Subject Is Well Settled By Hon'Ble ... vs . on 9 April, 2010

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Delhi District Court

Subject Is Well Settled By Hon'Ble ... vs . on 9 April, 2010

           IN THE COURT OF SH. GURDEEP SINGH:ASJ04
        NORTHEAST DISTRICT: KARKARDOOMA COURTS:DELHI
                                                FIR No: 326/04
                                                 PS: Welcome
                                               U/s: 302/34 IPC


      Sessions Case No.                               :           131/09
      Date of institution                             :          03/01/05
      Date of committal                               :          29/01/05
      Date on which reserved for order                :          09/04/10
      Date of delivery of Judgment                    :          09/04/10


S T A T E  

Versus  

1.      Akhlaq S/o Bencha
        R/o Vill. Mohalla Kila, PS Manglor
        Distt. Haridwar (Uttaranchal). 

2.      Ved Prakash @ Bittu @ Kala S/o Prem Singh
        R/o Rohtash, Krishan Ka Makan
        Gali No.3, 100 Ft. Road, Near Neelam Factory
        Rajiv Garden, Loni, Ghaziabad (UP).
                                                                            ....Accused

J U D G M E N T

1. Accused Akhlaq and Ved Prakash @ Bittu @ Mala were sent up for trial by police of PS Welcome, Delhi for the offences punishable U/s 302/34 IPC.

2. Briefly the prosecution case unfold as follows : On 19.09.2004 at FIR No. : 326/06, PS : Welcome Page 1 of 37 about 3:20 pm, unknown person by way of telephone informed police of Police Station, Welcome that at house L21, Welcome, Delhi one woman has been murdered. This information was recorded vide DD No. 10A and entrusted to Inspector Anand Sagar, SHO, PS Welcome, who alongwith SI Arvind Sagar, Ct. Dharmender No. 1240/NE, Ct. Manohar No. 1626/NE, Ct. Dharmender No. 911/NE in official vehicle with driver Ct. Devender 1003/NE reached at the spot where PW Imrana alongwith many other mohalla people met and he found that on the ground floor in the inner room a dead body of a woman aged about 24/25 years was lying on the floor on the plastic mat. The deceased was identified as Afsana w/o Akhlaq@ Sanjay by Smt. Imrana W/o Sagir Ahmed. A white string (nara) was tied on the neck of the deceased and ligature mark was clearly visible. Crime team was called and photographs were got conducted. The deceased was also wearing finger ring, glass bangles, plastic bangles, ear ring. The used biri buds were also lying and inside near room one pair of male sleeper and one pair of lady sleeper were found. Imrana got her statement recorded. She stated that she lives alongwith her family members on the first floor of the house. The ground floor was lying vacant and on 14.09.2004 at about 11:00 am. Two male and one female came and asked for house on rent and she gave the house on rent for Rs.800/ per month. Rs. 500/ was given as advance payment. The FIR No. : 326/06, PS : Welcome Page 2 of 37 Female gave her name as Afsana and gave her husband name as Akhlaq @ Sanjay and gave name of other man who accompanied them as Mukhtiyar. They came in the evening at about 5:00 pm on the same day with belonging. The husband of Afsana used to go to his work everyday on 7:00 am and used to return in the afternoon for taking lunch and thereafter again used to go on his work and used to return on 7:00 pm. On the day of occurrence i.e. on 19.2.2004 she saw Akhlaq, the husband of Afsana while leaving for his job on his cycle at about 7:00 am and when as usual at about 3:00 pm, she came for washing her cloth in the room down stairs, she saw the room was bolted from outside, she opened the latch and went inside the house and called Afsana twothree times. When she did not get any response from Afsana, she panicked and came outside the house and told the fact to the mohalla people. On this her sisterinlaw (nand) Babbo and neighbourer Lali alongwith mohalla people gathered and when they went inside the house they found Afsana dead and noticed string which was tied in her neck. Someone called the police. She raised suspicion on Akhlaq @ Sanjay, the husband of Afsana that he has murdered her by strangulating her with the help of string (nara) as he has been absent from the morning from the house and has not come in the afternoon for taking lunch. She had seen Afsana for that last time on 18.09.2004 at about 11:00 pm in the night. On the basis of her FIR No. : 326/06, PS : Welcome Page 3 of 37 statement, FIR u/s 302 IPC was registered. Exhibits were seized. During the search of the room, they found three pouches of jewellery, wherein V. K. Jewellers, Naya Bazar, Loni Ghaziabad U.P. was printed, and on one big pouch was having two empty dibbies and two pouches wherein Payal Jewellers Professor Bal Mukund Verma, Naya Bazar, Loni Ghaziabad (UP) was printed and on one recksine pouch wherein DJ Deepak Jewellers Professor Vipin Garg Meena Bazar Devband were printed. The above said articles were taken into possession. One shirt which was hanging on the hanger inside the room was also taken into possession having on which label of Modern King Tailors Manglor was affixed. The postmortem on the dead body was got conducted and made several attempts to identify the dead body. ASI Mohd. Shamim alongwith police staff with photograph of deceased were sent to Manglore for identification of dead body as the shirt was having the label of tailor of Manglore (Uttaranchal) and Imrana also told them that Afsana told her that her inlaw is in Haridwar. On 23.09.2004, ASI Mohd. Shamim came alongwith mother of the deceased Smt. Sanjida W/o Naseem, sister of deceased Smt. Samshida, uncle Mustakin, phoopha Mohd. Anwar to Delhi. They had identified the dead body of deceased as Afsana @ Guddo, who was abducted by her real maternal uncle (mama) Akhlaq from Mohalla Kila, Thana Manglore, Dist. Haridwar. The doctor gave cause of death asphyxia as a result FIR No. : 326/06, PS : Welcome Page 4 of 37 of strangulation by ligature and time since death as 4/5 days. The relative of Afsana also raised suspicion against Akhlaq @ Sanjay as the person who had murdered her. On 26.09.2004, ASI Arvind Kumar, ASI Mohd. Shamim alongwith staff were sent for arrest of accused Akhlaq to Manglore, Dist. Haridwar, where they came to know that accused has surrendered on 27.09.2004 before Addl.

st District Judge 1 Spl. Judge in Gangster Act and is in Roshanabad Jail in Haridwar. Production warrant obtained. On 08.10.2004 accused Akhlaq appeared in the muffled face in the court of B. S. Chumbak, MM as he the then was, Karkardooma Courts, Delhi. Accused was interrogated who confessed that he committed murder of Afsana alongwith coaccused Ved Prakash. He was arrested. The TIP was got fixed but he refused to participate in the TIP. He was remanded to J/C, wherein he disclosed that about three years ago his brotherinlaw Naseem and his son Samshad were arrested at Ranipur Police Station and his sister Sanjida and her children started living in his house and during that period he developed illicit relation with Afsana. On December, 2003 he eloped with Afsana at Saharanpur and after 15/20 days, he left her at her sister house at Devband and in May, 2004 he again eloped with her from Devband and started living at Loni with his relative Suleman and Kalim. He married with Afsana at 6.6.2004. On account of his act, he was hated by his parents and he was defamed and he got fed up with FIR No. : 326/06, PS : Welcome Page 5 of 37 the taunts of his relative and decided to get rid of Afsana. Since Afsana was not ready to leave him, he joined his coaccused Bitu in conspiracy. On 18.09.2004 in the night at about 9:30 pm, he and his coaccused Bitu, who asked to sleep in the outer room and at about 5:15 am, he (Akhlaq) brought Bitu inside the room. Bitu held her hands and he taken out her nara from her salwar and strangulated her. He gave toe ring, pajeb to Bintu and thereafter when he came to know that police started following him, he surrendered in the court at Roshanabad and he pointed out the place of occurrence and also pointed out the place of Loni, where he had left live as tenant and had performed nikah with deceased. On 15.10.2004, Ved Prakash @ Bintu @ Kala was arrested near Gali No.3, 100 Road, near Neelam Factory, Rajiv Garden, Loni, Ghaziabad (UP) at the instance of Akhlaq. He also confessed the crime and also stated that pajeb and toe ring, which were given by Akhlaq to him, had sold through Vijay Singh to one lady in Loni and he had also sold cycle through Dharmender, which he can get recover. One pair of pajeb and two pair of silver toe rings were seized from one Fatima and the cycle was recovered from one Dinesh, which were seized. Accused Ved Prakash also refused to join TIP. His one day p/c remand was obtained. TIP of case properties were got conducted where Samshida identified the pajeb and toe rings (chutki). After completion of the investigation, the challan was filed in the court. FIR No. : 326/06, PS : Welcome Page 6 of 37

3. After supplying the copies to the accused, the case was committed to the court of sessions vide order dated 29.01.2005.

4. My Ld. Predecessor vide order dated 28.04.2005 after finding prima facie charged the accused persons for offences punishable U/s 302/34 IPC to which they pleaded not guilty and claimed trial.

5. The prosecution in support of their case examined as many as 36 witnesses.

6. The prosecution examined material witnesses. PW7 Imrana was the land lady. She proved her complaint as Ex.PW7/A, seizure of the articles near the dead body Ex.PW7/B, seizure of pillows and mat as Ex.PW7/C, empty pouches of jewellery as Ex.PW7/D, two pairs of chappal Ex.PW7/E, some clothes belonging to deceased and Akhlaq Ex.PW7/F, ear ring Ex.PW7/H, medical prescription Ex.PW7/J, identification statement with respect to above said articles Ex.PW7/K, pointing out memo of accused Akhlaq as Ex.PW7/L, pointing out memo of accused Ved Prakash as Ex.PW 7/M. She also identified two shawls as Ex.P4 and P5. She also identified one nose pin, three rings and one black rubber challa as Ex.P6, two ear rings Ex.P7, two pillows Ex.P8, six pouches as Ex.P9 collectively, two pair of chappal Ex.P10, three shirts Ex.PW P11, string Ex.P12, prescription slip Ex.P13, one salwar suit, four plastic bottles, two envelops and one parcel Ex.P14 collectively, pieces of biri as Ex.P15 collectively. She also identified one pair of FIR No. : 326/06, PS : Welcome Page 7 of 37 silver pajeb and four silver chutkies as Ex.P2 and Ex.P3 respectively and stated that she had seen the deceased wearing these ornaments in the night prior to her death and the same were not found on her person after death. PW8 Smt. Shahjahan was the neighbour of Imrana who saw deceased lying dead on the floor and turned hostile towards the prosecution. PW5 Smt. Shakuntla, was the neighbour of Imrana, who also saw the deceased lying dead in the house of Imrana and she also turned hostile. PW 12 Shamsheeda,is the sister of deceased, who identified the dead body of Afsana vide memo Ex.PW12/A, application for postmortem Ex.PW12/B, form 2535 Ex.PW12/C, TIP proceedings Ex.PW12/D and identified pair of pajeb and four rings as P2 and P3 collectively which belongs to the deceased. PW13 Mohd. Anwar who identified the dead body vide memo Ex.PW13/A and signed the application for postmortem Ex.PW12/B. PW14 Smt. Samshida mother of the deceased, also proved the identification memo of dead body as Ex.PW14/A. PW15 Sh. Mustkeen uncle of the deceased, also proved the identification memo of dead body as Ex.PW15/A. These are the material witnesses.

7. The prosecution also examined witnesses of investigation with respect to accused Akhlaq. PW16, Haseem Ahmed is the witness of disclosure statement given by the accused before the police and proved the same as Ex.PW16/A and pointing out of the place of FIR No. : 326/06, PS : Welcome Page 8 of 37 occurrence as Ex.PW16/B. PW17 Shobha turned hostile and not identified the accused. PW19 Yameen @ Meena is the witeness of the fact that the accused Akhlaq identified his house at Loni where he was living as tenant and proved the same as Ex.PW19/A.

8. The prosecution also examined witnesses of nikah of accused Akhlaq with deceased Afsana. PW18 Mohd. Meharban was Imam of Sunehari Masjid, Loni Ghaziabad UP, who proved the nikah of accused with deceased and proved 'nikahnama' as Ex.PW18/A and 'nikahnama register' as Ex.PW18/B and correctly identified the accused Akhlaq. PW23 Waqar Ahmad identified accused correctly as the person who had resided with one lady in Loni in his house. PW24 Suleman proved that accused Akhlaq was living at the house of his brotherinlaw Khalil as tenant but stated that no woman by name of Afsana was living with him. PW25 Khalil Ahmed identified the accused Akhlaq, who stated that he was living at his house as tenant and got marriage of Afsana and Akhlaq conducted and proved his signature on nikahnama register Ex.PW10/A at point A3. PW29 Nazir Khan, is the cobrother of accused Khalil, who arranged the marriage of the accused with deceased and also proved that police brought the accused Akhlaq and he pointed out his house.

9. The prosecution also examined the witnesses of recovery with respect to accused Ved Prkash @ Bitoo@Kala. PW1 Dinesh is the FIR No. : 326/06, PS : Welcome Page 9 of 37 witness who had purchased the cycle from Dharmender and proved its seizure memo Ex.PW1/A and identified the cycle as P1. PW2 Fatima deposed regarding that Ved Prakash was brought to her by Vijay and he sold a pair of silver pajeb and four chutki for a sum of Rs.500/, which were seized by police and she identified her thumb impression at point A on Ex.PW2/A and she also identified pair of silver pajeb and four chutkies as Ex.P2 (collectively) and P3 (collectively) respectively. PW3 Dharmender is the witness who purchased cycle from Tahir and sold to one Dinesh. However he turned hostile towards prosecution. PW4 Vijay Singh is also the witness of sale of the cycle, who also turned hostile towards prosecution. PW22 Shakeel Ahmed is the witness of pointing out of accused Ved Prakash of the place of occurrence and also Imrana from whom accused Akhlaq had taken rented accommodation and he also taken photograph and proved the same as Ex.PW22/A to Ex.PW22/A10 and negatives of the same as Ex.PW22/A11 to Ex.PW22/A20.

10. The prosecution also examined formal witnesses. PW25 Dr. Arvind Kumar who conducted postmortem and proved the report as Ex.PW26/A and also proved his subsequent opinion as Ex.PW 26/B. As per the postmortem the cause of death is asphyxia as a result of strangulation by a ligature. He also gave opinion regarding ligature material with respect to strangulation. PW27 SI Mukesh FIR No. : 326/06, PS : Welcome Page 10 of 37 Jain, is the draftsman who prepared scaled site plan and proved the same as Ex.PW27/A. PW28 Sh. Rajneesh Kumar Gupta, Metropolitan Magistrate as he the then was, who proved the application for TIP of jewellery as Ex.PW28/A, his certificate as Ex.PW28/B. PW31 Dr. Devender Kumar who proved the MLC of accused Akhlaq as Ex.PW31/A, which was prepared by Dr. Vinod Kumar who has left the services of hospital, and gave the opinion that there was nothing to suggest that he cannot perform sexual intercourse. He also proved the medical examination of accused Ved Prakash as Ex.PW31/B, which was prepared by Dr. Rajesh who also left the services of hospital. PW6 HC Mahender Singh was the MHC(M), who recorded the information vide DD No. 10 A and proved the same Ex.PW6/A and exhibits were deposited vide entry Ex.PW6/B, Ex.PW6/C, Ex.PW6/D and Ex.PW6/E and has sent exhibits to CFSL Kolkata. PW9 HC Devender Kumar was the duty officer at PS Welcome, who recorded formal FIR on the basis of rukka and proved the carbon copy of FIR as Ex.PW9/A and also proved the departure entry of sending special report to the senior officer vide DD No.12 A and 13 A as Ex.PW9/B respectively. PW 10 Ct. Ravinder Kumar is the witness who had taken the special report to the senior officials and also deposited the exhibits at CFSL Kolkata. PW11 Ct. Pankaj is the witness who got medical examination of both the accused done from GTB Hospital and FIR No. : 326/06, PS : Welcome Page 11 of 37 received exhibits from doctor, which were seized by IO vide memo Ex.PW11/A. PW20 Ct. Sushil Kumar is the photographer, Mobile Crime Team who took photographs of the spot and proved the same as Ex.PW20/A1 to PW20/A5 and its negatives as Ex.PW20/A6 to PW20/A10. PW21 SI Uday Kumar, Inchage, Mobile Crime Team inspected the scene of occurrence, prepared report and proved the same as Ex.PW21/A. PW36 Dr. Devender Kumar also proved the MLC of accused Ved Prakash.

11. The prosecution also examined the witnesses of investigation. PW 30 HC Manohar Singh joined the investigation with IO. PW32 Inspector Arvind Sagar, who also joined with IO in the investigation and reached at spot for the first time. PW34 SI Jasraj Singh was ASI at PS Loni, who joined the investigation with IO regarding investigation carried out at Loni. He proved the arrest of accused Ved Prakash as Ex.PW34/A, personal search as Ex.PW34/B, disclosure statement as Ex.PW34/C, pointing out of the house of accused Ved Prakash by accused Akhlaq as Ex.PW34/D, pointing out of the house of Vijay Singh by Ved Prakash as Ex.PW34/D, pointing out of the house of Dharmender by accused Ved Prakash as Ex.PW34/F and also the witness of seizure of cycle. He also identified the cycle as Ex.P1. PW35 SI Mohd. Shamim is the witness of search of relative of Afsana for her identification, arrest of accused Akhlaq and investigation with respect to living and marriage FIR No. : 326/06, PS : Welcome Page 12 of 37 of accused with Afsana and also investigation with respect to Ved Prakash. PW33 Inspector Anand Sagar is the investigating officer (IO). He proved his endorsement on the statement Ex.PW33/A, site plan as Ex.PW33/B, receipt of handing over dead body to the relative of deceased as Ex.PW33/C, arrest memo of accused Akhlaq as Ex.PW33/D, pointing out memo of the house of one Waqar Ahmed by accused Akhlaq as Ex.PW33/E, pointing out memo of the house of one Nazir Khan by accused Akhlaq as Ex.PW33/F seizure of test tube of semen sample, test tube of blood sample and test tube of Saliva sample alongwith the sample seal of GTB Hospital as Ex.PW33/G (it is wrongly recorded as Ex.PW 34G), CFSL result Ex.PW33/H, specimen of thumb impression of Akhlaq and Suleman as Ex.PW33/11 to PW33/120 and report of the same as Ex.PW33/J in addition to the memos.

12. Statement of accused persons were recorded u/s 313 Cr.PC, wherein they denied the prosecution evidence and claimed innocence.

13. Accused Akhlaq admitted that he had married with Afsana but not at Loni. Afsana had willingly come to him and this fact was known to the family of Afsana. He further admitted that they were searching vacant house at Delhi and had taken house of Imrana on rent. He stated that he had left Afsana 8/10 days prior to the incident to his house and Afsana was left alone by him in the house of Imrana and FIR No. : 326/06, PS : Welcome Page 13 of 37 he does not know as to how she died. He further deposed that Samshida has deposed against him as she was interested witness. He admitted that he surrendered in pursuance of NBWs in another case at Haridwar and he was produced on P/ws in Delhi Court. He did not deny that he was medically examined. He further stated that Afsana used to leave her parental house on her own without their consent. Before she came to him, she had left her house on many occasion with other persons. Her parents used to object the same. She came to him but he does not remember the month and year and requested him to keep her. He kept her and married with her. Thereafter, he left the house 10 days before the incident. He does not know who used to visit her in his absence and how she has died.

14. Accused Ved Prakash denied the prosecution evidence and has shown ignorance about the prosecution evidence. He stated that he is innocent and police has falsely implicated in this case and recovery was planted by them. However, both the accused chose not to lead any evidence in his defence.

15. I have heard Sh. Virender Singh, Ld. Addl. PP for the state and Sh.

Mohd. Hassan and Sh. Raj Kumar, Advocates for both the accused. I have also gone through the record.

16. Firstly, I shall take the evidence with respect to marriage of Akhlaq, the accused with Afsana, the deceased.

FIR No. : 326/06, PS : Welcome Page 14 of 37

17. PW18 Mohd. Meharban testified that on 6.6.2004, he had performed the marriage of Mohd. Akhlaq Qureshi S/o Nizamuddin Qureshi with Afsana D/o Nazir Ahmed and the mehar was fixed as Rs.30,000/ and identify the nikahnama to this effect as Ex.PW 18/A. Further stated that Khalil Ahmed was the 'Vakil' and Israr and Suleman were the witnesses to the marriage. Nikahnama was in his handwriting. He also identified the accused Akhlaq as the person whose marriage was performed and also identified nikahnama register as Ex.PW18/B. In his crossexamination he stated that Nazir Ahmed had come to him and told him that he wanted to get the marriage of his daughter performed from him. There were 15/20 persons present when he performed the marriage. He did not know the vakil and the witnesses to this marriage earlier. He has not signed nikahnama. He did not see the face of the girl and admitted that no photograph of the bride and groom was taken at the time of marriage. However, there is no suggestion given to the witness that no marriage was performed or that it was not the Akhlaq whose marriage was performed. However, PW24 Suleman turned hostile to the fact that he was the witness of nikah between accused and deceased. PW25 Khalil Ahmed however, deposed that he had given one room on rent to Suleman at the rate of Rs.400/ per month and accused Akhlaq was residing in the said room with Suleman. Accused was feeling trouble for preparation of food and FIR No. : 326/06, PS : Welcome Page 15 of 37 hence he brought one lady namely Afsana @ Guddo and she started living with him on the same room. He came to know that Afsana and Akhlaq were not married. He insisted that accused should get marry with Akhlaq. Thereafter accused performed nikah with Afsana in presence of two witnesses and he was vakil to the nikah. Nikah was got conducted before a maulvi. He also identified nikahnama as Ex.PW10/A. He was crossexamined by the prosecutor as he was not stating entire facts. He admitted in his crossexamination by prosecutor that nikah was performed in the house of Israr and police had gone with them to Sunehri Masjid and nikah register was seized and stated that he could not tell the above facts as he had forgotten the same due to passage of time. In his crossexamination on behalf of accused, he stated that he does not remember the date, month and year during stay of accused Akhlaq in the house and voluntarily stated that it was about four years ago. He was examined in the court in the year 2008. He also does not recollect the date or month when accused Akhlaq brought Afsana with him. He did not make effort to contact the family member of the Afsana before solemnisation of her nikah. Afsana told him that her father was in jail therefore they should get her married. Afsana was looking happy at the time of nikah. He denied the suggestion that he was not present during nikah and his signature was taken subsequent at the nikahnama at the instance of police. PW29 Nazir FIR No. : 326/06, PS : Welcome Page 16 of 37 Khan testified that he arranged the marriage of accused with Ruksana at the house of Pappu, Sunehri Masjid, Rashi Gate at Loni, Ghaziabad. (Apparently there is a typographical error in recording the name of girl as it is Afsana instead of Ruksana. Therefore I deemed it as Afsana). As the father of the Afsana was in Tihar Jail, he performed the marriage ceremony of Ruksana in place of her father as father. He had also called Imam Mehrban from Sunehri Masjid, who performed the marriage between accused and deceased. He alongwith Suleman, his cobrother Khalil became the witness of the marriage. He further states that accused and Afsana had also signed the nikahnama. In his crossexamination he denied the suggestion that nikahnama does not bear his thumb impression. He had also denied the suggestion that he become the witness at the instance of police. PW33 Inspector Anand Sagar testified that he had taken specimen thumb impression of accused Akhlaq and Suleman during the investigation, which is Ex.PW33/11 to PW33/120 and collected report from CFSL, which is admissible u/s 293 IPC, Ex.PW33/J was received which gave the opinion that the question thumb impression on the nikahnama and the specimen thumb impression of accused Akhlaque are identical and thumb impression on the nikahnama and specimen thumb impression of Suleman are also identical. There is no cross examination of the IO regarding the same thumb impression were not taken therefore, it is FIR No. : 326/06, PS : Welcome Page 17 of 37 consistently proved by the prosecution that accused Akhlaque was married with Afsana deceased on 6.6.2004 at Sunehri Masjid at Loni.

18. Now coming to the identification of deceased Afsana. PW12 Samshida sister of the deceased testified that on 22.09.04 at about 10:30 a.m Delhi Police of PS Welcome alongwith his uncle Mustakin and fuffa (her husband) and Mohd. Anwar had come to their house at Deoband and shown her one photograph which she identify to be of her sister Afsana. She also identified wearing clothes of Afsana in photograph as it was stitched by her. She also identified the accused Akhlaque and stated that her sister was kidnapped in 2003 and again in May,2004 and she alongwith police her mother, Mustakin and Anwar came to Delhi and identified her to GTB Hospital. In her cross examination she stated that the police had shown her full photograph of her sister. She denied the suggestion that her sister Afsana wanted to live with accused Akhlaque. PW13 Mohd. Anwar also stated that he had identified the photograph of deceased to be of Afsana @ Goddo as she was the daughter of his brotherinlaw and he identified the dead body at the hospital vide memo Ex.PW13/A. There is no suggestion even to this witness that the dead body was not that of Afsana PW14 Sanjida also identified the dead body of Afsana. PW15 also identified the dead body of deceased Afsana.

FIR No. : 326/06, PS : Welcome Page 18 of 37

19. Therefore, it is established on record that dead body was that of Afsana @ Goddu.

20. Now coming to the version that accused had taken house of Imrana on rent and death of deceased.

21. PW17 Shobha testified that she is running a tea stall outside of her house for five to six years. She was living at L28 Welcome, Delhi. She stated that four years ago one male and one female both Muslim came to her tea stall and asked if there was any vacant accommodation for rent or not. She told them that the house of Sagir which in near by lane was vacant for rent. After about four days police brought male person to her and enquire to her whether this person was inquirng about any house for rent from her or not and she replied him affirmative and further stated she can identify the person, however, she stated that the said person is not present in the court and turned hostile. PW5 Shakuntla had testified that Imrana is her neighbourer. Two three days prior to the incident one lady alongwith two male had come to stay in her house as tenant. About one year ago Imrana raised alarm and she alongwith other mohalla persons went to the house of Imrana and found that her tenant was lying on the floor in a room and she was found to be dead. She does not know the name of her husband nor her name nor she can identify her husband as she was away to her daughter's house two days prior to the incident. She was crossexamined by FIR No. : 326/06, PS : Welcome Page 19 of 37 the prosecutor. She admitted that on 19.7.2004 at about 3:00 pm, she was present outside his house. Her Neighbouer Imrana told her that she had called her tenant Afsana number of times but she was not responding. She admitted that she had seen one nara tied around the neck of Afsana. After the death of Afsana accused Akhlaq was seen by her when police had brought both the accused persons at the spot and on seeing them she had told the police that he was Akhlaq. She had stated to the police that Afsana has been murdered by her husband Akhlaq. In her crossexamination on behalf of accused Akhlaq she categorically stated that she had seen both the accused persons for the first time when after the murder of Afsana police had brought them on the spot. She stated that she did not see accused Akhlaq when the house of Imrana was taken on rent. Therefore this witness is also not supporting the prosecution regarding the fact that accused Akhlaq was seen living as tenant in the house Imrana.

22. PW8 Smt. Shahjahan testified that in the year 2004, she was residing near the house of Imrana at Seelampur. It was summer season, at about 3:00 pm she was present in her house and busy with her work. Imrana was calling her from the gali to show as to what has happened to her tenant. She also went to the house of Imrana and found the tenant of Imrana lying dead on the floor of the room. There was a crowd in her house and when she came out FIR No. : 326/06, PS : Welcome Page 20 of 37 alongwith the crowd she found the police officials present there. She had heard that the deceased was residing as a tenant in the house of Imrana for the last 34 days. She does not know the name of her husband nor she identify him in the court. Her husband was not present in the house at that time. She had seen that there was string tide around the neck of that lady. However, as there was no light she came back to her house. She was declared hostile by the prosecutor.

23. Now we are left with the evidence of Imrana PW7. She testified that she has been residing alongwith her husband and seven children. Her house of L21, Welcome, Delhi and doing the work of stitching. In the ground floor of her house, there are two rooms which she used to give on rent and on the first floor she was living alongwith his family member. About two years ago, at about 11:00 am two persons alongwith one lady had come to her house and they said that "we have come from Loni and we have come to know that her house was lying vacant". At that time, the rooms at the ground floor were lying vacant and they wanted her house to be taken on rent. She showed them her house and they approved it. That lady told her that she alongwith her husband would stay in that house and she fixed the rent as Rs.800/ per month. Out of which that lady and her husband gave her Rs.500/ in advance and they said that remaining Rs.300/ would be paid on Sunday. The lady had told her FIR No. : 326/06, PS : Welcome Page 21 of 37 name as Afsana and name of his husband as Akhlaq and the person who was accompanying them was Mukhtiyar. They came to her house on the same day and started living. Afsana's husband used to leave the house at 7:00 am and in the noon time he used to come for taking lunch and then he again used to leave the house for his work and used to come back at about 7:00 pm. She identified the acucsed Akhlaq and the other accused, who had accompanied them. She further stated that Afsana used to come to her on the first floor during day time and once she told her that her in laws and her parents were staying in Haridwar. She (Afsana) had also told her that she had seven brothers and they were two sisters. Her elder th sister was residing in Ketra. On 19 of the month in which Afsana and Akhlaq had taken her house on rent she had seen Akhlaq leaving the house at about 7:00 am in the morning. At about 3:00 pm on that day, she had come downstairs to wash the clothes. She saw outer room which was also in the possession of Afsana and Akhlaq being bolted from outside. She went inside the room and called Afsana but she did not reply. When she did not receive any response from Afsana she became nervous and came out and called her sisterinlaw namely Babao and neighbourer namely Lali and some other neighbourers. They all went inside the other room which was in the possession of Afsana and Akhlaq and saw that Afsana was lying on the floor of the room and one nara was tied on FIR No. : 326/06, PS : Welcome Page 22 of 37 her neck. Someone might have informed the police and police th came. She had seen Afsana alive on 18 day of the month, at about 11:00 pm, in which she had died. She did not see accused Akhlaq having come to her house on the day, she saw Afsana murdered, th for lunch. In fact she did not see him in the house on 19 day of the month after 7:00 pm. When police had come to the spot, they recorded her statement Ex.PW7/A. She further deposed regarding seizure of the articles lying in the room. She further deposed that after 10/12 days, the police had come to his house alongwith accused Akhlaq being the husband of Afsana and in her presence the accused Akhlaq pointed out the place of incident vide memo Ex.PW7/L. The police had also taken the photographs of accused Akhlaq. Even on the day the police had recorded her statement. After 45 days, the other accused Ved Prakash was brought by the police to the spot and he also pointed out the place of incident vide memo Ex.PW7/M. In her crossexamination on behalf of accused, she stated that she is totally illiterate and can only sign her name in Urdu. Her husband leaves the house at about 8:00 am and returns by 10 or 11 pm. She do the stitching work at home. Her house is built on 25 yards and are adjoining each other. The lane is narrow. It is a resettlement colony. She had asked the deceased to give her their photographs for giving it in the police station. She has assured that she will give the photograph when her husband comes home. FIR No. : 326/06, PS : Welcome Page 23 of 37 She did not make any inquiries from Loni or Haridwar before giving the room on rent. Her husband does not talk to the tenants because he is not at home during the day. She does not give any rent receipt to the tenants. She starts doing the tailoring work after preparing food in the morning and work up to 5:00 pm. Then she starts preparing food for the night. Her eldest child is 18 years old and youngest child is 6 years old. She cannot see the rooms on the ground floor while sitting in her room on the first floor. She stated that police did not make any inquiry from her husband. She further stated that her first statement was recorded by the police on the same day of incident and her husband was not present at that time. She did not inform her husband at the time of the investigation by the police on that day about the incident. Many people were present at that time of the incident. The police did not make inquiries from any neighbourers. She did not hear any quarrel during the period accused stayed in her house because she was living upstairs. She never found her disturbed. She had inquired about the person who had accompanied her husband on the day when he had given her room for rent to him. She told her that he was her husband's friend. The police had not read out the contents of the documents which were signed by her. Her husband met the police when they came on other days, but no inquiries were made by him. She denied the suggestion that several people used to come to meet Afsana. FIR No. : 326/06, PS : Welcome Page 24 of 37

24. Ld. Counsel submitted that it is very strange that her husband has not come to give any statement despite the murder has taken place in his house and it is Imrana, the woman who had come to make statement. There is nothing unnatural about the same as there are several households where woman are running the show and Imrana has explained it was she who used to give the house on rent as her husband used to remain away to his work during the day time. Therefore it was quite natural that testimony of Imrana was material in this regard. None recording of testimony of her husband does not in any manner attract adverse inference against the prosecution. Therefore the testimony of Imrana has been consistent and despite crossexamination nothing material has come on record. Therefore Imrana has proved on record that deceased Afsana alongwith accused Akhlaq had taken her house on rent and she had seen the th deceased Afsana alive on 18 at about 11:00 pm in the night and th thereafter did not see accused Akhlaq on 19 after 7:00 am. She claims that accused used to come for lunch during day time but it is apparent from her testimony that on the alleged day of incident the accused had left the house at 7:00 am and thereafter did not come.

25. Now coming to the recovery made at the instance of accused Akhlaq. PW33, Inspector Anand Sagar, IO is the witness of recovery effected at the instance of accused Akhlaq. He testified that he interrogated the accused Akhlaq after his arrest on the FIR No. : 326/06, PS : Welcome Page 25 of 37 production warrant from Haridwar Jail. After his refusal to participate in TIP, he obtained his P/c remand on 12.10.2004 and recorded his disclosure statement in the presence of Sh. Hasin Ahmed, public witness and ASI Mohd. Shamim, which is Ex.PW16/A and thereafter accused took the police party to house No. L21, Welcome, Delhi and pointed out the inner room of the house where he committed the murder of Afsana with his accomplice i.e. Ved Prakash vide memo Ex.PW7/L. PW Hasin Ahmed, Smt. Imrana, Saqil Ahmed ans ASI Mohd. Shamim were the witnesses of pointing out. He also recorded the statement of Hasin Ahmed, Smt. Imrana, Saqil Ahmed at the spot. Thereafter the accused took the police party to the house of one Waqar Ahmed at Gali No.3, Arya Nagar, Loni, Ghaziabad UP and disclosed that he used to live in the house of Waqar Ahmed on rent. He had prepared the pointing out memo Ex.PW33/E. He also recorded the statement of Sh. Waqar Ahmed and his son namely Khalil Ahmed. Thereafter the accused Akhlaq pointed out the house No.553 at Gali No.3, Arya Nagar, Loni of Mohd. Yamin and disclosed that after vacating the house of Waqar Ahmed had been living with Afsana, Suleman and Kaleem in the house of Yameen. He prepared pointing out memo Ex.PW19/A. Thereafter he took the police party to the house of Nazir Khan @ Kashmiri and disclosed after pointing out on Nazir Khan that he married Afsana in the house of Nazir Khan @ Kashmiri and Nazir FIR No. : 326/06, PS : Welcome Page 26 of 37 Khan became the father of Afsana during the nikah ceremony. He had prepared the pointing out memo Ex.PW33/F and thereafter Nazir Khan @ Kashmiri and Khalil Ahmed took the police party at Sunhari Masjid where the imam of the Mazid Mohd. Meharban and on interrogation he told that he solominised the marriage of Afsana and Akhlaq in the house of Nazir Khan @ Kashmiri. He also produced the nikahnama and nikahnama register. Thereafter on the intervening night of 14/15.10.2004, he alongwith ASI Mohd. Shamim, ASI Arvind Kumar and other staff with accused Akhlakh departed from PS Welcome for the investigation of the case at about 12.45 am and reached PS Loni where he made arrival entry in the GD of the PS and requested the duty officer to provide the police staff for the assistance. He told that H.C.P. Jasraj Singh and constable Jeetender who were on duty at State Bank of India, Loni will assist the police party. He alongwith the staff and accused reached at SBI, Loni where HCP Jasraj Singh and Ct. Jeetender Singh met there. He apprised the fact of the case to them and they joined the investigation. Thereafter accused Akhlakh took the police party to the house of Ved Prakash @ Bintu @ Kala at Gali No.3, Rajiv Garden, 100 ft. Road, Near Neelam Factory, Loni, Ghaziabad and he (witness) called the accused from out side of the house, he came out from the house and he was pointed out by the accused Akhlakh and disclosed that he had committed murder of Afsana with Ved FIR No. : 326/06, PS : Welcome Page 27 of 37 Prakash @ Bintu. The pointing out memo is Ex.PW34/D to this effect. IO interrogate the accused Ved Prakash and arrested him vide arrest memo Ex.PW34/A and recorded his disclosure statement Ex.PW34/C. On interrogation, accused Ved Prakash had disclosed that he had sold the jewellery i.e. a pair of pajeb (silver) and two pair of chutkies to one lady through his friend Vijay Singh and sold the cycle to one Dharmender which he can get recover. Thereafter, the accused Ved Prakash led the police party to the house of Vijay at Rajiv Garden house no. 9, Gali No. 3, 100 Foota Road. IO called the Vijay from the door of his house and he came out accused Ved Prakash had identified him as Vijay. He prepared the pointing out memo Ex.PW14/A and made inquiry from him. He led the police party to the house of Fatima at Nasbandi Colony, Budh Bazaar near Bangali Mazid, Loni, Gaziabad to whom the pair of Pajeb and two pair of Chutki were sold through him. IO had prepared the pointing out memo Ex.PW4/A. Fatima had also met them in her house and she was identified by Vijay. IO inquired from him about the Pajeb and Chutkies. She produced the pair of Pajeb and two pair of Chutkies, which were seized through seizure memo Ex.PW2/A. Accused Akhlakh had also identified the Pajeb and Chutkies and told that same belongs to Afsana. Thereafter at the instance of accused Ved Prakash, they reached at the house of Dharmender at Gali No.4, Rajiv Garden, 100 Foota Road. FIR No. : 326/06, PS : Welcome Page 28 of 37 Dharmender also met them in his house and he told that he had sold the cycle to one Dinesh in sum of Rs. 400/ which he had purchased in sum of Rs.300/ from Ved Prakash. He prepared pointing out memo Ex.PW34/F. Thereafter Dharmender led them at the house of Dinesh at Paramhansh Vihar Colony, Gali No. 1 and he also met them in his house. IO inquired him and he produced the cycle make Atlas Gold line, Black colour, bearing no. 828053 and seized the same through memo Ex.PW1/A. The cycle was also identified by accused Akhlakh and he told that he took the cycle from Suleman. Accused Ved Prakash was also with them at the time. IO recorded the statement of Vijay Singh, Fatima, Dharmender, Dinesh, HCP Jasraj Singh and ASI Mohd. Shamim. Thereafter they came back to PS Welcome and deposited case properties in the Malkhana.

26. PW35 ASI Mohd. Shamim corroborated PW33 regarding disclosure statement made by accused Akhlaq and he was taken at Loni where nikahnama and nikahnama register were seized and also corroborated IO regarding of arrest of Ved Prakash at the instance of accused Akhlaq and recoveries made at the instance of accused Ved Prakash from the purchaser of case properties and also identified the same. PW34 SI Jasraj Singh joined the police party at Loni and corroborated regarding arrest of accused Ved Prakash at the instance of accused Akhlaq and recoveries effected FIR No. : 326/06, PS : Welcome Page 29 of 37 at the instance of accused Ved Prakash.

27. The prosecution also examined PW1 Dinesh, who testified that on 15.10.2004, he had purchased a cycle from Dharmender. Police came to his house and took him and the cycle. They also brought Dharmender. Cycle was seized. He further stated that he had purchased cycle for consideration of Rs.300/ from Dharmender. PW3 Dharmender testified that he has purchased the cycle from Tahir and sold it to Dinesh. Police brought him to the police station and obtained his signature on blank papers and did not support the prosecution, however in his crossexamination, he admitted that accused Ved Prakash took the police to his house. He denied the suggestion that Ved Prakash had sold the cycle to him for Rs.300. He categorically denied having made statement to the police. PW4 Vijay Singh testified that he was taken to PS Welcome by police and obtained his signature on blank papers and thereafter he was released. He was also declared hostile and categorically denied that he had pointed out the house of Faria (It should be Fatima).

28. PW2 Fatima testified that on 15.10.2004, some police officials came to his house and inquired if she had bought any jewellery articles from Vijay. Police was accompanied by accused persons. She could not see the accused due to dark as it was night time, however, again stated that Ved Prakash was present with the police. She stated that he had informed her that his mother was not well and he was selling FIR No. : 326/06, PS : Welcome Page 30 of 37 the ornaments under compulsion. He sold a pair of silver pajeb and four chutkies to her for a sum of Rs.500. She handed over all the ornaments to the police, which were seized by the police. She identified pair of silver pajeb as Ex.P2 (collectively) and four chutkis as Ex.P3 (collectively). She stated in her crossexamination that it was about 4:00 pm in the early morning when police had come to her house. She did not give any receipt to Vijay at the time of purchase of the ornaments.

29. Therefore as regards the cycle, it was recovered from Dinesh, who has purchased the same from Dharmender. But Dharmender states that he had not purchased the same from Ved Prakash. Therefore, the prosecution failed to prove that the cycle was sold by accused Ved Prakash to Dharmender. Even otherwise, the disclosure statement and the pointing out of the place of occurrence at the instance of accused persons cannot be proved against them as the place of occurrence was already known to the police and confessional statement recorded in the presence of police cannot be proved against the accused unless it leads to discovery of some object. The reference can be made from judgment of our own High Court in case title as Rakesh Kumar v. State, Vol. 163, DLT 2009, Page No. 658. The recovery of silver pajeb and four chutkies at the instance of accused Ved Prakash from Fatima is only to be considered. After the recovery articles, test identification parade FIR No. : 326/06, PS : Welcome Page 31 of 37 (TIP) was got done. PW28 Sh. Rajnish Kumar, Ld. MM as he the then was, conducted TIP of the case properties vide his proceedings Ex.PW12/D. As per TIP PW Shamshida had correctly identified two pairs of pajeb and three pairs of bichua, which were produced by IO in the sealed parcel before him, which was resealed thereafter. The witness with respect to the identification of these articles is PW12 Shamshida. She testified that in the month of May, 2004 when Afsana was taken away by accused Akhlaq she was wearing Pajeb, Bichua, Gutharia (ring of the big toe) (all of silver) she identified the same and also identified the same in the court. The mother of the Shamshida namely Sanjida PW14 in her crossexamination had stated that in their community and family an unmarried girl does not wear pajeb, bichua and guthade and her daughter was unmarried. Therefore the prosecution version that bichua and pajeb were belonging to deceased, which were recovered from Fatima, cannot be believed when admittedly Afsana had eloped with Akhlaq, when she was unmarried and therefore there was no question that she was wearing pajeb, bichua, and guthade at that time as her mother had categorically stated that unmarried girl does not wear pajeb, bichua and guthade. Therefore arguments of Ld. Counsel that these articles were planted on the accused persons by the prosecution has force or cannot be ruled out. The inconsistencies in the testimonies of the witnesses of recovery, therefore are FIR No. : 326/06, PS : Welcome Page 32 of 37 inconsequential as the recoveries themselves appears to be doubtful. PW26 Dr. Arvind Kumar had conducted the postmortem on the dead body of Afsana and gave the cause of death was asphyxia as a result of strangulation by ligature and also stated that ligature mark on the dead body was caused by ligature material recovered by the police. The time since death was about four/five days. The postmortem was conducted on 23.09.2004. The alleged death had taken place on 19.09.2004. As per the opinion of the doctor, the time since death was four to five days. As per the th prosecution, the death was caused on 19 September, 2004 and th therefore the death may be caused sometime on 19 September, 2004. However there is no approximation regarding the period that the dead was caused, it cannot be said with certainity that the death was caused before 7:00 am when the accused was last seen leaving their room.

30. Therefore the prosecution has succeeded in establishing following circumstances

(i) that the deceased, Afsana and accused, Akhlaq were married at Sunehari Masjid at Loni,

(ii) that accused Akhlaq and deceased Afsana were living as tenant in the house of Imrana since four days prior to her death th

(iii) that Imrana had seen deceased alive at 11:00 pm on 18 FIR No. : 326/06, PS : Welcome Page 33 of 37 th

(iv) as well as the accused on 19 at 7:00 am and (v) accused did not return to tenanted room after the death of Afsana.

31. The prosecution also relied on circumstance that accused after committing the offence has surrendered before the court in UP and his P/W was obtained. IO PW33 testified that during the investigation, ASI Mohd. Shamim informed that accused Akhlaq who is involved in many cases had surrendered before the court of District Judge, Roshnabad, Haridwar. On the receipt of this information, he moved an application before the court of Sh. B. S. Chumbak, as he the then was with request to issue production warrant and he did not appear on 4.10.2004 and thereafter fresh production warrant was issued and he appear on 8.10.2004. Therefore, it has come on record that accused was produced from District Judge Haridwar on p/w. However, there is nothing on record to show that when he had surrendered before the court whether it was before or after the death of Afsana. Therefore this circumstance cannot be proved against the accused that he surrendered at Haridwar Court after committing murder in order to shield himself.

32. The case is based on circumstantial evidence and law on the subject is well settled by Hon'ble Supreme Court in State of U.P. Vs. Satish, AIR 2005 Supreme Court 1000. Observed with approval the law laid down in Padala Veera Reddy Vs. State of A. P. (AIR 1990 SC 79) it was held by Hon'ble Supreme Court that when a case FIR No. : 326/06, PS : Welcome Page 34 of 37 rests upon circumstantial evidence, such evidence must satisfy the following tests :

i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;

ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

iii) the circumstance, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

33. The accused can be convicted on the basis of circumstantial evidence, if the chain of circumstance complete. In this case the case of the prosecution heavily based on last seen evidence. However to base conviction on the basis of last seen evidence, there should be no possibility of his hypothesis of innocence. Even as per the prosecution case, accused left the house at 7:00 am and the FIR No. : 326/06, PS : Welcome Page 35 of 37 dead body was seen at 3:00 pm. The room was only bolted from outside and was accessible from outside, which was opening on the street, therefore possibility cannot be ruled out than none other than the accused had entered in the said house and killed the deceased. Further, more in this case the prosecution has failed to prove in motive against the accused. It is argued that the motive was that he was being taunted by other family members as he had married with real niece. Ld. Counsel on behalf of accused has argued that in the testimony of real sister of deceased, it is come on record that she is married with her real mama (mama) and therefore this cannot be the motive that the accused killed her for saving himself from the public humiliation. I am of the opinion that the argument of Ld. Defence counsel has force.

34. As regards the accused Ved Prakash, the prosecution has miserably failed to link him with the alleged murder and as regards the accused Akhlaq, the prosecution has established the circumstance of last seen against him. However as discussed above the circumstance of last seen is capable of explanation of any other hypothesis other than guilt i.e. the place was accessible to any one from the time he was last seen by Imrana till the dead body was discovered. There was long gap of eight hour between the same. Therefore the possibility that someone else had entered in the room and had killed her cannot be ruled out. The mere circumstance that FIR No. : 326/06, PS : Welcome Page 36 of 37 he did not return to room thereafter is not strong as it is common knowledge as the person having previous cases against him will abscond to avoid implication by police in such case.

35. Therefore, under the facts and circumstances, I am of the opinion that the accused persons are entitled to benefit of doubt. Accordingly accused Akhlaq and Ved Prakash are acquitted of the charges. The both accused are in J/c, they be set at liberty forthwith if not required in any other case. File be consigned to record room. Case property if any be destroyed after the period of appeal. Announced in the open court today i.e on 09.04.2010 GURDEEP SINGH ASJ04/NE/KKD/09.04.2010 FIR No. : 326/06, PS : Welcome Page 37 of 37

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