Delhi District Court
State vs . Mohd. Afroz on 22 January, 2013
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 172/10
Computer ID No. 02403R0143902010
State Vs. Mohd. Afroz
S/o Shri Mohd. Majid Sikau Master
R/o Ward No.19, Near Hardiya Chowk,
P.S. Shikarpur, PO Narkatiya Ganj,
District Paschim Champaran BIhar.
(In Judicial custody)
FIR No : 19/10
P.S. : Badarpur
U/s. : 302 IPC
DATE OF INSTITUTION : 02.12.2010 (Initial date of
Institution: 18.05.2010)
JUDGMENT RESERVED ON : 11.01.2013
DATE OF DECISION : 22.01.2013
JUDGMENT:
1. Prosecution case in brief is that on receiving DD No. 28A on 25.01.2010 at PS Badarpur, SI Mahender Singh alongwith HC Ram Bharose reached spot i.e, Bhatt Camp, MCD Sauchalya, Mohan Co operative, Badarpur, where they met complainant Sanjay Sharma and beat Ct. Ramesh. SI Mahender after broke opening of main gate and State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 1 of 36) inside room found dead of deceased Rama Shankar. In the meanwhile SHO and Inspector IO Rakesh Sangwan reached the spot and crime team was also called and photographs of dead body were also taken. One blood stained knife and blood stained stone were also seized and dead body was found completely stained with blood and further found sharp injury on the neck and head. SI Mahender Singh recorded the statement of Sanjay Sharma.
2. Sanjay Sharma in his statement alleged that he is native of Bihar and presently working at metro site in Badarpur area. He further alleged that his brother in law deceased Rama Shankar alongwith his wife Mamta and two children used to reside in said MCD Sauchalya, on 14.01.2010 he left his sister Mamta and two children at their house and went back to the toilet room on 15.01.2010. He further alleged that on 25.01.2010 his sister Mamta went to said toilet and found said room locked and thereafter at around 5 pm he also inquired from the nearby people who stated that the said toilet is locked for about 45 days and in meanwhile Ct. Ramesh came to the spot and he peeped into the room from the window and smelled foul smell from the room and further able to see some person lying on floor inside the quilt and on entering the toilet he found the dead body of brother in law Rama Shankar. Pursuant to recording of his statement FIR u/s 302 IPC registered.
3. During investigation dead body was sent to the AIIMS mortuary and further investigation was conducted by IO/ Inspector Rakesh Sangwan State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 2 of 36) who at the instance of SI Mahender prepared the site plan, seized the broken locks, blood stained knife, blood stained stone, blood stained quilt, empty liquor bottle, blood stained guddi, blood stained loi etc. It was further revealed in investigation that deceased Rama Shankar was carrying one phone Nokia bearing No. 9540858366 which was missing since the day of offence.
4. During investigation IO interrogated one person Fekan Mandal who stated that he had seen accused with Rama Shankar on 20.01.2010 and on verifying the CDR's of the phone of deceased Rama Shankar it was found that on 21.01.2010, the SIM of the mobile of accused Mohd. Afroz was found to be inserted inside the mobile instrument of deceased Rama Shankar and one SMS was received on it. On inquiry it was found that accused Mohd. Afroz used to reside in Indira Camp, PhaseI and went to his native place Bihar on 21.01.2010. Thereafter, SI Mahender Singh alongwith staff went to his native place at Narkatia Ganj, Bihar. And on 31.01.2010, he was arrested and mobile phone of deceased was recovered from his possession. Thereafter accused was brought at Delhi and at his instance the pointation memo of place of occurrence was prepared, further the SIM card of mobile phone of deceased and keys of toilet locks was recovered at his instance. As per postmortem report, deceased died of shock due to cut throat injury caused by sharp edged weapon and other injuries caused by blunt edged weapon. After completion of investigation, chargesheet was filed.
State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 3 of 36)
5. On committal, charges were framed against the accused u/s 302 IPC to which he pleaded not guilty and claimed trial.
6. Prosecution for substantiating charge examined 24 witnesses. Summary details of their deposition are as follows. Deposition of PW1 Fekan Mandal (last seen witness) and other family members of deceased Rama Shankar.
7. PW1 Fekan Mandal deposed that he used to sell Pan, Cigarette, bidi etc in front of toilet and on 20.01.2010 after closing his shop he kept his articles in verandah of toilet itself where he usually used to keep his articles and deceased Rama Shankar used to run toilet. And when he kept articles he saw one boy alongwith Rama Shankar there and lateron he came to now that deceased Rama Shankar was murdered by someone. On being declared hostile by prosecution, he stated that it is correct that on 20.01.2010 at around 7 pm he kept his articles in room of Rama Shankar inside toilet however stated that he had not seen accused sitting with deceased Rama Shankar and further denied that accused Mohd. Afroz used to meet Rama Shankar before incident also and denied of any acquaintance with accused Mohd. Afroz. However, later in cross examination he stated that it is correct that accused present in court is same boy whom he had seen with Rama Shankar on 20.01.2010 at 7 pm and further stated that it is correct that the name of accused is Mohd. Afroz.
8. In cross examination deposed that he knew deceased Rama Shankar for about two and half years and used to keep his articles in public State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 4 of 36) toilet for about 810 years. He further deposed that before Rama Shankar other staff of public toilet used to reside there but he do not remember their names. He further deposed that he did not used to give any rent to keep his articles to Rama Shankar, but used to give cigarettes etc. He further stated that he had seen accused only once when brought in PS and before that he had not seen the accused and he do not know him. He further deposed that he had no quarrel with deceased Rama Shankar.
9. PW2 Sanjay Sharma deposed that deceased Rama Shankar was his brother in law and used to live in MCD toilet with his sister and two children and on 14.01.2010, deceased Rama Shankar came to his house and alongwith his sister and two children and told him that they would stay with him for one week and he will come back after one week to take his family and left his house on 15.01.2010. He further deposed that thereafter on 23.01.2010 his sister Mamta went to see him in toilet but it was found locked and on inquiry from nearby people they stated that said toilet was locked for 34 days. He further deposed that on 24.01.2010 he alongwith his mother went to MCD toilet and found it locked thereafter he inquired from some children playing outside who stated that this toilet is locked for 45 days, however, one Mandal who used to sell cigarettes, bidi pan was also not seen there. Thereafter he also informed to PS. Then police came to the spot and broke open the lock and took photographs and he seen the dead body of deceased Rama Shankar soaked with blood. He further deposed that when the State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 5 of 36) quilt was removed over the dead body, lot of blood was found around the dead body and one blood stained knife was found near the dead body and one blood stained stone was also found there. He further deposed that police had seized blood stained knife, stone, broken locks, one empty half bottle, one blood stained quilt etc from the spot.
10. In cross examination deposed that he is residing in Delhi since 1992 and deceased Rama Shankar married his sister 6 years back and deceased Rama Shankar was staying in MCD toilet for about 4 years and prior to that he was staying at Indira camp. He stayed there for 2 years after marriage. He further deposed that he met deceased on 14.01.2010 at around 4 pm and at that time his mother and sister were also at home. He further deposed that he did not talk to deceased Rama Shankar on that day, and deceased Rama Shankar told his mother to keep his sister with them for about a week and thereafter he will come to pick her up. He further deposed that he do not remember the contact no. of deceased however he left the number at his home. He further deposed that there is nobody in house who can write, read Hindi or English or other languages. He further deposed that never talked to Rama Shankar on his mobile phone. Deceased Rama Shankar had only one mobile no and one SIM and it was not purchased in his presence. He further deposed that neither his sister nor his mother used to call deceased from their house or from at any other place. He further deposed that he did not personally go to toilet to locate Rama Shankar however his mother and sister went to find State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 6 of 36) Rama Shankar on 23.01.2010 and not on 21.01.2010. He further deposed that he do not know Fekan Mandal personally but was aware that he used to run cigarettes, pan bidi shop outside toilet. He deposed that he went to MCD toilet only once with his mother on 24.01.2010 and besides that he never gone to MCD toilet. He further deposed that he is aware that Fekan Mandal used to keep his articles in toilet however he do not know whether he used to charge money from him or not. He further deposed that he had seen accused only once when deceased used to reside in Indira Camp. He further deposed that thereafter he had not seen the accused with the deceased. He further stated that there are two locks put on gate of toilet , one at main gate and other at the gate of room where dead body was found and both locks were white in colour. He further deposed that some articles of Fekan Mandal were found inside the toilet however he could not tell whether the articles of Fekan Mandal were taken into custody by police or not. He further deposed that Fekan Mandal was not present at spot when he visited spot with police. He further deposed that he went to toilet on 24.01.2010 at around 5 pm. And the children told him that toilet was locked for 34 days. and article of Fekan Mandal was lying inside toilet on left side after entering the gate.
11. PW4 Smt. Laxmi Devi deposed that deceased Rama Shankar was her son in law and deceased used one SIM number of Idea Cellular which was in his name and when dead body was recovered, the said phone was not found however she do not remember the number of said State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 7 of 36) SIM and stated that said number was in writing and gave it to the police at the time of recording of her statement. In cross examination she deposed that she do not remember when deceased Rama Shankar married her daughter. She further produced her ration card and also bank account. And both in ration card and bank account the address of Indira Camp was mentioned. She further deposed that Rama Shankar had not taken any mobile connection in his name and deposed that she had taken the same in her name. She denied suggestion that deceased took mobile connection in his name. She further deposed that there is no other mobile connection in her name except which was used by deceased Rama Shankar. She further deposed that before taking mobile connection she submitted her I card at Nokia dealer. She further stated that deceased was using said mobile for last one year. She further deposed that she had last talk with deceased on 15.01.2010 and had not called him after 15.01.2010. She further deposed that she did not meet deceased Rama Shankar at his place i.e, public toilet as the same was locked. She further deposed that there is a room in public toilet and Mandal's articles were lying outside that room and anybody can see the articles from the gate as the iron gate of cross iron grill. She further deposed that she went to see her deceased damad after 8 days from 15.01.2010 and in between, she had not gone for search of deceased Rama Shankar. She did not meet Fekan Mandal on day when went to spot with police and also stated that she did not know accused Afroz. She further stated that there was no State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 8 of 36) dispute with deceased Rama Shankar and Fekan Mandal and and she had not received any phone call from Fekan Mandal. She further stated that she called her damad on 15.01.2010 from STD booth and also stated that she recorded his mobile number in register at her house. She further stated that said STD shop is of one Mr. Gupta. And got the bill of Rs. 5/ when called her damad on 15.01.2010 and she had talked with deceased regarding when he will come .
12. PW5 Mamta (wife of deceased) deposed that she was residing at MCD toilet and on 14.01.2010 she alongwith her husband and children went to house of mother and brother Sanjay and on 15.01.2010 her husband went back to MCD toilet and told them that he will pick them up after 4 days but her husband did not come back. She further deposed that on 25.01.2010, she came to see her husband she further deposed that on 25.01.2010 when she came to see her husband with her mother and brother they found the gate of toilet locked and police was called and they break the lock and her husband was found dead inside the toilet. And one mobile Nokia phone which her husband was having was missing.
13. In cross examination, she deposed that she do not know when she married deceased Rama Shankar however, might have married 5 years back. And three are two children out of this marriage aged 5 years and 4 years. She further deposed that after marriage they used to reside at Indira camp but do not know the particulars of house no. etc of Indira camp and further stated that they are residing at public toilet for about State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 9 of 36) last 4 years. She further stated that deceased left them at her mother's house and went back on 15.01.2010 however not stated anything when he will come back to take them but had talk regarding this with her mother. She further deposed that she did not used to talk to deceased Rama Shankar on phone. And further stated that said mobile phone was in the name of her mother and Rama Shankar used to keep that. She further deposed that she had not gone to meet her husband before 25.01.2010 and on 25.01.2010 she alongwith her mother went to see him at toilet but same was found locked. She further stated that she had not gone to PS for any complaint and also do not remember whether police recorded her statement or not as she is illiterate. She further denied suggestion that deceased Rama Shankar had no mobile phone in his possession between 14.01.2010 to 25.01.2010. she further deposed that she do not remember the colour and make of mobile phone.
Depositions of police officials & other expert witnesses:
14. PW3 HC Dharamveer deposed that as DO he registered FIR on the basis of rukka brought by Ram Bharose at around 10.00 p.m. He further deposed that he received an information from Ct. Ramesh that a foul smell is coming from MCD toilet at around 5.30 p.m, pursuant to which he recorded DD no. 20A on 20.01.2010 and handed over the same to SI Mahender for investigation. In cross examination deposed that it is correct that column no. 15 of FIR regarding date and time of dispatch to court is blank, however, denied suggestion that FIR is ante State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 10 of 36) time and dated.
15. PW6 HC Ramesh Chand deposed that on 25.01.2010, he was on patrolling duty near Sulabh Shauchalaya and met Sanjay Sharma and thereafter, checked the above toilet, which was found locked and bad smell was coming from inside, thereafter, informed DO at Badarpur.
He further deposed that after some time SI Mahender Singh, HC Bharose and thereafter SHO Badarpur and inspector Sangwan also reached at spot. Thereafter, on broke opening of the toilet, dead body of deceased Rama Shankar was found and on the direction of SHO he took the dead body to hospital. On 27.01.2010, postmortem of the dead body was conducted. In cross examination deposed that he met Sanjay Sharma at around 5.15/5.30 on 25.01.2010, but he do not know Fekan Mandal and also do not know whether any articles of Fekan Mandal lying on that premises. He further deposed that he did not know whether in the list prepared by SI Mahender, articles of Fekan Mandal were recorded or not. He further deposed that he had not seen Rama Shankar prior to that time and locks were broken at 5.45 p.m. and no other person from general public went inside alongwith police in the toilet, though there are number of persons outside toilet at that time.
16. PW7 Ct. Jhabar Mal deposed that he collected eleven exhibits on the direction of inspector Rakesh Sangwan and deposited the same at FSL Rohini. In cross examination deposed that he do not know the contents of parcels/exhibits.
State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 11 of 36)
17. PW8 Dr. Shiva Prasad deposed that Dr. Manish Goyal who conducted the postmortem of deceased Rama Shankar on 27.01.2010 in his presence and found cutthroat injuries and laceration wound on scalp, face and left ear of the body and opined the cause of death due to cut throat injuries as mentioned under injury no. 1 and injury no. 25 are caused by blunt edge weapon/object and all injuries are ante mortem in nature and time since death is about one week.
18. PW9 Tarun Khurana, Nodal Officer, Bharti Airtel brought the summon record of mobile number 9818707192 in the name of accused Mohd. Afroz alongwith the application form and voter ID card with CDR for the period 21.01.2010 and on this day an SMS was received on the above mentioned no. from mobile no. 9716529431. In cross examination he deposed that he cannot tell the contents of SMS are not available in record and further cannot tell on whose name mobile number 9716529431 is registered, however, no call received or made from mobile 9818707192 on 21.01.2010. This witness was again recalled for further examination on 03.11.2012 and he brought the original customer application form alongwith photocopy of voter ID of accused Mohd. Afroz bearing his signatures on both documents however in cross examination deposed that these documents were not filled in his presence and he has no personal knowledge about said documents.
19. PW10 Pawan Singh, Nodal Officer, Idea Cellular, brought the summoned record of mobile no. 9540858366 which is in the name of State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 12 of 36) Lakshami Devi alongwith scanned copy of Customer Application Form and Icard and CDR of said mobile phone and stated that on 20.01.2010 that number was operation and brought the call details of that IMEI from 01.01.2010 to 20.10.2010.
20. PW11 SI Vijay Pal Singh deposed that on 25.01.2010 he alongwith crime team reached the spot and inspected the scene of crime and HC Bhagwan Singh lifted the chance prints from a bottle of wine and HC Udaiveer had taken several photographs of the scene of crime. In cross examination deposed that he returned from the spot at around 8.45 p.m. and prepared the report on the same day in the office. PW12 HC Udaiveer deposed that being member of crime team took nine photographs of the dead body.
21. PW13 Ct. Siya Ram deposed that on 30.01.2010 he alongwith SI Mahender Singh, HC Harinder, Ct. Raj Mohan and Ct. Premveer left for Narkatiya Ganj, didstrict Champaran, Bihar and reached there at 3.00 p.m. on 31.01.2010. And at railway station they met one secret informer who told them that accused Afroz was present at statue of Yogendera and at the pointing out of secret informer they had apprehended accused. Thereafter, he was arrested and his personal search memo was prepared and one mobile phone was also seized from his possession, further his disclosure statement was recorded. Thereafter, accused took them to his house, from where his clothes were seized and on 01.01.201 accused was produced in local court. In cross examination deposed that secret informer went to Bihar State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 13 of 36) alongwith them from Delhi and also told them he is the person who came from Delhi after committing murder and also denied suggestion they apprehended 1015 people for charge of murder of deceased Rama Shankar.
22. PW14 Munna Chaudhary deposed that on 31st day month of winter, accused Afroz was arrested by Delhi police in presence. Thereafter, he was taken to office of local DSP, whereon search one mobile phone was recovered from the possession of the accused. However, on being declared hostile, he denied that accused had made any disclosure statement in his presence and further stated that he cannot say if the recovered mobile was of make Nokia. In cross examination, he deposed that he do not know the particulars of the mobile recovered from the possession of accused.
23. PW15 HC Ram Bharose deposed that on receiving DD no. 20A on 25.01.2010, he alongwith SI Mahender reached the spot. Thereafter, other police officials also came and broke open the lock and found the dead body of deceased Rama Shankar and took rukka from spot to police station for registration of FIR, further deposed that articles were seized from the spot and at the time of seizure of above said articles, SI Mahender Singh and complainant Sanjay Sharma were also present.
24. PW16 HC Harender also deposed that on 31.01.201 they reached Narkatiya Ganj Railway station, they arrested accused Afroz on secret information and at that time public persons gathered and one person State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 14 of 36) Munna Chaudhary came forward and join the investigation, thereafter accused was arrested and his disclosure statement was recorded and one mobile phone make Nokia 6233 of black colour was recovered from accused from his back pocket. Thereafter, clothes of accused was recovered at his instance from his house and accused was brought to Delhi after transit remand on 02.02.2010 and produced before inspector Rakesh Sangwan who also recorded his disclosure statement. Thereafter, at his instance two keys of the locks were recovered, then accused led them to ganda nala, Kalyan Vihar and got recovered one SIM card. In cross examination deposed that he is not aware about the rail ticket with regard to his journey, and denied suggestion that there was no secret informer.
25. PW17 SI Mahender deposed that on receiving DD no. 20A on 25.01.2010 at around 5.30 p.m., he reached the spot and found the gate of shauchalaya locked and smell was coming from inside. Thereafter, he took the photographs of the gate by private camera and after break opening gate entered inside the shauchalaya and also found one more room locked. He took the photographs of the said room. Thereafter, break open the lock of the said room and inside that room he found the dead body and the dead body was identified by Sanjay, who stated that the present dead body is of Rama Shankar, who is his brother in law and further noticed sharp injuries on his face and head. After some time, SHO, ACP alongwith inspector Rakesh Sangwan reached the spot. Crime took alongwith photographer took the photographs of State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 15 of 36) scene of crime and inspected the place of occurrence. Further, recorded statement of Sanjay Sharma. After registration of FIR, investigation was handed over to inspector Rakesh Sangwan who seized the case property present at the spot in his presence. He further deposed that on 30.01.2010, he alongwth HC Harinder, Ct. Siya Ram and Ct. Prem Veer went to Narkatia, Bihar and at the instance of secret informer arrested accused on 31.01.2010 and one mobile phone was recovered from his possession and a SIM card was found inside this mobile phone bearing no. 9818707192 and IMEI 356283019863879 and the same was seized. Thereafter, the site plan of place of arrest was prepared, then at his instance his clothes which he was wearing at the time of incident were recovered. Thereafter, accused was shifted to PS Shikarpur and produced before the concerned court and on transit remand brought to Delhi. He further deposed that on 02.02.2010 he deposited the said case property in the malkhana and inspector Rakesh Sangwan also recorded his statement. Thereafter, he pointed out the place of occurrence as well as got recovered the keys from near by Tuglakabad Railway Station and also a SIM card of mobile phone which was thrown by him near drain at Kalyan Vihar.
26. In cross examination deposed that they reached Champaran on 31.01.2010 at around 02.00/2.30 p.m. and further denied suggestion that no secret informer accompanied them to Bihar. He further denied suggestion that no Munna Chaudhary was joined in investigation and denied suggestion that no recovery of mobile phone or clothes were State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 16 of 36) made at instance of accused. He further denied suggestion that they forcefully taken brother of accused and Sanjay brother of Munna Chaudhary to Bihar, therefore, on forceful compulsion Munna Chaudhary signed on documents.
27. PW18 SI Mahesh Kumar, draftsman prepared the scaled site plan of the spot. PW19 HC Sanjay deposed that on 27.01.2010 after postmortem dead body was handed over to the relatives of the deceased. On 02.02.2010, he accompanied IO who recorded the disclosure statement of accused. Thereafter, at the instance of accused key and SIM card were recovered. In cross examination he denied suggestion that he did not join investigation on 02.02.2010 and further stated that there was no public witness present during investigation on 02.02.2010. He further deposed that they had not joined any person from cable store while accused produced two keys from near wall of cable store. He further deposed that he do not remember whether photographs from where keys were recovered were taken or not. He further deposed that he cannot tell whether the SIM card was recovered from bank of nala or inside nala. He further deposed that accused took out the SIM card from nala himself. However, there was garbage and water, both present in the nala and it took around 10 minutes to accused to locate the SIM card. He further deposed that he do not know whether any police party tried to put the key inside the lock and he do not know whether those keys were of lock of the toilet or not.
State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 17 of 36)
28. PW20 HC Sujan Singh delivered the three FIR envelopes on the night of 25/26.10.2010 to Ld, MM, Addl. CP and Joint CP.
29. PW21 Inspector Rajesh Sangwan deposed that on 25.01.2010 he was entrusted the investigation of this case and prepared site plan at the instance of SI Mahender and further seized two broken locks from main gate and toilet gate and also prepared the sketch of recovered knife. Further seized other exhibits from the spot. Crime team was present with finger print proficient and its photographer also took the photographs at the spot. On his application, postmortem was conducted and dead body was identified by Sanjay Sharma and summoned the CDR of deceased having mobile no. 9540858366 which was in the name of one Lakshmi and on basis of IMEI no. found that the said phone is used on some other number i.e, 9818707192, on inquiry found the same was used by accused Afroz who was not found at his jhugii and reported to be in Bihar. He further disclosed that on 02.02.2010 SI Mahender came back to Delhi with accused and handed over accused to him, who disclosed that he used to come to deceased Rama Shankar for so many years and deceased Rama Shankar was sodomised person and on 20.01.2010 he had a quarrel with accused and deceased thereafter he hit Rama Shankar with stone and then cut his neck with knife and left the room leaving the knife and after locking the gates and further picked the mobile phone of deceased and ran away. And on the way he threw the sim and keys. Thereafter, at his pointing out the key was recovered near State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 18 of 36) Tuglakahabad Railway station and SIM card was recovered from ganda nala near pulia.
30. In cross examination, he deposed that he was in area when received the information and went to spot in his personal car at around 9/9.30pm and did not notice any struggle from body of deceased and cannot tell whether deceased was sleeping or not. He further deposed that there are 4050 jhuggis near toilet i.e, spot and he has not shown the said jhuggi in the site plan. And no public witness was joined at the time of preparation of seizure memo at the spot. During investigation found that said toilet was closed 78 days prior to information of said incident and had not received any complaint regarding closure of toilet, and not found any bench inside toilet. He further deposed that Fekan Mandal not made any complaint to him regarding his goods lying in toilet and said goods are with Fekan Mandal which were not seized during the investigation. He further deposed that he seized the broken lock which was broken by SI Mahender and not sent locks to finger print expert. Further no finger prints of accused was found at the spot. He further stated that he recorded the statement of Mamta at the spot and denied suggestion that only Sanjay was present at the spot and Mamta and Lakshmi were not present at the spot. He further stated that Mamta and Lakshmi disclosed him that mobile of deceased was missing. He further stated that nobody tried to call at that number including police officials or their family members. He further stated that he did not seized any State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 19 of 36) purchase bill of the mobile phone. And also denied suggestion that mobile was planted over the accused. He further deposed that sim of accused Afroz was used in said mobile phone after the incident on 21.01.2010 and one SMS came in mobile phone when sim was put inside it by accused Mohd. Afroz. He further stated that he had not sent the phone to take opinion about its condition. And further stated that he used mobile instrument which was recovered from accused from 13.01.2010 to 20.01.2010 and deceased used to change mobile phone and he had not recovered other mobile phones. He further denied suggestion that Fekan Mandal had not seen accused with deceased on 20.01.2010, he further stated that the SIM was recovered from dry place of nala and he had not taken any photograph of that place and at that time 3 persons were accompanying him alongwith accused and accused only went inside nala and no other police person accompanied him to the nala. He further denied suggestion that SIM and keys were planted over him and he had not tried to unlock said lock from keys. Vol., as it was already broken.
31. He further deposed that they came to know about the fact that Afroz went to Bihar from one person in Indira colony however he had not recorded his statement and also no knowledge whether any person was taken by team from Indira colony to Bihar. And stated that they got suspicion after going through CDR and statement of Fekan Mandal. He further deposed that it is correct that no other person told him that accused and deceased used to do unnatural sex between them. State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 20 of 36)
32. PW22 Purushottam Singh Asstt. Director Physics FSL examined the locks and the keys and found that the keys are not entering the key hole of the locks and appears to be not of the examined locks.
33. PW23 Sunita Sharma Sr. Scientific officer, Biology, FSL filed the details serological report over the exhibits seized at the spot.
34. PW24 Dr. Lingraj Sahu exhibited its chemical analysis report and found no pesticides could be detected on examined exhibits.
35. Accused in his statement u/s 313 Cr.P.C denied all the incriminating circumstances put to him and also stated that he is not user of mobile number 9818707192 and denied his signatures on customer application form etc and further stated no mobile phone was recovered by police at his instance and stated that he was falsely implicated in the present case. However opted to lead defence evidence but not led any defence evidence.
Material exhibits:
36. Ex.PW2/1 statement of Sanjay Sharma pursuant to which rukka Ex.PW17/A was prepared and FIR Ex.PW3/A was registered. Ex.PW3/C is DD no.20A dated 25.01.2010 recorded at PS Badarpur at around 5.30pm regarding the fact that foul smell was coming from the toilet in question. Ex.PW17/B is rough site plan of the spot. Ex.PW18/A is scaled site plan of the spot. Ex.PW2/A is blood stained knife recovered from the spot. Ex.PW2/B is seizure memo of blood stained stone recovered from the spot. Ex.PW2/C is seizure State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 21 of 36) memo of locks recovered from the spot. Ex.PW2/D is the seizure memo of empty liquor bottle at the spot. Ex.PW2/H is seizure memo of blood stained gudri. Ex.PW2/G is seizure memo of blood stained loi. Ex.PW2/E is seizure memo of blood stained rajai. Ex.PW2/F is seizure memo of blood stained foam ki seat. Ex.PW13/C is seizure memo of mobile phone recovered from accused Mohd. Afroz on 31.01.2010. Ex.PW13/E is the seizure memo of clothes of Afroz. Ex.PW16/B is seizure memo of keys and Ex.PW16/C is seizure memo of sim recovered at the instance of accused Afroz from nala. Ex.PW17/C is sketch of knife found at the spot. Ex.PW11/A is crime team report. Ex.PW11/P1to P9 is photograph of deceased in dead condition at the spot. Ex.PW12/P10 to P18 are negatives of those photographs. Ex.PW16/A and Ex.PW14/A are disclosure statements of accused Afroz. Ex.PW17/G is pointation memo of place of occurrence by accused. Ex.PW17/H and Ex.PW17/I are the site plan of place of recovery of keys and SIM card at the instance of accused.Ex.PW17/D is site plan of place of arrest of the accused. Ex.PW8/A is postmortem report of deceased. Ex.PW13/A is arrest memo of accused Mohd. Afroz. Ex.PW13/B is personal search memo of accused. Ex.PW10/A from P1 to P2 is call detail record from mobile of deceased issued in the name of Lakshmi Devi. Ex.PW22/A and Ex.PW22/B are FSL reports. Ex.PW9/C is the CDR of 21.01.2010 on that day an SMS appeared on mobile no. 9818707192 State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 22 of 36) from mobile no. 9716529431. Ex.PW9/A is customer application form in the name of accused Mohd. Afroz.
37. Ld. Counsel for the accused submitted that prosecution unable to prove any of the circumstance against the accused. Ld. Counsel submits that PW1 Fekan Mandal the last seen witness had not supported the prosecution case, even the circumstance of arrest and recovery of mobile phone of deceased from Bihar is not at all reliable. Ld. Counsel further submits that PW14 Munna Chaudhary in his testimony stated that he do not know the particulars of mobile recovered. Ld. Counsel submits that keys shown to be recovered at instance of accused were not of the locks in question as per FSL report. Ld. Counsel further submits that the recoveries of sim card and keys form open area exfacie do not appear to be at all credible. Ld. Counsel submits that none of family member of deceased has raised any suspicion over present accused. Ld. Counsel further submits that accused was not using the mobile number 9818707192 and the customer application form and other documents are all forged and fabricated. Ld. counsel submits that prosecution unable to prove any of the circumstances against accused hence accused is entitled to be acquitted.
38. Ld. Addl. PP on the other hand submitted the prosecution has proved its case beyond doubt. Ld. Addl. PP submits that PW1 Fekan Mandal in cross examination stated that he had seen the accused in company of deceased on 20.01.2010 further accused sim card was used in the State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 23 of 36) mobile phone of the deceased and the said mobile phone was recovered from the possession of accused. Ld. Addl. PP submits that accused unable to furnish any explanation on the factum what happened when he left the company of deceased on said night and nor how he came into possession of that mobile phone, therefore these circumstances coupled with recovery of sim card of deceased unerringly points towards the guilt of accused. Ld. Addl. PP submits that minor discrepancies in prosecution case are bound to occur and these are not in any manner affect the substratum of prosecution case. Ld. Addl. PP submits that prosecution has proved all the material circumstances beyond reasonable doubt unerringly pointing towards the guilt of accused.
39. Arguments heard. Record perused.
40. The genesis of the story is that on 25.01.2010 in the evening when PW3 Sanjay Kumar brother in law of deceased Rama Shankar alongwith his mother Smt. Laxmi Devi (PW4) and sister Mamta (PW5) went to see him in MCD toilet, they found it to be locked. There they also met the beat constable PW6 HC Ramesh Chand and noticed the foul smell emanating from said toilet and on peeping through toilet, PW6 noticed one dead body was lying inside the toilet. Thereafter, local police also reached and on break opening the locks of main gate and inside room, they found the dead body of deceased Rama Shankar and noticed injuries on neck and head of deceased and lot of blood was oozed out from the body. Nothing could be State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 24 of 36) ascertained from the family members of deceased on that day except that the mobile phone of deceased was missing. However, during investigation police recorded statement of PW1 Fekan Mandal who stated that he used to sell pan, bidi, cigarette etc outside the said MCD shauchalya and used to keep his goods inside the toilet and on 20.01.2010 at around 7 pm he kept his goods inside shochalya and told deceased Rama Shankar that he is going to his house and at that time he had seen Mohd. Afroz sitting with him. On the basis of his statement the search of accused Mohd. Afroz was conducted and it was revealed in investigation that he was not in Delhi and was in Narkatiya Ganj, Distt. Champaran, Bihar. Thereafter, one police party reached Narkatiya Ganj, Distt. Champaran Bihar where on secret information they arrested him from near the statute of Yogendra and on his search the mobile phone of the deceased containing his own sim card was seized then accused produced before the local court and brought to Delhi. At Delhi at his instance,the SIM card of deceased and the keys were recovered from ganda nala and near cable store, Tuglakabad.
41. The entire case of the prosecution is based on circumstantial evidence and there is no direct testimony to the said incident. The circumstances as relied by the prosecution is the last seen evidence and recovery of mobile phone of deceased from possession of accused and the corroboration of the same also through the fact that after taking away the said mobile phone he inserted his own sim into State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 25 of 36) mobile of deceased and received SMS on 21.01.2007. Besides this there are incriminating recoveries of SIM card of deceased and keys of broken lock at his instance.
Last seen evidence:
42. Prosecution relied upon the testimony of Fekan Mandal (PW1) for proving circumstance of last seen. PW1 Fekan Mandal though deposed that he used to sell paan, bidi, cigarette in front of the toilet and after closing his shop he kept the articles in verandah of toilet and deceased Rama Shankar used to run that toilet. Also stated that he saw one boy with Rama Shankar but not named the accused Mohd. Afroz as the person sitting with Rama Shankar. However, on being declared hostile by Addl. PP in cross examination again denied of seeing of accused Mohd. Afroz sitting with deceased Rama Shankar and also denied of any knowledge of acquaintance of deceased Rama Shankar with Afroz, however, in further cross examination by Ld. Addl. P.P. he stated that it is correct that accused is same boy who was seen in company of deceased Rama Shankar. But, in cross examination by ld. counsel for accused stated that he had seen the accused only once when brought in PS and before that he had not seen the accused and he do not know him.
43. This witness in substantial part of his testimony had not disclosed that he had seen Mohd. Afroz in the company of deceased Rama Shankar on 20.01.2010 however, on suggestion by Addl. PP stated that it is correct that present accused was in company of Rama Shankar on that State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 26 of 36) day but it is also settled law that statement u/s 161 Cr.P.C cannot be used for corroboration therefore mere saying correct is not enough when he in cross examination categorically denied to have seen accused and seen him only once in PS and not prior to that. Therefore, on overall consideration, his testimony cannot be relied upon for proving circumstance of last seen without any corroboration from other circumstances.
44. There is one thing noticeable that as per prosecution case this witness is running the paan, bidi shop in front of toilet since 810 years and daily he used to put his articles in said toilet and lastly he had put those articles on 20.01.2010. As per prosecution case the dead body was noticed to be lying inside the public toilet in evening of 25.01.2010, there came nothing on record, which could show what this witness is doing and why he has not informed the police when his articles were lying inside the toilet from 21st to 27th January, 2010, when his statement was recorded. One further question arose because as per prosecution case the deceased was having mobile phone and why this witness has not tried to contact the deceased on mobile phone. Further, there comes nothing in the testimony of other relatives of deceased i.e, wife Mamta (PW5), mother in law Smt. Lxmi Devi (PW4) and brother in law Sh Sanjay Sharma (PW2) that during that period this witness tried to contact them to take out his articles from the said toilet. This not only created doubt over his factum of running the shop from the said toilet, but also on fact that his articles were State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 27 of 36) lying inside the shop. Further, there is no seizure memo prepared of his articles lying inside the shop. PW6 Ramesh Chand also denied of knowledge of presence of articles of Fekan Mandal at that toilet. Therefore, these circumstances coupled with doubtful testimony of PW1 Fekan Mandal creates doubt over the factum of his seeing the accused lastly in the company of deceased Rama Shankar and also raises number of questions on his conduct and conduct of other witnesses. And also on the manner the investigation is conducted. Circumstances of arrest of accused Mohd. Afroz:
45. As per prosecution case they got to know about Mohd. Afroz from PW1 Fekan Mandal and thereafter they also collected the CDR's of mobile phone of the deceased and found that the mobile instrument of deceased received a SMS on the mobile number of accused Mohd.
Afroz. Thereafter they searched the accused and got to know that he is in Bihar then a raiding party consisting of PW17 SI Mahender, Ct. Sita Ram, HC Harender etc. went to Narkatiya Ganj, Champaran, Bihar and at the instance of secret informer he was arrested near Yogender Statue on 31.01.2010 at Narkatiya Ganj, Bihar and from his possession the mobile phone of deceased containing his sim card was recovered. Then he was shifted to PS Shikar Pur, then produced in local court and brought to Delhi. At the time of arrest as per prosecution case one public witness PW14 Munna Chaudhary was also associated.
46. PW13 Ct. Sia Ram stated that on reaching the Narkatiya Ganj railway State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 28 of 36) station they met one secret informer who told them that accused was present at statute of Yogender thereafter they arrested the accused at his instance. However, in cross examination also stated that the secret informer went to Bihar alongwith them from Delhi. It appears quite unnatural that if secret informer accompanies them from Delhi to Bihar then how he can tell police party that accused was standing near Yogender statute. PW17 SI Mahender also stated that they arrested the accused on secret information from that statue. However he denied suggestion that no secret informer accompanied them to Bihar. Thus, there is apparent contradiction over the presence of secret informer in testimony of PW13 Ct. Sia Ram and PW17 SI Mahender. PW14 Munna Chaudhary public witness joined by police during investigation though stated that accused was arrested in his presence however not stated how he came into contact of police and what made him to become the witness to the arrest of accused Mohd. Afroz. It was suggested by defence counsel in cross examination to PW17 SI Mahender that the police had forcibly taken the brother of accused and Sanjay brother of Munna Chaudhary to Bihar therefore compulsion Munna Chaudhary signed on the documents. This suggestion appears to somewhat credible in view of statement of PW13 Ct. Sia Ram who stated that secret informer accompanied the police party to Narkatiya Ganj. Thus, it appears that prosecution concealed the true story over the manner of arrest of accused Mohd. Afroz though it cannot be doubted that he was arrested from Bihar. State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 29 of 36) Circumstance of recovery of mobile phone of deceased containing SIM card of accused Mohd. Afroz:
47. According to prosecution when accused was arrested from his pocket mobile phone of deceased containing sim card of accused was recovered, whereas, PW14 Munna Chaudhary stated that mobile phone was recovered from possession of accused at the office of Local DSP and further stated he could not tell the particulars of mobile phone. This itself created doubt whether the mobile phone of the deceased was recovered from accused at the time of apprehension alleged at Yogendera statue. Further, when the manner of arrest is doubtful then the recovery at the time of arrest also falls in realm of suspicion.
48. There is one thing more noticeable in this regard, is the fact that as per prosecution case when the accused used the mobile phone of deceased he received one SMS on 21.01.2010 and there is no other use found of said mobile phone with sim of accused. However, police recovered the said mobile phone containing the SIM of the accused on 31.01.2010. It is inconceivable that if accused is using mobile of deceased containing this sim he will not receive any call or SMS for 10 days. It is natural if accused brought the mobile phone of deceased containing his SIM to Bihar, then he should have atleast received SMS of other operators because he left territory of Delhi, but there are no other such messages found. This also created doubt over the recovery of mobile of deceased with SIM card of accused from Bihar.
State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 30 of 36) Circumstance of recovery of keys of the toilet and the sim card of the deceased at the instance of accused:
49. As per prosecution case, accused was brought to Delhi and his further disclosure statement was recorded and at his instance the pointation memo of spot was prepared. And the keys and sim card of deceased was recovered and the seizure memo in this regard was prepared. Those seizure memos were prepared by IO Inspector Rakesh Sangwan and the same were prepared in presence of PW19 HC Sanjay, PW17 SI Mahender and PW16 HC Harender. PW17 SI Mahender stated that the keys of the room were recovered from near Tugalkabad Railway station however he had not stated anything that site plan of place of recovery of keys were prepared neither could state whether the keys were found in open or in some concealed place. This witness stated that the sim card was recovered by the accused in drain near Kalyan Vihar. PW16 HC Harinder stated that the keys were recovered from Tuglakabad railway station and sim card was recovered from nala near Kalyan Vihar. This witness also could not tell in examination in chief that it was lying near cable store nor stated that any site plan of the place of recovery of keys and sim card was prepared. PW19 HC Sanjay also not stated whether the site plan of the place of recovery of keys and sim card was prepared or not. And in cross examination stated that accused took out the sim card from nala himself but he cannot say whether he recovered from bank of nala or inside the nala, also deposed that there was garbage and water both in nala but unable State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 31 of 36) to tell also the level of water in nala. He further stated that it took 10 minutes for accused to search the said sim. And also stated that it took accused 5 minutes to search the keys. PW21 Inspector IO Rakesh Sangwan in cross examination stated that sim was recovered from the dry place in nala not from where there was water. The testimony of these witnesses do not appears to be credible firstly because of fact it appears very unnatural if somebody thrown sim card in nalas, then he can recover the same after number of day just entering inside nala. Further PW19 even could not state whether the sim card was recovered from dry place or place where there is a water. Admittedly, no public witness at any point was joined by police. The keys were stated to be recovered near cable store but PW17 and PW16 HC Harinder not even mentioned about the cable store and further PW16, PW17 and PW19 also not mentioned anything about preparation of site plan of place of recovery. Even no public witness was joined at the time of recovery of keys.
50. Further, as per FSL report the keys recovered were not of the locks of MCD shauchalya therefore this all makes the circumstance recovery of sim and key of locks at the instance of accused all false and fictitious and cannot be relied upon.
Mobile phone of deceased:
51. As per prosecution case the deceased was using mobile which was purchased in the name of his mother in law PW4 Laxmi and the sim card was also purchased by her, it is alleged that deceased was using State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 32 of 36) the same for last one year but in cross examination it also appeared that during this period he has changed number of mobile phones. One thing to be noticeable here that as per prosecution case deceased was living with his wife and children at the said MCD shauchalya, however, he left his wife and children at the house of his mother in law Laxmi (PW4) on 15.01.2010 with assurance that he will take her back after one week, however, wife PW5 Mamta in cross examination not stated so. PW2 Sanjay Sharma stated that his sister Mamta (PW5) also went to toilet on 23.01.2010, but Mamta (PW5) not stated so and deposed that she went on 25.01.2010 only. This created doubt about day of information of finding of dead body.
52. It also emerges from prosecution evidence that despite getting the information that mobile phone was missing neither any of the police officials nor any of family members of deceased tried to call the mobile of deceased on the night of 25.01.2010 when dead body recovered or thereafter when they got to know about this. It appears somewhat unnatural when deceased was having mobile phone why his wife and other family members not tried to contact him when they have not found him on 23.01.2010, 24.01.2010 and subsequent thereto also. Even PW1 Fekan Mandal not tried to contact deceased on that mobile. This all creates doubt whether on day of incident the deceased was having the said mobile phone in his possession or not. Circumstance of receiving of SMS on the mobile number of accused when using deceased mobile on 21.01.2010:
State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 33 of 36)
53. PW9 Tarun Khurana Nodal officer Bharti Airtel brought the summon record of mobile no. 9818707192 of accused Mohd. Afroz alongwith customer application form as well as CDR. And as per CDR he received a SMS on this number when said sim was inside the mobile of deceased. However, accused in his defence denied of using said mobile phone and also stated that the customer application form also do not bear his signature and his photographs were misused by somebody and he never used the said mobile number. Ld. Defence counsel also submitted that the signatures on the customer application form is totally different with signature of accused taken out by police on seizure memos etc., as circle missing after the word "Mohd". However, on close perusal the signatures, I do not find difference in flow of writing. Further, the customer application form also bears the photograph of accused. It is not denied by accused that the election card accompanying customer application form do not belong to him or address mentioned in customer application form also do not belong to him, therefore the circumstance that the accused used deceased mobile phone on 21.01.2010 with his sim card is duly proved by prosecution, but question remains whether only on the basis of this circumstance accused can be found guilty of offence of murder.
54. It is settled principle of law that prosecution is obliged to prove the guilt of accused beyond reasonable doubt and in case of circumstantial evidence all the circumstances from which the conclusion of guilt is to be drawn should be fully and cogently established. And all the facts so State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 34 of 36) established should be consistent only with hypothesis of guilt of accused and proved circumstances should be a conclusive nature and must unerringly pointing towards the guilt of accused and they should be of such a nature as to exclude every hypothesis but the one proposed to be proved. Therefore, the prosecution has to prove all the circumstances conclusively and also the circumstances should unerringly point towards the guilt of accused.
55. In present case the prosecution as already discussed unable to prove the circumstance of last seen evidence reasonably even none of the family members of deceased stated about any relationship between accused and deceased. Prosecution for proving the motive of the crime relied upon the disclosure statement of the accused, though, inadmissible wherein accused stated that deceased is interested in unnatural sex and therefore on denial the quarrel took place and in that quarrel he hit the deceased with blunt object and also caused knife injuries to him. There came noting in testimony of any of witness that deceased was interested in unnatural sex and also nothing came in the medical examination that deceased used to any unnatural sex. IO PW21 Rakesh Sangwan also stated that during investigation no other person told him that accused and deceased used to do unnatural sex. Further, the photographs of the deceased taken at the spot also do not suggest of such condition of trying for unnatural sex. Therefore, the prosecution also could not prove the motive of the crime and no motive can be proved just merely relying upon the disclosure State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 35 of 36) statement of the accused.
56. On overall appreciation of evidence prosecution unable to prove material circumstances like last seen evidence,manner of apprehension of accused, recovery of mobile of deceased from possession of accused, recovery of keys and sim card at the instance of accused. Further, the recovered keys as per FSL record are not keys of locks in question. Therefore, only incriminating circumstance against accused is receiving of SMS when his sim card was inside mobile of deceased. This circumstance as already discussed is not sufficient to reasonably conclude that accused Mohd. Afroz killed the deceased Rama Shankar.
57. It is the duty of prosecution to prove its case beyond reasonable doubt however prosecution in present case unable to prove its case beyond reasonable doubt. Hence, accused Mohd. Afroz is given benefit of same and acquitted of charges framed against him. Accused is directed to furnish the bail bond in sum of Rs. 20,000/ with one surety in like amount in terms of section 437A Cr.P.C.
Announced in Open Court
On 22nd January, 2013 (AJAY KUMAR JAIN)
ASJ03: SE: NEW DELHI
State Vs. Mohd. Afroz, SC no. 172/10, (Pg No. 36 of 36)