Delhi District Court
State vs Mushahid Etc. Sc No.81 Of 2012 1/45 on 7 December, 2012
ID No. 02403R0139672004
IN THE COURT OF SH. VINAY KUMAR KHANNA,
ADDITIONAL SESSIONS JUDGE04 (SOUTH EAST)
SAKET COURTS: NEW DELHI
Sessions Case No.81/2012
ID No. 02403R0139672004
FIR No. 707/2001
PS : OIA
U/s. 392/365/201/120B IPC r/w 34 IPC
State
Versus
Mushahid
s/o Sh. Kallu
R/o House near Masjid ,
Madangir, New Delhi . ..........accused no. 1
Aslam,
s/o Sh. Khairati Lal
r/o RZ2063, Gali no. 27,
Tughlakabad Extension, New Delhi. ..........accused no. 2
Afzal ,
s/o Sh. Abdul Karim
r/o 3804, Choti Mor Sarai, Kodia Pul,
Railway Colony, Delhi. ..........accused no. 3
Ghanshyam ,
s/o Sh. Shiv Dayal
r/o Q44, Bari Mor SaraiKodia Pul,
Railway Colony, Delhi . ..........accused no. 4
Manoj,
s/o Ram Khilawan
r/o 89, Gali no. 8/3, Ratia Marg,
main Road, Sangam Vihar, New Delhi. ..........accused no. 5
Phool Singh @ Pappu,
s/o Sh. Bahadur Lal
r/o B635, Dakshinpuri, New Delhi. ..........accused no. 6
State vs Mushahid etc. SC No.81 of 2012 1/45
ID No. 02403R0139672004
Sanjay
s/o Sh. Samuel Mehta
r/o D6, Dakshinpuri, New Delhi . ..........accused no. 7
Instituted on : 06th May, 2002
Argued on : 05th December,2012
Decided on: 07th December,2012
J U D G M E N T
1. On 07.12.2001, an information that an unknown dead body was lying in the bushes of King Place Jungle Tuglakabad Fort, was received at Police Station Okhla Industrial Area which was recorded in the daily diary register as DD No. 12A. SI K.C. Kaushik reached at the spot and found a male dead body in a decomposed condition. There were six deep injuries marks on the back of deceased, neck was cut from left side, a deep injury mark below the left ear, a deep injury in the right side near the naval area from where intestines were protruding, skin and flesh of left hand around shoulder to elbow was missing & bone was visible. On the palm of the both hands, there were injury marks caused by sharp edged weapon. One white colour full sleeve woolen vest having blood stains were found lying near the head of dead body. One torn piece of a towel with blood stains was also lying near feet and one navy blue colour full sleeve T Shirt having a label of HEMLER on the collar and STYLE written on the front side pocket was having cut marks also found lying. One brown colour monkey cap was found in the bushes in the east of dead body on a distance of 5' from the legs of the deceased. SHO, senior police officers, crime team and photographer reached at the scene of State vs Mushahid etc. SC No.81 of 2012 2/45 ID No. 02403R0139672004 crime. FIR was registered u/s 302 IPC. During investigation, IO prepared site map, took photographs. He seized articles from the scene of crime and shifted dead body to AIIMS mortuary for autopsy. Efforts were made to establish identity of the deceased and to apprehend the accused persons. WT massages were flashed. Hue and cry notices were issued.
2. During investigation, accused Musahid and Aslam were arrested in the other case FIR No. 16/2002 and FIR No. 17/2002 u/s 25/54/59 Arms Act PS Chandni Chowk Delhi respectively. Accused Phool Singh , Sanjay and Afzal were arrested on 14.01.2002 u/s 411 Cr.P.C PS Chandni Chowk Delhi. It is alleged that all these accused persons disclosed about their involvement in this case and their police remand was obtained. Accused Ghanshyam was arrested in case FIR No. 77/2002 u/s 25/54/59 Arms Act PS Kotwali, and therefore, IO arrested accused Manoj. During the course of investigation, IO visited Patna, Moradabad and Gaziabad and other places in Delhi along with accused and witnesses to collect evidence. Deceased was identified as Raj Kumar Yadav @ Shiv Kumar @ Pyare Lal @ Rakesh Roshan Kumar S/o Ayodhya Prasad r/o New Aitwarpur, Patna, (Bihar).
3. Story of prosecution is that accused Ghanshyam, Mushahid, Afzal, Sanjay, Phool Singh, Manoj Aslam and Khalid were close friend, who used to sit together for eating and drinking. Accused Ghanshyam came into contact with Raj Kumar (deceased) through one Raju @ Raju Goswamy S/o Shri Chand r/o B34 Gali No. 2 North Ghonda, Delhi, who used to call Raj State vs Mushahid etc. SC No.81 of 2012 3/45 ID No. 02403R0139672004 Kumar (deceased) at Patna on his Mobile Phone No. 9835058651. Ghanshyam and Afzal were both residents of same locality and were well known to Raju. They took mobile phone number of Raj Kumar (deceased) and started talking to him at Patna to strike a deal with him to triple the money with forged currency notes. Accused Ghansyam, Musahid, Khalid and Afzal visited Patna three times on 16.10.2001, 26.10.2001, 05.11.2001 and invested Rupees one Lakh with Raj Kumar (deceased), in order to get their invested amount tripled, but they were duped by Raj Kumar. On failing to recover their money back Ghanshyam & Afzal contacted Raju Goswamy; friend of Raj Kumar (deceased) and one Kallu, as per instructions of accused Afzal and Musahid visited Patna 4th time on 24.11.2001, in the hope of getting their money back and strike business deal but Raj Kumar refused to deal with him.
4. It is alleged that on their insistence, Raj Kumar (deceased) agreed to deliver forged currency notes to them at Moradabad, UP. To finalize the deal, Raj Kumar (deceased) along with Ghanshyam and Raju Goswamy came to Moradabad UP on 27.11.2001. Rajkumar (deceased) stayed at Pankaj hotel Moradabad. Ghanshyam along with Raju went to Pankaj Hotel Moradabad UP to meet him but the deal could not finalized as Ghanshyam was unable to get a party, who could strike a deal with Raj Kumar at Moradabad. Rajkumar (deceased) sent him back to Delhi. Ghanshyam proceeded to Delhi, Raj Kumar (deceased) reached Gaziabad along with Raju Goswamy and stayed at "Hotel Rainbow" Station Road Gaziabad UP. On State vs Mushahid etc. SC No.81 of 2012 4/45 ID No. 02403R0139672004 30/11/2001, after leaving Raj Kumar (deceased) at Hotel, Raju Goswamy returned to Delhi. Further, story of the prosecution that on 01122002 Raj Kumar (deceased) along with his friend Farooq Ansari reached at Hotel Satya Palace, Pahar Ganj, Delhi and stayed there. Accused Ghanshyam, Afzal and Musahid organized a meeting at Kaudia Pul, Delhi. During his stay at Patna, Ghanshyam came to know about Rs. 40 Lacs with which Raj Kumar was going to deal with other parties. Accused Ghanshyam and Afzal met Raju Goswamy and enquired about the where about of Raj Kumar. On 02.12.2001, Ghanshyam contacted Raj Kumar on his mobile phone no. 9835058651 at his residence to know his whereabouts. He talked to Smt. Babita wife of Raj Kumar (deceased) and came to know about the stay of Raj Kumar at Satya Palace Hotel, Pahar Ganj, Delhi. Ghanshyam, Afzal, Musahid and Khalid hatched a conspiracy to kill Raj Kumar and robbed him of his money. Musahid called his relative Aslam @ Anil and friend Manoj. They all met together at Kauriya Pul and as a part of conspiracy, Musahid, Aslam, Manoj and Khalid reached at hotel Satya Palace Pahar Ganj, Delhi and stayed there with fake identity in room No, 208 and 312 during the intervening night of 2/3122001 to execute their plan. They could not do so as Raj Kumar (deceased) had shifted from room No. 102 to 103 and they were allotted room No. 208 and 312 on the other floors of guest house. Next day, on 03122001, they vacated their rooms and hatched another plan. They involved their friends Sanjay and Phool Singh drivers to provide them logistic support as they were having State vs Mushahid etc. SC No.81 of 2012 5/45 ID No. 02403R0139672004 Indica Car and Tata Sumo respectively. It is alleged that they made a plan to kidnap Raj Kumar (deceased) and robbed him of Rs. 40 lacs, after committing his murder and everybody was to get equal share in the booty. On 04.12.01, at early morning accused Musahid, Khalid, Manoj, Aslam, Phool Singh and Sanjay as part of conspiracy and to execute their plan, reached Pahar Ganj Delhi in Indica Car No.DL3CW 0358 and parked the Car in a corner of Harmandir Gali, DBG Road on the way leading to Hotel Satya Palace. As part of their preconceived plan, Sanjay stayed in the car and Phool Singh went to make a call to Raj Kumar from a nearby PCO to get him out of his room and engaged him over phone, till others reached at gate of guest house Musahid, Aslam, Manoj and Khalid went to the Hotel Satya Palace. As per the plan, Phool Singh telephonically called Raj Kumar (deceased), who came to attend the phone. He was taken away by above said four accused persons on the pretext to have some business talk with him to the nearby parked Indica Car No.DL3CW 0358 and pushed him inside the car. After abducting him, all the six persons took him to Gali No.36, Ravi Dass Marg, TKD Extension, opposite Majidia Hospital, New Delhi. Sanjay and Phool Singh dropped them from the car along with Raj Kumar (deceased) and returned at Dakshin Puri, New Delhi, whereas, accused Musahid, Khalid, Aslam and Manoj took Rajkumar (deceased) to King Palace jungle, inside the Tuglakabad Fort and killed him. Ghanshyam and Afzal gave them money. It is alleged that while attacking Raj Kumar (deceased) accused Khalid got his fingers injured by holding knife from State vs Mushahid etc. SC No.81 of 2012 6/45 ID No. 02403R0139672004 the sharp edge side. Accused Aslam took Khalid to one Doctor, Binay Sarkar in Tuglakabad Extension area for treatment. Accused Musahid and Aslam made a bogus call from Paridwal Telecom Centre, Sangam Vihar to PCR at 100 telephone number to mislead the police that one Raj Kumar was staying at Satya Palace Guest House with forged currency notes of Rs. 40,00,000/ and an another call to Manager Satya Palace Hotel to scare the friends of Raj Kumar staying at Satya Palace Hotel. Accused persons succeeded in their nefarious design of abducting and later on killing of Raj Kumar , which could not be noticed by anybody on 04.12.2001, due to bogus calls.
5. Later on, police arrested all the accused persons and recovered three sharp edged weapons knives (churies) at the instance of accused Musahid, Aslam and Manoj. Pointing out memos were prepared at the instance of accused persons. Accused persons were identified by the Hotel staff. Witnesses were examined u/s 161 Cr.P.C and vehicles involved in the crime were seized. Blood samples of Smt Balo Devi, mother of deceased was collected and sent to Director CDFD, Hyderabad (AP) along with exhibits for DNA analysis. Seized documents including hotel registers were sent to GEQD Hyderabad (AP) for examination. Accused Khalid, was declared Proclaimed Offender (PO), in this case.
6. On conclusion of investigation, charge sheet was filed in the Court of Metropolitan Magistrate on 12.04.2002 and case was committed to the Court of Sessions on 06.05.2002. Charges under sections 365 and 302 IPC State vs Mushahid etc. SC No.81 of 2012 7/45 ID No. 02403R0139672004 read with section 120B and section 34 IPC were framed on 31.10.2002 by the Learned Predecessor of this Court. Accused persons pleaded not guilty and claimed trial.
7. Points, which emerge for determination in this case are :
(i) Whether on or before 04.12.2001, accused persons entered into a criminal conspiracy to commit murder of Raj Kumar after abducting him from Hotel Satya Palace, Paharganj?
(ii) Whether accused persons abducted Raj Kumar (deceased) from Hotel Satya Palace, Paharganj on 04.12.2001 with intent to wrongfully and secretly confine him?
(iii) Whether accused persons took Raj Kumar (deceased) to Jungle King Palace, Tughlakabad, Delhi and committed his murder by inflicting injuries with knives?
8. In order to prove the accusations against the accused, prosecution examined forty nine witnesses in all. The gist of the stimony of prosecution witnesses is as under:
9. PW1 Praveen Chadha owner of STD Booth, telephone no. 7532889 at 3283, Gali Hari Manjil, Paharganj. He was cross examined by Ld. Addl. PP as regards the identity of accused Phool Singh . PW2 Harbans Lal Mathur PCO owner, Paharganj. He deposed that accused Ghanshyam used to make call from his PCO booth along with one other person. PW2 could not identify Afzal. He was cross examined by Ld. Addl. PP. He admitted that accused Afzal was driver by profession and he used to accompany accused Ghanshyam whenever accused Ghanshaym came to his PCO booth for making State vs Mushahid etc. SC No.81 of 2012 8/45 ID No. 02403R0139672004 calls. PW3 Nateshan STD booth owner deposed that police brought the accused persons Shahid and Ghanshyam to his booth for pointing out his booth from where they used to make telephone calls. PW3 was cross examined by Ld. Addl. PP. He placed on record pointing out memo (Ex. PW3/A). PW4 Babita wife of Raj Kumar (deceased) deposed that accused Ghanshaym had made a telephone call to her on 02.12.2001 and asked about the whereabouts of her husband Raj Kumar (deceased). She told him that he was staying in Hotel Satya Palace.
10. PW5 Om Prakash owner of Hotel Satya Palace produced record of staying of Raj Kumar (deceased) in his hotel from 01.01.2002 to 04.01.2002. PW6 Nandu Kumar waiter of Hotel Satya Palace deposed that on the relevant day, at about 05;00/05:30am, there was a call for Raj Kumar (deceased ) . He called Raj Kumar (deceased) to attend the call. PW7 Ramesh Kumar owner of Indica No. DL 3 CW 0358 deposed that accused Sanjay was his driver. He got the car released on superdari. PW8 Vinay Kumar Sarkar deposed that accused Khalid, who was having an injury on his palm/finger and was brought by Aslam to him and he gave treatment to Khalid in his clinic. PW9 Harinder deposed that police met him near the shop ,where Vinay Kumar Sarkar was earlier running his clinic. He told to the police that the clinic had been shifted . PW10 Sunil Kumar deposed on the lines of PW9. PW11 Rakesh Sharma manager of Hotel Rainbow, Ghaziabad produced hotel register to show stay of Raj Kumar (deceased) along with State vs Mushahid etc. SC No.81 of 2012 9/45 ID No. 02403R0139672004 Mohd. Firoz and Rajiv in room no. 19 on 30.01.2001.
11. PW12 Nathu Singh Vohra . Employee of Hotel Pankaj , Muradabad deposed that Ghanshyam had stayed at their hotel and met Raj Kumar. PW13 Satya Narain PCO owner at Ratia Marg, Sangam Vihar from where a bogus call was made to the PCR from his PCO. PW14 HC M. K. Shibu is malkhana moharar. PW15 SI Mahesh . Draftsman prepared scaled site plan which is Ex. PW15/A. PW16 L/Ct. Sunita on 04.12.2001, at about 05:01pm, received a call from phone no. 6074523 regarding the staying of Raj Kumar (deceased) , Sarfarz and Raju with fake currency notes in Hotel Satya Palace in room no. 102. PW17 Yashpal employee of Railway deposed that accused Ghanshyam had borrowed Rs. 25,000/ from him. PW18 HC Mange Ram placed on record arrest memo and disclosure statement of Aslam (Ex. PW18/A).
12. PW19 ASI Megh Raj joined the investigation with the IO K.C. Kaushik. He alongwith the accused Mushahid and Constable Sukhvinder went to Patna during the police custody remand of accused Mushahid alongwith the Investigating Officer. He is witness to the seizure memo of register of Hotel Anand Regencey Ex.PW19/A, Hotel Maharaj Ex.PW19/B, Hotel Arya Ex.PW19/C and Hotel Jaipur Ex.PW19/D. He deposed that as per registers of Hotel Anand Regency and Hotel Maharaj, name of Ghanshyam was entered against entry No. 8809 Ex.PW19/E1 and 679 Ex.PW19/E2 and the name of Ghanshyam Das, Afzal and Shahid at Sl. No. 3284 Ex.PW19/E3. He is State vs Mushahid etc. SC No.81 of 2012 10/45 ID No. 02403R0139672004 witness to pointing out memo Ex.PW19/F prepared at the instance of accused Manoj on 25.02.2002 by the IO, sketch of the churi (Ex.PW19/G), seizure memo of jhurri (Ex.PW19/H), seizure memo of pantshirt of accused Manoj (Ex.PW19/J), four pointing out memos of Hotel at Patna (Ex.PW19/K to Ex.PW19/N), register of pay phones situated at near station Patna are (Ex.PW19/O, Ex.PW19P and Ex.PW19/Q). One pant of cream colour and mehroon colour shirt was identified by the witness in the Court is P1 and P2 respectively and iron knife (churi) is Ex.P3 was also identified by the witness.
13. PW20 SI Kunwar Sahib Singh incharge of crime team inspected the spot i.e. Tughlakabad jungle near Fort. Scene of crime report prepared by him is (Ex.PW20/A). PW21 Constable Krishan Kumar Singh special messenger delivered special report (copy of FIR) to senior police officials i.e. Joint Commissioner ACP and DCP as well as Metropolitan Magistrate on 08.12.2001.
14. PW22 Dr. Anupama Raina deposed that one Balu Devi, mother of the deceased was brought to the Department of Forensic Medicine by IO, SI K.C. Kaushik. In her presence, Dr. Sanjeev Lalwani took her blood samples. She placed on record (Ex.PW22/A). PW23 Dr. Sanjeev Lalwani conducted postmortem on 13.12.2001 on the dead body of the deceased, an unknown male aged 3035 years with the alleged history of "found dead in the decomposed stage on 07.12.2001 with deep stab wounds on the body in Tughlakabad Fort Extension". Injury noted by the doctor are as under : State vs Mushahid etc. SC No.81 of 2012 11/45 ID No. 02403R0139672004
(i) stab incised wound on left scapular region 2.5 X 1 cm X bone deep, obliquely placed with sharp margins and angles; (ii) stab incised wound on left scapular region medially obliquely placed of size 4.5 X 1 cm X chest cavity deep with sharp regular margins and angles; (iii) stab incised wound on left side inter scapular region adjacent to vertebral colum 4.5 X 2 cm X chest cavity deep with sharp margins and angles; stab incised wound on right side inter scapular region adjacent to vertebral colum obliquely placed size 2.5 X 2 cm X chest cavity deep with sharp regular margins and angles; (iv) stab incised wound on left side lower chest 6 X 2 cm anteriorly passing through left seventh intercostal place penetrating diaphragm and left lobe of liver alongwith tear of mesentry and omentum with dried decomposed blood underneath situated 8 cm left to mid line and 15 cm above and left to umbilicus; (v) stab incised wound on left side lower chest near costal margins of size 5 X 2 cm 5 cm left to the mid line and 12 cm above and lateral to umbilicus, going through peritoneum to under lying mesentry, small intestine stomach; (vi) stab incised wound of size 6 X 3 cm on right iliac fossa with small intestine having cuts ends coming out through the wounds situated 8 cm below and right to umbilicus and 8 cm right to mid line anteriorly, underneath muscles were showing blackish decomposed extravasation of blood. The large intestine, mesentry and omentum were showing tears underneath the wound;
(vii) Trachea in mid line was found transversely cut alonwith loss of alignment at C 56 vertebrae with transverse cut. All the neck tissues were decompose State vs Mushahid etc. SC No.81 of 2012 12/45 ID No. 02403R0139672004 and eaten by maggots. The cause of death in his opinion was hemorrhagic shock due to multiple injuries. Injuries were ante mortem in nature and caused by sharp edged weapon. The injuries were sufficient to cause death in ordinary course of nature. PW23 placed on record MLC (Ex. PW23/A) . On 09.03.2002, PW23 collected fresh blood sample about 5 ml of Balo Devi, and sealed the same in a flask and handed over to Head Constable Vijay Raj Singh for DNA finger print.
15. PW24 Constable Sukhvender Singh witness to several documents i.e. arrest, disclosure statements and pointing out memos as regards Phool Singh @ Pappu, Sanjay and Afzal. Interrogation of accused Phool Singh (Ex.PW24/A), disclosure statement (Ex.PW24/B) and pointing out memo prepared at his instance at Chhabra Telecome Centre, Paharganj is (Ex.PW24/C). Interrogation of accused Sanjay (Ex.PW24/D) and his disclosure statement (Ex.PW24/E). The disclosure statement of accused Afzal (Ex.PW24/F) and the pointing out memo prepared at his instance of accused Sanjay (Ex.PW24/G). Pointing out memo prepared at the instance of accused Sanjay (Ex.PW24/H). Pointing out memo prepared at the instance of accused Phool Singh (Ex.PW24/J). Disclosure statement of accused Mushahid, Aslam (Ex.PW24/K) and (Ex.PW24/L) respectively. Disclosure statement of accused Aslam and Mushahid (Ex.PW24/M) and (Ex.PW24/N) respectively. PW24 deposed that accused identified the car and the identification memo prepared by the IO (Ex.P1 and Ex.P2). Disclosure statement made by accused Aslam @ State vs Mushahid etc. SC No.81 of 2012 13/45 ID No. 02403R0139672004 Anil is (Ex.PW24/P3). Pointing out memo of Hotel Satya Place, Paharganj and Jagdamba Telecom Palace (Ex.PW24/P4 to Ex.PW24/P6 and PW6/A). Pointing out memo prepared at the instance of accused Aslam regarding Curly communication system (Ex.PW24/P7). Pointing out memo regarding paid well telecome center, STD Booth, Sangam Vihar (Ex.PW13/A and Ex.PW13/B) respectively. Further pointing out memo as regards King Palace Jungel 20 meters in the west side of inner side of wall near bushes (Ex.PW24/P8) and the pointing out memo of accused Mushahid (Ex.PW24/P9). As per PW24, IO prepared sketch of the knife (Ex.PW24/P10) recovered at the instance of accused Mushahid which was seized vide seizure memo (Ex.PW24/P11). Sketch of the knife recovered at the instance of Aslam from 50 meters away towards each side of the Tughlakabad Fort (Ex.PW24/P12) and its seizure memo (Ex.PW24/P13). PW24 deposed that accused Aslam @ Anil led them to House No. RZ2519, Gali No. 27 at the house of Surender and he got recovered one black jeans and shirt which was seized by the seizure memo by the IO vide (Ex.PW24/P14). Accused Mushahid got recovered one pant and T shirt from the same house, which were seized vide seizure memo vide Ex.PW24/P15. Pointing out memo to which this witness is signatory is (Ex.PW18/A and Ex.PW24/P16) prepared at the instance of accused Aslam @ Anil. Knives stated to be recovered at the instance of Mushahid, Aslam @ Anil are Ex.P4 and Ex.P5 respectively and the clothes at the instance of accused Alam @ Anil and Mushahid are (Ex.P6 to Ex.P9).
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16. PW25 Head Constable Vijay Raj joined investigation with the IO, K.C. Kaushik alongwith PW24 Head Constable Sukhvinder. His testimony is on the same lines as of PW24 Head Constable Sukhvinder. He is witness to the arrest memo of accused Phool Singh (Ex.PW25/1), his personal search (Ex.PW25/2), photograph (Ex.PW25/3), arrest memo of accused Afzal and Sanjay (Ex.PW25/4 and Ex.PW25/5) respectively and their personal search memos (Ex.PW25/6 and Ex.PW25/7). He placed on record the disclosure statement at the instance of accused Manoj (Ex.PW25/PX). He is witness to the seizure memo of the guest register maintained at the Hotel Siddharth, Station Road, Patna which was seized vide memo (Ex.PW25/D). PW25 deposed that he obtained specimen signature of Ghanshyam (Ex.PW25/C1 to Ex.PW25/C14). Three weapons sealed with the seal of hospital and sample seal given to him and blood sample of Ballu Devi taken by Dr. Sanjeev Lalwani as well as human bone sealed with the hospital seal which was preserved in the hospital lab seized vide seizure memo (Ex.PW25/D). Seizure memo of DD No. 10 dated 25.12.2001 (Ex.PW25/E), seizure of the guest register of Hotel Pankaj was seized by the IO on 15.02.2002 which (Ex.PW25/F). Disclosure statement of accused Ghanshyam and Afzal (Ex.PW25/G) and (Ex.PW25/H) respectively.
17. PW26 Vijay Sood was running a booth / PCO at Koriya Pul in the year 2001 and 2002 having telephone numbers 23864745, 23864744 and State vs Mushahid etc. SC No.81 of 2012 15/45 ID No. 02403R0139672004 23860485. According to PW26, on 13.02.2002, police alongwith Ghanshyam had come to his PCO Shop and accused Ghanshyam was identified by him in the Court, who came at shop. IO prepared pointing out memo (Ex.PW26/A) bearing his signature. PW27 Constable Jitender joined investigation with SI Kaushik and reached at Tughlakabad Fort, on receiving DD NO. 12A on 07.12.2001. He described the position of the dead body and location of the place.
18. PW28 Ravi Kumar identified accused Afzal who was working as driver between 1997 to 1999 with his brotherinlaw (jeeja) Virender Pal Singh, who was a Transporter, with whom he was working as a driver. PW29 SI Arvind Kumar arrested accused Ghan Shyam in PP Kotwali along with a knife. He came to know that accused was wanted in case FIR No 727 and informed about the arrest of accused Ghan Shyam. Disclosure statement recorded by him is mark A. PW30 HC Kulbir Singh accompanied IO to the spot, where dead body was found on 07.12.2001. He is witness to the seizure memo (Ex. PW30/A) of the articles i.e. T shirt of full sleeves, one money cap, one towel and one plastic chappal found from the place of occurrence. PW30 deposed that IO lifted blood sample, earth containing blood, earth control and small piece of stone blood stained which were sealed and seized vide seizure memo (Ex. PW30/B). The objects which were recovered at the place of occurrence were full sleeve white colour neck baniyan (Ex. PW30/P1), full sleeve navy blue T shirt (Ex. PW30/P2), one brown colour money cap (Ex. State vs Mushahid etc. SC No.81 of 2012 16/45
ID No. 02403R0139672004 PW30/P3), one towel (Ex. PW30/P4), chappal (Ex. PW30/P5) .
19. PW31 Ct. Vinod Kumar posted in PCR record room. He deposed that CR DD no. 706 dated 04.12.2001 was destroyed vide order of ACP (Ex. PW31/A). PW32 Rakesh Prajapati deposed that he was running STD PCO in the name of Om Shiv Telecommunication in the year 20012002. He deposed that five years ago, police had brought two persons and told him that those two persons had made telephone calls . He told the police that he not could say because many persons come and go and make telephone calls . PW32 was cross examined by Ld. Addl. PP. He denied the suggestion put to him that Ghanshyam Dass pointing out his PCO or told that Mushahid Mistri and Khalid, Afzal used to come to his shop for making telephone calls to Patna. He denied the suggestion that he told the police that they were involved in a business of currency notes with one Raj Kumar of Patna or that they used to talk on mobile phone number 983505865. PW33 SI Ranbir Singh arrested accused Mushahid @ Shahid under Arms Act in case IFR No. 16/02, PS Chandni Chowk and recorded disclosure statement (Ex. PW33/A) and pointing out memo (Ex. PW33/B) of Satya Palace Hotel . He deposed that he checked the check in register of Satya Palace Hotel and found entry of Raj Kumar at sl. no. 2289 on 01.12.2001 . Register was sealed and seized vide seizure memo (Ex. PW33/C). PW33 placed on record check in register of Satya Place , Paharganj (Ex. PW33/P1) and entry at sl. no. 2289 at page no. 11 (Ex. PW33/P2).
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20. PW34 SI Ranjan Kumar to whom DD No. 10 (Ex. PW34/A) was marked on 25.12.2001 deposed that Babita along with Shiv Punjan and one Roshan met him and handed over to one photograph (Ex. PW25/3) to him, which was duly initialed by him at point B. he issued hue and cry notice and made search for Raj Kumar Yadav @ Shiv Kumar Yadav, who could not be traced. On 15.01.2002, IO/SI S. K. Kaushik came to him and took the DD no. 10 and photograph. PW35 Ct. Brijesh Kumar accompanied SI Surender Kumar, HC Sushil and Ct. Bibu Raj at Koria pul, Chandni Chowk. He apprehended one person, whose name , he came to know as Aslam lateron. He was unable to identify accused Manoj and Mushahid due to lapse of time. PW35 was cross examined by Ld. Addl. PP . In cross examination, he identified accused Manoj @ Aslam.
21. PW36 Madan Singh working in Hotel New Jaipur Peer Mohani, Patna3, Rajender Path, Bihar for the last 32/33 years. Sh. Kaushik, police officer had come to him and shown him photograph and asked him to identify the person and told police that he could not identify that person. He deposed that police seized the register of the hotel. This witness was cross examined by Ld. Addl. PP. In cross examination, he deposed that he could not identify those person , even if pointed and shown to him. After seeing accused Mushahid , PW36 deposed that Mushahid was brought by the police official Kaushik to their hotel.
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ID No. 02403R0139672004
22. PW37 Arvind Singh working in Hotel Maharaja , Station Road, Patna deposed that about six years ago, Inspector K. C. Kaushik alongwith one accused had come to their hotel and name of that person was perhaps Majid. Police seized register (Ex. PW19/B), which was signed by his manager Anirudh Pandey. He identified his signatures at point A. After going through the register (Ex. PW19/E2), PW37 deposed that on 26.10.2001, Ghanshyam Dass stayed in room no. 2 along with his friend. He checked in at 09:00am and checked out at 06:00pm. Entry at sl. no. 679 is (Ex. PW37/1A). He could not identify the person , who was brought by IO/K. C. Kaushik, due to lapse of time. On asking , PW37 deposed that he could not tell if he was the same person who was brought to his hotel. PW38 P. R Prasad Technical Officer, GradeI, CDFD, Hyderabad deposed that he examined sample of exhibits brought to CDFD by IO on 11.03.2002. His report is (Ex. PW38/A), and enclosures (Ex. PW38/B) , identification form (Ex. PW22/B), forwarding letter (Ex. PW38/C).
23. PW39 S. C. Lohia Deputy GEQD (retired), Hyderabad. He deposed that he served as Deputy GEQD, documents were received on 16.10.2002 from Additional Deputy Commissioner of Police South District vide letter no. 747/R/SHO/OIA dated 13.10.2002. The disputed writings were enclosed with red pencil and marked with blue pencil at Q1 and Q1/1 (Ex. PW19/E1), Q2 (Ex. PW37/1A), Q3 and Q3/1 (Ex. PW39/A), Q4, Q4, Q4A State vs Mushahid etc. SC No.81 of 2012 19/45 ID No. 02403R0139672004 and Q4B, Q6 and Q6 (Ex PY), Q5 and Q5/1 (Ex. PW39/B). Specimen writing of Aslam @ Anil as S1 to S16 (Ex. PW25/A1 to A16). Specimen writings of Ghanshyam Dass as S17 to S30 (Ex. PW25/C1 to C14). PW39 opined that the person who wrote the red enclosed writings, stamped and marked S17 to S30 also wrote the red enclosed writings similarly stamped and marked Q1 (S1 to S14 and S16); Q1/1 ( Q5 and Q5/1); Q2 (Q4, Q4 (a) and Q3 (Q6 and Q6/1). The person who wrote the red enclosed writings stamped and marked Q4, Q4(a), Q6 and Q6/1 did not write red enclosed writings similarly stamped and marked Q4(b). PW39 placed on record his opinion (Ex. PW39/C). He identified signatures of Sh. A. Balasamy at point B, who also examined the documents of this case independently and stated that Sh. A. Balasamy was also of the same opinion. The reasons in pursuance of opinion is (Ex. PW39/D).
24. PW40 Inspector Vinay Malik On 04.12.2001 on receipt of PCR call at Satya Place at room no. 102 that some people were staying and were in possession of Rs. 40 lacs fake currency notes. He along with his staff accompanied with Inspector P. S. Huda Additional SHO reached there where nothing incriminating was found and call was found to be bogus. PW41 Smt. Balo Devi mother of deceased. Her blood was taken in the hospital to verify the whether deceased was her son or not. She was cross examined by Ld. Addl. PP. In cross examination, she admitted that photographs Ex. PW41/1 to 15 were shown to her by the police. She identified dead body and the clothes State vs Mushahid etc. SC No.81 of 2012 20/45 ID No. 02403R0139672004 etc. of her son Shiv Kumar .
25. PW42 Raju Goswami @ Rajkumar was cross examined by Ld. Addl. PP. He was confronted with statement mark PW42/A. PW42 stated that he had not told to the police that one Afzal and Mushahid lost lacs of their rupees in their urge to have dealing in fake currency notes with Raj Kumar . PW42 admitted that Ghanshyam told him that Afzal and his party wanted to deal with Raj Kumar in connection with obtaining fake currency notes. PW42 stated that he alongwith Kallu and Sarfarz accompanied Ghanshyam to Patna and stayed n Sidharth Hotel . PW42 was taken to Patna by Ghanshyam on his own expense. PW42 admitted that he introduced Ghanshyam to Raj Kumar and requested him to return the money of Ghanshyam as he was a poor person. PW42 admitted that since he had to attend some marriage in Delhi, so he came back to Delhi on 25/26.11.2001, but Ghanshyam and Kallu kept staying there. He admitted that Ghanshyam came to meet him on 28.11.2001. He admitted that then he called Raj Kumar from the Vinayak PCO/STD, he was told by his wife that he alongwith his other associates were staying at Pankaj Hotel in Muradabad . He was also provided the telephone number of Pankaj Hotel by his wife. PW42 stated that he arranged talks between Ghanshyam and Raj Kumar Yadav on the telephone number of Pankaj Hotel. He admitted that Ghanshyam told him that Afzal and his party wanted to deal only in Delhi or Ghaziabad but, Raj Kumar did not want to deal beyond Muradabad and Raj Kumar called them to Muradabad and thereupon, he State vs Mushahid etc. SC No.81 of 2012 21/45 ID No. 02403R0139672004 alongwith Ghanshyam went to Pankaj Hotel, Muradabad. PW42 denied that the party was not willing to come to Muradabad and was willing to deal only in Delhi and some hot words were exchanged between Ghanshyam and Raj Kumar. PW42 admitted that Raj Kumar told Ghanshyam that he would not deal with Ghanshyam and all the advances given by Ghanshyam were confiscated. PW42 testified that Ghanshyam was sent to Delhi alongwith Shamim. He admitted that after the departure of Ghanshyma, he alongwith Raj Kumar, Manzur Ali and Shahdat took a taxi for Delhi. He admitted that Raj Kumar and Manzoor Ali stayed in the hotel and before their arrival in Delhi, Shiv Pujan and Sarfaraz already reached in Delhi.
26. PW42 admitted that on 02.12.2001, Sarfarz met him and told him that Raj Kumar was staying at Satya Palace Hotel and called the company meeting there. PW42 attended the company meeting on 03.12.2001 and Khan, Sarfarz, Manzur Alam, Shiv Pujan, Shamim and Shahadat were also present. He admitted that in the meeting , they discussed about how to become rich early. Next day, PW42 came to know from Sarfaraz that Raj Kumar was missing. Sarfaraz told that he was with Raj Kumar in the hotel room and in the morning of 04.12.2001, Raj Kumar went outside to hear a call on his phone and thereafter, he had not returned. PW42 denied that thereafter, he went to the house of Ghan Shyam at Mor Sarai , who advised him not to come to his house as he was a vegabond. PW42 was confronted with statement (Ex. PW42/A), wherein it was recorded. PW42 admitted that State vs Mushahid etc. SC No.81 of 2012 22/45 ID No. 02403R0139672004 he contacted wife of Raj Kumar, who told him that Raj Kumar had not yet reached at Patna and he told Babita to return his money which was given to Raj Kumar. PW42 admitted that Raj Kumar (deceased) negotiated with many persons for fake currency notes but no deal was finalised. PW42 came to know from the newspaper that Raj Kumar , who was known to as Shiv Kumar and Pyare Lal Yadav, had been murdered. He admitted that Raj Kumar (deceased) was a cheater and he cheated him as also forced him to join his group. PW42 admitted that Raj Kumar (deceased) had to reach Patna on or before 05.01.2001 by any means and after the failure of deal between Ghanshyam and Raj Kumar, Ghanshyam told him that if Raj Kumar would not return money of Mushahid, then he would not leave Raj Kumar. PW42 was confronted with statement (Ex. PW42/A), where it was so recorded. PW42 admitted that on 14.02.2002, he accompanied the police to Hotel Rainbow, Station road, Ghaziabad and told them that on 30.11.2011he left Raj Kumar (deceased) and Manju Alam in room no. 19 and police seized the register of the hotel in his presence.
27. PW42 could not tell as to where (Ex. PW42/PX, Ex. PW42/P1, Ex. PW11/B and Ex. PW25/B) were prepared. PW42 testified that IO came to his Shamli address twice and at that time, he was in Jail. He came to know about the said fact from the IO. PW42 admitted that Babita was the second wife of Raj Kumar (deceased), who was facing trial for the murder of his first wife. He admitted that cheating gang was being run his wife Babita, who was State vs Mushahid etc. SC No.81 of 2012 23/45 ID No. 02403R0139672004 having relationship with Shiv Pujan, the nephew of Raj Kumar (deceased). PW42 admitted that Babita did not want to come to Delhi and Babita had been forcibly brought to Delhi from Patna by the IO. He admitted that Sarfaraz stayed in the hotel Satya Place till morning of 05.12.2001. On 04.12.2001 , Sarfaraz came to the house of PW42 and informed him about the missing of Raj Kumar (deceased). To his knowledge, Raj Kumar (deceased) cheated about 1520 persons in and around Delhi. PW42 admitted that Shiv Pujan, Sarfaraz, Shamim, Manjur Alam, Khan, Shahdat etc. were involved in the activity of cheating alongwith Raj Kumar (deceased) and his wife. PW42 admitted that Raj Kumar (deceased) never carrying any forged currency notes with himself but was carrying original notes representing those notes.
28. PW43 Anirudh Pandey retired Manager Hotel Maharaja Patna pointed out serial number 679 at page 140 at in the register bearing the name of Ghanshyam Dass r/o Koria Pul which was seized by the police vide memo (Ex. PW19/B). PW43 was cross examined by Ld. Addl. PP as he could not identify the accused persons. PW43 deposed that on 25.10.2002, accused Mushahid alongwith police came to their hotel and took the police team in room no. 2 and told the IO that he alongwith Ghanshyam, Afzal and Khalid stayed there on 26.10.2001. Police prepared pointing out memo (Ex. PW19/N). PW43 denied that Ghanshyam stayed in their hotel alongwith Mushahid and two other persons named Khalil and Afzal and the name of Khalil and Afzal were told to him by Mushahid. He was confronted with State vs Mushahid etc. SC No.81 of 2012 24/45 ID No. 02403R0139672004 statement (Ex. PW43/A) where it was not so recorded.
29. PW44 SI Manoj Kumar joined the investigation alongwith SI K.C.Kaushik. He reached at the place where the dead body was found on 07.12.2001. IO seized the articles lying there vide memo (Ex. PW30/A) stone vide memo (Ex. PW44/P1). PW45 Radha Ramon Chaudhary manager of Arya Hotel, Patna, deposed that guest register was seized by the IO vide memo (Ex. PW19/C). He deposed that entry no. 3284 dated 05.11.2001, was in the name of Ghanshyam and Shahid. As per entry, accused persons had come from Delhi on 05.11.2001 at 11:10am and left the hotel on 06.11.2001 at 10:50am.
30. PW46 Inspector K. C. Kaushik investigating officer, prepared several document during investigation. He placed on record DD entry no. 12A (Ex. PW46/A) and his endorsement (Ex. PW46/B) , site plan (Ex. PW46/C). An application for preserving the dead body (Ex. PW46/D), inquest papers (Ex.PW46/E and Ex. PW46/F) . He placed on record police custody remand (Ex.PW46/G) of accused Phool Singh , two separate applications (Ex. PW46/H and Ex. PW46/I) for issuance of production warrants of accused Mushahid @ Shahid, Aslam @ Anil, Afzal and Sanjay, an application (Ex. PW46/J) for seeking permission of interrogation of accused persons , different applications (Ex. PW46/K , Ex. PW46/L ,Ex. PW46/M, Ex. PW46/N and Ex. PW46/O) for seeking police remand of accused persons. He placed on record pointing out memo (Ex. PW46/P) of place where accused Sanjay parked Indica car, State vs Mushahid etc. SC No.81 of 2012 25/45 ID No. 02403R0139672004 application (Ex. PW46/Q) for request to record confessional statements of accused persons. PW46 placed on record arrest memos (Ex.PW46/S) of accused Manoj and Sanjay and their personal search memos (Ex. PW46/T). He placed on record pointing out memo (Ex. PW46/V) of place where accused Manoj parked Indica car, application (Ex. PW46/W) for issuance of production warrants of accused Ghanshyam and permission from the Court vide application (Ex. PW46/X) , Interrogation memo (Ex. PW46/Y) and police remand vide request (Ex. PW46/Z). PW46 placed on record pointing out memos (Ex. PW46/A1 to Ex. PW46/A3) in respect of telecom centers, photographs (Ex. PW46/A4 to Ex. PW46/A19) of place of occurrence and negatives (Ex. PW46/A20 to Ex. PW46/A35) . PW46 obtained hotel guest register of hotel Satya Palace from malkhana of PS Chandni Chowk vide memo (Ex. PW46/A37), call details report (Ex. PW46/A38) of mobile number of Raj Kumar (deceased) which was received through courier.
31. PW47 HC Sompal MHC(M) placed on record entry number 3282/01 in the register number 19 and other exhibits through separate entry at serial number 3288/01 of register no. 19. PW48 HC Jeet Rao malkhana mohrar placed on record register no. 19 regarding depositing of exhibits pertaining to this case in the malkhana. In cross examination, PW48 admitted that in register no. 19, there was no entry of sending exhibit no. 18 to AIIMS or bringing it back from AIIMS to police station. PW49 Ashok Prasad deputy manager , Operation and Maintenance, deposed that neither he was State vs Mushahid etc. SC No.81 of 2012 26/45 ID No. 02403R0139672004 the Nodal Officer nor was authorized to entertain or provide any kind of request to provide call record details.
32. On conclusion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. Accused persons pleaded innocence and their false implication. Aslam stated that the never met the deceased and he had no business relation with him. Accused Phool Singh stated that his TATA Sumo was falsely involved.
33. I have heard submissions advanced by Sh.WasiUrRehman, Learned Addl. PP for the State as well as Sh. Vikas Jain , Learned Counsel for all the accused persons and have perused the record carefully.
34. Ld. Addl. PP submits that the present case is based on circumstantial evidence and the murder of deceased took place pursuant to conspiracy in order to take the revenge not to return money, which was invested and given by the accused persons. He argued that the criminal conspiracy is hatched secretly and it is not possible to adduce any direct evidence to prove the conspiracy and can be gathered by way of inferences from the given circumstances of the case. He submits that in order to prove the conspiracy, prosecution examined several witnesses i.e. Praveen Chhabra (PW1), Nateshal (PW3) and Vijay Sood PW26 (all PCO owners). They proved the existence of PCO booths which were pointed out by the accused persons pursuant to their disclosure statements. Prosecution examined Om Prakash (PW5), owner of Satya Palace Hotel, Nandu Kumar (PW6), waiter of State vs Mushahid etc. SC No.81 of 2012 27/45 ID No. 02403R0139672004 Satya Palace Hotel, Rakesh Sharma (PW11) Manager of Hotel Rainbow, Ghaziabad, Nathu Singh (PW12) employee of Hotel Pankaj , Muradabad, Yashpal (PW17). PW19 to PW24 and IO were the witnesses to the collection of incriminating evidence. During investigation Raju Goswami @ Raj Kumar (PW2), proved that transaction money between the accused persons and the deceased for doubling or tripling and the relation of Ghanshyam and also proved the stay of accused persons in various hotels. Madan Singh (PW36) owner of Hotel New Jaipur, Patna, Arvind Singh (PW37) owner of Hotel Maharaja, Patna. Sh. Arvind Pandey (PW43), retired Manager from Maharaja Hotel at Patna , Sh. Radharaman (PW45) Manager of Hotel Arya , Patna, proved the visits of accused persons and their meetings in various hotels during the relevant period. Prosecution proved the hand writings of accused Aslam and Ghanshyam in the hotel registers by the expert opinion vide (Ex. PW39/C).
35. Ld. Addl. PP further submits from the deposition of witnesses as a whole, it is very easy to draw an inference of conspiracy committed by the accused persons and that prosecution proved the murder of deceased by the accused persons from the circumstances deposed by Nandu Kumar (PW6) , recovery of Indica Car no. DL 3CW 0358 and the deposition of owner of car Ramesh Kumar (PW7) . There is other circumstance that during committing of murder of deceased, accused Khalid sustained injury on his hand, was brought to Dr. Vinay Kumar Sarkar (PW8), who gave him aid treatment to the accused. State vs Mushahid etc. SC No.81 of 2012 28/45
ID No. 02403R0139672004 Visit and pointing of the clinic of PW8 was proved by Harender (PW9) and Sunil Kumar (PW10) . They deposed that police took accused Aslam and Mushahid at the clinic of Dr. Vinay Kumar Sarkar, which was shifted to some other place in the same locality. Ld. Addl. PP argued that in cases of blind murder like the case in hand, it is impossible to collect any direct evidence and only way to the circumstances before or after the incident.
36. On the other hand, Ld. Defence counsels submits that star witnesses of prosecution have turned hostile on all aspects. It is submitted that the chain of circumstance has not been completed by the prosecution. There is nothing on record to connect the accused persons with the commission of crime and there is not an iota of evidence on record to show that accused persons had entered into any conspiracy or had any meeting of mind for commission of this offence. Ld. Counsel submits that prosecution witness Nandu Kumar (PW5) and Ramesh Kumar (PW7) did not support the prosecution. They were declared hostile by Ld. Addl. PP. The case of prosecution that accused persons stayed at Hotel Satya Palace and made any telephone call from outside Satya Palace, after committing murder of Raj Kumar (deceased). In this regard, prosecution examined PW2, PW3 and PW32. They were also declared hostile and cross examined by Ld. Addl. PP .
37. Ld. Counsel for accused persons further argued that recovery of churi is highly doubtful. Churi was recovered on 22.01.2001 i.e. after about nine days of incident. There is no satisfactory explanation in this regard. There State vs Mushahid etc. SC No.81 of 2012 29/45 ID No. 02403R0139672004 are different version of prosecution witnesses regarding recovery of churi. The sizes of churies are different, recovered from accused Mushahid, Manoj and Aslam. He submits that there is tempering and overwriting in the documents i.e. recovery memo of churi, clothes and pointing out memos. He submits that different ink was used in preparing the memos. Ld. Defence counsel submits that no independent witness was joined by the IO at the time of recording of disclosure statement regarding recovery of churies or at the time of seizure of documents. He submits that Phool Singh's TATA Sumo was involved in this case and there was no witness to this effect . No TIP of accused persons was conducted by the IO. Prosecution did not join any independent witness. He submits that Gupta ji, who was independent witness was not made prosecution witness. No witness was joined ot prove that the recovered clothes were worn by accused persons at the time of commission of offence. Ld.defence counsel submitted that prosecution case has totally failed to prove its case. In support of his submissions, Ld. Defence counsel relied upon Yogesh Vs. State (Delhi) 2011 (I) AD (Crl) DHC 509; Ghanshyam @ Bablu Vs. State 2010 (1) JCC 240; Prem Singh @ Fauzi Vs. State of Delhi 2007(3)JCC 1901; Mahender Kumar Vs. State (Delhi) 2010 (4) JCC 2648; Manpreet Singh & ANR. Vs. State 2004 (1) JCC (1) Delhi; Jodhu and others Vs. State and Others 1969 (5) DLT 68 Delhi ; Parmanand Yadav Vs. State (Delhi) 2010 (2) JCC 1076 and Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra 2008 (1) Crimes 191 Supreme Court.
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ID No. 02403R0139672004
38. Before analyzing factual aspects , it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed . A case may rest squarely on circumstantial evidence but 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. (Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063). Onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The 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 Kali Ram vs State of Himachal Pradesh,AIR 1973 SC 2773, their lordships of hon'ble Supreme Court observed that, golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.
39. Their lordships of hon'ble Supreme Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: State vs Mushahid etc. SC No.81 of 2012 31/45 ID No. 02403R0139672004
(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 definite tendency unerringly pointing towards guilt of the accused;
(iii)the circumstances, 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 the 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.
40. In nutshell, Role alleged against accused persons is that they had invested money with Raj Kumar (deceased) who promised and induced to triplicate the invested money with forged currency notes but later on they all were duped of their amount by Raj Kumar (deceased). Accused alongwith other accused visited Patna number of times and later on conspired with co accused abducted deceased from Hotel Satya Palace Pahar Ganj and committed murdered taking him to Tuglakabad Fort. Accused persons took active part in abducting and committed murder of deceased Raj Kumar. Guest registers of Hotels Regency Hotel Patna, Maharaja Hotel Patna showed entries and name of accused person. Entries were allegedly made in the handwriting of accused Ghanshyam . Accused identified a number of PCO's from where they used to call the deceased. Other circumstances are that the weapon used in crime i.e. "Chhuri" was recovered at their instance from the King Palace State vs Mushahid etc. SC No.81 of 2012 32/45 ID No. 02403R0139672004 Jungle Tuglakabad Fort, Delhi and clothes of accused were recovered at their instance. As per opinion of autopsy surgeon, "chhuri" was connected with the injuries caused to the deceased. The weapon used in crime i.e. Indica Car DL3CW0358 and Tata Sumo were recovered pursuant to disclosure and pointing out and Car was identified in presence of witnesses. Managers, employees of hotel Satya Palace Pahar Ganj, Delhi identified accused during investigation about his role regarding staying in Room No. 208 and 312 on the night of 2/3122001 alongwith other accused person for rackey and execution of their plan. Dr. Binay Sankar went to provide medical help to accused Khalid when he got injured in execution of crime. Ms. Babita wife of deceased identified his voice when he collected the information about Raj Kumar over phone from her. Mobile number 9835058651 belonged to the deceased was disclosed by her. Accused Ghanshyam led to witness Raju Goswami who further led in identification of the deceased. Specimen handwriting of accused matched with the question document writing of guest register seized from different hotels of Patna. Raju Goswamy had stated that he has introduced Ghanshyam to deceased Raj Kumar and later on Ghanshyam stated dealing directly with deceased Raj Kumar. Accused Sanjay and Phool Singh are drivers, who allegedly provided logistic support to accused persons and provided them service of Indica Car and TATA Sumo. Sanjay and Phool Singh drivers drove vehicle in which deceased was kidnapped and they dropped him near the Tuglakabad Fort. On the instruction of accused Mushahid and Aslam State vs Mushahid etc. SC No.81 of 2012 33/45 ID No. 02403R0139672004 @ Anil. Phool Singh made a call to deceased staying in Hotel Satya Palace just to call him at reception of Hotel Satya Palace from a PCO to facilitate other co accused person in kidnapping and in execution of murder.
41. Ramesh Kumar owner of the Indica Car , who appeared as PW7 has not supported the case of prosecution, about the use of Indica Car in the crime of abduction of Raj Kumar (deceased) from hotel Satya Palace. Praveen (PW1) has not supported the prosecution story that a phone call was made from the PCO , Paharganj, near hotel Satya Palace. Nandu Kumar (PW5) waiter of hotel and Om Prakash (PW6) owner of Satya Hotel, have not supported the prosecution story that any of the accused persons stayed at the hotel at the time when Raj Kumar (deceased) stayed in the hotel. Prosecution has failed to establish the fact that any of the accused had stayed along with Raj Kumar (deceased ) at hotel Satya Palace and the fact that thereafter, any of the accused made telephone call from outside hotel Satya Palace.
42. Prosecution story that after committing murder of Raj Kumar (deceased), accused Aslam and accused Mushahid made a telephone call at 100 number from PCO Sangam Vihar has not been proved. PW13 owner of PCR has deposed about making of any call by accused Aslam and accused Mushahid to police on 04.12.2001. PW2 owner of PCO booth at Koria Pul has not supported the case of prosecution that call was made by Afzal and Raj Kumar. PW3 PCO booth owner was also declared hostile and cross examined by Ld. Addl. PP. He has not supported the case of the prosecution. He deposed State vs Mushahid etc. SC No.81 of 2012 34/45 ID No. 02403R0139672004 that police had brought accused Mushahid and Ghanshyam by police for pointing out on his booth. PW32 PCO owner of Om Shiv Telecom has not supported the case of prosecution of making calls by Ghanshyam, Aslam, Mushahid to Raj Kumar for fake currency deal. PW28 has not supported the prosecution story of advancing loan of Rs. 25,000/ by him to accused Afzal for fake currency deal. PW14 formally employed by Reliance mobile deposed that he was neither accompanied by any officer nor he provided any kind of call details.
43. PW17 deposed that he had not seen accused Afzal and he did not gave any receipt of loan of Rs. 25,000/ to Ghanshyam and could not produce any documentary evidence for the same. There is unexplained delay of more than 20 days in seizure of register of Hotel Satya . As per IO, register was seized on 04.02.2002 whereas official from special staff deposed that the same was seized on 13.01.2002. There is delay of about nine months in sending the register of Hotel Satya Place to CDFD, Hyderabad for handwriting expert opinion . Case of the prosecution is that on 09.03.2002, blood sample of Baloo Devi (PW41) was taken at AIIMS and same were sealed and seized by Doctor Sanjeev Lalwani , whereas, Baloo Devi (PW41) deposed in the Court that she was sent outside just after giving the blood sample and no proceedings regarding the sealing of sample were conducted in her presence.
44. Recovery of Churi from accused Manoj, Aslam, Mushahid is highly doubtful. Alleged recovery of knife was made on 22.01.2001, after the State vs Mushahid etc. SC No.81 of 2012 35/45 ID No. 02403R0139672004 delay of about nine days from the arrest of accused. There is no satisfactory explanation in this regard. IO (PW46) testified that he could not go to the place of recovery on 19.01.2001, as he had not sufficient time and due to some reason , he could not go there on 20 and 21.01.2001. Due to same reasons, he could not go for recovery of clothes. Recovery, after delay of nine days in custody makes disclosure statement and recovery highly doubtful . As per prosecution, churies were recovered at the instance of accused Aslam on 22.01.2002 and from accused Manoj on 11.02.2002 but they were sent to doctors of AIIMS for opinion only on 08.03.2002 .
45. Evidence on record shows different versions as regards alleged recovery of knives (churies). As per the seizure memo pertaining to accused Mushahid , churi was recovered from cavity of wall whereas as per statements of Ct. Sukhvinder (PW24) and Ct. Vijay Raj (PW25) churi was recovered after removing of stones. They had not mentioned that churi was recovered from cavity of wall, whereas IO (PW46) deposed that churi was recovered from cavity of wall. He did not mention about removing of stones. As per seizure memo of accused Aslam, churi was recovered from 50 yards South East , after removing 56 stones. Ct. Sukhvinder (PW24) deposed that churi was recovered from 50 meters towards East side after removing 56 stones. Ct. Vijay Raj (PW25) deposed that churi was recovered from 50 yards South East after removing 1516 stones. As per memo pertaining to accused Mushahid , churi was having one hole whereas, khaka of churi prepared by IO, mentioned State vs Mushahid etc. SC No.81 of 2012 36/45 ID No. 02403R0139672004 about three holes and corroborated by doctor. In cross examination, IO (PW46) deposed that two other holes might be screws or their signs which clearly shows that IO himself was not sure about the description of churi. As per memo pertaining to accused Manoj, churi was having one hole whereas, khaka of churi prepared by IO, mentioned about one hole and as per doctor there was no hole on the churi. In cross examination, IO (PW46) deposed that there was no hole in churi but only dent was there. In sketch of churi pertaining to accused Mushahid, IO mentioned the length of blade as 7.1 inch whereas, doctor mentioned the length of blade as 7.2 inch. In sketch of churi pertaining to accused Manoj, IO mentioned the length of blade 15.2 cms whereas, doctor mentioned the length of blade as 14.5cms. In sketch of churi pertaining to accused Aslam , IO mentioned the length of blade 5.7 inch whereas, doctor mentioned the length of blade as 5.8 inch .
46. There is tampering and over writing in the recovery memos of churi, clothes and pointing outs . In cross examination IO (PW46) admitted regarding tampering and overwriting in the documents. He could not give any plausible explanation for the same. It is a matter of record that different ink was used in preparing pointing out memo of Indica Car allegedly recovered by accused Aslam. Disclosure statement dated 19.01.2002 of Aslam is also with different ink. In recovery memos of churi and clothes of Aslam, name of witness and their signatures are with different ink.
State vs Mushahid etc. SC No.81 of 2012 37/45
ID No. 02403R0139672004
47. As per the case of prosecution that on 02.12.2001, accused Ghanshyam made a call on the mobile of Babita wife of Raj Kumar (deceased) on reliance phone number 9835058651. IO placed on record only the call details record to prove the same. No certificate u/s 65B of Indian Evidence Act is placed on record. No person from the mobile phone company proved the call detail record, placed on record. In cross examination, IO deposed that he received the telephone details by courier on 21.03.2002. IO deposed that he made no inquiry about phone no. 0112193895 , which was a frequent number on Raj Kumar (deceased's) mobile , as he did not find it relevant. Ashok Prasad (PW49) did not support the prosecution story regarding call details. IO did not prepare the seizure memo of call detail record. Prosecution placed on record duplicate computerized bill of Hotel Anand Regency (Patna) in the name of Ghanshyam marked A4. Duplicate computerize bill does not bear the signature of any person including Ghanshyam. IO has not produced any original record whereas is admitted by him in his cross examination dated 31.01.2011. In cross examination IO admitted that at the time of seizure of document outstations, he had not joined any officials of the local police station. He did not reported any seizure of documents, case property to officials of the local police station or the Ilaka Magistrate , regarding the seizure made out outstation of Delhi.
48. IO (PW46) admitted that no independent witness was joined in the investigation at the time of recording of disclosure statement regarding State vs Mushahid etc. SC No.81 of 2012 38/45 ID No. 02403R0139672004 recovery of churies or seizure of documents. PW46 deposed that interrogation of accused Aslam and Mushahid was conducted on 17.01.2002 outside the Court room of MM but no Naib Court or any other available court staff was joined as a witness. PW46 testified that house of accused Manoj was in thickly populated area. Neither land lady nor any independent witness was joined in the investigation. Dr. Vinay Sarkar (PW8) was introduced as witness by the prosecution , with unexplained delay of three days, when the whole story was in open after making disclosure statement to the police.
49. There is no mention of any Chandni Dawakhana and Dr. Vinay Sarkar, in the disclosure statement of accused Aslam and Mushahid . Police introduced Harbans Lal (PW2), for the purpose of proving the talks between Ghanshyam and Babita on 02.12.2001. In his statement U/s 161 Cr. P.C. Harbans Lal stated that on 02.12.2001, Ghanshyam and Afjal called at Babita's mobile from his PCO Jagdamba telecom center. When police found that there was a call on mobile of Babita on 02.12.2001 from Delhi Phone No. 386744 then it appears that police introduced Vijay Sood (PW26) to prove the prosecution story of talks between Ghanshyam and Babita on 02.12.2001. IO, in cross examination stated that he had not obtained any document from Vijay Sood (PW26 ) regarding the ownership of Phone No. 386744 and not obtained any document regarding working condition of Phone No. 386744 on 2/12/01 and not obtained call details from Vijay Sood (PW26) and MTNL. Despite availability of documentary record, there is no documentary evidence of State vs Mushahid etc. SC No.81 of 2012 39/45 ID No. 02403R0139672004 telephone bill to prove that Vijay Sood (PW26) was the owner of Phone No. 386744 or Phone No. 386744 belonged to him in any way. Police introduced Babita (PW4) wife of Raj Kumar (deceased) for the purpose of proving talks between Ghanshyam and Babita on 2/12/01 vide her statement U/s 161 Cr. P.C. and that too was recorded very much later after recording of the disclosure of the accused persons. No mention of this fact that Ghanshyam called finds mentioned in missing report D.D. No. 10. In cross examination, Raju Goswamy (PW 42) deposed that Babita was a cheat and gang was mostly run by Babita, who was having relationship with Shiv Pujan, the nephew of the deceased Raj Kumar.
50. Prosecution witness did not earlier know accused but in their statements gave name of accused is highly doubtful. Dr. Vinay Sarkar (PW8) never knew accused 'Khalid', but gave the name of patient he treated as 'Khalid' in Fard Nishhandehi of Chandni Dawakhana of Aslam dated 22.01.2002. Dr. Vinay Sarkar (PW8) in cross examination deposed that he did not know accused earlier and there was no record relating to treatment of Khalid and he could not tell the name of the patients treated on 4/12/01. In cross examination, IO deposed that no document was produced by Dr. Vinay Sarkar regarding treatment of Khalid nor any such record was seized by him on 22.01.2002. Harinder (PW9) stated that initially doctor had not identified the accused but later on stated that he had treated one such accused. How could doctor state that he had treated one such accused, when Khalid was not State vs Mushahid etc. SC No.81 of 2012 40/45 ID No. 02403R0139672004 present there at that time. In a case reported as "Rakesh vs State 2010 (2) JCC 1529", it was held that witness never knew accused before but gave statement by name of accused, statement of witness was held doubtful. In disclosure statement, Phoolsingh stated that Tata Sumo was used for travel by accused persons while planning but there is no witness to this effect and there is no mention of the same in evidence of I.O. No seizure memo and recovery memo of Tata Sumo were prepared. There is no clarification by the prosecution that, if the Tata Sumo was available with the accused persons then why did they hire a small Indica car to carry 9 persons (including eight accused and a victim). Furthermore, TIP of accused Aslam was not conducted. In cross examination, IO deposed that he made no efforts for conducing TIP of accused Aslam by Dr. Vinay Sarkar. Even the TIP of Mushahid and Manoj was not conducted by staff of hotel Satya Place. Neither TIP of any accused by the hotel staff of any of the hotels, where accused persons used to allegedly reside or by any official from the Telecome Center Operators, where accused persons used to visit for making calls were got conducted. In a case reported as "Dhan Bahadur and anr. vs State (Delhi 2008 (2) LRC 262 (Delhi)", it was held that identification of accused first time in the Court by the witness not knowing him before would be valueless in absence of a prior TIP.
51. As per case of prosecution, one Kallu visited Patna on 24.11.2001 with Ghanshyam and Afjal. He was not examined by the prosecution. In cross examination, IO admitted that he enquired from Kallu State vs Mushahid etc. SC No.81 of 2012 41/45 ID No. 02403R0139672004 but not made him a witness. There is no explanation for this. Guptaji, who was allegedly an independent witness and was mentioned in the charge sheet was not made witness. In cross examination, IO deposed that he did not remember if he made any investigation Guptaji. Raju Goswamy (PW42), in cross examination deposed that accused Sarfarj stayed in hotel Satya Place till morning of 05.12.2001. He deposed that he accompanied with police to the residence of Sarfaraj at Khajuri and met them. In cross examination, IO deposed that Raju could not give full particulars of Sarfarj, so he could not made efforts to search him. Raju Goswamy (PW42) deposed that Khan, Sarfarj, Manjur Alam, Shiv Poojan, Shamim , Shahadat, Farooq Ansari were present in a meeting at hotel Satya Place. No clue was found about any of the persons , who were last seen with Raj Kumar (deceased). In cross examination, IO deposed that all these persons stayed with Raj Kumar (deceased) at different hotels and they were friends of Raj Kumar, so they were not suspect. IO made not verification of their addresses. In the charge sheet, it was noted that on 01.12.2001, accused Farooq Ansari reached at hotel Satya Place with Raj Kumar (deceased) . Inspector Vinay Malik (PW4) deposed that accused Farooq Ansari left hotel Satya Place at 10:00am on 04.12.2001. In cross examination, he stated that no investigation was conducted whether Raj Kumar (deceased) was staying in Hotel Satya Place alone or with some one. IO was not sure, who was staying at the hotel. IO testified that he made enquiry from the owner and staff of hotel Satya Place, State vs Mushahid etc. SC No.81 of 2012 42/45 ID No. 02403R0139672004 who stayed with Raj Kumar (deceased) . IO was not able to find and show that he made any find such enquiry from case diary. IO deposed that he came to know from SI Vinay Malik (PW40) and Sh. Subhash Sharma, owner of hotel that Babita took belongings of Raj Kumar (deceased) when the missing complaint was lodged, where as, Inspector Vinay Malik (PW40) deposed that there were no goods or articles of Raj Kumar in the clock room . There was no mention of taking the belongings of Raj Kumar by his wife Babita though, she came with Shiv Poojan and Roshan to the police Post. IO did not make any enquiry from Shiv Poojan and Roshan. Babita in her statement recorded u/s 161 Cr. P. C, stated that Raju told her on telephone about missing of her husband Raj Kumar.
52. Neither there is, any entry of sending of churi allegedly recovered from accused Manoj to the doctors of AIIMS for seeking opinion nor is there any entry of receiving it back in malkhana from AIIMS. There is no entry regarding sending of churri stated to be recovered from accused Manoj to CDFD, Hyderabad. In cross examination, HC Jeet Ram (PW48) had deposed that no entry of sending of churi allegedly recovered from accused Manoj to Doctors of AIIMS. He deposed that no entry of receiving it back in malkhana from AIIMS. There is no entry of deposit of seal of IO in malkhana by HC Kulbir (PW30) which indicates that seal either remained with IO or with police officials and manipulation and tampering of documents could not be ruled out. Seizure memo of churi recovered from accused Mushahid notes State vs Mushahid etc. SC No.81 of 2012 43/45 ID No. 02403R0139672004 that seal after use was not handed over to anyone, whereas as per seizure memo of churi recovered from accused Aslam, it was mentioned that seal after use was handed over to HC Vijay Raj (PW25) but he did not depose anything regarding this fact. As per seizure memo of churi and clothes recovered from accused Manoj, seal after use was handed over to ASI Megh Raj but in cross examination, PW HC Jeet Ram (PW48) testified that seal of IO was not deposited by HC Vijay Raj (PW25), ASI Megh Raj (PW19) and HC Kulbir (PW30) in malkhana. As per seizure memo of sample of blood which were sealed with the seal of KCK at the spot by the IO, seal was handed over to HC Kulbir but HC Sarpal (PW47) in cross examination, clearly stated that HC Kulbir (PW30) never deposited the seal of IO in the malkhana. In cross examination, IO testified that he deposited the sample seal alongwith case property in the malkhana. In cross examination HC Sarpal (PW47) , stated that IO did not deposit the sample seal alongwith the case property in the malkhana. There is no entry regarding depositing of sample seal alongwith the case property in the malkhana register.
53. In Safiullah vs State 1993 JCC 33 , it was held that when seal was not handed over to independent witness after use and seal was not deposited in malkhana with case property and seal after use was kept by the police officials themselves, possibility of tampering with the contents of the sealed parcels cannot be ruled out. Prosecution has not produced any witness to prove that the recovered monkey cap or clothes were actually worn by accused State vs Mushahid etc. SC No.81 of 2012 44/45 ID No. 02403R0139672004 persons at the time of committing crime.
54. It is obligatory for the Court to ensure that prosecution has come up before the Court with the whole and unvarnished truth. Most of the important witnesses have not supported prosecution case. Recovery of knives at the instance of accused, is highly doubtful. Alleged circumstances have not been cogently established and commutatively do not form a chain leading to inescapable conclusion that accused persons committed the offence in question and benefit of doubt always goes in favour of accused. On appreciation of the evidence discussed above as a whole, this Court finds that prosecution has failed to establish the charges against the accused beyond reasonable doubt and accused are entitled to benefit of doubt. In the result, accused persons, namely, Mushahid , Aslam, Afzal, Ghanshyam, Manoj, Phool Singh and Sanjay are hereby acquitted from the charges. Accused persons shall furnish requisite bonds under section 437A Cr. P. C. File be consigned to record room.
announced in the
open Court (VINAY KUMAR KHANNA)
07th December , 2012 Additional Sessions Judge04
(SouthEast) Saket/New Delhi
State vs Mushahid etc. SC No.81 of 2012 45/45