Delhi District Court
Mohd. Hassan @ Sufi S/O Sher Ali vs . on 4 July, 2011
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGECUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 146/09
Unique Case ID No. 02402R0349482009
State
Vs.
1. Mohd. Hassan @ Sufi S/o Sher Ali, R/o 1B, PocketA, New Zafrabad,
Delhi.
2. Rahmat @ Pasa S/o Hasmat Khan, R/o Vill. Sihali Jagir, PS Hasanpur,
Distt. JP Nagar, U.P.
3. Akram @ Kana S/o Jinda Hassan, R/o C45/2, Chauhan Bangar,
Seelampur, Delhi.
FIR No. 202/09
PS Khajuri Khas
U/s 365/302/201/34 IPC.
Date of Institution : 14.12.09
Date of Reserving the Judgement : 28.05.2011
Date of Pronouncement : 04.06.2011
J U D G E M E N T : Prosecution case emanates from the fact that on 03.08.2009 at about 6.20 pm, SI Sanjeev Kumar, informed Duty Officer, PS Khajuri Khas through telephone that on 01.08.2009 vide DD no.16, accused Akram @ Kana was arrested u/sec. 41.1 CrPC, who made disclosure statement that he S.C. No. 146/09 Page 1/30 2 alongwith his associates namely Mohd. Hasan @ Sufi and Rehmat @ Pasa murdered Parmod @ Papaiya in the 2nd or 3rd week of February, 2006, after taking him from the area of PS Khajuri Khas to Bugrasi, Distt. Bulandseher and that Akram @ Kana will be produced before the Duty MM, Karkardooma Courts, Delhi. On this basis of this information, DD no.24A was recorded and same was marked to Inspector Vijay Bhushan, who made inquiries and it was revealed that on 18.02.2006, one lady namely Manju w/o Pramod had lodged missing report of her husband with various authorities. Manju was contacted and on 04.08.2009, she made statement that in month of February, 2006, she alongwith her husband and two children was residing as tenant at Mukund Vihar near Toll Tax, Khajuri Pusta. In the month of February, 2006 at about 11 am, Rehmat, who was known to her husband, made a telephone call. Manju received that call and handed over the phone to her husband by stating that Rehmat was calling. After hearing the telephone call, her husband informed her that he has to meet some Advocate and there is a deal regarding some property. Immediately, her husband left the house. Thereafter, she sustained burn injuries on her finger while cooking food, therefore, she called her husband back to the house. Her husband came after 15 minutes. However, at about 1.30pm, Rehmat again rang up and informed her husband that they were present at Pusta in a car and he should come immediately. Her husband left the house by stating that he will come by evening. However, he did not return back. Then she rang up on his phone bearing no. S.C. No. 146/09 Page 2/30
3 9911059642, but he could not be contacted as phone was out of coverage area. Again she tried but could not contact him. Ultimately, she went to sleep and on next day at about 8 am, she went to the house of Nadeem, who was a friend of her husband and Rehmat. Since she was not aware about the house of Rehmat, she asked Nadeem to trace the whereabouts of Parmod and Nadeem went to the house of Rehmat and returned back after ½ hour and informed that Rehmat was sleeping at his house and he further disclosed that Pramod was arrested by the Police at Pusta. Since her husband was involved in 5/6 cases from PS Gokul Puri and Bhajan Pura, therefore, she believe his version. In the meantime, she received a telephone call from Rehmat, who informed that she should wait for two days and thereafter, they will move an application and police will produce Pramod in the court. On 18.02.2006 Rehmat got an application prepared from Advocate against police officials of PS Gokul Puri and also sent a complainant to Police Commissioner and Lt. Governor of Delhi. Thereafter, Rehmat did not meet her but kept on misguiding her on telephone by saying that Pramod is lodged in Nasik Jail and sometimes used to say that he has died in Jail. On 31.07.2009, at about 10pm, she came to know from the Crime Branch, R. K. Puram that on 15, February, 2006, her husband Pramod has been murdered by Rehmat and his associates Akram and Mohd. Hasan @ Sufi and that they have tried to destroy the evidence also. As such, she prayed for action against them. On the basis of this statement, case u/sec. 302/201/34 IPC was registered. Smt. Manju made S.C. No. 146/09 Page 3/30 4 supplementary statement and gave specific identification mark on the body of her husband and also disclosed about the wearing apparels of her husband, when he had left the house. On 17.08.2009, Inspector Vijay Bhushan collected the relevant documents from SI Sanjeev Kumar and on the same day he formally arrested accused Akram @ Kana, who made disclosure statement and his two days police custody was obtained. He led the police party to the place of incident, where they committed murder of Pramod and threw his dead body. Thereafter, in order to ascertain the correctness of statement, inquiry was made from PS Narsena, where FIR no.1219/06 u/sec. 302/201 IPC was found registered. From the specific identification marks as mentioned in the post mortem report, it was revealed that the same tally with the description given by Smt. Manju and that the dead body of that unknown person was of Pramod only. Thereafter the photograph of dead body was shown to Smt. Manju and his nephew Amit, who also identified the photograph to be that of Pramod. Therefore, it became clear that Pramod was taken from his house at Mukund Vihar, Delhi to Bugrasi, where he was murdered by by firing bullet on his head. During the course of investigation, other accused Mohd. Hasan and Rehmat were arrested and on the pointing out of accused Rehmat @ Passa, one ring and chain belonging to deceased were recovered and test identification parade of same was got done. Accused Mohd. Hasan disclosed regarding the car being used by them. However, he did not remember the number of car and same was lifted by private S.C. No. 146/09 Page 4/30 5 financer ( unknown ). Rehmat and Mohd. Hasan are relatives. Rehmat disclosed that while returning back the weapon of offence was thrown by them in the 'Nehar', which despite efforts could not be recovered. Scaled site plan of the incident was got prepared. Documents pertaining to case registered at PS Narsena were obtained. After completion of investigation charge sheet u/sec. 365/302/201/34 IPC was submitted.
2. Charge for offences punishable under sections 365/302/201 read with section 34 IPC was framed against all the three accused persons, besides a separate charge for offence punishable under section 411 IPC was framed against accused Rehmat @ Passa, to which charges they pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Amit (PW1), Constable Rajeshwar Parsad (PW2), Dr. Rajesh Kumar (PW3), SI Sanjeev Kumar (PW4), Constable Kuldeep Singh (PW5), HC Ram Swaroop (PW6), Smt. Manju (PW7), Rab Nawaz (PW8), Ali Hassan (PW9), HC Dhir Singh (PW10), Constable Ram Kishan (PW11), SI Mukesh Jain (PW12), SI Rakesh Kumar (PW13), Constable Mahender Singh (PW14), Inspector Rishi Pal (PW15), Sh. V.K. Gautam (PW16), Constable Sudhir (PW17), Women ASI Sunita (PW18), Inspector Vijay Bhushan (PW19) and SI Arvind Kumar (PW20) in the case.
4. Amit (PW1) identified photograph of deceased Pramod Kumar, who S.C. No. 146/09 Page 5/30 6 was his mausa.
Constable Rajeshwar Parsad (PW2) recorded FIR No.13/06 on the basis of complaint made by Ali Hassan. He proved the FIR as Ex.PW2/A. Dr. Rajesh Kumar (PW3) prepared postmortem report No.90/2006 on an unknown dead body and proved the same as Ex.PW3/A. SI Sanjeev Kumar (PW4) unfolded facts pertaining to arrest of accused Akram @ Kana.
Constable Kuldeep Singh (PW5) had taken accused Rehmat to Jag Parvesh Chandra Hospital for medical examination.
HC Ram Swaroop (PW6) deposed that SI Sanjeev Kumar recorded disclosure statement of accused Akram @ Kana, which bears his signatures at point A. Smt. Manju (PW7) is the complainant of case.
Rab Nawaz (PW8) turned hostile and did not support the case of prosecution.
Ali Hassan (PW9) Ali Hassan had also stepped into shoes of Rab Nawaz and turned hostile.
HC Dhir Singh (PW10) unfolded facts pertaining to arrest of accused Akram on an informant's tip.
Constable Ram Kishan (PW11) deposed about arrest of accused Mohd. Hassan and Rehmat, their medical examination and taking them on S.C. No. 146/09 Page 6/30 7 PC remand.
SI Mukesh Jain (PW12) prepared scaled site plan of the spot and proved the same as Ex.PW12/A. SI Rakesh Kumar (PW13) joined investigation of the case on 17.08.09 with Inspector Vijay Bhushan and Constable Sudhir. He deposed those very investigative steps, which took place in his presence.
Constable Mahender Singh (PW14) unfolded facts pertaining to finding of a dead body lying in the Mango Garden of Ali Hassan on the side of the road. Thereafter, on the statement of Ali Hassan, FIR No. 13/2006 was recorded and later on postmortem on the dead body was also got conducted. A sealed pullanda having belongings of dead body and relevant papers was also prepared and handed over to them by the doctor concerned.
Inspector Rishi Pal (PW15) was handed over investigation of the case on 01.10.09. He submitted relevant documents and scaled site plan before this Hon'ble Court vide his application Ex.PW15/A. Sh. V.K. Gautam (PW16), ld. ACJ, conducted TIP proceedings of the case property. He proved the same as Ex.PW16/A. Constable Sudhir (PW17) joined investigation of the case on 17.08.09. He took accused Akram @ Kana to hospital from lock up for his medical examination. He detailed those investigative steps, which took S.C. No. 146/09 Page 7/30 8 place in his presence.
Women ASI Sunita (PW18) recorded FIR No. 202/09 and proved copy of the same as Ex.PW18/A. Inspector Vijay Bhushan (PW19) conducted investigation of the case, when DD No. 27A Ex.PW19/A was assigned to him. He detailed all the investigative steps taken by him during the course of investigation.
SI Arvind Kumar (PW20) deposed that one Ali Hassan reported that one dead body was lying on the road near the corner of his garden. On the said information one FIR No. 12/19/06 was registered u/s 302/201 IPC against unknown person. On this information, he along with Nahar Singh went to the spot and prepared site plan Ex.PW20/A at the instance of Ali Hassan. He recorded statement of Ali Hassan. Thereafter, he got prepared inquest paper through SI Nahar Singh and the dead body was handed over to Constable Ajit and Constable Mahender for sending the same to Mortuary Bulandsher. He proved inquest papers as Ex.PW20/B, besides documents prepared by Inspector Mukat Singh as Ex.PW20/C.
5. In order to afford an opportunity to explain circumstances appearing in evidence against the accused persons, they were examined under section 313 Cr.P.C. They had denied all the allegations levelled against them. Their case has been of denial simpliciter. They claimed themselves to be innocent. However, they opted not to lead any evidence in their S.C. No. 146/09 Page 8/30 9 defence.
6. I have heard Sh. Ravinder Khandelwal, ld. Prosecutor for the State and Sh. N.S. Raghav, Advocate for the accused and have perused the record.
7. It is submitted by ld. counsel for the accused that present case is based on circumstantial evidence and prosecution has failed to complete the link in the chain of the circumstantial evidence, inasmuch as, there is no motive to commit the crime. Accused Akram is alleged to have been arrested by police on 01.08.09 and thereafter as per case of the prosecution he made disclosure statement and after he was arrested by local police on 17.08.09 he took police party to village Basi Bangar and then pointed pout the place of incident where the dead body was thrown. It wa submitted that this pointing out memo is not duly proved, inasmuch as, public witnesses have not supported the case of the prosecution. As regards accused Mohd. Hassan and Rehmat, case of the prosecution is that in pursuance to the disclosure statement made by the accused Akram these two accused persons were arrested, they made disclosure statement and then at the instance of the accused Rehmat, one ring and chain were recovered from the house of Mohd. Hassan. However, it was submitted that this recovery is not proved, inasmuch as, the complainant has stated in her statement that chain and ring were given by her to the S.C. No. 146/09 Page 9/30 10 police officials on their asking that it will be required in future. As such it was submitted that chain and ring were planted upon the accused in order to implicate them in this case. There is no other incriminating piece of evidence against the accused persons. As such it was submitted that they are entitled to be acquitted. Reliance was also placed on a number of authorities.
8. On the other hand, it was submitted by ld. Prosecutor that even if the independent witnesses did not support the case of the prosecution, there is no reason to disbelieve the testimony of police officials from which case of the prosecution is amply proved. As such accused are liable to be convicted of the offence alleged against them.
9. It is well settled that when a case rests upon circumstantial evidence, the circumstances must be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In Hanumant Govind Nargundkar & Anrs. Vs. State of MP, AIR 1952 SC 343, the hon'ble Supreme Court held that 1) once the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is S.C. No. 146/09 Page 10/30 11 guilty; 3) the circumstances should be of a conclusive nature and tendency; 4) they should exclude every possibility except the one to be proved; and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
This view is reiterated in several judgements. Reference may be made to Mahmood Vs. State of UP (1976) 1 SCC 542; Gambhir Vs. State of Maharashtra, (1982) 2 SCC 351; Henry Westroller Roberts Vs. State of Assam, (1985) 3 SCC 291; Ashok Kumar Chatterjee Vs. State of M.P. 1989 Supp (1) SCC 560; Kishore Chand Vs. State of HP (1991) 1 SCC 286; Trimukh Maroti Kirkam vs. State of Maharastra, (2006) 10 SCC 681; Satni Bai vs. State of MP 2010 (1) JCC 290; (2010) 2 SCC 646, Brijpal @ Birju vs. State 2011 [2] JCC 985, Shakuntala vs. State 2011 [2] JCC 1001
10. In view these authoritative pronouncement while evaluating circumstantial evidence court has to adopt very cautious approach and has to see if links in the chain are completely pointing out to the guilt and every hypothesis of innocence is capable of being negated on evidence. Great care has to be taken in evaluating circumstantial evidence and if evidence relied on is reasonably capable of two inferences, the one in S.C. No. 146/09 Page 11/30 12 favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. The court must be satisfied of a. That the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt.
b. That the circumstance are of a determinative tendency unerringly pointing towards the guilt of the accused, and c. That the circumstances, taken collectively, are incapable of explanation on any reasonable hypotheses save that of the guilt sought to be proved against him.
11. This being the legal position, let us turn to the case in hand.
12. As per prosecution case about four or five years ago, PW9 Ali Hassan found one dead body lying in front of his Mango Garden at Chandiyanewala road. As such he informed regarding the dead body to village pradhan Nathu, who informed police station Narsena. On the basis of complaint made by Sh. Ali Hassan, PW2 Constable Rajeshwar Prasad, who was posted at chowki Bughrasi, Thana Narsena, Distt. Bulandshehar, U.P. on 16.02.06 and was working as DD writer, recorded FIR No. 13/06 Ex.PW2/A. After FIR was registered at PS Narsena, PW14 Constable S.C. No. 146/09 Page 12/30 13 Mahender Singh along with SI Nahar Singh and Constable Ajeet Singh went to the Mango Garden of Ali Hassan situated at Basi Bangar, where they found one dead body lying there, and there were injuries marks on the head of the dead body and many persons were present there. Dead body was shown to the person, who was present over there, but the same could not be identified. SI Nahar Singh prepared Panchnama. After sealing the dead body, the same was handed over to him and Constable Ajeet Singh and they took the dead body to mortuary Bulandshehar. SI Arvind Kumar of PS Ramraj, Distt. Muzaffar Nagar was handed over investigation of the case. He went to spot, prepared site plan Ex.PW20/A and tried to get the dead body identified. He got prepared inquest papers through SI Nahar Singh. Postmortem on the dead body was conducted by PW3 Dr. Rajesh Kumar, who gave his report Ex.PW3/A.
13. On 01.08.09 SI Sanjeev Kumar of Anti Extortion Cell, Crime Branch, R.K. Puram, Delhi, along with HC Jitender, HC Dheer Singh, Constable Lalit and Constable Chitranjan were present in the area of Preet Vihar. At about 12 noon, a secret information was received that one wanted accused, namely, Akram @ Kana who was involved in case FIR No. 297/08 at PS Seelampur, had been seen in the area of Karkardooma Courts, and he would come to near Karkardooma Courts to meet one of his friends. Thereafter, he along with police officials and secret informer S.C. No. 146/09 Page 13/30 14 came near Karkardooma Courts. At about 1.30pm, on the pointing out of the secret informer one person, who was coming out from main gate, Karkardooma Courts, was overpowered and on interrogation his name was revealed as Akram @ Kana. He disclosed about his involvement in case FIR No. 297/08 and also made disclosure statement regarding many other criminal cases. As such he was arrested by him and on the next day he was produced before the concerned Court. Information was given tothe concerned police station.
14. According to PW19 Inspector Vijay Bhushan, on receipt of DD No. 27A Ex.PW19/A, which was marked to him and was regarding receipt of information on telephone from Anti Extortion Cell, Crime Branch, that one Akram @ Kana had been arrested by them u/s 41.1 Cr.P.C and he had made disclosure statement regarding murder of one Pramod @ Paya by him along with his associates, namely, Mohd. Hassan @ Sufi and Rehmat @ pasa in the second or third week of february, 2006 near village Bugrasi. Manju wife of Pramod had lodged many complaints to various agencies regarding missing of her husband Pramod. He called Manju at PS Khajuri Khas and recorded her statement Ex.PW7/A, wherein she stated that in February, 2006 she along with her husband and children was residing at Mukund Vihar near Toll Tax, Khajuri Post. On 15.02.06 at about 11am, a telephone call from Rehmat was received, who was known to her S.C. No. 146/09 Page 14/30 15 husband. She heard the telephone call and thereafter gave the telephone to her husband. After hearing the telephone, her husband told her that he is going to meet some advocate and there is a property dealing. Immediately her husband left the house. After he left, while cooking food her finger got burnt. As such she called back her husband, who returned within 15 minutes. However, at about 1.30pm again Rehmat made a telephone call and asked her husband that he was standing at pusta with vehicle. He should come immediately. Her husband left the house by telling the he will return back in evening. However, when he did not return back in evening, then she made a telephone call at his mobile phone No. 9911059642, but the phone was out of coverage area. She again tried to contact him at about 10pm, but he could not be contacted. Thereafter, she went to sleep. Since she was not aware about address of Rehmat, on next morning at about 8am, she sent to the house of Nadeem at Usmanpur, who was friend of her husband as well as of Rehmat and asked him to inquire about whereabouts of her husband. Nadeem went to Zafrabad at the house of Rehmat. She remained stayed at the house of Nadeem. After about half an hour, Nadeem came and informed her that Rehmat was sleeping at the house and informed that police had apprehended Pramod. She believed his version as her husband was involved in five or six cases from PS Usmanpur and PS Bhajanpura. At S.C. No. 146/09 Page 15/30 16 that time, Nadeem received a telephone call from Rehmat and Rehmat talked to her and told her that she can wait for two days and thereafter application would be moved and then Pramod will be produced in the Court. On 08.02.06, Rehmat got prepared an application from an advocate and filed complaint against police officials at PS Gokalpuri, to Lt. Governor, Delhi and Police Commissioner. She did not lodged any missing report in PS Khajuri Khas. After her husband went missing, Rehmat did not meet her. But he kept on misguiding her sometime by saying that Pramod is in Nasik Jail and sometime that he has died due to illness. On 31.07.09 at about 10pm, she had received information from Crime Branch, R.K. Puram, Delhi, that her husband has been murdered by Rehmat and his associate Akram and Mohd. Hassan @ Sufi and they have tried to remove the evidence. She prayed for action. On the basis of this statement, FIR Ex.PW18/A was got registered. Thereafter Inspector Vijay bhushan collected relevant documents and moved an application on 11.08.09 for issuance of production warrants of accused Akram @ Kana. Thereafter, on 17.08.09 Akram @ Kana was produced before the Court. With the permission of the Court, he interrogated him and formally arrested him vide memo Ex.PW13/A and took his personal search vide memo Ex.PW13/B. He recorded his disclosure statement Ex.PW13/C. Accused again made another disclosure statement Ex.PW13/D by stating S.C. No. 146/09 Page 16/30 17 that earlier he had disclosed some wrong facts and in disclosure statement Ex.PW13/D, he disclosed that he could point out the place where he along with his associate Mohd. Hassan @ Sufi and Rehmat had murdered Pramod @ Paya. On 18.08.09, he along with SI Rakesh, Constable Sushil and constable Kuldeep went along with accused to village Basi Bangar, PS Narsena and accused pointed the place where he along with his associate had thrown the dead body of Pramod @ Paya. According to him, in the Garden, Ali Hassan, Pradhan of village Basi Banger, met them and informed that in the month of February, 2006 one dead body was found at the aforesaid place and the same was naked, and that they had informed concerned police station. Thereafter, he went to police post Burgasi and on inquiry came to know that on 16.02.06 one dead body was found at the aforesaid place, on which FIR No.12/19/06 under section 302/201 IPC was registered. He collected copy of FIR and also obtained one coloured photograph of the dead body and went back to the same place. Photograph of the dead body was shown to Ali Hassan and Rab Nawaj, who identified the dead body through its photograph, which was found in the month of February, 2006 in front of Garden of Ali Hassan. Accused also identified the dead body of Pramod and pointing out memo Ex.PW8/PX2 was prepared at the instance of accused Akram @ Kana. He also prepared site plan at the instance of Ali Hassan S.C. No. 146/09 Page 17/30 18 Ex.PW8/PX3. After returning back to Delhi, he went to the house of complainant Manju, where complainant Manju and her nephew Amit Kumar met them and they identified dead body shown in the photograph to be of Pramod @ Paya. Thereafter on 24.08.09 an application was moved for production of accused Rehmat @ Pasa and Mohd. hassan @ Sufi, which were in JC in case FIR No. 297/08, PS Seelampur. After accused were pdocued in the Court, they were formally arrested. On 03.09.09, after interrogation accused made disclosure statement Ex.PW5/PX1 and Ex.PW5/PX2. Accused Rehmat @ Pasa disclosed that after murdering Pramod, they had taken one ring from the dead body and that ring was with him and chain was handed over to him by Mohd. Hassan and both articles are lying in the box of Mohd. Hassan @ Sufi and he can got recovered the same from the house. In pursuance to disclosure statement, accused Rehmat @ Pasa took police party to first floor of H.No. 1B, DDA Flats, New Zafrabad, Delhi, and took out one bag from the bed. From the bag he took out a chain along with pendant and one wring and stated that these are the same ring, chain and pendant, which belong to Pramod @ Paya and was taken by them after his murder. TIP of the chain and ring was got conducted by Sh. V.K. Gautam, then ld. Metropolitan Magistrate, wherein same were identified by the complainant in TIP proceedings.
S.C. No. 146/09 Page 18/30
19
15. As such the circumstances relied upon by the prosecution basically consists of :
(i) The complaint made by Manju, wife of deceased, raising her suspicion upon Rehmat.
(ii) Arrest of Akram and his pointing out the place of incident from where the dead body was recovered.
(iii) Recovery of ring and chain belonging to deceased at the instance of accused Rehmat from the house of Mohd. Hassan.
16. I shall deal with each of the circumstances one by one.
17. The best person to prove about the contents of the complaint is the complainant herself. This witness has unfolded that in the year, 2006, she along with her husband and two children used to reside as tenant at Mukund Vihar, Khajuri Khas. On 15.02.06 at about 11.30am, her husband received one phone call on his mobile phone and thereafter he told her that he has to go for some work with regard to the property dealing and then he left the room. After 15 minutes when she was boiling milk for her child, her hand got burnt. She called her husband from a nearby STD booth. Her husband came back within 15 minutes. He took her to a nearby doctor and after taking medicines, they returned back to the house. At about 1.30pm, her husband received phone call on his mobile phone. After attending the phone call, he left the room by saying that he had to go S.C. No. 146/09 Page 19/30 20 for some urgent work and would return in evening. She waited for her husband, but he did not come during night. She tried to contact him on his mobile, but call could not be materialized. On the next morning, at about 8am, she sent to the house of one Nadeem, friend of her husband, who used to reside in the area of New Usmanpur and requested him to help her in searching her husband. Two or four theft cases were lodged against her husband at previous occasions and he was wanted by police. She and Nadeem apprehended that her husband has been lifted by police officials. She made complaint at PS Gokalpuri, Commissioner of Police, Lt. Governor Delhi, but whereabouts of her husband could not be traced. She further deposed that on 31.07.09 at about 10.30pm two police officials from Crime Branch, came to her house and told her that her husband has been murdered. She was directed by them to reach PS Khajuri Khas. She went there where her signatures were obtained on blank paper. She identified her signatures at point 'A' on Ex.PW7/A. She further deposed that police officials had shown her photograph of the dead body of her husband and she had identified the photograph of dead body of her husband. She noticed in the photograph that neck of her husband was bent towards one side and on the one side of his temple there was bullet mark and on the other side flesh was coming out. Since the witness did not support the case of the prosecution, she was crossexamined by the S.C. No. 146/09 Page 20/30 21 ld. prosecutor and in crossexamination she stated that her statement was recorded on a rough paper and her signatures were obtained on a blank paper by stating that fair draft will be prepared on the blank paper. Copy of her statement was provided to her after 78 days and she had gone through that statement and found some changes. However, she did not go and informed the police regarding discrepancy in her statement. She never made any complaint to ACP, DCP or any other police official regarding discrepancy in her statement. She was confronted with entire statement Ex.PW7/A, which she denied having made to the police. She also denied the suggestion that she has been won over by the accused persons, and therefore not deposing against them. Under these circumstances, the complainant, who had raised suspicion in her complaint against Rehmat has disowned the averments made in the complaint and therefore this part of the incriminating evidence against the accused Rehmat goes.
18. The other piece of evidence, as stated above, relied upon by the prosecution is that accused Akram made a disclosure statement with regard to the place where murder of Pramod took place and in pursuance to that he pointed out the place of incident where dead body was thrown. The place from where dead body was recovered was already in the knowledges of PS Narsena before the disclosure has been made by the S.C. No. 146/09 Page 21/30 22 accused. Even as regard Delhi Police is concerned this disclosure statement does not lead to any recovery and therefore is inadmissible in evidence.
19. Moreover, Inspector Vijay Bhushan has deposed that he had gone along with SI Rakesh Kumar, Constable Sushil and Constable Kuldeep along with accused to village Basi Bangar, PS Narsena, where accused pointed out the place where the dead body of Pramod was thrown. The dead body was thrown in front of Mango Garden of Ali Hassan and as per testimony of police officials, at that time Ali Hassan and Rab Nawaj, village Pradhan met them and stated that dead body was found at this place and they also identified the dead body from photograph.
PW9 Ali Hassan has admitted that fact that about four or five years ago, dead body was lying in front of his Mango Garden and he gave information to Pradhan, who informed to police station Narsena. He further deposed that in the year, 2009, Delhi Police officials met him at police post Bughrasi, PS Narsena. At that time village Pradhan Rab Nawaj was also called. Police official showed him one site plan and told him that this is the site plan of the place where dead body was recovered and he and Rab Nawaj were asked to sign on two documents. He put his thumb impression on those two documents. However, he went on stating that he did not see any accused along with Delhi Police officials, therefore there S.C. No. 146/09 Page 22/30 23 was no question of pointing out by any accused. Since the witness did not support the case of the prosecution, he was crossexamined by ld. prosecutor and in crossexamination he denied that any inquiry was made by police officials from him. He went on stating that signatures were obtained on two papers. His attention was drawn to the statement mark 'A' and he denied having stated to the police that on 18.08.09, Delhi Police officials along with accused Akram came at his Mango Garden or that accused Akram pointed out towards the place and stated that he along with his companion, namely, Mohd. Hassan @ Sufi and Rehmat came in a Santro car and they murdered Pramod by shooting him or that they had thrown the dead body at that place. He also denied that police officials prepared the site plan there itself in his presence and then he put his thumb impression on the same.
PW8 Rab Nawaj has also deposed that about four and half years ago, one dead body was found near their field. Local police of Narsena came there and took the dead body and thereafter no police approached them. Eleven months ago, he and Ali Hassan were called at police post Burgrasi, PS Narsena and there his signatures were obtained by the police and thumb impression of Ali Hassan were also taken by Delhi police officials stating that they had made site plan and they were sure that they have not appeared before any authority. He could not say, if any accused S.C. No. 146/09 Page 23/30 24 was also with the Delhi Police. He went on stating that one police vehicle was found parked and he could not tell who was sitting inside that vehicle. Since this witness also did not support the case of prosecution, as such he was crossexamined by the ld. Prosecutor and in crossexamination he denied the suggestion that he made any statement to the police or that on 18.08.09 Delhi Police officials along with one accused Akram came at Mango Garden of Ali Hassan or that Akram pointed out the place where he along with his associates murdered Pramod @ Paya and thrown the dead body at that place.
20. Result of the aforesaid observations is that testimony of police officials that accused Akram pointed out the place where dead body was thrown in presence of Ali Hassan and Rab Nawaj does not find corroboration from testimony of these two independent witnesses.
21. Another piece of evidence relied upon by the prosecution is recovery of ring and chain belonging to deceased Pramod at the instance of accused Rehmat @ Pasa from House No. 1B, DDA Flat, New Jafrabad, Delhi belonging to accused Mohd. Hassan. In this regard, the material witnesses are PW19 Inspector Vijay Bhushan, PW5 Constable Kuldeep Singh, PW11 Constable Ram Kishan and PW13 SI Rakesh Kumar. According to these police officials, after an application was moved on 24.08.09 for production of accused Rehmat @ Pasa and Mohd. Hassan @ S.C. No. 146/09 Page 24/30 25 Sufi, who were running in custody in FIR No. 297/08, PS Seelampur. Both these accused persons were produced in the Court on 03.09.09. After interrogation, they were arrested in this case and then accused Mohd. Hassan made disclosure statement Ex.PW5/PX1 while Rehmat @ Pasa made disclosure statement Ex.PW5/PX2. In pursuance to the disclosure statement, on 05.09.09, accused Rehmat got recovered one chain and ring belonging to the accused from house No. 1B, DDA Flats, New Jafrabad, Delhi, which was taken into possession vide memo Ex.PW13/G.
22. Admittedly, there is no independent witness to this recovery. It has been admitted by the police official that house of Mohd. Hassan was situated in a thickly populated area. Although they have deposed that request was made to the persons from locality to join investigation, but none agreed. He, however, admitted that he did not serve any notice upon them to join proceedings, failing which proceedings can be initiated against them. ld. counsel for the accused has placed reliance on 2011 (2) JCC (Narcotics) 98 Jaswinder Singh vs. State of Punjab; 1995 (3) CC Cases 252 Delhi, Satish Kumar vs. State; 1999 Cr.L.J. (SC) 19, Sanspal Singh vs. State of Delhi for submitting that when independent witnesses are not joined at the time of recovery, same becomes doubtful. In the instant case, since recovery was effected from the house which was surrounded by other residential houses, the area was thickly populated, S.C. No. 146/09 Page 25/30 26 meaning thereby, there was no dearth of independent witnesses yet no sincere effort was made to join them in the proceedings. As such recovery at the instance of accused from this house becomes doubtful.
23. Apart from the same, testimony of Smt. Manju in fact demolishes the entire case of prosecution in this regard, inasmuch as, in examination inchief itself she was shown the chain and ring and at that time while identifying these articles belonging to her husband, she went on stating that these articles were taken by police from her house. Police officials had asked her to give some belongings of her husband. At that time she gave chain and ring to the police officials. If that is so, then there was no question of recovery of chain Ex.P1 and ring Ex.P2 at the instance of Rehmat @ Pasa from house of accused Mohd. Hassan. For the same reason, subsequent TIP proceedings conducted before Sh. V.K. Gautam, ld. Metropolitan Magistrate, was only a farce.
24. Lastly, it may be mentioned that although as per complainant, she had initially made several complaints to Senior Police Officers, but no such complaint has been placed on record.
25. Result of the aforesaid discussion is that none of the circumstances relied upon by the prosecution were proved by them. Motive to commit the crime has neither been alleged nor proved. In a case based on circumstantial evidence, motive to commit crime is one of the important S.C. No. 146/09 Page 26/30 27 piece of evidence. As held in the case of Surinder Pal Jain v. Delhi Administration (1993 Supp (3) SCC 681) that in a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the Court on its guard to scrutinise the circumstance more carefully to ensure that suspicion and conjecture do not take place of legal proof. In the instant case also motive to commit murder on the part of accused persons is completely lacking.
26. The discussion made above clearly reveals that there was no eyewitness to the incident. The circumstances relied upon by the prosecution have not been proved. Although the manner in which entire things came to light as revealed from testimony of PW4 SI Sanjeev Kumar that it was only in pursuance to the arrest of accused Akram @ Kana and the disclosure statement made by him regarding his involvement in this case and thereafter on information given by him to police station Khajuri Khas, the complainant was called and then inquiries were made from her, who gave a complaint and thereafter coaccused were arrested and then police officials went to PS Narsena, where the factum of murder of Pramod was revealed. This creates a doubt and point out the finger towards accused persons. But it is settled law that suspicion, howsoever S.C. No. 146/09 Page 27/30 28 grave, cannot take place of truth. It was held by Hon'ble High Court in 2011 IV AD (Delhi) 3, CRL.A. No. 863/2001, Shakuntala vs. State that the circumstances as propounded by the prosecution no doubt creates suspicion against accused/appellant, but suspicion by itself, howsoever strong it may be is not sufficient to take the place of proof and warrants a finding of guilt of the accused. Reference may also be made to State of Punjab vs. Bhajan Singh,(1975) 4 SCC 472; Mousam Singh Roy vs. State of West Bengal, 2003 VI AD (SC) 478 = (2003) 12 SCC 377, relying on Sarvan Singh Ratan Singh vs. State of Punjab, AIR 1957 SC 637 where it was held that there may be element of truth in the version of the prosecution against the accused and considering as whole the prosecution story may be true; but between "may be true" and "must be true" there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliance and unimpeachable evidence before the accused can be convicted. The Supreme Court had also held that a degree of agony and frustration may be caused to the families of the victim by the fact that a heinous crime may go unpunished, but then the law does not permit the Court to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of S.C. No. 146/09 Page 28/30 29 the acceptable evidence.
27. In the case of Gokaraju Venkataparase Raju v. State of A.P., (1993 Supp (4) SCC 191) also it was observed in para 10 that in cases depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take place of legal proof, but it has been indicated that the gravity of the offence cannot by itself outweigh so far as legal proof is concerned. It has further been observed that when the main link goes, the chain of circumstances gets snapped and other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts. It is at this juncture, the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. At times it can be a case of 'may be true' and not 'must be true' and the same divides conjectures from sure conclusions.
28. Result of the aforesaid discussion is that since in the instant case, accused remained in the realm of suspicion, and this suspicion could not take place of proof, therefore in absence of establishing its case beyond reasonable doubt in order to implicate the accused persons, they are entitled to benefit of doubt. As such they are, accordingly, acquitted of the charge. In compliance of provisions of section 437A Cr.P.C., accused S.C. No. 146/09 Page 29/30 30 persons are directed to furnish a personal bond in the sum of Rs.10,000/ each with one surety each of the like amount, which shall remain in force a period of six months. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta) On this 4th day of July, 2011. District JudgecumASJ, I/C Karkardooma Courts, Delhi.
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