Delhi District Court
State vs (1) Jameer on 6 May, 2019
IN THE COURT OF SH. VIDYA PRAKASH:
ADDITIONAL SESSIONS JUDGE / NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No. 44696/15
CNR No. DLNE01-000264-2012
STATE Versus (1) JAMEER
S/o Mashooq Ali
R/o F-6/37A, Gali No. 3,
Sunlight Colony,
Old Seemapuri,
Delhi.
(2) RAZIA @ SHABBO
W/o Jameer
R/o F-6/37A, Gali No. 3,
Sunlight Colony,
Old Seemapuri,
Delhi.
FIR No. : 215/2011
PS. : Jafrabad
U/s. : 365/302/201/120-B/34 IPC
Chargesheet Filed On : 17.01.2012
Date Of Allocation : 14.02.2012
Judgment Reserved On : 23.04.2019
Judgment Announced On : 06.05.2019
JUDGMENT:
1. The accused persons were sent to face trial for offences punishable u/s 365/302/201/120-B IPC on the set of allegations that both of them hatched a criminal conspiracy on or before 08.06.2011 to commit murder of Mohd. Azam aged about 25 years and in pursuance of their said criminal conspiracy, they both called victim Mohd. Azam to their H.No. E-6/37-A, Gali No. 3, Sunlight Colony, Old Seemapuri, Delhi on 08.06.2011 and committed his murder with weapon SC No. 44696/2015 State Vs. Jameer & Anr. Page 1 of 41 used for cutting meat and chopped off his body into pieces and disposed of the same with intention to cause the material piece of evidence disappear and in order to screen themselves from legal punishment for the aforesaid offences.
2. The case of prosecution as mentioned in the chargesheet is that on 13.06.2011, complainant Mohd. Afzal (PW-2) lodged missing complaint of his brother Mohd. Azam, vide DD No. 6A (Ex.PW18/A) at PS Jafrabad, wherein he claimed that Mohd. Azam was missing from H.No. C-1248, Gali No. 17/5, Rishi Kardam Marg, Chauhan Banger, Delhi since 08.06.2011. Despite efforts, Mohd. Azam could not be traced out till 14.07.2011. Consequently, FIR in question bearing No. 215/11 u/s 365 IPC came to be registered at PS Jafrabad on 14.07.2011 and investigation was entrusted to SI Vivek Sharma (PW-18). During investigation, he obtained CDRs of SIM connection no. 8010580314 of Mohd. Azam and same revealed his last location at Aradhik Nagar, Seemapuri, Delhi. The analysis of CDRs also revealed that Mohd. Azam frequently used to talk with user of SIM No. 9873020908 and had talked with user of the said number even on the day when he had gone missing. Said number was found to be issued in the name of accused Jamar Miyan. Co-accused Razia @ Shabbo is the wife of said accused. Complainant also raised suspicion regarding involvement of both these accused in the missing of his brother Mohd. Azam. Both the accused were found to be lodged behind the jail in case FIR No. 235/11 u/s 365/302/120-B/34 IPC of PS Seemapuri. On 14.10.2011, IO recorded statement of public witness namely Ms. Nagma (PW-9), wherein she claimed to have lastly seen Mohd. Azam in the company of accused persons on 07.06.2011. IO collected CDRs of SIM SC No. 44696/2015 State Vs. Jameer & Anr. Page 2 of 41 No. 9873020908 and on analysis thereof, it was revealed that Mohd. Azam had telephonic conversation on the SIM number of accused Razia @ Shabbo several times on 08.06.2011. Consequently, both the accused were formally arrested in the present case. During their interrogation, they confessed to have committed murder of Mohd. Azam by calling him to their house on 08.06.2011 and having chopped off his dead body into pieces and throwing them away in Hindon River. Consequently, offences punishable u/s 302/201/120-B/34 IPC were added during investigation and investigation was transferred to Insp. N.R. Lamba (PW-20).
3. It is further the case of prosecution that during further investigation, Insp. N.R. Lamba examined Ms. Sultana (PW-1), who claimed that on 08.06.2011 at about 12:00 noon, accused Jameer who was residing in their neighbourhood, had visited her house and had taken meat cutting weapon. On the same day at about 6:00 pm when she had returned back to house after taking tuition, she saw accused Jameer going outside their house and also saw same meat cutting weapon lying below bed in the room of her house. She claimed to have told the said facts to her father Sh. Kallan (PW-4). Accordingly, statement of said Kallan was recorded, wherein he affirmed to have been told about these facts by his daughter.
4. It is further the case of prosecution that during further investigation, Insp. N.R. Lamba moved an application for conduction Narco Analysis Test of both the accused persons but accused did not give their consent to it and that is why, said test could not be got conducted. Investigation revealed that there were SC No. 44696/2015 State Vs. Jameer & Anr. Page 3 of 41 relation between deceased Mohd. Azam and accused Razia @ Shabbo and said fact having come to the knowledge of accused Jameer being husband of co- accused Razia @ Shabbo. In view of the fact that Mohd. Azam was pressuring accused Razia to marry him, both the accused hatched a criminal conspiracy and committed murder of Mohd. Azam and after chopping his body into pieces, they threw the same, due to which dead body could not be recovered. It is further the case of the prosecution that IO Insp. N.R. Lamba collected CDRs and other relevant documents including CAF, Cell ID Location charts, etc. of relevant SIM connection numbers, recorded statements u/s 161 CrPC of relevant witnesses during the course of investigation. After completion of investigation, chargesheet was filed u/s. 365/302/201/120-B/34 IPC on the basis of circumstantial evidence.
5. After compliance of section 207 CrPC, learned MM committed the case to Court of Sessions as offence u/s 302 IPC was exclusively triable by it.
6. Vide order dated 04.04.2012, my learned Predecessor framed charges for offences u/s 120-B IPC & 302/201 r/w 120-B IPC against both the accused. Both the accused pleaded not guilty and claimed trial.
7. In order to prove the charges, the prosecution examined as many as 20 witnesses.
8. Statements u/s 313 CrPC of both the accused persons were recorded. None of the accused examined any defence witness despite seeking opportunity for the same.
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9. Now, it has to be seen as to how the prosecution story was unfolded by the prosecution witnesses during the course of trial. MATERIAL WITNESSES
10. Prosecution produced PW-1 Sultana and PW-4 Kallan to show that accused Jameer had taken meat cutter from their house. It produced PW-2 Afzal as complainant/informant. It further examined PW-9 Nagma to prove circumstance of last seen.
11. PW-1 Sultana deposed that she was residing with her parents and accused Jameer was known to her, being a neighbour. However, she denied that accused Jameer had come to her house on 08.06.2011. She deposed against prosecution case. She was cross-examined by learned Prosecutor.
12. In the said cross-examination, she denied that there was any meat cutter in her house. She denied all the suggestions of learned Prosecutor. She denied again that accused Jameer had come to her house or that he took away meat cutter from the machaan of her house. She was confronted with her previous statement Ex.PW1/A. One knife was shown to her but she denied that said knife was available in their house or that it was taken away by accused Jameer.
13. PW-4 Kallan is father of PW-1. PW-4 also turned hostile and did not support the prosecution case. He stated that his daughter did not tell him that accused Jameer had come to his house or he took away meat cutter knife. SC No. 44696/2015 State Vs. Jameer & Anr. Page 5 of 41 PW-4 was also cross-examined by learned Prosecutor.
14. Nothing came out in the said cross-examination. PW-4 denied all the suggestions of the learned Prosecutor. He was confronted with his previous statement Ex.PW4/A. He was shown three weapons in the court but he stated that none of them belonged to him.
15. PW-2 is Afzal. He is brother of deceased Mohd. Azam. He deposed that Mohd. Azam was his younger brother. He stated that Azam was doing private job in Foot Slipper Factory. On 08.06.2011, Mohd. Azam left the house and did not return back home. He and family members tried to contact him but his mobile phone was found switched off. He further deposed that on 08.06.2011 at about 4:30 pm, he received phone call from Mohd. Azam and he informed that he was in Seemapuri and would be returning home late evening/night. After 3 - 4 days, PW-2 lodged missing report and later on, FIR in question was also registered.
16. Deposing further, PW-2 stated that there was proposal of his marriage with accused Razia about 4 - 5 years prior to the incident. However, the marriage talks could not be finalized because Razia used to make frequent telephone calls to him as well as to his workers. Mohd. Azam came to know about it and he forced him not to marry with Razia. He deposed that once Razia called him and asked him to put Azam on line. Thereafter, she talked with Azam and she confronted Azam as he opposed her marriage with PW-2. He deposed that Azam told her everything after which Razia gave threats to Mohd. Azam that SC No. 44696/2015 State Vs. Jameer & Anr. Page 6 of 41 if he would intervene in her marriage with PW-2, she would get him killed. PW-2 deposed that thereafter, marriage proposal was ended. However, Razia continued talking with Mohd. Azam on mobile phone. He did not remember the mobile number.
17. He also deposed that Razia got married with accused Jameer. He stated that there used to be exchange of messages between Mohd. Azam, Jameer and Razia and she remained in constant touch with Azam.
18. He further deposed that prior to 07.06.2011, entire family members except Mohd. Azam had gone to their native place in UP in connection with some family marriage. However, Mohd. Azam stayed back. He came to know that during their absence from the house, accused Razia used to come to their house to meet Mohd. Azam. He also deposed that one Nagma who was a neighbour, had told this fact. He deposed that Nagma also told him that she had seen Razia and Mohd. Azam in the house in the night of 07.06.2011.
19. He further deposed that later on, they found a mobile phone from the pant of Mohd. Azam in their house in which they found various messages and from there, they developed suspicion upon Razia and her husband Jameer that they might have killed Mohd. Azam. He also deposed that Razia was interrogated by the police in his presence and she had confessed to the murder of Mohd. Azam being committed by her and by her husband. His statement is Ex.PW2/A. He also stated that mobile number of Mohd. Azam was 8010580314 and mobile numbers of Razia were 9873020908 and 9953677254. SC No. 44696/2015 State Vs. Jameer & Anr. Page 7 of 41
20. In his cross-examination, he deposed that earlier they were searching for Mohd. Azam and, therefore, they did not lodge missing report till 12.06.2011. He admitted that he had not told certain facts in his previous statement. He had not told that Mohd. Azam had telephoned him and had informed him that he was in Seemapuri or that he would come late. PW-2 also did not tell in the said statement about reason for turning down the marriage proposal. PW-2 thus stood contradicted on these aspects. He was further confronted with other facts which were not mentioned in the previous statements Ex.PW2/DA and Ex.PW2/DB. Even the facts of the entire family going out in connection with marriage, or that Razia used to come to meet Mohd. Azam during their absence, were not found mentioned in the said statements. Thus, PW-2 made significant improvements from his previous statements.
21. PW-2 was recalled for further examination after filing of supplementary chargesheet. Seizure memo of mobile phone handed over by him to the IO, is Ex.PW2/B. Photograph of Mohd. Azam is Ex.PW2/C. Mobile phone of Nokia is Ex.P-1 and SIM card is Ex.P-2.
22. In his cross-examination, he deposed that the mobile phone was recovered from clothes of Mohd. Azam after 1 - 1 ½ months of his missing. He stated that the clothes from which the mobile phone was recovered, was lying in the factory of the deceased. Said mobile phone was working when it was recovered. They had handed over the said mobile phone to the IO after 2 - 3 days of its recovery. He admitted that the date on Ex.PW2/B (seizure memo of SC No. 44696/2015 State Vs. Jameer & Anr. Page 8 of 41 mobile phone) was 07.05.2013. He denied the suggestion that said mobile phone was planted at instance of the IO.
23. PW-9 is Nagma. She was neighbourer of informant Afzal as well as of deceased Mohd. Azam. She deposed that she had never seen Mohd. Azam in the company of any lady at any point of time. She thus deposed against prosecution story and was cross-examined by learned Prosecutor. However, nothing came out in the said cross-examination conducted on behalf of State. Accused persons preferred not to cross examine this witness. INVESTIGATION WITNESSES
24. PW-18 is SI Vivek Sharma. He deposed that on 14.07.2011, he obtained copy of DD No.6A dt. 13.06.2011, which is Ex.PW18/A. He perused the said DD and made endorsement Ex.PW18/B on the aforesaid DD No. 6A and prepared the rukka. The rukka was produced before the Duty Officer for registration of the case. HC Pawan handed over him the copy of FIR and original rukka. Thereafter, he made efforts to search for the missing person namely Md. Azam @ Amaan.
25. He deposed that on 15.07.2011, he flashed messages to various agencies regarding missing of Md. Azam @ Amaan. Md. Azam was maintaining two mobile phones, however, he did not remember those mobile phone numbers. He collected CDRs of those mobile phones of Md. Azam and analyzed the same. From analysis, it transpired that one of the mobile phones was being used from SC No. 44696/2015 State Vs. Jameer & Anr. Page 9 of 41 Aradik Nagar, Seemapuri, Delhi.
26. He further deposed that on 22.07.2011, the complainant Md. Afzal, the elder brother of deceased, met him and informed him that his brother Md. Azam was having relations with a lady namely Razia @ Shabbo. Afzal also told him that she alongwith her husband Jameer were in custody in another murder case of PS Seemapuri. Then he went to PS Seemapuri and inquired about the said case of murder. At PS Seemapuri, SI Hukam Singh informed him that both Razia and her husband were in JC. SI Hukam Singh made inquiries from Razia and her husband about Md. Azam but they did not disclose anything about Md. Azam. He continued to trace Md. Azam and on 04.08.2011, he went to Village Koshalya, Masuri Dasna, where he met with the mother Smt. Masum of Razia. The mother of Razia did not disclose anything about the relationship between Razia and Md. Azam.
27. He also deposed that in the month of September 2011, he submitted an application before the court for issuance of production warrants of both the accused persons. Accordingly, they were produced before the court and he interrogated them by taking permission from the court but they did not disclose anything about their involvement in the present case. During the course of investigation, the complainant Md. Afzal met him and informed that one lady Nagma had seen the deceased and Razia on 07.06.2011 together.
28. He also deposed that on 14.10.2011, he recorded statement u/s 161 CrPC of Nagma. In her statement, she stated that she had seen Razia and SC No. 44696/2015 State Vs. Jameer & Anr. Page 10 of 41 Md. Azam on 07.06.2011 together. Therefore, on 18.10.2011, he again submitted an application before the court for production of both the accused persons before the court. Accordingly, on 20.10.2011, both the accused persons were produced before the court. After interrogation, he arrested both the accused persons. Accused Jameer was arrested vide memo Ex.PW7/A and accused Razia @ Shabbo was arrested vide memo Ex.PW6/A. After arrest, he obtained one day PC remand of both the accused persons. On 21.10.2011, accused Razia was interrogated and during the course of interrogation, she made disclosure statement Ex.PW2/A. She disclosed that she had received a phone call from the phone of Md. Azam.
29. He further deposed that accused Razia disclosed that she was having friendship with deceased Mohd. Azam and thereafter, Mohd. Azam started pressuring her for marriage with him but she was not ready to marry with Mohd. Azam. She further disclosed that she alongwith her husband Zameer conspired to murder Mohd. Azam and in pursuance of the conspiracy, they committed murder of Mohd. Azam. She also disclosed that in the month of February 2011, she received a phone call on her phone no. 9873020908 from phone no. 8010580314 and the caller was stating that he was Mohd. Azam and he wanted to talk to her sister, which request was declined by her but despite that Mohd. Azam kept calling to her. Thereafter, they became friends. After some time, Mohd. Azam pressurized her to marry him after leaving her children. Razia was not interested and she disclosed this fact to her husband.
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30. He also deposed that after recording disclosure statement of accused Razia, Sec. 302 IPC was added with the challan and thereafter, the investigation was conducted by Inspt. Neki Ram. Inspt. Neki Ram submitted an application for obtaining two days PC remand and the court granted two days PC remand of both the accused persons. Accused Zamir was interrogated. During course of interrogation, accused Zamir made disclosure statement which is Ex.PW18/C, wherein he disclosed that he alongwith his wife had committed the murder of Azam and after cutting the dead body into pieces, they disposed of the dead body into Hindon river and they burnt the blood stained clothes of deceased near the Hindon river.
31. He further deposed that on the next day i.e. 22.10.2011, both the accused persons led them to the Hindon river, where they had pointed out the place where they had disposed of the pieces of dead body. The pointing out memo was prepared at the instance of accused Razia @ Babo @ Shabbo, which is Ex.PW11/A. Accused Zamir also pointed out the place where he alongwith his wife disposed of the pieces of dead body of deceased and also belongings of the deceased including his mobile phone and blood stained clothes and also shoes. The pointing out memo prepared at the instance of accused Zamir, is Ex.PW18/D. Thereafter they made search for the pieces of dead body but the same could not be found.
32. He also deposed that on 07.05.2013, complainant came at police station and he produced one mobile phone of Nokia-1200 of black and grey SC No. 44696/2015 State Vs. Jameer & Anr. Page 12 of 41 colour and told him that it contained the SMSs exchanged between accused Razia and deceased. He converted the said mobile phone into a parcel and sealed it with the seal of VS and took it into possession vide memo Ex.PW2/B. The said pullanda of mobile phone was deposited with the MHC(M). He got deposited the aforesaid sealed parcel of mobile phone with FSL, Rohini for analysis through some constable.
33. He further deposed that in the month of September 2013, he received result from FSL. In the said report, two other mobile numbers were also detected and he contacted with the users of said mobile numbers. Thereafter, he filed the supplementary chargesheet in the court. He identified both the accused. He also identified the mobile phone as Ex.P-1 and SIM card as Ex.P-2.
34. In cross-examination, he stated that he had not checked whether the mobile phone which was given to him on 07.05.2013, was working or not and whether there was any SMS in it or not. He did not remember whether there was SIM card in the mobile phone or not. He stated that mobile numbers mentioned in seizure memo Ex.PW2/E, were told to him by complainant. He had not even checked IMEI number of the said mobile phone. He told that he had asked complainant reason for giving the mobile phone so late and complainant told him that they had got the mobile phone only recently. He admitted that he had not tried to contact any of the subscribers of the SIM cards purportedly used by deceased Mohd. Azam. He denied that he had not fairly investigated the case.
35. PW-20 is Insp. N. R. Lamba. He deposed that on 21.10.2011, he SC No. 44696/2015 State Vs. Jameer & Anr. Page 13 of 41 was posted as SHO PS Jafrabad. On that day, investigation of this case was taken up by him from SI Vivek Sharma. SI Vivek Sharma had formally arrested accused Jameer and Razia @ Shabbo from the court and after taking one day PC remand of both the accused persons, SI Vivek Sharma had produced both the aforesaid accused him. He had interrogated both the accused persons. After interrogation, he had produced both the accused before the concerned court and had obtained their two days PC remand vide application Ex.PW20/A. One Lady Ct. Rekha had also accompanied him to the court. Accused Razia was in the custody of lady Ct. Rekha. Both the accused were got medically examined and brought to the police station where he had again interrogated both the accused. At that time, he had recorded disclosure statement of accused Jameer, which is Ex.PW18/C.
36. He deposed that thereafter on 22.10.2011, he alongwith Lady Ct. Indu (PW-11), SI Vivek Sharma and other staff left the police station alongwith both the accused. Both the accused had taken them near the bank of Hindon river near Indrapuram, where both the accused had pointed out the place where they had thrown the dead body of Mohd. Azam @ Amaan in pieces. He deposed that thereafter he had prepared separate pointing out memos of the said place in this regard. Pointing out memo of accused Razia is Ex.PW11/A. Pointing out memo of accused Jameer is Ex.PW18/C. He deposed that at that time, he had made efforts to find out the body pieces of the deceased from that place but same could not be found. Thereafter, they reached Police Chowki, Hindon to make inquiries about recovery of body of deceased by the local police but the SC No. 44696/2015 State Vs. Jameer & Anr. Page 14 of 41 police officials present there, told them that no such body was recovered by the local police from that place. He further deposed that thereafter, they had reached PS Indrapuram where he made inquiries from the SHO who also gave the same reply. Thereafter they came back to PS Jafrabad, where both the accused were put in the lock up. He also deposed that from the police station, he alongwith SI Vivek Sharma had reached at the house of one Kallan in Old Seemapuri, where one lady met them. On inquiry, she told herself as the wife of Kallan. He briefed her facts of the case and asked her to send Kallan to PS Jafrabad. After that, they came back to the police station. After some time of their arrival at the police station, Kallan and his daughter Sultana came to him. He interrogated both of them and recorded their statements u/s 161 CrPC.
37. On 24.10.2011, he had moved an application before the concerned court of learned MM for conducting Narco Analysis test of both the accused persons. Carbon copy of the same is Ex.PW20/B. Both the accused had refused to give their consent for the Narco Test. Hence the application was disposed of.
38. He further deposed that on 03.01.2012 and 09.01.2012, he had collected CAF and CDRs of mobile phone numbers which he could tell after going through the record. (After going through the record, witness stated that he had collected the CAF and CDRs of mobile nos. 9873020908 and 8010580314). He had given notices Ex.PW20/C and Ex.PW20/D respectively regarding CDRs and CAF of these numbers. Mobile no. 9873020908 was in the name of accused Jameer and mobile no. 8010580314 was in the name of one Mohd. Saleem R/o SC No. 44696/2015 State Vs. Jameer & Anr. Page 15 of 41 Gali No.8, Chauhan Bangar. He made efforts to find out said Mohd. Saleem but he could not be found.
39. During the course of investigation, he had recorded statements of concerned witnesses. He had also issued certificate u/s. 65-B Indian Evidence Act regarding registration of FIR which is Ex.PW12/B. After completing the investigation, he had prepared chargesheet against both the accused persons u/s. 365/302/201/120-B/34 IPC and filed the same.
40. In cross-examination, he denied that investigation conducted by him was not fair. He denied that he had worked out the case mechanically to falsely implicate the accused persons.
EXPERT WITNESSES
41. PW-19 is Dr. Virendra Singh. He deposed that on 17.05.2013, one sealed parcel was received in the laboratory and the seals on the parcels were intact. On opening the same, one mobile phone make NOKIA model no. 1200 having IMEI No. 853108/02/346718/0 and one SIM card bearing no. 84001388662HLR3 were recovered. The mobile phone was marked by him as MP1 and SIM card was marked as SC1.
42. On examination of aforesaid mobile phone, the relevant data which could be retrieved from the mobile phone, was supplied in six sheets Mark P-1 to P-6 and the data which could be retrieved from the SIM card, was supplied in three sheets Mark P-7 to P-9.
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43. After examining the aforesaid exhibits, same were sealed with the seal of DOC/FSL and same was collected by the authorized messenger of the PS. His detailed report including the forwarding letter and aforesaid nine sheets are collectively Ex.PW19/A. FORMAL WITNESSES
44. PW-3 Rajeev Shardat is Nodal Officer from Reliance Communication Ltd. He produced computerized copy of Call Details Record (CDRs) of mobile no. 8010580314 from 01.06.2011 to 08.06.2011, which is Ex.PW3/A and copy of Customer Application Form (CAF), which is Ex.PW3/B. He deposed that as per record, the said SIM was allotted to Mohd. Saleem S/o Mohd. Khaleel R/o C-216/10, Gali No. 8, Chauhan Bangar near Seelampur, North Shahdara, Delhi. Photocopy of Election I-card of Mohd. Saleem is Ex.PW3/C and Certificate u/s 65-B of Indian Evidence Act is Ex.PW3/D.
45. PW-5 HC Pawan Kumar deposed that on 14.07.2011, Duty Officer entrusted him copy of FIR No. 215/11 regarding missing of Mohd. Azam and original rukka for handing over the same to SI Vivek. He handed over the same to SI Vivek. They searched for missing Mohd. Azam at ISBT, Old Railway Delhi Station, GTB Hospital mortuary and other different places but despite their best efforts, missing Azam could not be traced.
46. PW-6 is Ct. Rekha. She deposed that on 20.10.2011, she alongwith SI Vivek and Ct. Ajmer came to Karkardooma court, where accused SC No. 44696/2015 State Vs. Jameer & Anr. Page 17 of 41 Jameer and Razia were produced in the court of Sh. Pulastya Parmachala, the then Ld. MM. SI Vivek moved an application for arrest of both the accused persons. Accused Razia was arrested vide arrest memo Ex.PW6/A. Later on, both the accused were taken on one day police custody.
47. PW-7 is Ct. Ajmer. He deposed that on 20.10.2011, he alongwith SI Vivek and lady Ct. Rekha came to Karkardooma court, where accused Jameer and Razia were produced in the court of Sh. Pulastya Parmachala, the then learned MM. SI Vivek moved an application for arrest of both the accused persons. Accused Razia was arrested vide arrest memo Ex.PW6/A and accused Jameer was arrested vide arrest memo Ex.PW7/A. Later on, both the accused were taken on one day police custody.
48. PW-8 Anuj Bhatia is Nodal Officer from Vodafone Mobile Services Ltd. He produced Call Details Record (CDR) of mobile no. 9873020908 from 01.06.2011 to 15.06.2011. He stated that printouts contain call details till 08.06.2011 meaning thereby that after 08.06.2011 till 15.06.2011, this mobile phone remained either switched off / not in use for any reason. CDR is Ex.PW8/C and certificate u/s 65-B Indian Evidence Act is Ex.PW8/D. As per their record, SIM had been issued in the name of Jamar Mia R/o E-6/37A, Sunlight Colony, Old Seemapuri, Delhi. Photocopy of application form is Ex.PW8/A and photocopy of driving license of Jamar Mia is Ex.PW8/B.
49. PW-10 is Nitin. He deposed that he had taken mobile no. 8802326690 2 ½ years prior to the incident. He deposed that said mobile SC No. 44696/2015 State Vs. Jameer & Anr. Page 18 of 41 number was being used by him as well as by his brother for talking to customers at his shop. He did not know any person namely Azam @ Aamaan. He also did not remember if he had given his mobile to anyone for using the same. He was cross-examined by learned Prosecutor as he was resiling from his previous statement.
50. In the said cross-examination, he denied that 8 - 10 months prior to the incident, one Mullaji and one lady had come at his shop with one mobile phone for getting prepared CD of the message contained in the phone and he had made efforts to prepare the CD of the messages available in the said phone or that he had inserted his SIM therein for that purpose but could not prepare the CD or that he had returned the said phone to them. He was confronted with statement Ex.PW10/A wherein it was so recorded.
51. PW-12 SI Ramji Lal is Duty Officer from 5:00 pm to 1:00 am of 14.07.2011. He deposed that on that day at about 5:30 pm, SI Vivek produced a rukka on the basis of which he registered FIR No. 215/11 u/s 365 IPC. He also made corresponding entry in DD Register at serial no. 24A. Copy of FIR is Ex.PW12/A. Certificate u/s 65-B Indian Evidence Act is Ex.PW12/B.
52. PW-13 W/Ct. Preeti. She deposed that on 21.10.2011, she had joined the investigation of this case with SI Vivek Sharma in police station. SI Vivek Sharma interrogated accused Razia @ Shabbo in the presence of complainant Mohd. Afzal. SI Vivek Sharma recorded disclosure statement of accused Razia @ Shabbo. Razia had confessed that she had killed Mohd. Azam SC No. 44696/2015 State Vs. Jameer & Anr. Page 19 of 41 @ Amaan with her husband Jameer on 08.06.2011. Disclosure statement of accused Razia is Ex.PW1/A.
53. PW-14 Israr Babu is Nodal Officer from Vodafone Mobile Services Ltd. He produced Customer Application Form (CAF) of mobile on 9873985699 which is Ex.PW14/A. As per record, said mobile was subscribed by Naushad Khan S/o Azizur Rehman. Photocopy of I-card of Naushad Khan is Ex.PW14/B.
54. PW-15 is HC Surender. He deposed that on 07.05.2013, he was working as MHC (M) in PS Jafrabad. On that day, SI Vivek Sharma had deposited one parcel having seal impression 'VS' pertaining to this case in malkhana by handing it over to him. He made entry at Sl. No. 532/13 in Register No. 19. Copy of Register No. 19 containing relevant entry is Ex.PW15/A.
55. He deposed that on 17.05.2013, the said sealed parcel and two blank DVDs were got deposited in FSL, Rohini for examination through Ct. Ashwini Kumar vide RC No. 7/21/13. He made entry at point A in Register No. 19 in this regard. Copy of RC No. 7/21/13 is Ex.PW15/B. Ct. Ashwini Kumar handed over him acknowledgement. Copy of acknowledgement is Ex.PW15/C.
56. He further deposed that on 16.09.2013, sealed parcel with FSL report were received in malkhana through Ct. Anil. He deposited sealed parcel in malkhana and handed over report to SI Vivek Sharma. He made entry at point B in Register No. 19 in this regard.
57. PW-16 is HC Ashwani Kumar. He deposed that on 17.05.2013, SC No. 44696/2015 State Vs. Jameer & Anr. Page 20 of 41 MHC(M) gave him a sealed parcel pertaining to this case, to deposit it in FSL, Rohini vide RC No. 7/21. He deposited the said parcel in FSL and obtained receipt. He gave receipt to HC Surender MHC(M). Copy of RC is Ex.PW15/B and copy of acknowledgement is Ex.PW15/C.
58. PW-17 Shishir Malhotra is Nodal Officer from Aircel Ltd. He produced copy of Customer Application Form (CAF) of mobile no. 8802326690 which was issued in the name of Nitin s/o Banwari Lal R/o H.No. 78, Gali No. 2, Main Road, Phase-IV, Shiv Vihar, Karawal Nagar, Delhi-94. Copy of CAF is Ex.PW17/A. Copy of election I-card is Ex.PW17/B. Covering letter is Ex.PW17/C. STATEMENTS OF ACCUSED PERSONS
59. Incriminating circumstances appearing in evidence against both the accused persons were put to them as required u/s 313 CrPC. Accused persons stated that they were innocent and were falsely implicated.
60. Accused Jameer stated that his wife Razia had no relationship with the deceased at any point of time. She had not contacted the deceased at any point of time either personally or telephonically.
61. Accused Razia stated that she had no relationship with the deceased at any point of time. She had not contacted the deceased at any point of time either personally or telephonically.
SC No. 44696/2015 State Vs. Jameer & Anr. Page 21 of 41 SUBMISSIONS OF THE PARTIES
62. I have already heard learned Addl. PP for the State, duly assisted by Sh. K.N. Sharma, learned Legal Aid Counsel for complainant, and Sh. Pradeep Sharma, learned Counsel for the accused persons.
63. After referring to the testimonies of prosecution witnesses examined during trial and the documents proved by them, Ld. Addl. PP and Counsel for complainant vehemently argued that the evidence, ocular as well as documentary, clearly establish the guilt of both the accused persons beyond reasonable doubt. They submitted that accused Razia @ Shabbo had extra marital affair with deceased Mohd. Azam and when Mohd. Azam insisted her to marry him, she hatched a conspiracy with her husband/co-accused Jameer to commit his murder and in pursuance of that conspiracy, both of them called Mohd. Azam to their house on 08.06.2011 and committed his murder and chopped his body into pieces which were thrown by them with intent to destroy the material piece of evidence in order to screen themselves from illegal punishment for causing his murder. In support of the aforesaid submissions, they heavily relied upon the testimony of PW-2 Afzal who is the brother of deceased, having lodged missing report (Ex.PW18/A) vide DD No. 6A at PS Jafrabad on 13.06.2011. It was argued that the prosecution has been able to establish motive on the part of accused persons to commit murder of Mohd. Azam on the basis of testimony of PW-2 and other circumstantial evidence brought on record. They further argued that text messages had exchanged on the mobile phones used by deceased and accused Razia, which clearly establish that accused Razia was SC No. 44696/2015 State Vs. Jameer & Anr. Page 22 of 41 having an extra marital affair with deceased during his life time. They also referred to the CDRs and contended that same shows connection of accused Razia with the deceased and it also shows that they were in contact on 08.06.2011 also. Further, they argued that last location of SIM connection no. 8010580314 used by deceased as well as that of SIM connection number 9873020908 used by accused persons, is also shown to be that of same place i.e. in the area of Seemapuri as on 08.06.2011, which clearly prove that deceased was lastly in the company of these two accused persons immediately before his death. They further argued that both the accused persons had refused to undergo narco analysis test during investigation. Thus, an adverse inference is liable to be drawn against them. They further argued that weapon of offence i.e. meat cutter has been recovered at the instance of accused persons in another case of murder registered against them vide FIR No. 235/11 of PS Seemapuri. Hence, the accused persons should be held guilty for hatching conspiracy to commit murder of Mohd. Azam; for committing his murder in pursuance of said conspiracy as well as for destruction of evidence.
64. On the other hand, learned Counsel for accused persons vehemently submitted that the prosecution has miserably failed to prove the charges on any count against the accused beyond reasonable doubt. He argued that PW-1 Ms. Sultana and PW-4 Sh. Kallan, who were star witnesses of prosecution case, turned hostile during trial. He further argued that dead body of Mohd. Azam has not been recovered in this case. He also argued that PW-10 Nitin also turned hostile during trial and deposed that he did not hand over SIM SC No. 44696/2015 State Vs. Jameer & Anr. Page 23 of 41 connection no. 8802326690 to any person at any point of time, which demolishes the case of prosecution which provides that said SIM connection number was being used by accused persons. He also argued that prosecution failed to establish its last seen allegation during trial as its star witness namely Ms. Nagma (PW-9) also turned hostile on the aspect of Mohd. Azam having been seen lastly by her in the company of these two accused persons soon before he went missing. He further argued that the prosecution also failed to establish that the relevant SIM connection numbers with which text messages allegedly exchanged with the SIM connection no. 9873020908 were actually being used by either of the accused persons or Mohd. Azam at any point of time. He contended that case was based on circumstantial evidence and no circumstance worth consideration has been proved by the prosecution. He, therefore, urged that both the accused persons deserve to be acquitted in tis case. In support of his submissions, he also placed reliance upon the judgments reported at 2018 (1) C.C. Cases (HC) 138 (Delhi High Court) and 2018 (1) C.C. Cases (HC) 433 (Delhi High Court), wherein it has been laid down by Division Benches of Hon'ble Delhi High Court that in a case based on circumstantial evidence, the circumstances should be of such a conclusive nature so as to exclude every hypothesis.
65. As is quite evident from the above discussion, the prosecution had relied upon the following circumstantial evidence to prove its case:-
(i) Extra marital affair of accused Razia with Mohd. Azam and motive of accused persons to kill him when he insisted accused Razia to marry him;SC No. 44696/2015 State Vs. Jameer & Anr. Page 24 of 41
(ii) Arranging the weapon of offence i.e. meat cutter from the house of Kallan (PW-4) in the presence of Ms. Sultana (PW-1) on 08.06.2011;
(iii) Accused Razia having visited the house of Mohd. Azam on 07.06.2011 and Mohd. Azam being lastly seen in the company of accused Razia by Ms. Nagma (PW-9);
(iv) Exchange of text messages between SIM connection numbers as appearing in transcript of text messages (part of Ex.PW19/A colly.) allegedly being used by accused Razia and Mohd. Azam, to establish the affair between them.
66. Apparently, the case is based on circumstantial evidence as admittedly there is no eyewitness in this case even as per the prosecution story. The law regarding cases based on circumstantial evidence is well settled. The famous case of Sharad Birdhi Chand Sarda v. State of Maharashtra, AIR 1984 SC 1622 is the guiding judgment. The five golden principles reiterated in the said judgment may be noted as below:-
a). the circumstances from which the conclusion of guilt is to be drawn should be fully established;
b). 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 explainable on any other hypothesis except that the accused is guilty;
c). the circumstances should be of a conclusive nature and tendency;
d). they should exclude every possible hypothesis except the one to be proved; and SC No. 44696/2015 State Vs. Jameer & Anr. Page 25 of 41
e). 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.
67. The principles laid down in the aforesaid judgment were thereafter followed in number of decisions, some of them being Tanviben Pankaj Kumar Divetia Vs. State of Gujarat [1997 (7) SCC 156], State (NCT of Delhi) Vs. Navjot Sandhu @ Afzal Guru [2005 (11) SCC 600], Vikram Singh & Ors. Vs. State of Punjab [2010 (3) SCC 56], Aftab Ahmad Ansari Vs. State of Uttaranchal [2010 (2) SCC 583] etc.
68. At this juncture, it may be noted that in the case of Aftab Ahmad Ansari Vs. State of Uttaranchal (supra), the observations made are to the following effect:-
"In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be. There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent SC No. 44696/2015 State Vs. Jameer & Anr. Page 26 of 41 with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. Where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court...........' (Emphasis supplied)".
NON-RECOVERY OF DEAD BODY
69. In the present case, it is an undisputed fact that dead body of Mohd. Azam was never recovered during investigation of the case. Apart from disclosure statements (Ex.PW2/A and Ex.PW18/C) purportedly made by accused persons that they had chopped of the dead body of Mohd. Azam after committing his murder and having disposed of those body pieces, there is no iota of evidence to prove that body of Mohd. Azam was actually chopped or his body pieces were disposed of. It is well settled law that confessional statement of an accused made before police, is hit by Sec. 25, 26 of Indian Evidence Act and is not admissible under the law. Thus, there is no reliable or definite evidence to show that Mohd. Azam was actually murdered or his dead body was chopped of due to non-recovery of his dead body or pieces thereof. Since dead body of Mohd. Azam could not be recovered, autopsy could not be got conducted and without autopsy report, it cannot be said as to what was the actual cause of death and as to whether death of Mohd. Azam was natural, accidental, suicidal or homicidal.
LAST SEEN EVIDENCE
70. The most crucial circumstantial evidence relied by prosecution was SC No. 44696/2015 State Vs. Jameer & Anr. Page 27 of 41 in the form of last seen evidence. According to the case of prosecution, the entire family of Mohd. Azam had gone to their native place at UP for attending some family marriage on 07.06.2011 and Mohd. Azam had stayed back at H.No. 108, Shri Ram Colony, Rajiv Nagar, Khajuri. It was further the case of prosecution that accused Razia had visited the house of Mohd. Azam on 07.06.2011 and neighbourer Ms. Nagma who was residing in H.No. 142 of the same colony, had seen her visiting the house of Mohd. Azam and had also seen both of them leaving the house together. However, said Ms. Nagma examined as PW-9 during trial, completely turned hostile and testified that she never saw Azam leaving in the company of any lady/female at any point of time. Not only this, she also denied to have informed about any such fact to Mohd. Afzal (PW-2) who is brother of Mohd. Azam at any point of time. Despite the fact that she was cross- examined at length on behalf of State and all the relevant suggestions on the lines of prosecution story were put to her, nothing material favourable to the case of prosecution could come on record.
71. PW-2 Afzal testified during trial that he was told by Nagma (PW-9) that Razia used to visit and meet deceased in the house during the period of 15 days when his entire family except deceased, had gone to their native place for attending some family marriage. He also deposed to have been told by PW-9 that she had seen accused Razia with deceased in their house during night of 07.06.2011. Apart from the fact that the relevant portion of his testimony in this regard, is based on hearsay and thus, inadmissible under the law, same also stood demolished by the testimony of PW-9 as she categorically denied to have SC No. 44696/2015 State Vs. Jameer & Anr. Page 28 of 41 seen accused Razia in the house of deceased during night of 07.06.2011 or having told any such fact to any family member of deceased.
MOTIVE
72. One of the most crucial circumstantial evidence relied by prosecution was the motive on the part of these two accused to commit murder of Mohd. Azam. According to the case of prosecution, marriage talks between Mohd. Afzal (PW-2) and accused Razia were initiated but same could not be finalized as said accused frequently used to make phone calls on mobile phone of PW-2 as well as on mobile phones of his (PW-2) workers and Mohd. Azam forced PW-2 not to marry with her. Subsequently, Mohd. Azam himself developed friendship with accused Razia and SMSs exchanged between them and they were in constant touch with each other. It is also the case of the prosecution that when Mohd. Azam insisted accused Razia to marry him, she alongwith co- accused hatched a conspiracy and committed his murder in pursuance of said conspiracy.
73. In order to establish the aforesaid motive, the prosecution has examined PW-2 Mohd. Afzal who has testified in this regard during trial. However, it is important to note that even as per testimony of PW-2, his marriage proposal with accused Razia was initiated and failed about 4-5 years prior to the incident of this case. Moreover, no reliable or definite evidence has come on record to prove this fact. Rather, record reveals that relevant part of chief examination of PW-2 whereby he stated above noted facts, are not found mentioned in his police SC No. 44696/2015 State Vs. Jameer & Anr. Page 29 of 41 statements. During his cross-examination, he admitted not to have told before the police that accused Razia used to make frequent calls to him or on the mobile phones of his workers and his brother Mohd. Azam (deceased) forced him not to marry with said accused. Same would show that considerable improvement has been made by PW-2 on this aspect and his testimony is therefore not reliable. Even otherwise, there is no reason for accused Razia to wait for long period of 4- 5 years to take revenge against Mohd. Azam for not allowing his brother Afzal to marry her in the past.
74. Be that as it may, the allegation levelled against accused persons that there used to be frequent exchange of SMSs between accused Razia and Mohd. Azam on their mobile phone numbers, also remained unsubstantiated during trial. As per the prosecution story, Mohd. Azam was using SIM connection nos. 9811595429 and 8010580314, whereas accused persons were using SIM connection nos. 9873020908 and 8802326690. However, prosecution failed to prove that the aforesaid numbers were actually being used by Mohd. Azam and accused persons respectively. No doubt, prosecution examined PW-3 who is Nodal Officer of Service Provider namely Reliance Communication Ltd. in respect of SIM connection no. 8010580314 but the relevant documents including Customer Application Form (CAF) produced by said witness, would reveal that said number was issued in the name of Mohd. Saleem S/o Mohd. Khalil R/o Chauhand Banger, New Seelampur, Shahdara, Delhi. There is nothing on record to show that said Mohd. Saleem was related to Mohd. Azam in any manner. The parentage and address of said Mohd. Saleem are altogether different from that of SC No. 44696/2015 State Vs. Jameer & Anr. Page 30 of 41 Mohd. Azam. Moreover, IO did not make any effort to join said Mohd. Saleem in investigation nor he has been examined during trial. For want of any evidence showing that Mohd. Azam was using the said number, the relevant portion of the testimony of PW-2 in this regard, cannot be accepted under the law. Moreover, said part of his testimony is also found to be an improvement made during trial as same was not found mentioned in his both the police statements Ex.PW2/DA and Ex.PW2/DB.
75. The prosecution has also examined PW-14 who is Nodal Officer of Service Provider i.e. Vodafone Mobile Services during trial. Said witness has produced relevant documents including CAF in respect of SIM connection no. 9873985699. Those documents would show that said number was issued in the name of one Naushad Khan S/o Sh. Azizur Rehman. Again, investigating agency preferred not to examine said Naushad Khan during investigation or to produce him during trial. In the absence thereof, it is not established as to who was actually using the said number during the relevant period.
76. I may also note here that the prosecution has examined PW-17 who is Nodal Officer of Aircel Limited having produced relevant documents including CAF in respect of SIM connection no. 8802326690 issued in the name of Nitin (PW-10) S/o Sh. Banwari Lal. It was the case of prosecution that said number was used by the accused persons. However, prosecution story to that extent again stood demolished in view of testimony of PW-10 who categorically deposed that he had been using the said number at his shop for the last 2 ½ years prior to SC No. 44696/2015 State Vs. Jameer & Anr. Page 31 of 41 the incident and he neither knew any person by the name of Azam @ Amaan nor he gave said number to anyone for using the same. Not only this, he also testified that he did not know any of these two accused and accused never visited his shop for any purpose. Despite being cross-examined at length on behalf of State, he denied that one "Mulla Ji" and one lady having visited his shop with mobile phone for getting prepared CD of the messages contained in the phone or he having inserted his SIM in the said mobile hand set for that purpose. He also denied all other relevant suggestions put to him on the lines of prosecution story.
77. Apart from above, the prosecution alleged that SIM connection no. 9873020908 was being used by accused persons and said number having been issued in the name of accused Jameer. For said purpose, the prosecution has also examined PW-8 Sh. Anuj Bhatia, Nodal Officer of Vodafone. Said witness has produced the relevant documents including CAF (Ex.PW8/A) and copy of DL (Ex.PW8/B) in respect of aforesaid SIM connection number. Same would show that said number was issued in the name of accused Jameer Mian. However, it nowhere shows or establishes that said number was actually being used by co- accused Razia. Merely because accused Razia is wife of accused Jameer in whose name said number was issued, does not lead to any inference that accused Razia was actually using the said number during the relevant period. The prosecution was required to establish this fact through some definite evidence during trial but failed to do so.
78. The heavy reliance placed by prosecution on transcripts of SMSs SC No. 44696/2015 State Vs. Jameer & Anr. Page 32 of 41 exchanged between several SIM connection numbers, in order to show that there was any kind of love relationship developed between Mohd. Azam and accused Razia, is found to be misplaced in asmuch as it has failed to establish that any of SIM connection numbers between which SMSs were exchanged as per details mentioned therein, were actually issued in the name of Mohd. Azam and accused persons or were actually being used by them during the relevant period. At this juncture, it is relevant to note that said transcripts [which is part of FSL result Ex.PW19/A (colly.)] is in respect of SMSs retrieved from the memory of mobile hand set and not the SMSs found in the memory of SIM connection number found present inside said mobile handset at the time of its examination in FSL. In this backdrop, the onus was upon the prosecution to show beyond shadow of doubt that the mobile hand set from which those SMSs were got retrieved, was belonging to either Mohd. Azam or accused persons.
79. Apart from above, the seizure of mobile handset from which SMSs were allegedly retrieved and the manner in which those SMSs were retrieved, is also not found to be free from doubt. PW-19 who is the FSL expert, deposed during chief examination that on 17.05.2013, sealed parcel containing mobile phone make Nokia model no. 1200 having one SIM card, was received in FSL. The relevant data retrieved from mobile handset was supplied in six sheets Mark P-1 to P-6 and relevant data retrieved from SIM card was supplied in three sheets Mark P-7 to P-9. However, he admitted during cross-examination that in his report Ex.PW19/A (colly.), initials of the seal put on the parcel was not mentioned. The factum of battery being found present inside the said mobile SC No. 44696/2015 State Vs. Jameer & Anr. Page 33 of 41 handset, was also not mentioned in his report. He also did not mention the name of service provider of SIM card or even the colour of said mobile handset in his report. He also could not state as to whether the said mobile phone was in working condition or not. What is more relevant to note is that he admitted during further cross-examination that date and time of receiving or sending the messages for which N/A is mentioned in his report, cannot be ascertained. It is pertinent to note that in sheets Mark P-1 to P-6 which are part of his report Ex.PW19/A, there are 72 text messages from sl. no. 1 to sl. no. 72 and in the relevant column no. 3 meant for date and time against text messages at sl. no. 1 to 10, the word 'N/A' is mentioned. It may also be noted here that as per testimony of PW-19 i.e. FSL Expert, SIM card having SIM connection no. 84001388662 was found present inside the aforesaid mobile handset. As already discussed above, there is not even an iota of evidence to establish as to who was the actual user thereof. Even as per oral testimony of PW-2, Mohd. Azam was using SIM connection no. 8010580314 during the relevant period. Thus, it is nowhere explained as to how SIM connection no. 84001388662 came to be found present inside the aforesaid mobile handset in case it was belonging to Mohd. Azam.
80. Although, an effort has been made on behalf of prosecution to show that mobile hand set used by Mohd. Azam, was recovered from his pant and same was produced by PW-2 before IO i.e. PW-18 SI Vivek Sharma during investigation but said part of prosecution story is again found to be not established during trial. It is relevant to note that PW-2 Afzal although testified SC No. 44696/2015 State Vs. Jameer & Anr. Page 34 of 41 that he had found the mobile phone from the pant of Mohd. Azam in their house from which messages exchanged with accused Razia, were found recorded therein but said portion of his testimony, is found missing in his police statement Ex.PW2/DA and he was duly confronted during cross in this regard. Same would clearly show that improvement was made by him in this regard during trial. Further, it is relevant to note that PW-2 deposed to have handed over the said mobile handset to IO after 2-3 days of its recovery. He also testified that said mobile phone was recovered from clothes of Mohd. Azam after 1- 1 ½ months from the date of his missing. However, when he was confronted with seizure memo Ex.PW2/B (of said mobile handset), he admitted that same was seized on 07.05.2013. In fact, PW-18 SI Vivek Sharma also testified that said mobile handset make Nokia was handed over to him by PW-2 only on 07.05.2013. As noted above, Mohd. Azam gone missing since 08.06.2011. As per the claim of PW-2, he had found the mobile phone from the pant of Mohd. Azam after 1 - 1 ½ months from his missing but he is found to have handed over the same to PW-18 SI Vivek Sharma after considerable delay of more than 20 months. Said delay in itself creates doubt about the factum of any such mobile hand set having been found in the pant of Mohd. Azam in the manner as claimed by PW-2.
81. There is another interesting aspect which is required to be noted at this stage. PW-2 Afzal deposed during cross-examination dated 30.11.2016 that the mobile phone was functioning at the time of its recovery but he did not know as to who was subscriber of SIM lying therein but PW-18 deposed during cross- examination dated 07.11.2017 that he did not check mobile phone to ascertain if SC No. 44696/2015 State Vs. Jameer & Anr. Page 35 of 41 it was working or not. He also did not verify as to whether said mobile handset was containing any SMS or not. He also did not check if there was any SIM card inside it or not. He also did not open back cover of the phone or its battery to check the same. He also did not put any identification mark on the said mobile phone at the time of its seizure. He also did not check if there was any memory card in it or not. He also did not check the IMEI number of said mobile handset. No explanation whatsoever is forthcoming from the side of prosecution for not doing so. All these facts coupled with the fact that seizure memo Ex.PW2/B of said mobile handset is found to be silent that it was containing any SIM in it and IMEI number of mobile handset and no document concerning ownership proof of said mobile handset ever being asked from PW-2, would demonstrate that there had been serious lapses in the investigation carried out in this case. This is apart from the fact that those lapses have also left so many lacunae creating reasonable doubt in the case of prosecution and benefit of which must go to the accused persons.
82. Further, one cannot find out as to on which date and time, the text messages appearing sl. no. 1 to 10 were sent as in relevant column no. 3, 'N/A' is mentioned. Moreover, all these text messages could not be delivered as in relevant column no. 5 meant for status, it is mentioned that those messages were 'unsent'. The text message appearing at sl. no. 11 is shown to have been received from SIM connection no. 8010580314, which is not proved to be under the use by either of the accused persons. There is another SIM connection no. 9811009998 found mentioned in transcript sheets Mark P-1 to P-6 from which SC No. 44696/2015 State Vs. Jameer & Anr. Page 36 of 41 text messages appearing at sl. no. 12 to 59 were sent to SIM connection no. 9873020908 but again, there is no iota of evidence to show that said number was either being used by Mohd. Azam or by either of these two accused persons during the relevant period. There is another strange thing which is noticed from perusal of transcript sheets no. P-4 and P-5 that certain text messages exchanged during the period from 13.04.2013 to 05.05.2013 as mentioned against sl. no. 60 to sl. no. 72 thereof. Once Mohd. Azam had gone missing w.e.f. 08.06.2011 and said mobile handset already been recovered from his pant by PW-2 after 1 - 1 ½ months thereof, it is not understandable as to how text messages exchanged on the said mobile handset in between 13.04.2013 to 05.05.2013. Said mobile handset is claimed to have been seized on 07.05.2013 as per prosecution story by PW-18 SI Vivek Sharma. Same would clearly show that said mobile handset was in actual use and operation till 04.06.2011 and thereafter between 13.04.2013 to 05.05.2013. Same also gives rise to another question that once this mobile handset was being used by Mohd. Azam then why same was not in use from 05.06.2011 till 08.06.2011 on which date he had gone missing.
83. At this juncture, it is to be noted that Mohd. Azam had gone missing on 08.06.2011 but his missing report vide DD No. 6-A (Ex.PW18/A) is shown to have been lodged by PW-2 only on 13.06.2011 i.e. after considerable gap of 5 days. A bare perusal of said DD would show that complainant i.e. PW-2 Afzal claimed therein that mobile phone of Mohd. Azam was found to be switched off when he tried to contact him on 08.06.2011 but he deposed during trial that he SC No. 44696/2015 State Vs. Jameer & Anr. Page 37 of 41 had received call from Mohd. Azam on 08.06.2011 at 4:30 pm. Same would again show that PW-2 had made improvement in his version during the course of trial. It is also important to note that complainant Mohd. Afzal did not raise any suspicion on any person as per contents of missing report Ex.PW18/A meaning thereby that he had not raised any finger or needle of suspicion on either of these two accused and also did not disclose that accused Razia was having any kind of relationship with Mohd. Azam at any point of time. All these facts and circumstances would persuade this Court to hold that the testimony of PW-2 is full of embellishments and contradictions and thus, his testimony is not reliable, truthful and natural. For the same reasons, Court is also of the considered opinion that the prosecution has failed to establish the motive attributed to these accused persons for committing the offences alleged against them.
ARRANGING OF WEAPON OF OFFENCE
84. Another important circumstantial piece of evidence relied by prosecution was that accused had arranged the weapon of offence i.e. meat cutter from the house of Kallan (PW-4) in the presence of Ms. Sultana (PW-1). However, both the said witnesses completely turned hostile during trial and have not supported the case of prosecution at all. PW-1 totally denied that accused Jameer had visited her house on 08.06.2011 at about 12:00 noon or having asked for meat cutting weapon from her or said accused having taken out the said weapon from machan of the house or having left away. She also categorically denied having seen same accused coming out from their house at SC No. 44696/2015 State Vs. Jameer & Anr. Page 38 of 41 about 6:00 pm on that day while she had returned from her tuition or said meat cutting weapons being seen by her lying underneath a cot in the house. PW-4 also denied to have been told about the aforesaid facts to him by his daughter i.e. PW-1 at any point of time. The testimonies of both these witnesses have again put serious dent on the case of prosecution and creates reasonable doubt in its case.
85. The submission raised on behalf of prosecution that an adverse inference should be drawn against the accused for their refusal to undergo Narco Analysis Test, is found to be without any merit, besides the fact that even if an adverse inference would have been drawn against them, same could have been at best used as a corroborating piece of evidence in order to complete the chain of evidence leading to the guilt of accused persons beyond reasonable doubt. However, the material and vital links in the chain of circumstances leading to the guilt of accused persons, are found to be missing in this case in view of the discussion made in the preceding paras.
86. The Hon'ble High Court in 'Rakesh & Ors. V State of NCT of Delhi', Crl. Appl. 19/2007 decided on 27.08.2009 has held as under :--
"136. The well known rule governing circumstantial evidence that :--
(a) the circumstances from which the inference of guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances;
(b) the circumstances are of a determinative tendency SC No. 44696/2015 State Vs. Jameer & Anr. Page 39 of 41 unerringly pointing towards the guilt of the accused; and
(c)the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him, is fully applicable in cases of proof of conspiracy. The courts have added two riders to aforesaid principle; namely, (i) there should be no missing links but it is not that every link must appear on the surface of the evidence, since some of these links can only be inferred from the proved facts and (ii) it cannot be said that the prosecution must meet any and every hypothesis put forward by the accused however far fetched and fanciful it may might be (see the decision of Supreme Court reported as Gagan Kanojia v State of Punjab (2006) 13 SCC 516).
It is settled law that conviction can be made on the basis of circumstantial evidence. But, it has been consistently laid down by Higher Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person."
87. Circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
88. The aforesaid view has been consistently followed in subsequent decisions delivered from time to time. Both the authorities relied by Counsel for accused persons, are also on the same point.
89. In the light of aforesaid discussion, Court is of the considered view SC No. 44696/2015 State Vs. Jameer & Anr. Page 40 of 41 that the prosecution has miserably failed to bring home the guilt of both these accused persons beyond shadow of doubt. Hence, both the accused persons are hereby acquitted of all the charges. However, they are required to furnish bail bonds as per Sec. 437-A CrPC.
90. File be consigned to Record Room.
Announced in open court Digitally signed by VIDYA
on 6th day of May, 2019. VIDYA PRAKASH
Location: Karkardooma
Court
PRAKASH Date: 2019.05.06
15:46:07 +0530
(VIDYA PRAKASH)
Additional Sessions Judge /
NE / KKD Courts / Delhi.
SC No. 44696/2015 State Vs. Jameer & Anr. Page 41 of 41