Delhi District Court
(126) vs Shahabuddin Etc. Sc No. 73/14 Page 126 Of ... on 5 September, 2014
(1)
IN THE COURT OF SH. GIRISH KATHPALIA, ASJ05,
SOUTH EAST DISTRICT, SAKET, NEW DELHI
SC No. 73/14
STATE
vs
1. MOHD. SHAHABUDDIN
S/o late Abdul Sattar,
R/o plot No. 460, J.J.Colony,
PhaseIII, Madanpur Khadar,
P.S. Sarita,Vihar, New Delhi
2. ALI KHOKHAN S/o late Shontun,
R/o near Okhla Railway Station,
Sriniwaspuri (near Arif Kawarhi),
New Delhi
Permanent Address:
Village Chhota Badra PS Marul Ganj,
Distt. Bagher Haat, Bangladesh
3. RIZWANA W/o Rahim Ali,
R/o H. No. 116, Zamroodpur village,
Greater Kailash, New Delhi
Permanent Address:
Mohalla Kathokartalao,
PS Civil Lines, Gaya (Bihar).
State vs. Shahabuddin etc. SC No. 73/14 Page 1 of 221 Pages
(2)
FIR No. 314/07
PS Greater KailashI
Under Section 302/460/34/411/120B IPC
Unique ID : 0240RO333722008
Date of Committal : 06.05.2008
First Date in this Court : 03.02.2014
Date of conclusion of arguments : 25.08.2014
Date of decision : 05.09.2014
J U D G M E N T
PROSECUTION CASE
1. On 12.12.2007, Shri Anant Zanane informed PS Greater KailashI that landlady of 1st floor, House No. N209, Greater KailashI was not opening the door and on checking it was found that the house had been ransacked. This information was recorded in DD no. 5A at 09:15am and was marked to W/SI Rita who alongwith ASI Inderjeet, Ct. Dilraj, Ct. Rakesh and Ct. Babu Lal reached at the spot, namely 1st floor of House No. N209, Greater KailashI, New Delhi. On State vs. Shahabuddin etc. SC No. 73/14 Page 2 of 221 Pages (3) inspection it was found that the said house had been ransacked and in one bedroom, the landlady, identified as Smt.Nishi Banga was found lying dead on the bed with her hands, legs and mouth tied with clothes. Crime team and dog squad were called at the spot and W/SI Rita got the present case registered for offence under Sec. 302/460 IPC by endorsing rukka on DD No. 5A and the investigation was handed over to Inspector Ganga Singh.
2. Upon registration of FIR, the special reports were dispatched to the senior officers through special messenger. During investigation, services of the dog squad were utilized for some lead in the case. Photographs of the crime scene were taken by the crime team photographer and videography of the scene of occurrence was also got done. Scene of crime was State vs. Shahabuddin etc. SC No. 73/14 Page 3 of 221 Pages (4) inspected and site plan was prepared. Dead body of the deceased was shifted to AIIMS with the request to preserve the same for 72 hours as the husband of the deceased was to arrive from Italy.
3. During investigation, scene of crime was inspected by team of Finger Print Experts headed by SI N.K. Sharma, who lifted 21 chance prints from different places on the scene of crime and prepared his report dated 12.12.2007 and handed over the same to the investigating officer (IO). During inspection of the scene of crime, one black hair strand measuring about one inch in length was found at the pillow on the bed of the deceased Nishi Banga and the same was seized by the IO after making a sealed parcel. The pieces of clothes used for tying the deceased were found to have been torn from State vs. Shahabuddin etc. SC No. 73/14 Page 4 of 221 Pages (5) the clothes in the bedroom of the deceased and the remaining parts of those torn clothes were also seized. Postmortem of the dead body was got conducted on 14.12.2007, after husband and relatives of the deceased arrived from Italy and identified the deceased. During autopsy, the doctor preserved the clothes used for tying the deceased, vaginal swab, viscera, hair sample and blood in gauze which were seized by the IO. On 20.12.2007 Sh. Vikas Banga son of the deceased submitted a list of robbed items before the IO. The autopsy report of the deceased disclosed the cause of death as asphyxia due to smothering by cloth as well as manually which was sufficient to cause death in ordinary course of nature and the injuries on the body were antemortem. On 30.12.2007 after further checking of the missing articles, Sh Harbans Singh Banga, husband of the State vs. Shahabuddin etc. SC No. 73/14 Page 5 of 221 Pages (6) deceased supplied to the IO another list of missing articles.
4. Consequent upon the transfer of the first IO Inspector Ganga Singh further investigation was assigned to Inspector Rohtas Kumar. During further investigation, viscera and other exhibits were sent to CFSL Kolkatta for further scientific examination, though the cause of death was already known.
5. On 26.01.2008 an information was received by the IO Inspector Rohtas Kumar through source of Special Staff, South District that one person, suspected to be involved in the present case had been seen in Kolkatta. As such, the IO alongwith SI P.D. Singhal and other staff rushed to Kolkatta and at the instance of the secret informer, accused Shahabuddin was apprehended from near IndiaBangladesh State vs. Shahabuddin etc. SC No. 73/14 Page 6 of 221 Pages (7) border at Rameshwerpur on 27.01.2008 at about 02:30am. Accused Shahabuddin was brought to Delhi and was interrogated and arrested. During investigation, accused Shahbuddin identified the scene of crime, Khatta (dustbin), place of distribution of robbed articles, place near LSR bus stand where he threw the watch; the golden finger ring and ear rings with the receipt for Rs. 7,400/, which Shahabuddin had purchased from the robbed money were recovered at his instance from his room at Chaman Vihar; accused Shahabuddin also got recovered the remaining amount of Rs. 9,000/ out of the robbed cash of his share from his rented room in Chaman Vihar. The cash Rs. 9,000/ and jewelery, purchased from the robbed money, recovered from Shahabuddin on the basis of his disclosure statement and at State vs. Shahabuddin etc. SC No. 73/14 Page 7 of 221 Pages (8) his instance were seized by the IO on 28.01.2008.
6. Accused Shahabuddin also identified the room at ground floor of House No. 116, Zamrood Pur where Rizwana @ Sangeeta resided and had met him and Ali Khokhan; and where they had conspired.
7. On 29.01.2008 two coaccused persons namely, Ali Khokhan and Alamgir were apprehended at the instance of accused Shahbuddin from Madanpur Khadar and after interrogation, they were arrested. IO recorded disclosure statements of both Ali Khokan and Alamgir, in pursuance whereof a mobile phone box was recovered at the instance of accused Alamgir from the fourth floor roof of the house where they had distributed the robbed articles; the said box was found to bear the unique IMEI number, which tallied with the State vs. Shahabuddin etc. SC No. 73/14 Page 8 of 221 Pages (9) robbed nokia mobile phone as reported by Mr. Vikas. The said mobile phone box was seized on 29.01.2008. Both the accused Ali Khokhan and Alamgir pointed out and identified the place of offence, Khatta (dustbin) where they hid themselves with co accused persons, and the roof of fourth floor house in Zamroodpur where they had distributed the booty.
8. On 03.02.2008, the coaccused and conspirator maid servant Rizwana @ Sangeeta was apprehended and arrested in the present case. On the basis of disclosure statement of Rizwana, the pearl necklace and two pairs of ear rings which she had taken as her share from Shahbuddin and Ali Khokhan were recovered from her possession and were seized on 03.02.2008.
9. During further investigation of the case, the hair State vs. Shahabuddin etc. SC No. 73/14 Page 9 of 221 Pages (10) samples of all the three accused persons, namely Shahbuddin, Ali Khokhan and Alamgir were got preserved at Forensic Medicine Department, AIIMS after taking permission from the court. The finger prints and palm prints of all the three accused persons were taken and sent to the Finger Print Bureau for comparison with the chance prints that were lifted from the scene of crime on 12.12.2007. The comparison report of the Finger Print Bureau held that one of the chance prints marked as Q 18, lifted from the almirah in the bedroom from the scene of crime was identical with the specimen print of left middle finger marked S2 of accused Shahbuddin.
10. During further investigation, the judicial TIP of the case property, namely, gold pendant of Om shape, recovered from the possession of accused Ali Khokhan and one pearl State vs. Shahabuddin etc. SC No. 73/14 Page 10 of 221 Pages (11) necklace and two pairs of ear rings, recovered from the possession of Rizwana was got conducted in the court of Mrs. Veena Rani, learned MM, Patiala House, New Delhi, in which Sh. Harbans Singh Banga correctly identified the case property.
11. After completion of investigation, charge sheet was filed for offences under Sections 302/460/411/34/120B IPC against four accused persons, namely Shahabuddin, Ali Khokan, Rizwana and Alamgir, but subsequently, Alamgir was found to be juvenile, so his case was referred to the Juvenile Board. As against the remaining accused, who could not be arrested, supplementary charge sheet was to be filed but the same has not been done till date.
12. Upon committal, trial of this case was assigned to State vs. Shahabuddin etc. SC No. 73/14 Page 11 of 221 Pages (12) my learned predecessor who framed joint charges against all the accused persons for offences under Sec. 302/120B/460/34 IPC and separate charges against each of the accused persons for offence under Section 412 IPC to which accused persons pleaded not guilty and claimed trial.
13. In support of its case prosecution examined 24 witnesses, whereafter by way of separate statement, learned prosecutor closed prosecution evidence. Statements of all the accused persons were recorded under Sec. 313 Cr.P.C in which the accused persons denied the truthfulness and correctness of the prosecution evidence and pleaded that they have been falsely implicated in this case but they opted not to lead any defence evidence.
State vs. Shahabuddin etc. SC No. 73/14 Page 12 of 221 Pages (13) PROSECUTION EVIDENCE
14. A brief compendium of the evidence adduced on behalf of prosecution is as follows.
15a. PW1 is the finger print expert SI Gyanender Singh, who proved his report as Ex.PW1/L and description report as Ex.PW1/M alongwith the specimen and chance print report as Ex.PW1/N and Ex.PW1/P. In his detailed testimony, PW1 stated that upon comparison of the chance prints received by him with the specimen prints, he found that the chance prints lifted from the spot were found to be identical with the specimen prints pertaining to the right thumb, left middle finger, left palm and left index finger of accused Mohammad Shahabuddin. As per testimony of PW1, chance print Ex.PW1/A was identical with right thumb specimen State vs. Shahabuddin etc. SC No. 73/14 Page 13 of 221 Pages (14) impression Ex.PW1/B of accused Shahabuddin; chance prints Ex.PW1/C and Ex.PW1/D were found identical with the specimen print Ex.PW1/E of left middle finger of accused Shahabuddin; chance print Ex.PW1/F was identical with left palm print Ex.PW1/G of accused Shahabuddin; chance print Ex.PW1/H was identical with left palm print Ex.PW1/I of Shahabuddin; and chance print Q17, as per PW1 was already Ex.PW1/C and was found identical with left index finger print Ex.PW1/J of accused Shahabuddin. PW1 further stated that chance prints marked Q1, Q3, Q4, Q5, Q9, Q12A and Q12B were found not identical with the finger and palm impressions of any of the accused persons. PW1 further stated that chance prints Q2A, Q2B, Q6, Q7, Q10, Q11, Q13, Q14 and Q15 were either partial, hazy or smudged and did not disclose sufficient State vs. Shahabuddin etc. SC No. 73/14 Page 14 of 221 Pages (15) number of details for purposes of comparison, hence were found unfit. PW1 added that one print is sufficient to establish identity of a person, therefore, one set of identical prints Q18 (Ex.PW1/C) and S2 (Ex.PW1/E) were taken as points of identity in support of his opinion.
15b. PW1 was cross examined at length, mainly aimed at assailing his competence and credibility and a suggestion was extended to him in cross examination that he did not properly analyze the prints and had deposed falsely at the instance of the IO. In his cross examination, PW1 stated that pattern of the chance prints could not be determined by him since the print was very small; that the pattern of the sample print was ulnar loop; that the whorl pattern is not similar to the ulnar loop pattern; that in the latent print, the pattern could not be State vs. Shahabuddin etc. SC No. 73/14 Page 15 of 221 Pages (16) completely determined since the portion lifted was very small; that in the sample print, the delta was not properly visible; that the principal axis could not be seen properly in the prints; that where delta is not seen, there would be no question of principal axis; that the delta and principal axis coincide at the same point; that the age of lifting of the latent prints/chance prints cannot be properly determined; that he could not determine the age of lifting of the chance prints and at the same time could not admit or deny that the latent print in question might have been lifted on 27.01.2008; that he could not tell as to when his last report of comparison of finger prints was believed or disbelieved by the court; that his department is governed by the police. In the course of cross examination, the learned defence counsel asked PW1 as to State vs. Shahabuddin etc. SC No. 73/14 Page 16 of 221 Pages (17) what is the significance of ulnar loop in the sense whether the ridges travel from thumb to small finger or from small finger to thumb in the ulnar loop, but this question was disallowed by my learned predecessor on the grounds that it was irrelevant since the witness was regarding comparison of finger print and not for telling the pattern and importance of the particular pattern or the specialty of that particular pattern. Further in the course of cross examination, PW1 was asked on which school of thought he had characterized the chance print and the sample print but in response the witness stated that he had compared the chance print and specimen print digit to digit manual comparison and on the basis of finger print science, instead of school of thought used for the analysis. Further, in cross examination PW1 was asked as to if he knew State vs. Shahabuddin etc. SC No. 73/14 Page 17 of 221 Pages (18) the school of Henry method for determination of two different finger prints for similarity or dissimilarity, the witness stated that the Dr. Henry has given formula of classification of finger prints.
16. PW2, Smt. Veena Rani, MM Mahila Court, New Delhi, testified as regards the TIP proceedings of the jewelery articles namely, two pairs of ear rings out of which one pair of ear ring of square shape and other ear rings of round shape and one pearl necklace with pendent and one gold pendent in the shape of Om. PW2 stated that she carried out TIP proceedings on 07.02.2008 on application Ex.PW2/A of the IO. PW2 proved her TIP proceedings report as Ex.PW2/B.
17. PW3 Sh.Harbans Singh, husband of the deceased deposed that for past 25 years he had been residing in Italy State vs. Shahabuddin etc. SC No. 73/14 Page 18 of 221 Pages (19) alongwith his two sons while his wife, the deceased Smt. Nishi Banga was residing alone in New Delhi; that on 12.12.07 he received a phone call from his brother in law Jogender Nath Oberoi that his wife had been murdered, so he took the immediate available flight and came to Delhi on 13.12.07 when he was told that the dead body had been taken to AIIMS but the same could not be shown to him by police as it was too late; that on 14.12.07 he went to AIIMS mortuary where he identified dead body of his wife vide statement Ex.PW3/A and the dead body was handed over to him vide receipt Ex.PW3/B; that after cremation, it took him 34 days in order to find the missing articles from the house and on 20.12.07 he handed over a preliminary list of missing articles Ex.PW3/C to the police station; that after a few days, he delivered to the police State vs. Shahabuddin etc. SC No. 73/14 Page 19 of 221 Pages (20) supplementary list Ex.PW3/D of the missing articles; that on 07.02.08 he participated in the TIP proceedings of the jewelery articles; that when he had returned to Delhi, it appeared to him that the house had been robbed after murder of his wife. PW3 during his testimony identified the Om shaped pendent as Ex.P1, two pairs of ear tops as Ex.P2 (colly), pearl necklace as Ex.P3 and photographs of his house as Ex.P4/132. PW3 also named the missing articles listed in Ex. PW3/C and Ex.PW3/D. In his cross examination, PW3 stated that in the first list of missing articles dated 20.12.07 he had specifically mentioned IMEI number of the telephone; that there was no specific identification mark mentioned as regards the jewelery articles; that he had not produced the bills of jewelery articles and the same were not available with him but might have been State vs. Shahabuddin etc. SC No. 73/14 Page 20 of 221 Pages (21) available with the deceased; that he did not give denomination of currency notes which had been allegedly robbed; that he did not know whether any cash memo or cash receipt for the purchase of the mobile phone was handed over to the investigating officer; that the mobile phone of the same IMEI number was never shown to him at any stage.
18. PW4 Sh.Surjeet Banga, brother of Shri Harbans Banga deposed that on 12.12.2007, he received a call in Bombay that his brother's wife had been murdered, so he reached Delhi on 13.12.2007 and on going to the house of his brother he found the house ransacked and also found that the dead body had been shifted already to the mortuary of AIIMS; that on 14.12.2007 he went to mortuary and identified the dead body of deceased Smt. Nishi Banga vide identification State vs. Shahabuddin etc. SC No. 73/14 Page 21 of 221 Pages (22) statement Ex.PW4/A and received the dead body vide receipt Ex.PW3/B. Cross examination was mainly aimed at reflecting that PW 4 signed blank paper on which Ex.PW 4/A was prepared by police since name of husband of the deceased was wrongly shown as Harnam Singh Banga which is the name of father of PW4.
19. PW5 Sh. Anant Zanane deposed that in the year 2007 December, he was residing as tenant on the ground floor of H. No. N 209, Greater KailashI alongwith his colleague Alok Pande and in the same house another tenant Smt. Sonali Kapoor was residing and in that house Smt. Nishi Banga used to reside alone; that on 12.12.2007 when he was in his room, at about 09:00am Smt. Sonali Kapoor came and informed that Mrs. Nishi Banga was not responding to the door bell and later State vs. Shahabuddin etc. SC No. 73/14 Page 22 of 221 Pages (23) Kalu, servant of Smt. Nishi Banga also informed him that she was not responding to the knocking on the door, so he went to the first floor and found the rear side partly opened; that he entered the house of the deceased and found that the same had been ransacked, almirahs were opened and one of the two rooms was closed from inside; that when he could not open the door of the closed room, he informed the police, whereafter two constables came and with their help, he started searching for the deceased; that one of those constables entered one room which had been found to be closed and the constable saw the dead body of the deceased whose hands and legs were tied and mouth was gagged; that the said constables called their senior officers and police investigated the matter.
20. PW6 SI N.K. Sharma of Finger Print Bureau State vs. Shahabuddin etc. SC No. 73/14 Page 23 of 221 Pages (24) deposed that on 12.12.2007, under the directions of his superiors he visited the spot and after examining the scene of crime he developed 22 chance prints from the articles suspected to be handled by the culprits and got the chance prints photographed through police photographer and prepared his report Ex.PW6/A; that he prepared a list of articles examined by him at the scene of crime which is Ex.PW6/B and also prepared a list of the marked chance prints which is Ex.PW 6/C. In his cross examination, PW6 stated that he reached the spot at about 11:45am and handed over the report of chance prints on the same day to the SHO.
21. PW7 HC Dilraj Singh deposed having accompanied W/SI Rita and other police officials to the spot on 12.12.2007, whereafter W/SI Rita handed over to him a rukka which he State vs. Shahabuddin etc. SC No. 73/14 Page 24 of 221 Pages (25) took to the police station and after getting the FIR Ex.PW7/A registered, he delivered a copy of FIR and the original rukka to W/SI Rita on the spot.
22. PW8 HC Hari Kishan deposed that on 12.12.2007, he recorded DD No. 5A Ex.PX on the basis of information received from Sh.Anant Zanane that Smt. Nishi Banga was not opening the door and articles in her house were lying scattered; that on the same day, he received rukka from Ct.Dilraj on the basis whereof he registered FIR Ex.PW 7/A and made his endorsement Ex.PW8/A on the rukka and handed over the same alongwith computerized copy of FIR to Ct.Dilraj.
23. PW9 W/SI Rita deposed that on 12.12.2007 on receipt of information vide DD No. 5A Ex.PX, she alongwith State vs. Shahabuddin etc. SC No. 73/14 Page 25 of 221 Pages (26) the other police officials reached the spot; that she found the main entrance of the house was locked and Anant Zanane a tenant of the house took them to the first floor from back side entry of the house which was found open; that inside the house she found the articles lying scattered and in one room dead body was lying; that she saw that hands and feet of the deceased were tied with clothes and her mouth was gagged with clothes; that she made endorsement Ex.PW9/A on DD No. 5A and handed over the rukka to Ct.Dilraj who went to the police station and got the FIR registered; that she informed the crime team and dog squad who reached the spot and the photographer took photographs of the spot; that the finger print expert also lifted chance prints from the spot; that Ct.Om Parkash carried out videography of the spot; that the State vs. Shahabuddin etc. SC No. 73/14 Page 26 of 221 Pages (27) deceased was lying on the bed and a pillow and a black hair were lifted from the bed by the IO; that the hair were lifted from the bed was kept in a piece of a paper which was placed in a plastic box and converted into pullanda by the IO and sealed with seal of GS and the same was seized vide seizure memo Ex.PW9/B; that from the spot, the IO also seized a bedsheet which had been torn by the accused persons to tie the hands and feet of the deceased; that the said bedsheet was converted into pullanda sealed with the seal of GS and seized vide seizure memo Ex.PW9/C; that the IO prepared the site plan and recorded her statement. PW9 identified the hair recovered from the spot alongwith the paper in which the same had been packed as Ex.PH (colly.) and also identified the bed sheet as Ex.PK. In cross examination, PW9 stated that Insp. State vs. Shahabuddin etc. SC No. 73/14 Page 27 of 221 Pages (28) Ganga Singh (IO) had reached the spot prior to the arrival of the crime team; that the crime team incharge had informed the IO that 21 chance prints were detected on the spot; the said spots were encircled by the crime team incharge but no seizure memo of the chance prints was made by the IO in her presence; that she had not seen any hair in the hands of the deceased and the hair which was lifted from spot had been found from the side of the pillow but she did not know whether photographs of the hair prior to its lifting were taken or not; that there were 21 chance prints which were lifted from spot; that she did not know if lifting of the chance prints was videographed or not; that the site plan which was prepared by the IO was at the instance of the complainant.
24. PW10 Dr.DN Bhardwaj, the forensic expert from State vs. Shahabuddin etc. SC No. 73/14 Page 28 of 221 Pages (29) AIIMS proved the postmortem report of the deceased as Ex.PW10/A and after describing the ante mortem injuries found on the dead body, stated that cause of death was due to smothering by cloth as well as by hands and the injury was sufficient to cause death in the ordinary course of nature.
25. PW11 Dr.Sudipta Ranjan Singh, Senior Resident, Forensic Department of AIIMS deposed that on 30.01.2008, Alamgir was examined in AIIMS by Dr. Sukhmit Singh who found no external injury on the accused and hair sample of the accused was preserved, sealed and handed over to the IO. PW11 proved MLC of Alamgir as Ex.PW11/A.
26. PW11 (inadvertently renumbered) Ct.Raj Singh deposed that the duty officer of PS Greater Kailash handed over to him copies of FIR in envelopes and he delivered the State vs. Shahabuddin etc. SC No. 73/14 Page 29 of 221 Pages (30) same to the area Magistrate, ACP, DCP and Joint CP and returned to the police station and informed the duty officer having done so, whereafter his statement was recorded by the IO.
27. PW12 Ct. Om Parkash deposed having conducted videography of the place of incident on 12.12.2007 and also having witnessed the seizure of the hair strand vide memo Ex.PW9/B; PW12 also deposed having witnessed the seizure of the bedsheet vide memo Ex.PW9/C; PW12 further stated that after video recording of the place of incident he handed over the video camera to the IO on the spot. PW12 identified the bedsheet as Ex.P1. In his cross examination, PW12 stated that chance prints had to be lifted by the crime team and he did not do the same.
State vs. Shahabuddin etc. SC No. 73/14 Page 30 of 221 Pages (31)
28. PW13 Ct.Rajesh deposed that on 28.02.2008 he collected four sealed bottles on instructions of the IO alongwith three sample seals and FSL form from the duty officer and went to FSL, Rohini to deposit the same, but the FSL official refused to accept the case property since the same was not accompanied with postmortem report, so he returned the case property to the police station and the same was redeposited in the malkhana; that on the next day 29.02.2008 he again collected the case property from the duty officer and postmortem report from the IO and reached FSL Rohini where he deposited the case property and the receipt obtained by him was handed over by him to the IO.
29. PW14 Shri Alok Pande, a tenant of the deceased stated that on 04.2.2008, he identified the accused Rizwana in State vs. Shahabuddin etc. SC No. 73/14 Page 31 of 221 Pages (32) the police station; that during the period from March 2007 to May 2007 he was tenant in the house of the deceased and even after shifting from her house he used to visit her; that in April, 2007 when he was tenant of the deceased, he had seen the maid of the deceased whom he identified in the police station but her name as Rizwana @ Sangeeta came to his knowledge subsequently. PW14 identified the accused Rizwana in court also. In his cross examination PW14 stated that there was no written agreement of his tenancy with the deceased and he was not aware if his police verification had been got done by the deceased or not; that he saw the accused Rizwana @ Sangeeta only once in the house of the deceased and was not aware if anyone else was working as a maid in the house of the deceased. PW14 denied the suggestion that he had never seen State vs. Shahabuddin etc. SC No. 73/14 Page 32 of 221 Pages (33) the accused Rizwana working in the house of the deceased.
30. PW15 SI Mahesh Kumar, draftsman of the Crime Branch deposed that on 18.3.2008 he accompanied the IO Inspector Rohtash Kumar and IO Inspector Ganga Singh to the spot where the first floor, which is the spot, was opened by the guard after collecting the keys from the relatives of the owner of the house and thereafter he prepared the rough notes with measurements of the spot and they returned to his office; that on the basis of the rough notes, which he subsequently destroyed, he prepared scaled site plan Ex.PW 15/A.
31. PW16 HC Dharampal, posted as photographer with crime team deposed that on 12.12.2007, he took 11 photographs of the spot and handed over the same to the IO alongwith negatives. PW16 proved the photographs as State vs. Shahabuddin etc. SC No. 73/14 Page 33 of 221 Pages (34) Ex.PW16/A1 to Ex. PW16/A11 and the negatives as Ex.PW16/A12 (colly). In his cross examination, PW16 stated that he had not taken the photographs of the spot at the time when the chance prints were picked up by the crime team; that rather he did not know whether chance prints had been taken by the crime team on that day or not; that he handed over the positives and negatives of the photographs to the IO 45 days after the same were clicked and at that time his statement was not recorded by the IO.
32. PW17 HC Babu Lal stated that on 12.12.2007, upon receipt of DD No. 5A he reached the spot alongwith other police officials and after entering the premises from rear side, he found the articles in the room scattered and also found the dead body with its mouth, hands and legs tied; that under the State vs. Shahabuddin etc. SC No. 73/14 Page 34 of 221 Pages (35) instructions of IO he shifted the dead body to AIIMS mortuary for preservation and till the dead body remained in his custody, the same was not tampered with; that after postmortem the doctors delivered to him 7 sealed parcels which he handed over to the IO and the same were seized by the IO vide memo Ex.PW17/A. In his cross examination, PW17 stated that mouth, legs and hands of the deceased were found tied with the clothes like chunni or saree; that he did not see the crime team collecting the chance prints; he also did not see any article being seized or sealed at the spot. 33a. PW18 Inspector PD Singhal deposed that on 26.1.2008 he joined investigation with IO Inspector Rohtash Singh and HC Ram Kishan and on that day he alongwith the IO, HC Ram Kishan and a secret informer left Delhi to State vs. Shahabuddin etc. SC No. 73/14 Page 35 of 221 Pages (36) Kolkatta by air, from where they took a taxi and reached at Hasnabad border near Kolkatta on 27.1.2008; that at Hasnabad border, Rameshwar Nagar, on pointing out of secret informer one person was apprehended from a house and the said apprehended person disclosed his name as Shahabuddin; that thereafter all of them returned to Kolkatta and from there back to Delhi by air and at about 11:00 pm they reached Delhi alongwith accused Shahabuddin; that thereafter, the accused was interrogated by the IO and was arrested vide arrest memo Ex. PW18/A, whereafter personal search of the accused was conducted vide memo Ex.PW18/B and disclosure statement Ex.PW18/C of accused Shahabuddin was recorded on 28.1.2008. In the course of his testimony before my learned predecessor, PW 18 also narrated at length State vs. Shahabuddin etc. SC No. 73/14 Page 36 of 221 Pages (37) the inculpatory contents of statement made by accused Shahabuddin in police custody, as regards the manner in which the alleged murder and robbery was committed. PW18 further stated that in pursuance to the disclosure statement, the accused Shahabuddin led them to LSR college but the wrist watch, allegedly robbed from the spot could not be recovered and IO prepared a pointing out memo Ex.PW18/D of that spot; that thereafter they reached the house of accused Shahabuddin at Chaman Vihar from where the accused got recovered a cash sum of Rs.9,000/ which was converted into sealed pullanda and seized vide memo Ex.PW18/E and the accused also got recovered one golden colour ring and one pair of golden colour tops and one receipt of Rs. 7,400/ of a goldsmith, which also were converted into a sealed pullanda State vs. Shahabuddin etc. SC No. 73/14 Page 37 of 221 Pages (38) and seized vide memo Ex.PW18/F; that thereafter, accused Shahabuddin was taken on 7 days police remand; that on 29.01.2008, alongwith IO Inspector Rohtash, Ct. Babu Lal, Ct. Shiv Kumar and accused Shahabuddin, he reached at Madanpur Khadar where the accused pointed towards two persons at a scrap dealer shop stating that those two persons also were involved in the incident, so those two persons also were apprehended by the police and they disclosed their names as Ali Khokhan and Alamgir; that thereafter they returned to the police station where the IO interrogated Ali Khokhan and Alamgir and arrested Ali Khokhan vide memo Ex.PW18/G, whereafter personal search of Ali Khokhan was taken vide memo Ex.PW18/H and disclosure statement Ex.PW18/I of Ali Khokhan was recorded; that Alamgir also was arrested but State vs. Shahabuddin etc. SC No. 73/14 Page 38 of 221 Pages (39) being a juvenile, was sent before the juvenile justice board; that during the formal search of accused Ali Khokhan, one locket of Om shape was recovered which was placed in a plastic container by the IO and sealed with his seal of RK and seized vide memo Ex.PW18/J; that accused Shahabuddin, Ali Khokhan and Alamgir also pointed out the place of incident as well as the place where they had concealed themselves and the place where they distributed the allegedly robbed articles vide pointing out memo Ex.PW18/K to Ex.PW18/L; that at the instance of accused Alamgir one box of Nokia mobile phone was recovered from the place where they allegedly distributed the robbed articles and the said box was converted into a cloth pullanda by the IO and was seized; that on 30.01.2008, accused Shahabuddin, Ali Khokhan and Alamgir were State vs. Shahabuddin etc. SC No. 73/14 Page 39 of 221 Pages (40) produced in court where the IO moved an application for collection of hair samples of the accused persons which was allowed by the court; that thereafter the accused persons were taken to AIIMS and the doctor took hair samples of accused persons and handed over the same to the IO in sealed condition which was seized by the IO; that on 03.2.2008, he alongwith Inspector Rohtash and police staff accompanied the accused Shahabuddin and they reached village Zamroodpur, New Delhi where at the instance of accused Shahabuddin, accused Rizwana @ Sangeeta was apprehended at her house; that after interrogating Rizwana, IO arrested her vide memo Ex.PW18/O and her personal search was taken by lady constable Suman vide memo Ex.PW18/P and disclosure statement Ex.PW18/Q of Rizwana was recorded by the IO; State vs. Shahabuddin etc. SC No. 73/14 Page 40 of 221 Pages (41) that accused Rizwana produced one pair of tops of golden colour and one necklace of pearl from her house which were sealed by the IO in a cloth pullanda and seized vide memo Ex.PW 18/R; that thereafter IO recorded statements of the witnesses and they returned to the police station; that accused Shahabuddin and Ali Khokhan also made further disclosure statements on 30.1.2008 which are Ex.PW18/S and Ex.PW18/T. PW 18 identified the accused persons in court during trial and also identified the currency notes recovered at the instance of accused Shahabuddin as Ex. P4, a pair of golden colour tops and golden colour ring and a receipt of Rs. 7,400/ recovered at the instance of accused Shahabuddin as Ex.P5(colly), the Om shaped pendent recovered at the instance of accused Ali Khokhan Ex.P1 (the same was already exhibited State vs. Shahabuddin etc. SC No. 73/14 Page 41 of 221 Pages (42) as Ex.P1), one pearl necklace and two golden colour pair of tops recovered at the instance of accused Rizwana as Ex.P2(colly) and Ex.P3 (already exhibited as Ex.P3), and the empty box of Nokia mobile phone recovered at the instance of accused Alamgir as Ex.P6.
33b. In his cross examination, PW18 stated that it is only the IO who could tell the DD number and time vide which he joined investigation on 26.1.2008; that it is only the IO who could tell if the secret information was reduced into writing on 26.1.2008 or not; that it is only the IO who could tell as to whether any DD entry was recorded pertaining to the receipt of secret information; that he was not aware if on 26.01.2008 the IO had lodged any DD entry at PS IGI Airport; that he was not aware if the IO had filed alongwith the charge sheet State vs. Shahabuddin etc. SC No. 73/14 Page 42 of 221 Pages (43) their air travel tickets pertaining to their travel to Kolkatta; that his travel ticket also was with the IO only; that he could not tell the amount of fare to Kolkatta and his ticket number; that he could not tell the air ticket number of any member of their team; that he could not tell name of the police station in whose jurisdiction the place of arrest of Shahabuddin fell; that no entry was lodged in the police station of Kolkatta or from where accused Shahabuddin was arrested; that they had only apprehended accused Shahabuddin from Kolkatta and did not arrest him; that in Kolkatta they had only normally questioned accused Shahabuddin but did not record his disclosure statement nor Shahabuddin made any disclosure in Kolkatta; that Shahabuddin did not voluntarily make any disclosure statement in Kolkatta on his having told State vs. Shahabuddin etc. SC No. 73/14 Page 43 of 221 Pages (44) Shahabuddin that he was a police official and Shahabuddin was being apprehended in the present case; that they did not record any statement of any member of Shahabuddin's family or neighbours at the time of apprehending Shahabuddin; that they brought accused Shahabuddin to Delhi from Kolkatta by air but he could not tell the air ticket number of Shahabuddin; that after reaching Delhi, they took Shahabuddin to PS Greater KailashI at about 11:00pm on 27.01.08 but he did not remember if any DD entry of arrival was recorded in the police station; that accused Shahabuddin was not placed in the lockup immediately on being brought to PS Greater KailashI; that it is on the morning of 28.1.2008 that they went to LSR with accused Shahabuddin and throughout from the time of arrest i.e 01:00 am of 28.01.2008 till the morning of 28.01.2008 State vs. Shahabuddin etc. SC No. 73/14 Page 44 of 221 Pages (45) when they went to LSR College, accused Shahabuddin remained in personal custody of IO and was not kept in the lockup of the police station; that although the IO had prepared the pointing out memo of the place where Shahabuddin had allegedly thrown the wrist watch but the IO did not prepare any site plan of that place; that in Delhi, they were traveling with accused Shahabuddin in a government vehicle but he did not remember if registration number of that vehicle was mentioned in any daily diary or not; that he did not remember if site plan of the residence of accused Rizwana was prepared or not; that the IO had made inquiries in the residential area of Rizwana as to whether the remaining accused persons used to visit her but he could not tell name of any two of those persons from whom such inquiries were made State vs. Shahabuddin etc. SC No. 73/14 Page 45 of 221 Pages (46) by the IO; that he could not tell the names of the owners of the houses around the house of Shahabuddin in Chaman Vihar; that he could not tell the direction in which the house of accused Shahabuddin opens; that house of Shahabuddin was rented accommodation but he did not remember whether IO had called the landlord to inquire about Shahabuddin as tenant; that he was not aware if IO had seized any tenancy document of accused Shahabuddin from the said premises; that when they reached there, room of Shahabuddin was closed and locked and the lock was opened by accused Shahabuddin with his hands without using any key; that he was not aware if the lock of the room of Shahabuddin was seized by the IO; that prior to entering the house of accused Shahabuddin they did not ask any public person to take their State vs. Shahabuddin etc. SC No. 73/14 Page 46 of 221 Pages (47) search; that he did not remember if in his presence the IO had recorded statement of any public person at the time of conducting proceedings in the house of accused Shahabuddin; that in his presence none of the seizure memos prepared in the house of accused Shahabuddin was got signed from any public person; that he did not know if any arrival entry was made in the police station when they returned alongwith the accused and the articles allegedly recovered; that the departure entry while taking accused Shahabuddin to Patiala House Court must have been recorded by the IO but he did not know about it; that he did not remember if the articles allegedly recovered at the instance of accused Shahabuddin were produced before the learned Magistrate at the time of first remand or not; that he did not remember the DD number vide which accused State vs. Shahabuddin etc. SC No. 73/14 Page 47 of 221 Pages (48) Shahabuddin was consigned to lockup on 28.1.2008 or taken out of the lock up on 29.1.2008; that the arrest memos of Ali Khokhan and Alamgir were not prepared at the Madanpur Khadar itself but the same were prepared after they reached back at the police station; that he did not remember if IO had recorded statement of anyone at Madanpur Khadar while arresting Ali Khokhan and Alamgir; that he did not remember if the IO had recorded statement of anyone while arresting Rizwana; that the arrest memo of accused Rizwana was prepared at the spot of her arrest; that signatures of none of the local residents from spot of arrest were taken on the arrest memo of Rizwana; that house where Rizwana was residing was a rented accommodation but in his presence the IO did not recover any document of tenancy from house of Rizwana. State vs. Shahabuddin etc. SC No. 73/14 Page 48 of 221 Pages (49) Defence suggestions were extended extensively to PW18 including the most crucial defence suggestion, which is the foundation of the defence that none of the police officials traveled to Kolkatta nor accused Shahabuddin was arrested in the manner as deposed by PW18 nor any other accused was arrested in the manner as deposed by PW18.
34. PW19, Lady Constable Suman deposed that on 03.02.08 while posted at PS Greater KailashI, she joined investigation of this case and went to the house of accused Rizwana alongwith SI PD Singal and staff where they met accused Rizwana, who was interrogated by IO Insp. Rohtash and after that she took personal search of Rizwana vide memo Ex.PW18/P from which nothing was recovered; that after arrest, Rizwana made disclosure statement Ex.PW18/Q and on State vs. Shahabuddin etc. SC No. 73/14 Page 49 of 221 Pages (50) the basis thereof Rizwana took her inside the room and from a suitcase took out two pairs of ear tops and one necklace which were converted into cloth pullanda by the IO, sealed with the seal of RK and seized; that accused Rizwana was identified by accused Shahabuddin; that on the way back from the house of Rizwana, the place of incident was pointed out by Rizwana vide memo Ex.PW19/A; that she could identify the case property but was not in a position to tell the description of the articles recovered at the instance of Rizwana in her presence. PW19 identified the jewelery articles recovered at the instance of Rizwana in her presence as Ex.P2 and Ex.P3 and stated that she could not give any reason for having failed to give description of the said articles. In her cross examination, PW19 stated that she did not remember if IO had recorded her State vs. Shahabuddin etc. SC No. 73/14 Page 50 of 221 Pages (51) statement or if the IO had collected from duty officer a copy of her departure entry from the police station; that to the house of accused Rizwana, they had gone by foot but she could not tell the time when they reached there; that in her presence, site plan of the house of Rizwana and the place of alleged recovery of jewelery articles was not prepared; that house of Rizwana is in a populated residential area and when they reached there, public gathered but in her presence none of the public person signed any document; that accused Rizwana was a tenant in that house but she did not remember if the IO had called the landlady of that house or collected any documentary evidence of Rizwana's tenancy; that accused Shahabuddin had not been taken out of any lockup since there is no lockup in PS Greater Kailash and she was not aware as to from where State vs. Shahabuddin etc. SC No. 73/14 Page 51 of 221 Pages (52) accused Shahabuddin had been brought by the police officials; that in her presence, the IO did not record any arrival or departure entry regarding accused Shahabuddin; that she did not remember having made any arrival entry in the police station when she brought Rizwana back after medical examination; that she could not tell as to how many persons were residing in the room from where the jewelery articles were allegedly recovered at the instance of Rizwana, though during the proceedings husband and two children of Rizwana had reached there but she did not know if IO recorded statement of Rizwana's husband; that she could not tell as to how many documents were prepared at the house of Rizwana; that she did not know if in her presence the IO had noted down any specific identification mark on the jewelery allegedly State vs. Shahabuddin etc. SC No. 73/14 Page 52 of 221 Pages (53) recovered at the instance of Rizwana or had counted the beads in the necklace allegedly recovered; that the pointing out memo of the spot of occurrence was not got signed from any public witness in her presence and she could not tell as to who owned the houses on left or right side of the house of the deceased; that in her presence residents of the area had come to the spot on their own but their signatures were not obtained on any document; that site plan of the spot of occurrence was not prepared in her presence; that Rizwana was not taken inside the house of the deceased; that when they reached near the house of the deceased, Rizwana pointed out the said house.
35. PW20 Sh. Vikas Banga, son of the deceased deposed that as on 12.12.07 he was residing in Italy with his wife and son while his mother was residing alone in Greater State vs. Shahabuddin etc. SC No. 73/14 Page 53 of 221 Pages (54) KailashI, New Delhi; that at that time, his brother and father also were residing in Italy; that on 12.12.07 upon receipt of telephonic information from his relatives through his father that his mother had been murdered by some unknown persons, he alongwith his brother flew down to Delhi on 14.12.07 and after accepting the dead body, carried out the last rites; that thereafter, they started scanning their house which was in disarray and after finding out what was missing from the house, they delivered list Ex.PW3/C to SHO Greater Kailash and his statement was recorded by police. In his cross examination, PW20 admitted that they are engaged in jewelery business in Italy; that the ear rings enlisted at serial no.5 of list Ex.PW3/C, had been sent from Italy but he did not give any document pertaining to the same to the IO though he State vs. Shahabuddin etc. SC No. 73/14 Page 54 of 221 Pages (55) had told the IO that the ear rings were from Italy; that it is not possible to remember any specific mark of identification of the ear rings to distinguish the same from other jewelery as all jewelery made in Europe or Italy has a mark of KDM; that none of the articles mentioned in list Ex.PW3/C was shown to him in any court for identification; that he did not remember having given to the IO any document pertaining to mobile enlisted in Ex.PW3/C and he did not think if even as on date he is in possession of the same; that there was no document reflecting possession of any of the articles mentioned in Ex.PW3/C so there was no question of giving the same to the police; that the bangles enlisted at serial no.3 of Ex.PW3/C did not bear any mark of identification; that he could not produce any documentary evidence as regards ownership of watch State vs. Shahabuddin etc. SC No. 73/14 Page 55 of 221 Pages (56) enlisted at serial no.6 of Ex.PW3/C; that his last visit to India was an year or two prior to the incident; that in his presence, no document of ownership or possession of the pearl necklace enlisted in Ex.PW3/D was given to the police. PW20 denied the defence suggestion that the lists Ex.PW3/C and Ex.PW3/D were fabricated lists and the articles were planted by police.
36a. PW21 Insp. Ganga Singh deposed that on 12.12.07 he was posted as Inspector in PS Greater Kailash and on that day he received DD No. 6A whereafter he alongwith his staff reached the spot and found WSI Reeta already present there; that at the bed in the room next to the staircase of first floor he found dead body of a lady whose name he came to know as Smt. Nishi Banga, whose hand, feet and mouth were found State vs. Shahabuddin etc. SC No. 73/14 Page 56 of 221 Pages (57) tied with pieces of clothes; that he called the crime team, finger print expert and the dog squad on the spot besides photographer and videographer; that he prepared the site plan Ex.PW21/A at the spot; that after receipt of copy of FIR, he sent the dead body to AIIMS mortuary through WSI Reeta; that on searching the room of the house where the dead body was found, he found a strand of black hair on the pillow in the room where dead body had been found and converted the hair into sealed pulanda with his seal of GS and seized the same vide seizure memo Ex.PW9/B; that he also found in the room one blue and white colour rug from rags of which, the hands and feet and mouth of the deceased had been tied; that he converted the rug into cloth pulanda sealed with his seal of GS and seized the same vide seizure memo Ex.PW9/C; that State vs. Shahabuddin etc. SC No. 73/14 Page 57 of 221 Pages (58) thereafter, finger print expert Sh. N.K. Sharma lifted chance prints from various places on the spot; that in the evening he returned to police station and deposited the case property in Malkhana; that on 13.12.07 he tried to search for the accused persons but could not succeed; that on 14.02.07 when husband and son of the deceased returned to India, he got the postmortem conducted on the dead body; that after postmortem, Ct. Babu delivered to him five sealed parcels sealed with the seal of AIIMS which he deposited in Malkhana after seizing the same vide seizure memo Ex.PW17/A; that he also got the dead body identified from husband and one relative of the deceased vide statements Ex.PW3/A and Ex.PW4/A and after postmortem, he delivered the dead body to relatives of the deceased vide receipt Ex.PW3/B; that on State vs. Shahabuddin etc. SC No. 73/14 Page 58 of 221 Pages (59) 20.12.07 Sh. Vikas, son of the deceased gave him a list of articles which were found missing by him from the house and subsequently on 30.12.07 husband of the deceased gave another list of missing articles which was Ex.PW3/D; that thereafter he got transferred and handed over the file to the SHO.
36b. In his cross examination PW21 stated that the information in DD No. 6A was that on first floor of N209, Greater KailashI, a murder had been committed; that it is the duty officer who informed him about DD No. 6A; that he was not aware as to who had called up to duty officer for recording DD No. 6A; that he was also not aware that in DD No. 6A, it was mentioned that the information had been received from PCR; that it was one Anant Zanane, resident of ground floor of State vs. Shahabuddin etc. SC No. 73/14 Page 59 of 221 Pages (60) N209 who had informed the PCR about the murder; that he did not remember whether he recorded statement of Anant Zanane or not; that he did not disclose to the SHO that the initial information about the murder was given by Anant Zanane; that he did not investigate as to how for the first time the factum of murder came to light; that he did not know as to whether any departure entry was recorded by Lady SI Reeta before proceeding to the spot upon receipt of DD No. 5A or not; that he did not know as to who was residing in the house next to the lane adjacent to premises no. N209; that N209 consists of ground floor and first floor; that there was no tenant at the first floor of N209; that there are houses next to the main road adjacent to N209 and towards front side as well as back side of N209 there are houses; that he had made inquiries State vs. Shahabuddin etc. SC No. 73/14 Page 60 of 221 Pages (61) from neighbours as to who was residing and visiting N209; that he did not remember if he recorded in the case diary that he had made inquiries from the neighbours; (at request of the defence counsel, the witness was allowed to see the case diary and thereafter, he stated); that in the case diary he did not record that he had made inquiries from the neighbours as to who used to visit N209, though he had made inquiries as to whether the deceased had any servant or not; that he did not record statement of any of the neighbours from whom he made inquiries; that he also did not record any reason in his case diary for not recording the statements of the neighbours under Section 161 Cr.P.C.; that he had asked the neighbours of N209 if anybody had seen any of the accused persons or anyone else going to N209 or coming out of that house during the period of State vs. Shahabuddin etc. SC No. 73/14 Page 61 of 221 Pages (62) commission; that he did not remember if he had recorded in the case diary regarding the said facts; (at this stage at request of learned defence counsel the witness was shown the case diary and he stated having not recorded in the case diary that he had made inquiries from the neighbours of N209, if anyone had seen any of the accused persons or anyone else going to N209 or coming out of that house during the period of commission of offence); that he did not record in the case diary as to how many persons had been inquired by him regarding the fact of their awareness that the deceased was residing alone; that he had interrogated the servants of the houses in the vicinity of N209 but did not record their statements, though he had recorded names of those servants in the case diary (at request of learned defence counsel when the witness was shown the case State vs. Shahabuddin etc. SC No. 73/14 Page 62 of 221 Pages (63) diary, he stated); that he did not record in the case diary names of those servants whom he had interrogated; that he could not admit or deny the suggestion that some of the miscreants of that area also could have committed the murder and loot and admitted that the murder and the loot was committed by those persons who had knowledge that the deceased was living alone in that house; that he did not ask any of the neighbours of N209 to get the FIR recorded on their statement; that when the crime team lifted the chance prints from the spot, he and the SHO were present and the finger print expert informed them that he had lifted 21 chance prints; that he did not prepare any seizure memo of the articles from where the chance prints had been lifted; that the articles from where the chance prints were lifted, were not got photographed; that even State vs. Shahabuddin etc. SC No. 73/14 Page 63 of 221 Pages (64) the exercise of lifting of chance prints was not got photographed by him; that he recorded the statement of the photographer on the same day but there is no mention in that statement as to why the photographs of the articles of chance prints were not taken; that the spot of occurrence that is the house No. 209, Greater KailashI was in his custody and under his lock and key during the period from 12.12.07 to 13.12.07 but he could not say if he recorded this fact in his case diary (at that stage, at request of learned defence counsel, the witness was shown the case diary and he stated that it was not mentioned in the case diary that house no. 209, Greater KailashI, was in his personal custody and under his lock and key during the period from 12.12.07 to 13.12.07); that he did not prepare any seizure memo of the lock and key at the time when State vs. Shahabuddin etc. SC No. 73/14 Page 64 of 221 Pages (65) the custody of the house was handed over by him to the relatives of the deceased; that on 14.12.07 when he handed over keys of N209 to son of the deceased, no independent person was present and he did not record any statement regarding delivery of the keys; that son of the deceased had given only a list of missing articles and not any document of ownership or possession of those articles and he did not investigate as to whether the said missing articles were ever owned or possessed by the deceased or her family; that son of the deceased also did not tell him nor did he ask any specific mark of identification of the said missing articles; that he did not investigate as to whether the articles enlisted in the two lists were ever owned or possessed by the deceased or her family. In the course of his cross examination, PW21, who is State vs. Shahabuddin etc. SC No. 73/14 Page 65 of 221 Pages (66) the first investigating officer of the Inspector rank apparently tried to evade direct and specific questions which were recorded in question answer form in the testimony itself. PW21 was specifically asked if he had asked SI Reeta as to how the fact of murder for the first time came to light as per her investigation till that stage. This question was asked to PW21 repeatedly and then again asked even in Hindi at his request and finally the answer which he gave was that Reeta had already reached the spot with her staff after receipt of DD No. 5A, which answer was recorded verbatim. Similarly, another question was evaded by the witness which was whether he investigated as to who all were aware that the deceased was residing alone in that house. This question also was repeatedly put to the witness in Hindi and even explained State vs. Shahabuddin etc. SC No. 73/14 Page 66 of 221 Pages (67) to him by me but in answer he stated that he had made inquiries from neighbours, who stated that the deceased was living alone, which answer was recorded verbatim. 37a. PW22 Insp. Rohtash Kumar, the second IO in this case deposed that on 02.01.08 while posted as Inspector (Law and Order) in PS Greater KailashI, he took over investigation of this case from Insp. Ganga Singh who was transferred and thereafter, he studied the case diary; that on 06.01.08 he sent the exhibits of the deceased to CFSL Kolkatta and continued to search for the accused persons; that on 26.01.08 an information was received that one of the suspects was trying to cross over to Bangladesh so he alongwith SI P.D. Singal, HC Ram Krishan and one informer flew to Kolkatta and from Kolkatta airport they took a taxi and reached Rameshwar State vs. Shahabuddin etc. SC No. 73/14 Page 67 of 221 Pages (68) border around 10:00 pm where he contacted the Deputy Commandant of BSF and after taking logistic help from BSF he raided a place near the border and apprehended the suspect Shahabuddin; that before proceeding for Kolkatta he had recorded DD No. 15A, copy whereof is Ex.PW22/A; that after apprehending Shahabuddin, they flew back to Delhi and reached here in the night of 27.01.08, whereafter accused Shahabuddin was interrogated and arrested vide arrest memo Ex.PW18/A and personal search of accused was conducted vide memo Ex.PW18/B and disclosure statement Ex.PW18/C was recorded; that thereafter, Shahabuddin took the police team to a place near Khatta, N Block, Greater KailashI, New Delhi, where the accused persons had gathered prior to the occurrence; that thereafter, Shahabuddin took the police team State vs. Shahabuddin etc. SC No. 73/14 Page 68 of 221 Pages (69) to the place near LSR college and pointed out the place vide memo Ex.PW18/D, whereafter the accused Shahabuddin took the police team to house no. 116, Jamrudpur and at his pointing out, memo Ex.PW18/A was prepared; that thereafter, they took accused Shahabuddin to Chaman Vihar near Loni border where the accused had been residing on rent; that accused Shahabuddin took the police team to a house with a red gate and got recovered a sum of Rs.9,000/ in cash which was seized vide seizure memo Ex.PW18/E; that accused Shahabuddin also got recovered some jewelery which was seized vide seizure memo Ex.PW18/F; that the paper envelope containing currency notes and cloth pulanda containing the jewelery were sealed by him with his seal of RK; that thereafter accused Shahabuddin was produced in the court of State vs. Shahabuddin etc. SC No. 73/14 Page 69 of 221 Pages (70) the Duty Magistrate and a 7 days police remand was obtained; that on 29.01.08, upon receipt of information that accused Ali Khokhan and Alamgir were seen in the area of Madanpur Khadar, he alongwith accused Shahabuddin and police party went to Madanpur Khadar and apprehended Ali Khokhan and Alamgir on the identification of Shahabuddin; that accused Ali Khokhan and Alamgir were interrogated and arrested by him and their personal search also were taken; that Alamgir was later found to be juvenile and was referred to the Juvenile Board; that in the personal search of accused Ali Khokhan, he found a pendent of Om shape which was seized by him after converting the same into cloth pulanda sealed with his seal of RK and seized vide seizure memo Ex.PW18/J; that thereafter, the accused persons led the police team to the place of State vs. Shahabuddin etc. SC No. 73/14 Page 70 of 221 Pages (71) occurrence and got prepared pointing out memo Ex.PW18/M; that thereafter, the accused persons took the police party to house no. 116, Jamrudpur where pointing out memo Ex.PW18/N was prepared; that on 13.01.08 all the three accused namely Shahabuddin, Alamgir and Ali Khokhan were produced before the learned Magistrate where he was granted police custody of Ali Khokhan and Alamgir for three days and also granted permission to obtain hair sample of the accused persons, so he took the accused persons to AIIMS where their hair samples were taken by the doctor and placed in a sealed container which he seized vide memo Ex.PW22/B; that he deposited the case property in Malkhana and on the same day he took specimen finger prints of all the accused persons and sent the same to the Finger Print Bureau for comparison with State vs. Shahabuddin etc. SC No. 73/14 Page 71 of 221 Pages (72) the chance prints; that he continued to search for the lady accused and another accused Aslam who was reported to have fled away to Bangladesh; that he sent the hair sample of accused and the questioned hair sample recovered from the spot to FSL Rohini and, thereafter, to CFSL Hyderabad and subsequently obtained the CFSL report and filed the same in Court; that on 03.02.08 upon receipt of information that accused Rizwana was spotted at Jamrudpur, he alongwith accused Shahabuddin, Lady Constable Suman and other staff raided the place in Jamrudpur and on identification of accused Shahabuddin, he apprehended the accused Rizwana and after interrogating, arrested her and got her personal search taken through lady constable Suman; that accused Rizwana was carrying with herself a suit case and from the same she took State vs. Shahabuddin etc. SC No. 73/14 Page 72 of 221 Pages (73) out two pairs of ear rings which were converted into sealed pulanda by him with his seal of RK and seized by him vide seizure memo Ex.PW18/R; that he also prepared pointing out memo at the instance of accused Rizwana and brought her to police station; that on 04.02.08, Sh. Harbans Singh Banga and Alok Pandey came to the police station, where Alok Pandey identified the accused Rizwana as maid of the deceased; that thereafter he obtained the results of finger print examination from the bureau and recorded the statement of finger print expert; that he summoned the previous IO Inspector Ganga Singh, at whose instance he got prepared scaled site plan of the spot of occurrence from the draftsman; that he got the TIP of the recovered articles carried out before the learned Magistrate and filed the charge sheet. PW22 also produced State vs. Shahabuddin etc. SC No. 73/14 Page 73 of 221 Pages (74) the original daily diary register, with the help of which copies of DD No. 15A dated 26.01.08 and 22A dated 28.01.08 were respectively exhibited as Ex.PW22/C and Ex.PW22/D. 37b. In his cross examination, PW22 stated that he did not know as to who was the investigating officer of this case during the period from 30.12.07 till 02.01.08 when the investigation of this case was assigned to him; that though he had studied the complete file but he did not remember if after seeing the complete case diary on 02.01.08 he found as to whether till that stage any investigation had been done regarding enmity of the deceased with anyone in the vicinity; (the witness was shown his case diary as requested by defence counsel and, thereafter, the witness stated) that it is mentioned in the case diary that as per investigation, it was found that State vs. Shahabuddin etc. SC No. 73/14 Page 74 of 221 Pages (75) the deceased did not have any enmity with any of her neighbours; (at this stage, it was recorded that as per CD No.2 dated 13.12.07, Mr. Anant Zanane had stated that ever since he started residing in the area, he never saw the deceased quarreling with anyone and she had cordial relations with all the neighbours); that he did not investigate as to what was the situation prior to the shifting of Mr. Anant Zanane in the area; that he did not record statement of anyone from the vicinity of the deceased as to whether she had enmity with anyone under Section 161 Cr.P.C.; that he did not record any statement under Section 161 Cr.P.C. of Mr. Anant Zanane; (after being allowed to refresh his memory by perusal of case diary, the witness stated) that there is no mention in the case diary as to if from anyone other than Mr. Anant Zanane, it was State vs. Shahabuddin etc. SC No. 73/14 Page 75 of 221 Pages (76) investigated as to whether the deceased had enmity with anyone; that he did not investigate the case from angle of enmity of the deceased with anyone; that he also did not investigate if anyone had ever seen any of the accused persons entering or coming out of the house of the deceased; that he did not record statement of any of the servants of the area, though he had interrogated them thoroughly; that he did not investigate connection of any local miscreants with the offence; that he did not record statement of the residents opposite the house of the deceased and also did not investigate as to who was residing opposite the house of the deceased, though such a person was likely to have seen anyone coming out of or entering in the house of the deceased; that he had not recorded in the case diary having not investigated the above mentioned State vs. Shahabuddin etc. SC No. 73/14 Page 76 of 221 Pages (77) facts; that prior to arresting the accused persons, he did not record statement of any witness to the effect that the deceased was living with a maid in her house; that he did not collect any evidence to show that accused Rizwana had ever worked with the deceased; that when he received the investigation, he noticed that husband and son of the deceased had given to the previous IO, list of the missing articles but without any documentary evidence of their ownership or possession; that he did not record any statement of any person of the vicinity of the deceased as to whether anyone had seen any of the enlisted articles in possession of the deceased; that except son and husband of the deceased, none else had told him having seen any of those enlisted articles in the house of the deceased; that admittedly the present case was a case of blind murder; that State vs. Shahabuddin etc. SC No. 73/14 Page 77 of 221 Pages (78) he did not know if the previous IO Insp. Ganga Singh had recorded statement of any relative of the deceased in order to investigate the enmity angle but he did not want to see the case diary in order to refresh his memory in that regard; that no arrest in this case was made till the investigation was transferred to him; that at the time of transfer of investigation to him, the evidence on case diary to reflect it to be a case of robbery was the inspection of scene of crime report of the crime team; that on the investigation file no such report of spot of occurrence was prepared by the IO; that he could not say as to whether the crime team had opined it to be a case of murder; that he could not remember if any police official was deputed to care of the spot of occurrence in the absence of the first IO till the arrival of the legal heirs of the deceased but on State vs. Shahabuddin etc. SC No. 73/14 Page 78 of 221 Pages (79) this aspect he did not want to see the case diary to refresh his memory; that he did not know if he had asked any reason from the previous IO for not deputing some police officials to take care of the spot till arrival of the legal heirs of the deceased; that he did not record any statement of legal heirs of the deceased or any other relative of the deceased as to what was the comprehensive list of articles lying in the said house prior to the occurrence; that he also did not ask the legal heirs of the deceased to furnish any comprehensive list in order to verify if the list given by them contained any article which was found lying in the said house prior to the occurrence; that he got the TIP of the recovered articles done only from one witness namely Sh. Harbans Singh but did not record any statement of Sh. Harbans Singh prior to the TIP to the effect that he had State vs. Shahabuddin etc. SC No. 73/14 Page 79 of 221 Pages (80) ever seen the deceased using the articles allegedly recovered in this case; that family of the deceased did not have any document reflecting the ownership or possession of the recovered articles with the deceased; that in the statement of Sh. Harbans Singh recorded subsequent to the TIP, the said witness did not disclose as to when he had firstly and lastly seen the deceased using the allegedly recovered articles; that Sh. Harbans Singh also did not tell him as to which of the articles were purchased or acquired on which particular date; that for the purposes of TIP, he had mixed up articles similar to the Om shaped pendent/article but he did not remember as to how many articles he used for mixing up; that he also did not write any DD entry as regards mixing up of the Om shaped articles and also did not remember whether he had mentioned State vs. Shahabuddin etc. SC No. 73/14 Page 80 of 221 Pages (81) about mixing up of other articles in his case diary but he did not want to see his case diary to refresh his memory in that regard; that he did not know as to how many similar articles are required to be mixed up at the time of TIP according to the Government Gazette; that after arrest of Rizwana, he had taken her to the spot but her identification was done in the police station; that only one witness had identified Rizwana as maid of the deceased and that witness used to live in the same house as tenant during the period when Rizwana had been working as maid and name of that tenant was Mr. Alok; that he did not obtain any documentary evidence of the tenancy of Mr. Alok during that period; that except the said Mr. Alok, none of the neighbours of the deceased had stated that Rizwana was working in the house of the deceased as a maid; State vs. Shahabuddin etc. SC No. 73/14 Page 81 of 221 Pages (82) that none of the neighbours of the deceased ever stated that Mr. Alok used to reside in the same house as tenant at any point of time; that statement of Mr. Alok was recorded on 3rd or 4th February, 2008 subsequent to the arrest of accused Rizwana; that at the time of arrest of Rizwana, the only evidence he had against her was the confessional statement of coaccused; that the evidence pertaining to the loot was only the list of articles furnished by the husband and son of the deceased besides the chance prints; that he did not receive from previous IO any photograph of the spot from where chance prints were allegedly lifted; that he did not receive from the previous IO any seizure memo of the chance prints to show that chance prints had been lifted by the crime team at the time of inspection only; that except the alleged chance State vs. Shahabuddin etc. SC No. 73/14 Page 82 of 221 Pages (83) prints and the alleged list of articles, he had no evidence to show that any loot had been committed in the premises of the deceased; that no information memo as regards the alleged presence of accused Shahabuddin at the international border of Bangladesh was prepared by him; that he had lodged DD entry as regards the said information but did not remember if the said DD entry is on record of this case or not; that the said information as regards accused Shahabuddin being on Bangladesh border was received by him through SHO but he was not aware as to how the SHO came to know about presence of Shahabuddin at the international border; that the SHO did not tell him any phone number also regarding the receipt of the information over telephone; that he had gone to arrest Shahabuddin by air and air tickets were furnished to State vs. Shahabuddin etc. SC No. 73/14 Page 83 of 221 Pages (84) him by the SHO, numbers of which he did not mention in the case diary and also did not place on investigation file the used tickets or the boarding passes; that after he reached Kolkatta by air, he did not lodge any information at the nearest police station and did not examine any of the officials of BSF as a witness in this case as no BSF official was ready to become a witness but he did not issue any notice to any of the BSF officials; that he did not remember if he recorded designations of those officials of BSF in the case diary, but did not want to refresh his memory by perusing the case diary on this aspect; that accused Shahabuddin remained in police custody for 7 days and the arrest memo was prepared by him on 28.01.08 at 01:00 am; that during the period from 26.01.08 to 28.01.08 he did not record any statement of accused Shahabuddin; that the State vs. Shahabuddin etc. SC No. 73/14 Page 84 of 221 Pages (85) disclosure statement of Shahabuddin was recorded by him in the night intervening 27th and 28th January, 2008 and regarding the same no DD entry was lodged; that he did not remember having placed on investigation record any DD entry reflecting that the accused Shahabuddin was taken out of the lockup and subsequently sent back to lockup; that he did not remember as to how many times during police custody of 7 days, accused Shahabuddin was taken out of the lockup and consigned back; that he did not remember having placed on record any DD entry reflecting that on the day of arrest of Ali Khokhan, accused Shahabuddin had been taken out of lockup and consigned back; that on the arrest memo of Ali Khokhan, he did not obtain signatures of any person of the vicinity as nobody agreed; that he did not endorse on the arrest memo of State vs. Shahabuddin etc. SC No. 73/14 Page 85 of 221 Pages (86) Ali Khokhan that nobody had agreed to sign the arrest memo; that he did not remember if he had placed on record any DD entry of the day of arrest of Rizwana reflecting that Shahabuddin had been taken out of lockup and consigned back; that he did not collect any document of tenancy of Rizwana from the house where she was arrested and the alleged recovery was effected; that he also did not record statement of owner of the premises from where the alleged recovery was effected; that besides the disclosure statement of Rizwana, there is no evidence to show that she was residing in the premises from the recovery was allegedly effected; that qua residence of Rizwana, he had made local inquiries but did not remember if he had recorded names and addresses of those local persons though he did not record their statements under State vs. Shahabuddin etc. SC No. 73/14 Page 86 of 221 Pages (87) Section 161 Cr.P.C.; that there was some mention in the case diary regarding the inquiries pertaining to the residence of Rizwana but he did not want to peruse the case diary and refresh his memory in that regard; that he did not try to find out as to who else was residing in the same premises from where the recoveries were allegedly effected; that the place of the alleged recovery is in Jamrudpur village where every house is occupied by 2030 labourers without any formal tenancy arrangements; that he did not know as to how many persons were residing in the premises where Rizwana was residing; that the case property allegedly recovered in first remand of any of the accused persons was not produced by him before the Magistrate; that he did not prepare any site plan of the place of recovery allegedly effected at the instance of State vs. Shahabuddin etc. SC No. 73/14 Page 87 of 221 Pages (88) accused Rizwana; that the pair of ear rings allegedly recovered from Shahabuddin were not owned or possessed by the deceased and the same had no direct connection with the offence; that the husband and son of the deceased did not know denomination of the currency notes which had been allegedly looted from house of the deceased; that he did not prepare any site plan of the place from where accused Shahabuddin had got recovered the currency notes and ear rings; that husband and son of the deceased did not know denomination numbers of the currency notes; that he did not investigate as to the house in which accused Shahabuddin was a tenant was owned by whom; that house of Shahabuddin also was in an unauthorized locality where each house is occupied by a large number of labourers without any formal tenancy but he could not tell as State vs. Shahabuddin etc. SC No. 73/14 Page 88 of 221 Pages (89) to how many more persons were residing in the premises from where accused Shahabuddin allegedly got the articles recovered; that he did not record statement of the person from whom accused Shahabuddin had allegedly purchased the said ear rings; that subsequent to the recovery he did not record any statement of the complainant that the currency notes of the particular denominations had been recovered; that he did not send any untraced report as regards accused Aslam.
38. PW23 Inspector Ram Kishan deposed that lastly the investigation of this case was assigned to him and after obtaining two reports from CFSL Kolkatta, he filed the supplementary chargesheet, but could not trace out the absconded accused Aslam. In cross examination, PW23 the last investigating officer of the case was repeatedly asked as to State vs. Shahabuddin etc. SC No. 73/14 Page 89 of 221 Pages (90) whether he found any evidence in the supplementary charge sheet filed by him connecting the accused persons with the alleged offence but after repeated questions, PW23 stated that whatever result was obtained from CFSL, the same has been put before the court to make up mind and decide. Similarly, another question was repeatedly put to PW23 as to whether he recorded in the case diary that some evidence had been received by him in the above mentioned two reports which connects the accused persons with the alleged offence; after repeatedly putting the question, PW23 stated: "that has been mentioned in the supplementary charge sheet itself". PW23 also stated that he did not want to see his case diary in order to refresh his memory and reply to the said questions but further stated that there is no reason for his refusal to see the State vs. Shahabuddin etc. SC No. 73/14 Page 90 of 221 Pages (91) case diary on that aspect. PW23 further stated that he had written the case diary at the time of filing the supplementary charge sheet; but after going through the entire police file, learned Additional Public Prosecutor submitted that no case diary was written at the time of filing of the supplementary charge sheet.
39. Last prosecution witness PW24 ACP/PCR Sh. Raj Kumar Bhardwaj deposed that in the month of May, 2009 when he was posted at PS Greater Kailash as Inspector ATO, he received report from CFSL and he submitted the same alongwith supplementary charge sheet and the said report is Mark X; that the said report pertaining to the forensic analysis of a hair remained inconclusive.
40. No other evidence was adduced on behalf of State State vs. Shahabuddin etc. SC No. 73/14 Page 91 of 221 Pages (92) and learned Additional Public Prosecutor closed prosecution evidence vide his separate statement dated 01.05.14.
41. As mentioned above, the entire prosecution evidence was put to all the accused persons in their statements recorded under Section 313 Cr.P.C. All the accused persons denied the correctness and truthfulness of prosecution evidence but opted not to lead any evidence in their defence. ARGUMENTS ADVANCED
42. I have heard Sh. R.K. Gurjar, Additional Public Prosecutor for State and Sh. F. Haq, counsel for all the accused, who took me through records. I also heard Sh. Joginder Tuli, counsel for the complainant and also perused the written arguments filed by him with consent of learned Additional Public Prosecutor.
State vs. Shahabuddin etc. SC No. 73/14 Page 92 of 221 Pages (93)
43. On behalf of complainant, as mentioned above, the written arguments duly forwarded by learned Additional Public Prosecutor were filed and oral arguments also were advanced by learned counsel for the complainant. It was argued on behalf of complainant that prosecution has successfully proved its case beyond reasonable doubts, establishing that on the night intervening 11th and 12th December, 2007, the accused persons committed robbery and murder of Smt. Nishi Banga by smothering her with cloth and hands. It was argued on behalf of complainant that PW 5 Anant Zanane proved having informed the police after he found the house of the deceased ransacked; that PW 21 Inspector Ganga Singh proved the site plan Ex. PW 21/A and deposed about arrival of crime team, finger print expert, dog State vs. Shahabuddin etc. SC No. 73/14 Page 93 of 221 Pages (94) squad, photographer and videographer, who collected the necessary evidence; that PW 20 Shri Vikas, son of the deceased and PW 3 Shri Harbans Singh, husband of the deceased proved having furnished the lists Ex.PW 3/C and Ex.PW 3/D to the IO, enlisting the missing articles; that PW 22 Inspector Rohtash Kumar and PW 18 Inspector P. D. Singhal proved having traveled to the international border and having arrested accused Shahabuddin while he was trying to flee to Bangladesh; that PW 22 further proved the arrest of accused Ali Khokhan and Rizwana at the instance of Shahabuddin as well as the incriminating articles recovered from and at the instance of accused persons; that PW 22 proved having obtained specimen finger prints of accused Shahabuddin and Ali Khokhan, which matched with the State vs. Shahabuddin etc. SC No. 73/14 Page 94 of 221 Pages (95) chance prints lifted from the spot, as proved by the finger print expert. On behalf of complainant, in nutshell, conviction is claimed against the accused persons solely on two circumstances, namely the presence of accused Shahabuddin on the spot established by way of finger print evidence and the recovery of allegedly robbed articles from and at the instance of all the accused persons.
44. In his oral arguments, learned counsel for the complainant while assisting learned Additional Public Prosecutor laid a strong emphasis on the argument that the accused persons are Bangladesh nationals and like many other foreign syndicates, are engaged in illegal activities in this country and have to be dealt with sternly. Learned counsel for the complainant submitted out of his personal experience as State vs. Shahabuddin etc. SC No. 73/14 Page 95 of 221 Pages (96) DCP of Kolkatta Police that while dealing with such accused, especially those belonging to Bangladesh, there are logistic difficulties in ensuring the compliance with the strict procedure laid down by law, so at times police has to ignore the procedural technicalities.
45. On behalf of State, learned Additional Public Prosecutor argued that it is a case of no direct evidence but the circumstantial evidence collected by the investigators is fully reliable. Learned Prosecutor argued that the Finger Print Bureau gave a specific report to the effect that the chance prints lifted from the spot fully match with the specimen finger prints of accused Shahabuddin, which establishes his presence on the spot. It was also argued by learned Prosecutor that recovery of the robbed articles from and at the instance of State vs. Shahabuddin etc. SC No. 73/14 Page 96 of 221 Pages (97) the accused persons coupled with successful identification of the same in the TIP proceedings are a clinching evidence against the accused persons. Learned Prosecutor further argued that had the investigators intended to implicate accused persons falsely, nothing prevented them from fabricating chance prints of all accused and not just of Shahabuddin. As per learned Prosecutor, once presence of accused Shahabuddin on the spot and recovery of the robbed articles from and at the instance of accused persons is established, their complicity in the crime is a matter of presumption. Learned Prosecutor also pointed out that accused Rizwana was even identified by PW Shri Alok Pande, who had earlier resided as tenant of the deceased. It was further argued that finger print science is an exact science and State vs. Shahabuddin etc. SC No. 73/14 Page 97 of 221 Pages (98) cannot be faulted with, especially when the accused never asked the court to take his finger prints once again and get the same matched with the chance prints.
46. On behalf of accused, learned defence counsel took me through the entire evidence in the course of his marathon arguments that continued over number of days. Learned defence counsel argued that it being a case of circumstantial evidence, as per legal position, prosecution was under a duty to establish the complete chain of circumstances with each circumstance proved beyond reasonable doubt in such a manner that no hypothesis would be incompatible with the guilt of the accused but prosecution failed to prove that. Learned defence counsel strongly assailed the prosecution case as regards not just the evidence pertaining to the finger print State vs. Shahabuddin etc. SC No. 73/14 Page 98 of 221 Pages (99) evidence and recovery of allegedly robbed articles but also the manner in which the investigator tried to scandalise the arrest of accused persons claiming the accused Shahabuddin to have been arrested from international border while Shahabuddin was trying to flee the country. Learned defence counsel also placed a strong emphasis on the circumstance as established by prosecution that for more than 24 hours, house of the deceased remained in illegal custody of the investigating officers, which gave them ample opportunity to fabricate evidence. It was further argued by learned defence counsel that it being a case of no direct evidence, the investigator ought to have investigated enmity angle to the murder but the same was not done, despite the fact that initial impressions conveyed it to be a case of murder and not a case of murder State vs. Shahabuddin etc. SC No. 73/14 Page 99 of 221 Pages (100) cum robbery. Similarly, no investigation qua last seen evidence was carried out, which makes the investigation itself suspect, as per learned defence counsel. It was further argued that despite a clear admission by one of the investigating officers that it could also be a case of murder by some miscreants of the area, no investigation on that line was done. Broadly speaking, the argument of defence side was that what took place was only a case of blind murder and in zeal to solve the case, during the initial more than 24 hours when the house of the deceased was in illegal custody of the IO, evidence was fabricated to create a picture of robbery cum murder.
47. As regards the finger prints evidence, learned defence counsel in his elaborate arguments contended that in the absence of seizure of the places from where the chance State vs. Shahabuddin etc. SC No. 73/14 Page 100 of 221 Pages (101) prints were allegedly lifted, the finger print evidence loses its reliability. It was argued by learned defence counsel that even photographs of the area or articles from where the chance prints were allegedly lifted were not taken; that even videography or photography of the exercise of lifting the chance prints was not carried out; that without obtaining permission from the court of learned Magistrate under the provisions of the Identification of Prisoners Act, IO was not competent to take specimen finger prints; that there is no explanation for non lifting of chance prints from neck of the deceased, which only would have been the evidence connecting the accused with the offence alleged against them; that retention of photographs of the chance prints by the IO also was wrong as the same ought to have been deposited in malkhana in order to State vs. Shahabuddin etc. SC No. 73/14 Page 101 of 221 Pages (102) ensure no access of the IO to the same in order to prevent fabrication; that even the testimony of the finger print expert reflects serious doubts about his competence and knowledge in the specialized field of finger print matching.
48. As regards the evidence related to the recovery of the allegedly robbed articles from and at the instance of the accused persons, learned defence counsel argued that recovery is a corroborative evidence; that the evidence has to be brought clearly connecting the recovered articles with the offence; that the period between the alleged incident and the alleged recovery is a crucial factor; that the delayed conduct of TIP proceedings also raises strong doubts about genuineness of the alleged recovery; that no evidence was collected by the investigator to show that the articles allegedly recovered from State vs. Shahabuddin etc. SC No. 73/14 Page 102 of 221 Pages (103) or at the instance of the accused persons were ever owned or possessed by the deceased; that even the TIP proceedings of the allegedly recovered articles was not reliable.
49. Both sides placed reliance on judicial precedents, as follows.
50. On behalf of complainant, learned counsel referred to the cases of Sunil Kumar @ Sonu vs State, NCT of Delhi, 2010 (2) JCC 1160; State of Bombay vs Kathi Kalu Oghad, 1961 (2) CrLJ 1808 SC; Bhupinder Singh vs State, 2011 (126) DRJ 1 (FB); and Bhagwan Mahalik vs State, Crl.A. 326/11, decided on 29.11.2012 by the Hon'ble Delhi High Court in support of his argument that compelling the accused to give specimen finger prints does not infringe his rights under Article 20(3) of the Constitution of India and that the State vs. Shahabuddin etc. SC No. 73/14 Page 103 of 221 Pages (104) investigator is not bound to obtain permission of the Magistrate while taking specimen finger prints in view of provisions under Section 4 and under Section 5 of the Identification of Prisoners Act. Learned counsel for the complainant also cited few more judgments towards the fag end of arguments, namely, Rajesh Kumar vs State, 2009 VIII AD (Delhi) 300; Shashi Shekhar @ Neeraj @ Raju vs State, 2007 CrLJ 4193 (Delhi) DB; Munna Kumar Upadhyay vs State of Andhra Pradesh, (2012) 6 SCC 174; and State vs Sunil, Appeal (Criminal) 11191120/1998, decided by the Hon'ble Supreme Court on 29.11.2000 in support of his submissions regarding the distinction between apprehension and arrest of the accused; lapses of the investigating officer; appreciation of finger print evidence; significance of statement State vs. Shahabuddin etc. SC No. 73/14 Page 104 of 221 Pages (105) under Section 313 Cr.P.C. and appreciation of evidence regarding recovery of articles.
51. On behalf of accused, the learned defence counsel placed reliance on the judgments in the case of Mohd Aman vs State of Rajasthan, AIR 1997 SC 2960; Harbir Singh vs State, 198891 CC Cases (Suppl.) Delhi; Shamim Rehmani vs State, 1993 (1) CC Cases 136 (Delhi); Pritam Singh vs State, 1998 (1) JCC (Delhi) 94; DK Basu vs State of West Bengal, AIR 1997 SC 610; Vinod Kumar vs State, 1994 (3) CC Cases 589 (Delhi) DB; Chander Pal vs State, 1998 (2) JCC (Delhi) 207; Dinesh Kumar vs State, 1998 (1) JCC (Delhi) 173 DB; Vijay vs State, 2003 (1) JCC (Delhi) 354 DB; Jaivir Singh vs State, 1996 JCC (Delhi) 166 DB; Jagmohan @ Birju vs State, 1995 JCC (Delhi) 1 DB; Musheer Khan @ State vs. Shahabuddin etc. SC No. 73/14 Page 105 of 221 Pages (106) Badshah Khan vs State of Madhya Pradesh, 2010 (3) JCC (SC) 1648; Hatti Singh vs State of Haryana, 2007 (2) JCC (SC) 1249; Rukia Begum vs State of Karnataka, 2011 (2) JCC (SC) 1178; Prem Chand vs State, 2008 (1) JCC (Delhi) 188 DB; and Vinod vs State, 2010 (1) JCC (Delhi) 754 DB in support of his submissions as regards the criteria to be kept in mind while evaluating the circumstantial evidence; the evidence related to finger print comparison; the evidence related to recoveries of articles; and the evidence related to arrest of the accused persons.
ANALYSIS OF EVIDENCE
52. At the outset, it being a case based on circumstantial evidence, law relating to appreciation of evidence in such cases needs to be kept in mind. In the case of State vs. Shahabuddin etc. SC No. 73/14 Page 106 of 221 Pages (107) Raju vs The State, by Inspector of Police, reported as 2009 III AD (Cr) (SC) 122, Hon'ble Supreme Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh vs. State of Rajasthan AIR 1977 SC 1063; Eradu and Ors. vs. State of Hyderabad AIR 1956 SC 316; Earabhadrappa vs. State of Karnataka AIR 1983 SC 446; State of U.P. vs. Sukhbasi and Ors. AIR 1985 SC 1224; Balwinder Singh vs. State of State vs. Shahabuddin etc. SC No. 73/14 Page 107 of 221 Pages (108) Punjab AIR 1987 SC 350, Ashok Kumar Chatterjee vs. State of M.P. AIR 1989 SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. vs. State of A.P. (1996) 10 SCC State vs. Shahabuddin etc. SC No. 73/14 Page 108 of 221 Pages (109) 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence...."
9. In Padala Veera Reddy vs. State of A.P. And Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a State vs. Shahabuddin etc. SC No. 73/14 Page 109 of 221 Pages (110) definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
10. In State of U.P. vs. Ashok Kumar Srivastava, (1992 Crl. LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied State vs. Shahabuddin etc. SC No. 73/14 Page 110 of 221 Pages (111) 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.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of State vs. Shahabuddin etc. SC No. 73/14 Page 111 of 221 Pages (112) the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted.
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr. vs. State of Madhya Pradesh (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and State vs. Shahabuddin etc. SC No. 73/14 Page 112 of 221 Pages (113) all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda vs. State of Maharashta, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions State vs. Shahabuddin etc. SC No. 73/14 Page 113 of 221 Pages (114) precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) 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 guilty;
(3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis 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 State vs. Shahabuddin etc. SC No. 73/14 Page 114 of 221 Pages (115) been done by the accused.
15. These aspects were highlighted in State of Rajasthan vs. Raja Ram (2003 (8) SCC 180), State of Haryana vs. Jagbir Singh and Anr. (2003 (11) SCC
261), Kusuma Ankama Rao vs. State of A.P. (Criminal Appeal No. 185/2005 disposed of on 7.7.2008) and Manivel and Ors. vs. State of Tamil Nadu (Criminal Appeal No. 473 of 2001 disposed of on 8.8.2008)."
53. In the case of Gokaraju Venkatanarasa Raju vs State of Andhara Pradesh, 1994 CAR 1, Hon'ble Supreme Court struck a note of caution that in cases depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. It was held that court has to be watchful and avoid the danger of State vs. Shahabuddin etc. SC No. 73/14 Page 115 of 221 Pages (116) allowing the suspicion to take 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.
54. In the case of Varkey Joseph vs State of Kerala, 1993 CAR 264 SC Hon'ble Supreme Court emphasized the need to ensure that suspicion does not get substituted in the place of proof. It was observed that there is a long distance between "may be true" and "must be true" and the prosecution has to travel all the way to prove its case beyond reasonable doubts.
55. Falling back to the present case, in order to bring home conviction, the circumstances relied upon by prosecution, State vs. Shahabuddin etc. SC No. 73/14 Page 116 of 221 Pages (117) which as per prosecution stand established against the accused persons are: chance finger prints lifted from the spot of alleged robbery and murder matching with the specimen finger prints of accused Shahabuddin; recovery of the looted articles from and at the instance of the accused persons; successful identification of the looted articles during test identification parade before a learned magistrate by husband of the deceased; and arrest of the accused persons. What is to be seen is as to whether the prosecution has been able to establish these circumstances against the accused persons cogently and firmly and whether the chain of circumstances established is so complete as not to lead any reasonable ground for the conclusion consistent with the innocence of the accused persons and whether this chain shows that in all human State vs. Shahabuddin etc. SC No. 73/14 Page 117 of 221 Pages (118) probability, the incriminating acts must have been done by the accused persons only. What is to be seen is as to whether the prosecution has been to cover the journey from "may be"
through "could be" to "shall be" as reiterated by the Hon'ble Delhi High Court in the case of Sunder @ Lala vs State, 160 (2009) DLT 701 DB.
56. It would be apposite to analyze the evidence adduced by prosecution on the above enumerated circumstances one by one.
FINGER PRINT EVIDENCE
57. As regards the finger print evidence, there is no dispute at all to the settled legal position that there is no infringement of Article 20 (3) of the Constitution of India when an accused is compelled to give his specimen handwriting or State vs. Shahabuddin etc. SC No. 73/14 Page 118 of 221 Pages (119) impressions of his fingers, palms or feet to the investigating officer for the purpose of comparison under the provisions of Section 73 of the Indian Evidence Act as laid down by the Hon'ble Supreme Court in the case of Kathi Kalu (supra). There is also no dispute as regards the legal proposition submitted by learned counsel for the complainant that in view of the independent powers conferred upon a police officer under Section 4 of the Identification of Prisoners Act 1920, it is not obligatory for the police officer to approach the Magistrate under Section 5 of the Act and, therefore, there is no illegality attached to the specimen finger print impressions taken by the investigating officer, as held by the Hon'ble Delhi High Court in the case of Bhupender Singh (supra). There is also no dispute to the legal proposition submitted by learned State vs. Shahabuddin etc. SC No. 73/14 Page 119 of 221 Pages (120) counsel for the complainant that the science of identification of finger prints is almost perfect as compared to the imperfect science of identification of handwriting and signatures in the sense that conviction can be recorded solely on the opinion of the experienced finger prints expert, as held by the Hon'ble Delhi High Court in the case of Sunil Kumar (supra).
58. The veracity of finger prints evidence has been challenged by the defence side mainly on the grounds that the manner in which the alleged chance prints were obtained creates strong doubts about the genuineness of the exercise and that the finger print expert PW1 lacks expertise in his field of forensic analysis of finger prints comparison. LIFTING OF CHANCE PRINTS
59. Ex.PW6/A to Ex.PW6/C is the scene of crime State vs. Shahabuddin etc. SC No. 73/14 Page 120 of 221 Pages (121) examination report, enlisting in Ex.PW6/B nineteen articles, which were examined by the finger prints expert PW6 on the spot and enlisting in Ex.PW6/C seven articles, from which the chance prints were allegedly lifted. As per Ex.PW6/C, chance prints Q1, Q2A, Q2B, Q3, Q4 and Q5 were lifted from front side of white door of bed room, using black powder; chance prints Q6 and Q7 were lifted from door of gray fridge, using black powder; chance prints Q8, Q9 and Q10 were lifted from front side of the white door of study room, using black powder; chance print Q11 was lifted from the front side of wooden almirah in bed room, using gray powder; chance prints Q12A and Q12B were lifted from white door of drawing room, using black powder; chance print Q14 was lifted from backside of white door of study room but the particulars of powder used State vs. Shahabuddin etc. SC No. 73/14 Page 121 of 221 Pages (122) are not disclosed; chance prints Q15, Q16A, Q16B, Q17, Q18 and Q19 were lifted from door of almirah of the bed room but the particulars of the powder used are not disclosed.
60. As per the finger print expert PW1, the chance prints that matched with the specimen finger prints of accused Shahabuddin were as follows. Chance print Q8 (Ex.PW1/A) matched with specimen print S1 (Ex.PW1/B) the right thumb impression; chance prints Q18 and Q19 (Ex.PW1/C and Ex.PW1/D) were identical with each other and matched the specimen print S2 (Ex.PW1/E) the left middle finger impression; chance print Q16B (Ex.PW1/F) was identical with specimen print S3 (Ex.PW1/G) the left palm impression; chance print Q16A (Ex.PW1/H) was identical with specimen print S4 (Ex.PW1/I) the left palm portion impression; chance State vs. Shahabuddin etc. SC No. 73/14 Page 122 of 221 Pages (123) print Q17 (Ex.PW1/C) was identical with specimen print S5 (Ex.PW1/J) the left index finger impression. However, the reasoning qua only one matching chance print Q18 with specimen print S2 has been given in his report by the expert, which as per PW1 is the clinching finger print evidence establishing identity of the accused. Thence, reasoning qua the alleged matching having been given by the expert only for one set of prints, it is only that set, viz. Q18 - S2 which can be relied upon, while rest of the sets have to be discarded, being unreasoned opinion.
61. Going by the testimony of the finger print expert PW1, Ex.PW1/C are two chance prints, namely Q17 and Q18 but the same matched with the specimen prints of two different fingers, Q17 having matched the left index finger State vs. Shahabuddin etc. SC No. 73/14 Page 123 of 221 Pages (124) print S5 and Q18 having matched the left middle finger print S2. In other words, left index finger and left middle finger left behind identical prints, as per PW1, which appears implausible.
62. As per Ex.PW6/B, the list of articles examined by PW1, there were 56 almirahs in the bed room of the deceased and as per Ex.PW6/C, the matching chance prints Q16A, Q16B, Q17, Q18 and Q19 were lifted from "door of almirah of bed room". But there is no specific report as to whether all the said matching chance prints were lifted from a single almirah or more than one almirahs. Even the powder used for lifting the said five out of six alleged matching chance prints has not been disclosed in report Ex.PW6/C.
63. In the case of Mohd. Aman (supra) the Hon'ble State vs. Shahabuddin etc. SC No. 73/14 Page 124 of 221 Pages (125) Supreme Court observed thus:
"8........apart from the above missing link and the suspicious circumstances surrounding the same, there is another circumstance which also casts a serious mistrust as to the genuineness of the evidence. Even though the specimen finger prints of Mohd. Aman had to be taken on a number of occasions at the behest of the bureau, they were never taken before or under the order of a Magistrate in accordance with Section 4 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take finger prints of the accused but to dispel any suspicion as to its bonafides or to eliminate the possibility of fabrication of evidence, it was eminently desirable that they were taken before or under the order of a Magistrate. The other related infirmity from which the prosecution case suffers is that the brass jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by State vs. Shahabuddin etc. SC No. 73/14 Page 125 of 221 Pages (126) the bureau was not produced and exhibited during trial - for reasons best known to the prosecution and unknown to the Court. For the foregoing discussion we are unable to sustain the conviction of Mohd. Aman.
9. To prove the role of Mohd. Yusuf (the other appellant in criminal appeal no. 1749/1996) the prosecution relied upon the find of his finger print on a glass tumbler and his foot prints in the house of the appellant, recoveries of four silver rings belonging to the wife of the deceased and a knife pursuant to his statement. It is rather surprising that even though the investigating agency claimed to have made a searching examination of the house of the deceased on April 14, 1983 and to have seized on that day 16 articles, four of which contained finger prints, the glass tumbler containing the finger prints was seized and foot prints were noticed on April 24, 1983. When considered in the context of the fact that he was in custody of the police at that time the possibility of fabrication of evidence to implicate him, as contended by him cannot be altogether ruled out. This apart, some of the reasons which State vs. Shahabuddin etc. SC No. 73/14 Page 126 of 221 Pages (127) weighed with us for not accepting the evidence regarding the find of finger prints, namely that there is a missing link between the identity of the articles seized and identity of the articles examined by the finger print bureau and non production of the glass tumbler during trial also persuade us not to accept the evidence adduced in proof of the above circumstance....." (emphasis supplied)
64. In the present case also, in order to dispel any suspicion as to its bonafides or to eliminate the possibility of fabrication of evidence, it was eminently desirable the specimen finger prints were taken before or under the order of a Magistrate, though the same was not mandatory. If the IO could apply for and obtain, on the same day 30.01.2008, permission of the learned Magistrate to obtain hair samples of the accused persons, he could have very well obtained formal permission for taking specimen finger prints as well, State vs. Shahabuddin etc. SC No. 73/14 Page 127 of 221 Pages (128) specifying the number of specimen prints he intended to take, significance whereof is discussed hereafter.
65. In the present case also, the articles namely the almirah or almirahs and the door from which the allegedly matching chance prints were lifted were not produced in the Court. In the case of Mohd. Aman (supra)the articles from which the chance prints were lifted were at least seized but in the present case even that was not done. No explanation was advanced from prosecution side as to why the almirah or almirahs could not be taken into possession by the IO at the time of or after lifting chance prints; even the door from which the matching chance prints were allegedly lifted could be dismantled and seized by the IO and produced in Court during trial in order to establish the identity of the said articles as the State vs. Shahabuddin etc. SC No. 73/14 Page 128 of 221 Pages (129) articles which came in contact with accused Shahabuddin.
66. In the present case also, as per PW6, he handed over his report of chance prints including the photographs of the alleged chance prints on 12.12.07, but the same were sent to the Finger Print Bureau more than a month later, on 30.01.2008, while accused Shahabuddin was apprehended on 26.01.08 and remained in custody of the police for time long enough for the IO to fabricate evidence related to the finger prints.
67. Had the specimen prints been collected with permission from and/or in the presence of the learned Magistrate, by way of explicit mention on record as regards the exact number of specimen prints being taken, a possibility would have been ruled out that as alleged by the defence, some State vs. Shahabuddin etc. SC No. 73/14 Page 129 of 221 Pages (130) of the specimen prints of Shahabuddin were subsequently misused by fabricating the same into chance prints. It is precisely for this reason that despite the provisions under the Identification of Prisoners Act, 1920 being not mandatory, the compliance is necessary to show the bonafide investigation, which is all the more vital where the entire case is based on circumstantial evidence.
68. The defence raised here is not that the finger print impressions claimed to be the specimen prints are not the finger prints of Shahabuddin. The defence raised is that the finger print impressions claimed to be the chance prints are not the chance prints lifted from the spot but the same are fabricated piece of evidence.
69. Therefore, the failure on the part of the IO to even State vs. Shahabuddin etc. SC No. 73/14 Page 130 of 221 Pages (131) seize, what to say of producing in the Court during trial, the articles enlisted in Ex.PW6/B or at least in Ex.PW6/C or atleast the almirah/almirahs and door of the room from which the allegedly matching chance prints were lifted, destroys the sanctity that would have been attached with the finger prints evidence.
70. The photographs Ex. PW 16/A1 to Ex. PW 16/A11 depict the almirahs lying in the bedroom where dead body of the deceased was found. The said almirahs are not the ones embedded in the wall, which would have been difficult to take out, though even in such almirahs, the doors can always be dismantled and seized in order to show the specific areas from where the chance prints were lifted. As depicted in photographs Ex. PW 16/A1 to Ex.PW 16/A11, the almirahs State vs. Shahabuddin etc. SC No. 73/14 Page 131 of 221 Pages (132) could be very well seized and produced in court but the same was not done to establish that accused Shahabuddin had come in touch with those articles and had left behind his finger prints.
71. Assuming, in case, physical seizure followed by production of the said almirah/almirahs and door of the room in Court during trial was, for any reason considered not feasible, the IO should have at least protected the said articles by covering the same with cellophane followed by seizure thereof and photographs thereof could be produced in the Court in order to establish beyond doubt that the allegedly matching chance prints were lifted from the said very articles, which formed part of the actual spot of occurrence. Such an exercise would have also kept open a scope for the court to State vs. Shahabuddin etc. SC No. 73/14 Page 132 of 221 Pages (133) physically inspect the spot of occurrence in order to satisfy itself that the chance prints were actually lifted from the alleged spots.
72. As per prosecution case, on 12.12.07, the police team which visited the spot included not just the finger print expert PW6 SI N.K. Sharma but also the photographer PW16 HC Dharampal. As per PW16, on 12.12.07, he clicked 11 photographs of the spot of occurrence from different angles. Even as per PW12 Ct. Om Prakash, he carried out videography of the scene of occurrence. It remains unexplained as to why the exercise of lifting chance prints from the spot was not photographed or videographed in order to lend reliability to the finger prints evidence. Getting the exercise of lifting of chance prints photographed or State vs. Shahabuddin etc. SC No. 73/14 Page 133 of 221 Pages (134) videographed would have established that the alleged matching finger prints were lifted from the specific portions in the house of the deceased only and not fabricated.
73. There is another vital circumstance that raises strong doubts as regards genuineness of the alleged chance prints. PW 6, the finger print expert from the Finger Print Bureau stated that he got the lifted chance prints photographed from the police photographer at the scene of crime. But the police photographer PW 16 HC Dharampal in his cross examination specifically stated that he had not taken the photographs at the time when chance prints were picked up and that he did not even know as to whether chance prints were taken by the crime team or not. Thence, it remains a mystery as to who had clicked the photographs of the chance State vs. Shahabuddin etc. SC No. 73/14 Page 134 of 221 Pages (135) prints allegedly lifted by PW 6 SI N.K. Sharma and it is those photographs of chance prints which formed basis of the finger print comparison carried out by PW 1 SI Gyanender Singh.
74. Further, PW 12 Ct. Om Parkash who carried out videography of the spot and PW 16 HC Dharampal who carried out photography of the spot expressed total ignorance about the exercise of lifting of the finger prints, though both of them were on the spot. Another police witness namely PW 9 W/SI Rita in her cross examination stated that the number of chance prints lifted from the spot were 21, as informed by SI N.K.Sharma (PW6) to the IO. But PW 6 N. K. Sharma stated that he had lifted 22 chance prints, though inadvertently in his report he mentioned the number of chance prints as 21. It shows that testimony of PW 9 W/SI Rita that she witnessed State vs. Shahabuddin etc. SC No. 73/14 Page 135 of 221 Pages (136) the lifting of chance prints is based solely on her having seen the report of PW 6 which wrongly mentioned the total number of chance prints as 21; in other words, even PW 9 W/SI Rita did not witness the actual exercise of the lifting of finger prints from the spot.
75. Further, as per the Scene of Crime Examination Report Ex.PW6/A, the inspection of the scene of occurrence started at 12:00 noon and continued till 03:30 pm; PW17 HC Babulal stated that he remained at the spot for about three hours from 09:20 am, i.e., till about 12:30 pm but he did not see the crime team collecting the chance prints. But at the same time, PW9 W/SI Rita also left the spot at about same time, i.e., 12:30pm, as per her cross examination. That being so, going by the testimony of PW17 Babulal, till 12:30 pm, State vs. Shahabuddin etc. SC No. 73/14 Page 136 of 221 Pages (137) when W/SI Rita and HC Babulal left the spot, the alleged exercise of lifting of chance prints had not even started, which means that testimony of PW9 W/SI Rita about her having witnessed lifting of chance prints is not truthful.
76. Further, as per testimony of PW 6, the finger print expert SI N.K. Sharma, after lifting the chance prints, he got the prints photographed, prepared his report and handed over the same to the IO on the same day. The IO Inspector Ganga Singh, instead of depositing the said report and photographs of the alleged chance prints in malkhana in order to ensure no tampering, retained the same on the investigation file, which in itself destroys the sanctity of this vital piece of evidence. That too, when as mentioned above the alleged chance prints and specimen finger prints of accused Shahabuddin were sent State vs. Shahabuddin etc. SC No. 73/14 Page 137 of 221 Pages (138) to Finger Print Bureau much after arrest of Shahabuddin, for which there is no explanation and which factor lends credence to the defence that the photographs of the alleged chance prints are in fact photographs of the prints fabricated out of the specimen prints of accused taken by the IO without obtaining formal permission from the learned Magistrate.
77. As a matter of orderly and reliable investigation, every physical piece of evidence on the spot of crime must be seized by the investigator in order to ensure no alteration or modification or destruction of the said piece of evidence. In a case where a weapon of offence, say knife, is taken into possession by the investigator after converting the same into a sealed parcel but without seizing the same by way of seizure memo followed by deposit thereof in the malkhana, where he State vs. Shahabuddin etc. SC No. 73/14 Page 138 of 221 Pages (139) has no approach (at least theoretically), such a parcel of weapon of offence has no sanctity in the eyes of law. Drawing the same analogy, it was necessary for the IO of the present case to have seized the articles from where the chance prints were allegedly lifted and also it was necessary for him to deposit the photographs of the alleged chance prints with malkhana instead of keeping the same with himself, that too for such a long time before being sent to the Finger Print Bureau; it is from malkhana only that the photographs of the alleged chance prints should have been sent to the Finger Print Bureau, so that the same were examined without any interference or control of the IO. Failure to do this raises strong doubts as to whether the photographs of the alleged chance prints which were sent to PW1 SI Gyanendra Singh State vs. Shahabuddin etc. SC No. 73/14 Page 139 of 221 Pages (140) were at all lifted from the spot only.
78. Even the photographs of the alleged chance prints, about which there is unsolved mystery as to who clicked the same, as mentioned above, are the photographs of only the finger print impression area and do not depict the particular article on which the print was allegedly found and the said photographs are even smaller than a passport size photograph. It is such photographs which were relied upon by the finger print expert PW 1 to render his expert opinion.
79. Further, going by the prosecution case, at the initial stages itself, the IO had taken a clear impression that the deceased had been smothered to death with clothes and with hands. It remains unanswered as to why not even efforts were done by the finger print expert PW6 to lift chance prints State vs. Shahabuddin etc. SC No. 73/14 Page 140 of 221 Pages (141) from neck of the deceased. It is the chance prints on neck of the deceased that would have been the surest evidence connecting the accused with murder of the deceased, instead of the prosecution pinning its hope on drawing a presumption by establishing the presence of the accused in the house of the deceased. It is not that on human body, the finger prints do not leave impressions.
80. Chance prints are a reproduction of the raised ridges in sweat from eccrine glands that are present in epidermal ridges. The sweat is 99% water but the remaining residue is made up of amino acids, fatty lipids, and salt among other "contaminants". There are a lot of factors including, environment, surface conditions, and a person's biology, which may affect the quality and recovery of those chance prints. For State vs. Shahabuddin etc. SC No. 73/14 Page 141 of 221 Pages (142) example, a heavily textured surface won't allow enough of the ridges to make contact in a way to leave a recognizable print. Other surfaces may be so contaminated that the fingers simply remove dust rather than leave an impression. Human skin presents unique challenges to the investigator. First, the skin may not be totally smooth. Second, the skin may already be sweaty or covered in a residue that masks the deposited fingerprints. Third, fingerprints can be easily damaged or smudged and are at constant risk of being lost during a struggle or movement of the body. Time is another significant factor. As the body decomposes these prints can be lost in a matter of days. Living victims can also rub them off through cleaning or massaging injuries. But in the present case, no such situation existed, it being a period of peak winter; rather, State vs. Shahabuddin etc. SC No. 73/14 Page 142 of 221 Pages (143) as mentioned above, in the present case, no effort at all was done by the expert to lift chance prints from neck of the deceased.
81. There are a couple of processes which have been successful in developing suspect chance prints from a dead body. One is the use of a superglue (cyanoacrylate) fuming wand. The superglue is heated to a vapor form which then affixes to the residue of the fingerprint. It can then be photographed or developed further with powders. Another method is the use of magnetic fingerprint powder. This process seems to work best if the body is only a few hours old. The powder is brushed onto suspected areas (like the wrists, ankles, face, neck or breasts) and any developed prints are photographed and lifted. But no such steps were taken in the State vs. Shahabuddin etc. SC No. 73/14 Page 143 of 221 Pages (144) present case to try and collect the best possible evidence from the dead body.
82. Even as regards the method adopted while obtaining the specimen prints, there is no clear mention from prosecution side, as to in what manner the specimen prints were taken by Inspector Rohtash Kumar. This clarity was necessary to dispel doubts as regards credit worthiness of specimen prints as well as of chance prints.
COMPETENCE & CREDIBILITY OF FINGER PRINT EXPERT
83. Having examined the unreliable and rather, suspect manner of the alleged lifting of the chance prints, it would also be necessary to examine another aspect related to the finger print evidence, keeping in mind that this piece of evidence is State vs. Shahabuddin etc. SC No. 73/14 Page 144 of 221 Pages (145) the most crucial piece which can make or break prosecution case.
84. As mentioned above, there is no dispute to the legal proposition as cited by learned counsel for the complainant that science of finger print comparison is an exact and accurate science. But it does not mean that whatever the witness, presented as an expert in Court testifies, has to be taken as gospel truth. Competence and credibility of the finger print expert has to be always a matter of minute analysis while examining the evidence, especially because such an opinion of the expert is in itself sufficient to bring conviction against the accused.
85. At this stage, it would be apposite to recapitulate certain fundamentals of finger print science. Out of over fifty State vs. Shahabuddin etc. SC No. 73/14 Page 145 of 221 Pages (146) methods in use for comparison of finger prints known as dactyloscopy, the method in universal use is known as Galton Henry Method or Henry System, evolved by Sir Francis Galton and Sir Edward Richard Henry. Under Henry system, finger prints are in two classes; one class is whorls and composites, while the other class is loops and arches. For the limited purpose of this case, it is recorded that in a case of ulnar loop, ridges enter and exit on same side of the pattern with a slant towards little finger; whereas in case of whorl, at least one ridge must recurve and make a complete circuit around the core with ordinarily two deltas. The first step in comparison of the finger prints is to examine the finger print pattern. If the chance print pattern is different from the specimen print pattern, the suspect has to be eliminated as the source of the State vs. Shahabuddin etc. SC No. 73/14 Page 146 of 221 Pages (147) chance print. Even if the pattern is same in chance print and the specimen print, the examination has to go deeper into the second level. The second level details, historically known as minutiae, points, and Galton's point. These details are generally named bifurcations, ending ridges, enclosures, short ridges and dots. But inquiry to this second stage can proceed only after clearing the first stage that pattern in the two prints is similar.
86. In the present case, as mentioned above the finger print expert PW1 in his chief examination stated that one print is sufficient to establish the identity of a person, therefore, one set of identical prints Q18 and S2 have been marked and enclosed with the report alongwith description of points of identity in support of the opinion. In his report State vs. Shahabuddin etc. SC No. 73/14 Page 147 of 221 Pages (148) Ex.PW1/M regarding the points of similarity between Q18 and S2, the finger print expert also annexed the photograph of chance print Q18 (Ex.PW1/P) and photograph of specimen print S2 (Ex.PW1/N).
87. At the very outset, a perusal of Ex.PW1/P reflects that the same is the photograph of a smudged print and not a complete print, but the finger print expert, in his wisdom, opted to base his report on such a print, for reasons unexplained.
88. Further, even in his cross examination, the finger print expert PW1 himself stated that he could not determine the pattern in the chance print since the chance print was very small. However, in the specimen print, PW1 could conveniently find and stated that the pattern in the specimen State vs. Shahabuddin etc. SC No. 73/14 Page 148 of 221 Pages (149) print was ulnar loop. In finger print comparison, the first thing to be observed for comparison is the pattern of ridges and once the pattern of ridges is found to be similar, only thereafter, the further exercise of counting the number of ridges etc has to be carried out. Going by the testimony of PW1 in cross examination, although he found the pattern in the specimen print to be ulnar loop, he could not ascertain the pattern in the chance print.
89. In other words, at the very inception of comparison, there was no positive finding of similarity of two prints namely Q18 chance print and S2 specimen print, but despite that the finger print expert went ahead with counting of ridges.
90. In this regard, question no.3 asked by the learned defence counsel from PW1 in cross examination was as to State vs. Shahabuddin etc. SC No. 73/14 Page 149 of 221 Pages (150) whether in ulnar loop, the ridges travel from thumb to small finger or the other way round, but that question was disallowed by my learned predecessor on the grounds that the question was irrelevant. In my humble view, had the said question not been disallowed, the finger print expert would have thrown some more light as to how in the absence of finding of pattern in the chance print Q18, he reached the conclusion of similarity between the two prints.
91. In response to question no. 4 in his cross examination, as to whether if the chance print reflects whorl pattern and specimen print reflects ulnar loop, they can be held to be similar, PW1 specifically stated that in such case, the prints would be different. In other words, even as per PW1, if the pattern of the prints is different in the chance State vs. Shahabuddin etc. SC No. 73/14 Page 150 of 221 Pages (151) print and the specimen print, the two cannot be called similar. Despite that, PW1 opined that chance print Q18 in which pattern could not be ascertained was similar to specimen print S2 in which the pattern found was ulnar loop. Such a report fails to inspire confidence, that too as a solitary or even substantial incriminating factor.
92. Further in response to question no.4 itself in cross examination, PW1 admitted that in the chance print, the pattern could not be completely determined because the portion of the chance print was very small. In response to question no.5 in cross examination, PW1 further stated that in the specimen print, the delta was not properly visible. However, there appears to be some typographical error in this sentence, since delta is visible in the sample print Ex.PW1/N State vs. Shahabuddin etc. SC No. 73/14 Page 151 of 221 Pages (152) but the same is not visible completely in chance print Ex.PW1/P. But even if it is not taken to be a typographical error, then also the fact remains that in one of the two prints, delta was not properly visible. PW1 further stated in response to question no. 6 and 7 in cross examination that since delta was not seen, even principal axis could not be seen in the print. Despite that PW1 went ahead and gave his report, apparently on dotted lines at behest of IO.
93. As mentioned above, the basic difference between an ulnar loop and a whorl being the visibility of two deltas in whorl and entry and exit on same side of the pattern with slant towards little finger in ulnar loop, clear and complete visibility of the chance print as well as the specimen print are utmost important. But in the present case, the alleged chance State vs. Shahabuddin etc. SC No. 73/14 Page 152 of 221 Pages (153) print Q18 (Ex.PW1/P) is not complete and also smudged. Even independent of the testimony of PW1 that due to very small size of the portion of chance print Q18, he could not determine pattern, if the photograph Ex.PW1/P of chance print Q18 is perused, it is not possible to clearly determine pattern from the same.
94. As mentioned above, the photograph Ex.PW1/P of chance print Q18 reflects that the chance print was smudged and neither the core nor the delta, which are the basis of determining pattern of the print are clearly and completely visible. As also mentioned above, despite inability to find similarity of pattern between the chance print Ex.PW1/P and specimen print Ex.PW1/N for the reason that the portion of the chance print was very small, the finger print expert State vs. Shahabuddin etc. SC No. 73/14 Page 153 of 221 Pages (154) straightaway jumped to the second query, which was not a sound step as per scientific literature on finger print comparison.
95. In view of the above flaws in the report of finger print comparison, learned defence counsel also extended a suggestion to PW1 that he is not well versed with the finger print science, thereby, assailing the credibility of the expert.
96. While assailing the credibility of the finger print expert, learned defence counsel further asked the witness as to on which school of thought he had characterized the chance prints and the specimen prints; but the answer that came was:
"I have compared the chance print and the specimen print.
Digit to digit manual comparison on the basis of finger print science". It reflects that PW1 who is basically as sub inspector State vs. Shahabuddin etc. SC No. 73/14 Page 154 of 221 Pages (155) of Delhi Police is not even aware as regards the Roscher school, Juan Vucetich school and Henry Classification school of comparison in the finger print science, which in turn reflects adversely on his competence.
97. In response to specific question no.12 in cross examination seeking to ascertain his competence, PW1 stated that he could not tell as to when his last report of finger print comparison was believed or disbelieved. This question was necessary in the cross examination since in chief examination of PW1, there was not even a whisper as regards his professional qualification and experience in order to present him as reliable expert witness in court.
98. In the case of Mahmood vs State of UP, (1976) 1 SCC 542, which also was based on circumstantial evidence, State vs. Shahabuddin etc. SC No. 73/14 Page 155 of 221 Pages (156) the Hon'ble Supreme Court observed that where the finger print expert was not shown to have acquired the special skill, knowledge and experience in the science of identification of finger prints, it would be highly unsafe to convict an accused on a capital charge without any independent corroboration, solely on the bald and dogmatic opinion of such a person, even if such opinion is assumed to be admissible under Section 45, Evidence Act.
99. Further, quite significantly, in his cross examination PW1 stated that the age of lifting of the chance prints could not be determined and he could not admit or deny that the chance prints might have been lifted on 27.01.2008. In order to rule out such a situation, as mentioned above, it was the duty of the IO to seize the articles from which the State vs. Shahabuddin etc. SC No. 73/14 Page 156 of 221 Pages (157) chance prints were allegedly lifted on 12.12.07 or at least to have got the process of lifting of chance prints photographed or videographed, both of which options were available to the IO and were even being exercised on the spot as mentioned above.
100. Lastly, PW1 in his cross examination admitted that his department, namely Finger Print Bureau is governed by the Delhi Police. Therefore, testimony of PW1, regarding whose professional qualifications and experience in the field of finger print science, there is no material, cannot be accepted to be an independent expert opinion. Of course, it is clarified that merely because PW1 happens to be a police official, his testimony is not being disbelieved; his testimony is being disbelieved keeping in mind that he is a police official with apparently lack of specialized knowledge and experience State vs. Shahabuddin etc. SC No. 73/14 Page 157 of 221 Pages (158) expected from a finger print expert for the reasons described above.
ARREST; RECOVERY & TIP OF LOOTED ARTICLES
101. Having traveled across the finger print evidence through the suspicious and unbelievable manner in which the alleged chance prints came into existence and the lack of competence and/or credibility of finger print expert, the analysis of further circumstantial evidence is now taken to the other aspect, which as per prosecution connects the accused persons with the alleged offence and that aspect is the recovery of looted articles from the accused persons. The evidence related to the recovery of the alleged articles has to be read in the light of the evidence related to the arrest of the accused persons. For, if the circumstances pertaining to arrest of the State vs. Shahabuddin etc. SC No. 73/14 Page 158 of 221 Pages (159) accused fail to inspire confidence, the evidence pertaining to recovery also would get tainted.
102. As per prosecution case, the first accused who came to the knowledge of prosecution was accused Shahabuddin about whom some secret informer had tipped off the IO PW22 Insp. Rohtash Kumar. The remaining accused persons namely Ali Khokhan followed by Rizwana were arrested on the basis of the disclosure statement of Shahabuddin as per prosecution.
103. The prosecution version, that came on record through the testimony of PW22 Insp. Rohtash Kumar is that on 26.01.08 he received an information that one of the suspects was trying to cross over to Bangladesh, so he constituted a team including SI P.D. Singhal, HC Ram Krishan and the informer, all of whom flew to Kolkatta, from where they took a State vs. Shahabuddin etc. SC No. 73/14 Page 159 of 221 Pages (160) taxi to Rameshwarpur border; that at Rameshwarpur border he contacted the Deputy Commandant of BSF, with whose logistic help they raided a place near border and apprehended Shahabuddin; that after apprehending Shahabuddin, they flew back to Delhi and reached here on the night of 27.01.08, whereafter Shahabuddin was interrogated and was arrested on 28.01.08 at 01:00 am.
104. But not even a shred of reliable documentary evidence was placed on record by prosecution in support of its version regarding the manner of arrest of Shahabuddin, despite the fact that such evidence was conveniently available.
105. In his cross examination, PW22 Insp. Rohtash Kumar stated that no information memo as regards the alleged presence of Shahabuddin at the international border State vs. Shahabuddin etc. SC No. 73/14 Page 160 of 221 Pages (161) with Bangladesh was prepared; that he had lodged a daily diary entry regarding the said information but he did not remember if the same was placed on record or not; that he had received the said information from the SHO but did not know as to how the SHO came to know about presence of Shahabuddin at the international border; that they had gone to Kolkatta by air and the air tickets were furnished by the SHO but he did not mention the air ticket numbers in the case diary and also did not place on record the air tickets or even the boarding passes; that after reaching Kolkatta, he did not lodge any information in the nearest police station; that he did not record statement of any BSF official in this case since nobody was ready to be a witness and he did not issue any notice to them to join investigation and also did not remember State vs. Shahabuddin etc. SC No. 73/14 Page 161 of 221 Pages (162) if he recorded designation of those BSF officials in the case diary and he did not even want to see the case diary to refresh his memory in that regard; that he had lodged DD No. 22A, Ex.PW22/D after reaching Delhi with accused Shahabuddin; that even the return air tickets were not placed by him on investigation file; that for return journey from Kolkatta to Delhi, the air ticket of Shahabuddin was purchased by him with his credit card but he did not mention those particulars in the case diary; that he did not prepare any site plan of the place where accused Shahabuddin was apprehended; that he did not arrest Shahabuddin in Kolkatta and did not record any disclosure statement over there. In the course of such an extensive cross examination, the investigating officer PW22 Insp. Rohtash Kumar did not come up with any explanation for State vs. Shahabuddin etc. SC No. 73/14 Page 162 of 221 Pages (163) his failure to place on record any air ticket or boarding passes or his bank statement qua purchase of return ticket or any other documentary record reflecting that the police team actually traveled to Kolkatta by air and from there reached the international border, where with the logistic help of BSF they apprehended accused Shahabuddin. Such particulars were not recorded by PW22 even in his case diary as per his testimony.
106. The material submitted by PW22 in support of his claim of having arrested Shahabuddin from international border is DD No.22A Ex.PW22/D. But this daily diary entry recorded at 01:00 am on 28.01.08 mentions that the accused Shahabuddin was brought from Kolkatta and not from the international border.
107. In the absence of any explanation for not having State vs. Shahabuddin etc. SC No. 73/14 Page 163 of 221 Pages (164) lodged any information at the police posts of either of the airports or even at the local police station of Kolkatta, coupled with failure to produce any air ticket or boarding pass, coupled with non mention of the said facts in the case diary, the circumstances related to the arrest of accused Shahabuddin become doubtful.
108. Further more, it remains unexplained as to why Shahabuddin was not formally arrested at the international border itself instead of being just apprehended or at least in Kolkatta before flying back to Delhi and most importantly, if the IO PW22 did not consider it appropriate to record arrest of Shahabuddin at the international border itself or in Kolkatta or even after landing in Delhi, what was the reason to record arrest at dead of night intervening 27.01.08 and 28.01.08 at State vs. Shahabuddin etc. SC No. 73/14 Page 164 of 221 Pages (165) 01:00 am instead of waiting till morning.
109. Had the arrest of Shahabuddin been carried out, witnessed by the BSF officials immediately the moment he was apprehended at Bangladesh Border, all these questions as raised above reflecting doubts on the manner of arrest would have paled into significance. Nothing prevented the IO from carrying out formal arrest of Shahabuddin after he was apprehended at the Bangladesh border, if that was so, joining the BSF officials as witnesses to the arrest. For, even after bringing Shahabuddin to Delhi, nothing changed as regards executing arrest of Shahabuddin in Delhi.
110. Another discomforting feature is that it is highly unbelievable that the BSF officials, who as per PW 22 IO Inspector Rohtash Kumar provided logistic support, would State vs. Shahabuddin etc. SC No. 73/14 Page 165 of 221 Pages (166) have not created any documentary record of their involvement in the matter. It is equally unbelievable that BSF officials, who are disciplined force, would have refused to sign as witness or would have refused to give formal statement as projected by PW22; and to add to it, PW22 made no such reference in case diary, which is a vital document to verify the genuineness of investigation. Therefore, I find it difficult to accept the version of PW 22 that Shahabuddin was apprehended at the international border.
111. Another aspect which raises doubt about the manner in which Shahabuddin was arrested is the arrest memo Ex. PW 18/A. A perusal of Ex. PW 18/A, arrest memo of accused Shahabuddin would reflect that the entire handwritten contents of the arrest memo are in one State vs. Shahabuddin etc. SC No. 73/14 Page 166 of 221 Pages (167) handwriting and pen but the time of arrest being 01:00 am is written in totally different pen and handwriting. This raises suspicion about the time at which accused Shahabuddin was formally arrested, which suspicion gets aggravated keeping in mind the odd hours of late night when his arrest was formally shown.
112. As regards the manner in which Shahabuddin was apprehended, I also find substance in the argument of defence that 26.01.2008, when the police team allegedly proceeded to Kolkatta, being the Republic Day, in view of the sensitivity of law and order on that day in the capital, it cannot be believed that the police team comprising of an inspector, a sub inspector and a head constable would be able to leave their posting station in Delhi without an elaborate exercise of State vs. Shahabuddin etc. SC No. 73/14 Page 167 of 221 Pages (168) seeking permission from superior officers and failure of prosecution to place that material on record creates suspicion that no police team went out of Delhi on that day to apprehend Shahabuddin and the story of the police team having apprehended Shahabuddin from international border was created only to import sensational conduct of the accused.
113. Then comes the arrest of the next accused Ali Khokhan. As per PW 22 IO Inspector Rohtash Kumar, on 29.01.2008 upon receipt of secret information that accused Ali Khokhan and Alamgir were seen in the area of Madanpur Khadar, he alongwith the accused Shahabuddin and police party went to Madanpur Khadar and apprehended Ali Khokhan and Alamgir on identification of Shahabuddin whereafter both the said accused persons namely Ali Khokhan State vs. Shahabuddin etc. SC No. 73/14 Page 168 of 221 Pages (169) and Alamgir were interrogated and arrested.
114. Now here, it remains unexplained as to if there was a specific information that Ali Khokhan was seen in the area of Madanpur Khadar, where was the need for the IO to take Shahabuddin alongwith him. In case it is Shahabuddin who had to identify Ali Khokhan, then who provided specific information about presence of Ali Khokhan in Madanpur Khadar remains unanswered. In the case of Shahabuddin also, the police party acted on similar information and there is nothing to show that the police party took along with them any witness, who already knew Shahabuddin. As regards the alleged secret informer who accompanied the police team for arrest of Shahabuddin, the lack of evidence as to how the informer knew Shahabuddin leaves void and a missing link in State vs. Shahabuddin etc. SC No. 73/14 Page 169 of 221 Pages (170) the chain of circumstances.
115. Quite significantly, as admitted by PW 22 Inspector Rohtash Kumar, there is no record at all as regards taking out of Shahabuddin from the lock up of the police station and consigning him back during the period of a week or so when he was in police custody. It is nobody's case and even otherwise cannot be a case of anybody that during the entire period accused Shahabuddin was in personal custody of the IO. The accused having been in lock up of the police station, every time he was taken out and consigned back there would have been daily diary entries but no such entries were placed on record in order to support the version of prosecution that on 29.01.2008 they had taken Shahabuddin out of lock and had taken him to Madanpur Khadar where he identified accused Ali Khokhan. State vs. Shahabuddin etc. SC No. 73/14 Page 170 of 221 Pages (171) Rather, PW 22 Inspector Rohtash Kumar in his cross examination stated that he even did not remember as to how many times during the police custody Shahabuddin was taken out from lock up and consigned back. Thence, arrest of even Ali Khokhan is not beyond reasonable doubt.
116. Further, PW 22 Inspector Rohtash Kumar in cross examination stated that in the personal search of accused Ali Khokhan, which was carried out after his arrest, the IO found one pendent of Om shape and the same was seized by the IO vide memo Ex. PW 18/J. But quite surprisingly, the personal search memo Ex. PW 18/H mentions that nothing at all was recovered from personal search of Ali Khokhan. This major contradiction also raises strong doubt about truthfulness of prosecution case pertaining to the circumstances related to State vs. Shahabuddin etc. SC No. 73/14 Page 171 of 221 Pages (172) arrest of Ali Khokhan.
117. Even on the arrest memo of accused Ali Khokhan, no independent public person of the area from where the accused was arrested was asked to sign. In his cross examination, PW 22 voluntarily added that nobody in the locality agreed to sign the arrest memo of Ali Khokhan, but on further cross examination PW22 admitted that he did not endorse the arrest memo of Ali Khokhan that nobody had agreed to sign the same.
118. Then comes the arrest of accused Rizwana. In her case also, PW 22 extended the same version that on 03.02.2008 he received information that accused Rizwana was spotted in Jamroodpur, so he took accused Shahabuddin alongwith staff including lady constable Suman and raided the place in State vs. Shahabuddin etc. SC No. 73/14 Page 172 of 221 Pages (173) Jamroodpur where on identification of Shahabuddin, Rizwana was apprehended, interrogated and arrested. In this case also, it remains unexplained as to if the IO already had clear information that Rizwana was spotted in Jamroodpur, where was the necessity to take Shahabuddin along and if Shahabuddin had to identify Rizwana, then what was the authenticity of the information regarding spotting of Rizwana in Jamroodpur area.
119. In case of Rizwana also, the handwritten part of arrest memo Ex. PW 18/D is in one handwriting while the timing of arrest is in distinct handwriting, which also raises suspicion.
120. In case of Rizwana also, there is no daily diary record reflecting that Shahabuddin was taken out of lockup State vs. Shahabuddin etc. SC No. 73/14 Page 173 of 221 Pages (174) and subsequent to arrest of Rizwana, consigned back to lock up. Rather, another police witness PW19 Lady Ct. Suman shockingly stated in her cross examination that there is no lockup in Police Station Greater Kailash.
121. Thence, manner of arrest of Rizwana also appears to be doubtful.
122. As reflected from the evidence brought on record, cited above, out of three accused persons, the identity of only one accused namely Rizwana was tried to be established by the prosecution. As per prosecution through chief examination of PW 22 Inspector Rohtash Kumar, subsequent to arrest of Rizwana on 03.02.2008, on the very next day, 04.02.2008 Shri Harbans Singh and one Alok Pande came to the police station where Alok Pande identified Rizwana as the maid who had State vs. Shahabuddin etc. SC No. 73/14 Page 174 of 221 Pages (175) been working with the deceased. In his cross examination, PW 22 Inspector Rohtash Kumar stated that prior to arresting the accused Rizwana, he did not record statement of any witness to the effect that the deceased had been living with a maid in her house; that he did not collect any evidence prior to arrest of Rizwana that she had ever worked with the deceased; that only one witness namely Alok Pande who used to live in the house of the deceased as tenant had identified Rizwana in the police station but no documentary evidence as regards the alleged tenancy of Alok Pande was obtained by him.
123. Most importantly, PW 22 Inspector Rohtash Kumar in his cross examination stated that except Alok Pande, none of the neighbours of the deceased had stated that accused Rizwana had been working as maid of the deceased and none State vs. Shahabuddin etc. SC No. 73/14 Page 175 of 221 Pages (176) of the neighbours of the deceased had ever stated that Alok Pandey also was residing as tenant in the same house at any point of time. PW 22 admitted that statement of Alok Pande for the first time was recorded only after arrest of Rizwana.
124. These circumstances, also create a strong doubt as regards the version of prosecution related to arrest of Rizwana.
125. Going by the prosecution case that it is Shahabuddin, who after his arrest made a disclosure of the involvement of the remaining accused persons including Rizwana, if that was so, it remains unexplained as to why during the period from 28.1.2008 when Shahabuddin was formally arrested till 03.2.2008 when Rizwana was arrested, why the IO did not investigate as regards role of Rizwana by examining the local neighbours as to whether anybody had State vs. Shahabuddin etc. SC No. 73/14 Page 176 of 221 Pages (177) ever seen Rizwana working as a maid with the deceased.
126. Once again it appears to be a case where subsequent to the arrest of Rizwana, IO tried to connect her with the crime by examining Alok Pande but even as regards Alok Pande, no reliable evidence was collected to reflect that he ever stayed in the same house of the deceased as a tenant at any point of time or had the opportunity to see Rizwana in that house.
127. Further, even testimony of Alok Pande PW 14 is very important while examining the genuineness of the circumstances of arrest of Rizwana. In his chief examination itself, PW 14 Alok Pande stated that he was tenant in the house of the deceased during the period MarchMay, 2007 and that in April, 2007 when he was tenant of the deceased, he saw State vs. Shahabuddin etc. SC No. 73/14 Page 177 of 221 Pages (178) the maid servant of the deceased; that on 04.2.2008 he identified the maid in the police station and it is only subsequently that he came to know name of that maid as Rizwana. In his cross examination, PW 14 could not produce any documentary evidence to show that he was a tenant in the house of the deceased and most importantly, he stated in the cross examination that he saw Rizwana only once in the house of the deceased and was not aware if anybody else was working in the house of the deceased as maid servant. Such an identification of Rizwana as maid of the deceased, by PW14 Alok Pande, who had seen her only once, that too about 10 months prior to seeing her in the police station is extremely weak evidence to connect Rizwana with the deceased.
128. Going by such circumstances, since the IO was State vs. Shahabuddin etc. SC No. 73/14 Page 178 of 221 Pages (179) aware about the version of the manner in which the conspiracy was allegedly hatched, it was the duty of the IO Inspector Rohtash Kumar to carry out TIP proceedings atleast of Rizwana, where Alok Pande would have been called upon to identify her before a learned Magistrate. But the same was not done. Such an identification by a witness almost ten months prior to the identification in police station cannot be relied upon to believe that Rizwana was a maid of the deceased, as alleged by the prosecution that too when Alok Pande saw Rizwana only once.
129. In the case of State vs V.C.Shukla, AIR 1980 SC 1382, the Hon'ble Supreme Court held that the identification of accused by the witness for the first time during trial, without being tested by way of TIP proceedings is valueless. State vs. Shahabuddin etc. SC No. 73/14 Page 179 of 221 Pages (180) Further, in the case of Dana Yadav @ Dahu vs State of Bihar, (2002) 7 SCC 295, the Hon'ble Supreme Court after recapitulating the legal position as regards TIP proceedings observed that failure to hold TIP does not make the evidence of identification during trial inadmissible, but ordinarily identification of an accused by a witness for the first time during trial should not form basis of conviction as the same is inherently of weak character and the previous TIP proceedings is the check value to the evidence of identification during trial of an accused by a witness, which is rule of prudence, though not rule of law.
130. Having examined the suspicious circumstances related to the arrest of accused persons, now the analysis of evidence has to proceed further as regards the articles State vs. Shahabuddin etc. SC No. 73/14 Page 180 of 221 Pages (181) allegedly recovered from the accused persons, which is the second pillar of the prosecution case to bring home conviction.
131. In his testimony, PW3 Sh. Harbans Singh, husband of the deceased stated that on 20.12.07 and on 31.12.07, they delivered preliminary list Ex.PW3/C and supplementary list Ex.PW3/D of the articles, which he and his son found missing from the house of the deceased, after they returned to India. The missing articles as per the said two lists were a reliance mobile phone; a Nokia mobile phone; four gold bangles; gold ear rings; two pairs of Italian gold ear rings; one gold Philips watch; one Ravue Thoman watch; Sony radio handset; Parker pen; Philips electric shaver; three silk saris; pearl necklace; pearl ring; Om in gold; three costume bangles; two pairs of costume ear rings; and cash amount of Rs.30,000/ to Rs. State vs. Shahabuddin etc. SC No. 73/14 Page 181 of 221 Pages (182) 50,000/.
132. As per prosecution case, after his arrest, accused Shahabuddin was taken to Chaman Vihar near Loni border and he led the police party to his tenanted house and got recovered from his house a cash sum of Rs.9,000/ in the form of 18 currency notes of Rs.500 denomination; accused Shahabuddin also got recovered from his house one gold ring, two ear rings and one receipt of Rs.7,400/ issued by jeweler. The said jewelery articles, as per prosecution were purchased by Shahabuddin out of his share in the looted cash. In other words, from Shahabuddin the recovery of allegedly looted articles is in the form of cash only. However, even the said jewelery articles, which are admittedly not the looted articles per se, also were seized by the IO.
State vs. Shahabuddin etc. SC No. 73/14 Page 182 of 221 Pages (183)
133. As regards accused Ali Khokhan, as per prosecution, the only allegedly looted article recovered from Ali Khokhan was the Om shaped pendent, which was recovered from his personal search conducted after his arrest and the same was seized by the IO. But as mentioned above, contrary to prosecution case that the Om shaped pendent was recovered from personal search of Ali Khokhan, the personal search memo Ex.PW18/H records that nothing at all was recovered from his personal search.
134. From accused Rizwana, the allegedly looted articles recovered as per prosecution were two pairs of ear rings and one pearl necklace and the same were seized by the IO.
135. It is with the help of the above mentioned articles, which as per prosecution belonged to the deceased and were State vs. Shahabuddin etc. SC No. 73/14 Page 183 of 221 Pages (184) recovered from the accused persons, the prosecution claims to have connected the accused persons with the offence of robbery and murder.
136. The jewelery articles, namely the Om shaped pendent, allegedly recovered from Ali Khokhan and two pairs of ear rings and a pearl necklace allegedly recovered from Rizwana were put through TIP proceedings Ex.PW2/B in which Sh. Harbans Singh, husband of the deceased participated and identified the said jewelery articles to be the articles belonging to the deceased.
137. Firstly, the circumstances related to the alleged disclosure statements of the accused persons, in the light of the circumstances related to their arrest as described above, look suspicious. PW18 Insp. P.D. Singhal as well as PW22 State vs. Shahabuddin etc. SC No. 73/14 Page 184 of 221 Pages (185) Insp. Rohtash Kumar stated in their cross examinations that Shahabuddin did not make any disclosure statement in Kolkatta; that being so, it appears quite difficult to believe that immediately upon reaching the police station, Shahabuddin would make a disclosure statement voluntarily.
138. Admittedly, neither the husband and son of the deceased could produce before the IO, nor any of the investigating officers could find any evidence related to the ownership and/or possession of the allegedly looted articles with the deceased. The prosecution witnesses related to the deceased's ownership and/or possession of the allegedly looted articles are her husband PW3 Sh. Harbans Singh Banga and her son PW20 Sh. Vikas Banga. PW3 Sh. Harbans Singh Banga stated in his testimony that he was residing in Italy for State vs. Shahabuddin etc. SC No. 73/14 Page 185 of 221 Pages (186) past 25 years and reached Delhi on 13.12.07; that there was no specific identification mark on the allegedly looted jewelery articles; that he did not produce the bills of the allegedly looted jewelery articles as the same might have been with the deceased; that he did not give denomination numbers of the robbed currency notes to the police; that he did not know if any cash memo or receipt of the mobile phones were given by him to the IO. PW20 Sh. Vikas Banga stated that he reached Delhi on 14.12.07 and prior to that he had come to India about an year or two ago; that he did not give any document pertaining to the Italian ear rings to the police; that it is not possible to remember the specific identification mark of the allegedly looted ear rings as a mark of KDM is found on every jewelery article manufactured in Italy; that he could not State vs. Shahabuddin etc. SC No. 73/14 Page 186 of 221 Pages (187) produce any document pertaining to the allegedly looted mobile phone or watch; that he had no document reflecting possession of any of the allegedly looted articles enlisted by him.
139. In that regard, even PW21 Insp. Ganga Singh stated that son and husband of the deceased had given him only the lists of missing articles and not any document of ownership or possession thereof; that he did not investigate as to whether the allegedly missing articles were ever owned or possessed by the deceased or her family; that son and husband of the deceased did not tell him and he also did not ask them for any specific identification mark of the allegedly missing articles.
140. Even Insp. Rohtash Kumar, the subsequent IO in State vs. Shahabuddin etc. SC No. 73/14 Page 187 of 221 Pages (188) his testimony as PW22 stated that he had noticed upon receipt of investigation that husband and son of the deceased had given the lists of missing articles but without any documentary evidence of ownership or possession; that he did not record statement of any witness of the vicinity as to whether anyone had seen the allegedly missing articles in possession of the deceased in any manner and nobody except son and husband of the deceased told him having seen those articles in the house of the deceased; that he did not receive from the legal heirs of the deceased a comprehensive list containing all the articles that were present in the premises of the deceased prior to the alleged occurrence nor he recorded any such statement of any witness nor he asked the legal heirs of the deceased to furnish any such comprehensive list in order to verify if the allegedly State vs. Shahabuddin etc. SC No. 73/14 Page 188 of 221 Pages (189) looted articles were ever in existence in the house of the deceased; that even after the conclusion of TIP proceedings, Sh. Harbans Singh in his statement did not disclose as to when firstly and lastly he had seen the deceased using the allegedly recovered articles; that Sh. Harbans Singh did not tell him as to which of the allegedly recovered articles was purchased or acquired on which date.
141. Thence, the irrefutable evidence on record is that there is no evidence to reflect that the allegedly recovered articles, namely cash, two pairs of ear rings, one necklace and Om shaped pendent were ever owned or possessed by the deceased.
142. In this regard, the Hon'ble Delhi High Court held in the case of Harbir Singh vs State, 198891 CC Cases 280 State vs. Shahabuddin etc. SC No. 73/14 Page 189 of 221 Pages (190) (supp) as under:
"5. Section 114 (a) of the Indian Evidence Act, 1872 provides that possession of stolen property recently after commission of a theft raises a prima facie presumption that the possessor was either the thief or the receiver of the stolen property knowing it to be stolen, according to other circumstances of the case. The presumption of possessor of stolen property being either the thief or receiver of stolen property arises when the accused is proved to be in possession of the property and the property is proved to be the stolen property. There is no presumption as to the fact of possession and presumption of guilt arises only when possession is proved and it is shown that the property is stolen property. The prosecution must establish the ownership of the articles, their theft and their recent possession by the accused. Inference under Section 114, illustration (a), should never be reached unless from the circumstances of a given case the necessary inference is that of guilt of the accused. In order to raise a presumption that the possessor of stolen State vs. Shahabuddin etc. SC No. 73/14 Page 190 of 221 Pages (191) property is the thief or the receiver, the possession must be shown to be exclusive as well as recent." (emphasis supplied)
143. Besides, due to failure of prosecution to establish the financial status of the accused persons and worth of the allegedly recovered articles, namely two pairs of ear rings, a pearl necklace, a gold Om pendent and cash Rs.9,000/ with jewelery worth Rs.7,400/ recovered from three persons, it cannot be said that the said articles, even if assumed to have been recovered from the accused persons were so expensive that the same could not be lawfully owned or possessed by the accused persons, which was a factor in the case of Bhawgan Mahalik vs State (supra), relied upon by learned counsel for the complainant.
144. Further, as mentioned above, none of the allegedly State vs. Shahabuddin etc. SC No. 73/14 Page 191 of 221 Pages (192) looted articles recovered from the accused persons bore any specific mark of identification. In the case of Balbir Singh vs State of Punjab, 1997 (1) CC Cases 136 SC : 1996 SCC (Cri.) 1158, the Hon'ble Supreme Court reiterated that where the allegedly recovered articles did not bear any special marks of identification, the recovery becomes a weak piece of evidence.
145. As per prosecution case, the allegedly looted articles were recovered from the residence of accused Shahabuddin and accused Rizwana. Regarding the said places of recovery, the evidence brought by prosecution is quite significant.
146. As per prosecution, accused Shahabuddin took the police party to his residence in Chaman Vihar and got recovered the allegedly looted cash. In that regard, IO PW 22 State vs. Shahabuddin etc. SC No. 73/14 Page 192 of 221 Pages (193) Inspector Rohtash Kumar stated that he did not prepare any site plan of the place from where Shahabuddin got the articles recovered; that he did not investigate as to who was owner of the house in which Shahabuddin was tenant since the house of Shahabuddin is in unauthorised locality where in each house a large number of labourers reside without any formal tenancy but he could not tell as to how many persons were residing in the premises from where the articles were got recovered by Shahabuddin. More significantly, PW 22, the investigating officer himself stated in his cross examination that there is no evidence to connect the currency notes recovered at the instance of Shahabuddin with the offence. On this aspect, statement of PW 18 Inspector P.D. Singhal is all the more interesting; in his cross examination PW 18 stated that when State vs. Shahabuddin etc. SC No. 73/14 Page 193 of 221 Pages (194) they reached the house of Shahabuddin, the said room was locked and the lock was opened by Shahabuddin but with bare hands, without using any key and he did not remember if that lock was seized by the IO; this unbelievable statement that the lock was opened with bare hands, in the absence of the said lock appears to have been made falsely only to create exclusivity of possession of the room of Shahabuddin.
147. Similarly, as per prosecution the allegedly looted jewelery articles were got recovered by Rizwana from her residence. In that regard also, PW 22 Inspector Rohtash Kumar stated in his cross examination that he did not collect any document reflecting that Rizwana was a tenant in the premises from where she was arrested and the alleged recovery was carried out; that he did not examine the owner of State vs. Shahabuddin etc. SC No. 73/14 Page 194 of 221 Pages (195) the premises from where the alleged recovery was carried out; that the house from which the alleged recovery was carried out is in an unauthorised colony and is occupied by 2030 labourers without any formal tenancy arrangements but he did not know as to how many persons were residing in the premises from where the alleged recovery was carried out; that he did not prepare any site plan of the place from where the recovery was carried out at the instance of Rizwana. As regards the veracity of prosecution evidence qua the articles allegedly got recovered by Rizwana, the testimony of Lady Ct. Suman, the alleged witness of recovery totally shakes confidence. Lady Ct. Suman, in her testimony as PW19 was shown the said jewelery articles to be identified in court during trial. But before being shown the said jewelery she was asked to tell the description of State vs. Shahabuddin etc. SC No. 73/14 Page 195 of 221 Pages (196) those articles. Such a question is asked to test the truthfulness of the version of the witness that he/she saw the article during investigation; otherwise the witness would mechnaically identify whichever article is produced before him/her by the prosecutor through the malkhana clerk. In response to the said question, in her testimony as PW19, Lady Ct. Suman stated that she could not tell the description of the said articles, but could identify the same. PW19 then identified the jewelery articles on being shown but stated that she could not tell as to why she could not describe the articles prior to seeing the same in court. It remains unanswered as to when PW19 could not tell description of the articles prior to being shown the said articles, on what basis she identified the same in court. It shows that PW19 Lady Ct. Suman, the State vs. Shahabuddin etc. SC No. 73/14 Page 196 of 221 Pages (197) alleged recovery witness is a planted witness of police.
148. In other words, the premises from where the allegedly looted cash was recovered at the instance of Shahabuddin and from where the allegedly looted jewelery articles were recovered at the instance of accused Rizwana were not in exclusive possession of these accused persons and in both the cases, despite availability, no independent public person was joined in the recovery proceedings.
149. In the cases of Preetam Singh (supra) and Harjit Singh vs State of Punjab (2002) 6 SCC 739, the Hon'ble Supreme Court held that where the recovery is made from an open house and not in exclusive possession of the accused and there is no independent witness to the recovery, the alleged recovery becomes doubtful.
State vs. Shahabuddin etc. SC No. 73/14 Page 197 of 221 Pages (198)
150. Further, PW 22 Inspector Rohtash Kumar admitted in his cross examination that the articles allegedly recovered at the instance of accused persons were not produced before the learned Magistrate at the time of first remand. The same was in clear violation of the provisions of Sec. 170 (2) Cr.P.C.
151. Further, prosecution has failed to explain as to why the premises of the deceased were kept by Inspector Ganga Singh in his personal lock and key from 12.12.2007 to 14.12.2007, as admitted by him in his cross examination as PW
21. In that regard, during cross examination, PW 21 Inspector Ganga Singh stated that he could not tell if he recorded in the case diary that during the said period, premises of the deceased were in his personal custody and after seeing the case diary, PW 21 stated that it was not mentioned in the case State vs. Shahabuddin etc. SC No. 73/14 Page 198 of 221 Pages (199) diary that the said premises were in his personal lock and key during the period form 12.12.2007 to 13.12.2007 and that he did not prepare any seizure of the said lock and key at the time of delivering the custody of the house to the relatives of the deceased; rather in further cross examination PW 21 stated that he handed over keys of the said premises to son of the deceased on 14.12.2007 but without recording any statement. This personal custody of the premises with the investigator is significant in view of the defence that the allegedly robbed articles were planted on the accused persons so that the actual crime, which was a blind murder could be solved by being projected as a robbery cum murder in order to connect innocent persons with the crime.
152. Coming to the TIP proceedings of the allegedly State vs. Shahabuddin etc. SC No. 73/14 Page 199 of 221 Pages (200) recovered articles, as mentioned above, Shri Harbans Singh Banga, husband of the deceased who identified the allegedly looted articles during TIP proceedings had been residing in Italy for past 25 years and the deceased was residing alone in Delhi. That being so, there is nothing on record to show that Shri Harbans Singh Banga had ever seen the said articles in possession of the deceased. As also mentioned above, none of the said articles bore any specific mark of identification. Under such circumstances, it becomes difficult to believe that Shri Harbans Singh Banga was not priorly shown the articles to be identified by him during TIP.
153. More significantly, the TIP proceedings Ex. PW 2/B carried out before the learned Magistrate appear to be not perfect. In her chief examination as PW 2, the learned State vs. Shahabuddin etc. SC No. 73/14 Page 200 of 221 Pages (201) Magistrate explained the TIP proceedings as regards the jewelery articles, specifically stating that in the course of TIP, the said articles were mixed up with similar articles, but as regards the Om shaped pendent, no such specific statement was made by the learned Magistrate in her testimony as PW 2 that the Om shaped pendent also was mixed with similar articles.
154. In this regard, even the TIP proceedings Ex. PW 2/B do not specifically mention that the similar pendents used in TIP proceedings were Om shaped pendents. If the pearl necklace was mixed up with similar looking pearl necklaces and ear rings were mixed up with similar looking ear rings, as reflected from TIP proceedings Ex. PW 2/B, TIP of Om shaped pendent also ought to have been done by mixing up the same State vs. Shahabuddin etc. SC No. 73/14 Page 201 of 221 Pages (202) with similar Om shaped pendents and that having not been done, the TIP loses its credence. As regards mixing of Om shaped pendents during the TIP proceedings with the allegedly recovered Om shaped pendent, even the IO PW22 evaded specific response. In his cross examination, PW22 Insp. Rohtash Kumar stated that he had mixed up articles similar to Om shaped article but he did not remember as to how many such articles he mixed up; that he did not record any DD entry as regards mixing up of Om shaped articles; that he did not remember if he mentioned about such mixing up in case diary but he did not want to see the case diary to refresh his memory on this aspect. Such a testimony of the IO also shows that so far as Om shaped pendent is concerned, during TIP proceedings, the pendents used for mixing up were not State vs. Shahabuddin etc. SC No. 73/14 Page 202 of 221 Pages (203) similar pendents and to that extent, TIP proceedings fail to succeed.
155. Further, prosecution also failed to explain the delay in carrying out the TIP proceedings. As per prosecution case, the allegedly looted articles were recovered on 27.01.08 but the application for TIP was filed on 04.02.08 and TIP was carried out on 07.02.08.
156. In any case, in the absence of evidence that the articles put through TIP proceedings were owned or possessed ever by the deceased and in the light of shaky evidence pertaining to the recovery thereof, TIP proceedings lose credence.
157. Learned counsel for complainant placed strong reliance on the judgment of Hon'ble Delhi High Court in the State vs. Shahabuddin etc. SC No. 73/14 Page 203 of 221 Pages (204) case of Bhawgan Mahalik (supra) in support of his contentions, emphasizing that circumstances of that case were exactly similar to the present case, the only difference being that in the said case two lawyers were killed in the course of robbery. So far as the legal proposition discussed by the Hon'ble Delhi High Court in the said case, there is no dispute and cannot be so. But a close analysis would show that the facts relevant for the present purposes were totally different in the said case from the present case. In the said case, the Hon'ble High Court observed that family members of the deceased, who were staying abroad and had no animosity with the accused to falsely plant the valuable jewelery on them. But in the present case, as mentioned above there is a crucial admitted evidence to the effect that, for no explanation, the State vs. Shahabuddin etc. SC No. 73/14 Page 204 of 221 Pages (205) premises of the deceased remained in personal lock and key of Insp. Ganga Singh from 12.12.07 to 14.12.07 and initially, it was a case of blind murder as also admitted by PW22 Insp. Rohtash Kumar in his cross examination, so the defence that during the period of the said personal custody of the house with the first IO, the case was given a shape of robbery so that it could be solved by planting some of the articles on the accused cannot be brushed aside. Further, in the said case before the Hon'ble High Court, the worth of the looted and recovered property was found so high that looking into the financial status of the accused, it was difficult not to raise the presumption against them; and in the said case before the Hon'ble High Court, prosecution had produced photographs reflecting the deceased wearing the jewelery that was allegedly State vs. Shahabuddin etc. SC No. 73/14 Page 205 of 221 Pages (206) robbed and even receipts of the allegedly looted articles were provided to police in order to show ownership. But in the present case, as mentioned above there is no evidence at all reflecting that the articles allegedly recovered from the accused persons were ever owned or possessed by the deceased and even financial worth of the articles allegedly recovered from the accused persons was not brought on record to show that the same could not be lawfully possessed by them.
158. Even as regards the finger print evidence, for which learned counsel for complainant placed heavy reliance on the judgment in the case of Bhawgan Mahalik (supra) the finger print evidence showed similarity of chance prints with specimen prints of persons other than the accused as well, which is not the present case. And the Hon'ble High Court State vs. Shahabuddin etc. SC No. 73/14 Page 206 of 221 Pages (207) specifically observed in that case that in the absence of infirmity of comparison, the matching of finger prints is a vital circumstance. On the other hand, in the present case, as discussed at length, the very process of comparison is questionable owing to the credibility and competence of the finger print expert; and there is no explanation as to why specimen prints of the persons allegedly residing in the same house namely Sh. Anant Zanane, Sh. Alok Pande and Ms. Sonali were not taken and why they were ruled out as suspects even prior to arriving at culpability of accused persons.
159. As regards the presumption under Section 114 (a) Evidence Act also, learned counsel for complainant strongly relied upon the judgment in the case of Bhawgan Mahalik (supra) where the Hon'ble High Court placed reliance on the State vs. Shahabuddin etc. SC No. 73/14 Page 207 of 221 Pages (208) judgment of the Hon'ble Supreme Court reported as AIR 1983 SC 446, holding that the recency of possession in order to invoke the presumption is a matter of fact and to be judged from case to case and varies according as the stolen article is or is not calculated to pass readily from hand to hand, otherwise the period of even one year cannot be said to be too long. In the said case (AIR 1983 SC 446) the Hon'ble Supreme Court also observed that the accused persons were not affluent enough to possess the said ornaments and from the nature of evidence adduced in that case, a reasonable inference of the commission of offence could be drawn against the appellant. In the present case, as mentioned above, the circumstances are totally different and even as per the legal position mentioned in the said judgment, every case has to be adjudged on its State vs. Shahabuddin etc. SC No. 73/14 Page 208 of 221 Pages (209) peculiar facts. Not only this, in the case of Bhawgan Mahalik (supra) itself, the Hon'ble High Court placed reliance on another case of the Hon'ble Supreme Court reported as (2001) 6 SCC 296 observing that the possession of the fruits of crime soon after it has been committed affords a strong and reasonable ground that the party in possession thereof is the real offender and the said rule of presumption depends upon recency of the possession as related to the crime, which presumption is weakened if the goods are of such kind as in the ordinary course of such things frequently change hands.
160. In the case of Sunil (supra) relied upon by the learned counsel for the complainant, the issue involved was limited to the assumption that recovery pursuant to disclosure statement must always be witnessed by independent public State vs. Shahabuddin etc. SC No. 73/14 Page 209 of 221 Pages (210) person, which assumption was held to be fallacious. In the present case, the alleged recovery proceedings have failed on different other tests as described above. In the case of Rajesh Kumar (supra) relied upon by the learned counsel for the complainant, the Hon'ble Court observed the preferability of no time gap between apprehension and arrest of accused, though in the facts and circumstances of that case, the time gap was held as an inconsequential lapse. The judgment in the case of Munna Upadhyay (supra) was cited by the learned counsel for the complainant emphasizing the significance of statement under Section 313 Cr.P.C. In that case also, it was held that the statement under Section 313 Cr.P.C. not being strictly evidence, conviction can not be based solely on such a statement.
State vs. Shahabuddin etc. SC No. 73/14 Page 210 of 221 Pages (211) MANNER OF INVESTIGATION
161. Lastly, it being a case of circumstantial evidence and the defence being that a blind murder case was calculatedly converted into murder cum robbery case so that it could be solved by planting articles on the innocent persons, it would also be necessary to examine the manner in which the investigation was carried out and the reliability of the investigating officers.
162. PW21 Insp. Ganga Singh, first IO of the case stated in his cross examination that he did not investigate as to how for the first time the factum of murder came to light. PW21 in cross examination had to be repeatedly asked as to whether he inquired from lady SI Rita as to how the fact of murder came to the light for the first time. But even after State vs. Shahabuddin etc. SC No. 73/14 Page 211 of 221 Pages (212) repeatedly putting the question, PW21 evaded the answer, stating that Rita had already reached the spot with her staff after receipt of DD No. 5A. Another question which had to be repeatedly asked and even explained to PW21 in Hindi during cross examination was as to whether he investigated as to who all were aware that the deceased was residing alone in that house. But even after repeatedly being asked, PW21 again ducked the question and stated that he had made inquiries from the neighbours who stated that the deceased was living alone. Further, PW21 stated that he had made inquiries from neighbours as to who was residing and visiting the house of the deceased and he recorded about the same in the case diary; but on being shown the case diary, PW21 admitted having not mentioned in the case diary that he had made such inquiries State vs. Shahabuddin etc. SC No. 73/14 Page 212 of 221 Pages (213) from neighbours of the deceased and further admitted having not recorded statement of any of the neighbours as to who all were visiting the house of the deceased. Further, PW21 stated that he had interrogated the servants of the houses in the vicinity of house of the deceased but did not record their statements, though he had recorded their names in the case diary; but on being shown his case diary, PW21 stated having not mentioned names of those servants and also having not mentioned that he had interrogated them. PW21 also stated that he could not admit or deny the suggestion that some miscreants of the area also could have committed the murder and robbery. As mentioned above, regarding the house of the deceased being in his personal lock and key also, he did not make any mention in the case diary.
State vs. Shahabuddin etc. SC No. 73/14 Page 213 of 221 Pages (214)
163. The second investigating officer PW22 Insp. Rohtash Kumar categorically admitted in his cross examination (dated 19.04.14) that the present case was a case of blind murder; that he did not record statement of Anant Zanane or anyone else from the vicinity of the house of the deceased as to whether the deceased had enmity with anyone; that he did not at all investigate the case from angle of enmity of the deceased with anyone; that he did not investigate if anyone had ever seen any of the accused persons entering or coming out of the house of the deceased and did not record any statement of any servant of the area; that he also did not investigate the connection of the crime with any of the local miscreants; that he did not record statement of residents opposite the house of the deceased, though such person was State vs. Shahabuddin etc. SC No. 73/14 Page 214 of 221 Pages (215) likely to have seen anyone entering or coming out of house of the deceased; that after receipt of investigation, he did not collect any evidence of loot since the said evidence was already in the case diary and that evidence was only the lists of missing articles and chance prints. PW22 in response to a number of questions during cross examination stated that he did not remember the facts, but at the same time when offered to see the case diary in order to refresh his memory, PW22 flatly refused to look into his case diary in order to refresh his memory.
164. In other words, there was no investigation qua murder angle; no investigation qua enmity angle; no investigation qua last seen evidence; no investigation qua the possible involvement of the local miscreants and servants of State vs. Shahabuddin etc. SC No. 73/14 Page 215 of 221 Pages (216) the vicinity; no investigation qua Rizwana being a maid of the deceased. As rightly submitted by the learned defence counsel, the case being based on circumstantial evidence, it was the duty of the IO to exclude all these possibilities, which are hypothesis consistent with innocence of the accused persons.
165. While analysing the circumstantial evidence related to this case, it would also be significant to note that had it been the case of the investigator having suspected the hand of the maid of the deceased, followed by connection of the crime with Rizwana and from her onwards to the remaining accused persons, the situation would have still been understandable. But here, it remains a void as to on what basis the investigator started the exercise from Shahabuddin, an admitted stranger to the deceased. Although this void is sought to be filled by State vs. Shahabuddin etc. SC No. 73/14 Page 216 of 221 Pages (217) prosecution by inserting a secret informer, but it remains only a fiction of investigation, especially in view of the fact that one of the accused till whom the trail of investigation allegedly reached was allegedly maid of the deceased.
166. Lastly comes the submission of learned counsel for the complainant that the accused persons being Bangladesh citizens, the rigors of procedural law are liable to be diluted against them, since such people are running syndicates of illegal activities and his experience as DCP, Kolkatta Police showed that there are logistic difficulties in ensuring strict compliance with the procedure laid down by law. I must express strong disagreement with this argument. Merely because the accused persons, as per complainant are Bangladesh nationals, it does not mean that rule of law would State vs. Shahabuddin etc. SC No. 73/14 Page 217 of 221 Pages (218) be different for them. Article 21 of the Constitution of India guaranteeing the fundamental right to the procedure established by law is available not only to the citizens of this country but to every individual. Even the most dreaded terrorists cannot be denied fair trial in this country. In this regard also, as reflected from charge sheet itself, not all the accused persons are residents of Bangladesh, even as per police. The only accused whose address is described to be of Bangladesh is accused Ali Khokhan but regarding that accused, learned defence counsel has argued that in the absence of compliance under Section 166A and 166B Cr.P.C, accused Ali Khokhan cannot be treated as a foreigner in this country. It is further pointed out by learned defence counsel that even mother of accused Ali Khokhan is a citizen of this State vs. Shahabuddin etc. SC No. 73/14 Page 218 of 221 Pages (219) country, so it was the duty of the IO to have verified the antecedents of accused Ali Khokhan from Bangladesh. Irrespective of these submissions of learned defence counsel, which fall beyond the domain of the present trial, the fact remains that as mentioned above, the procedure established by law is guaranteed by Article 21 of the Indian Constitution to not just citizens of this country but to every individual.
167. As described above, this is yet another case in which the investigation traveled not from crime to criminal but was pulled down from criminal to crime. Prosecution has failed to establish not just complete chain of circumstances, even the circumstances tried to be established could not be cogently and firmly so established by prosecution. It is indeed sad that murder of an old lady living alone is going unpunished. But State vs. Shahabuddin etc. SC No. 73/14 Page 219 of 221 Pages (220) as described above in the cited law, the court have to be phlegm to emotions while deciding whether prosecution has been able to walk through the distance between 'may be true' and 'must be true'. Prosecution in this case has failed to prove beyond reasonable doubt that the accused persons conspired together and committed robbery or murder of deceased Smt. Nishi Banga; prosecution has also failed to prove that the accused persons were ever in receipt of any of the articles allegedly robbed from the house of the deceased. CONCLUSION
168. Consequently, all the accused persons are held not guilty of the charges framed against them and are acquitted.
169. Accused persons are in custody and if not required in any other case, they be immediately released. However, State vs. Shahabuddin etc. SC No. 73/14 Page 220 of 221 Pages (221) since as per prosecution, accused Ali Khokhan is a Bangladesh national, his release shall be in accordance with law applicable to him as a foreigner as regards the legality of his stay in this country.
170. File be consigned to records.
` (GIRISH KATHPALIA)
ADDITIONAL SESSIONS JUDGE05,
SOUTH EAST, SAKET, NEW DELHI
Announced in the open court
on 05.09.2014
State vs. Shahabuddin etc. SC No. 73/14 Page 221 of 221 Pages