Delhi District Court
Statements (Relied Upon Bhagwan Dass vs . State, 2011 Cr.L.J 2903 & on 7 July, 2018
In the Court of Sh. Ajay Kumar Jain, Additional Sessions Judge02, South
District, District Court Saket, New Delhi.
Session Case No. 6530/16
In the matter of :
State
Versus
1. Liyakat Ali
S/o Mohd. Sadeeq
R/o T899, Near Aulia Masjid,
Ward No.8, Mehrauli, New Delhi.
2. Aashiq Ali S/o Liyakat Ali
R/o T899, Near Aulia Masjid,
Ward No.8, Mehrauli, New Delhi.
FIR No. : 280/13
Police Station : Mehrauli
Under section. : 302/201/34 IPC
Date of assignment : 10.09.2013
Reserved for judgment : 04.07.2018
Date of decision : 07.07.2018
JUDGMENT
1. Prosecution story in brief that on receiving DD No. 34A dated 10.05.2013, SI Pushpender alongwith Ct. Praveen reached the spot ie Ganda nala near Jharna, Aulia Masjid, Ward No.8, Mehrauli and from the ganda nala one plastic bag containing human skeleton was found, thereafter the crime team SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-1 of 39 ) dated: 07.07.2018 was called and in presence of public persons namely Mohd. Istiaque @ Ladoo and Rustom the skeleton was taken out from the bag, and from over the skeleton, one ladies shirt and salwar and undergarments were recovered. The height of the dead body is found around 5 fts but the dead body could not be identified. The FIR u/s 201/302 IPC was registered.
2. During investigation, the site plan of place of occurrence was prepared. The inquest papers were prepared in presence of public witnesses and dead body/ skeleton was preserved at AIIMS mortuary. Two plastic bags, two pieces of nylon rope seized from the spot, and efforts were made to identify the skeleton, but, as the skeleton could not identified, after postmortem the dead body was cremated as unknown and the cause of death kept pending till the analysis of preserved sample. At the time of postmortem, the clothes of deceased, muscle tissue of viscera bones for DNA were preserved.
3. On 06.06.2013 one secret informer disclosed that dead body was of one Gulshama daughter of Liyakat Ali who was killed by Liyakat Ali as she was having illicit relations with one boy at village and the body was dumped at nala. The said information was shared with SHO and lodged in daily diary vide DD no. 37A, and thereafter in presence of one public witness Habib Liyakat Ali was apprehended and he could not give any satisfactory reply. Thereafter, he was brought to police station and on sustained interrogation confessed the crime and stated that because of the illicit relations of Gulshama with one boy Tehsin, he killed his daughter, and disclosed that on 03.04.2013 when he had gone to his village Bisaich where his daughter and wife were staying, in the night noticed that his daughter Gulshama arrived in the house after jumping the wall and found that she had gone to the house of her cousin where met Tehsin brotherinlaw of cousins, thereafter he entered SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-2 of 39 ) dated: 07.07.2018 in house of his nephews and started beating Tehsin and his nephews, however Tehsin managed to escape and his daughter Gulshama also escaped. Thereafter, he made search but she could not be found, then he received a call from nearby village, then she was brought back and with entire family shifted to Delhi from village due to shame and insult in village. On the night of 04.04.2013 when other sisters of Gulshama did not allow her to sleep with them, then she came to his room and when he started questioning him, she did not respond, thus in anger strangulated her. Thereafter, he put her into gunny bags and carried her to nala between Kabristan and Shamshi talab and put her into open hole, thereafter, in the morning told family members that he sent her to the house of relative.
4. During personal search, one copy of complaint made to PS Gulawati about missing of daughter was recovered, and accused during investigation also pointed out the place of killing and also the place where he had thrown the dead body. The statement of Smt. Shakeela wife of accused also recorded in which she alleged that on 04.04.2013 her daughter Gulshama was sleeping in the room of Liyakat Ali when she was not found in the morning, he stated that she had sent her to house of relative in Ghaziabad. During police remand, accused was taken to his village where the incident of quarrel between accused and nephews was found confirmed. In the morning of 04.04.2013 it was found that accused Liyakat Ali told villagers in panchayat that Tehsin wrongly acted with his daughter, and she is still missing, thereafter, he lodged the complaint at PS Gulawati.
5. During investigation, they also recorded the statement of Mitra Pal and Omparkash who stated that on the night of 03.04.2013 when they were returning they noticed one girl on wrong side in frightened condition, then SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-3 of 39 ) dated: 07.07.2018 they brought her to her house then on mobile informed her house, then her three brothers came in maruti van and took her with them. From their statement, it was clear that Gulshama was brought back and it was wrongly informed to villagers that she had not been traced. The missing report was found to be lodged on 12.04.2013, however on inquiry from the PS, it was found that on 03.05.2013 accused Liyakat Ali informed that his daughter came back to home. Accused Liyakat Ali further disclosed that when he murdered his daughter, his son Aashiq Ali got up then he explained the events to him, thereafter both of them put the dead body in gunny bag, in the meanwhile, another son Sarwar Ali also got up who got frightened and went inside the room, thereafter both of them had taken dead body in nala and threw it in the nala. He also disclosed to police that he lodged missing report on 08.04.2013 at PS Gulawati, however thereafter when police came, then his brother Abas and other villagers came and told to bring Gulshama and nikah papers, however thereafter on 03.05.2013 he had given the affidavit to SSP Bulandsheher that he found his daughter. He further stated he has not told the factum that his daughter Gulshama found so that pressure could be made on the nephews. The clothes of deceased were identified during investigation through Tehsin. Accused Liyakat Ali submitted an application of PS Gulawati dated 12.04.2013 reporting his daughter is missing, subsequently given an application dated 03.05.2013 alongwith affidavit that she herself had come back on 28.04.2013. The statement of Syed Mehrajuddin was also recorded with whom accused Liyakat Ali disclosed about killing of his daughter. The notary advocate who attested affidavit was also examined. Mobile call details of Liyakat Ali, Aashiq Ali, her daughter Gulshama, Netra Pal were also obtained. Tehsin son of Yasin used to call her SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-4 of 39 ) dated: 07.07.2018 frequently. The maruti car used for transporting body was also seized. During investigation, Mitra Pal identified Aashiq Ali as the person who had taken Gulshama from his house in the early morning of 04.04.2013 alongwith two others. On completion of investigation, charge sheet was filed.
6. On committal, vide order dated 13.02.2014 charges u/s 302, 120B r/w 201 and 201 r/w 120B IPC were framed against accused Liyakat Ali whereas accused Aashiq Ali was charged for offence u/s 120B r/w 201 and 201 r/w 120B IPC and both accused pleaded not guilty and claimed trial.
7. Prosecution for substantiating its case examined 55 witnesses. PW4 Mitra Pal and PW9 Om Parkash are the witnesses who noticed the deceased on the way in the night of 3.4.2013. PW10 Abas, PW18 Asso, PW19 Shamshad, PW20 Shehzad, PW15 Zahida are the relatives of accused. PW11 Brahm Singh and PW12 Vijay Singh are Pradhan of village and native of the village. PW22 Ghanshyam Singh is the advocate from whom affidavit was notarized. PW50 Sh B.K. Mohpatra Sr. Scientific officer generated the DNA profile. PW55 IO Inspector Dalip Kumar. PW2 Rustom and PW7 Mohd. Ishtiaq are independent witnesses of recovery of skeleton of deceased Gulshama. The summary details of prosecution witnesses is as under.
8. PW1 HC Zakir Hussain duty officer who registered FIR on 10.05.2013.
PW2 Rustom is the witness of recovery of dead body. PW3 Rama Shankar who took photographs on 07.06.2013 at the instance of accused Liyakat Ali in presence of police of his ground floor and the nala near Shamsi talab. PW4 Mitra Pal stated that on 03.04.2014, he met a girl aged around 1617 years, thereafter he took her to his house and left her there with the ladies. Then informed her relatives, then relatives came and also identified Aashiq Ali. He was the person out of the three. On being declared hostile in cross SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-5 of 39 ) dated: 07.07.2018 examination denied suggestion that name of the girl was Gulshama, however it is correct that three persons were identified as her brothers. He also denied suggestion it has come to his notice that girl left home without permission of her parents. He also stated that on 15.08.2013 he identified the girl through photographs. In cross examination stated that 3 persons who came there stayed there for 34 minutes and he could not properly see those persons, however denied suggestion that wrongly identified accused Aashiq Ali in court. He denied suggestion that accused Aashiq Ali did not come to his house 04.03.2013 or with police on 15.08.2013.
9. PW5 Rajbir Singh exhibited the MLC of deceased as unknown person.
PW6 Dr. Satya Prakash, Sr. resident, Department of Surgery exhibited the MLC of deceased Ex. PW5/A. In cross examination stated that no flesh was found present on upper limb, lower limb and the scalp and rest part of body was having flesh. He also stated that it is his presumption that when there was no flesh present on upper limb, lower limb, scalp and rest part of body was having flesh.
10. PW7 Mohd. Ishtiyak @ Ladoo is also witness to the recovery of dead body.
PW8 Habib stated he was forcibly brought in frame of videography and one Inspector Dalip Kumar took his signatures on blank papers. PW9 Om Parkash stated that on 03.04.2013 at around 1 am in the night he noticed one girl, thereafter his brother took her to his house then they made call to her house then between 3 to 4 am, three persons came, however he is not aware about the name of the girl. On being declared hostile in cross examination stated that name of girl came to his notice on inquiry as Gulshama. In cross examination stated that he had not seen 3 brothers in his house as he was sleeping at that time. PW11 Smt. Saroj Yadav Asst. teacher exhibited the SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-6 of 39 ) dated: 07.07.2018 admission register where date of birth of Gulshama is recorded as 30.04.1996.
11. PW10 Abbas elder brother of accused Liyakat Ali stated that he is not aware about Gulshama. On being declared hostile in cross examination he denied suggestion that on 04.04.2013, accused Liyakat met him outside his house in village Bisaich. He also denied suggestion that accused alongwith wife and daughters also resides in the said village. He also denied the factum of elopement of Gulshama with Tehsin. He also denied suggestion that Aashiq Ali took Gulshama to Delhi on 04.04.2013. He also denied the lodging of any missing report.
12. PW11 Braham Singh Pradhan of village Bisaich stated that on 04.04.2013 there was a rumour in the village that daughter of Liyakat had gone somewhere however he do not know other facts. After being declared hostile in cross examination denied suggestion that accused and his son came to his house in search of Ali Hasan and his children. PW12 Vijay Singh stated that on 03.04.2013 it came to his notice that a meeting was organized at the house of Ali Hasan on the issue of disappearance of Gulshama, however he had not attended the said meeting. On being declared hostile in cross examination denied suggestion that on intervening night of 03/04.04.2013, he heard the noise of quarrel between accused Liyakat and his brother Ali Hasan, and his sons with covillagers and accused Liyakat Ali was raising alarm on issue of disappearance of his daughter. He also denied suggestion of relation between Gulshama and Tehsin. He also denied suggestion of any meeting on issue of disappearance of Gulshama. He also denied suggestion in the evening hours of meeting entire family came to Delhi with bag and baggages in tempo. He also denied suggestion of missing report lodged by Liyakat on 08.04.2013. He also denied suggestion that it came to his knowledge that Liyakat Ali killed SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-7 of 39 ) dated: 07.07.2018 his daughter and disposed off her dead body with the help of his son.
13. PW13 Sayyed Mehrajuddin stated that accused Liyakat never told anything about Gulshama to him. PW14 HC Girdhar Singh photographer of the crime team who took the photographs of dead body of the deceased. PW15 Zahida stated that accused Liyakat is her Jeth and she is not aware about the fact whether Gulshama eloped with Tehsin and no meeting was organized in this regard. On being declared hostile in cross examination she denied suggestion that wife and daughter of accused Liyakat were residing in village in 2013 and before and Liyakat alongwith his two sons resides at Mehrauli, New Delhi. He also denied suggestion that Gulshama left the house or Tehsin taken away Gulshama or that entire family left the village in April 2013. She also denied of any missing report. She also denied of any settlement at the house of accused Liyakat.
14. PW16 Naieem Ahmed is also the witness to recovery of dead body. PW17 Tehsin stated that in 2013 Smt. Shakeela wife of accused Liyakat was residing in village with three daughter including Gulshama, and he is not aware about missing report and was not in touch with Gulshama.
15. PW18 Smt. Asso stated accused Liyakat Ali is her jeth and Liyakat Ali and her family were residing in the village, however she do not know what happened to Gulshama. No meeting was organized in their house regarding the missing of Gulshama. No quarrel also took place between Liyakat Ali and their sons. On being declared hostile in crossexamination she denied suggestion that she is being won over. PW19 Shamshad stated Liyakat Ali is his uncle and Tehsin is her brotherinlaw and further stated that he is not aware about whether Gulshama was missing or not, and even denied of any love affair between Tehsin and Gulshama. On being declared hostile in cross SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-8 of 39 ) dated: 07.07.2018 examination denied of any knowledge of any missing report. PW20 Shehzad stated that accused Liyakat Ali is his uncle (tau) and Tehsin is brotherinlaw of his brother Shamshad, and denied suggestion over the missing of Gulshama and further stated there was no love affair between Tehsin and Gulshama. On being declared hostile, he denied of any knowledge of any missing report.
16. PW21 Ct. Praveen reached the spot ie ganda nala where found a dead body lying in a bag and on opening of bag, found skeleton wearing ladies clothes. PW22 Ghanshayam Singh practising advocate stated that the affidavit of Liyakat Ali was notarized by him however he did not made any entry in his register pertaining to registration of affidavit. He further stated after one and half month after the incident Delhi police officials presented him photocopy of affidavit and he replied in affirmative, however he told that at the time of attestation no photographs were affixed on affidavit and affidavit has signatures of only Liyakat. On being declared hostile in crossexamination he denied suggestions that both the photographs ie of Liyakat Ali and his daughter were affixed at the time of attestation. In crossexamination stated it is correct that it is mandatory to get every notorized document to enter in register however denied suggestion that accused Liyakat did not visit his chamber for attestation. PW13 Sharda Sharma exhibited the mobile call record of Hasin, Liyakat Ali. PW24 Ct. Ajay Yadav deposited the exhibits at FSL. PW25 Santosh kumar Pathak Jr. Engineer Civil inspected the nala and at request prepared the site plan. PW26 Dr. Asit Kumar Sikri exhibited the PM report and stated as per PM report the clothes of deceased were mud stained. Face, neck, chest, upper limbs, upper part of abdomen and both legs were skeletonized. Internal organs were absent. Bones of right forearm were SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-9 of 39 ) dated: 07.07.2018 absent. Both feet and hands were absent. Left arm bone, right and left bones were disarticulated (separate). Muscle tissue for analysis, tooth and radius for DNA analysis and fibula for diatom analysis handed over to police. In cross examination stated that the clothes were not found blood stained, tooth and radius sent for DNA, fibula not sent for DNA. PW27 Ct. Vikas delivered the copy of FIR to Ld. MM and other sr. police officials. PW28 SI Pushpender is also witness to the recovery of dead body in the bag. PW29 Israr Babu alternate nodal officer who exhibited the call detail record of mobile number 9761397525 of Netra Pal. PW30 HC Amrish Kumar recorded information that "bore me nale ke ander dead body" in PCR form. PW39 HC Jaibir Singh is the witness for handing over of dead body after postmortem report and thereafter the dead body was handed over to Asst. sanitary Inspector NDMC and he cremated the unknown skeleton in electric crematorium. PW32 HC Vedpal MHC(M) who exhibited malkhana entries. PW33 HC Sanjay Kumar also witness to the recovery of dead body in plastic bag and also witness to arrest and disclosure statement of accused Liyakat Ali. PW34 SI Rakesh Kumar witness to the taking of blood samples of accused Liyakat Ali and his wife Shakeela at AIIMS hospital. PW35 Ct. Jai Bhagwan also accompanied IO for taking blood samples of Liyakat and his wife. PW36 HC Bir Pal PCR official who on receiving call regarding dead body lying inside the bag reached the nala and saw some bones and scalp in the nala. PW37 SI Raghu Nath UP police stated on 12.04.2013 accused Liyakat Ali lodged a complaint at PS Gulawati regarding missing of his daughter Gulshama aged 19 years since 03.04.2013. Thereafter on 16.04.2013 he got published missing report in Amar Ujala and Hindustan SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-10 of 39 ) dated: 07.07.2018 Times with photograph . He further stated that during inquiry he came to know that above Gulshama had gone to village Aurangabad, Om Parkash, Kiran Pal informed that on the night of 03.04.2013 when they were returning from their agricultural field, one girl namely Gulshama met them, then they brought her to their house then Gulshama called her brother then her brothers taken her away. Thereafter, Liyakat Ali gave an affidavit to SSP that his daughter has been traced then complaint was closed. However, he told Liyakat Ali that he had not received original affidavit therefore he will not close investigation and handed over the photograph of newspaper cutting of Amar Ujala and Hindustan and request of Liyakat Ali, photocopy of DD no. 29 and some other documents seized vide Ex. PW37/A. In cross examination, stated Liyakat Ali had not come to lodge missing report before 12.04.2013. He do not know if Liyakat Ali came to PS for lodging report on 09.04.2013 and he do not remember exact date when he met Om Pal, Kiran Pal sons of Sukhbir and he reached their house on the basis of rumour in village but he do not know the names of villagers and recorded this fact in general diary. He further stated that he told to police that he will close investigation only on seeing missing girl Gulshama, however confronted over this fact where it is not so recorded. He further stated he had not gone to office of SSP to verify sanctity of affidavit. PW38 Ct. Jitender Singh collected the postmortem report alongwith inquest papers form AIIMS. PW39 Ct. Anuj witness to recovery of dead body from nala and thereafter took dead body to the hospital. PW40 Ct. Kamaljit Singh collected PCR form and handed over to IO. PW41 Ms. Seema Dagar Asst. Director Biology, CFSL CBI inspected the house with the CFSL team in presence of accused Liyakat Ali, and found one pillow lying there with two suspected SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-11 of 39 ) dated: 07.07.2018 spots otherwise nothing suspected was found. PW42 HC Vishram Meena collected the crime scene visit report from CFSL CBI office. PW43 W/Ct. Anshu from SSP office Bulandsheher exhibited the missing report and copy of intimation that daughter of Liyakat Ali that his daughter returned back, copy of notice regarding missing of Gulshama and affidavit of Liyakat Ali that he has found his daughter and does not want any action. In cross examination stated that information dated 03.05.2013 was received from Liyakat Ali himself to Incharge DCRB. It is also correct that Ex. PW43/A do not bear signatures of Liyakat Ali and report dated 03.05.2013 also do not bear the stamp and diary number. PW44 HC Dhara Singh collected the DDs recorded at PS Gulawati and handed over to the IO. PW45 HC Arvind Kumar deposited the samples at CFSL CBI. PW46 SI SP Singh is the witness to arrest of accused Liyakat Ali and also accompanied IO during investigation and took the accused to village Aurangabad District Bulandsheher, village Bisaich. PW47 Nipun Awasthi Ld. MM who conducted the TIP of clothes ie one red colour mud stained ladies salwar and green kameez with embroidery and Mr. Tehsin identified the same. PW48 Inspector Mahesh Kumar prepared the scaled site plan of the place of incident ie house of accused Liyakat Ali and ganda nala from where dead body was recovered. PW49 Sh Vijay Verma Sr. scientific officer CFSL CBI examined the handwriting of Liyakat Ali and prepared its report. PW50 Sh B.K. Mohapatra Sr. Scientific officer CFSL stated that on 13.06.2013 he examined 3 parcels and conducted biological and DNA examination. DNA profile could not generated from the source (bone) hence no comparison could be established. Thereafter on 29.07.2013, 4 sealed parcel were received SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-12 of 39 ) dated: 07.07.2018 for examination and thereafter carried out the biological examination of the exhibits as per query. Diatom could not detected. He further stated on 17.10.2013 the aforesaid exhibits were again re submitted for DNA examination, thereafter he had opened all the exhibits and conducted DNA examination. The DNA profile generated from source (Ex. 3 fibula bone) is found to be of human female origin consistent with biological child of Liyakat Ali and Smt. Shakeela. In crossexamination stated it is correct that initially two exhibits consisting of tooth and radius were sent and matching could not take place, and thereafter IO sent one more exhibit ie fibula bone of deceased for examination and he denied suggestion that he manufactured the report at the instance of IO and no DNA profile could be generated from fibula. PW51 S.K. Singhla Sr. Scientific officer serology exhibited the serological report. PW52 Bhogender Dass LDC IP Estate Transport Authority exhibited the record that the maruti car is in the name of Aashiq Ali. PW53 Ct. Sunny Yadav deposited the 5 sealed parcel at CFSL CBI on 17.10.2013. PW54 Raj Kumar record clerk AIIMS exhibited the opinion on postmortem report and identified the signatures of Dr. Hansraj and Sudhir Kumar Gupta.
17. PW55 Inspector Dalip Kumar (IO) stated that on receiving DD no. 34A dated 10.05.2013 regarding lying of dead body in a gunni bag at nala near aulia masjid assigned to SI Pushpender, he reached the spot and found the bag having some portion of body visible thereafter crime team was called, the said bag was taken with the help of two public persons namely Mohd. Ishtiaq and Rustom. The clothes and the skeleton was found smeared with mud. Some flesh was found present on the middle portion while the remaining portion was bone skeleton. However, the dead body was not identified. Rukka was SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-13 of 39 ) dated: 07.07.2018 prepared pursuant to which FIR was registered. The details of skeleton and clothes were uploaded on the internet. The autopsy of skeleton was conducted. On 06.06.2013 on receiving secret information that Liyakat Ali has dumped his daughters body in the nala was interrogated who confessed that he has committed the murder of his daughter on the night of 04/05.04.2013. Thereafter he was arrested. The report of missing and received were seized vide Ex. PW33/A. During PC remand accused pointed out the room where he throttled his daughter and thereafter pointed out the place where the dead body was dumped. On 09.06.2013 the accused was taken to village Aurangabad where the statement of Mitra Pal and his brother was recorded. Thereafter statement of brothers and other family members were recorded. Then the missing report of Gulshama alongwith other documents were collected from PS Gulawati. The mobile phones used by Liyakat Ali and his wife were seized. On 10.06.2013 the blood samples of accused and his wife were taken. On 11.06.2013 Ct. Jai Bhagwan collected DNA samples from forensic department which were seized vide Ex. PW35/B. Accused during sustained investigation, also disclosed that his son Aashiq Ali assisted him to dispose off dead body. On 12.08.2013 accused Aashiq Ali was arrested. During PC remand Mitra Pal identified accused Aashiq Ali as a person who took the girl with him from that village. A maruti van used in disposing the body was also recovered at his instance. His mobile phone was also recovered. On 11.09.2013 a report was received that the DNA profile could not be generated from bone Ex. P1. However, vide another report the blood was detected on some exhibits. Thereafter the exhibits on which blood was detected were sent to CFSL CBI for DNA matching and the DNA profile generated found to be of human female in origin as biological child of SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-14 of 39 ) dated: 07.07.2018 Liyakat Ali and Shakeela. The handwriting on the seized documents is found to have matched with handwriting of accused Liyakat Ali. The subsequent opinion of autopsy surgeon was obtained over the cause of death. In cross examination stated that it is correct that cause of death in this case has not been concluded by the autopsy surgeon till date. It is also correct that DNA could not be generated from tooth an radius bone. He further stated in writing he did not take any permission from doctor to send fibula bone for DNA exam, however volunteered that doctor verbally advised him. He also stated that he did not took advise in writing from doctor after DNA examination report and doctor themselves mentioned in Ex. PW54/B to send the sample of fibula bone for DNA profiling on 09.12.2013. He further stated that accused Liyakat Ali himself took out the missing report copy from his pocket and produced it before him. The copy of receipt of information lodged at office of SSP of Bulandsheher about the return of deceased was not recovered from possession of accused but was collected from SSP office.
18. Accused Liyakat Ali in his statement u/s 313 Cr.P.C denied all the incriminating circumstances put to them. Accused Liyakat Ali stated he had lodged missing report regarding the missing of his daughter, however not aware about seizure of the same. He further stated it is correct that blood samples and his specimen signatures were also taken. He also stated he never went to Ghaziabad or visited public notary Ghanshyam Singh for the purpose of notarization of affidavit however someone claiming himself from PS Gulawati came to his house and obtained signatures on application and on stamp paper telling that his signatures on the application and affidavit are necessary for further investigation regarding missing of his daughter. He further stated it is correct that missing report was lodged by him regarding SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-15 of 39 ) dated: 07.07.2018 missing of his daughter however no meeting in this regard was held at the house of Ali Hassan. He further stated he had not committed the murder of his daughter and police in order to solve the case of skeleton falsely implicated him in this case.
19. Accused Aashiq Ali also denied all the incriminating circumstances put to him and stated that the maruti car was not used in the present case for any purpose and he refused the TIP because was already shown to the witnesses. He further stated PW4 Mitra Pal wrongly identified him.
Material Exhibits
20. Ex.PW20/A is the rukka. Ex.PW1/C is the FIR. Ex.PW1/E is the DD no.
34 A dated 10.05.2013. Ex.PW1/A is DD No.40A dated 10.05.2013. Ex.PW 1/D is DD no. 42A dated 10.05.2013. Ex.PW28/B is the seizure memo of katta alongwith rope. Ex.PW31/A is the seizure memo of the exhibits collected from AIIMS. Ex.PW39/A is the seizure memo of exhibits collected from AIIMS. Ex.PW5/A is the MLC of the deceased as unknown. Ex.PW26/A is the postmortem report showing opinion that time since death more than two weeks and cause of death is kept pending till analysis of preserved samples. Ex.PW2/A is statement of Rustom. Ex.PW26/B is postmortem report opinion dated 29.08.2013 showing time since death could be between two weeks to 6 weeks and cause of death can be opined after result of diatom test is made available. Ex.PW14/A1 to A10 are the photographs of the skeleton. Ex.PW33/ is arrest memo of Liyakat Ali. Ex.PW35/C is the disclosure statement of Liyakat Ali dated 11.06.2013. Ex.PW8/B other disclosure statement of Liyakat Ali dated 06.06.2013. Ex.PW33/A is a seizure memo dated 06.06.2013 of photocopy of missing SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-16 of 39 ) dated: 07.07.2018 report and a printed slip seized from Liyakat Ali. Mark X is the copy of missing report. Mark Y is the slip of missing report dated 09.04.2013. Ex.PW34/B is the pointation memo of the place where the dead body was thrown. Ex.PW34/A is the pointation memo of place of occurrence. Ex.PW3/A is the seizure memo of video cassette. Ex.PW33/C is the seizure memo of mobile phone of accused Liyakat Ali. Ex.PW33/E is the seizure memo of mobile phone of accused Aashiq Ali. Ex.PW33/D is seizure memo of maruti van. Ex.PW22/A is the copy of the affidavit of Liyakat Ali. Ex.PW35/B is the seizure memo of blood in gauze for DNA of accused Liyakat Ali and his wife Shakeela. Ex.PW35/A is the seizure memo of pillow cover. Ex.PW17/A is TIP proceedings of articles of the deceased. Ex.PW23/H1H35 are the CDR details of mobile no. 9358669914 of Liyakat Ali . Ex.PW23/I1 to I20 is CDR details of mobile no. 9313941062 of Liyakat Ali. Ex.PW23/J1 to J21 are the CDR details of mobile No. 9350815404 of Sarwar son of Liyakat. Ex.PW23/K1 to K29 is CDR mobile details of 9313984655 of Yasin. Ex.PWPW29/C is CDR of mobile No. 9761397525 of Netra Pal. Ex.PW55/Q is the photograph of deceased Gulshama. Ex.PW30/A is the PCR form. Ex.PW25/A is the site plan of the place where dead body was found by Jr. Engineer . Ex.PW26/C is is the viscera report. Ex.PW55/A is the site plan of the place from where the skeleton/ dead body was found in a bag. Ex.PW55/L2 is the site plan of the place where the dead body was thrown. Ex.PW55/L1 is the site plan of place of occurrence. Ex.PW48/A is scaled site plan. Ex.PW55/H is the request to conduct postmortem. Ex.PW55/D is the death report. Ex.PW55/E SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-17 of 39 ) dated: 07.07.2018 is the statement of Mohd. Ishtiaq. Ex.PW55/C is hue and cry notice. Ex.PW55/B, Ex.PW55/F, Ex.PW55/G, Ex.PW55/G1 is the request for preservation of dead body. Ex.PW54/B is opinion on postmortem dated 02.12.2013 in which the cause of death could not determined due to advanced decomposition of body, and as per advice fibula, blood stains on clothes and muscle tissue could be used for DNA profiling. Ex.PW55/C1 is an intimation dated 11.05.2013 given to Director NCRB regarding the female skeleton/ dead body found at ganda nala. Ex.PW55/C2 is the intimation given to Incharge Doordarshan. Ex.PW55/J is DD NO. 37A dated 06.06.2013 is the recording of secret information regarding the fact that the deceased was killed by his father accused Liyakat Ali. Ex.PW35/B is the arrest memo of Aashiq Ali. Ex.PW35/C is the personal search memo. Ex.PW35/D is the disclosure statement. Ex.PW35/F is the pointation memo of the place of occurrence by Aashiq Ali. Ex.PW35/E is the pointation memo of place of throwing of body by Aashiq Ali. Ex.PW37/A is the seizure memo of the documents from Sh R.N. Singh SI from PS Gulawati Bulansheher. Ex.PW37/B 1 is the missing report. Ex.PW37/B2 is the missing report published in the newspaper by PS Gulawati. Ex.PW37/B3 is also the missing report in Hindustan. Ex.PW37/B4 is the letter dated 03.05.2013given by Liyakat Ali to SSP Bulandsheher that his daughter has come back to his house. Ex.PW35/H is the seizure memo of photographs. Ex.PW41/A is the crime team visit report of the house. Ex.PW35/A is the seizure memo of the documents from lady Ct. Anshu, dealing clerk District crime record Bureau, Bulandsheher. Ex.PW37/DB is also the letter given by Liyakat Ali to the SSP regarding the fact that her daughter came back to SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-18 of 39 ) dated: 07.07.2018 the house. Ex.PW37/DC is the affidavit of Liyakat Ali. Ex.PW44/A is the seizure memo of the documents ie one application of Sh R.N. Singh, one application of Liyakat Ali, photocopy of DD no. 44 dated 01.05.2013 and DD no. 29 dated 12.04.2013. Ex.PW44/B is the letter written by SI RN Singh to SSP Bulandsheher. Ex.PW37/C is the letter dated 12.04.2013 written by Liyakat Ali regarding missing of his daughter since evening of 03.04.2013. Ex.PW37/D is the inquiry report vide DD no. 44. Ex.PW37/E is copy of DD no. 29. Ex.PW37/F is also another inquiry report. Ex.PW44/C is the request to provide the documents by IO to SSP Bulandsheher. Ex.PW35/G is the seizure memo of photograph of deceased Gulshama. Ex.PW40/A is the seizure memo of PCR form. Ex.PW7/A is statement of Ishtiaq Ali u/s 161 Cr.P.C. Ex.PW2/B is the statement of Rustom u/s 161 Cr.P.C. Ex.PW55/O is the refusal of TIP proceedings by accused Aashiq Ali. Ex.PW49/B1 is letter dated 12.04.2013 given by Liyakat Ali regarding missing of his daughter since 03.04.2013. Ex.PW49/B2 is the letter dated 03.05.2013 written by accused Liyakat Ali to SSP Bulandsheher that his daughter had come back to his house on 28.04.2013. Ex.PW49/B3 is the original affidavit of Liyakat Ali regarding the fact that his daughter had come back and he do not want any further proceedings. Ex.PW49/C1, C2, C3 are specimen signatures of Liyakat Ali. Ex.PW47/D is the TIP of the clothes of the deceased identified by Tehsin. Ex.PW43/A is the missing report of Gulshama with the report that she came herself on 28.04.2013 and informed at PS on 03.05.2013. Ex.PW43/B is the missing report. Mark X is hue and cry notice. Ex.PW23/C is the customer application form. Ex.PW32/F1, Ex.PW32/G SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-19 of 39 ) dated: 07.07.2018 1, Ex.PW32/H1, Ex.PW32/I1, Ex.PW32/J1 are the road certificates. Ex.PW32/A to Ex.PW32/M are malkhana entries. Ex.PW11/C is the school admission register of Gulshama. Ex.PW14/B1 to Ex.PW14/B12 are negatives of photographs of skeleton. Ex.PW49/A is the handwriting expert report. Ex.PW26/D is the biological examination report in which it is stated diatom could not detected on Ex.3 (fibula bone of the deceased). Ex.PW51/A is the serological report showing the blood group B on the clothes of deceased as well as pillow cover. Ex.PW50/B is the DNA profiling report dated 20.11.2013 showing DNA profile generated from the source Ex.3 (fibula bone) of deceased is found to be human female in origin and consistent as biological child of Liyakat Ali and Shakeela. Ex.PW50/A is the biological and DNA profile report dated 11.09.2013 over the radius bond and tooth of deceased showing that DNA profile can't be generated.
21. Ld. Counsel for the accused submitted that the present case is based on circumstantial evidence, however prosecution not even able to prove any circumstance against accused conclusively. Ld. Counsel submits that prosecution not even able to prove that on the day of incident as alleged the deceased was in the custody of accused Liyakat Ali or Aashiq Ali. Ld. Counsel submits that the story of prosecution that deceased has illicit relations with PW17 is not at all proved through any of the prosecution witnesses. Ld. Counsel submits all the independent prosecution witnesses have turned hostile and not supported the prosecution case. Ld. Counsel submits that PW8 Habib witness to arrest of the accused and consequent recovery has not supported the prosecution case and furthermore PW13 Syed Mehrajuddin witness to the extra judicial confession of accused Liyakat Ali SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-20 of 39 ) dated: 07.07.2018 also not supported the prosecution case. Ld. Counsel submits that as per postmortem report, the prosecution not even able to prove whether the death is homicidal or not. Ld. Counsel submits that the DNA report over the fibula bone is manufactured, and fibula bone was sent for DNA test without advise of the doctors. Ld. Counsel submits that the testimony of PW3, PW4 and PW9 over the identity of deceased is also not credible. Furthermore, PW22 examined to prove the affidavit have not identified the accused and even could not produce any register of notary to corroborate the factum of attestation. Ld. Counsel submits that the signatures of the accused on missing report, letter regarding return of deceased and the affidavit of accused Liyakat Ali were taken by police of Gulawati and thus these all documents are manufactured to create the false story implicating the accused persons in this case. Ld. Counsel further submits that the blood stained pillow is also planted as the said pillow was shown to be recovered on 10.04.2013 whereas the accused house was already searched on 06.04.2013 and furthermore the recovery of said pillow is not found to be anyway incriminating. Ld. Counsel submits that maruti car in question is also not found to be incriminating. Ld. Counsel submits that the prosecution unable to prove the motive which is essential in cases of circumstantial evidence. Ld. Counsel submits that prosecution miserably failed to prove all the circumstances hence, accused persons are entitled to be acquitted.
22. Ld. Addl. PP on the other hand submitted that the DNA report conclusively connecting the recovered skeleton of the deceased Gulshama being the daughter of the accused Liyakat Ali. Ld. Addl. PP submits that accused Liyakat Ali himself admitted the missing report which is duly falsified through the statements of PW37, PW4 and PW9. Ld. Addl. PP submits that SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-21 of 39 ) dated: 07.07.2018 the documents on the record ie the affidavit of the accused and the letter that the deceased has returned categorically falsify the stand of the accused that the deceased returned to the house whereas she was already being killed by accused Liyakat Ali. Ld. Addl. PP submits that the dead body was found from the nala which was disposed of with the help of accused Aashiq Ali. Ld. Addl. PP submitted that this is a case of honour killing and mere non support of prosecution case by the witnesses who are relatives of the accused is no ground to reject the testimony of police officials who recorded their statements (relied upon Bhagwan Dass Vs. State, 2011 Cr.L.J 2903 & Paramjit @ Pamma Vs. State of Uttrakhand, 2011 AIR SC 200). Ld. Addl. PP submits that false plea taken by accused in statement u/s 313 Cr.P.C is also an additional circumstance against the accused, therefore on cumulative consideration of the circumstances, the prosecution able to prove its case beyond reasonable doubt and accused persons are liable to be convicted for the offences charged.
23. Arguments heard. Record perused.
24. Apex court in "Mohan Singh Vs. State of MP, AIR 1999 SC 883", held that effort should be made to find the truth, this is the very object for which courts are created. One has to comprehend the totality of the facts and circumstances as spelled out through the evidence depending upon the facts of each case.
25. In appreciating the evidence, the approach of the court must be integrated and not truncated or isolated meaning thereby inferences should not drawn by picking up an isolated statement from here and there; rather the evidence on a particular point should be examined in the background of the total statement of said witness or other witnesses as well as other evidence. The finding should be on the basis of objective assessment of the evidence and not on the SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-22 of 39 ) dated: 07.07.2018 conjunctures and surmises. In "Dalbir Singh and Ors. Vs. State of Punjab,AIR 1987 SC 1328", no hard and fast rule can be laid down about the appreciation of evidence and every case has to be judged on the basis of its own facts. While appreciating the evidence of the witness, the approach must be whether the evidence of a witness read as a whole appears to have ring of truth. Once that impression is formed, it is undoubtedly, necessary for the court to scrutinize the evidence more particularly, keeping in view the deficiency, drawbacks and the infirmities pointed out in the evidence as a whole, and evaluate them to find out whether it is against the general tenor of evidence given by the witness as to render it unworthy of belief.
26. Apex court in case titled "Ravinder Kumar Dey Vs. State of Orissa, AIR 1977 SC 170", held that mere hostility of the witness is not the ground that her whole testimony to the excluded from consideration, however it is a duty of the court to consider in each case whether as a result of contradictions the witness stands discredit or can still be believed in regard to any part of his tes timony. Apex court in "Khujji @ Surender Tiwari Vs. State of MP, AIR 1991 SC 1853", held that evidence of a prosecution witness cannot be rejected merely on the basis that it turned hostile and same can be accepted to the ex tent their version found to be dependable on careful scrutiny thereof. Apex court in "Himanshu @ Chintu Vs. State 2011 (2) SCC 36", held that the de pendable part of the evidence of a hostile witness can be relied upon.
27. To sum up while appreciating evidence on record the duty of the court is to separate credible and incredible part.
28. Brief background facts that accused Liyakat Ali is native of village Baisich PS Gulawati Distt. Bulandshehar, however, residing in Delhi along with his elder son Sharafat Ali, Afsar Ali, Sarvar Ali and Aashiq Ali (coaccused) at SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-23 of 39 ) dated: 07.07.2018 Delhi but his wife Shakeela along with his daughter Gulshama (deceased), Gulista, Gulbahar and younger son Wajid Ali in the village, and on 03.04.2013, accused Liyakat Ali when at his native village noticed that Gulshama had come from the house of the neighbour by jumping over the wall and her mother Shakeela caught her then on inquiry told that she had gone to Tehsin the brotherinlaw of Yaseen, his nephew. Thereafter, he went to the house of his brother then the quarrel took place with Shamshad, Shejad, their mother Aaso. In the meanwhile, Gulshama also left the house towards her village Aurangabad. However, she was found one Mitra Pal, Omparkash going on tractor who took her to their house. Thereafter, they called her family and at around 07:00 AM in the morning she was brought to her house at village by accused Aashiq Ali and during day time meeting took place with Panchayat over disappearance, then in the evening they came to Delhi in the tempo with entire articles and thereafter, in the night her daughters refused to sleep with Gulshama then Liyakat Ali brought Gulshama in his room, and due to feeling of insult in the society he unable to sleep, thereafter in the state of rage, he pushed her neck however, found that she is unable to speak then he with the help of his son Aashiq Ali took the dead body in bags and thrown in the nala then lodged a missing report at PS Gulawati on 08.04.2013.
29. On 10.05.2013 an intimation was received at PS of lying of a skeleton in gunny bag in the Nala, thereafter, with the help of PW7 Mohd. Ishtiayakh and PW2 Rustom the gunny bag was taken out from the Nala. In the skeleton, skull found without any soft tissue, upper limb and lower limb bones are seen without soft tissue, and body was clothed partially however, no label of tailor was noticed, thereafter, hue and cry notices and other formalities were completed, and when identity of dead body not ascertained then it was SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-24 of 39 ) dated: 07.07.2018 cremated.
30. On 06.06.2013, a secret information was received that the said dead body is of one Gulshama daughter of Accused Liyakat Ali thereafter, in the presence of independent witness PW8 Habib the accused Liyakat Ali was interrogated then he confessed the factum of murder thereafter at his instance the place of dumping of body was pointed out, and then he was taken for investigation in village where statement of PW10 Abbas elder brother of accused Liyakat Ali, PW18 Asso the wife of Hasan Ali younger brother of accused Liyakat Ali, PW15 Zahida w/o of brother of the accused Liyakat Ali, PW19 Shamshad, s/o Hasan Ali, PW20Shehjad and PW17 Tehsin along with PW 12 Vijay Singh, villager and PW11 Brahm Singh the Pradhan of the village were recorded in which they disclosed regarding the quarrel between the two families because of illicit relation between deceased Gulshama and PW17 Tehsin, and in the fear on the night of 34 th April, 2013 deceased Gulshama ran away towards village Aurangabad where she was noticed by PW9 Om Prakash and PW4 Mitra Pal, thereafter, they took the deceased to their house then the telephonic call was made to the relatives of the deceased, then the accused Aashiq Ali with his two brothers came and took the deceased to the village, and later in the evening, the entire family including the deceased Gulshama with all the articles in tempo came to Delhi, and on the fateful night of 04.04.2013 at Mehrauli, the accused Liyakat Ali strangulated the Gulshama in rage due to feeling of shame and insult in the society and thereafter, disposed off the dead body by putting it in a gunny bag in the Nala with the help of the son Accused Aashiq Ali. An extra judicial confession to this effect was made by Accused Liyakat Ali to PW13 Syed Mehrajuddin.
31. During investigation the police also collected the missing report dated SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-25 of 39 ) dated: 07.07.2018 12.04.2013 (Ex.PW49/B1,mark X Ex.PW37/C) lodged by accused Liyakat Ali at PS Gulawati, Bulandshehar in which he alleged that his daughter Gulshama aged 15 years is missing since 03.04.2013 and thereafter, made an another application (Ex.PW49/B2, Ex.PW37/B4, Ex.PW37/DB) to SSP Bulandshehar that her daughter had come back to her house on 28.04.2013 therefore, he do not want any action and along with this application an affidavit Ex.PW49/B3, Ex.PW37/DC, Ex.PW22/A) was also filed. The clothes of the deceased were identified in TIP proceedings Ex.PW17/D through PW17 Tehsin. After postmortem, the muscle tissue, tooth and radius for DNA and fibula bone for diatom test alongwith clothes were handed over to the Police. Blood samples of accused Liyakat Ali and his wife Shakeela were also taken during investigation. However, DNA profiling could not be generated from the tooth and radius and the diatom could not be detected on Ex.PW3 Fibula bone and blood was found detected on lady shirt, salvar, underwear, shameej, piece of cloth, pillow cover and on serological analysis, it was found to be B group.
32. PW50 B. K. Mohapatra in his deposition stated that the clothes on which blood was detected and the fibula bone were again resubmitted for DNA profiling, thereafter again the DNA test was conducted and DNA profiling from fibula bone is found to be of human female origin and consistent as biological child of Liyakat Ali and Shakeela, however, the exhibits i.e. clothes etc. did not yield any DNA for analysis.
33. There is no direct evidence of this case, the prosecution case is based on the circumstantial evidence, the following material circumstances are to be appreciated in present case:
I. The factum that the deceased Gulshama was noticed by Shakeela in the SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-26 of 39 ) dated: 07.07.2018 night of 03.04.2013 jumping from the house of Hasan Ali after meeting with Tehsin and thereafter, the quarrel between the two families during which Gulshama also ran away from the house.
II. The deceased Gulshama was noticed by PW4 Mitra Pal and PW9 Omprakash on the way and thereafter brought her to their house and then called to his family and accused Aashiq Ali along with two brothers who took her back to the house.
III. In the evening of 04.04.2013 the entire family of Liyakat Ali shifted to Delhi and thereafter, because of the shame and insult of the family by the act of Gulshama, Liyakat Ali in the rage strangulated the deceased Gulshama at his house at Mehrauli and then thrown the said dead body in the Nala with help of accused Aashiq Ali.
IV. Recovery of the dead body in the shape of skeleton from the bags at Nala on 10.05.2013 by the police.
V. The arrest of the accused Liyakat Ali on secret information on 06.06.2013 and recovery of the missing report, application intimating return of deceased and the affidavit from his possession and the confirmation of the said fact from the office of SSP, Bulandshahar and PS Gulawati. VI. The DNA profiling report connecting the accused Liyakat Ali as the father of Gulshama.
34. Ld. Counsel for the accused vehemently submits that the prosecution not able to prove that the recovered skeleton is of Gulshama as no DNA profiling from the tooth and radius bone generated, however, later on, at the instance of police, the DNA profiling was manufactured from fibula bone.
35. It is to be appreciated at the time of conduct of the postmortem of the deceased tooth and radius bone were given for DNA test and fibula bone was SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-27 of 39 ) dated: 07.07.2018 given for diatom test. As per biological examination and DNA profiling report (Ex.PW50/A), no DNA profile could be generated through radius bone and tooth. And as per biological examination report (Ex.PW26/D) and the serological report (Ex.PW51/A) the blood group B was found detected on lady shirt, salvar, underwear, shameez piece of cloth and pillow cover but no diatoms could be detected on Ex.3 (fibula bone), thereafter, all these articles were sent for DNA examination. As per DNA profiling report Ex.PW50/B, the DNA profile generated from fibula bone proved to be matching with the DNA of Liyakat Ali and his wife Shakeela, however DNA could not be generated from any other exhibits i.e. clothes. PW50 Sh. B.K. Mohapatra who has conducted the DNA examination in fibula bone categorically deposed that the DNA profiling of fibula bone is a human female origin and consistent as a biological child of Liyakat Ali and his wife Shakeela. Nothing material came in crossexamination of this witness to doubt the outcome of the test. Ld. Counsel submission that this test was manufactured at the instance of IO is also not tenable because all the clothes and fibula bone after conducting of blood test and diatom test were sent to DNA test as no DNA profiling could be generated from the radius bone and the tooth of the skeleton. Sending these articles at later stage, on the other hand suggest that prosecution has taken all necessary steps to ascertain the identity of skeleton. Furthermore, sending these articles without prior approval of doctors do not in anyway could be used to discredit DNA report. The prosecution able to proof the identity of the skeleton which is found to be that of deceased Gulshama.
36. The next circumstance is to be appreciated in the incident of dated 3/4.04.2013 when the deceased Gulshama was caught by her mother Shakeela SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-28 of 39 ) dated: 07.07.2018 when jumped from the adjoining house after meeting Tehsin (PW17) and thereafter the quarrel has taken place between the accused and his family and the family of his brother and Tehsin. During the said quarrel, deceased Gulshama ran away from the place however, located in the field near village Aurangabad by PW9 Omprakash and PW4 Mitra Pal. For proving the incident of quarrel on account of illicit relation of deceased Gulshama with PW17 Tehsin, prosecution examined PW10 Abbas, elder brother of the accused Liyakat Ali, PW15 Zaheeda, wife of the younger brother of accused Liyakat Ali, PW18 Asso, wife of younger brother accused namely Hasan Ali, PW19 Shamshad, son of the brother of Liyakat Ali, PW20 Shehzad, also nephew of the accused Liyakat Ali, PW17 Tehsin, brotherinlaw of PW19 Shamshad, PW12 Vijay Singh villager and PW11 Brahm Singh, Pradhan of the village. None of these witness have supported the prosecution case over the incident of apprehension of deceased Gulshama by her mother after meeting PW17 Tehsin being suspected of the illicit relations with him, nor they have supported the prosecution case of any quarrel of both the parties after such incident or any meeting of village panchayat in this regard. These witnesses also not supported the prosecution case that during the said quarrel Tehsin ran away and the Gulshama also ran away alone towards village Aurangabad. None of these witnesses also supported the case that the accused Liyakat Ali with his entire family shifted in Delhi on 04.04.2015 or any meeting in the village at day time of 03.04.2013.
37. However, this incident of quarrel and illicit relation could be inferred from the fact that deceased Gulshama has absconded in the night alone towards village Aurangabad and was found on the way by PW4 Mitra Pal and PW9 Omprakash. PW4 and and PW9 in their testimony stated that on the night of SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-29 of 39 ) dated: 07.07.2018 03.04.2013, when they were returning from the sugar mill Brijnathpur at around 1/2 AM they noticed one girl aged about 16 to 17 years, thereafter on her signal they stopped the tractor and took the said girl to their house in their village then they called to his family thereafter, the family members came and took her. PW4 Mitra Pal in his testimony categorically stated that accused Aashiq Ali along with two person came and took the girl in the Maruti Van. He also stated that he made the call to relative of the girl from his mobile connection 9761397525. This mobile call is duly corroborated by CDR record of this mobile and that accused Liyakat Ali (Ex. PW29/C). Nothing material came in their crossexamination to dispute the fact that the deceased Gulshama not met them on the way in the night and later on the factum of their bringing her to their house at the village and later on taken away by the accused Aashiq Ali back to their house.
38. Their testimony also appears pertinent, as falsifying the defence of the accused taken through the admitted missing report (Ex.PW49/B1). The factum of missing of the deceased and lodging of the missing report Ex.PW 49/B1 is duly admitted by the accused Liyakat Ali, however he took the defence that his signatures were taken on the blank paper, but the missing report and the consequent taking back of the missing report by letter/application Ex.PW49/B2 and the affidavit Ex.PW49/BC regarding the fact that deceased was returned, and withdrawal of the missing report is duly proved through the testimony of the police officials of PS Gulawati i.e. PW 37 SI Raghunath, PW43 Const. Anshu from SSP Office Bulandshaher. PW 37 SI Raghunath of PS Gulawati stated that on 12.04.2013 accused Liyakat Ali lodged a missing report at police station that her daughter Gulshama aged around 19 years is missing since 03.04.2013 thereafter on 16.04.2013 he SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-30 of 39 ) dated: 07.07.2018 published the missing report in Amar Ujala and Hindustan with photograph and during inquiry also came to know from Om Prakash and Kiran Pal of village Aurangabad that they met Gulshama on the night of 03.04.2013 and thereafter called his brother who took her away. However, as Liyakat Ali gave an affidavit to SSP Office therefore complaint was closed. PW43 constable Anshu from SSP Office also exhibited a missing report, the affidavit of Liyakat Ali and a letter that he do not want any action. The testimony of PW37 and PW43 corroborated prosecution case about the filing of the missing report by accused Liyakat Ali that her daughter was missing since 03.04.2013, however, this missing report appears to be fakely lodged because PW37 also deposed that upon inquiry he met Om Prakash and Kiran Pal of village Aurangabad that they have handed over the deceased to her brother on the said night. Therefore, the stance of the accused Liyakat Ali that her daughter was missing appears fake as she was already traced in the night of 03.04.2013, and handed over to his brother Aashiq Ali. This fact is duly corroborated from the testimony of PW4 and PW9 as already discussed above.
39. The execution of the affidavit Ex.PW22/A is duly proved by the prosecution through PW22 Ghanshyam Singh Advocate, who notarized the said affidavit. This witness deposed that he had notarized the affidavit of Liyakat Ali. However, Ld. Counsel for the accused submitted that the testimony of this witness regarding notarization of affidavit cannot be taken into consideration because he neither able to identify accused in the court nor supported the prosecution case over the fact that the photographs were also affixed on affidavit and even no entries in the notary register were made. This witness is an independent witness who identified his signatures and also the fact that he SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-31 of 39 ) dated: 07.07.2018 notarized the said affidavit. It is a common feature a notary cannot identify a person who came to him for notarization as in a course of his duty he has to attest number of documents and it is natural that he could not remember the faces of all the persons. Therefore, in present facts and circumstances the factum that he has not identified the accused or not supported the prosecution case over the factum of photographs on affidavit or that he had not made any entry in the notary register is hardly material. The dependable part of his testimony that he has attested the said affidavit could definitely be relied upon.
40. Now it is pertinent to look at the contents of the missing report Ex.PW 49/B1, the letter of intimation given to the SSP by Liyakat Ali dated 03.05.2013 and the affidavit dated 02.05.2013. As per the missing report dated 12.04.2013, the accused Liyakat Ali stated that his daughter is missing since the evening of 03.04.2013, and as per letter dated 03.05.2013 stated that he had reported the missing report in PS Gulawati on 09.04.2013 and on 28.04.2013, she has come back to the house, therefore, he do not want any action and this fact also supported with the affidavit Ex.PW49/B3. The signatures on this document was sent to handwriting expert and the handwriting expert PW49 Vijay Verma vide its report Ex. PW49/A found it to be matching with the specimen handwriting of Liyakat Ali. Accused however taken a defence in his statement u/s 313 Cr.P.C that the signatures on missing report as well as letter dated 03.05.2013 and affidavit were taken by the police later on but this defence not even suggested to PW22, PW37 and PW43. Therefore, this plea of the accused in his statement under Section 313 Cr.P.C. cannot be relied upon.
41. It is also to be noticed that though the relatives of the accused, PW11 Brahm SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-32 of 39 ) dated: 07.07.2018 Singh and PW12 Vijay Singh not supported the prosecution case. However, PW11 Brahm Singh, Pradhan of the village stated that he has heard the rumor that daughter of Liyakat Ali gone somewhere. PW15 Zaheeda contrary to the stand of the accused denied of any knowledge of missing report. PW18 Asso even stated that she do not know what happened to Gulshama. PW19 Shamshad and PW20 Shehzad also stated that they are not aware of the missing of the Gulshama. PW17 Tehsin though admitted that Smt. Shakeela, wife of accused Liyakat residing in the village with three daughters including Gulshama but denied any missing and his affair with Gulshama. However, from the testimony of these witnesses in can be inferred that deceased Gulshama along with her mother and sisters resided in the village.
42. It was put to the accused Likayat Ali in the statement under Section 313 Cr.P.C that after committing the murder he dumped the body in the Naala and also disclosed to the police about lodging of a missing report at PS Gulawati the copy of which report and receipt is also produced by accused Liyakat Ali. He in reply stated that he has not disclosed anything to the police and also not committed the murder of his daughter however stated that he has lodged the missing report regarding the missing of her daughter. It is also put to accused that the missing report and the receipt were seized vide Ex.PW33/A. In reply stated that it is correct that he has lodged a missing report but not aware of the seizure of the same. This witness also stated that he do not know that the police has seized the missing report, DD entry, newspaper cutting, subsequent application of the accused regarding finding of the girl along with affidavit. This accused stated that he do not know who has produced these documents nor it was seized in his presence. This accused admitted that the police has SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-33 of 39 ) dated: 07.07.2018 taken his specimen signatures, however, denied the seizure of the original documents i.e. original missing report, affidavit and the application of return of the deceased by IO. This witness though denied of going to the notary public for attestation, however took the plea that somebody from PS Gulawati came to his house and obtained his signatures on an application and on stamp paper telling that his signatures on application and affidavit are necessary for investigation regarding missing of his daughter. He also again admitted that he lodged the missing report, however not led any defence evidence but only took the plea that he has not murdered his daughter and police implicated him to solve the case.
43. As per the statement of accused under Section 313 Cr.P.C, he categorically admitted of lodging of missing report. He did not raise any objection over the contents of the missing report or the contents of application intimating the return of the deceased and the affidavit but only stated that his signatures were taken by the some officials from the PS Gulawati. He even did not tell when his signatures were taken or which police officials from PS Gulawati taken his signatures on blank papers, also not suggested this fact to any prosecution witness. Therefore, his defence that his signatures were taken on blank paper is not all tenable. The missing report lodged on 12.04.2013 has already discussed suggest that the deceased was missing since 03.04.2013 however, on the night of 03.04.2013, she was found by PW4 and PW9 and was taken to the house by accused Aashiq Ali therefore, the missing report lodged on 12.04.2013 itself appears false. Furthermore, it is unnatural conduct of the accused that he has not put any effort before the police to trace her daughter if she remained missing.
44. Affidavit and the application regarding the return of the deceased itself SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-34 of 39 ) dated: 07.07.2018 suggest that accused did not want the police to investigate on his missing report as the police of PS Gulawati also came to know during the inquiry of the missing report that deceased was found by the accused on the day when alleged to have been missing. Admittedly, accused has not produced the deceased before any authority after 03/04.04.2013. Accused is obliged in these circumstances to state before the court that her daughter is alive after 03/04.04.2013. Accused could not show from any direct or circumstantial evidence that her daughter was alive after 04.04.2013. Deceased was daughter of the accused residing with him therefore it is his duty to prove that she was with him or any of his family members, however neither made any statement nor led any evidence in this regard. The nonexplanation of what happened to the deceased after 04.04.2013, and factum of lodging false missing report, affidavit and application that she returned back are additional incriminating circumstances against the accused Liyakat Ali.
45. The prosecution during investigation also recorded the statement of PW13 Saeed Merajuddin before whom the accused Liyakat Ali admitted to have committed the murder of Gulshama, however this witness in his deposition before the court not supported the prosecution case in this regard.
46. Ld. Counsel for the accused vehemently submitted that as per post mortem report the cause of death could not be ascertained. Ld. Counsel submits therefore, the prosecution not able to prove that the death is homicidal or otherwise.
47. The deceased is alleged to have been strangulated by accused Liyakat Ali in rage and thereafter, with the help of his son, disposed off the dead body by putting it in a gunny bags and throwing it into the sewer. PW2 Rustom, PW7 Mohd. Ishtiaya @ Laddo, PW16 Naeem Ahmed, PW21 Const. Parveen, SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-35 of 39 ) dated: 07.07.2018 PW28 SI Pushpinder, PW33 SC Sanjay Kumar, PW39 Const. Anuj, PW55 IO Ins. Dalip Kumar are the witnesses of the recovery of the dead body from the Naala. PW7 stated that Const. Sanjay took him to the Naala where 100 persons were present and one dead body / skeleton was lying in the naala and he took out the dead body with one Rustom. Black kurta was notice over the dead body, dead body was decomposed, one or two ribs of the dead body were found broken and separate from it, police taken the photograph of the dead body and shot video. Nothing material came in his crossexamination to dispute the description given by him over the recovery of dead body by him. PW2 also corroborated his statement. PW16 Naeem Ahmed stated on 10.05.2013 when he was present at his house at around 05.30 PM some person were raising alarm that one dead body was lying in naala near jharna, thereafter, he had also seen that fact and called the police. Both the independent witnesses has confirmed the lying of the dead body in the bag at naala. PW28 SI Pushpinder and other police officials also stated that the dead body was found in a bag and skeleton was taken out from the bag and thereafter he prepared rukka and crime team also came which took photographs of the dead body of the skeleton. PW14 HC Girdar Singh who took photographs also stated that he had taken the photographs when the skeleton was lying in the ganda nala thereafter the bags were taken out from the help of two public persons and skeleton was taken out from the bag. The photograph Ex.PW14/A1 to Ex.PW14/A12 categorically showing the lying of the bag in the nala and its process of taking out of the naala by two public persons. The skeleton is clearly visible having ladies clothes over it. The subsequent MLC of the deceased also confirms the factum that the dead body was found in skeleton even the skull was found separate from the body. The SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-36 of 39 ) dated: 07.07.2018 diatom test is found negative therefore, death due to drowning is ruled out. The finding of the dead body in a gunny bag in a skeleton shape itself suggest that it was a homicidal death, and the body was disposed off by putting in the sewer mainhole which during the course of the time come in the naala. Therefore, on over all facts and circumstances it can be inferred that the death was homicidal particularly when the explanations as discussed given by the accused Liyakat Ali are found false.
48. The entire prosecution case is based on circumstantial evidence. Apex court in Anjan Kumar Sarma & Ors. Vs. State of Assam, Crl. Appeal no. 560/2014 dated 23.05.2017, when prosecution case is based on circumstantial evidence, in para 13 observed as under:
13. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court 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 the explainable on any other hypothesis except that the accused is guilty; (3) The circumstances should be of a conclusive nature of 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 shown that in all human probability the act must have been SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-37 of 39 ) dated: 07.07.2018 done by the accused (See: Sharad Birdhichand Sarda V. State of Mahrashtra (1984) 4 SCC 116 153: M.G. Agarwal V. State of Maharashtra AIR 1963 SC 200 18).
49. In appreciating the case based on circumstantial evidence, the prosecution has to prove all the circumstances conclusively. The circumstances concerned "must" or "should" and not "may be established". Furthermore, the chain of the evidence must be so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
50. From the evidence on record, the prosecution able to prove that the death of deceased Gulshama is homicidal death and she was found in the custody of accused Liyakat Ali till 04.04.2013 however, accused Liyakat Ali not able to give an explanation about her absence thereafter, the missing report as lodged by him is also found to be false as already discussed. The DNA test confirms that the accused Liyakat Ali is a biological father of the deceased. Deceased was traced in the night of 3/4.04.2013 and said fact is duly corroborated from the testimony of PW4, PW9, PW37. The statement of the accused u/s 313 Cr.P.C over denial of lodging the application regarding the return of his daughter and consequent affidavit also falsify the stand of the accused that she was missing since 03.04.2017. Therefore, these circumstances are sufficient to conclude that the accused Liyakat Ali has strangulated his daughter and thereafter disposed the dead body in the nala. Thus found guilty of offence u/s 302 /201 IPC.
51. However, as far as the role of the Accused Aashiq Ali is concerned, there is no evidence connecting him with the disposal of the dead body. It is the case of the prosecution that the dead body was disposed in the Maruti Car owned SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-38 of 39 ) dated: 07.07.2018 by accused Aashiq Ali however, nothing incriminating found on the body of maruti car. There is no independent witness found who had noticed that the accused Aashiq Ali involved in carrying dead body with accused Liyakat Ali for disposal. Furthermore, name of accused Aashiq Ali also not appeared during investigation at the first instance and his name is found to have been surfaced lately in subsequent disclosure statements of accused Liyakat Ali. Hence, prosecution could prove involvement of accused Ashiq Ali.
52. In view of above discussion, prosecution able to prove its case beyond rea sonable doubt against the accused Liyakat Ali for commission of offence u/s 302 and 201 IPC, hence accused Liyakat Ali convicted for commission of of fence u/s 302/201 IPC but accused Aashiq Ali acquitted of all charges. Ac cused Liyakat Ali be heard on point of sentence.
Announced in the open Court (AJAY KUMAR JAIN)
On day of 07th July, 2018 ASJ02 (South)
District Court Saket / New Delhi
SC No.6530/16, S/v Liyakat Ali etc., FIR No. 280/13 , PS Mehrauli, (pg-39 of 39 ) dated: 07.07.2018