreover, the witness was not confronted with the aforementioned aspect as highlighted with respect to his statement u/s 161 Cr. PC. Therefore, the defence cannot be allowed to take advantage of such a fact without confronting the witness.
Even otherwise, in my considered opinion all the above-mentioned improvements / contradiction are not of such nature which goes to the root of controversy or make the testimony of a witness which is otherwise reliable as unworthy of being relied upon.
53. It has to be borne in mind that in his cross- examination, Master Sameer categorically denied that Rahishu and Intezar were responsible for the murder of his father or the fact that he was tutored by the relatives of his father to depose against both the accused. He also categorically stated that on 24.06.2015 at 10:00 PM he went to bed and he again woke up at FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 37 of 52 1:30 AM. He also stated that he was aware of the time as he had watched the time in the watch which was lying near the T. V. In the said cross-examination, he also categorically stated that he had seen the incident while standing near the door of room of his father and light inside the room of his father was switched on at that time. He also denied that his mother Gulistan had left the house alongwith her younger sister on 22.06.2015 after quarreling with his father.
54. At this stage, before even touching the merits of defence of accused Gulistan, it has to be noted that even accused Gulistan did not take the defence that her son Sameer was not present with his father in House no. E-365, New Ashok Nagar. Statement of accused Gulistan u/s 313 Cr.PC, defence evidence of her mother i.e. DW-2 Mrs. Anwari and the suggestions given by her counsel to master Sameer are to the effect that she alongwith her daughter namely Sonam (7/8 months old) had left the house after quarrel took place between her and deceased Saleem. The presence of Master Sameer at the spot of crime is natural as a child of such tender age would naturally be staying with his parents and family members.
55. The case of prosecution is that after the incident accused Gulistan and Rizwan fled away and Master Sameer remained with his grandfather and his paternal uncles. Therefore, naturally the said child would have gone for recording his statement u/s 161 Cr. PC and u/s 164 Cr. PC alongwith his grandfather or uncles. The said fact by itself does FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 38 of 52 not lead to conclusion that he had been tutored by them to depose falsely against his own mother.
56. It is required to be kept in mind that accused Gulistan was not a stranger to Master Sameer, she was his own mother. It has not been alleged by either of the accused that he was staying away from her for distinctly long period of time which rendered him vulnerable to tutoring against her or against accused Rizwan. The information about the incident was given to police on the morning of 25.06.2015 and his statement u/s 161 Cr. PC was recorded on 27.06.2015. Therefore, it is difficult to fathom that a child who has been living with his mother and father for almost 10/11 years of his age would get tutored so quickly and to such an extent that he would falsely start accusing his own mother for killing his father.
57. The defence has also not alleged as to why the family members of deceased Saleem was so against Gulistan and Rizwan so as to falsely implicate them at the cost of exonerating the actual culprits of murder of their son / brother. There is nothing on record to show that the family member of deceased had such deep rooted hatred towards accused Gulistan or Rizwan which could compel or propel them to falsely implicate said accused. There is not even a whisper about existence of any sort of previous or subsequent dispute between them. There is nothing on record to show the reason for false implication of both accused even by the family members of deceased who would otherwise naturally be more interested in bringing the actual culprits to justice.
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58. In Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959, the Hon'ble Supreme Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.
59. Since, there is nothing in the entire evidence to show that deposition of PW Master Sameer was tainted in any manner or the fact that he had been tutored to depose falsely, merely by giving suggestions to that effect cannot lead the court to believe that the child witness who is otherwise totally believable had been tutored.
60. Although, as discussed above, the testimony of PW Master Sameer is totally reliable, but in view of the law laid down as mentioned earlier, it is always prudent to search for corroborative evidence, where conviction is sought to be based, to a greater or lesser extent, on the evidence of a child witness. The availability of any such corroborative evidence would lend additional credibility to the testimony of the witness.
61. While discussing the nature of corroborative evidence, in Rameshwar vs The State Of Rajasthan, 1952 AIR 54, the Hon'ble Supreme Court considered the nature and extent of corroboration required when it is not considered safe to dispense with it. "The Hon'ble Supreme Court held that it is not FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 40 of 52 independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the complainant (who is treated like an accomplice) is true, and that it is reasonably safe to act upon it. The independent evidence must not only make it safe to believe that the crime was committed, but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. However, this does not mean that the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence. All that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witnesses story that the accused was the one, who committed the offence.
52. The Hon'ble Supreme Court proceeded to observe that the corroboration must come from independent sources, and that the testimony of one accomplice would not be sufficient to corroborate that of another. There may, however, be circumstances which may make it safe to dispense with the necessity of corroboration, and in such cases a conviction based on the statement of the victim/prosecutrix, without corroboration, would not be illegal. The Hon'ble Supreme Court also observed that corroboration need not be direct evidence that FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 41 of 52 the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. Were it otherwise, "many crimes which are usually committed between accomplices in secret, such as incest, offences with females" (or unnatural offences) "could never be brought to justice".
53. The Hon'ble Supreme Court then proceeded to consider whether a previous statement of an accomplice/ complainant/ prosecutrix/ victim could be accepted as corroboration? In this regard, the Hon'ble Supreme Court drew the attention to illustration (j) to Section 8 of the Evidence Act, which reads - "The question is whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made are relevant."
54. The Hon'ble Supreme Court also referred to Section 157 of the Evidence Act, which reads:
"In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved."
55. The Hon'ble Supreme Court concluded that where the conditions prescribed in the said section are fulfilled, the statement of the prosecutrix/victim would be legally admissible in India as corroboration."
62. In the present case, PW Master Saleem categorically deposed that accused Gulistan had strangulated his FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 42 of 52 father and Rizwan had assisted her by holding the hands / feet of his father in the middle of night and they were also present in the said house in the morning itself.
63. In this regard, PW-7 Manoj Kumar also deposed that on 25.06.2015 at 6:30 AM he received a call from accused Gulistan and she informed that accused Saleem was not getting up and when he reached there he saw nail marks injury on the neck of Saleem. He further deposed that besides accused Gulistan, her two children Master Saleem and Baby Sonam accused Rizwan were also present there. Thereafter, accused Gulistan gave mobile number of her in-laws to him and he called the father of deceased. Though, in the same examination in chief the witness also stated that initially he did not visit the spot, but later on he had gone there and called PW-3 Yasin. His deposition is corroborated by PW-3 Yasin who deposed that Manoj had informed him about death of his son by way of telephone call. Thus, it has been proved that PW-7 Manoj was present at the spot on the next morning.
64. Similarly, PW-13 David Kumar also deposed that he came to know that a dead body of a person namely Saleem was lying at the 3rd Floor of the house and he went there and he saw a dead body lying on double bed which had fresh nail scratches on the neck and he did not find forcible entry of any person in the said house. He further deposed that accused Gulistan alongwith her children and accused Rizwan were present there. On the basis of suspicion he called police at 100 number and at his instance accused Gulistan also talked to police FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 43 of 52 at 100 number. The PCR form Ex. PW-24/A proved on record shows that the caller was wife of deceased. Hence, the deposition of PW-13 David Kumar is corroborated by the said document as well.
65. The defence counsels had argued that as per IO Insp. Vijay Shrotiya he had called David Kumar for taking pictures later on. In my considered opinion the said statement of IO does not in any manner make the presence of witness at the spot doubtful for the reason that he has deposed that he was having a photo studio at his house i.e. bearing no. ED-32, New Ashok Nagar, Delhi which is shown to be near house of deceased in the site plan Ex.PW24/A .
66. The testimony of all the police officials is consistent qua the fact that the camera of police officials of crime team was not working, therefore, in such circumstances the presence of PW-13 David Kumar at the spot once again for taking the photographs does not cast doubt qua his presence at the spot earlier in the day.
67. It is also required to be borne in mind that several police officials visited the spot on the morning of 25.06.2015. PW-15 Ct. Rakesh also deposed that he had met accused Gulistan, her children namely Sameer and Sonam and accused Rizwan at the spot. PW-22 SI Rajeev Gautam and PW-24 Insp. Vijay Shrotiya also deposed that they met accused Gulistan and Rizwan at the spot.
68. Thus, testimony of eye-witness Master Saleem regarding presence of accused Gulistan and Rizwan on the FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 44 of 52 morning of 25.06.2015 is duly corroborated by the depositions of above-mentioned public and police witnesses.
69. On the contrary, both the accused took a plea of alibi. Accused Gulistan took a plea that she had left the said house on the night of 22.06.2015 alongwith her younger daughter Sonam due to quarrel with her husband and she was not present at the time when police officials came to the spot upon receiving PCR call. She also examined her mother i.e. DW-2 Mrs. Anwari to substantiate her defence.
70. The perusal of deposition of DW-2 Mrs. Anwari shows that she stated that she came to know about the death of her son-in-law three days after his death and after that she left her daughter in her matrimonial house. In her cross- examination, she stated that even PW Sameer had come alongwith her mother, which is not the defence of either of the accused. Moreover, in her statement u/s 313 Cr. PC, accused Gulistan stated that she had been arrested from Anand Vihar, ISBT after she was returning from the cremation of deceased Salim. Thus, specially in light of aforementioned prosecution evidence, the deposition of DW-2 Mrs. Anwari does not inspire confidence.
71. Accused Rizwan also took a plea that he had gone to his native Village on 23.06.2015/ 24.06.2015. Besides himself, he also examined DW-1 Sonath Tyagi and his brother DW-4 Mohd Irfan to establish his defence of alibi. The accused deposed that he received a telephone call from PS New Ashok Nagar on 26.06.2015 and he went to said PS in Delhi on the FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 45 of 52 same day at 3/4 PM. DW-1 Sonath Tyagi also deposed that on 26.06.2015 accused Rizwan received information regarding murder and went to Delhi. Whereas, his brother DW-4 Mohd. Irfan deposed that 5/6 police officials came to their village and arrested him. DW-1 Sonath Tyagi also deposed that on 26.06.2015 he had a conversation with SHO of PS New Ashok Nagar about innocence of accused Rizwan, but yet he did not make any complaint to other higher police officials regarding it. The aforesaid defence evidence is contradictory to each other. None of the above-mentioned defence witnesses ever made an attempt to lodge their protest regarding false implication of accused Rizwan at any forum.
72. Ld. defence counsels also harped on the argument that arrest memos of accused Gulistan and Rizwan i.e. Ex. PW18/B and PW18/D show stark contradiction regarding their time of arrest being 10:15 AM and 10:25 PM respectively. As far as this argument is concerned, it is required to be noted that PW-18 Sandeep Baliyan, PW-20 SI Vipin Kumar, PW-21 W/HC Sunita and PW-24 Vijay Shrotiya categorically deposed that they reached house of accused persons and they were arrested in the morning hours.
73. Further perusal of the arrest memo of accused Gulistan Ex. PW18/B shows that she is shown to have been arrested on the same day as accused Rizwan, but at 10:15 AM. The arrest memo of accused Rizwan (Ex. PW18/D), though bears the word 'PM,' but it is an unclear formation of the letter 'P' and it may also have been written as 'AM.' FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 46 of 52
74. The perusal of cross-examination of PW-24, i.e., IO Insp. Vijay Shrotiya shows that the above-mentioned fact vis-a- vis timings in arrest memos was not confronted to him in his cross-examination by either of the accused.
75. Furthermore, the possibility of the arrest of accused Rizwan at 10:25 PM is also ruled out on the basis of the application dated 27.06.2015 for remanding both accused to J/C. Perusal of record shows that both accused were produced in the court on 27.06.2015 and were also remanded to J/C vide order dated 27.06.2015 passed by the court of the then Ld. ACMM, East. Thus, the aforementioned error (if any) appears to be totally clerical error in nature.
76. Thus, it has to be concluded that both the accused have failed to establish their defence vis-a-vis plea of alibi even to the preponderance of probability.
77. Coming back to the question of corroboration to the deposition of Master Sameer, PW-13 David Kumar as well as the IO of the case also deposed that there was no sign of forcible entry in the said house. It has also been proved that accused Rizwan and Gulistan were present in the house on the night of 24.06.2015 / 25.06.2015 as well as in the morning of 25.06.2015. Hence, in such circumstances the circumstantial evidence also establishes that they were the only adult persons inside the house at the time of commission of murder of Salim. Thus, the circumstantial evidence also corroborates the unimpeached oral testimony of Master Sameer.
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78. The prosecution has also proved that a broken bangle (red in colour) was recovered from the room where dead body of Salim was found. During personal search of accused Gulistan, the similar red colour bangles were recovered. This also points to the direction that the broken bangles recovered from near the dead body belonged to accused Gulistan.
79. It is further pertinent to mention that as per postmortem examination report i.e. Ex. PW9/A he had died 12 to 18 hours prior to preparation of aforesaid report. The said report shows that the autopsy was completed on 25.06.2015 at 5:10 PM, therefore, as per said report Saleem had died between 11 PM (on 24.06.2015) and 5 AM (25.06.2015). As per case of prosecution, PW-1 Master Sameer had seen both accused strangulating his father i.e. deceased Saleem at around 1:30 AM. Therefore, the said postmortem examination report corroborates the deposition of PW Master Sameer vis-a-vis the time of death.
80. Further, the deposition of PW-1 Master Sameer is materially the same as was stated by him in his previous statements i.e. u/s 161 Cr. PC Ex. PW1/X and u/s 164 Cr. PC i.e. Ex. PW1/A and as per law laid down by the Hon'ble Apex Court in Rameshwar vs The State Of Rajasthan, 1952 AIR 54, the same is also corroborative to the oral deposition of Master Sameer.
81. Ld. defence counsels had argued that investigation was manipulated and even the complaint given by father of deceased was a fabricated one. In this context, it is necessary to note that the investigation of the case sprung into action on the FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 48 of 52 basis of information received vide DD no. 16A dated 25.06.2015 which was received at 10:20 AM, wherein it was informed that husband of lady caller had died and there were injury marks and police help was needed. Upon receiving the above-said information SI Rajeev Kumar visited the spot and prepared tehrir at about 6:20 PM i.e. after postmortem examination had been conducted and the examining doctor had opined that his death was result of manual strangulation.
82. It is further pertinent to note that prior to said information there was no confirmation to the police as to whether the said death was infact homicidal in nature. Hence, thereafter the present FIR u/s 302 IPC was registered on 25.06.2015 and on the same day father of deceased namely Yasin went to police station and gave a complaint Ex. PW23/B which was registered vide DD no. 50B and he showed apprehension that Rizwan and Gulistan had committed murder of his son as they had illicit relation with each other.
83. It has been argued that said complaint does not bears signature of Yasin, whereas, said complaint bears thumb mark. The fact that said thumb impressions do not bear marking that the same was appended by PW Yasin does not make the investigation doubtful.
84. The ld. defence counsels have also argued that DNA samples of assailants were not taken from the dead body. At the cost of repetition, it is necessary to note that the possibility of death of deceased Saleem being homicidal death had not been confirmed prior to postmortem examination nor FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 49 of 52 anyone had shown any suspicion qua involvement of any of the accused persons till that time. It is also settled proposition of law that all defects in investigation are not always fatal to the case of prosecution. In C. Muniappan and Ors Vs. State of Tamilnadu (2010) 9 SCC 567, it was held that, "Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc, which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the objects of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the fake and confidence of the people in the criminal justice administration would be eroded."
85. The prosecution had relied on depositions of PW-3 Yasin, PW-4 Nizamuddin and PW-5 Umed Ali to establish that since both the accused were involved in illicit relationship, therefore, they had motive to commit murder of deceased FIR No. 838/2015 PS New Ashok Nagar State Vs Gulistan & Ors. Page no. 50 of 52 Sameer. The perusal of their depositions show that the same is hear-say in nature. The prosecution has not led any direct evidence to establish the factum of illicit relation between both accused. However, in light of the unimpeached and duly corroborated evidence of Master Sameer, the absence of motive for commission of offence does not make the case of prosecution doubtful in any manner. It is settled proposition of law that the absence of motive is not always fatal to the case of prosecution.
86. In State of Haryana v. Bhagirath (1999) 5 SCC 96, the Hon'ble Supreme Court held that, "The absence of motive is not fatal to the prosecution case when the evidence is clear, cogent and credible. Motive is something which is locked up in the mind of the accused and it is not always possible for the prosecution to uncover the true motive. If the evidence on record is sufficient to prove the guilt of the accused, the absence of motive does not create any doubt about the prosecution case."
87. I have also gone through the judgments so relied upon by ld. defence counsel, but the ratio of the said judgments is not applicable to the facts of the present case.
88. Thus, in light of the above-mentioned discussion it has to be concluded that the testimony of PW Master Sameer is totally reliable and it is duly corroborated by other evidence on record. The prosecution has successfully proved beyond reasonable doubt that accused Gulistan and Rizwan in furtherance of their common intention had strangulated deceased Salim which resulted into his death.
Conclusion:
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89. In view of the aforementioned discussion, it has to be concluded that prosecution has successfully proved beyond reasonable doubt that both accused i.e. Gulistan and Rizwan had committed the offence u/s 302/34 of IPC. Hence, they are convicted for commission of offence u/s 302 r/w section 34 of IPC.
90. Copy of this judgment be given free of cost to both the convicts.
91. Be put up for arguments on quantum of sentence.
Announced in open Court on
17.02.2025
(Sushant Changotra)
Digitally signed by ASJ (FTC) / East
SUSHANT SUSHANT KKD Court/ Delhi
CHANGOTRA
CHANGOTRA Date: 2025.02.17
17:05:45 +0530
FIR No. 838/2015 PS New Ashok Nagar
State Vs Gulistan & Ors. Page no. 52 of 52