Delhi District Court
State vs Mohd. Naseem@ Kaka Etc on 23 December, 2024
IN THE COURT OF MS. SHILPI JAIN, ADDITIONAL
SESSIONS JUDGE-02, TIS HAZARI COURTS, DELHI
STATE Vs. MOHD. NASEEM@KAKA & ANR.
Sessions Case No. 303/2017
FIR No. 408/2016
Police Station Daryaganj
Date of Committal 17.04.2017
Name of the Complainant State represented by Sh.
K.P.Singh,Addl. PP for the State
Name of the Accused/s Mohd. Naseem@Kaka & Mohd.
Amir Khan@Aryan
Offence Complained of 302/34 IPC
Plea Of The Accused Pleaded Not Guilty
Arguments Heard/Order Reserved 17.12.2024
On
Final Order Acquitted u/s 302/34IPC
Date of Such Order 23.12.2024
J U D G M E N T:-
1. Brief facts of the case are that on 10.12.2016, telephonic call was received at PS Daryaganj regarding a dead body lying on Prakash Chand Marg towards JLN Marg between railing and Delhi Metro fencing. The same was reduced in writing vide DD no.9A and it was marked to Inspector Vinod Kumar. After receipt of said DD, Inspector Vinod Kumar along with SI Pritam Singh, Ct Anil, Ct. Rajeev and driver/Ct. Abhay Singh reached at the spot in a Government gypsy bearing registration No. FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.1 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:56:55 +0530 DL-1CT-0561. They met Ct. Hawa Singh at the spot. SHO Daryaganj also reached at the spot. They found a dead body of one unknown male person lying between the railing of railway track and Delhi Metro fencing. There was a deep wound caused by sharp edged weapon on the neck of the dead body and blood was scattered around it. The dead body was lying on its side facing south direction, its head was in east direction and its feet in west direction. The age of dead body was between 25-26 years, height of 5'6'', oval face, complexion whitish, black & long hair, black beard and black mustaches. It was wearing blue jeans pant, black colour rexine belt, grey colour underwear having 'BENETTON', white colour vest, black jersy 'pepe Jeans' & white logo and red colour rexine jacket. It was wearing black colour socks in its feet. A sky blue colour cap & on its back 'Nike' was written was lying near head of the dead body and blue colour shoes with strip of orange colour and 'speed' was written on them were lying near feet of the dead body. No witness was found near the place of spot.
2. The Crime Team was called who inspected the spot and took photographs. The Crime Team, FSL, Rohini was also called to inspect the spot. Efforts were made for identification of the dead body but its identification could not be done. Thereafter, IO sent Ct. Hawa Singh for preservation of the dead body for 72 hours to Maulana Azad Medical College Mortuary. On the basis of inspection of the spot and the dead body, the offence u/s. 302 IPC is made out. IO prepared the rukka and sent it through Ct. Rajeev to police station Daryaganj for registration of the FIR. After registration of the FIR, IO also sent its copies to Ld. MM FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.2 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:56:59 +0530 and senior officers. SI Pankaj Kumar, Incharge, Crime Team gave his inspection report to IO Inspector Vinod Kumar. IO recorded statement of witnesses u/s. 161 CrPC. During investigation, the exhibits( blood stains, shoes and cap) were lifted from the spot and seized by the IO on the same day i.e.10/12/16. The dead body of deceased was identified as Mohd. Salman by secret informer and thereafter statement of brother and uncle of deceased was recorded qua identification on 11/12/2016. Postmortem of body of deceased was conducted at Molana Azad medical college on 11/12/2016. Both the accused persons were arrested at the instance of secret informer and their disclosure statement was recorded. Thereafter, alleged weapon of offence i.e. red paper cutter was recovered from the park at the instance of accused person. It is further the case of prosecution that blood stained clothes were also recovered from the house of accused Naseem@Kaka at his instance. Thereafter, opinion regarding injury on the hand of accused Naseem@Kaka was obtained from concerned doctor. It is further the case of prosecution that blood stained clothes of accused amir were also recovered from the house of Sayra bano at the instance of accused amir. Medical examination of both the accused persons was conducted and seized exhibits were sent to FSL.
3. After completion of investigation, chargesheet was filed in the Court.
4. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.3 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:57:03 +0530 CHARGE
5. On 17.07.2017, Ld. Predecessor framed charge against accused persons namely Mohd. Naseem Kaka and Mohd. Amir Khan @ Aryan for the offence punishable u/s 302/34IPC to which they pleaded not guilty and claimed trial.
ADMISSION-DENIAL OF DOCUMENTS U/S 294 Cr.P.C.
6. On the basis of admission-denial of documents all the DD writers and PWs namely Inspector Manohar Lal, Dr. Rakshit, Dr. Surya, Dr. Mohit Chauhan, Pooja Malhotra and Ram Prasad (both from FSL) and Principal M.C. Primary Model Boys School were dropped from the list of witnesses vide order dated 04.07.2019 passed by Ld. Predecessor.
7. Further, PW Ct. Anil and PW SI Mahipal were also dropped from the list of witnesses being witnesses of repetitive facts vide order dated 22.10.2019 passed by Ld. Predecessor.
PROSECUTION EVIDENCE
8. In order to prove its case, the prosecution has examined 20 witnesses in total :-
9. PW-1 Moinuddin S/o Mohd. Ayub, R/o H.No.03, Masjid 64 Khamba, Mirdard Road, Behind G.B. Pant Hospital, Delhi. The witness Moinuddin deposed as under:
"On 11.12.16 on receiving the information, I reached at mortuary of MAMC, where I identified the dead body of my nephew Mohd. Salman vide my statement Ex.PW-1/A FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.4 of 87 Digitally signed by SHILPI JAIN SHILPI JAIN Date: 2024.12.23 16:57:07 +0530 bearing my signatures at left hand thumb impression at point A. After the postmortem, we obtained the dead body for last rites vide receipt Ex.PW-1/B bearing my signatures at point A."
No Cross Examination by Sh. I.A. Alvi, Ld. Counsel for accused Mohd. Naseem@Kaka and by accused Mohd. Amir Khan, despite being given the opportunity.
10. PW-2 Mohd. Ibrahim S/o Azizuddin. The witness Mohd. Ibrahim deposed as under:
"On 10.12.2016, police had shown me the photographs of the dead body of my brother Salman in mobile phone and I identified the same to be the dead body of my brother Salman. On 11.12.16 on receiving the information, I reached at mortuary of MAMC, where I identified the dead body of my brother Mohd. Salman vide my statement Ex.PW-2/A bearing my signatures at point A. After the postmortem, we obtained the dead body for last rites vide receipts Ex.PW-1/B bearing my signatures at point B."
In cross-examination by Ld. Counsel for accused Mohd. Naseem, PW-2 deposed as under:
"The police persons had shown the photographs of the dead body of my brother at about 08:30 pm at the police station and I was called by them through telephone. I went to the PS alone."
No Cross Examination by accused Mohd. Amir Khan, despite being given the opportunity.
11. PW-3 Mohd. Rashid, S/o Late Mohd. Mustakeem. The witness Mohd. Rashid deposed as under:
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.5 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:57:12 +0530 "I originally belongs to Banaras and shifted to Delhi for about 45 years back. I got married to Nazma Begum and have five children including accused Mohd. Amir who is present in the court today. Earlier I used to reside at B-210, Gali No.4, Ghonda, Subhash Vihar, Delhi. After that, I sold the said house and started residing at A-317, Gali no.4 Silampur, Chauhan Bangar, Delhi. Later on, I also sold the said house and started residing at T-261, Gali No.4, Gautam puri, Delhi. I resided there for about 5 years and thereafter, sold the same and thereafter, started residing at my aforesaid present address. My son Mohd. Amir started consuming smack and committing thefts. I also got him admitted at de-addiction Centre, however, he was unable to leave the habit of smack. Finally, I disowned him and he left my house and started residing somewhere else.
I handed over the copy of date of birth certificate of accused Mohd. Amir his school leaving certificate, the application informing disowning of Mohd. Amir by me, a affidavit in this regard, copy of Jansatta Newspaper in which the public notice regarding his disowning was published and the copies of documents regarding the address proof of Mohd. Amir to the police. All these documents running into 14 pages which are marked 3A (colly) were taken into possession by the police vide seizure memo Ex.PW-3/A bearing my signatures at point A."
In cross-examination by Ld. Counsel for accused Mohd. Naseem, PW-3 deposed as under:
" It is wrong to suggest that accused Mohd. Amir was not a smack addict. In my knowledge, the accused Mohd. Amir was not arrested in a theft case. Vol. He was not residing FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.6 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:57:15 +0530 with us for 10 years. On one occasion, I was by the SHO PS New Delhi Railway Station while accused Mohd. Amir was in custody of police.
No Cross Examination by accused Mohd. Amir Khan, despite being given the opportunity.
12. PW-4 HC Surender, No.1678/D, Narela Traffic Circle. The witness HC Surender deposed as under:
"On 10.12.2016 I was posted at PS Dariya Ganj as Duty Officer and my duty hours were from 04:00 p.m. to 12:00 p.m. On that day special messenger Ct. Waseem cam back to the police station at 10:10 p.m. after delivering the copy of FIR to Ld. Area MM and other Sr. officers. I made entry in this regard vide DD No.24A, copy of which is Ex.PW4/A (OSR).
No Cross Examination by Sh. Altaf Alvi, Ld. Counsel for accused Mohd. Naseem and by accused Mohd. Amir Khan, despite being given the opportunity.
13. PW-5 HC Bhiwa Ram, No.989/C, PS Karol Bagh. The witness HC Bhiwa Ram deposed as under:
"On 10.12.2016 I was posted at PS Dariya Ganj as duty officer and my duty hours were from 08:00 a.m. to 04:00 p.m. On that day at about 01:10 p.m. Ct. Rajeev brought one rukka sent by Inspector Vinod Kumar, on the basis of which I registered FIR Ex.PW5/A (OSR) bearing my signature at point A. I made entry regarding registration of FIR vide DD No.14A, copy of which is Ex.PW 5/B (OSR). After registration of FIR, he handed over copy of FIR and original rukka to Ct. Rajeev to be handed over to Inspector FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.7 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:57:19 +0530 Vinod Kumar after making my endorsement Ex.PW5/C on the rukka which bears my signature at point A. I also issued certificate under Section 65 B of India Evidence Act with regard to copy of FIR which is Ex.PW5/D bearing my signature at point A. Ct. Waseem was sent as special messenger alongwith copies of FIR to be delivered to Ld. Area MM and other Sr. Officers. I made entries in this regard vide DD No.15A, copy of which is Ex.PW5/E (OSR)."
No Cross Examination by Sh. Altaf Alvi, Ld. Counsel for accused Mohd. Naseem and by accused Mohd. Amir Khan, despite being given the opportunity.
14. PW-6 Inspector Narender Singh, No.D-569, Mobile Crime Team (MCT), Central District, Delhi. The witness Inspector Narender Singh deposed as under:
"On 10.12.2016, I was posted at Mobile Crime Team, Central District, Delhi. On that day, on receiving information from control room, I alongwith ASI Pawan Kumar (finger prints proficient), Ct.Virender (Photographer) were reached at the spot where IO of the present case was found present alongwith other staff. A dead body of deceased aged about 25-26 years was lying between the warehouse of metro and railing of the footpath. The neck of deceased having cut and blood were lying on the spot and nearby. The neck of deceased was slit. The head of the deceased was towards Eastern side. The leg of deceased was towards West side. The cap and shoes of deceased were also lying at the spot. I had inspected the spot and Ct. Virender had clicked photographs of the spot from different angles. IO had informed that FSL team also FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.8 of 87 SHILPI Digitally signed by SHILPI JAIN Date: 2024.12.23 JAIN 16:57:23 +0530 called at the spot so we did not collect samples from the spot and which was collected by FSL team.
I had prepared my detailed scene of crime spot on SOC no. 1157/16 dated 10.12.2016 and same is Ex.PW6/A, bears my signature at point A. At this stage, photographs of the spot which are already on record, shown to the witness. The witness has correctly identified and same are Ex.PW6/B1 to Ex.PW6/B34. IO recorded my statement in this regard.
In cross-examination by Ld. Counsel for accused Mohd. Naseem, PW-6 deposed as under:
"We reached at the spot at about 09:45 a.m. and we remained at the spot for about two and half hours. I do not remember the exact number of police officials who were present at the spot. Site plan was prepared in my presence. I did not record statement of any witness in my presence. I cannot say whether IO had asked to public persons to join the investigation. I cannot say whether IO had tried to contact family member of accused. It is wrong to suggest that I had not visited the spot. It is wrong to suggest that all written work was done at the PS. In cross-examination by Ld. Amicus Curiae for accused Amir. She adopted the cross-examination conducted on behalf of accused Md. Naseem.
15. PW-7 Saira Bano, W/o Hans Nain. The witness Saira Bano deposed as under:
"Mohd. Iqbal is my elder brother. He is a drug addict and use to consume smack. Deceased Salman was a friend of FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.9 of 87 Digitally signed by SHILPI SHILPI JAIN Date:
JAIN 2024.12.23
16:57:27
+0530
my brother Iqbal. He also used to come to my house and I considered him as my son. Salman and Iqbal together used to consume smack. One Zahir, R/o Rakab Ganj, Delight also used to come to my house to meet my brother Iqbal. On one occasion Zahir brought accused Mohd. Aamir who is present in the court today (correctly identified), to my house. Accused Mohd. Aamir told me that he was expelled from his house by his parents. Aamir came to my house on two occasions. Aamir also used to consume smack. On one occasion when Salman and accused Mohd. Aamir was present in my house, accused Mohd. Aamir told me that he had an offer to commit murder of one Salman. On hearing this, I scolded accused Mohd. Aamir.
One day in the month of December, 2016, Salman was present in my house and was preparing for Namaz when he received a telephonic call. On my asking he told that accused Mohd. Aamir is calling him. Thereafter, he left the house. In the night hours, I was informed that Salman has been murdered.
She was cross-examined by the Ld. Addl. PP as she was not revealing the complete facts and resiled from the previous statement and she deposed as under:
"It is correct that police made enquiry from me regarding the present case. It is incorrect to suggest that I had stated to the police that when accused Mohd. Aamir started visiting my house, upon his request, I allowed him to keep his clothes in one room of my house or that he also used to sleep occasionally in my house or that he was having two pairs of clothes. out of which one he wears and the other clothes he used to keep in the room of my house. (Confronted with portion A to A of statement Ex. PW7/A FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.10 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:57:31 +0530 where it is so recorded) It is incorrect to suggest that I had; stated to the police that on one occasion deceased Salman abused family members of Zahir on which accused Aamir stared at Salman or that on the next day, deceased salman again abused family member of Zahir due to which a quarrel had taken place between Salman and accused Aamir or that when Salman left the house, accused Aamir told me that he will murder Salman. (Confronted with portion B to B of statement Ex.PW7/A where it is so recorded.) It is further incorrect to suggest that I had stated to the police that on 09.12.2016 deceased Salman and accused Mohd. Aamir left my house together. (Confronted with portion C to C of statement Ex. PW7/A where it is so recorded.). It is incorrect to suggest that I had stated to the police that on 13.12.2016 police brought accused Aamir to my house and accused Aamir got recovered one polythene bag containing blood stains jeans pant, pink colour shirt and gray colour sweater or that police took into possession the same (Confronted with portion D to D of statement Ex. PW7/A where it is so recorded.). It is correct that the seizure memo of accused Mohd. Aamir Ex. PW7/B bears my signature and thumb impression at point A. Vol. Police obtained my signatures and thumb impressions at the police station. I cannot identify clothes of accused Mohd. Aamir. It is incorrect to suggest that I am intentionally suppressing material facts as I have been won over by the accused Mohd. Aamir.
No Cross Examination by Sh. Altaf Alvi, Ld. Counsel for accused Mohd. Naseem despite being given the opportunity.
In cross-examination by Ld. Amicus Curiae for accused Amir. PW-7 deposed as under:
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.11 of 87 SHILPI Digitally signed by SHILPI JAIN Date: 2024.12.23 JAIN 16:57:35 +0530 "I had told to the police that on one occasion accused Aamir told me that he had an offer to commit murder of Salman and also that on the date of incident Salman left my house after receiving the phone call of accused Mod. Aamir. Confronted with statement Ex. PW7/A where it is not so recorded."
16. PW-8 Ct. Virender Singh, No.1180/C, PIS No.28109569, Crime Team, PS Pahar Ganj, Central District. The witness Ct. Virender Singh deposed as under:
"On 10.12.2016, I was posted as Photographer in the Crime Team, Central District, PS Pahar Ganj, New Delhi. On that day I alongwith crime team incharge Inspector Narender Singh visited the spot i.e. foothpath of Prakash Marg, Darya Ganj, Delhi where dead body of the deceased was found. Inspector Vinod Kumar, IO of the case was present at the spot. On the instruction of IO Inspector Vinod Kumar and Crime Team Incharge Inspector Narender Singh, I took 35 photographs which are already Ex.PW6/B-1 to Ex.PW6/B-34. Today I have brought negatives of the above said photographs which are Ex.PW8/A-1 to Ex.PW8/A-35. I want to clarify that out of 35 photographs taken by me, one negative was blank. I had handed over the above said photographs to 1O Inspector Vinod Kumar and my statement was recorded thereafter."
In cross-examination by Ld. Counsel for the accused Mohd. Naseem and Ld. Proxy Counsel for accused Amir PW-8 deposed as under:
"When I reached the spot, I found that the scene of crime had been preserved with the help of a tape. The camera by which I had taken the photographs was sanctioned to me by FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.12 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:57:40 +0530 the Department. It is wrong to suggest that prior to taking the photographs, the scene of crime had been disturbed or that a large number of public persons were coming and going through the area from where the alleged exhibits were lifted. I reached the spot at about 10.00AM and remained there till about 12.30 PM. It is wrong to suggest that I took the photographs of the site at the instance of the Investigating Officer only after the Investigating officer had manipulated the same. In my presence I did not notice the Investigating officer recording the statement of any person. It wrong to suggest that I am deposing falsely."
17. PW-9 SI Pritam Singh No.D5024, PIS No.28862007, PS Daryaganj. The witness SI Pritam Singh deposed as under:
"On 10.12.2016 I was posted as Sub Inspector at Police Station Darya Ganj. On that day I had received a call vide DD No.9A at 08:50 a.m. from Ct. Hawa Singh that a dead body with his throat slit was lying on Prakash Chand Marg between metro fencing and railing of park and blood was lying near the dead body. On receiving of the said call, I alongwith Inspector Vinod Kumar, HC Rohtash and Ct. Rajeev reached the spot and found that the dead body of a boy aged about 25-26 years was lying at the spot. The head of the dead body was towards East and his face was towards South side and his legs were towards West side. His throat was slit and blood was lying near the dead body. Crime team was called at the spot by Investigating Officer Inspector Vinod Kumar. FSL team was also called at the spot. Crime team reached the spot at about 10.30AM and inspected the scene of crime and photographer of the crime team took photographs of scene of crime.
On the instruction of Investigating Officer Inspector Vinod FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.13 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:57:44 +0530 Kumar, I alongwith Ct. Hawa Singh took the dead body to mortuary of MAMC and got the dead body preserved there. After leaving Ct. Hawa Singh at Mortuary, I reached the spot. On the basis of contents of DD No.9A and facts and circumstances of the case, IO prepared rukka and handed over the same to Ct. Rajeev for taking the same to the police station for registration of FIR.
At about 02:00 p.m. FSL team reached the spot and inspected the scene of crime and lifted exhibits from the spot. The FSL team lifted total 11 exhibits from the spot and handed over the same to Investigating officer who converted the said exhibits into separate pullandas out of which 7 pullandas were of Khaki colour and 3 three pullandas were of yellow colour. One pullanda was made of cloth. The said pullandas were sealed with the seal of VK and seal after use was handed over to me. The pullandas were taken into possession by the Investigating officer vide seizure memo Ex.PW9/A bearing my signatures at point A. One sky blue coloured cap and sport shoes were also found lying near the dead body which were kept in a pullanda and the said pullanda was sealed with the seal of VK and was seized vide memo Ex.PW9/A-1 bearing my signature at point A. At about 02:20 p.m. Ct. Rajeev came back at the spot and handed over copy of FIR already Ex.PW1/A and original rukka to the Investigating officer. Enquiry was made in the area for the identification of the dead body and during the said enquiry I alongwith Investigating officer, Ct. Rajeev and HC Rohtash reached at Tiraha Beram Khan, Chandni Mahan, Delhi at about 05.15 p.m. and made enquiry from public persons and showed photograph of the dead body and at about 05:25 p.m. the secret informer was met us and FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.14 of 87 Digitally signed by SHILPI SHILPI Date:
JAIN JAIN 2024.12.23 16:57:48 +0530 Investigating officer showed him the photograph of dead body. The said secret informer identified the dead body as of one Salman brother of Ibrahim who used to reside in Jama Masjid Area.
Thereafter I alongwith Investigating officer, Ct. Rajeev and HC Rohtash reached at Jama Masjid area and reached in Gali Godne Wali Jama Masjid where a person namely Ibrahim met us and we showed photographs of deceased and after seeing the same he identified the deceased as his brother namely Imran. Thereafter we took the said Ibrahim to Mortuary of MAMC Hospital where he identified the dead body as of his brother Salman.
Thereafter on 11.12.2016 I again joined the investigation of the present case with HC Rohtas, Ct. Rajeev and IO Inspector Vinod Kumar. On that day vide DD No.22A, I alongwith aforesaid police officials left PS at about 04:20 p.m. in Govt. Gypsy. On or about 06:00 p.m. while we were present at Raj Ghat Chowk near traffic booth, there one secret informer met the IO and gave an information to him. IO informed us that as per the secret information, the offenders i.e. Mod. Naseem and Amir @ Aryan would come in between 07:00 to 08.00 p.m. at a park in front of Khooni Darwaja for taking drugs, if raided they could be apprehended. IO had prepared a raiding party and requested four to five passers bye for joining investigation but they refused. Thereafter on or about 6.50PM at the instance of secret informer we managed to apprehend accused Mohd. Amir and accused Mohd. Naseem who are present in the court today. (Correctly identified). IO had interrogated both the accused persons and after interrogation effected their arrest vide arrest memos Ex.PW9/B and Ex.PW9/B respectively and conducted their FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.15 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:57:53 +0530 personal search vide memos Ex.PW9/D and Ex.PW9/E respectively. Accused Mohd. Naseem made disclosure statement Ex.PW9/F and accused Mohd. Amir made disclosure statement Ex.PW9/G. All the aforesaid memos bearing my signatures at point A. Thereafter both the accused persons pointed the place where they had thrown the cutter i.e. the weapon of offence i.e. inside the grass in Tikona park. The said cutter was searched and was recovered from inside the grass. IO had prepared the sketch Ex.PW9/H of the said cutter and also measured the said cutter and mentioned its measurement on the sketch itself. Thereafter IO had kept the the said cutter in a cloth pullanda and said pullanda was sealed with the seal of VK and was seized vide memo Ex.PW9/I both the aforesaid memos bears my signatures at point A. Thereafter accused Naseem led us to his house bearing number 47-48, Chhatta Lal Miyan, Badi Masjid, Chandni Mahal and from inside the said house from under the bed kept in a ground floor room, he picked up one lungi of yellow colour having blood stains and one round neck T Shirt of green colour and one shirt of Maroon Colour having bloods stains. I had kept the said clothes in a cloth pullanda and said pullanda was sealed with the seal of VK and was seized vide seizure memo Ex.PW9/K which bears my signatures at point A. Therafter both the accused had also pointed out the place of commission of offence vide pointing out memo Ex.PW9/L bears my signatures at point A. Thereafter both the accused persons were got medically examined and during medical examination the concerned doctor took the blood samples of both the accused persons and after sealing the same handed over the same to IO alongwith sample seals which IO had seized vide seizure memo Ex.PW9/M which bears my signatures at point A. Thereafter, both the accused FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.16 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:57:56 +0530 persons were sent to lock-up and IO had deposited the case property in Malkhana. IO had also recorded my statement in this regard. I can identify the case property it shown to me.
At this stage, MHCM has produced the case property.
Parcel No. 1 sealed with the seal of IMFSL is opened. The same is found containing Gauze cloth piece having brownish stains described as "Blood Gauze" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Gauze Cloth piece as Ex.P-1.
Parcel No.2 sealed with the seal of IMFSL is opened. The same is found containing Gauze cloth piece having brownish stains described as "Blood Gauze" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Gauze Cloth piece as Ex.P-2.
Parcel No.2A sealed with the seal of IMFSL is opened. The same is found containing Gauze cloth piece having brownish stains described as "Blood Gauze" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Gauze Cloth piece as Ex.P-3.
Parcel No.2B sealed with the seal of IMFSL is opened. The same is found containing Gauze cloth piece having brownish stains described as "Blood Gauze" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Blood Gauze piece as Ex.P-4.
Parcel No.3 sealed with the seal of IMFSL is opened. The same is found containing Cloth piece described as "Cloth Piece" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Cloth piece as Ex.P-5.
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.17 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:57:59 +0530 Parcel No.4 sealed with the seal of IMFSL is opened. The same is found containing Wooden piece having fungal growth described as "Blood stained bark of tree" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Wooden piece having fungal growth as Ex.P-6.
Parcel No.5 sealed with the seal of IMFSL is opened. The same is found containing Guaze cloth piece having brown stains described as "Guaze Cloth piece" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Gauze Cloth piece as Ex.P-7.
Parcel No.6 sealed with the seal of IMFSL is opened. The same is found containing Guaze cloth piece having brown stains described as "Guaze Cloth piece" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Gauze Cloth piece as Ex.P-8.
Parcel No.7 sealed with the seal of IMFSL is opened. The same is found containing Paper piece having brown stains described as "Blood stains papers" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Blood stains papers as Ex.P-9.
Parcel No.8 sealed with the seal of IMFSL is opened. The same is found containing Concrete piece described as "Blood stains, concrete stone" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Blood stains concrete stone as Ex.P-10.
Parcel No.9 sealed with the seal of IMFSL is opened. The same is found containing Guaze cloth piece having brown stains described as "Guaze cloth piece" lifted from the place of occurrence. The same is shown to the witness and FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.18 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:58:03 +0530 the witness identifies the said Guaze cloth piece as Ex.P-11.
Parcel No. 10 sealed with the seal of IMFSL is opened. The same is found containing pair of shoes, one dirty cap described as "lifted from the place of occurrence" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said articles as collectively Ex.P-12.
Parcel No. 11 sealed with the seal of IMFSL is opened. The same is found containing brown stained gauze cloth piece described as "Blood Guaze of deceased Mohd. Salman"
lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said articles as collectively Ex.P-13.
Parcel No. 14 sealed with the seal of MAMC is opened. The same is found containing paper cutter having rusty stains described as "Weapon of offence Cutter. The same is shown to the witness and the witness identifies the said articles as Ex.P-14 being recovered at the instance of both accused persons.
Parcel No. 15 sealed with the seal of IMFSL is opened. The same is found containing one cloth parcel containing cloth piece having brown strains, T-Shirt having brown stains, shirt having brown stains". the same is shown to the witness and the witness identifies the said articles as Ex.P-15 (Colly) being recovered at the instance of accused Naseem.
In cross-examination by Sh. Altaf Alvi, Ld. Counsel for the accused Mohd. Naseem@Kaka and Ms. Chitra Mal, Ld. Proxy Counsel for accused Mohd. Amir Khan @ Aryan PW-9 deposed as under:
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.19 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:58:07 +0530 "I alongwith Inspector Vinod Kumar reached at the place of occurrence at about 09:05 a.m. Four to six public persons were present there. We had not noted down their names and addresses. The said public witnesses upon oral inquiry had not given any clue about the occurrence. It is correct that the said public witnesses during inquiry replied that they have not witnessed the occurrence.
Firstly, crime team official visited the spot and Forensic Team reached later. Neither the crime team officials nor forensic officials had given any clue about the occurrence even after the place of occurrence being inspected by them. It is correct that the seizure memo of exhibits lifted from the spot neither bears the signatures of crime team officials nor bears the signatures of forensic team. It is wrong to suggest that since no such exhibits were lifted from the spot, that is why the relevant seizure memos does not bear the signatures of crime team officials or of forensic team. Crime Team Officials remained at the spot for about one and a half hour. Forensic team reached at the spot on or about 02:00 p.m. and remained there upto 03:30 p.m. It is wrong to suggest that the scene of crime was not cordoned and was also not preserved by IO. It is wrong to suggest that the memos were prepared later on while sitting at police station. It is correct that till the time we remained at the spot the identity of the said body could not be established.
The secret information was received by I0 in between 6.00 p.m. to 06:15 p.m. IO had not noted down the contents of the information passed by the secret informer. The informer was aged about 40 to 45 years.
It is correct that till that time, we had no clue about the offenders. It is wrong to suggest that both the accused were FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.20 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:58:10 +0530 not apprehended or arrested in the manner as deposed by me or that both the accused persons were forcibly lifted from their respective residences. It is correct that no public witness is a signatory to the arrest, personal search and disclosure statement of accused persons. It is wrong to suggest that both the accused persons had not made any such disclosure statement or that we had obtained their signatures on blank documents or converted the said blank documents into their respective disclosure statement subject to our convenience.
The cutter was recovered at a distance of approximately 200 yards away from the place of occurrence. It is correct that the paper cutter as shown to be recovered in the present case is an ordinary item easily available in the market and offices. It is correct that no public witnesses were joined to witness the recovery of said cutter. It is wrong to suggest that no such cutter was recovered at the instance of accused persons or that the same was planted to create false evidence against accused persons. It is correct that the said recovery proceedings were neither videographed nor photographed despite the fact that we were carrying our respective mobile phones having video/photo facilities. It is correct that no Forensic Team/Crime Team was called at the place of said recovery to lift any chance prints from the said cutter if available.
We went to the house of accused Mohd. Naseem on foot. Vol. The said house was nearby to the place of occurrence. We reached at the house of accused Mohd. Naseem in between 10:30 p.m. to 11:00 p.m. We met the family members of accused Naseem of the said house but today I cannot tell their relation with accused Naseem. It is correct that the house of accused Naseem was surrounded by many FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.21 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:58:13 +0530 houses. It is correct that in my presence IO had not requested any of the neighbours for joining investigation. It is correct that the said recovery proceedings were neither videographed/photographed. It is wrong to suggest that no such recovery of clothes were effected at the instance of accused Naseem or that the said recovery was planted to create false evidence against him. It is correct that as on the day of recovery of said clothes/paper cutter the exhibits lifted from the spot including the Guaze Piece having blood stains of deceased were in our possession. Vol. They were already sealed. It is wrong to suggest that we had planted the said clothes and paper cutter and smeared blood of deceased on the said articles only to connect them with the case and to work out a blind murder case.
I am not aware there are any case relating to drugs/or consumption of alcohol against the accused persons. It is correct that MLC of the accused persons was done after their arrest and their blood sample were also taken which were handed over to the Investigating officer. In my presence, the investigation officer made no request to the doctor or to the forensic expert to examine the accused for purposes of consumption of alcohol/drugs. It is wrong to suggest that I had not joined any such investigation or that I had signed all the memos while sitting at PS itself at the instance of IO. It is wrong to suggest that no such recoveries were effected or that I am deposing falsely at the instance of IO."
18. PW-10 Ct. Waseem Khan, No.1944/C, PIS No.28103439, PS Karol Bagh. The witness Ct. Waseem Khan deposed as under:
"On 10.12.2016 I was posted at Police Station Darya Ganj FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.22 of 87 Digitally signed by SHILPI JAIN SHILPI Date:
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as Constable. On that day at about 02:15 p.m. the duty Officer HC Bhiwa Ram handed over to three envelopes containing the copies of the FIR to be delivered to the Ld. MM, Joint CP / NR and DCP (Central). Accordingly, I left the Police Station on official motorcycle bearing No. DL- ISZ-5111 and delivered the copies of FIR to the Ld. MM, Joint CP / NR and DCP (Central) after which I returned to the Police Station. The IO recorded my statement".
No Cross Examination by Sh. Altaf Alvi, Ld. Counsel for accused Mohd. Naseem and by Ms. Chitra Mal, Proxy Counsel for Ms. Sadhna Bhatia, Ld. Amicus Curiae for accused Mohd. Amir Khan, despite being given the opportunity.
19. PW-11 Dr. Arun Kumar S. Asstt. Professor, Department of Forensic Medicine & Texicology, AIIMS, Mangalagiri, Vijayawada, Andhra Pradesh. The witness Dr. Arun Kumar S. Asstt. Professor deposed as under:
"On 11.12.2016, I was posted with MAMC, Department of Forensic Medicine as Sr. Resident. On that day, I had conducted postmortem on the body of Mohd. Salman S/o Azizuddin with the alleged history of being found dead on Prakash Chand Mark between footpath railing and Delhi Metro Fencing on 10.12.2016 at about 08:50 a.m. Upon conducted postmortem, I had prepared postmortem No. 1252/2016 which is now Ex.PW11/A which bears my signatures at points A. I had opined the cause of death to be hemorrhagic shock as a result of ante mortem injury to blood vessels of neck produced by sharp edge object via injury no. 01. All the injuries as detailed in postmortem report were ante mortem in nature and fresh in duration. I FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.23 of 87 Digitally signed SHILPI by SHILPI JAIN Date: JAIN 2024.12.23 16:58:20 +0530 had also opined that injury No.1 was individually sufficient to death in ordinary course of nature. I had also opined times since death about one and a half day. I had also preserved the viscera, I had also sealed the clothes of deceased, nail scrapings of both hands of deceased, finger print lifted from left thumb nail of deceased, blood sample of deceased on gauze piece and alongwith sample seal handed over the same to IO.
Today, I have also seen the opinion in relation to articles examined dated 06.02.2018 given by Dr. Dhiraj D. Buchade. As per this report, it has been opined by the aforesaid doctor that the injury no.1 and 2 on the body of deceased were possible by the said weapon i.e. paper cutter or any weapon similar to it. The said subsequent opinion is now Ex.PW11/B which is in the handwriting of Dr. Dhiraj D. Buchade and bears his signatures at point A which I identify as I have seen him writing and signing.
Today, I have also seen the subsequent opinion in relation to postmortem report dated 06.02.2018 given by Dr. Dhiraj D. Buchade. As per this report, it has been opined by the aforesaid doctor that since the FSL Report in respect of viscera examination gave positive test for Ethyl Alcohol, he opined the cause of death to be hemorrhagic shock as a result of ante mortem injury to blood vessels of neck produced by sharp edge object via injury no. 01. All the injuries as detailed in postmortem report were ante mortem in nature and fresh in duration. He also opined that injury No.1 was individually sufficient to death in ordinary course of nature. The said subsequent opinion is now Ex.PW11/C which is in the handwriting of Dr. Dhiraj D. Buchade and bears his signatures at point A which I identify as I have seen him writing and signing."
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.24 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:58:24 +0530 No Cross Examination by Sh. Altaf Alvi, Ld. Counsel for accused Mohd. Naseem and by Ms. Sadhna Bhatia, Ld. Amicus Curiae for accused Mohd. Amir Khan @ Aryan, despite being given the opportunity.
20. PW-12 Ct. Daya Nand, No.3261/PCR, posted at PCR West Zone, Delhi. The witness Ct. Daya Nand deposed as under:
"On 06.02.2017, I was posted at P.S. Darya Ganj. On that day, on the instructions of IO/Inspector Vinod Kumar, I had collected one sealed pullanda containing wooden box containing viscera alongwith sample seal from MHCM vide RC No. 24/21/17. I had also collected twenty sealed pullandas and eight sample seals from MHCM vide RC No. 25/21/2017 from MHCM. Thereafter, I had deposited all the aforesaid exhibits at FSL, Rohini and obtained their acknowledgment. Thereafter, I had returned back to PS and handed the acknowledgment to MHCM ASI Mukesh Kumar. So far as the said exhibits/pullandas remained with me, the same were not tampered in any manner. IO had recorded my statement in this regard.
In cross-examination by Sh. Altaf Alvi, Ld. Counsel for the accused Mohd. Naseem @ Kaka and Ms. Sadhna Bhatia, Ld. Amicus Curiae for accused Mohd. Amir Khan @ Aryan, PW-12 deposed as under:
It is correct that MHCM/ASI Mukesh had not obtained my signatures in Register No. 19. It is wrong to suggest that the pullandas/exhibits were tampered at the instance of the IO. It is wrong to suggest that since Register No. 19 do not bears my signatures, I had not deposited the exhibits at the aforesaid date at FSL. It is wrong to suggest that I am deposing falsely at the instance of the IO. It is wrong to FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.25 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:58:28 +0530 suggest that since Register No.19 do not bears my signatures, I had not deposited the exhibits at the aforesaid date at FSL. It is wrong to suggest that I am deposing falsely at the instance of the IO.
21. PW-13 W/Ct. Ekta, No.1764/North District, Presently posted at PS Jafrabad, Delhi. The witness W/Ct. Ekta deposed as under:
"On 06.02.2017, I was on duty as DD Writer at P.S. Darya Ganj. On that day, I had lodged DD No.24-B and thereafter, DD No.59-B. True copies of the said DDs are already Ex.PX-1 and Ex.PX-2."
No Cross Examination by Ms. Sadhna Bhatia, Amicus Curiae for accused Mohd. Amir Khan @ Aryan and by Sh. Altaf Alvi, Ld. Counsel for accused Mohd. Naseem @ Kaka, despite being given the opportunity.
22. PW-14 Ct. Krishan, No.1151/C, presently posted at P.S> Daryaganj, Delhi. The witness Ct. Krishan deposed as under:
"On 16.02.2017, I was posted at P.S. Darya Ganj. On that day, on the instructions of IO/Inspector Vinod Kumar, I had collected one sealed pullanda containing finger print slide alongwith sample seal from MHCM vide RC no.31/21/17. Thereafter, I had deposited the said sealed pullanda and sample seal at Finger Print Bureau, CRO, Kamla Market, Delhi and obtained their acknowledgment. Thereafter, I had returned back to PS and handed over acknowledgment to MHCM ASI Mukesh Kumar. So far as the said exhibit / pullanda remained with me, the same were not tampered in any manner. IO had recorded my statement in this regard. "
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.26 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:58:32 +0530 No Cross Examination by Ms. Sadhna Bhatia, Amicus Curiae for accused Mohd. Amir Khan @ Aryan and by Sh. Altaf Alvi, Ld. Counsel for accused Mohd. Naseem @ Kaka, despite being given the opportunity.
23. PW-15 Ct. Hawa Singh Yadav, No.432/A, presently posted at ATS, IGI Airport, Delhi. The witness Ct. Hawa Singh Yadav deposed as under:
"On 10.12.2016, I was posted as Constable at Police Station Darya Ganj. On that day, while I was coming towards P.S. to attend my duties. On or about 08:40 a.m., I de-boarded myself at JLN Marg Bus Stand. Thereafter, while walking when I reached at Prakash Chand Marg Footpath, I saw one dead body lying at near the railing of Prakash Chand Marg/Delhi Metro Fencing. Upon seeing the said body, I went near the body and found injury over the neck of the said body being caused by sharp edge weapon and lot of blood was also found lying near the said body. Thereafter, I had immediately made a call at about 08:50 p.m. to DO of P.S. Darya Ganj and I remained at the spot. Upon my said call, Inspector Vinod Kumar, SI Pritam Singh, HC Rohtash, Ct. Anil and Ct. Rajeev reached the spot and found that the dead body of a boy aged about 25- 26 years was lying at the spot. The head of the dead body was towards East and his face was towards South side and his legs were towards West side. His throat was slit and blood was lying near the dead body.
Crime team was called at the spot by Inspector Vinod Kumar. FSL team was also called at the spot. Crime team reached the spot and inspected the scene of crime and photographer of the crime team took photographs of scene FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.27 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:58:38 +0530 of crime.
On the instructions of Inspector Vinod Kumar, I alongwith SI Pritam took the dead body to mortuary of MAMC and got the dead body preserved there. After leaving me at Mortuary, SI Pritam returned back to the spot.
Thereafter, on 11.12.2016, IO/Inspector Vinod Kumar, SI Mahipal Singh and Ct. Roop Lal came to MAMC Mortuary. In the said mortuary Mohd. Ibrahim and Moinuddin identified the said body to be of Mohd. Salman. IO had recorded their statements regarding identification of body of Mohd. Salman. I got conducted postmortem on the body of Mohd. Salman and after postmortem the body of Mohd. Salman was handed over to the aforesaid relatives. After postmortem, the concerned doctor had handed over the sealed exhibits to IO which IO had seized vide seizure memo Ex. PW15/A which bears my signatures at point B. IO had also recorded my statement in this regard. Thereafter, IO had deposited the case property in Malkhana.
In cross-examination by Ms. Sadhna Bhatia, Ld. Amicus Curiae for accused Mohd. Amir Khan @ Aryan and Sh. Altaf Alvi, Ld. Counsel for the accused Mohd. Naseem @ Kaka, PW-15 deposed as under:
"It is wrong to suggest that I had not made any call to DO or that no such proceedings were conducted in my presence. It is wrong to suggest that I am deposing falsely at the instance of the IO."
24. PW-16 Ct. Rajiv, No.946/C, presently posted at PS Paharganj, Delhi. The witness Ct. Rajiv deposed as under:
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.28 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:58:43 +0530 "On 10.12.2016 I was posted as Constable at Police Station Darya Ganj. On that day, DD No.9A was marked to SI Pritam Singh to the effect that a dead body with his throat slit was lying on Prakash Chand Marg between metro fencing and railing of park and blood was lying near the dead body.
Thereafter, I alongwith Inspector Vinod Kumar, HC Rohtash Ct. Anil and SI Pritam Singh reached the spot and found that the dead body of a boy aged about 25-26 years was lying at the spot.
The head of the dead body was towards East and his face was towards South side and his legs were towards West side. His throat was slit and blood was lying near the dead body.
Crime team was called at the spot by Investigating Officer Inspector Vinod Kumar. FSL team was also called at the spot. Crime team reached the spot at about 10.30AM and inspected the scene of crime and photographer of the crime team took photographs of scene of crime.
On the instruction of Inspector Vinod Kumar, SI Pritam Singh alongwith Ct. Hawa Singh took the dead body to mortuary of MAMC and got the dead body preserved there. After leaving Ct. Hawa Singh at Mortuary, SI Pritam returned back to the spot. On the basis of contents of DD No.9A and facts and circumstances of the case, Inspector Vinod Kumar prepared rukka and handed over the same to me. Accordingly, I took the rukka to PS Darya Ganj and got FIR No. 408/2016 registered from DO.
At about 02:20 p.m., I came back at the spot and handed FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.29 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:58:47 +0530 over copy of FIR already Ex.PWI/A and original rukka to the IO/Inspector Vinod Kumar. Enquiry was made in the area for the identification of the dead body and during the said enquiry, I alongwith IO/Inspector Vinod Kumar, SI Pritam Singh, Ct. Anil and HC Rohtash reached at Tiraha Beram Khan, Chandni Mahan, Delhi at about 05:15 p.m. and made enquiry from public persons and showed photograph of the dead body and at about 05:25 p.m. the secret informer was met us and Investigating officer showed him the photograph of dead body. The said secret informer identified the dead body as of one Salman brother of Ibrahim who used to reside in Jama Masjid Area.
Thereafter, I alongwith IO/Inspector Vinod Kumar, SI Pritam Singh, Ct. Anil and HC Rohtash reached at Jama Masjid area and reached in Gali Godne Wali, Jama Masjid where a person namely Ibrahim met us and we showed photographs of deceased and after seeing the same he identified the deceased as his brother namely Imran. Thereafter we took the said Ibrahim to Mortuary of MAMC Hospital where he identified the dead body as of his brother Salman.
Thereafter, on 11.12.2016, I again joined the investigation of the present case with HC Rohtas, SI Pritam Singh and IO Inspector Vinod Kumar. On that day vide DD No.22A, I alongwith aforesaid police officials left PS at about 04:20 p.m. in Govt. Gypsy. On or about 06:00 p.m. while we were present at Raj Ghat Chowk near traffic booth, there one secret informer met the IO and gave an information to him. IO informed us that as per the secret information, the offenders i.e. Mohd. Naseem and Amir @ Aryan would come in between 07:00 to 08:00 p.m. at a park in front of Khooni Darwaja for taking drugs, if raided they could be FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.30 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:58:52 +0530 apprehended. IO had prepared a raiding party and requested four to five passers bye for joining investigation but they refused. Thereafter, on or about 6.50PM at the instance of secret informer we managed to apprehend accused Mohd. Amir and accused Mohd. Naseem who are present in the court today. (Correctly identified). IO had interrogated both the accused persons and after interrogation effected their arrest vide arrest memos already Ex.PW9/B and Ex.PW9/B respectively and conducted their personal search vide memos already Ex.PW9/D and Ex.PW9/E respectively. Accused Mohd. Naseem made disclosure statement already Ex.PW9/F and accused Mohd. Amir made disclosure statement already Ex.PW9/G. All the aforesaid memos bearing my signatures at point B. Thereafter both the accused persons pointed the place where they had thrown the cutter i.e. the weapon of offence i.e. inside the grass in Tikona park. The said cutter was searched and was recovered from inside the grass. IO had prepared the sketch already Ex.PW9/H of the said cutter and also measured the said cutter and mentioned its measurement on the sketch itself. Thereafter, IO had kept the said cutter in a cloth pullanda and said pullanda was sealed with the seal of VK and was seized vide memo already Ex.PW9/I both the aforesaid memos bears my signatures at point B. Thereafter, accused Naseem led us to his house bearing number 48, Chhatta Lal Miyan, Badi Masjid, Chandni Mahal and from inside the said house from under the bed kept in a ground floor room, he picked up one lungi of yellow colour having blood stains and one round neck T Shirt of green colour and one shirt of Maroon Colour having bloods stains. IO had kept the said clothes in a cloth pullanda and said pullanda was sealed with the seal of VK and was seized vide seizure memo already FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.31 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:58:56 +0530 Ex.PW9/K which bears my signatures at point B. Thereafter, both the accused had also pointed out the place of commission of offence vide pointing out memo already Ex.PW9/L bears my signatures at point B. Thereafter both the accused persons were got medically examined and during medical examination the concerned doctor took the blood samples of both the accused persons and after sealing the same handed over the same to IO alongwith sample seals which IO had seized vide seizure memo already Ex.PW9/M. Thereafter, both the accused persons were sent to lock-up and IO had deposited the case property in Malkhana. IO had also recorded my statement in this regard. I can identify the case property if shown to me. Both accused Mohd. Naseem @ Kaka and Mohd. Amir Khan @ Aryan are present in the court today (correctly identified).
At this stage, MHCM has produced the case property.
Parcel No. 14 sealed with the seal of court is opened and the same is found containing one paper cutter having rusty stains described as weapon of offence. The same is shown to the witness and the witness identify the said paper cutter as already Ex.P-14 being recovered at the instance of both the accused persons.
Parcel No. 15 sealed with the seal of court is opened and the same is found containing one cloth parcel containing one cloth piece i.e. lungi having brown stains, T-Shirt having brown stains, shirt having brown stains. The same are shown to the witness and the witness identify the said clothes as already Ex.P-15 (Colly) being recovered at the instance of accused Naseem.
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.32 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:59:00 +0530 In cross-examination by Ms. Sadhna Bhatia, Amicus Curiae for accused Mohd. Amir Khan @ Aryan and Sh. I.A. Alvi and Sh. Altaf Alvi, Ld. Counsels for the accused Mohd. Naseem @ Kaka, PW-16 deposed as under:
"We left P.S. at about 8.50 a.m. and reached at the place of occurrence at about 9.00 a.m. 8 to 10 public persons were present at the spot. IO had not noted down their names and addresses in my presence. The said public persons had not given any clue about the occurrence or about the offenders on an oral inquiry made from them by the IO. It is correct that the said public persons during inquiry replied that they have not witnessed the occurrence. It is wrong to suggest that I had not taken any such rukka from the spot or that anti dated or anti timed FIR was registered.
The secret information was received by IO at about 06:00 p.m. IO in my presence had not noted down the contents of secret information passed by the informer. It is correct that till that time, we had no clue about the offenders. It is further wrong to suggest that both the accused persons were not apprehended or arrested in the manner as deposed by me or that they were lifted from their respective residences.
It is correct that no public witness is a signatory to the arrest, personal search memos and disclosure statements of accused persons. It is wrong to suggest that both the accused persons had not made any such disclosure statement or that we had obtained their signatures on blank documents or converted the said blank documents into their respective disclosure statements subject to our convenience.
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.33 of 87
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The cutter was recovered at a distance of approximately 30 paces away from the place where dead body was found. It is correct that no public witness is a signatory to the seizure memo of said cutter. It is correct that the paper cutter as shown to be recovered can be easily procured from open market. It is wrong to suggest that no such cutter was recovered at the instance of accused persons or that the same was planted to create false evidence against accused persons. It is correct that the said recovery proceedings was neither videographed nor photographed despite the fact that we were carrying our respective mobile phone having video / photo facility. No forensic/Crime Team was called at the place of said recovery to lift any chance prints from the said cutter.
We reached at the house of Naseem during late evening hours but I do not remember the exact time. I do not remember if we met any of the family member of accused Naseem at the said house. It is correct that the house of accused Naseem was surrounded by many houses. It is correct that in my presence IO had not requested any of the neighbors for joining investigation. The said recovery proceedings were neither videographed nor photographed. It is correct that as on the day of recovery of the said clothes/paper cutter, the exhibits lifted from the spot including the gauze piece having blood stains of deceased were lying at Malkhana of P.S. Darya Ganj. Vol. They were in sealed condition. It is wrong to suggest that we had planted the paper cutter and said clothes and smeared blood of deceased on the said articles to workout a blind murder case. It is wrong to suggest that I am deposing falsely or that I had signed all the memos while sitting at PS itself.
25. PW-17 HC Rohtash Singh, No.124/C, presently posted at FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.34 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:59:08 +0530 P.S. Prashand Nagar, Delhi. The witness HC Rohtash Singh deposed as under:
"On 11.12.2016, I was posted at P.S. Darya Ganj. On that day, I had joined the investigation of the present case with Ct. Rajiv, SI Pritam Singh and IO Inspector Vinod Kumar.
On that day, vide DD No.22A, I alongwith aforesaid police officials left PS at about 4.20PM in Govt. Gypsy. On or about 06:00 p.m. while we were present at Raj Ghat Chowk near traffic booth, there one secret informer met the IO and gave an information to him. IO informed us that as per the secret information, the offenders i.e. Mohd. Naseem and Amir @ Aryan would come in between 07:00 to 08:00 p.m. at a park in front of Khooni Darwaja for taking drugs, if raided they could be apprehended. IO had prepared a raiding party and requested four to five passers bye for joining investigation but they refused.
Thereafter, on or about 06:50 p.m. at the instance of secret informer we managed to apprehend accused Mohd. Amir and accused Mohd. Naseem who are present in the court today. (Correctly identified). IO had interrogated both the accused persons and after interrogation effected their arrest vide arrest memos already Ex.PW9/B and Ex.PW9/B respectively and conducted their personal search vide memos already Ex.PW9/D and Ex.PW9/E respectively. Accused Mohd. Naseem made disclosure statement already Ex.PW9/F and accused Mohd. Amir made disclosure statement already ExPW9/G. All the aforesaid memos bearing my signatures at point C. Thereafter, both the accused persons pointed the place where they had thrown the cutter i.e. the weapon of offence FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.35 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:59:12 +0530 i.e. inside the grass in Tikona park. The said cutter was searched and was recovered from inside the grass. IO had prepared the sketch already Ex.PW9/H of the said cutter and also measured the said cutter and mentioned its measurement on the sketch itself. Thereafter, IO had kept the said cutter in a cloth pullanda and said pullanda was sealed with the seal of VK and was seized vide memo already Ex.PW9/I both the aforesaid memos bears my signatures at point C. Thereafter, accused Naseem led us to his house bearing number 47-48, Chhatta Lal Miyan, Badi Masjid, Chandni Mahal and from inside the said house from under the bed kept in a ground floor room, he picked up one lungi of yellow colour having blood stains and one round neck T Shirt of green colour and one shirt of Maroon Colour having bloods stains. IO had kept the said clothes in a cloth pullanda and said pullanda was sealed with the seal of VK and was seized vide seizure memo already Ex.PW9/K which bears my signatures at point C. Thereafter, both the accused had also pointed out the place of commission of offence vide pointing out memo already Ex.PW9/L bears my signatures at point C. Thereafter, both the accused persons were got medically examined and during medical examination the concerned doctor took the blood samples of both the accused persons and after sealing the same handed over the same to IO alongwith sample seals which IO had seized vide seizure memo already ExPW9/M which also bears my signatures. Thereafter, both the accused persons were sent to lock-up and IO had deposited the case property in Malkhana. IO had also recorded my statement in this regard. I can identify the case property if shown to me. Both accused Mohd. Naseem @ Kaka and Mohd. Amir FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.36 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:59:16 +0530 Khan @ Aryan are present in the court today (correctly identified).
At this stage, MHCM has produced the case property.
Parcel No. 14 sealed with the seal of court is opened during the testimony of PW-16 examined today containing one paper cutter having rusty stains described as weapon of offence. The same is shown to the witness and the witness identify the said paper cutter as already Ex.P-14 being recovered at the instance of both the accused persons.
Parcel No. 15 sealed with the seal of court opened during the testimony of PW-16 examined today containing one cloth piece i.e. lungi having brown stains, T-Shirt having brown stains, shirt having brown stains. The same are shown to the witness and the witness identify the said clothes as already Ex.P-15 (Colly) being recovered at the instance of accused Naseem."
In cross-examination by Ms. Sadhna Bhatia, Amicus Curiae for accused Mohd. Amir Khan @ Aryan and Sh. I.A. Alvi and Sh. Altaf Alvi, Ld. Counsels for the accused Mohd. Naseem @ Kaka, PW-16 deposed as under:
"The secret information was received by IO at about 6.00 p.m. At that time, we were present at Raj Ghat. IO in my presence had not noted down the contents of secret information passed by the informer. It is correct that till that time, we had no clue about the offenders. It is further wrong to suggest that both the accused persons were not apprehended or arrested in the manner as deposed by me or that they were lifted from their respective residences.
It is correct that no public witness is a signatory to the FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.37 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:59:20 +0530 arrest, personal search memos and disclosure statements of accused persons. It is wrong to suggest that both the accused persons had not made any such disclosure statement or that we had obtained their signatures on blank documents or converted the said blank documents into their respective disclosure statements subject to our convenience.
The cutter was recovered at a distance of approximately 30 paces away from the place where dead body was found. It is correct that no public witness is a signatory to the seizure memo of said cutter. It is correct that the paper cutter as shown to be recovered can be easily procured from open market. It is wrong to suggest that no such cutter was recovered at the instance of accused persons or that the same was planted to create false evidence against accused persons. It is correct that the said recovery proceedings was neither videographed nor photographed despite the fact that we were carrying our respective mobile at the place of said recovery to lift any chance prints from the said cutter.
We reached at the house of Naseem during late evening hours but I do not remember the exact time. I do not remember if we met any of the family member of accused Naseem at the said house. It is correct that the house of accused Naseem was surrounded by many houses. In my presence IO had requested few neighbors for joining the investigation but they refused. IO had not noted down their names and address nor served any written notices to them. The said recovery proceedings were neither videographed nor photographed. It is correct that as on the day of recovery of the said clothes/paper cutter, the exhibits lifted from the spot including the gauze piece having blood stains of deceased were lying at Malkhana of P.S. Darya Ganj.
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.38 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:59:25 +0530 Vol. They were in sealed condition. It is wrong to suggest that we had planted the paper cutter and said clothes and smeared blood of deceased on the said articles to workout a blind murder case. It is wrong to suggest that I am deposing falsely or that I had signed all the memos while sitting at PS itself. It is further wrong to suggest that accused persons have been falsely implicated or that I had signed all the memos while sitting at PS itself or that I am deposing falsely at the instance of the IO.
26. PW-18 Inspector Vinod Kumar, No. DI/1011, presently posted at ATO, PS New Ashok Nagar, Delhi. The witness Inspector Vinod Kumar deposed as under:
"On 10.12.2016, I was posted as Inspector Investigation at Police Station Darya Ganj. On that day, I had received a call vide DD No.9A at 08:50 a.m from Ct. Hawa Singh that a dead body with his throat slit was lying on Prakash Chand Marg between metro fencing and railing of park and blood was lying near the dead body. On receiving of the said call, I alongwith SI Pritam Singh, Ct. Anil and Ct. Rajeev reached the spot and found that the dead body of a boy aged about 25-26 years was lying at the spot.
Upon inspection, the head of the dead body was towards East and his face was towards South side and his legs were towards West side. His throat was slit and blood was lying near the dead body. Crime team was called at the spot by me. FSL team was also called at the spot by me. Crime team reached the spot at about 10.30 a.m. and inspected the scene of crime and photographer of the crime team took photographs of scene of crime.
On my instructions, SI Pritam Singh and Ct. Hawa Singh FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.39 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:59:28 +0530 took the dead body to mortuary of MAMC and got the dead body preserved there. After leaving Ct. Hawa Singh at Mortuary, SI Pritam Singh reached the spot. Efforts were made for the search of eye witness but in vain. On the basis of contents of DD No.9A and facts and circumstances of the case, I had prepared rukka Ex.PW18/A which bears my signatures at point A and handed over the same to Ct. Rajeev for taking the same to the police station for registration of FIR. At the spot, I had also prepared rough site plan Ex.PW18/B which bears my signatures at point A. At about 2.00PM, FSL team reached the spot and inspected the scene of crime and lifted exhibits from the spot. The FSL team lifted total 11 exhibits from the spot and handed over the same to me. I had converted the said exhibits into separate pullandas out of which 7 pullandas were of Khaki colour and 3 three pullandas were of yellow colour. One pullanda was made of cloth. The said pullandas were sealed with the seal of VK and seal after use was handed over to SI Pritam Singh. The said pullandas were taken into possession by me vide seizure memo already Ex.PW9/A bearing my signatures at point X. One sky blue coloured cap and sport shoes were also found lying near the dead body which were kept in a pullanda and the said pullanda was sealed with the seal of VK and was seized vide memo already Ex.PW9/A-1 bearing my signature at point X. At about 02.20 p.m., Ct. Rajeev came back at the spot and handed over copy of FIR already Ex.PW1/A and original rukka to me. Enquiry was made in the area for the identification of the dead body and during the said enquiry I alongwith SI Pritam Singh, Ct. Rajeev and Ct. Anil reached at Tiraha Beram Khan, Chandni Mahal, Delhi at about 05:15 p.m. and made enquiry from public persons FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.40 of 87 SHILPI Digitally signed by SHILPI JAIN Date: 2024.12.23 JAIN 16:59:32 +0530 and showed photograph of the dead body and at about 05.25 p.m. the secret informer was met us and I had showed him the photograph of dead body. The said secret informer identified the dead body as of one Salman brother of Ibrahim who used to reside in Jama Masjid Area.
Thereafter, I alongwith SI Pritam, Ct. Rajeev and Ct. Anil reached at Jama Masjid area and reached in Gali Godne Wali, Jama Masjid i.e. at House No. 1412 where a person namely Ibrahim met us and we showed photographs of deceased and after seeing the same he identified the deceased as his brother namely Imran. Thereafter, we took the said Ibrahim to Mortuary of MAMC Hospital where he identified the dead body as of his brother Salman.
Thereafter, on 11.12.2016, I alongwith SI Mahipal and Ct. Roop Lal went to the mortuary of MAMC Hospital where we met Ct. Hawa Singh. We also met Ibrahim i.e. brother of deceased Imran and Moinuddin i.e. uncle of deceased Imran who had identified the body of Imran. In the said mortuary, I had moved an application Ex.PW18/C to the autopsy surgeon for conducting postmortem on the body of deceased. I had also prepared brief facts Ex.PW18/D and filled Form 25.35 (1) (b) Ex.PW18/E. I had also recorded the statement made by Mohd. Ibrahim and Moinuddin thereby identifying the body of Imran which are already Ex.PW2/A and Ex.PW1/A respectively. Accordingly, the autopsy surgeon conducted postmortem on the body of Imran and after postmortem the body of Imran was handed over to the aforesaid relatives vide receipt already Ex.PW1/A. The concerned autopsy surgeon had also handed over me the exhibits which I had seized vide seizure memo already Ex.PW15/A. I had deposited the said exhibits in Malkhana and recorded the statement of FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.41 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:59:37 +0530 witnesses.
Thereafter, on 11.12.2016, SI Pritam Singh, HC Rohtash and Ct. Rajeev joined the investigation of the present case with me.
On that day vide DD No.22A, I alongwith aforesaid police officials left PS at about 04:20 p.m. in Govt. Gypsy. On or about 06.00 p.m. while we were present at Raj Ghat Chowk near traffic booth, there one secret informer met me and gave an information to me. Secret Informer informed me that the offenders i.e. Mohd. Naseem and Amir @ Aryan would come in between 07:00 to 08:00 p.m. at a park in front of Khooni Darwaja for taking drugs, if raided they could be apprehended. I had prepared a raiding party and requested four to five passers bye for joining investigation but they refused.
Thereafter, on or about 06:50 p.m. at the instance of secret informer we managed to apprehend accused Mod. Amir and accused Mohd. Naseem who are present in the court today. (Correctly identified). I had interrogated both the accused persons and after interrogation effected their arrest vide arrest memos already Ex.PW9/B and Ex.PW9/B respectively and conducted their personal search vide memos already Ex.PW9/D and Ex.PW9/E respectively. Accused Mohd. Naseem made disclosure statement already Ex.PW9/F and accused Mohd. Amir made disclosure statement already Ex.PW9/G. All the aforesaid memos bearing my signatures at point X. Thereafter, both the accused persons pointed the place where they had thrown the cutter i.e. the weapon of offence i.e. inside the grass in Tikona park. The said cutter was FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.42 of 87 SHILPI Digitally signed by SHILPI JAIN Date: 2024.12.23 JAIN 16:59:41 +0530 searched and was recovered from inside the grass. I had prepared the sketch already Ex.PW9/H of the said cutter and also measured the said cutter and mentioned its measurement on the sketch itself. Thereafter, I had kept the the said cutter in a cloth pullanda and said pullanda was sealed with the seal of VK and was seized vide memo already Ex.PW9/I both the aforesaid memos bears my signatures at point X. Thereafter, accused Naseem led us to his house bearing number 47-48, Chhatta Lal Miyan, Badi Masjid, Chandni Mahal and from inside the said house from under the bed kept in a ground floor room, he picked up one lungi of yellow colour having blood stains and one round neck T Shirt of green colour and one shirt of Maroon Colour having bloods stains. I had kept the said clothes in a cloth pullanda and said pullanda was sealed with the seal of VK and was seized vide seizure memo already Ex.PW9/K which bears my signatures at point X. Thereafter both the accused had also pointed out the place of commission of offence vide pointing out memo already Ex.PW9/L bears my signatures at point X. Thereafter, both the accused persons were got medically examined and during medical examination the concerned doctor took the blood samples of both the accused persons and after sealing the same handed over the same to me alongwith sample seals which I had seized vide seizure memo already Ex.PW9/M which bears my signatures at point A. Thereafter, both the accused persons were sent to lock-up and I had deposited the case property in Malkhana. I had also recorded the statement of witnesses.
Both the accused persons were produced before the court and I had obtained their one day PC Remand.
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.43 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:59:46 +0530 Accused Mohd. Naseem was also referred for Forensic Medical examination regarding injuries appearing on his right hand. Accordingly, on 13.12.2016, accused Mod. Naseem was taken to MAMC Hospital and was got forensically medically examined. I had collected the said report including MLC.
During PC Remand accused Mohd. Amir made supplementary disclosure statement Ex.PW18/F pursuant to which he led us to house of Saira Bano bearing House No. 686, Ground Floor, Gali Tehsil Wali, Chandni Mahal and from a room built at the outer side of the said house, accused Mohd. Amir picked up one plastic polythene which upon checking found contained one blue colour jeans, one pink colour shirt and one saleti colour jersi. I had kept the said clothes in a cloth pullanda and the said pullanda was sealed with the seal of VK and was seized vide seizure memo already Ex.PW7/B which bears my signatures at point X. During investigation, the exhibits were sent to FSL. During investigation, I had also accompanied the Draftsman to the place of occurrence who took measurements and prepared rough notes and thereafter, prepared scaled site plan and handed over the same to me. During investigation, I had also obtained subsequent opinion in respect of weapon of offence and subsequent opinion on receipt of viscera report. During investigation, I had also collected postmortem report, crime team photographs and FSL Crime Team Report. Upon completion of investigation, I had prepared charge sheet and upon the receipt of FSL Reports/Finger Print Report, I had filed the same in court.
I can identify the case property if shown to me.
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.44 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:59:50 +0530 At this stage, MHCM has produced the case property.
Parcel No.1 sealed with the seal of Court is opened. The same is found containing Gauze cloth piece having brownish stains described as "Blood Gauze" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Gauze Cloth piece as already Ex.P-1.
Parcel No.2 sealed with the seal of Court is opened. The same is found containing Gauze cloth piece having brownish stains described as "Blood Gauze" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Gauze Cloth piece as already Ex.P-2.
Parcel No.2A sealed with the seal of Court is opened. The same is found containing Gauze cloth piece having brownish stains described as "Blood Gauze" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Gauze Cloth piece as already Ex.P-3.
Parcel No.2B sealed with the seal of Court is opened. The same is found containing Gauze cloth piece having brownish stains described as "Blood Gauze" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Blood Gauze piece as already Ex.P-4.
Parcel No.3 sealed with the seal of Court is opened. The same is found containing Cloth piece described as "Cloth Piece" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Cloth piece as already Ex.P-5.
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.45 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 16:59:54 +0530 Parcel No.4 sealed with the seal of Court is opened. The same is found containing Wooden piece having fungal growth described as "Blood stained bark of tree" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Wooden piece having fungal growth as already Ex.P-6.
Parcel No.5 sealed with the seal of Court is opened. The same is found containing Guaze cloth piece having brown stains described as "Guaze Cloth piece" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Gauze Cloth piece as already Ex.P-7.
Parcel No.6 sealed with the seal of Court is opened. The same is found containing Guaze cloth piece having brown stains described as "Guaze Cloth piece" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Gauze Cloth piece as already Ex.P-8.
Parcel No.7 sealed with the seal of Court is opened. The same is found containing Paper piece having brown stains described as "Blood stains papers" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Blood stains papers as already Ex.P-9.
Parcel No.8 sealed with the seal of Court is opened. The same is found containing Concrete Paper piece having brown stains described as "Blood stains papers" lifted from the place of occurrence. The same is shown to the witness and the witness identifies the said Blood stains papers as already Ex.P-9.
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.46 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 16:59:58 +0530 Parcel No. 14 sealed with the seal of court is opened during the testimony of PW-16 examined today containing one paper cutter having rusty stains described as weapon of offence. The same is shown to the witness and the witness identity the said paper cutter as already Ex.P-14 being recovered at the instance of both the accused persons.
Parcel No. 15 sealed with the seal of court opened during the testimony of PW-16 examined today containing one cloth piece i.e. lungi having brown stains, T-Shirt having brown stains, shirt having brown stains. The same are shown to the witness and the witness identify the said clothes as already Ex.P-15 (Colly) being recovered at the instance of accused Naseem.
Parcel No. 16 sealed with the seal of FSL is opened and the same is found containing one blue colour jeans, one pink colour shirt and one saleti colour jersi which are collectively Ex.P-16.
In cross-examination by Ms. Sadhna Bhatia, Amicus Curiae for accused Mohd. Amir Khan @ Aryan and Sh. I.A. Alvi and Sh. Altaf Alvi, Ld. Counsels for the accused Mohd. Naseem @ Kaka, PW-18 deposed as under:
"We received the information regarding laying of dead body from HC/DO Bhiva Ram on 10.12.2016 at about 08:50 a.m. and we reached at the spot at about 09:00 a.m. Public persons were gathered there but nobody disclosed anything about the murder. Crime Team reached at the spot around 10:00 a.m. Crime Investigation Team of FSL, Rohini was also reached at the spot at about 2.00 p.m. and Crime Team lifted the exhibits from the place of incident and handed over the same to me which were converted by FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.47 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 17:00:02 +0530 me into eleven pullandas. It is correct that no public persons and member of Crime Team had signed on the seizure memo of exhibits.
The said public persons had not given any clue about the occurrence or about the offenders on an oral inquiry made from them by me. It is correct that the said public persons during inquiry replied that they have not witnessed the occurrence. It is wrong to suggest that I had not sent any such rukka from the spot or that anti dated or anti timed FIR was registered at my instance. It is wrong to suggest that exhibit no. 1 and exhibit no.9 were not lifted from the spot or that these exhibits were manipulated against the accused Mohd. Naseem @ Kaka after his arrest.
The secret information was received by me at about 06:00 p.m. when I was present at Raj Ghat Chowk, Traffic Police Booth. I had not noted down the contents of secret information passed by the informer. It is correct that till that time, we had no clue about the offenders. We reached Patrol Pump, Bus Stand at about 06:25 p.m. It is correct that I had no evidence against the accused at that time. It is further wrong to suggest that both the accused persons were not apprehended or arrested in the manner as deposed by me or that they were lifted from their respective residences.
It is correct that no public witness is a signatory to the arrest, personal search memos and disclosure statements of accused persons. It is wrong to suggest that both the accused persons had not made any such disclosure statement or that we had obtained their signatures on blank documents or converted the said blank documents into their respective disclosure statements subject to our FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.48 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:00:06 +0530 convenience. We remained at the spot about 09:30 p.m. The cutter was recovered at a distance of approximately 30 paces away from the place where dead body was found. It is correct that no public witness is a signatory to the seizure memo of said cutter. It is correct that the paper cutter as shown to be recovered can be easily procured from open market. It is wrong to suggest that no such cutter was recovered at the instance of accused persons or that the same was planted to create false evidence against accused persons. It is correct that the said recovery proceedings was neither videographed nor photographed despite the fact that we were carrying our respective mobile phone having video / photo facility. No forensic/Crime Team was called at the place of said recovery to lift any chance prints from the said cutter.
We reached at the house of Naseem at about 11:15 p.m. where we met brother of Naseem i.e. Nadeem. It is correct that the house of accused Naseem was surrounded by many houses. It is correct that I had not requested any of the neighbors for joining investigation. The said recovery proceedings were neither videographed nor photographed. It is correct that as on the day of recovery of the said clothes/paper cutter, the exhibits lifted from the spot including the gauze piece having blood stains of deceased were lying at Malkhana of P.S. Darya Ganj. Vol. They were in sealed condition. It is wrong to suggest that I had planted the paper cutter and said clothes and smeared blood of deceased on the said articles to workout a blind murder case.
I cannot admit or deny whether the accused had already received injury in his right hand while doing his job as a FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.49 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:00:10 +0530 butcher. It is wrong to suggest that I had done all the writing work at PS itself. It is wrong to suggest that no clothes were recovered at the instance of accused Mohd. Amir. It is wrong to suggest that I had not conducted the fair investigation in this case or that my investigation is tainted."
27. PW-19 ASI Mukesh Kumar, No.135/C, presently posted at PS Darya Ganj, Delhi. The witness ASI Mukesh Kumar deposed as under:
"On 10.12.2016, I was posted at P.S. Daya Ganj and was on duty as MHCM. On that day, Inspector Vinod Kumar had deposited twelve pullindas in Malkhana sealed with the seal of VK. I had made entry in Register No. 19 vide entry no. 2771/16. Today, I have brought the original Register No. 19 which is seen and returned. Photocopy of entry no. 2771/16 is Ex.PW19/A. Thereafter, on 11.12.2016, Inspector Vinod Kumar had deposited five pullindas in Malkhana sealed with the seal of VK. I had made entry in Register No. 19 vide entry no. 2780/16. Today, I have brought the original Register No. 19 which is seen and returned. Photocopy of entry no. 2780/16 is Ex.PW19/B. Thereafter, on 12.12.2016, Inspector Vinod Kumar had deposited four pullindas in Malkhana out of which two pullands were sealed with the seal of VK and remaining two were sealed with the seal of LNH New Delhi. I had made entry in Register No. 19 vide entry no. 2781/16. Today, I have brought the original Register No. 19 which is seen and returned. Photocopy of entry no. 2781/16 is Ex.PW19/C. FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.50 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:00:13 +0530 Thereafter, on 13.12.2016, Inspector Vinod Kumar had deposited one pullinda in Malkhana sealed with the seal of VK. I had made entry in Register No. 19 vide entry no. 2898/16. Today, I have brought the original Register No. 19 which is seen and returned. Photocopy of entry no.
2898/16 is Ex.PW19/D. On 06.02.2017, on the instruction of IO, I had handed over the said case property to Ct. Daya Nand vide RC No. 24/21/17 and 25/21/17 for depositing the same at FSL, Rohini. Today, I have brought original Register No. 21 (OSR). Copy of RC No. 24/21/17 and 25/21/17 are Ex.PW19/E and Ex.PW19/F respectively. After deposit, Ct. Daya Nand had also handed over me acknowledgments, copies of which are now Ex.PW19/G and Ex.PW19/H. On 16.02.2017, on the instruction of IO, I had handed over one pullanda to Ct. Krishan Pal vide RC No. 31/21/17 for depositing the same at Finger Print Bureau, Kamla Market, Delhi. Today, I have brought original Register No. 21 (OSR). Copy of RC No. 31/21/17 is now Ex.PW19/J. After deposit, Ct. Krishan Pal had also handed over me acknowledgment, copy of which is now Ex.PW19/K. In cross-examination by Ms. Sadhna Bhatia, Amicus Curiae for accused Mohd. Amir Khan @ Aryan and Sh. I.A. Alvi and Sh. Altaf Alvi, Ld. Counsels for the accused Mohd. Naseem @ Kaka, PW-19 deposed as under:
"It is wrong to suggest that anti dated entries were lodged Register No. 19 or that the case property was tampered with at the instance of the IO. It is correct that till the deposit of the pullanda containing cutter and clothes the remaining exhibits were lying in Malkhana. It is wrong to FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.51 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:00:17 +0530 suggest that I am deposing falsely.
28. PW-20 Ms. Imrana, Senior Scientific Officer, Biology, FSL, Rohini, Delhi. The witness Ms. Imrana, Senior Scientific Officer deposed as under:
"On 06.02.2017 I was posted at FSL Rohini as Senior Scientific Officer, Biology. On that day 20 parcels duly sealed from PS Darya Ganj pertaining to case FIR No. 408/16 u/s 302/34 IPC PS Darya Ganj. After biological examination, I had prepared my detailed report which is now Ex.PW20/A, bearing my signatures at points A on all pages."
In cross-examination by Sh. I.A. Alvi, Ld. Counsel for accused Mohd. Naseem, PW-20 deposed as under:
All the samples were received in the FSL office on 06.02.2017. I do not remember when I had started examining the samples. It took me one to two months in examination of the above said samples. Vol. There is lot of cases pending in the FSL, Rohini and because of that it take more time in examination in all cases generally. The Gene mapper ID-X software was used for STR analysis and DNA profiling. STR DNA analysis is based on the allele identification. The word 'allele' means alternative forms of the gene which are located on the particular place of the cromosome and it is a part of DNA. The DNA profiling is also known as human line authentication. The kit which is used in DNA examination is of 16 markers as per the office record. Now we are using the kit of 21 markers for biological examination as well as 16 markers. Kit of 21 makers is advanced technology. It is wrong to suggest that by using kit of 16 markers the result of analysis may be FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.52 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 17:00:21 +0530 inaccurate by 1% or 2%. It is wrong to suggest that the advance kit used by us is more accurate as compared to the kit of 16 markers. It is correct that the DNA cells can be affected by environmental pollutants. Again said, if the samples are not properly preserved there may be chances of contamination of blood sample. If there is a contamination of blood that can affect the accuracy of test. If the blood samples are not properly preserved the original cell lines may be become genetically drifted (damage) during the course of time. It is wrong to suggest that DNA profiling test is not 100% accurate test. It is wrong to suggest that the samples received by the FSL office were not preserved properly by the department. It is correct that we have a separate department for preservation of samples. I do not remember when the samples were handed over to me for conducting DNA examination. It is wrong to suggest that my report is not 100% accurate. It is wrong to suggest that I am deposing falsely.
In cross-examination by accused Amir Khan. He adopted the cross-examination conducted on behalf of accused Mohd. Naseem.
29. No other PW was examined and PE was then closed and the matter was fixed for recording of Statement of both the accused.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.
30. Statement of both the accused under Section 313 Cr.P.C was recorded wherein both the accused persons have denied all the incriminating evidence and claimed their innocence and false implication by the police officials by planted recovery of weapon FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.53 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:00:25 +0530 of offence to workout the case. Accused Naseem@Kaka further stated that he is doing the work of butcher and received injuries on his right hand while doing his said job with butcher knife and police officials have manipulated the evidence by smearing the blood of the deceased on his clothes and on the weapon of offence. He further stated that police officials mixed his blood sample with the blood samples recovered from the place of incident before sending them to the FSL. Both the accused stated that they would not lead evidence in their defence and therefore matter was fixed for final arguments.
FINAL ARGUMENTS ON BEHALF OF BOTH THE PARTIES
31. Final arguments were addressed by Sh. K.P.Singh, Ld. Additional PP for the State and Sh. Altaf Alvi, Ld. Counsel for accused persons. This court has duly considered the rival contentions and has also perused the record carefully.
ARGUMENTS ON BEHALF OF STATE
32. Sh. K.P. Singh, Ld. Addl. PP for the State has argued that the depositions of the witnesses, particularly those of recovery witnesses and expert witnesses alongwith FSL result establish beyond doubt that both the accused persons committed murder of Salman(deceased). It is further argued that accused persons not able to dent/assail the case of prosecution. Therefore, in view of the same, prosecution has proved on record the accused persons have committed the charged offences against the victim/deceased and thus they are liable to be convicted for the offence u/s. 302/34 IPC.
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.54 of 87 SHILPI Digitally signed by SHILPI JAIN Date: 2024.12.23 JAIN 17:00:30 +0530 ARGUMENTS ON BEHALF OF ACCUSED PERSONS
33. Ld. counsel for both the accused has strenuously argued that there is no evidence to show that both the accused used sharp weapon to kill the deceased and that there are no eye-witnesses to the incident who has deposed on the lines of the prosecution case and the depositions of the witnesses are all nothing but hearsay. Further it is stated that both the accused are liable to be acquitted as the prosecution has not been able to prove its case against both the accused Mohd. Naseem@Kaka and Mohd. Amir Khan @ Aryan beyond reasonable doubt as there is no direct evidence and this case is based on circumstantial evidence. It is further argued that prosecution miserable failed to prove motive and there is abnormal delay in sending the parcels to FSL which raises doubt about the truthfulness of prosecution version. It is further argued that only public witness PW-7 has not supported the case of prosecution. It is further argued that circumstances are not cogently and firmly established and chain is not so complete so as to prove the guilt of the accused persons beyond reasonable doubt. Therefore, accused persons are entitled to be acquitted in this case. Ld. Counsel has relied upon following Judgement:
A. Rahul v. State of Delhi, Ministry of Home Affairs and another, 2023 [1] JCC 614[SC]Padala Veera B. B. Reddy v. State of Andhra Pradesh & Others, [1989] Suppl 2 SCC 706 APPRECIATION AND EVALUATION OF EVIDENCE, ANALYSIS OF CONTENTIONS AND FINDINGS FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.55 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 17:00:34 +0530
34. Admittedly, the case of prosecution is based upon the circumstantial evidence as there is no direct evidence i.e. eye witness, electronic evidence(CCTV footage etc.) even alleged by prosecution in this case. It is settled law that criminal jurisprudence begins with the presumption that unless otherwise proved the person facing the trial would be deemed to be innocent. The burden to prove the charge against the accused is on the prosecution and not on the accused. The prosecution, if fails to connect the act of the accused with the ultimate crime and where the material links constituting the evidence are found missing then the benefit of the same goes in favour of the accused. Also, in a case based on circumstantial evidence, the settled legal position is that the circumstances from which the conclusion of guilt is drawn should be fully proved and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
35. As observed by the Apex Court in Sharad Birdhichandsarda Vs. State of Maharashtra, (1984), 4 SCC 116, the following five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence:
"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.56 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:01:15 +0530 distinction between 'may be proved' and 'must be or should be proved as was held by this Court in ShivajiSahebraoBobade Vs. State of Maharashtra, 1973 Cri.L.J. 1783 where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be FIR No. 37/10; U/s 302/392/397/120-
B/34 IPC; P.S. Prashant Vihar D.O.D. 28.01.2016 explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for 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."
36. The accused persons have been charged with offence punishable U/s 302 IPC which reads as under:
"302. Punishment for Murder: Whoever commits murder shall be punished with death, or imprisonment for life, and FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.57 of 87 Digitally signed by SHILPI SHILPI Date:
JAIN JAIN 2024.12.23 17:01:20 +0530 shall also be liable to fine."
37. In order to appreciate the evidence available on record in the light of offence charged against the accused, it would be appropriate to refer to the provision contained in Section 300 IPC which reads as under:
"Section 300 IPC Murder: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly: If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly:If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly: If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
38. In Section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done:
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i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or
iii) with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result, are culpable homicide not amounting to murder.
39. In the landmark judgment of Virsa Singh v. State of Punjab reported in (1958) 1 SCR 1495, the Hon'ble Supreme Court held that the following are the four steps of inquiry involved in the offence of Murder under section 300 IPC, clause thirdly:
"i. First, whether bodily injury is present;
ii. second,what is the nature of the injury;
iii. third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and iv. fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature."
40. In order to bring home the guilt of accused persons in respect of offence of murder of Salman, the prosecution was required to prove as under:
i. That the death of Salman was homicidal in nature;
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.59 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:01:28 +0530 ii. That it was the accused persons who had caused bodily injury to the deceased Salman;
iii. That the accused persons had intention to cause the death of deceased Salman or that the accused persons knew it to be likely to cause death or that the accused persons were well aware that the injury caused to deceased, was sufficient in the ordinary course of nature to cause death.
41. It is quite evident from the aforesaid discussion and the evidence, oral as well as documentary available on record, the prosecution has relied upon the following pieces of circumstantial evidence against the accused persons:
(i) Motive and last seen- That accused Amir wanted to kill Salman in order to take revenge from him as Salman used to verbally abuse sister of Amir's friend Zahir and accordingly he alongwith co-accused Naseem @Kaka, on 09.12.2016, murdered deceased Salman by slitting his throat with paper cutter. That deceased was last seen in the company of accused Amir as he left the house of PW7 saira bano with accused Amir on 09.12.2016.
(ii) Recovery of Weapon of offence i.e paper cutter recovered at the instance of both accused with blood stains which matched with blood of deceased (DNA) and blood of accused Naseem@Kaka is also found on the same.
(iii.) Recovery of the clothes worn by Naseem@Kaka at the time of incident found blood stains DNA matched with deceased (iv.) At the time of incident Naseem@Kaka caught hold of FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.60 of 87 Digitally signed by SHILPI JAIN SHILPI Date:
JAIN 2024.12.23 17:01:32 +0530 deceased from behind and he received incised wound on his hand as one blow of knife landed on his hand made by accused Amir,corroborated by MLC of accused Naseem.
Motive and Last seen Theory:
42. It is well settled principle of law that in a case based of circumstantial evidence, motive assumes considerable importance. However, failure to establish motive would not affect prosecution case if there is positive evidence and establish the charge against the accused. If other circumstances are such as to complete the chain connecting accused with crime then lack or absence of motive is not fatal. However, we can't loose sight of the fact that in the absence of motive the prosecution story may loose its sheen.The prosecution has examined only one witness to prove Motive i.e. PW7 Saira Bano. According to prosecution, it is alleged that statement of Saira Bano was recorded U/S 161 CR. PC regarding motive against the accused Mohd Amir wherein she stated that on one occasion deceased Salman abused family member of Zahir [ friend of accused Mohd Amir] on which accused Amir stared at Salman and on next day deceased Salman again abused family member of Zahir due to which quarrel had taken place between Salman and Amir. Salman left the house and Amir told her that he will kill Salman and on 09/12/2016 deceased Salman and accused Mohd Amir left the house together. Perusal of the record reveals that the prosecution has examined witness Saira Bano as PW7 but she did not support the case of the prosecution regarding the aforesaid motive qua accused Mohd Amir and categorically denied her statement Ex.
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.61 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 17:01:36 +0530 PW7/A recorded by police officials on being confronted with the same during cross examination conducted by Ld. App for the state.
43. PW7 Saira Bano made material improvement in her testimony before the court and introduced a completely new version which is altogether different from the case of prosecution and materially contradicted her previous statement Ex.PW7/A. She deposed that on one occasion accused Amir told her that he had an offer to commit murder of Salman and on the date of the incident, Salman left her house after receiving the phone call of accused Mohd Amir. This deposition introduced a new version which surfaced for the first time on record in the testimony of PW7 as she stated in her previous statement Ex.PW7/A that accused Amir told her that he will murder Salman and accused Amir and deceased Salman left her house together on 9.12.2016 , thereby contradicting her own statement materially.
44. PW7 Saira Bano was declared hostile by the prosecution and she denied the suggestion given by the Ld APP for the state. She categorically denied that she stated to the police that on one occasion deceased Salman abused family members of Zahir on which accused Amir stared at Salman. She further denied that on the next day, deceased Salman again abused family member of Zahir due to which a quarrel had taken place between Salman and accused Amir. She categorically denied that when Salman left the house, accused Amir told her that he will murder Salman. She further denied that she stated to the police that on 09.12.2016 deceased Salman and accused Mohd. Amir left her house FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.62 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 17:01:41 +0530 together. By way of aforesaid deposition she categorically denied the allegations in question and did not support the case of prosecution.
45. It is pertinent to note that prosecution has neither cited nor examined aforesaid Zahir and his relative as witness in the present case to substantiate the allegation in question and prove motive of offence for the reasons best known to investigating agency. No evidence has been brought on record to show that accused persons had any ill-will or enmity towards the deceased. No common animus has been alleged nor proved nor previous enmity established. Accordingly, no motive proved on record qua accused persons to kill the deceased Salman as testimony of sole witness(PW7) of motive suffers from material contradictions.
46. The prosecution miserably failed to prove motive against Mohd Amir. The prosecution had not projected any motive against accused Mohd Naseem. It is well settled that in, case based on circumstantial evidence, Motive is a vital piece of evidence and in present case prosecution failed to prove motive against the accused persons which is a significant piece of evidence. In view of aforesaid facts and circumstances and appreciation of evidence, the prosecution failed to prove motive against both the accused person and this circumstance has not been proved beyond reasonable doubt.
47. So far as last seen theory is concerned, mere fact that the deceased the was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused. Invariably in a case a person last seen with the victim, unless FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.63 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:01:45 +0530 otherwise there are circumstances prima facie exonerating him, would be the prime suspect but in the ultimate judicial adjudication suspicion, howsoever strong cannot be allowed to take the place of proof. It is an admitted proposition of law that in a case of circumstantial evidence, the cumulative effect of all the circumstances proved must be such as to negative the innocence of the accused and to bring home the charge beyond reasonable doubt. It was prosecution case that the deceased and accused Amir left the house of PW7 together on 09.12.2016. To prove the last seen circumstance prosecution again relied upon the testimony of PW7 Saira Bano who has not supported the case of prosecution and categorically denied in her cross examination by Ld. App for the state that she stated to the police that on 09.12.2016 deceased Salman and accused Mohd. Amir left her house together. There is no other witness either cited or examined to establish the circumstance of last seen theory and the sole witness failed to support the version of prosecution in that respect. Thus, from the facts which have come on record, it is found that last seen circumstance is not proved on record beyond reasonable doubt.
RECOVERY OF BLOOD STAINED WEAPON OF OFFENCE (CUTTER) AND CLOTHES FROM OR AT INSTANCE OF ACCUSED MOHD AMIR KHAN@ARYAN AND MOHD NASEEM@KAKA.
48. Admittedly, accused Mohd Naseem@Kaka and Mohd Amir Khan@Aryan were arrested in this case on 11/12/2016 at the instance of secret informer. It was admitted by IO/PW18 FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.64 of 87 SHILPI Digitally signed by SHILPI JAIN Date: 2024.12.23 JAIN 17:01:49 +0530 Inspector Vinod Kumar that they had no clue about the offender till the time secret information was received and they had no evidence against the accused persons when the accused persons were arrested. It is alleged that disclosure statement of accused Mohd Naseem and Mohd Amir was recorded as EX.PW9/F and EX.PW9/G respectively. It is further alleged that both accused pointed out the place where they had thrown the Cutter [weapon of offence] inside the grass in Tikona park and same was accordingly recovered and seized vide memo EX.PW9/I.
49. As per testimony of PW18 (IO), the blood-stained clothes [ONE LUNGI OF YELLOW COLOUR AND ONE ROUND NECK T SHIRT OF GREEN COLOUR AND ONE SHIRT OF MAROON COLOUR] were seized from house no 47/48 Chatta Lal Miyan Badi Masjid, Chandni Mahal at the instance of accused Mohd Naseem. A supplementary disclosure statement of accused Mohd Amir was also recorded on 13/12/2016 and same was EX. PW18/f. Accused Mohd Amir got recovered one blue colour jeans, one pink colour shirt and one saleti colour jersey and all the clothes were seized vide seizure memo EX.PW7/B. It is pertinent to mention here that the accused Mohd Amir was in custody of the police on 11-12/12/2016 but no clothes were got recovered by the accused Mohd Amir. The cutter and clothes recovered at the instance of Mohd Naseem were allegedly deposited with malkhana on 12/12/2016 and clothes recovered at the instance of Mohd Amir were deposited in Malkhana on 13/12/2016.
50. Admittedly, all the Exhibits/Pulinda's were send and FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.65 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 17:01:53 +0530 deposited on 06/02/2017 with FSL Rohini. It is pertinent to mention to here that the exhibits collected and seized from the spot by the IO vide EX. PW9/A and PW9/A1 were also deposited with FSL along with other exhibits on the same day i.e. 06/02/2017. All the exhibits remained with the Police from 10/12/2016 to 05/02/2017. All the exhibits were in the custody of the police. The report of FSL dated 18/08/2017 EX. PW-20/A was prepared by PW-20 MS IMRANA. As per this report blood stains of deceased were found on clothes allegedly recovered at the instance of accused Mohd Naseem and the cutter. As per the report no human blood was found on the clothes recovered at the instance of Mohd Amir. It is pertinent to note that the possibility of manipulation of the blood of the deceased upon the clothes of the accused and weapon of offence cannot be ruled out because all the exhibits/Pulandas were with the police and they were sent to FSL Rohini at a belated stage. Furthermore admittedly, seal VK of IO was not handed over to an independent witness but allegedly handed over to PW9/SI Pritam Singh after the seizure from the spot on 10/12/2016. There is no explanation/ statement regarding the fact that when the seal was returned to IO. The IO also sealed the cutter, clothes of accused Mohd Naseem allegedly on 11/12/2016 and clothes of Mohd Amir were allegedly seized on 13/12/2016. There is no evidence when SI Pritam Singh return back the seal of IO to him. It appears that the seal used by the IO was not handed over to SI Pritam Singh and seal was with IO till the recovery was affected from the accused person and same was under his control. Accordingly, possibility that the blood of the deceased and blood of accused are misused to create false FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.66 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:01:58 +0530 evidence against the accused in order to work out a case cannot be ruled out, particularly when accused has also explained this circumstance in his statement under section 313 Cr.P.C by stating false implication by the police officials by planted recovery of weapon of offence to workout the case. Accused Naseem@Kaka further stated that he is doing the work of butcher and received injuries on his right hand while doing his said job with butcher knife and police officials have manipulated the evidence by smearing the blood of the deceased on his clothes and on the weapon of offence. He further stated that police officials mixed his blood sample with the blood samples recovered from the place of incident before sending them to the FSL. Even otherwise, admittedly, lifting of exhibits have not been witnessed by any independent witness. PW18(IO) categorically admitted in his cross examination that public persons were present at the spot but no public person signed on the seizure memo of exhibits. It has not been explained by the IO, why independent witnesses have not been joined to investigation.
51. The aforesaid appreciation of evidence reflects bad and tainted investigation by police officials.
JOINT RECOVERY OF WEAPON OF OFFENCE- CUTTER AT THE INSTANCE OF BOTH THE ACCUSED.
52. So far as recovery of cutter at the instance of accused persons is concerned, admittedly, cutter was recovered from an open park adjacent to the place of incident. The cutter was not buried or concealed under the earth or inside the bushes. It was not kept in hidden condition. The alleged incriminating article as FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.67 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:02:02 +0530 per the prosecution version was found lying in the Tikona park, near NS Marg Delhi, three paces ahead of the boundary. The recovery of weapon of offence from an open space and not hidden anywhere cannot be said to be a recovery admissible under Section 27 of the Evidence Act. It was held by Honourable High court of Delhi in case titled as Shiv Narayan v state [NCT of Delhi] 93 (2001) Delhi Law Times 681 [DB] that recovery of weapon of offence from open place visible to naked eyes not hidden anywhere cannot be said to be a recovery admissible U/S 27 of Evidence Act. It is further observed by the Hon'ble High Court that "What is admissible under Section 27 of th Evidence Act is not merely knowledge of the accused regarding the place of concealment of the material object but the fact that the accused himself had concealed it there to the exclusion of the knowledge of others. What is not covered cannot be discovered. The weapon found in open space near the wall not hidden in that circumstance the statement of the accused cannot said to distinctly lead to discovery of that weapon, In fact the murder in this case took place between 1st January, 199% to the morning of 4th January, 1996 because the dead body was recovered on 4th January, 1996 at 9.40 a.m. whereas the weapon of offence was recovered on 23rd January, 1996 from an open space. In such circumstance the recovery of knife from an open space visible to naked eyes from open space accessible to all and made after almost 23 days of the occurrence cannot be any avail to the prosecution. Moreover, at the time of alleged recovery Inspector Kali Ram Malik PW 30 did not associate any independent witness though according to him there were number of people collected at the time of FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.68 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:02:06 +0530 recovery of the knife. It is a settled proposition of law that on the Information furnished by the accused to the police officers which led to the recovery of the weapon is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence reliable. Admittedly there is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the article was made from any place which is "open or accessible to others". Therefore, the crucial question would be whether it was ordinarily visible to others? If the answer is in the positive then the recovery would be inadmissible under Section 27 of the Evidence Act. The fact of the matter in the present case is the place wherefrom the alleged knife was recovered was not only open and accessible to others but according to the IO himself the weapon of offence was ordinarily visible. It was neither concealed nor hidden. Therefore, it cannot be said that the accused had the exclusive knowledge as to where the weapon of offence was hidden or kept. When the weapon of offence was ordinarily visible and had not been concealed rather lying on the ground in an open ground accessible to all, the recovery in such circumstances, to our mind, is hit under Section 27 of the Evidence Act."
53. As early as1946, the Privy Council had considered the provisions of Section 27 of the Evidence Act in the case of Pulukuri kotayya and Others v. King-Emperor. It will be relevant to refer to following observations of the Privy Council in the said case:
"The second question, which involves the construction of s.27 the Indian Evidence Act, will now be considered. That section and the two preceding sections, with which it must FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.69 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 17:02:10 +0530 be read, are in these terms. [His Lordship read ss. 25, 26 and 27 of the Evidence Act and continued : ] Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved."
"The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and there upon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw for the Crown, has argued that ìn such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. On this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity, would all be admissible. If this be the effect of s.
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.70 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 17:02:13 +0530 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to s. 26, added by s. 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which I stabbed A.", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
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54. It could thus be seen that Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery. The said view has been consistently followed by this Court in a catena of cases.
55. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of a fact envisaged in the section.
56. Hon'ble Supreme Court of India in Subramanya v. State of Karnataka in Crl Appeal. No. 242/2022 has held that:
"If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.72 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:02:23 +0530 asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement of rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses(panch- witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
57. Hon'ble Supreme Court in catena of judgments have elaborately considered as to how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.73 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
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58. In the present case, the recovery memo has been prepared by PW18 Insp. Vinod Kumar. It is argued by Ld. Defence counsel that the recovery alleged by prosecution is false and fabricated. There is no public witness joined at the time of recovery, all were police witnesses.
59. PW18 Inspector Vinod (IO) categorically admitted in his cross examination that no public witness is a signatory to the arrest, personal search memos and disclosure statements of accused persons. IO further admitted that no public witness is a signatory to the seizure memo of the aforesaid cutter. He further admitted that the said paper cutter can be easily procured from open market. He also admitted that said recovery proceeding was neither video graphed nor photographed despite the fact that they were carrying their mobile phones having said facility. IO also admitted that no forensic/crime team was called at the place of said recovery to lift any chance prints from the said cutter. Abovesaid categorical admissions clearly reflect that recovery of weapon of offence is not done in accordance with the settled law laid down by statute and discussed and elaborated time and again by Apex Court of law.
60. Perusal of the testimony of police witnesses shows that the IO had the previous knowledge regarding the search to be made in consequent of disclosure statement of accused persons, however, neither he called any public person nor he made any public person as Panch-witness as prescribed under settled law and discussed above. In the present case recovery has been made at the disclosure of accused persons from open space, therefore, FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.74 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:02:31 +0530 extra caution is expected from investigating agency in following the appropriate procedure as laid down by Hon'ble Supreme Court of India in Subramanya b State of Karnataka (supra). In such kind of recoveries, independent witnesses are required and in absence of public witnesses, recovery of a weapon of offence cannot be relied upon and become doubtful.
61. Section 100 (4) Cr.P.C lays down that "Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.' The provision under Section 100 (4) Cr.P.C is not complied with in this case by the recovery officer. Conviction on the basis of statements of two police officials alone is not sustainable, as held in Sans Pal Singh v. State of Delhi reported in 1998 SCC Criminal 641.
62. It is also argued by Ld. Defence Counsel that there is a contradiction regarding the distance between the place of incident and place of recovery of weapon of offence.
63. PW-9 SI Pritam Singh has stated in the cross examination that the cutter was recovered at the distance of 200 yard away from the place of the occurrence. PW-16 Constable Rajiv has stated in cross examination that cutter was recovered at the distance of approximately 30 paces away from the place where dead body was found. The PW-18 Inspector Vinod Kumar has stated in cross examination that cutter was recovered at a distance of approximately 30 paces from the place of recovery of FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.75 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:02:34 +0530 dead body. By way of aforesaid deposition police witnesses have contradicted testimony of each other regarding place of recovery of weapon of offence, thereby, again raising doubt about the alleged recovery.
64. It is also strange that the investigating team consisting of officers of Inspector level have not searched the nearby area for finding any evidence and recovery of weapon of offence was affected from the open space near the place of incident only at the pointing out of accused persons.
65. In the present case, admittedly, both the accused were arrested by the IO at the instance of secret informer on 11/12/2016 when there was no clue or evidence with the investigation officer regarding the involvement of the accused persons in the murder of deceased. There was no incriminating evidence with the IO to connect the accused person with the murder and all the alleged evidences were collected after apprehension of accused persons. It is a case where the accused persons were first arrested and then evidences were collected against them. Accordingly, possibility that the evidences were manipulated against the accused persons after their arrest cannot be ruled out.
66. In view of aforesaid facts and circumstances and appreciation of evidence, the recovery of weapon of offence is suspicious and creates doubt about the alleged recovery at the instance of accused persons. Thus, from the facts which have come on record, prosecution miserably failed to prove on record, the circumstance of recovery of weapon of offence at the FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.76 of 87 Digitally signed by SHILPI SHILPI Date:
JAIN JAIN 2024.12.23 17:02:38 +0530 instance of accused persons beyond reasonable doubt.
RECOVERY OF CLOTHES OF ACCUSED MOHD NASEEM@KAKA
67. Perusal of the record reveals that according to prosecution clothes worn by accused Naseem@Kaka at the time of commission of offence were recovered from his house at his instance.
68. PW16 Constable Rajiv, PW17 HC Rohtash Singh and PW18 Inspector Vinod Kumar(IO) deposed in their examination in chief that accused Naseem led them to his house bearing number 48, Chhatta Lal Miyan, Badi Masjid, Chandni Mahal and from inside the said house from under the bed kept in a ground floor room, he picked up one lungi of yellow colour having blood stains and one round neck T Shirt of green colour and one shirt of Maroon Colour having bloods stains. IO had kept the said clothes in a cloth pullanda and said pullanda was sealed with the seal of VK and was seized vide seizure memo Ex.PW9/K.
69. It is argued by Ld. Defence Counsel that alleged recovery is not reliable as not done in accordance with law and same is planted one. It is submitted that the house where the accused Mohd Naseem was residing is situated in a congested area and same is surrounded by number of houses but the IO did not ask any witness of neighbourhood or any independent witness to join investigation with the police at the time of alleged recovery of clothes.
FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.77 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
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70. Perusal of the record further reveals that PW-16 CT. Rajiv, categorically admitted in his cross examination by Ld. Defence Counsel that the house of accused Naseem was surrounded by many houses and in his presence IO had not requested any of the neighbors for joining investigation. He further deposed that the said recovery proceedings were neither videographed nor photographed. He further admitted that as on the day of recovery of the said clothes/paper cutter, the exhibits lifted from the spot including the gauze piece having blood stains of deceased were lying at Malkhana of P.S. Darya Ganj. He denied the suggestion that they had planted the paper cutter and said clothes and smeared blood of deceased on the said articles to work out a blind murder case.
71. PW17 also admitted in his cross examination that house of accused Naseem was surrounded by many houses. He deposed that IO requested neighbours to join the investigation which is in contradiction with the testimony of IO(PW18) himself who categorically admitted in his cross examination that he had not requested any of the neighbours to join the investigation. By way of aforesaid deposition prosecution witnesses contradicted the testimony of each other regarding joining of public witnesses to investigation, thereby raising doubt about the recovery proceedings carried out by them. He further deposed that IO has neither noted down name and addresses of neighbours who refused to join investigation nor served any written notice to them. He further deposed that the said recovery proceedings were neither videographed nor photographed. He further admitted that as on the day of recovery of the said clothes/paper cutter, the FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.78 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:02:45 +0530 exhibits lifted from the spot including the gauze piece having blood stains of deceased were lying at Malkhana of P.S. Darya Ganj. He denied the suggestion that they had planted the paper cutter and said clothes and smeared blood of deceased on the said articles to work out a blind murder case.
72. PW18, IO, also admitted in his cross examination that no public witness is a signatory to the arrest, personal search memos and disclosure statements of accused persons. He further admitted that that the house of accused Naseem was surrounded by many houses and he had not requested any of the neighbors for joining investigation. He further deposed that the said recovery proceedings were neither videographed nor photographed. He further admitted that as on the day of recovery of the said clothes/paper cutter, the exhibits lifted from the spot including the gauze piece having blood stains of deceased were lying at Malkhana of P.S. Darya Ganj. He denied the suggestion that he had planted the paper cutter and said clothes and smeared blood of deceased on the said articles to work out a blind murder case.
73. By way of aforesaid testimony police witnesses have admitted that no sincere efforts have been made by the IO to join public/independent witness to investigation and alleged recovery as IO had not requested any of the neighbour for joining the investigation. This fact is also admitted by the IO during the cross examination. Moreover, IO/PW-18 did not made any inquiry or recorded the statement of any person regarding the fact whether the house from where the clothes were recovered was FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.79 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:02:49 +0530 owned by accused Mohd Naseem or not. He did not examine any family member or occupant of the house regarding the alleged recovery of clothes at the instance of accused Mohd Naseem. No public witness is signatory to the recovery memo. IO admitted in the cross examination that brother of accused Mohd Naseem was present at the house of the accused but statement of his brother was not recorded regarding the alleged recovery of clothes for the reasons best know to investigating agency. Law pertaining to recovery is already discussed above and therefore same is not reproduce here again for the sake of brevity and in order to avoid repetition. However, applying aforediscussed principle of law pertaining to recovery, it is apparent that the same has not been complied with by the investigating agency.
74. In view of aforesaid facts and circumstances and appreciation of evidence the recovery of clothes is suspicious and creates doubt about the alleged recovery at the instance of accused Naseem@Kaka. Thus, from the facts which have come on record, prosecution miserably failed to prove on record, the circumstance of recovery of clothes at the instance of accused Naseem@Kaka beyond reasonable doubt.
RECOVERY OF CLOTHES OF ACCUSED MOHD AMIR KHAN@ARYAN.
75. Admittedly, human blood was not detected from the clothes [one blue colour jeans, one pink colour shirt and one saleti colour jersey] allegedly recovered at the instance of accused Mohd Amir. The clothes are not connected in any manner with the murder of deceased. Furthermore, at the time of FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.80 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:02:52 +0530 alleged recovery of clothes, no public witness was joined in the investigation for the reasons best known to investigating agency. There is no evidence whether the clothes belong to accused Mohd Amir or not.
76. In view of aforesaid facts and circumstances and appreciation of evidence the recovery of clothes is suspicious and creates doubt about the alleged recovery at the instance of accused. Thus, from the facts which have come on record, prosecution miserably failed to prove on record, the circumstance of recovery of clothes at the instance of accused Amir beyond reasonable doubt.
DELAY IN SENDING PARCELS/EXBHITS OF THE CASE FOR EXAMINATION BY FSL ROHINI AND INJURY ON HAND OF ACCUSED NASEEM@KAKA
77. It is vehemently argued by Ld. App for the state that blood of accused Naseem@Kaka is found on weapon of offence and blood of deceased is found on recovered clothes of Naseem@Kaka in expert evidence and therefore guilt of accused is proved beyond reasonable doubt.
78. On the contrary, It is argued by Ld. Defence counsel that there is unreasonable delay of approximately 2 months in sending the Exhibits to FSL for the purpose of examination. As Exhibits were collected by the IO from 10/12/2016 to 13/12/2016 but the parcel was sent to FSL Rohini for examination on 06/02/2017. It is further submitted that accused persons have been falsely implicated by the police officials by planted recovery of weapon FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.81 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 17:02:55 +0530 of offence to workout the case. It is further argued that accused Naseem@Kaka was doing the work of butcher and received injuries on his right hand while doing his said job with butcher knife and police officials have manipulated the evidence by smearing the blood of the deceased on his clothes and on the weapon of offence. It is further submitted that police officials mixed his blood sample with the blood samples recovered from the place of incident before sending them to the FSL.
79. Perusal of the record reveals that exhibits were sent to FSL. Rohini for examination on 06/02/2017. The prosecution has failed to explain the delay in sending the parcels to FSL Rohini. There is abnormal delay in sending the parcel. The exhibits were collected by the IO from 10/12/2016 to 13/12/2016. The parcels remained in the police station for about 52 days. There is no reasonable explanation as to why there was an unusual delay in sending parcels to the FSL Rohini for analysis. The delay of 52 days in sending the parcel by Moharir Malkhana to FSL Rohini is a serious lacuna in the prosecution version. This lapse cast serious doubt about the truthfulness and credibility of prosecution version.
80. Reliance is placed on case titled as Ten Singh v. State [Delhi Administration] Crimes, 1996 [1] passed by Hon'ble High Court of Delhi wherein case titled as SANTA SINGH v. STATE OF PUNJAB of Apex court was relied upon wherein there was inordinate delay in sending the sealed parcels for expert opinion and besides there were other suspicious features in that case and Supreme court held that such suspicious features throw doubt on FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.82 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 17:02:59 +0530 the bonafides of the investigation.
81. In case DES RAJ@DASS VERSUS STATE 83 [2000] DELHI LAW TIMES 262, Hon'ble High Court of Delhi held that delay of 12 days in sending parcel to FSL is a serious lacuna in prosecution version and this lapse creates serious doubt about the truthfulness and credibility of the prosecution version. These facts further goes to show the doubt on the bonafides of the investigations.
82. PW-20 Ms Imrana senior scientific officer FSL Rohini was examined who has proved her report as EX PW-20/A. She has admitted that they are two kits that is 21 markers and 16 markers have been used for biological examination. She has admitted that kit of 21 markers is advanced technology. She has also admitted that she has used kit of 16 markers in the present case. She has also admitted that the DNA cell can be affected by environmental pollutants if the sample are not properly preserved and there may be chances of contamination of blood sample which can affect the accuracy of test. The report of analysis cannot be relied upon regarding the result of blood on the cutter as well on the clothes as the samples remained in the police station for around 52 days and it was not claimed by the IO that the samples were properly preserved in Malkhana and 16 markers kit was used for analysis and not 21 markers kit. Possibility of unaccuracy in the result of the samples cannot be ruled out.
83. The record shows that all the samples relating to the accused and relating to the deceased were seized by the Investigating Officer from 10.12.2016 to 13.12.2016; and they FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.83 of 87 Digitally signed SHILPI by SHILPI JAIN Date:
JAIN 2024.12.23 17:03:03 +0530 were sent to FSL for examination on 06.02.2017. During this period, they remained in the malkhana of the Police Station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Accordingly, the report cannot be relied upon in the facts and circumstances of the case.
84. Reliance is placed upon case titled as Rahul V/S State of Delhi Ministry of home affairs and another, 2023 [1] JCC 614 [SC] wherein it was held by hon'ble supreme court that the report of FSL regarding DNA profiling is not reliable. The relevant para is reproduce herein below "32. It is true that PW 23 Dr. B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ex. PW 23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the Investigating Officer on 14.02.2012 and 16.02.2012; and they were sent to CFSL for examination on 27.02.2012. During this period, they remained in the malkhana of the Police Station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the Trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.84 of 87 SHILPI Digitally signed by SHILPI JAIN Date: 2024.12.23 JAIN 17:03:08 +0530 sent for examination were also not free from suspicion."
85. In the present case samples were sent to FSL after 52 days of seizure and therefore possibility of tampering cannot be ruled out.
86. So far as injury on hand of accused Naseem@Kaka is concerned, PW18 (IO) deposed in his cross examination that he cannot admit or deny whether accused had already received injury in his right hand while doing his job as a butcher. Aforesaid testimony of IO indicates that he himself is not sure after investigation whether said injury is caused during alleged incident or not. Furthermore accused has properly explained the circumstance causing injury during recording of his statement under section 313Cr.P.C. by stating that he was doing the work of butcher and received injuries on his right hand while doing his said job with butcher knife and police officials have manipulated the evidence by smearing the blood of the deceased on his clothes and on the weapon of offence. It is further submitted that police officials mixed his blood sample with the blood samples recovered from the place of incident before sending them to the FSL. Accordingly injury found on the hand on accused Naseem@Kaka is of no consequence to prove the guilt of the accused beyond reasonable doubt.
87. The circumstances are not fully established to conclude the guilt of the accused persons and the fact established are not consistent with the hypothesis of the guilt of the accused persons. It cannot be said that there is no explanation or any other hypothesis except that the accused persons are guilty as the FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.85 of 87 SHILPI Digitally signed by SHILPI JAIN JAIN Date: 2024.12.23 17:03:12 +0530 circumstances are not conclusive in nature making the chain of evidence incomplete which leaves reasonable ground for the innocence of the accused persons and it does not show that in all human probability the act was done by the accused persons. Merely on the basis of suspicion, conviction would not be tenable. It is the duty of the prosecution to prove beyond all reasonable doubt that it is only the accused persons who has committed the crime. The present court finds that the prosecution has utterly failed to do so.
CONCLUSION:
88. In view of aforesaid facts and circumstances, appreciation of evidence, non joining of independent/public witnesses in the investigation of the case, failure to prove motive and all the aforesaid circumstances on record, material contradictions and improvement in the testimony or prosecution witnesses, doubtful alleged recovery, considerable delay in sending the exhibits to FSL, possibility of tampering with the evidence and failure of prosecution to prove complete chain of circumstances, it is held that prosecution miserably failed to prove the guilt of the accused person beyond reasonable doubt and benefit of doubt goes to the credit of accused persons and accordingly, accused Mohd. Naseem@Kaka and Mohd. Amir Khan@Aryan are hereby acquitted of the offence under Section 302/34 IPC.
89. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is Accepted for a period of six months from today.
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90. Issue notice to LRs of deceased to appear before DLSA, Central on 07.01.2025 for the purpose of compensation as per mandate of judgment passed by Hon'ble High Court in Karan v. State NCT of Delhi 277 (2021) DLT 195.
91. Ahlmad is directed to send the ordersheet/proceedings to DLSA (Central) complete in all respect for necessary compliance for 07.01.2025.
92. File be consigned to record room after due compliance.
SHILPI Digitally signed
by SHILPI JAIN
JAIN Date: 2024.12.23
17:03:23 +0530
Pronounced and Signed in the Open Court (Shilpi Jain) on 23rd day of December, 2024 Additional Sessions Judge-02, Central District, Tis Hazari Courts, Delhi CERTIFICATE:
The judgment contains 87 pages and each page has been singed by me. SHILPI Digitally signed by SHILPI JAIN Date: 2024.12.23 JAIN 17:03:27 +0530 (Shilpi Jain) Additional Sessions Judge-02, Central District, Tis Hazari Courts, Delhi 23.12.2024 FIR No.408/2016 State Vs. Mohd. Naseem @ Kaka & Anr. Page No.87 of 87