Delhi District Court
State vs . Shanu @ Sahil Etc. on 23 December, 2009
1
FIR No. : 176/06
PS : Bhajanpura
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE, NORTHEAST DISTRICT
KARKARDOOMA COURTS, DELHI.
State Vs. Shanu @ Sahil etc.
FIR No. : 176/06
PS : Bhajanpura
U/s : 364/365/302/201/120B/328/392/411 IPC
Sessions Case No. : 91/08
Date of Institution : 20/11/2006
Date of committal : 15/03/2007
Date on which reserved for order : 23/12/2009
Date of Delivery of Judgment : 23/12/2009
STATE
V/S
1.Shanu @ Sahil S/o Bundu Khan R/o Islam Nagar, Khair Road, PS Delhi Gate Aligarh, UP.
2. Basir Ahmed @ Basiruddin S/o Subhrati R/o Islam Nagar, Khair Road, PS Delhi Gate Aligarh, UP.
3. Liaqat Khan S/o Shaukat Khan @Raees R/o Vill. Thakka Chaat Gram No.21 Dr. Chodaya Hajra, PS Puranpur Peelibhit, UP Also at:
H. No. : 618, Matawali Gali, Rajput Mohalla Ghonda Village, Delhi.
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2 FIR No. : 176/06 PS : Bhajanpura
4. Mehboob @ Babu S/o Mehfooz @ Malluk R/o H. No.: 663, Gali No.3, Mohalla Dabar Bangali Peer, Near Sangam Vihar Loni PS Loni, Dist. Ghaziabad (UP) ...Accused J U D G M E N T
1. Accused Shanu @ Sahil, Basir Ahmed @ Basiruddin were sent up for trial alongwith Mehboob @ Babu, Liaqat S/o Raees, Zahid @ Chote and Jaffar S/o unknown R/o unknown who were not arrested for offence punishable u/s 364/365/302/201/120B/328/ 392/411 IPC by police of police station Bhajanpura. Subsequently vide supplementary chargesheet accused Liaqat Khan S/o Shaukat Khan @ Raees and Mehboob @ Babu S/o Mehfooz @ Malluk were also chargesheeted for similar offences after their arrest wherein Zahid @ Chote S/o Bundu Khan shown as proclaimed offender (P.O.) and accused Jaffar could not be traced out.
2. Above named accused were chargesheeted on the allegation that on 8.5.2006 DD No. 7A was recorded at PS Khajuri Khas from PCR in which one Vikas informed that a maruti van bearing registration No.DL7CB8104 of white colour was taken on hire from Mustafa Majid Page 2 of 52 3 FIR No. : 176/06 PS : Bhajanpura Kachi Khajuri A Block Gali No.19, Rashid PCO three days ago and since then driver and vehicle has not returned. The said DD entry was handed over to ASI Govind Singh for investigation, who reached alongwith Ct. Ombir Singh and recorded statement of Vikas Singh. However, ASI Govind Singh found that the place of occurrence falls within the jurisdiction of PS Bhajanpura and made the DD at the police station Bhajanpura regarding the same. Thereafter, he handed over the copy of the DD entry alongwith statement of Vikas to H.C. Yashbir Singh of PS Bhajanpura.
3. On 10.5.2006 H.C. Yashbir made is endorsement on the statement of Vikas and got the FIR u/s 408 IPC registered. He conducted the inquiry and prepared rough site plan and taken the photostate copy of the booking diary of JMD Travel in possession. Thereafter wireless message was sent but no lead could be found. On 17.5.2006, the investigation was transferred to ASI Islamuddin, District Investigation Unit (DIU) by the order of Addl. DCP/NE. ASI Islamuddin recorded the statement of Vijay, the father of the driver Pramod who stated that "His son Pramod was the driver on the maruti van and on 5.5.2006 he had Page 3 of 52 4 FIR No. : 176/06 PS : Bhajanpura taken the maruti van to Shri Ram Colony which was booked from JMD Travel for Shri Ram Colony to Bullandsahar (UP) and owner of the maruti van was also with him. He was to return on the next day from Bullandsahar and suspected mishappening after the kidnapping." He also stated that mobile phone of his son is switched off since 5.5.2006. Thereafter offence punishable u/s 365 IPC was added but no lead regarding driver and vehicle could be found. Thereafter further investigation was transferred to Special Staff wherein Inspector Vijay Pal Singh was entrusted further investigation.
4. On 8.8.2006 SI Arun Kumar Mishra from PS Lucknow Chowk informed Inspector Vijay Pal Singh vide DD No.6 that Shanu @ Sahil S/o Bundu Musalman and Mehmood (it should be Mehboob) S/o Mehfooz were found in possession of one maruti van bearing registration no. DL7CB 8104 on 13.06.2006 with respect to the same FIR Nil u/s 41 Cr.PC and 411 IPC has been registered. Accused Sahil is on bail and accused Mehmood is in judicial custody. The production warrant of accused Mehbood was obtained and the vehicle was deposited in the PS Bhajanpura. Accused Mehbood could not produced on 14.8.2006 on Page 4 of 52 5 FIR No. : 176/06 PS : Bhajanpura production warrant from the Lucknow and again an application was moved before Ld. MM for obtaining production warrant of the accused Mehboob. Ld. MM passed an order to interrogate and formal arrest the accused. On the intervening night of 20/21.8.2006, guard of U.P. Police were bringing accused Mehmood to Delhi from Lucknow in Kafiat Express for producing him in the court. Accused Mehmood jumped from the train with the handcalff and a case was registered with respect to the same.
5. On 23.8.2006 Inspector Vijay Pal Singh apprehended the accused Shanu @ Sahil and Basir Ahmed @ Basiruddin at the instance of the secret informer. They made disclosure statement that they alongwith two others had conspired to hire a vehicle from Delhi and after killing the driver, they will earn money after selling the vehicle and disclosed that they had hired a vehicle and they purchased two strips of ativan tablet which has intoxicant and one can die after consuming. They made powder of the tablets of both the strips. At about 5:30 p.m. the maruti van which they had booked was brought by Pramod driver alongwith owner at Rashid PCO and from there they went to the house Page 5 of 52 6 FIR No. : 176/06 PS : Bhajanpura of sister of Mehboob where Basiruddin and Jaffar also made to sit in the vehicle. At Bhopura Mord, one boy gave the paper of maruti van to the driver. They got vehicle stopped at Sharma Hotel after crossing Dadri and they had taken tea and the tea mixed with powder of ativan tablet was given to Pramod. After 10 minutes he started feeling sleepy. Thereafter Basiruddin started driving the vehicle. Shanu removed his mobile phone, purse, driving licence, diary and some papers. By the time the vehicle reached at Bullandsahar, Pramod had stopped breathing. After crossing Bullandsahar they stopped the vehicle and threw him in the canal. They pointed out the hotel and the place where dead body was thrown. Accused Shanu @ Sahil got recovered registration certificate of the vehicle from his house. Thereafter accused Liaqat and Mehboob were also arrested. They also made disclosure statement. They pointed out the place where they had taken the tea and thrown the dead body and accused Liaqat got recovered two empty strips of tablet of Ativan 2 Mg from tand of the bathroom of his house and also pointed out the medical store from where he had purchased the same. The dead body of Pramod, driver was not recovered. After Page 6 of 52 7 FIR No. : 176/06 PS : Bhajanpura completion of the investigation, accused persons were sent up for trial.
6. After supplying the necessary copies, the case was committed to the court of session by Ld. MM. vide order dated 4.12.2006
7. My Ld. Predecessor vide order dated 17.5.2007, after finding prima facie offence, charged the accused persons namely Shanu @ Sahil, Basir Ahmed @ Basiruddin, Liayakat Khan, Mehboob @ Babu for the offences punishable u/s 120B IPC, 364 IPC r/w Section 120B IPC, 328 IPC r/w Section 120B IPC, 302 IPC r/w Section 120B IPC, 201 IPC r/w Section 120B IPC and 392 IPC r/w Section 120B IPC, to which they pleaded not guilty and claimed trial. Accused Shanu @ Sahil and Mehboob @ Babu were also separately charged for offence punishable u/s 411 IPC, to which they also pleaded not guilty and claimed trial.
8. The Prosecution in support of their case examined as many as 34 witnesses.
9. PW1 Vikas, who was the owner and having the possession of the vehicle and is also the witness of last seen. He proved his statement as Page 7 of 52 8 FIR No. : 176/06 PS : Bhajanpura Ex.PW1/A and seizure of photocopy of booking of maruti van as Ex.PW1/B and superdari of the vehicle as ex.PW1/C and identified the maruti van as Ex.PW1/Article1. PW2 Chandan Tyagi, Manager, JMD Travel, who had booked the vehicle and is also the witness of last seen. He proved the photocopy of booking register as Ex.PW1/DX1. PW4 Sh. Vijay Singh, father of the driver Pramod Kumar was the material public witness, who proved the warranty card of the mobile phone of Pramod as Ex.PW4/A. PW7 Anil Kumar is the witness of last seen, who had delivered the documents of vehicle to the driver Pramod Kumar at Bhopura Mord, who had partly turned hostile towards the prosecution. PW5 Sh. Rajender Kumar Sachdev who sold the mobile phone to one Pramod Kumar and identified the warranty card as Ex.PW5/A. PW8 Smt. Kamlesh Kumari was the registered owner of the maruti van. PW14 Sh. Rakesh Kumar Tiwari, who proved the record of the vehicle of transport authority as Ex.PW14/A. PW9 Sh. T. P. Singh was not the relevant witness therefore did not appear thereafter.
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10. The prosecution also examined formal witnesses. PW3 Ct. Iqbal Khan who had recorded the phone call made by Vikas and proved the photocopy of the same as Ex.PW3/A. PW6 HC Sombir is the formal witness who recorded information from Lucknow regarding arrest of accused persons with stolen vehicle and proved the same as Ex.PW 6/A. PW10 ASI Yashpal Singh who recorded DD entry regarding missing of the vehicle and the driver as Ex.PW10/A. PW11 ASI Mukesh Jain, was the draftsman who prepared scaled site plan of the Gang Nahar where the dead body was thrown and proved the same as Ex.PW11/A. PW15 ASI Kishan Dutt was the duty officer who recorded formal FIR on the basis of rukka of HC Yashbir and proved the same as Ex.PW15/A, his endorsement as Ex.PW15/B and also proved the DD record recorded by ASI Govind regarding jurisdiction as Ex.PW15/C. PW16 Ct. Yogender had gone alongwith HC Dharam Singh and SI Pramod Anand to Lucknow UP and brought vehicle from Mallkhana of PS Lucknow Chowk and proved the seizure memo of the vehicle as Ex.PW16/A. PW18 Sh. Bhupinder Singh, who proved the application form for mobile connection and photocopy of voter identity card as Page 9 of 52 10 FIR No. : 176/06 PS : Bhajanpura Ex.PW18/A and PW18/B respectively regarding mobile connection to Pramod deceased. PW21 SI Lal Chand had brought the seizure memo and FIR from the court of Chief Judicial Magistrate (CJM) Lucknow, UP and proved the same as Ex.PW21/A and PW12/B respectively. PW 22 Sh. Naveen Sharma who turned hostile towards the prosection was the chemist. PW31 H.C. Arun Kumar is the witness of proceedings u/s 82 Cr.PC and 83 Cr.PC of accused Jahid who was declared proclaimed offender (P.O.). PW29 HC Sudhir Dagar had brought the accused Mehboob @ Babu from Dist. Lane Ghaziabad and produced on the production warrant to the court of MM and proved the arrest memo of the accused as Ex.PW25/A and personal search memo as Ex.PW 25/B and his personal search memo as Ex.PW25/C.
11. The prosecution also examined the witness of arrest, pointing out of the places and recovery. PW12 Ct. Vijender, PW24 SI Deshpal, PW32 Inspector Vijay Pal Singh are the witness of arrest of accused Shanu @ Sahil and Basir Ahmed @ Basiruddin and proved their arrest memos as Ex.PW12/A and PW12/B, personal search memos as Ex.PW12/C and Ex.PW12/D, their disclosure statements as Ex.PW12/E and Page 10 of 52 11 FIR No. : 176/06 PS : Bhajanpura Ex.PW12/F respectively and also proved identifications memos of as Ex.PW7/A and Ex.PW12/G which were identified by PWs Anil and Vikas and pointing out memo by Shanu of the house of the Liaqat as Ex.PW12/H. PW12 also proved supplementary disclosure of accused Shanu as Ex.PW12/I and pointing out memo of the Sharma Hotel as Ex.PW12/J, pointing out of Bullandsahar Canal as Ex.PW12/K, seizure memo of RC of maruti van as Ex.PW12/L. PW30 SI Pramod Anand is the witness of pointing out of the Sharma Hotel by accused Shanu @ Sahil and Basir Ahmed @ Basiruddin where they mixed intoxicant tablet of ativan in the tea of the Pramod and pointing out of the Gang Nahar where the dead body was thrown. He proved the site plan of Upper Gang Nahar as Ex.PW30/A and recovery of RC. PW25 HC Moolchand, alongwith PW34 Inspector R. K. Jha, is the witness of arrest of accused Mehboob on the production warrant. He also proved pointing out memo of the house of Meharban and the place where the empty strips of ativan tablet was kept as Ex.PW25/C. He is also the witness of pointing out of booking register of the JMD Travel as Ex.PW 20/G, Sharma Hotel as Ex.PW20/M and place of throwing of dead Page 11 of 52 12 FIR No. : 176/06 PS : Bhajanpura body as Ex.PW20/I. PW20 Ct. Arvind is the witness of arrest of Liaqat and proved his personal search memo as Ex.PW20/A, disclosure statement as Ex.PW20/B and seizure memo of two empty strips of tablet ativan at the instance of accused Liaqat from the house of Meharban as Ex.PW20/C, pointing out of medical shop as Ex.PW20/D and arrest memo of accused Liaqat as Ex.PW20/E. He is also the witness of arrest of accused Mehboob and pointing out by him. PW33 Inspector Har Pal Singh is the witness of arrest, recovery, pointing out of shop and is also the investigating officer. PW23 Meharban is the witness of seizure of strips of tablet. PW17 HC Yashbir Singh alongwith PW19 HC Sitaram Sharma who initially investigated the case and seized the photocopy of booking diary.
12. The prosecution also examined the witnesses from the UP Police. PW 27 Dy. Superintendent of Police Ramjit Yadav and PW28 SI Anjul Kumar Chaturvedi are the witness of arrest of accused Shanu @ Sahil and Mehboob with maruti van at PS Lucknow Chowk. Page 12 of 52
13 FIR No. : 176/06 PS : Bhajanpura
13. The prosecution also examined the witnesses of investigation. PW13 ASI Islamuddin was the part investigating officer who had recorded the statement of some witnesses. PW30 SI Pramod Anand, PW32 Inspector Vijay Pal Singh and PW33 Inspector Har Pal Singh had also partly investigated the case. PW34 Inspector R. K. Jha had investigated the case finally and filed the chargesheet.
14. Statement of accused persons were recorded u/s 313 Cr.PC wherein they denied the prosecution evidence and claimed innocence. Accused Shanu @ Sahil stated that on 11.6.2006, he was going to his inlaws house at Alam Nagar, Lal Masjid, Lucknow and when he got down at the crossing from the tempo, one police man made inquiry from him for his late coming and thereafter they verified his inlaw's house and thereafter taken him to the police station and made some false case and sent into jail. He was released on bail. They had implicated him in case of one unclaimed vehicle. Thereafter he went to his native place at Aligarh. He further stated that on 11.8.2006, some persons came to his house at Aligarh and inquired about the date of hearing at Lucknow and asked him as to why he had not attended the date of hearing but he Page 13 of 52 14 FIR No. : 176/06 PS : Bhajanpura had attended the date of hearing on 7.8.2006 and he was taken by them and he was brought to Delhi. He stated that he was kept at the office of special staff for thirteen days and when his parents came, the police demanded money which they could not pay and he was produced in the court and falsely implicated in the present case. During that period police had implicated few other persons, he knows their name. In his defence, he examined DW2 Ms Mehraj.
15. In his statement accused Mehboob @ Babu stated that he was running a hotel at Aligarh at Gonda Road. His coaccused Shanu brought police from Lucknow alongwith stolen vehicle and at his instance he was falsely implicated in this case. He stated that Shanu was having some employees at Aligarh who were eating at his hotel and there were some dues which he had assured him to pay. When he demanded Shanu got him falsely implicated in this case. He further stated that he was taken on the police remand without muffled face and he was shown to many persons during that period. He further stated that he is innocent and he does not know anything about this case. However he chooses not to lead any evidence in his defence.
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16. In his statement accused Basir Ahmed @ Basiruddin stated that he was manufacturing locks at his house at Aligarh. He was working at his house. He stated that his coaccused Shanu came alongwith the police and at his instance police arrested him on 22.8.2006. He further stated that he has been falsely implicated in this case. He examined DW1 Sh. Faqir Mohd. in his defence.
17. Accused Liaqat stated in his statement that he was working as mechanic of rickshaw in the garage of Shoib near Iron Bridge behind Lal Qila. He stated that when he was coming in the rickshaw at Gamdi Road, he was apprehended at the instance of Meharban, who was his earlier landlord and who is police informer and is of bad character. He further stated that he had fight with him regarding the room rent in which he sustained injury and he was enemical to him and he does not know anything about this case. He also chooses not to lead any evidence in his defence.
18. DW1 Sh. Fakir Mohd. stated that he knows Sh. Basiruddin as he is his neighbourer. He stated that the accused is doing the work of cutting the Page 15 of 52 16 FIR No. : 176/06 PS : Bhajanpura iron rods (Lohar). He stated that on 20.8.2006, two police officials came in the gypsy at the house of Basiruddin and at that time Basiruddin was sleeping in his house. Police officials called him outside the house and on hearing the noise, he (witness) also came out of his house. Both the police officials took Basiruddin in the gypsy in his presence.
19. DW2 Ms. Mehraj stated that she knows accused Shanu as he was residing in her neighbourhood. He was running the hotel in the name and style of M/s Muskan Hotel at Gonda Road, Aligarh. She stated that on 11.8.2006, she was present at her house at 5:00 a.m. in the morning and two police men came to the house of Shanu and took him from Aligarh to Delhi. On hearing the noise she came from her house. She further stated that he bears good moral character.
20. I have heard Sh. Virender Singh, Ld. Addl. Public Prosecutor for the state, Sh. A. A. Khan, Advocate for accusesd Shanu @ Sahil and Amicus Curiae for accused Basir Ahmed @ Basiruddin and Sh. Abdul Sattar, Advocate, Amicus Curiae for accused Liaqat and Mehboob @ Babu. I have also gone through the record.
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21. This case is based on circumstantial evidence. The law on the circumstantial evidence is now well settled by Hon'ble Supreme Court in State of U.P. Vs. Satish, AIR 2005 Supreme Court 1000. Observed with approval the law laid down in Padala Veera Reddy Vs. State of A. P. (AIR 1990 SC 79) it was held by Hon'ble Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;
2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
3) the circumstance, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;
and
4) the circumstantial evidence in order to sustain conviction must be complete and incapable of Page 17 of 52 18 FIR No. : 176/06 PS : Bhajanpura explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
22. The first circumstance is that of last seen. PW1 Sh. Vikas testified that he has maruti van bearing registration No.DL7CB8104. He had purchased this maruti van from Deep Chand sometime before this incident. This vehicle remained with him for about one month. Thereafter, he sold this maruti van to one of his friend Pankaj for about Rs.97,500/ He further stated that on 2.5.2006 Pankaj came to him with the said maruti van and he asked him to take this maruti van back as he was unable to drive the same and he was going to his village. He took back the above said maruti van. He gave this maruti van on hire to JMD Travel, Bhajanpura on 3/4.5.2006. On 5.5.2006 his abovesaid vehicle was booked for going to Bulandshehar and Pramod, the driver of his van had taken this van. He also accompanied Pramod and took the van first to Khajuri. At Gali No.19, near Rashid PCO, Shanu met them. Three more persons were also with him. He identified the accused Shanu. He (accused Shanu) alongwith three persons sat in Page 18 of 52 19 FIR No. : 176/06 PS : Bhajanpura their maruti van. On reaching at Bhajanpura Petrol Pump, he got down from the van. Thereafter, Pramod had taken this van alongwith Shanu and three other persons. Pramod had asked him that he was not having the documents of the vehicle. The documents of the maruti van were with Yusuf, friend of his brother Anil. Yusuf had gone to Bharat Gas Agency situated at Loni Border with his brother Anil. He telephoned to his brother Anil to hand over the documents of the vehicle to Pramod after collecting the same from Bhopura Border. He identified one another person namely Bashir Ahmed, who was accompanied with accused Shanu and another, and they all had sat in their maruti van. On the next day, driver Pramod and vehicle did not return to Delhi. He went to Khajuri Police Station. He was not listened to by the police officials. Then he went to the STD shop of Rashid and he asked him that his driver as well as his vehicle did not return. He also asked him as to who were those persons, who had telephoned through his telephone number. Rashid replied that he did not know them. Thereafter, he informed police at number 100. He gave his statement to the police and got the case registered. On 23.8.2006 he alongwith his Page 19 of 52 20 FIR No. : 176/06 PS : Bhajanpura brother Anil were going towards Khajuri where police officials were present. Two persons were apprehended by the police officials. Accused Shanu was one of them. He told the police that he was one of the accused, who had booked his maruti van and had taken away the same with his driver Pramod for Bulandshehar. He was partly cross examined by the prosecutor as he was resiling from his earlier statement. On being crossexamined he admitted that accused Basir Ahmed @ Basiruddin was also with the police alongwith Shanu on that day and stated that accused Shanu is the same person who had taken maruti van with driver from PCR shop of Rashid on 5.5.2006 alongwith his associates. He stated that he cannot identify any other person other than Shanu and Waseem (It should be Basir. It appears to be typographical mistake as there is no accused in the name of Waseem.) He cannot say whether accused Mehboob was also present at Rashid STD and whether he went in the same van. He admitted that on 4.1.2007, he had gone to the police station regarding inquiry of his case and accused Mehboob @ Babu was sitting the police station. He admitted that accused Mehboob was the same person who had gone in Page 20 of 52 21 FIR No. : 176/06 PS : Bhajanpura his maruti van alongwith the other accused persons on 5.5.2006 from Rashid STD. He admitted that accused Mehboob @ Babu is the same person who was identified by him in the police station as the accused involved in this case.
23. PW2 Sh. Chandan Tyagi testified that he was working in JMD Travel Agency at Bhajanpura for the last two years. His examinationinchief was deferred as he had not brought booking register on that day. On the next day of hearing when he was examined he stated that he had not brought the register, which was handed over by him to HC Yashbeer. He stated that his travel agency is in the name and style of JMD Travel Agency at Bhajanpura. He was working in the same traveling agency since 2004. On 5.5.2006, he was sitting at the travel agency at about 2:00 p.m., two boys came to the travel agency for booking of vehicle. One of them disclosed their name as Shanu. They paid advance of Rs.200/. The vehicle was booked for a total fare of Rs.1400/ from Kachi Khajuri to Bulandsheher, UP. At the time of booking the vehicle owner Sh. Vikas and his driver Sh. Pramod were present at the traveling agency. He was having a maruti van white Page 21 of 52 22 FIR No. : 176/06 PS : Bhajanpura colour bearing registration No.DL7CB8104. He instructed Sh. Vikas regarding the booking and asked him to verify the address and take the vehicle to the address. The address of the place was Gali No.19, Near Mustafa Masjid, Kachi Khajuri. The complete address he does not remember. He identified the photocopy of booking register and same was produced by him to the IO. He had also told the description of both the persons to the police. He stated that on 17.11.2006, he was sent by owner of the Travel Agency Sh. Baldev Singh in the Karkardooma Courts. He had come to meet Sh. Abhay Singh, Advocate for taking RC of the vehicle which was involved in a traffic challan. When he was going out, he saw inspector Harpal Singh IO of this case. He saw Shanu goinging alongwith him and he called inspector Harpal Singh on one side and told him that the boy going alongwith him is the same who was involved in the case and who got booking by him at the travel agency. He further stated that on 3.1.2007 he was sitting his travel agency's office. One police man Sh. R. K. Jha came in civil dress. He had brought one boy. The boy was also in civil dress. He identified him as the person who had accompanied Shanu for the booking of the Page 22 of 52 23 FIR No. : 176/06 PS : Bhajanpura vehicle. He identified accused Shanu and Mehboob.
24. PW7 Anil Kumar is the brother of Vikas i.e. PW1. He testified that on 5.5.2006 he had gone to meet his brother Vikas at Bhajanpura on Tata Sumo. The documents of the maruti van no. 8104 was kept with him accidentally and thereafter he went for his job at Gail India at Loni. He received call of his brother inquiring whether documents of vehicle 8104 is with him, he said yes. On this he said there is one driver namely Pramod present at Bhopura Chowk alongwith the vehicle and asked him to handover the documents to him. He went to Bhopura Chowk and handed over the documents to Pramod. Pramod was known to him previously. Thereafter he left for his job as the staff was sitting in his car. He turned hostile towards the prosecution and denied that on 23.8.2006 at about 11:30 p.m. he alongwith his brother Vikas Singh were going to Pushta Khajuri Khas near Govt. School Delhi police officials alongwith two persons resident of Aligarh Islamnagar, Khair Road met them and on seeing those two persons he identified those persons as the same whom he had seen on 5.5.2006 sitting in the Page 23 of 52 24 FIR No. : 176/06 PS : Bhajanpura Maruti Van No, DL7CB8104 which the driver Pramod was taking to Bulandshaher.
25. PW4 Sh. Vijay Singh testified that his son was the driver on the maruti van bearing registration No.DL7CB8104 on 5.5.2006. He left his house to JMD Travel where the maruti van attached. His son did not return upto next evening. He made inquiry from Vikas and he came to know that he had gone on the above said maruti van on a booking to Bulandshehar from Sriram Colony. Vikas also told him that he had also gone to Sriram Colony in the said maruti van after taking the passengers from the Sri Ram Colony and he deboarded from the van at Bhajanpura. He also told him that there were four persons in the above said maruti van who has gone to Bullandsahar. He had tried to contact his son on his mobile No.9213679344 but the mobile phone was switched off and hence he could not contact him. Later on Vikas has lodged the FIR.
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26. PW10 ASI Yashpal Singh proved that DD entry Ex.PW10/A was recorded by him regarding missing of maruti van alongwith driver and he sent the same to ASI Govind Singh through Ct. Ombri.
27. PW17 HC Yashbir Singh testified that on 8.5.2006 ASI Govind Singh of PS Khajuri Khas handed over him a statement recorded by him of one Vikas Ex.PW10/A alongwith DD entry No. 7A. He made his endorsement and got the FIR registered. He recorded statement of Vikas and discharged him from inquiry. He also made inquiries from booking clerk Chandan. He (Chandan) produced the photocopy of booking diary which was seized by him vide Ex.PW1/B. Thereafter he alongwith constable reached at Shri Ram Colony PCO of Rashid, he made inquiry from him. He disclosed that one boy had come to make a call and he had disclosed his name as Shanu and one more person was accompanying him but whose name was not known to him.
28. The first information is recorded on 8.5.2006. DD No. 10/A reads that one Vikas has informed that Mustaq Masjid Kachi Khajuri ABlock Gali No.19, Rashid's PCO one maruti van no. DL7CB8104 taken on hire with driver and driver and van had not returned as yet. The same was Page 25 of 52 26 FIR No. : 176/06 PS : Bhajanpura entrusted to ASI Govind Singh. ASI Govind Singh recorded the statement i.e. Ex.PW1/A of Vikas who stated to him that he is running a maruti van and employed Pramod as driver on his maruti van. He had sent his maruti van alongwith driver from Delhi to Bullandsahar from JMD Travel Bhajanpura for Rs.1400/ and he was also accompanying him till Bhajanpura. He alongwith his driver Pramod reached at Khachi Khajuri from where he had taken passengers who had taken the driver and the said vehicle to Bullandsahar. He got down at Bhajanpura.
29. The another important document is PW1/DX1 which is the photocopy of leaf of diary on which name is written as "Sanu", address is written as "Gali No.19, H. No. 773, ABlock, Mustafa Masjid, Khachi Khajuri, Delhi, telephone of Rashid is given. The total amount is written as "Rs.1400/", advance is written as "Rs.200/" and time is written as "6:00 p.m." and it is signed by Chandan Tyagi i.e. PW2 ON 5.5.2006. The seizure memo of the same i.e. PW1/B is dated 10.5.2006 which reads as "One photocopy of booking diary which was booked by accused Shanu, Gali No.19, H. No. 773 A Block, Mustafa Masjid, Kachi Page 26 of 52 27 FIR No. : 176/06 PS : Bhajanpura Khajuri, Delhi" which was seized. The same also shows that FIR176/06 u/s 408 IPC, PS Bhajanpura.
30. Ld. Defence counsel submits that the photocopy of the alleged booking diary does not inspire confidence. Further the last seen witnesses are inconsistent and contradictory to each other.
31. As regards the Ex.PW1/DX1, which is the photocopy of booking diary in which entry in the name of accused Shanu has been made, the same was seized before the arrest of accused Shanu. The witness PW2 Chandan Tyagi has stated on 2.8.07 in the court that he had not brought the original diary and the same was handed over by him to HC Yashbir during the investigation. However on 28.1.2009 HC Yashbir was also summoned along with IO, who categorically stated that no register taken by him from the said witness. Meaning thereby only the photocopy of the said document was taken, which contradicts the witness if IO has seized it. The same was not produced by the IO for the reasons best known by him. Therefore, no reliance can be placed on this photocopy of a leaf of the booking register. Page 27 of 52
28 FIR No. : 176/06 PS : Bhajanpura
32. Now coming to the last seen evidence of the accused persons. PW1 Vikas has stated that the accused Shanu and Basir Ahmed are the same persons who had sat in the maruti van and from Gali No.19 PCO of Rashid. He also identified the accused Shanu as the person who was identified by him in the custody of police on 23.8.2006. After being crossexamined by the prosecutor he also identified accused Basir Ahmed as the person who was also seen by him in the custody of police on 23.8.2006. The brother of PW1 Vikas i.e. PW7 Anil who allegedly handed over the document had neither supported the prosecution with respect to having seen any accused at Bhopura Boarder sitting in the maruti van nor he supported the prosecution with respect to that he had seen the accused Shanu @ Sahil and Basir Ahmed @ Basiruddin in the custody of police. PW2 Chandan Tyagi is the another important witness. He states that two boys had come and name of one of them was Shanu. PW1 further admitted after being crossexamined by the prosecutor that he had seen accused Mehboob @ Babu sitting in the police station and had told the police that he had the same person who had gone in the maruti van alongwith other Page 28 of 52 29 FIR No. : 176/06 PS : Bhajanpura accused persons on 5.5.2006 from Rashid' PCO. PW Chandan Tyagi, booking clerk identified accused Shanu when he had come to the court. He saw Shanu alongwith Inspector Harpal Singh on 17.11.2006 and identified him as the same person who was involved in the case and who got booking by him at the travel agency. On 3.1.07 he had also identified one person who was with the Inspector R.K. Jha who had accompanied Shanu for the booking of the vehicle. He had identified accused Shanu @ Sahil and Mehboob @ Babu as the persons who had got the booking done.
33. The testimony of PW Chandan Tyagi cannot be relied upon for the reasons that accused Shanu was in the custody of police since 23.8.2006 when PW Vikas had already identified him and he had identified him in the court on 17.11.2006 after gap of about three months. Meaning thereby he had ample opportunity to know from Vikas that he was the said person and also from the police as by that time police had arrested accused Shanu and no effort was made by police in getting the test identification parade (TIP) of accused Shanu from the PW Chandan Tyagi. It is also worthwhile to mention that the address of Page 29 of 52 30 FIR No. : 176/06 PS : Bhajanpura the alleged booking was not verified by the police officials that whether it was existing or not existing or it was fake or it belongs to some relatives of the accused Shanu or it is of some other person. Therefore, merely by name of Shanu without any identification which was the duty of the police officer to get his identification done from Chandan Tyagi who had seen him. The identification by PW Chandan Tyagi is of no consequence.
34. As regards accused Mehboob @ Babu, he has identified Mehboob for the first time in the court which does not carry any weight and not much importance can be attached to the same.
35. Now coming to the crossexamination of PW1 Vikas. He has stated in his crossexamination that the vehicle was not booked in his presence. He was told by JMD travel persons that vehicle was booked from Khajuri Khas to Bulandsahar. He did not see the paper on which it was written that the vehicle had been booked from Khajoori Khas to Bullandsahar. He was told by Chandan Tyagi (person from JMD Travel) regarding the booking. He stated that he saw the accused Shanu after Page 30 of 52 31 FIR No. : 176/06 PS : Bhajanpura the incident at Khajuri for the first time when he was arrested by the police. It was about 11:00 a.m. but he does not remember the date. He saw him near primary school near police station. He does not know whether the school was open at that time or not. He alongwith his brother Anil had seen him. He denied the suggestion that accused Shanu was shown to him at the PS by the police officials and asked him to identify him in order to get his vehicle released. He stated that he had lodged the report regarding nonreturning of the vehicle from Bullandsahar and gave the vehicle name as maruti van car. He admitted that in the document Ex.PW1/DX1 destination of the vehicle is not mentioned. He stated that he reported the matter to the police since the driver did not return and his family member had come to him. He stated that he was present at the travel agency when the vehicle departed for Bullandsahar and in the crossexamination on behalf of accused Mehboob he stated that he can identify Shanu and another person Basir Ahmed @ Basiruddin, however he saw accused Mehboob in the police station for the first time. His statement was contradictory to PW Chandan Tyagi who had stated that at the time of booking of the Page 31 of 52 32 FIR No. : 176/06 PS : Bhajanpura vehicle, its owner Sh. Vikas and driver Pramod was present at the travel agency.
36. As regards the arrest version, PW12 Ct. Vijender testified that he alongwith Inspector Vijay Pal and SI Deshpal were present near Sarkari School, Pushta Khajoori Khas and at the instance of secret informer accused Shanu and Basir Ahmed @ Basiruddin were arrested at about 11:00 a.m. In the meantime public witnesses Anil and Vikas reached there and both of them identified both the accused. He in his cross examination stated that his statement was recorded by IO on 23.08.2006 at about 12:30 noon at Pushta, Sonia Vihar, Khajuri, Delhi. He does not remember at exact time of departure from police station. He does not recollect whether departure entry was made or not. He also does not recollect in which vehicle they had gone nor he knows when he left the police station. He stated that he does not remember whether the government school was opened. The distance between the spot of arrest and government school is about 70/80 mtrs. He does not remember from which side they came and does not remember when they returned to the police station.
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37. PW24 SI Deshpal similarly testified that at about 11:00 a.m. both the accused came and they were apprehended. The public witnesses came at about 11:30 a.m. In his crossexamination stated that the secret information was received at the office of special staff at about 9:00 a.m. They went to Khajuri Khas by private vehicle but cannot tell the description of the vehicle and its registration number. The vehicle was parked near the primary school and the disclosure statement was recorded while sitting in the vehicle in front of the school and they remained at the spot till 1:00 p.m.
38. PW32 Inspector Vijay Pal Singh testified that information was received at about 10:15 a.m. The disclosure statement was recorded in the government vehicle. They remained at pushta till 12:30 p.m. They had gone to the pushta in the government vehicle. Anil and Vikas came to pushta without calling. They came around 11:45 a.m.
39. Identification of the accused Shanu @ Sahil and Basir Ahmed @ Basiruddin by PW Vikas and his brother Anil is dramatic as it shown if they arrived at the spot by coincidence. There are inconsistencies Page 33 of 52 34 FIR No. : 176/06 PS : Bhajanpura regarding the time when the arrest was made and the witnesses arrived at the spot. One claims that accused persons were arrested at about 11:00 a.m. and public witnesses came at about 11:30 a.m. whereas other witness claims that they came at about 11:45 a.m. Identification memo of accused Shanu @ Sahil and Basir Ahmed @ Basiruddin shows that by coincidence at about 11:30 a.m. they arrived and identified them. PW Anil has categorically denied although admitted his signature. Therefore identification in the manner done by PW1 Vikas while accused Shanu @ Sahil and Basir Ahmed @ Basiruddin were allegedly arrested is doubtful. Further the testimony of this witness is also not worthy on which reliance can be placed. He initially in his statement identified accused Shanu and did not identify another person and later on being crossexamined by the prosecutor he identified accused Basir and also stated that he had identified accused Mehboob when he had gone to the police station. However, when he was cross examined again he does not name Basir Ahmed but only pointed towards him despite having named and categorically stated that he had seen accused Mehboob for the first time in the police station and Page 34 of 52 35 FIR No. : 176/06 PS : Bhajanpura denied his involvement in the case. Therefore, the prosecution failed to prove that the accused Shanu @ Sahil, Basir Ahmed @ Basiruddin and Mehboob @ Babu were last seen on 5.5.2006. Witnesses appears to be later on introduced to improve upon.
40. Now the next circumstance is recovery of the stolen vehicle i.e. maruti van. PW27 Sh. Ramjit Yadav, Dy. Superintendent of Police deposed regarding the apprehension of the accused Shanu @ Sahil and Mehboob @ Babu with vehicle DL7CB8104. In his crossexamination he testified that they had seen the vehicle at a distance of about 200 mtrs and had given signal to stopped the maruti van at the distance of about 50 mtrs. The said maruti van had come from the side of south. The driver of the maruti van took the left side prior to the chowk where they were standing. The width of the gali was about 12/15 ft. in which they took turn and ran towards west side. They chased the accused persons for about 20 mtrs. There was no public persons at that time due to night time. They over powered the accused persons immediately as they got down from the maruti van to run from there. The third persons who managed to escape ran towards the west side and they Page 35 of 52 36 FIR No. : 176/06 PS : Bhajanpura could not apprehend him due to the darkness in the street. PW28 SI Anjul Kumar on the other hand states in his crossexamination that they had seen the maruti van from the distance of about 25/30 steps. He and R. D. Mishra had given signal to the driver to stop the maruti van at a distance of about 25/30. The maruti van had stopped about 15/20 steps from them and again said had not stopped and the driver of the maruti van took the van at Charak Pathology wali gali. He could not tell the exact speed of the maruti van. However he stated that it was at a very high speed and the driver of the van took the turn of maruti van on speed in charak pathology wali gali i.e. west side. He also states that no ownership documents of the van were found in the maruti van. Both the witnesses are consistent in the manner the vehicle had come and was asked to stop.
41. It is submitted by Ld. Counsel for accused persons that the recovery is doubtful. However, the testimonies of both the witnesses is found consistent and joining of public witnesses in the late night at about 1:00 a.m. (night) is not possible. Moreover, in the manner the vehicle suddenly came and was asked to stop, there was no opportunity with Page 36 of 52 37 FIR No. : 176/06 PS : Bhajanpura the police officials to call for the public witnesses even after the apprehension of the accused since it was late hours, there was no possibility of joining of any public witness. Therefore PW27 and PW28 had proved that the accused Shanu and Mehboob were found in possession of stolen maruti van when they were trying to escape on 13.6.2006.
42. The third circumstance is about pointing out of the place. PW12 testified that the accused Shanu led the police party at the house at Sonia Vihar, Delhi of one Liaqat from where he purchased the tablets of intoxication but the accused Liaqat had not met them there. IO had prepared pointing out memo. On the next day, accused Shanu again made supplementary disclosure statement regarding commission of offence and led the police party at Sharma Hotel, Sikandrabad, UP, where they had given the said tablets of intoxication to deceased in tea. IO prepared pointing out memo. Thereafter both of them had taken police party to the Bullandsahar canal where they had thrown the dead body of the deceased near the flowing water. IO prepared pointing out memo. In the crossexamination he stated that he cannot tell the Page 37 of 52 38 FIR No. : 176/06 PS : Bhajanpura measurements and construction of the house of Liaqat nor he can tell the exact number of the house. IO did not call the pradhan of the area to join the investigation and admitted that the place was situated in the residential area. He also does not remember as to who met in the house of Liaqat. House of Liaqat even otherwise is not material point of the case. The material point can be Sharma Hotel where they had mixed intoxicant tablet in the tea and where they had thrown dead body. He states that he cannot tell in which jurisdiction of police station Sharma Hotel falls. He does not remember the time when they reached at sharma hotel. He does not remember how much public persons were present at sharma hotel when they reached. He could not tell the time when they reached at canal. There was no farmer or any other persons available at canal at Bullandsahar. He admitted that the canal is located at industrial area.
43. PW30 SI Pramod Anand testified that on 24.8.2006 he alongwith HC Brahmpal, Ct. Vijender and Ct. Samir and accused persons namely Shanu @ Sahil and Basir Ahmed reached at Sharma Hotel, Sikanderabad Road, Near Prakash Cinema at the instance of both the Page 38 of 52 39 FIR No. : 176/06 PS : Bhajanpura accused and both the accused had pointed out the Sharma Hotel where they had mixed intoxicant tablet of ativan in the tea of the Pramod. He made inquiries from the manager of the sharma hotel and recorded his statement. Thereafter they led to upper gang nahar and pointed out the place from where they had thrown the dead body. He prepared pointing out memo. He stated that they had gone for pointing out in a private vehicle make be Tavera Or Qualis at about 12:30 p.m. at Gang Nahar on 24.8.2006. They returned to Delhi in the night at about 10:00/11:00 p.m. No witness was found at the place of pointing out. The place of pointing out is thoroughfare and used by motorist. The place is not inhabitated near the place of pointing out. He admitted that no article or dead body or any other incriminating article was found at the place of pointing out. He states that the sharma hotel is located at the village Jokha on the Sikandrabad Road. They had recorded statement of Manager of the Sharma Hotel. The manager told them that the accused persons had taken tea at his house. He did not see any bill regarding sale of tea. He did not record the statement of any other employee.
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40 FIR No. : 176/06 PS : Bhajanpura
44. As per the pointing out memo Ex.PW12/J both the accused Shanu @ Sahil and Basir Ahmed @ Basiruddin while in the custody of police, simultaneously pointed out the sharma hotel. Similarly, they simultaneously pointed out the place of upper gang nahar where allegedly they had thrown the dead body. The statement in the police custody is hit by Section 25 and 26 Indian Evidence Act. Further so much of the information which leads to discovery of fact is admissible u/s 27 of Indian Evidence Act. The discovery of fact that they had mixed the tablet which they had administered to Pramod, driver was sharma hotel but the question is as to who has pointed out the place and against whom the said discovery of fact will be relevant and admissible, since both of them simultaneously pointed out the place. It cannot be said that it was the exclusive knowledge of one and hence the same cannot be attributed to any of them.
45. Same is the case with respect to the place where allegedly they had thrown the dead body. It is true that in Indian Law, discovery of the dead body is not essential to prove the charge of murder. However, Page 40 of 52 41 FIR No. : 176/06 PS : Bhajanpura there must be sufficient evidence on record to indicate that the person was dead for whom trial is conducted.
46. In the present case, it is true that the driver Pramod did not return after he had gone with the vehicle and vehicle was found in possession of accused Shanu @ Sahil and Mehboob @ Babu alongwith one another, yet, there is no effort made by the police to trace the dead body or the cloth of the deceased or any other belongings of the deceased which can distinctly prove that it belongs to driver Pramod. Although driver Pramod has not been heard of since he had gone alongwith vehicle. Yet conclusion cannot be arrived at merely by way of pointing out memo jointly made by two accused persons that he has died and his dead body has been thrown. Accordingly, I am of the opinion that the pointing out alleged prepared at the instance of accused persons are inadmissible against them as it does not lead to discovery of any fact.
47. Now coming to the last circumstance regarding recovery of RC at the instance of accused Shanu. PW12 Ct. Vijender states that accused Shanu had got RC of the vehicle recovered underneath of the mattress Page 41 of 52 42 FIR No. : 176/06 PS : Bhajanpura on the cot of his house. In his crossexamination he stated that they had gone to Aligarh alongwith accused persons via Bullandsahar and Sikandarabad by private vehicle but he could not tell the nature of vehicle whether it was jeap, scarpio, tata sumo, pajero and quails. He does not remember the time when they left the Delhi to go to Bullandsahar. He does not remember the name of the mohalla of Aligarh where they had gone. IO did not call the respectable persons or pradhan from the mohalla. He also does not remember the side of the gate of the house of Shanu at Aligarh. From the testimony of this witness, it is apparent that he has not visit the Aligarh and particularly to the house of accused Shanu. PW30 Pramod Anand similarly deposed regarding recovery of RC from the house of accused. In his cross examination he stated that he had requested the local residents nearby the place of recovery to join the investigation but they did not join the same. He admitted that the public persons had gathered on seeing the police party at Aligarh. The area of the house may be 70/8 sq. yards. It was single storey. There were two rooms. All the police team went inside the house. The mother of the accused Shanu was present inside Page 42 of 52 43 FIR No. : 176/06 PS : Bhajanpura the house. Her statement was not recorded nor her signature was obtained on recovery memo. Apparently this witness has stated that public witnesses were present but for the reasons best known to him none of them was joined even the mother of the accused was present when he went despite that he did not join them. It is also very surprising that vehicle in question was found at Lucknow without the document and the accused would instead of taking the RC in order to avoid interception by the police would keep the same underneath of mattress in his house. The RC of the vehicle is not such an article which the accused would keep in his house instead with the vehicle. Moreover from the testimony of the witness it is doubtful that they had gone to Aligarh for the recovery of RC and alleged RC recovered at their instance. It has also not come in evidence at any place that the recovered RC was in the said vehicle at the time of leaving for Bullandsahar even otherwise the RC of the vehicle can be obtained subsequently.
48. Now, coming to the role of accused Mehboob. The accused Mehboob was arrest on the production warrant and PW25 has categorically Page 43 of 52 44 FIR No. : 176/06 PS : Bhajanpura stated that accused Mehboob was without muffled face when he was taken and pointing out allegedly done by him is not admissible against him as even otherwise said place had come to the knowledge of police officials after the same was pointed out jointly by accused Shanu @ Sahil and Basir Ahmed @ Basiruddin. Accused Mehboob was admittedly seen for the first time at the police station by witness and therefore his identification for the first time in the police station and alongwith police does not have any evidentiary value. The police in this case before taking P/C remand of the accused Mehboob should have conducted test identification parade from the witness who could have identified him. Therefore there is no evidence against accused Mehboob as he is identified without test identification parade. However, I have already observed that there is evidence against him with respect to recovery of stolen vehicle.
49. As regards accused Liaqat. PW26 HC Sudhir and PW20 Ct. Arvind Kumar and PW33 Inspector Harpal Singh are the witness of arrest of accused Liaqat on the information of secret informer. PW20 Ct. Arvind Kumar stated that accused Liaqat was arrested and his disclosure Page 44 of 52 45 FIR No. : 176/06 PS : Bhajanpura statement was recorded wherein he disclosed that he can get recover empty strips of tablet ativan, which he has kept at the bathroom roof of the house of Meharban. Thereafter he led them to the house of Meharban at EBlock, Sriram Colony, Khajoori Khas, Delhi two strips of tablet ativan were got recovered at the instance of accused Liaqat. In his crossexamination he stated that the disclosure statement was recorded at the Ghonda Chowk but does not remember the time. He does not remember whether it is in the handwriting of Inspector Harpal Singh. He further states that at the house of Meharban, Meharban and his wife was present. Statement of meharban was recorded. The statement of wife of Meharban was not recorded. He had gone over the roof and taken out the tablet strips. The tablet strips was lying on the side of the brick on the roof of bathroom. The tablet strips was lying openly. The accused Liaqat was apprehended at about 7:30 p.m. Whereas PW26 HC Sudhir stated that the disclosure statement was recorded by IO at about 6:30/6:45 p.m. He stated that he does not remember whether wife and children of Meharban were present or not. The bathroom was situated at the right side direction of the house from Page 45 of 52 46 FIR No. : 176/06 PS : Bhajanpura the gate. He does not remember the distance of the bathroom from the main gate. The height of the tand of the bathroom is about 6 ½ ft and the roof of the bathroom is about 8/8 ½ ft. Both strips were taken out by accused Liaqat by himself. Both the strips were having dust. PW33 Inspector Harpal Singh stated that accused Liaqat got recovered two empty strips of ativan tablet from the roof of bathroom. In his cross examination he stated that accused had led to the house of Meharban. There was only one gate. The height of wall of bathroom was about 7ft and Ct. Arvind had lifted the strips as disclosed by accused Liaqat. Strips were lying open and not covered from anything. The testimony of all the three witnesses at the material points as to how strips were taken out are contradictory. Some witness states that he himself taken out the same whereas some witness claims that the same was removed by the Ct. Arvind as per the disclosure of the accused. On the other hand some witness claims that it was lying on tand which was place in between the roof and some claims that it was brought out from the roof. Admittedly strips of ativan tablet were empty and after taking out the tablet from them, they become useless. Why one would keep Page 46 of 52 47 FIR No. : 176/06 PS : Bhajanpura the same at a secure place like tand in his house so that it may be subsequently discovered. It is settled law that the recovery of useless items can be of no value in the eyes of law. Reference can be made from the judgment of our own High Court in case titled as Rakesh Kumar Vs. State, Vol. 163, DLT 2009, Page No. 658. Moreover the witness from chemist has categorically denied having made any statement that he has sold the tablet to accused Liaqat. Therefore there is no incriminating evidence against the accused Liaqat as regards conspiracy to commit murder is concern.
50. Accordingly, as per my above discussion, I am of the opinion that the prosecution has miserably failed to prove circumstance of last seen against accused Shanu @ Sahil, Mehboob @ Babu and Basir Ahmed @ Basiruddin. The prosecution also failed to prove that the charge u/s 365/302/201/120B IPC against accused persons. However, prosecution has succeeded in proving offence punishable u/s 411/34 IPC against accused Shanu @ Sahil and Mehboob @ Babu. Both accused have found in possession of vehicle which was taken by one Pramod from Delhi to Bullandsahar with passenger. Thereafter neither Page 47 of 52 48 FIR No. : 176/06 PS : Bhajanpura driver nor the vehicle was found that the vehicle was found in their possession after about one month when they were apprehended by UP police at Lucknow. Their defence is of total denial. In the face of consistent testimony of police officials from UP which is also also reliable and trustworthy, the defence does not stand.
51. Keeping in view the evidence of the police witnesses against them and recovery of vehicle offence punishable u/s 411 IPC stands proved against accused Shanu @ Sahil and Mehboob @ Basir beyond reasonable doubt. They are accordingly convicted for offence punishable u/s 411 IPC. However, other accused i.e. Basir Ahmed @ Basiruddin and Liaqat are acquitted of all the charges. Announced in the open court Today i.e. on 23.12.2009 GURDEEP SINGH ASJ04/NE/KKD/23.12.09 Page 48 of 52 49 FIR No. : 176/06 PS : Bhajanpura IN THE COURT OF SH. GURDEEP SINGH ADDL. SESSSION JUDGE04, NORTH EAST DISTRICT KARKARDOOMA COURTS, DELHI.
State Vs. Shanu @ Sahil etc. FIR No: 176/2006 PS: Bhajanpura U/s: 364/365/302/201/120B/ 328/392/411 IPC 23/12/2009 ORDER ON SENTENCE Pr.: Ld. Substitute Addl. P.P for State.
Convict Mehmood @ Babu in J/C with Sh. Abdul Sattar, Amicus Curiae, Advocate.
Heard on sentence for accused Mehboob.
It is submitted that convict is young person aged about 32 years and at the relevant time, he was just 30 years of age. It is submitted that convict is a poor person. It is further submitted that convict is not a previous convict and has clean antecedents. He is the sole bread earner of his family and has one unmarried sister, mother and brother to support. It is further submitted that accused Mehboob @ Babu is in J/C since 02.01.2007. Therefore lenient view is prayed for.
In my considered opinion, the ends of justice would be met in sentencing the convict Mehboob @ Babu to undergo rigorous Page 49 of 52 50 FIR No. : 176/06 PS : Bhajanpura imprisonment for the period of two years and eleven months i.e the period which he has already undergone for offence punishable U/s 411 IPC.
The benefit of Section 428 Cr.P.C be given to the convict. Copy of judgment and order on sentence be given to the convict free of cost. Case property be destroyed after the period of appeal. File be consigned to record room.
Announced in the open Court today i.e on 23.12.2009 (GURDEEP SINGH) ASJ04/NE/KKD/23.12.2009 Page 50 of 52 51 FIR No. : 176/06 PS : Bhajanpura IN THE COURT OF SH. GURDEEP SINGH ADDL. SESSSION JUDGE04, NORTH EAST DISTRICT KARKARDOOMA COURTS, DELHI.
State Vs. Shanu @ Sahil etc. FIR No: 176/2006 PS: Bhajanpura U/s: 364/365/302/201/120B/ 328/392/411 IPC 23/12/2009 ORDER ON SENTENCE Pr.: Ld. Substitute Addl. P.P for State.
Convict Shanu @ Sahil in J/C with Sh. A. A Khan, Advocate. Heard on sentence for accused Shanu @ Sahil. It is submitted that convict is young person aged about 26 years and at the relevant time, he was 22 years of age. It is submitted that convict is a poor person. It is further submitted that convict is not a previous convict and has clean antecedents. He is the sole bread earner of his family and has a family to support. It is further submitted that accused Shanu @ Sahil is in J/C since 25.08.2006. Therefore lenient view is prayed for.
In my considered opinion, the ends of justice would be met in sentencing the convict Shanu @ Sahil to undergo rigorous imprisonment Page 51 of 52 52 FIR No. : 176/06 PS : Bhajanpura for the period of three years i.e the period which he has already undergone for offence punishable U/s 411 IPC.
The benefit of Section 428 Cr.P.C be given to the convict. Copy of judgment and order on sentence be given to the convict free of cost. Case property be destroyed after the period of appeal. File be consigned to record room.
Announced in the open Court today i.e on 23.12.2009 (GURDEEP SINGH) ASJ04/NE/KKD/23.12.2009 Page 52 of 52