Delhi District Court
State vs Mohd. Rashid on 29 May, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.13/13
FIR No.200/12
PS Paharganj
U/s 302 IPC
State
Versus
Mohd. Rashid,
S/o Mohd. Safiq,
R/o Mohalla Kalghar (Kalkatta),
Allau Dada Road, Rampur (U.P.). .... Accused
Date of Institution: 07.02.2013
Date of Judgment: 27.05.2014
JUDGMENT
Mohd. Rashid has been facing trial for an offence under Section 302 IPC, on the accusation that during the period between 01.10.2012 to 02.10.2012 at Room No.207, IInd Floor of Hotel Karan Palace, Gali No.2, Chuna Mandi, Pahar Ganj, Delhi, he did commit murder of Smt. Shajia (his wife), whom he married for the second time after dissolution of first marriage. 1
2. On 02.10.2012 at 2.20 pm, information was received at PP Santrashan from Sh. Babu Lal, Receptionist of the hotel that a boy and a girl had stayed in the night in room no. 207, of their hotel; that boy had left the hotel during the night; and that on the next date when room was forced open, dead body of a girl was found lying on the bed.
Present case came to be registered on the basis of statement made by Sh. Babu Lal Shah, receptionist of the aforesaid hotel, recorded by SI Yashpal of PS Pahar Ganj on reaching the hotel.
SI Yashpal happened to reach the aforesaid hotel in the company of HC Kuldeep and WCt. Bhanwri on receipt of DD No.20 recorded at PP Sangtrashan.
It is case of prosecution that Ms. Shajia got married to the accused initially in the year 2010 and they lived together as husband and wife in the area of Mustafabad. The marital bond ultimately ended with divorce, in the very first year. Ms. Shajia then started residing with her parents.
It is alleged that in July, 2012, accused settled the matter and married Ms. Shajia once again and both of them started living together in street no. 2, Matkewali Gali, Chauhan Bangar. However, once again dispute arose between the two. Ms. Shajia started residing with her parents w.e.f. 21.08.2012. She submitted a complaint to DCP (NorthEast District) on 28.08.2012.
2
On 01.10.2012, accused is alleged to have contacted Ms. Shajia on phone and expressed desire to meet her. She left her parental house to meet him, but did not return home. She was found dead in room no.207 of the hotel.
On 02.10.2012, when SI Yashpal, HC Kuldeep and WCt. Bhanwri reached the hotel, they found dead body of Ms. Shajia lying there on bed. SI called crime team, which reached the spot and inspected it.
Inspector Subhash Meena also reached the spot with his staff. During spot inspection, one black colour chunni and black colour Tshirt (top), one bed sheet, two pillow covers, hairs, three glasses and two plastic water bottles, pair of lady chappal, a ladies purse, hair clip, one mobile phone from under pillow two broken mobile phones from the dustbin and keytake were recovered from room no. 207 of the hotel. These items were seized and sealed.
Police viewed CCTV footage of the hotel in presence of Sh. Babu Lal Receptionist. During display, the receptionist identified the girl and the boy who were seen entering the hotel, as Shajia and Rashid. Inspector Subhash Meena collected hard disc and got prepared a CD of the footage and seized the same. Hard disc was also seized.
Dead body was got removed from the spot to LHMC Hospital. Dr. Sanjay declared that it was a case of a lady 'brought dead' to the hospital.
On return from the hospital, WCt. Bhanwari produced before Inspector Subhash Meena, parcels containing jewellery and clothes of the deceased 3 said to have been removed by the doctor from the dead body. The dead body was identified by Jafru - brother and Mohd. Khalil - father of the deceased on 03.10.2012.
Inspector Subhash Meena informed SDM and as per his directions got the mother of the deceased produced before him. SDM recorded her statement.
Inspector Subhash Meena carried out inquest proceedings and then got the dead body subjected to autopsy. In the opinion of the doctor, it was a case of death because of asphyxia as a result of smothering.
Accused who was not traceable was arrested from Rampur by HC Arvind & Ct. Santbir and brought to Delhi.
Inspector Subhash Meena collected call detail record in respect of mobile phone of the accused; that of Shajia (since deceased) and that of Manoj - rickshaw puller. Said Manoj is stated to have brought the accused and his wife from near Avtar Hotel to Karan Hotel and got a room booked there.
When application was filed for holding of test identification proceeding, accused refused to participate in the proceedings. Subsequently, accused also refused to give blood sample for the purpose of DNA test.
3. On completion of investigation, challan was put in court. Copies of documents relied upon by the prosecution were supplied to the accused free of 4 costs U/s 207 Cr.P.C. Case came to be committed to the Hon'ble Court of Session.
Charge
4. When charge for an offence punishable under Section 302 IPC was framed on 28.10.2013, the accused pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
5. In order to prove its case, prosecution examined following witnesses:
PW1 Dr. Arvind Kumar To prove autopsy report.
PW2 Dr. Nihar Ranjan Mohapatra To prove MLC prepared by Dr.
Sanjay of LHMC Hospital.
PW3 SI Dhan Singh Incharge of Mobile Crime Team.
PW4 HC Tara Chand - Photographer Member of Crime Team. PW5 Ct. Ravinder To prove delivery of special report.
PW6 Ct. Mahesh To prove deposit of exhibits and
viscera at FSL on 14.11.2012.
PW7 SI Manoj Kumar To prove recording of FIR.
PW8 Sh. Babu Lal Sahu Who was serving as Receptionist at
Hotel Karan Place on 01.10.2012.
PW9 Inspector Mahesh To prove scaled site plan Ex.PW9/A.
PW10 Sh. Rajeev Ranjan To prove record pertaining to mobile
phone connection of the accused
and that of Manoj, rickshaw puller
with location chart.
5
PW11 Sh. M.B. Malhotra - SDM To prove recording of statement of
Shamim, mother of the deceased on
04.10.2012.
PW12 Sh. Manoj Rickshaw puller.
PW13 Sh. Ali Hasan Who helped Shajia in filing of
complaint against the accused with
DCP and CAW Cell.
PW14 Smt. Shamim Bano Mother of deceased.
PW15 Ms. Nisha Sister of deceased.
PW16 WASI Suman Rana Who was conducting the inquiry on
the complaint of Shajia filed at CAW
Cell.
PW17 WCt. Bhawri Who participated in investigation.
PW18 HC Arvind Kumar Who participated in investigation.
PW19 Sh. Aslam Brother of the deceased.
PW20 HC Kuldeep Tyagi Who participated in investigation.
PW 21 SI Yashpal Who partly investigated the case.
PW 22 Sh. Naveen Gupta, Addl. Sr. To prove Test Identification Civil Judge Proceeding in which the accused refused to participate.
PW 23 HC Akhilesh, concerned Who dealt with the case property. MHC(M) PW 24 Inspector Subhash Meena Investigating Officer of the case. Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused persons admitted that his marriage with Shajia took place in the year 2010. According to him, it was love marriage. After marriage, they started residing at a tenanted premises in the area of Mustafabad. He has denied that his family members were residing 6 there with them.
Accused has denied factum of second marriage. He has denied execution of nikahnama Ex.PW24/G. Accused has admitted that marital bond was dissolved about nine months' after the marriage, but denied that he used to illtreat or give beatings to Shajia. According to the accused, he returned all the articles given at the time of marriage. He paid a sum of Rs.50,000/ to her by way of mehr. He denied to have extended any threat to Shajia. He further denied to have lived together with Shajia after divorce. He also denied to have made any phone call to her on 01.10.2012. He also denied to have contacted Manoj - rickshaw puller or to have availed of his services in getting any room booked at Hotel Karan or to have visited the said hotel or stayed there at room no.207 in the company of Shajia. He displayed ignorance if dead body of Shajia was found lying dead in room no.207.
As regards his arrest, he stated that he was brought by Delhi Police from Muradabad and then falsely implicated in this case.
As regards mobile phone no.9289832161 his plea reads as under : "This mobile phone connection was got issued by Shajia on my ID. I did not make any such call during the period from 01.09.2012 to 10.10.2012. Shajia had also got issued another mobile phone connection on my ID."
7 So far as refusal to participate in Test Identification Proceeding is concerned, plea of the accused is that since he was shown by the police to the witness at the police station, he refused to participate.
As regards refusal to give sample of blood, his plea is that since earlier police had obtained his blood sample at the hospital, he refused to given at the second time.
Accused has opted not to lead any evidence in defence.
7. Arguments heard. File perused.
8. As noticed above, as per prosecution version, on 02.10.2012, at about 2.00 p.m., Shajia was found lying dead in room no.207 of hotel Karan Palace, Gali No.2, Chuna Mandi, Pahar Ganj, Delhi, when the staff of the hotel forced open the door of the room. Accused is alleged to have committed her murder after having brought her there on 01.10.2012 at about 11.00 a.m. There is no eye witness to the commission of murder. Case is based on circumstantial evidence.
Evidentiary value of circumstantial evidence
9. The law regarding circumstances evidence is well settled. Hon'ble Apex Court has laid down the following principles :
1. the circumstances from which the conclusion of guilt is to be drawn should be fully established.
2. the facts so established should be consistent only with the 8 hypothesis of the guilt of the accused that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. the circumstances should be of conclusive nature and tendency.
4. they should exclude every possible hypothesis except the one to be proved and
5. there must be a chain of evidence complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Reference in this regard may be made to the decision in Padala Veera Reddy Vs. State of Andhra Pradesh & Ors. AIR 1990 SC 79 and Chenga Reddy & Ors. Vs. State of Andhra Pradesh (1996) 10 SCC 193.
Herein , prosecution has relied on following circumstantial evidence :
1. Medical Evidence
2. The accused calls Ms. Shajia on 01.10.2012 and she meets him.
3. Accused brings Ms. Shajia to hotel Karan Palace, Paharganj, riding rickshaw of PW12 Sh. Manoj.
4. The accused and the deceased last seen together in room no.
207 at hotel Karan Palace on 01.10.2012 and he escapes during 9 the night.
5. Accused refuses to participate in Test Identification Proceedings.
6. Accused refuses to give specimen sample of blood for DNA Test.
7. Motive
10. In view of the above settled legal proposition on the point of evaluation of circumstantial evidence, this court proceeds to discuss the circumstances relied on by the prosecution to find out if the prosecution has been able to establish any of these circumstances and as to what conclusion the same lead so far as the accusation levelled against the accused is concerned.
Medical Evidence
11. Case of prosecution is that from room no. 207 of the hotel Karan Palace, dead body of Ms. Shajia was removed to hospital where it was medicolegally examined and ultimately subjected to autopsy.
It is in the statement of PW17 Ct. Bhanwari Devi that she took the dead body to the hospital from Room No.207, hotel Karan Palace. It is in her statement and in the statements of PW21 SI Yashpal, PW20 HC Kuldeep & PW24 Inspt. Subhash Meena that on 21012 when they reached Room No. 207 they saw dead body of a girl aged about 2425 years lying on double bed.
As per MLCs Ex.PW2/A an unknown female, aged 25 years was brought to LHMC College and Smt. S.K. Hospital, New Delhi on 21012 at 7.20pm by W.Ct. Bhanwari Devi. Dr. Sanjay medico legally examined the victim & 10 declared her brought dead.
Autopsy on the dead body was conducted by PW1 Dr. Arvind Kumar. The doctor has proved postmortem examination report Ex.PW1/A. It was also signed by Dr. Pradeep Yadav, who joined him in conducting autopsy.
The doctor observed following fresh antemortem injury on the dead body:
"Face appeared swollen and bloated. Hemorrhagic discharge/fluid coming out from mouth and nose. Lower lip left side 2 X 1 cm mucosa abraded, extravassation of blood seen diffusely on cut section. Lips edematous. Tip of tongue contused in an area of 0.5 X 0.5 cm".
In the opinion of the doctor, cause of death in this case asphyxia as a result of smothering, which is sufficient to cause death in ordinary course of nature.
The probable duration that elapsed between death and postmortem examination was about 1½ day. Postmortem examination was conducted on 31012 at 2.20pm.
In view of the above medical evidence, which has gone unchallenged, it stands established that Ms. Shajia was murdered on the night intervening 01/02.10.2012.
The question arises as to who murdered Ms. Shajia on the aforesaid night in Room No.207 of the hotel?
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Prosecution has alleged that it is the accused who murdered Ms. Shajia. Accused has denied his involvement in the crime or to have called Shajia on her mobile phone, met her, accompanied her to the hotel on 01.10.2012 or to have stayed with her in the said room of the hotel. The accused calls Ms. Shajia on 01.10.2012 and she meets him
12. As noticed above, it is case of prosecution that accused called Shajia on 01.10.2012 on phone and expressed his desire to meet her and thereupon she left her parental house came to see him and accordingly joined him.
To prove making of call by the accused on the phone of Shajia IO could easily collect Call Detail Record in respect of mobile phone of Shajia. The Inspector, while appearing in court as PW24 stated to have collected Call Detail Record in respect of mobile phone of Shajia as well, but this court does not find on record any such Call Detail Record in respect of mobile phone of Shajia.
PW16 PW16 WASI Suman Rana has proved Ex.PW24/D, photocopies of the order sheets regarding the proceedings conducted in CAW Cell. From these proceedings, it transpires that a complaint was filed by Ms. Shajia against Mohd. Rashid (accused). This proceeding sheet reveal that on 10.10.12 the inquiry officer was apprised of murder of Ms. Shajiacomplainant and that WASI had contacted on the given phone number 7838271936. This is the 12 mobile phone number of Ms. Shajia, furnished to CAW Cell authorities.
A perusal of CDR of the mobile phone of the accused would reveal that he contacted Ms. Shajia on her aforesaid mobile phone number on 01.10.2012 at 09:32:24 . Ten other calls were made from the mobile phone of the accused on the same day, on the mobile phone of Ms. Shajia at the following time: (1) 10:25:29 (6) 10:39:31 (2) 10:26:16 (7) 10:42:03 (3) 10:30:59 (8) 10:43:13 (4) 10:35:58 (9) 10:48:13 (5) 10:38:00 (10) 11:16:57 Accused has come up with the plea that Ms. Shajia had got issued mobile phone using his ID. But he has not led any evidence or brought anything in the prosecution evidence, in support of this plea. Therefore, this plea of the accused is without any basis.
Prosecution has examined PW14, PW15 & PW19 to prove that Ms. Shajia left her parental house on 01.10.2012 to meet the accused on receipt of his call.
PW14 PW14 Smt. Shammim Bano is mother of Shajia. According to her, on 01.10.2012, her younger daughter, Nisha, told her that Shajia had gone to meet her husband and not returned thereafter. This statement of PW14 is 13 hearsay evidence as it is not case of prosecution that Shajia received any such phone call in her presence. PW14 admitted in her cross examination that her daughter did not inform her while leaving the house.
PW19 PW19 Mohd. Aslam is brother of Shajia. According to him, his sister Shajia told him at 9.00 a.m. regarding a phone call from the accused and that he had called her. So telling him, she left the house to see the accused but she did not return home.
The fact remains that Shajia did not receive phone call in presence of PW19 and he learnt about it only from Shajia.
PW15 PW15 Nisha, younger sister of Shajia has stated that on 01.10.2012 Shajia received a phone call from accused asking her to meet at Seelampur. At 9.00/10.00 a.m., she left the house telling her that she was going to meet him (accused) at Seelampur. However, she did not return home in the evening.
From the above evidence, it can be said that Shajia left the house on 01.10.2012 at about 9/10.00 a.m to meet the accused.
The electronic evidence led by the prosecution, it stands establishes that the accused remained in constant touch with Ms. Shajia on 01.10.2012. This evidence lends corroboration to the prosecution version that it is accused who 14 called Ms. Shajia on 01.10.2012 and took her along. Accused brings Ms. Shajia to hotel Karan Palace, Paharganj, riding rickshaw of PW12 Sh. Manoj.
13. In order to prove this circumstance, prosecution has relied on the statement of PW8 Sh. Babu Lal Sahu, the receptionist of the hotel and PW12 Sh. Manoj Kumar, rickshawpuller.
PW12 Sh. Manoj Kumar rickshawpuller.
Sh. Manoj has been examined by the prosecution as PW12 to prove that it is he, who brought the accused and the lady to hotel Karan Palace on 01.10.2012, in his richshaw, from near Avtar hotel.
Statement to this witness was recorded in court on 19.03.2014. According to PW12, he used to ply rickshaw in the area of Paharganj. About 1½ year back (prior to 19.03.2014 i.e. the recording of his statement in st court), on 1 October, he was present near New Delhi Railway Station, with his rickshaw, when he received a call on his mobile phone from Mohd. Rashid, accused one of his customers. Mohd. Rashid inquired from him if he could arrange a room for him and his wife, and he relied in affirmative. The accused then inquired from him as to where he was at that time. According to the witness, the accused told that he and his wife had already reached near hotel Avtar in the area of Paharganj. When he (the witness) inquired as to how he shall recognize him, the accused apprised him of the clothes he was wearing. 15 He also inquired as to where was the hotel in which he was going to make arrangement of a room for him. According to the witness, he then reached near Avtar hotel and recognized Mohd. Rashid accused. At that time, he was accompanied by a lady. The accused introduced her as his wife. Then, he took the accused and the lady accompanying him to Karan Guest House in the area of Paharganj, introduced Mohd. Rashid to Babu Lal, Manager of the guest house and arranged a room for them. Having left the accused and the lady at the reception, he returned.
It is in the cross examination of this witness that he knew Babu Lal, Manager for last 56 years. According to this witness, his house is situated near the guest house. He used to bring customers for the said guest house and get commission. This goes to show as to why PW12 took the accused and Ms. Shajia to the said hotel.
In his crossexamination PW12 Manoj stated that accused had obtained his mobile phone number from him, 23 days prior thereto when he was present in front of New Delhi Railway Station with his rickshaw. At that time, he had also inquired about availability of room and that he had replied in affirmative.
Learned defence counsel has rightly pointed out that the witness improved upon his previous statement Ex.PW12/DA where the fact of the accused having met him 23 days prior thereto does not find mention therein. 16
But this improvement does not adversely affect the case of the prosecution as the call details record supports testimony of this witness that conversation on phone took place between him and accused on 01.10.2012.
Call Details Record PW10 Sh. Rajiv Ranjan, Nodal Officer from Tata Telecom has proved documents Ex.PW10/A to Ex.PW10/H. Ex.PW10/A is copy of customer application form of Manoj S/o Deep Chand (PW12). Ex.PW10/B is copy of voter Icard furnished by PW12 at the time he applied for mobile phone connection. According to PW10, aforesaid Manoj Kumar was allotted mobile phone connection no.9250250702. Call detail record of this phone for the period from 01.09.2012 to 10.10.2012 is Ex.PW10/C. Statement of PW10, on the aforesaid aspects, has not been challenged.
PW10 Sh. Rajiv Ranjan has also proved that mobile phone connection no.9289832161 was allotted to Rashid (accused herein). Photocopy of customer application form is Ex.PW10/D and that of his voter Icard Ex.PW10/E. Call details record of this phone from 01.09.2012 to 10.10.2012 is Ex.PW10/F. Statement of PW10 regarding allotment of the aforesaid mobile connection of accused has also gone unchallenged.
A perusal of Call Details Records of both the mobile phones i.e. of Manoj and that of the accused reveal that on 01.10.2012 at about 10:16:52, 17 phone call was made from the mobile phone of the accused on the mobile of Manoj.
On the same day, the second call was made from the first mentioned mobile phone on the mobile of Manoj at 10:16:57; the third call was made at 11:53:52 and fourth call was made at 11:58:15. In the meanwhile at 11:17:37, a call was also made from the second mentioned phone number on the first mentioned phone number (i.e. of the accused).
Location chart Ex.PW10/G reveals that initially when the accused contacted Manoj Kumar at 10:16:52, he was in the area of Naveen Shahdra, Delhi.
At the time of second call at 11:16:57 whereas the accused was within the range of tower of Bhagirath Palace, New Delhi, Manoj - the rickshaw puller was within the range of tower of Paharganj.
At the time call was made at 11:53:52, accused was within the range of tower of Asaf Ali Road, whereas accused was within the range of tower in Paharganj.
From the aforesaid electronic evidence, prosecution has established that conversation took place between the accuse and Manoj - rickshaw puller on 01.10.2012 initially at 10:16:52 and then at 10:16:57; 11:17:37; 11:53:52; 11:58:15.
PW12 Sh. Manoj has even identified the accused as the person who 18 was accompanying the aforesaid lady and whom he took to hotel Karan Palace and helped in getting the room arranged there.
PW8 Sh. Babu Lal Sahu, Receptionist of the Hotel According to this witness, on 11012, at about 11.40 am, Manoj (PW12), resident of Paharganj came to him accompanied by a guest and a lady, and represented them as husband and wife. Said Manoj hired Room no. 207 and after having collected key of the room left the reception in the company of the couple, for the aforesaid room.
As further stated by the witness, at about 1.30pm the couple had lunch in Room no.207 after the waiter supplied them meals there. On the next day, at about 2.00 pm, he sent Rizwan, a waiter to Room No.207 to check the room. Rizwan came and told that room was lying locked from inside. Thereupon he accompanied Rizwan to the room. Rizwan pulled the handle of lock with force and the door got opened. Lights in the room were lying switched off. They switched on the lights and saw the female guest lying dead on the bed. Then, he rang up police of police post Sangtarashan. Police reached the hotel and recorded his statement. Witness has proved his statement Ex.PW8/A. A perusal of Ex.PW8/A reveals that it was recorded on 21012 by SI Yashpal Singh, Incharge of police post Sangtarashan and dispatched from the spot i.e the hotel at 5.15pm.
19
Ex.PW21/B is copy of DD no.20 recorded at police post Sangtarashan on 21012, at 2.20pm, on telephonic information received from Sh. Babu Lal Sahu. As per its contents, the information was that a boy and a girl had come and stayed at room no.207 of the hotel and whereas the boy had left during the night and not returned, the girl was found lying dead on the bed when the door of the room was forced opened and the room was checked. This entry reveals that matter was assigned to Incharge SI Yashpal and he accompanied HC Kuldeep, W.Ct. Bhanwari Devi and other staff to the spot.
PW17 W.Ct. Bhanwari Devi, PW20 HC Kuldeep and PW21 SI Yashpal have narrated the manner in which they happened to reach room no.207 and found the dead body of a girl, aged 2025 years, lying on the bed in room no. 207 of the hospital.
As regards the identity of the boythe male guest (accused), PW8 Babu Lal Sahu has also identified the accused as the male guest.
Learned Defence counsel has contended that no entry was recorded in the register said to have been maintained at the hotel and as such it cannot be said it is the accused, who was accompanying Ms. Shajia on the given date and time or that he stayed with her in room no.207 of the hotel.
PW8 Babu Lal Sahu has candidly admitted in his cross examination that before allowing entry to room got booked, they record entry in the register about its booking and before booking they verify identity of the guests from 20 documents and retain copies of ID proof. He has further admitted that as per the practice, address of the guest is recorded in the register and their signatures are obtained in it.
As regards present booking, PW8 Babu Lal Sahu has clearly stated to have not made any entry in the register maintained at the hotel. The reason for not recording of entry, as furnished by PW8, is that Manoj, who had brought the couple told him that the couple would send their IDs from room after sometime.
It may be mentioned here that accused made statement before Metropolitan Magistrate that he had hired room in the hotel and that he refused to participate in Test Identification Proceedings stating that the staff of the hotel would identify him for the aforesaid reason.
From the statement of PW12 Manoj Kumar, it stands proved that he saw the accused and the girl (since deceased) together, took them from near Avtar Hotel to hotel Karan Palace and got a room arranged for them there.
There is nothing in the statement of PW12 to suggest that he was interested in the complainant or prosecution or inimical against the accused so as to falsely get him implicated in a case of murder.
From the statement of PW8 Babu Lal, it stands proved that it is the accused who was accompanying the girl (since deceased) at the time they 21 reached the Reception of hotel on 01.10.2012 at 11.40 a.m., accompanied by Manoj (PW12).
There is nothing in the statement of PW8 that he was inimical against the accused so as to falsely identify him as the person accompanying the lady who was found murdered in the said room.
Nonrecording of entry in the relevant register of the hotel does not adversely affect the case of prosecution so far as stay of the accused and the girl at room no.207 on 01.10.2012 after the same was got booked, is concerned.
The accused and the deceased last seen together in room no. 207 on 01.10.2012 and the accused escaping during the night.
14. It is in the statement of PW8 Sh. Babu Lal that on 01.10.2012, at about 1.30pm the couple had lunch in Room no.207 after the waiter supplied them meals there. On the next day, at about 2.00 pm, he sent Rizwan, a waiter to Room No.207 to check the room. Rizwan came and told that room was lying locked from inside. Thereupon he accompanied Rizwan to the room. Rizwan pulled the handle of lock with force and the door got opened. Lights in the room were lying switched off. They switched on the lights and saw the female guest lying dead on the bed. Then, he rang up police of police post Sangtarashan. Police reached the hotel and recorded his statement. Witness has proved his statement Ex.PW8/A. 22 Prosecution has not examined the waiter. But his nonexamination does not adversely affect the case of prosecution in view of the convincing statement of Sh. Babu Lal regarding booking of room no. 207 for the accused and the accompanying lady, who was subsequently found lying dead in the said room.
Learned defence counsel has rightly pointed out that from electronic evidence, prosecution has not been able to establish identity of the accused and the girl as the couple entering the hotel, got room no.207 booked or stayed there.
It has come in prosecution evidence that CCTV cameras were lying installed at the reception of hotel Karan Palace. According to the Inspector Subhash Meena, he seized hard disc of the CCTV camera. Then he got a CD prepared from the hard disk and also copied the data in a pendrive.
It is in the statements of PW20, PW21, PW8 that CCTV footage was played at the hotel and PW8 Sh. Babu Lal identified the boy and the girl as the accused and the deceased. But no reliance can be placed on the electronic evidence available in the form of hard disc, CD and pendrive. According to the Inspector Subhash Meena, he got the CD prepared from Mohan Singh Basra, private computer engineer. Firstly, there is no certificate U/s 65B of Evidence Act from the concerned person who prepared CD or copied data in pen drive. Secondly, because the IO has not cited Sh. Mohan Singh Barsa as a witness 23 and thirdly, because when the technology devices played in Court, persons visible therein were not identifiable because of poor quality of CCTV footage.
Even if the electronic evidence in the form of CCTV footage is discarded, this court does not find any ground to discard the testimony of PW8 Babu Lal and PW12 who have fully supported the prosecution version that the accused accompanied by the lady (since deceased) got the room booked on 01.10.2012, at about 11.40 a.m. and stayed there with her.
PW16 WASI Suman Rana has proved Ex.PW24/D, photocopies of the order sheets regarding the proceedings conducted in CAW Cell. From these proceedings, it transpires that a complaint was filed by Ms. Shajia against Mohd. Rashid (accused). This proceeding sheet reveals that vide order dated 14.09.12 notice was ordered to be sent to Mohd. Rashid by post for 19.09.12. On 19.09.12 neither the complainant nor the accused appeared. Complaint was then listed for 01.10.2012. Even on 01.10.12 i.e. fateful day the complainant did not appear at CAW Cell. She could not be contacted even on phone as further recorded by W.ASI Suman Rana. This lends corroboration to the prosecution version discussed above that on 01.10.2012 she was with the accused.
Accused refuses to participate in Test Identification Proceedings.
15. It is case of prosecution that accused refused to participate in Test Identification Proceedings. In this regard, prosecution has relied upon 24 statement of PW22 Sh. Naveen Gupta, Metropolitan Magistrate who conducted proceedings Ex PW22/B on application Ex PW22/A moved by the IO.
Proceedings Ex PW22/B reveal that accused was produced before the Metropolitan Magistrate, with muffled face, but he refused to participate in Test Identification Proceedings despite warning that from his refusal an adverse inference could be drawn during trial against him. Accused is alleged to have refused to participate on the plea that he had hired room in the hotel and as such hotel staff would identify him in connivance with the police and further that his photographs had been taken.
Accused has not brought any material on record to suggest that his photographs were taken by the police subsequently. Rather he admitted before the Metropolitan Magistrate in these proceedings to have hired a room in the hotel. In the given situation an adverse inference can safely be drawn against the accused that had he participated in the Test Identification Proceedings, he would have been identified by PW8 Babu Lal Sahu and others.
Accused refuses to give specimen sample of blood for DNA Test
16. It is case of the prosecution that besides other items seized from room no. 207 one bed sheet having brown and dirty stains (mark as 6a as shown in FSL report Ex P4) was also seized and sent for analysis. Senior Scientific 25 Officer (Biology) opined that male profile was generated on the source of Ex 6a (area 2semen stains on bed sheet.) However, male DNA profile on the exhibit 6a (area 2semen stains on the bed sheet) could not be compared as no male profile was generated on the exhibit 7c1 and 7c2 (vaginal slide of deceased.) Thereupon prosecution moved an application for fresh blood sample of the accused. But the accused when taken to FSL refused to given any sample. In this regard, prosecution has relied on report Ex PW24/D issued by Assistant Director (Biology). Accused has not furnished any reasonable explanation for not providing fresh blood sample. So, adverse inference has to be drawn against the accused that had he provided the blood sample, the evidence of semens stains on the bed sheet would have also connected him with the present crime supporting the prosecution version about his presence in the room on the given date and time.
Motive
17. It is case of prosecution that initially the accused married Shajia in the year 2010, but their marital bond did not last long and it was got dissolved in the very first year. Accused has admitted the factum of his marriage with Shajia in year 2010 and its dissolution.
Case of prosecution is that within two months of the divorce, accused married Shajia and both of them started living in the area of Chauhan Bangar. 26 Accused has disputed factum of second marriage with Shajia.
Ex PW24/G Nikahanama Prosecution has placed on record nikahnama Ex.PW24/G. But this document has not been got duly proved by examining author of the document or an attesting witnesses named therein or any person who participated in the marriage. Therefore, no reliance can be placed on this document Ex.PW24/G. PW16 Prosecution has examined PW16 WASI Suman of CAW Cell, who was assigned complaint of complainant Shajia, for inquiry. She produced before the IO of this case photocopies of those documents and same were seized vide memo Ex.PW16/A. PW24 Inspector Subhash Meena has deposed that the document collected by him are Ex.PW24/E. These documents were exhibited only for the purposes of identification. Prosecution should have got examined any person acquainted with handwriting and signatures of Shajia to prove that such and such complaint was filed by her. The original documents i.e. the complaint and the accompanying documents were never produced before the court for the purpose of proper proof.
PW13 Prosecution has examined PW13 Ali Hasan who helped Shajia in filing of complaint with CAW Cell. But his testimony also does not help the prosecution in order to prove allegations levelled by Shajia against accused. 27
Prosecution has not been able to establish as to what were the allegations levelled by Ms. Shajia against Mohd. Rashid and as to on which allegations she filed a complaint with CAW Cell on 28.08.2012. But it stands established that she filed a complaint against the accused and same was pending with CAW Cell and notice had been ordered to be issued against the accused for 19.09.2012. It appears that on having come to know about the pendency of the complaint with CAW Cell, the accused contacted Ms. Shajia called her to meet him took her to Karan hotel with ulterior motive i.e. to do away with her on account of filing of complaint with CAW Cell.
18. As discussed above from the medical evidence it stands established that Ms. Shajia died on the night intervening 01/02.10.12. The prosecution has established arrival of accused and Ms. Shajia in the hotel as 01.11.2012 at 11.40 am presence of the accused in the hotel and then in room no.207 thereof.
Section 106 of Evidence Act reads as under: "Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
Learned Addl. Public Prosecutor has rightly argued that in view of the evidence led by the prosecution and provisions of Section 106 of Evidence Act, it was for the accused to explain as to under what circumstances Ms. 28 Shajia died. Accused has failed to put forth any explanation as to how Ms. Shajia whom he was accompanying, in room no.207 came to be murdered. Nonexplanation speaks volume against him regarding his involvement in the crime.
Conclusion
19. In view of the above findings, this Court finds that prosecution has established that it is the accused who called Ms. Shajia on 01.10.2012, met her and took her along in the rickshaw driven by PW12 Manoj Kumar, from near Avtar Hotel to Hotel Karan Palace, got a room booked there with the assistance of PW12 Manoj Kumar, stayed at room no. 207 w.e.f. 11.40 am, and absconded from there during the night intervening 01/02.10.2012, after having murdered Ms. Shajia in the said room. This Court does not find any gap in the chain of these circumstances established by the prosecution. The circumstances established are consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
Accordingly, accused Rashid is held guilty of the offence under Section 302 IPC and convicted thereunder.
Be put up on 28.05.2014 to hear the convict on the point of sentence.
Announced in Open Court
on 27.05.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
29
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.13/13
FIR No.200/12
PS Pahar Ganj
U/s 302 IPC
State
Versus
Mohd. Rashid.
ORDER ON SENTENCE
29.05.2014
Present: Sh. Rakesh Mehta, Addl. P.P. for State.
Convict in JC, with Ms. Chitra Mal, counsel from DLSA. Heard on the point of sentence.
Convict and learned counsel from DLSA have prayed for leniency on the point of sentence.
It stands established that the convict called Ms. Shajia from her house on phone, took her to room no. 207 of the hotel and done her to death during the night and fled away.
Having regard to all the facts and circumstances, the offence proved against the accused i.e. U/s 302 IPC and the manner in which he killed Ms. Shajia who has filed complaint against him with CAW Cell,, the convict is hereby sentenced 30 to undergo Imprisonment for Life and to pay a fine of Rs.25,000/, or in default of payment of fine, he shall undergo further Rigorous Imprisonment for two months, for the offence U/s 302 IPC.
The period of detention already undergone by the convict during investigation, inquiry and trial to be set off against the period of sentence.
Case property be disposed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 29.05.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
31