Delhi District Court
State vs Mohd Tahir Anr on 24 December, 2024
IN THE COURT OF DR. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE (FTC-02), SOUTH-EAST
SAKET COURT COMPLEX,
NEW DELHI
CNR No.DLSE010014522016
SC No. 2274/2016
FIR no.816/2015
Police Station: Jaitpur
State
Versus
1. Mohd. Tahir (P.O. vide order dated 11.01.2023)
Son of
Resident of
Jaitpur, New Delhi.
2. Danish
Son of ,
Resident of
Jaitpur, New Delhi. ..........Accused persons
Date of Institution : 11.02.2016
Judgment reserved on : 30.11.2024
Date of Decision : 24.12.2024
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 1 of 88
JUDGMENT
1. A police report was put up by the State through officer- in-charge of the police station Jaitpur before the concerned Metropolitan Magistrate with the view to take cognizance of offences under sections 302/34 of the Indian Penal Code, 1860 (in short 'IPC') against the accused persons, namely, Mohd. Tahir and Danish for having committed the said offences and to proceed with committal of the case.
2. As per the police report, on 29.08.2012, this case FIR was registered against the accused persons, namely, Mohd. Tahir and Danish in police station Jaitpur for the offence punishable under sections 302/34 IPC.
3. As per the police report, on 12.11.2015, on receiving an information from Control Room through W.T. message which was recorded vide DD No.63A regarding a dead body found lying on Pusta in front of Gali No.1, JJ Colony, Sub-Inspector Harinder Singh along with Constable Manoj Kumar and beat staff reached at the spot of incident i.e. NTPC Jungle, B Block, Madanpur Khadar Extension and on receiving this information, Inspector S.K. Sharma along with the staff also reached at the spot which was an area to dump ashes by NTPC, where NTPC has made two ashes dunes and one sand dune was made at low height and there was a nala (drain) below that dune FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 2 of 88 and there was a 2-2½ feet wide iron water pipeline and there was a headless dead-body of a male person, in mutilated condition, lying in the bushes between the two dunes, which was without head and left hand, whose spine had also come out and the internal organs towards the head were also found missing, which appeared to have been eaten by some animal and his abdomen was also torn near the navel area and his private part was also mutilated; that there was a blue jeans with black belt and the grey-blue colour check shirt was soaked with blood which was wrapped on the thighs and there was black colour sandals on the feet; that on checking the dead-body, 50 steps away in the East direction, the head was lying in the bushes, whose skull part, eyes, nose and jaw were missing and the hair on the head were of black colour; at about 30-40 steps in the East direction of that drain, left hand was lying in mutilated condition, whose upper flash and skin at elbow were missing; fingers in the hand were present; in the North direction of the body at about 20 feet away, there was a lot of dried up blood on the pipeline; there was a blood-stained big sharp- edged stone lying on the earth near the pipe; that on inspection of the spot, about 20-25 steps away from the dead-body in the East direction, there found a blood-stained knife of plastic handle in the bushes; there were some fishes and murmure scattered between the body and the head of the deceased. It is further reported in the police report that the dead-body was shown to the local public persons and tried to get it identified, however, it could not be identified.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 3 of 884. It is further reported in the police report that the crime- team and the dog-squad were called at the spot and the spot of incident was meticulously got inspected and photographs were got clicked.
5. It is further reported in the police report that as per DD No.63A, from inspection of scene of crime and inspection of the dead-body, the offence under section 302 IPC has been made out and Sub-Inspector Harinder Singh prepared rukka, sent it through Constable Manoj Kumar, got a case registered under that section and further investigation was taken up by Inspector S.K. Sharma.
6. It is further reported in the police report that during the course of investigation, search for eye-witnesses was made but none was found and in the meantime, the investigating officer met the PCR caller Vijay and he was joined in the investigation and inquiry from him was made and his statement under section 161 Cr.P.C. was recorded.
7. It is further reported in the police report that it is, inter- alia, stated by the informant Vijay in his statement that he was student of BSE, BA final year and on that day at about 09:30 a.m. he had gone out for a walk and when he reached on Pusta, in front of gali No.1, B Block, JJ Colony, Madanpur Khadar Extension he saw that there was a crowd in the jungle and when he went close, he saw FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 4 of 88 that a headless dead-body, without its left hand, was found lying there and he got frightened and called 100 number.
8. It is further reported in the police report that during the course of the investigation, the investigating officer with the help of in charge, crime-team picked up the blood-stained stone from the spot of incident and prepared a pullanda and numbered it 'Sr. No.1' and the blood-soaked Earth was also taken in a small plastic box and prepared a pullanda with a doctor tape and numbered as 'Sr. No.2' and earth-control was also taken from the spot of incident and also kept in a small plastic box and prepared a pullanda with a doctor tape and numbered as 'Sr. No.3'; the dried-up blood found on the big pipeline was also taken with a bud-stick and kept in test tube and prepared a pullanda with a doctor tape and numbered as 'Sr. No.4' and an empty blood-stained water bottle having label of green colour and 'More' was written in English thereon was also taken and kept in a white cloth and prepared a pullanda and numbered as 'Sr. No.5'; that the above pullandas were sealed with the seal of HS and taken into police possession vide seizure memos.
9. It is further reported in the police report that the investigating officer with the help of in charge, crime-team, also took blood sample on a bud-stick from the blood found on the dead-body and kept in test tube and prepared a pullanda with a doctor tape and FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 5 of 88 numbered as 'Sr. No.6'; that the investigating officer also took blood sample on a bud-stick from the blood found on the head and kept in test tube and prepared a pullanda with a doctor tape and numbered as 'Sr. No.7'; that the investigating officer also took blood sample on a bud-stick from the blood found on the left hand and kept in test tube and prepared a pullanda with a doctor tape and numbered as 'Sr. No.8' and all the above-said three pullandas were sealed with the seal of HS and taken into police possession vide seizure memos.
10. It is further reported in the police report that during the course of investigation, the investigating officer on the pointing out by Sub-Inspector Harinder Singh prepared a site-plan which is attached with the file and sent the dead-body to AIIMS Hospital Mortuary in the custody of Constable Rajesh.
11. It is further reported in the police report that during the course of investigation, a blood-stained iron knife having blood on its blade was recovered in the bushes at the spot which was kept on a paper and a sketch was prepared and it was measured and the total length of the knife was 34.5cms (24.5cms blade and 10cms handle) and its handle was covered with a thin plastic polythene; the recovered knife was kept in a plastic box and a pullanda was prepared and sealed with the seal of 'HS' and taken into police FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 6 of 88 possession vide seizure memo and all the exhibits in the present case were deposited vide memo in the malkhana.
12. It is further reported in the police report that during the course of investigation, the investigating officer prepared WT message and other relevant documents qua the dead-body and sent it to the concerned offices; ZIP Net was checked regarding details of missing persons, however, despite several efforts, no clue was found regarding the dead-body from the details of missing persons; that constable Rajesh had produced to the investigating officer the MLC of unknown which is attested; the search of the accused persons were made and photographs of the dead-body was shown to the persons in the nearby area, however, the identification of the dead-body could not be established.
13. It is further reported in the police report that during the course of investigation, Sub-Inspector Dinesh had informed that in the area of police station ECO Tech-III Greater Noida Gautam Budh Nagar U.P. from the village Jalpura, one person namely Shahzad s/o Mohd. Ali was missing and photographs of the dead-body was shown to his brother Mohd. Azad who from the clothes and sandals of the dead-body identified it to be his brother Shahzad and informed that on 11.11.2015, his brother was seen with the boy namely Tahir R/o same village Jalpura and his brother had not returned to home.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 7 of 8814. It is further reported in the police report that during the course of investigation, on 15.11.2015, the dead-body was identified by Mohd. Azad and other family members of the deceased as Shahzad in the AIIMS Mortuary and after conducting postmortem, the dead-body was handed over to the family members of the deceased and the exhibits were collected.
15. It is further reported in the police report that during the course of investigation, on 15.11.2015, the police officials at the instance of and accompanied by Mohd. Azad (brother of the deceased), reached at the village Jalpura Noida for the search of the accused where Mohd. Azad had pointed out one boy and informed that the boy was Tahir who on 11.11.2015 had taken his brother Shahzad for getting some work and another boy, namely, Danish was also with them; and from that day, Tahir was roaming with them and was misleading them for the search of his brother Shahzad; that he had full belief that the same person Tahir along with his associates Danish has killed his brother Shahzad; that the said person was apprehended and on inquiry, his name was revealed as Mohd. Tahir age 23 years son of Mohd. Aslam R/o village Jalpura, Greater Noida, Gautam Budh Nagar, U.P., therefore, the investigating officer having informed facts and circumstances of the present case to the apprehended person Tahir made inquiry from him and during the inquiry, he had admitted his guilt and thereafter, he was arrested in FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 8 of 88 the present case and the documents related to his arrest were prepared and the accused Tahir had in custody made disclosure statement which was separately recorded.
16. It is further reported in the police report that it is, inter- alia, disclosed by the accused Tahir that he used to do white washing work and had been working with his neighbour for the last four months; that they had undertaken white washing work in Noida for which Shehzad had received Rs.15,000/- but he did not pay any amount to him and the wages to the labours had also to be paid by him; that Shahzad used to not disclose to him correctly amount of contract and also used to tell him the less amount, however, the contract used to be of higher amount; that Shahzad was not paying him money and some amount for the work done was due against him, therefore, he made a plan if he will kill Shahzad then, the remaining money of the contract will be paid to him only; that before Deepawali, he had spoken to his known, namely, Danish, resident of Madanpur Khadar to kill Shahzad and informed him that Shehzad was not paying him the money due against him and Danish had agreed to kill Shahzad, if he would be given half of the money to be recovered by the accused Tahir after death of Shahzad and he told Tahir that somehow Shahzad had to bring to Delhi and in this way, he (Tahir) and Danish had planned to kill Shahzad; that on 11.11.2015 at about 10.00 p.m., Danish had made a call to him and FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 9 of 88 told him that he had come to Noida and asked Tahir to bring Shahzad; that he brought Shahzad to Haldwani where they met Danish and Firoz; Firoz also used to work as a contractor; that Firoz was busy in some work so, Danish had got Shahzad brought through him and he and Danish had bought one half (addha) bottles from the wine shop at Haldwani and started drinking while sitting in a room near the wine shop; Shahzad had not taken drinks; that while taking drinks it was 03.00 p.m., thereafter, he along with Danish and Firoz started for Delhi and he asked Shahzad for accompanying them on the pretext that he could get a good contract of white washing in Delhi so, Shahzad got ready to accompany them to Delhi; that Firoz accompanied Tahir, Shahzad and Danish till Samosa Chowk, Madanpur Khadar and from there, he left for his home by his motorcycle; that he along with Danish had taken Shahzad near Gali No.1 and Danish brought a knife from his house; that they bought a bottle of Beer and few kids and one lady was sitting there and then they (all three) had gone on Pusta in the jungle and while sitting on a iron pipe; that Danish had drunk one quarter bottle of liquor and they all were talking to each other; he opened the bottle of Beer and gave to Shahzad, who had drunk only little and the remaining Beer bottle was drunk by him and Danish and it was 08.00 p.m. while eating and drinking; that he started talking to Shahzad regarding the money and asked for his share of money but Shahzad refused to give money which led to hot words between him and Shahzad, thereafter, as per FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 10 of 88 the plan with an intention to cause death, Danish had hit empty bottle of Beer on the head of Shahzad from backside and when Shahzad holding his head, tried to get up and asked Danish as to what he was doing, then, Danish made Shahzad to sit on the pipe after pushing him and he caught hold the legs of Shahzad and Danish had made Shahzad to lie down on the pipe and put his foot on his chest and he caught hold the legs of Shahzad tightly and told Danish to quickly finish Shahzad and then, Danish had cut the throat of Shahzad by knife kept with him; that Shahzad started to yearn and fell off the pipe and then he picked-up the stone from there and hit it on the head of Shahzad twice and his head became still; that on getting sure that Shahzad had died, he along with Danish had thrown the dead-body of Shahzad in the bushes near the drain and Danish had thrown his knife in the bushes at a little distance; that Danish had gone to his house and he came back to Haldwani. It is further disclosed by Tahir that he can point out the place where he and Danish had caused death of Shahzad and can also got recovered the clothes he had worn at the time of incident which were blood-stained and also can show the place from where he had purchased the liquor and drank it; that the accused Tahir was arrested in the present case.
17. It is further reported in the police report that during the course of investigation, on the identification of the accused Tahir, the accused Danish was arrested near Kalindi Kunj, who on interrogation FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 11 of 88 disclosed his name as Danish age 25 years son of Ilias and also admitted to have been involved in the incident as disclosed by his co- accused Tahir.
18. It is further reported in the police report that during the course of investigation, the witness Firoz was also inquired about the incident who informed that on 11.11.2015, he was with Tahir, Danish and Shahzad at Noida; Tahir and Danish along with him had brought Shahzad to Madanpur Khadar for getting him contract for white- washing and in the evening, he had left three of them at Madanpur Khadar and had gone to his house; that he had lastly seen Shahzad with Tahir and Danish and there was some hot conversation between them regarding dispute of money and in his statement, Firoz had supported the disclosure statements made by the accused persons and during the investigation, this fact had come out that Firoz had brought three of them (Shazhad, Tahir and Danish) to Madanpur Khadar and Shahzad was lastly seen with Tahir and Danish.
19. It is further reported in the police report that during the course of investigation, on 16.11.2015 both the accused persons, namely, Tahir and Danish were produced in the concerned court and one day PC remand of both the accused persons was obtained during which, the spot of incident was got pointed out from them and at the instance of both the accused persons their clothes were recovered and FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 12 of 88 taken into police possession; that the accused persons were produced in the Court and sent to judicial custody.
20. It is further reported in the police report that during the course of investigation, scaled site-plan was got prepared from the draughtsman and PCR Form was collected; that postmortem report No.1354-15 was obtained; that all the exhibits of the present case were sent to CFSL, Lodhi Road, New Delhi, the result of which is awaited and will be sent to the Court after receiving; that statements under section 161 Cr.P.C. of all the witnesses have been recorded.
21. It is further reported in the police report that during the course of investigation, as per the statement under section 161 Cr.P.C of the witnesses, Azad (brother of the deceased) in his statement has verified the fact of the death of his brother Shahzad; that from the investigation conducted so far, the statement of the witnesses, interrogation of the accused persons, it has come out with the accused Tahir along with the accused Danish has taken the deceased Shahzad to Pusta Road, NTPC jungle, B-Block, Madanpur Khadar and gave a blow on the head of deceased and after pushing him on the pipe, the accused Tahir had got hold the legs of the deceased and the accused Danish had cut the throat and therefore, the accused Tahir had hit with the brick stone on his face and in furtherance of FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 13 of 88 common intention, they had killed the deceased and run away from there.
22. It is further reported in the police report that during the course of investigation, from the investigation conducted so far, statement of witnesses, perusal of the MLC and postmortem report, from arrest of the accused persons and the evidence collected and from the circumstances, it has come out that the accused Tahir had some money dispute with the deceased Shahzad due to which the accused Tahir had made a plan and the accused Danish and Tahir had brought the deceased to Madanpur Khadar and killed him; during the course of investigation, CDR report and the mobile phone of the deceased were obtained which shows that all the three were present at the location i.e. the place of incident at the time of date of incident which CDR is attached with the police report.
23. It is further reported in the police report that the afore- said acts on the part of the accused persons, Mohd. Tahir and Danish revealed commission of offence punishable under section 302/34 of the Indian Penal Code, 1860. It is, therefore, prayed that cognizance of the offence committed by accused persons, Mohd. Tahir and Danish may be taken and they should be tried as per the provisions of law.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 14 of 8824. After completion of the investigation, the investigating officer had filed police report before the concerned Metropolitan Magistrate.
25. On the police report, on 11.02.2016, the Metropolitan Magistrate had taken the cognizance of the offence.
26. On the date of taking cognizance, the accused persons were also produced before the Metropolitan Magistrate. Copies of police report and other documents were supplied to the accused persons.
27. On 24.02.2016, the Metropolitan Magistrate found the offence under section 302 IPC to be exclusively triable by the Court of Session and therefore, committed the case to the Court of Session.
28. On 06.08.2016, upon considering the police report and the documents sent with it under section 173 Cr.P.C. and after hearing the Additional Public Prosecutor and counsel for the accused persons, the charge was framed against the accused persons, namely, Mohd. Tahir and Danish for their having committed offences punishable under section 302/201/34, the Indian Penal Code.
29. The charge was read over and explained to the accused persons and they were asked if they pleaded guilty of the offence FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 15 of 88 charged or claimed to be tried. The accused persons did not plead guilty and claim trial.
30. During trial, on 16.10.2017 a supplementary police report was put up by the State whereby the FSL report was submitted.
31. In support of its case, the prosecution got examined PW1 Head Constable Ram Kishan, PW2 Firoz, PW3 Constable Rajesh, PW4 Vijay Singh, PW5 Constable Ankit, PW6 Constable Ajay, PW7 Pawan Singh, Nodal Officer, Idea Cellular Ltd., PW8 Pauhap Singh, PW9 Sub-Inspector Lakhmi Chand, PW10 Head Constable Kumer Singh, PW11 Constable Manoj Kumar, PW12 Saurabh Agarwal, Nodal Officer, Vodafone Mobile Services Ltd., PW13 Mohd. Azad (brother of the deceased), PW14 Constable Mukhtar Ahmed, PW15 Smt. Samina (mother of the deceased), PW16 Constable Purshottam, PW17 Constable Vipul Kumar, PW18 Head Constable Rajesh Kumar, PW19 Inspector Mahesh Kumar, PW20 Yogesh Tripathi, Alternate Nodal Officer, Reliance Communications Ltd., PW21 Constable Sikandar Khan, PW22 Constable Puneet, PW23 Dr. Rajeev Ranjan, CMO VIMHANS Prima Maid Hospital, PW24 Constable Jagram, PW25 Assistant Sub- Inspector Hari Singh, PW26 Sub-Inspector Dinesh, PW27 Constable Ram Awtar, PW28 Sub-Inspector Harinder Singh, PW29 Dr. V.K. FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 16 of 88 Mohapatra, PSO (Biology) CFSL, Lodhi Road, New Delhi, PW30 Dr. Kulbhushan, Assistant Professor, Department of Forensic Medicine, AIIMS, New Delhi, PW31 Inspector Sanjay Sinha, PW32 Assistant Sub-Inspector Dharmender Kumar and PW33 ACP (retired) S.K. Sharma (the investigating officer). During the examination of the prosecution witnesses, the documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW4/A, Ex.PW5/A, Ex.PW7/A, Ex.PW7/B, Ex.PW7/C, Ex.PW7/D, Ex.PW7/E, Ex.PW8/A, Ex.PW9/A, Ex.PW10/A, Ex.PW10/B, Ex.PW12/A, Ex.PW12/B, Ex.PW12/C, Ex.PW12/D, Ex.PW12/E, Ex.PW13/A, Ex.PW13/B, Ex.PW15/A, Ex.PW18/A, Ex.PW19/A, Ex.PW20/A, Ex.PW20/B, Ex.PW20/C, Ex.PW20/D, Ex.PW21/A, photographs Ex.PW22/P1- Ex.PW22/P21 and negatives Ex.PW22/P22-Ex.PW22/P42, Ex.PW23/A, Ex.PW24/A, Ex.PW25/A, Ex.PW25/B, Ex.PW28/A, Ex.PW28/B, Ex.PW28/C, Ex.PW28/D, Ex.PW28/E, Ex.PW28/F, Ex.PW28/G, Ex.PW28/H, Ex.PW28/I, Ex.PW28/J, Ex.PW28/K, Ex.PW28/L, Ex.PW28/M, Ex.PW28/N, Ex.PW28/O, Ex.PW29/A, Ex.PW30/A, Ex.PW32/A, Ex.PW33/A, Ex.PW33/B, Ex.PW33/C, Ex.PW33/D, Ex.PW33/E, Ex.PW33/F, CDRs Ex.PW33/G to Ex.PW33/K, Ex.PW33/L and case properties Ex.P1, Ex.P2(colly), Ex.P3, Ex.P4, Ex.P5, Ex.P6, Ex.P7, Ex.P8, Ex.P9, Ex.P10, Ex.P11, Ex.P12, Ex.P13, Ex.P14, Ex.P15 and Ex.P16 were also tendered in evidence.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 17 of 8832. During trial, the accused Mohd. Tahir absconded and vide order dated 11.01.2023, he was declared proclaimed offender.
33. On 11.09.2023, prosecution evidence was closed and matter was posted for examination of the accused Danish under section 313 Cr.P.C and for his statement.
34. On 22.11.2023, this Court examined the accused Danish under section 313 Cr.P.C. and his separate statement was recorded. During his examination under section 313 of Cr.P.C., the accused Danish denied the correctness of incriminating circumstances appearing in the evidence against him. During his examination under section 313 of Cr.P.C., the accused Danish took the defence that he is innocent. It is further stated by the accused Danish that he has been falsely implicated in the present case. The accused Danish did not express his desire to lead evidence in his defence.
35. I have heard Mr. Narender Yadav, Additional Public Prosecutor for the State and Mr. Ajay Sharma, Advocate for the accused Danish and have gone through the record of the case carefully.
36. Having drawn my attention on the testimonies of PW1 Head Constable Ram Kishan, PW2 Firoz, PW3 Constable Rajesh, PW4 Vijay Singh, PW5 Constable Ankit, PW6 Constable Ajay, PW7 FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 18 of 88 Pawan Singh, PW8 Pauhap Singh, PW9 Sub-Inspector Lakhmi Chand, PW10 Head Constable Kumer Singh, PW11 Constable Manoj Kumar, PW12 Saurabh Agarwal, Nodal Officer, Vodafone Mobile Services Ltd., PW13 Mohd. Azad, PW14 Constable Mukhtar Ahmed, PW15 Smt. Samina, PW16 Constable Purshottam, PW17 Constable Vipul Kumar, PW18 Head Constable Rajesh Kumar, PW19 Inspector Mahesh Kumar, PW20 Yogesh Tripathi, Alternate Nodal Officer, Reliance Communications Ltd., PW21 Constable Sikandar Khan, PW22 Constable Puneet, PW23 Dr. Rajeev Ranjan, CMO VIMHANS Prima Maid Hospital, PW24 Constable Jagram, PW25 Assistant Sub-Inspector Hari Singh, PW26 Sub-Inspector Dinesh, PW27 Constable Ram Awtar, PW28 Sub-Inspector Harinder Singh, PW29 Dr. V.K. Mohapatra, PSO (Biology) CFSL, Lodhi Road, New Delhi, PW30 Dr. Kulbhushan, Assistant Professor, Department of Forensic Medicine, AIIMS, New Delhi, PW31 Inspector Sanjay Sinha, PW32 Assistant Sub-Inspector Dharmender Kumar and PW33 ACP (retired) S.K. Sharma; and the documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW4/A, Ex.PW5/A, Ex.PW7/A, Ex.PW7/B, Ex.PW7/C, Ex.PW7/D, Ex.PW7/E, Ex.PW8/A, Ex.PW9/A, Ex.PW10/A, Ex.PW10/B, Ex.PW12/A, Ex.PW12/B, Ex.PW12/C, Ex.PW12/D, Ex.PW12/E, Ex.PW13/A, Ex.PW13/B, Ex.PW15/A, Ex.PW18/A, Ex.PW19/A, Ex.PW20/A, Ex.PW20/B, Ex.PW20/C, Ex.PW20/D, Ex.PW21/A, photographs Ex.PW22/P1-Ex.PW22/P21 and negatives Ex.PW22/P22- FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 19 of 88 Ex.PW22/P42, Ex.PW23/A, Ex.PW24/A, Ex.PW25/A, Ex.PW25/B, Ex.PW28/A, Ex.PW28/B, Ex.PW28/C, Ex.PW28/D, Ex.PW28/E, Ex.PW28/F, Ex.PW28/G, Ex.PW28/H, Ex.PW28/I, Ex.PW28/J, Ex.PW28/K, Ex.PW28/L, Ex.PW28/M, Ex.PW28/N, Ex.PW28/O, Ex.PW29/A, Ex.PW30/A, Ex.PW32/A, Ex.PW33/A, Ex.PW33/B, Ex.PW33/C, Ex.PW33/D, Ex.PW33/E, Ex.PW33/F, CDRs Ex.PW33/G to Ex.PW33/K, Ex.PW33/L and case properties Ex.P1, Ex.P2(colly), Ex.P3, Ex.P4, Ex.P5, Ex.P6, Ex.P7, Ex.P8, Ex.P9, Ex.P10, Ex.P11, Ex.P12, Ex.P13, Ex.P14, Ex.P15 and Ex.P16, the learned Additional Public Prosecutor for the State has submitted that dead body of the deceased was recovered from Pusta, NTPC Jungle, B Block, Madanpur Khadar Extension. It is further submitted that police custody remand of both the accused persons were obtained and during investigation, blood-stained clothes of the accused persons were seized and as per the FSL report, the blood found on the clothes of the accused Danish was matched with the blood of the deceased. It is further submitted that during the trial, the accused Mohd. Tahir absconded and he was declared Proclaimed Offender. It is further submitted that blood of mother of the deceased matched with the blood of the deceased, which proves the identity of the deceased to be biological child of his mother. It is further submitted that Call Detail Reports (CDRs) of the accused persons as well as the deceased were obtained during investigation and the location chart of FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 20 of 88 the three phones is very relevant and confirms the presence of the accused persons, Mohd. Tahir and Danish at the spot of incident.
37. Per contra, learned counsel for the accused Danish has drawn my attention on the testimonies of PW1 Head Constable Ram Kishan, PW2 Firoz, PW3 Constable Rajesh, PW4 Vijay Singh, PW5 Constable Ankit, PW6 Constable Ajay, PW7 Pawan Singh, PW8 Pauhap Singh, PW9 Sub-Inspector Lakhmi Chand, PW10 Head Constable Kumer Singh, PW11 Constable Manoj Kumar, PW12 Saurabh Agarwal, Nodal Officer, Vodafone Mobile Services Ltd., PW13 Mohd. Azad, PW14 Constable Mukhtar Ahmed, PW15 Smt. Samina, PW16 Constable Purshottam, PW17 Constable Vipul Kumar, PW18 Head Constable Rajesh Kumar, PW19 Inspector Mahesh Kumar, PW20 Yogesh Tripathi, Alternate Nodal Officer, Reliance Communications Ltd., PW21 Constable Sikandar Khan, PW22 Constable Puneet, PW23 Dr. Rajeev Ranjan, CMO VIMHANS Prima Maid Hospital, PW24 Constable Jagram, PW25 Assistant Sub-Inspector Hari Singh, PW26 Sub-Inspector Dinesh, PW27 Constable Ram Awtar, PW28 Sub-Inspector Harinder Singh, PW29 Dr. V.K. Mohapatra, PSO (Biology) CFSL, Lodhi Road, New Delhi, PW30 Dr. Kulbhushan, Assistant Professor, Department of Forensic Medicine, AIIMS, New Delhi, PW31 Inspector Sanjay Sinha, PW32 Assistant Sub-Inspector Dharmender Kumar and PW33 ACP (retired) S.K. Sharma; and the documents Ex.PW1/A, FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 21 of 88 Ex.PW1/B, Ex.PW1/C, Ex.PW4/A, Ex.PW5/A, Ex.PW7/A, Ex.PW7/B, Ex.PW7/C, Ex.PW7/D, Ex.PW7/E, Ex.PW8/A, Ex.PW9/A, Ex.PW10/A, Ex.PW10/B, Ex.PW12/A, Ex.PW12/B, Ex.PW12/C, Ex.PW12/D, Ex.PW12/E, Ex.PW13/A, Ex.PW13/B, Ex.PW15/A, Ex.PW18/A, Ex.PW19/A, Ex.PW20/A, Ex.PW20/B, Ex.PW20/C, Ex.PW20/D, Ex.PW21/A, photographs Ex.PW22/P1- Ex.PW22/P21 and negatives Ex.PW22/P22-Ex.PW22/P42, Ex.PW23/A, Ex.PW24/A, Ex.PW25/A, Ex.PW25/B, Ex.PW28/A, Ex.PW28/B, Ex.PW28/C, Ex.PW28/D, Ex.PW28/E, Ex.PW28/F, Ex.PW28/G, Ex.PW28/H, Ex.PW28/I, Ex.PW28/J, Ex.PW28/K, Ex.PW28/L, Ex.PW28/M, Ex.PW28/N, Ex.PW28/O, Ex.PW29/A, Ex.PW30/A, Ex.PW32/A, Ex.PW33/A, Ex.PW33/B, Ex.PW33/C, Ex.PW33/D, Ex.PW33/E, Ex.PW33/F, CDRs Ex.PW33/G to Ex.PW33/K, Ex.PW33/L and case properties Ex.P1, Ex.P2(colly), Ex.P3, Ex.P4, Ex.P5, Ex.P6, Ex.P7, Ex.P8, Ex.P9, Ex.P10, Ex.P11, Ex.P12, Ex.P13, Ex.P14, Ex.P15 and Ex.P16 and submitted that the main witness PW2 Firoz, the last seen witness, turned hostile. It is further submitted that as per the testimonies of PW7 Pawan Singh, Nodal Officer, Idea Cellular Ltd., Ex.PW7/C does not show the location of the area of mobile number 9850395165 from 13:10:46 to 16:10:32 on 11.11.2015, therefore, the location of the accused is not established.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 22 of 8838. I have given my thoughtful consideration to the submissions made on behalf of the parties.
39. The accused persons have been charged for the offences punishable under sections 302/201/34 I.P.C. Section 302 IPC provides for punishment of murder. Whereas, the offence of murder has been defined under section 300 IPC. Section 300 IPC reads as follows: -
"300. Murder. - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, if-
Secondly.- If it is done with the intention of causing such bodily injury as the offence knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
40. Section 201 IPC reads as follows: -
"201. Causing disappearance of evidence of offence, or giving false information to screen offender.-- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 23 of 88 that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
if a capital offence.-- shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life.-- and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
if punishable with less than ten years' imprisonment.-- and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
Illustration -- A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine."
41. Section 34 IPC reads as follows: -
"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 24 of 88
42. The facts of the case have already been noticed earlier, here, I would like to only focus on the evidence that has been adduced by the prosecution.
43. To bring home the guilt of the accused, the prosecution had examined 33 witnesses.
44. PW1 Head Constable Ram Kishan has deposed that on 12.11.2015, he was working as duty officer in police station Jaitpur from 8.00 am to 4.00 pm and at about 10.00 am, he had received information from control room regarding lying of a dead body at Gali No.1, Pusta, J.J. Colony. It is further deposed by PW1 Head Constable Ram Kishan that the said information was recorded vide DD No.63A Ex.PW1/A and the said DD was marked to Sub- Inspector Harender and it was sent to him through Constable Manoj Kumar and at about 2.00 pm, he registered FIR No.816/2015 under section 302 IPC, on the basis of rukka given to him by Constable Manoj, the FIR was computer typed by the operator vide Ex.PW1/B, his endorsement on rukka is at portion X. It is further deposed by PW1 Head Constable Ram Kishan that he had given certificate regarding correct contents of FIR Ex.PW1/C.
45. PW2 Firoz has deposed that he was picked-up by the police on the 14th day of a month but he did not remember the exact month and year of the incident but the police might have lifted him FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 25 of 88 one year back. It is further deposed by PW2 Firoz that it was about 4-5 days after Diwali when he was lifted by the police and one boy namely Danish had named him to police and so police lifted him in this case and police showed him the photograph of the deceased in this case and asked him whether he knew him to which he told the police that he did not know the deceased and police had beaten him up and confined him for the whole night and also threatened him. PW2 Firoz was cross-examined by learned Addl. P.P. for the State and during his cross-examination, he admitted that the police made enquiry from him on 15.11.2015 but police did not record his statement. PW2 Firoz has also admitted that one Shahzad was murdered in this case. He voluntarily deposed that he was told by the police later on. PW2 Firoz has further admitted that the police showed him the photograph of the deceased
46. PW3 Constable Rajesh has deposed that on 12.11.2015, he joined the investigation of this case and had gone to Gali No.1, J.J. Colony, Madanpur Khadar, where one dead body of Shahzad was lying. It is further deposed by PW3 Constable Rajesh that Sub- Inspector Harender and other police staff also accompanied him to the spot and from the spot, the dead body was removed to mortuary of AIIMS hospital and postmortem was done on the dead body in the hospital and after postmortem, dead body was handed over to the relatives of deceased. It is further deposed by PW3 Constable FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 26 of 88 Rajesh that on 08.02.2016, he again joined the investigation of this case and on that day, he had taken the pulandas to CFSL, CBI and had deposited the same in the office of CFSL against an acknowledgement receipt vide road certificate.
47. PW4 Vijay Singh has deposed that he did not recollect the date of the incident but it was the day of Diwali of the last year and on the day of incident, he had gone to Gali No.2 to bring labourer and the said labourer met him in Gali No. 2 and he had asked him why he did not come to his shop for labour. It is further deposed by PW4 Vijay Singh that he told him that a murder had taken place at Pusta, Kachi Colony, J.J. Colony and it was around 8.30 or 9.00 am when labourer told him this fact. It is further deposed by PW4 Vijay Singh that he asked the labourer whether someone informed the police and that labourer had told him that nobody had informed the police, so, he had informed the police on 100 number and he had gone to police station. PW4 Vijay Singh was cross-examined by learned Addl. PP for the State and during his cross-examination, he admitted that the incident occurred on 12.11.2015 and the police had made a call after two days of this incident and had asked him his address and telephone number but they did not record his statement.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 27 of 8848. PW5 Constable Ankit has deposed that on 12.11.2015, his duty hours were from 8.00 am to 2.00 pm and at about 9.56 am, he had received a call from mobile number 8439255284 informing that a dead body is lying in front of Gali no.1, on Pusta, J.J. Colony, Madanpur Khadar and the said information was recorded and dispatched to the PCR and the computerized copy of the PCR Form is Ex.PW5/A.
49. PW6 Constable Ajay has deposed that on 12.11.2015, he was posted as Constable at East, Dogs Squad, R. K. Puram and a call was received from PS Jaitpur and on receipt of said call, he had gone to the place of occurrence in a PCR gypsy along with a dog. It is further deposed by PW6 Constable Ajay that he along with PCR van had gone to Jaitpur where dog could not smell anything at the aforesaid place and the dead body was lying at the spot in mutilated condition and some body parts were also found missing from the body and the blood was lying at the spot and one stone piece stained with blood was also found there.
50. PW7 Pawan Singh, Nodal Officer, Idea Cellular Ltd. has deposed that he has brought the CDR of mobiles number 8750395165 and 8744965116 issued in the name of Iliyas S/o Khachedu R/o C-134, Block CJ, J Cluster, Madanpur Khadar Extn., Delhi and Mohd. Aslam S/o Abdul Hadi R/o B-907, B Block, FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 28 of 88 Madanpur Khadar Extn., Delhi and the attested copy of the Customer Application Forms of the aforesaid mobile numbers Ex.PW7/A and Ex.PW7/B bear his initial at points A. It is further deposed by PW7 Pawan Singh that the customers had given photocopy of election I- Card at the time of issuance of SIM card and the CDR of mobile phone number 8750395165 running into six pages from 01.11.2015 to 16.11.2015 Ex.PW7/C bears his initial at point A on each pages and the CDR of mobile phone number 8744965116 running into five pages from 01.11.2015 to 16.11.2015 Ex.PW7/D bears his initial at point A on each pages and the certificate of 65B Evidence Act regarding the aforesaid CDR Ex.PW7/E bears his initial at point A.
51. PW8 Assistant Sub-Inspector Pauhap Singh has deposed that on 12.11.2015, he was working as Duty Officer in the police station Jaitpur at about 9.30 pm and Inspector S.K. Sharma, SHO had recorded DD entry no.110А Ex.PW8/A regarding his arrival after doing investigation in case FIR No.816/15 under section 302 IPC.
52. PW9 Sub-Inspector Lakhmi Chand has deposed that on 12.11.2015, he along with Constable Puneet (Photographer) and Constable Chirag (Proficient) had gone to the place of incident which was jungle area of NTPC, near B Block, Madanpur Khadar Extension where he had met SI Harender at the spot with other police FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 29 of 88 officials. It is further deposed by PW9 Sub-Inspector Lakhmi Chand that the spot was inspected and there was a dead body of a male person in a mutilated condition and the body was not having left hand and its head. It is further deposed by PW9 Sub-Inspector Lakhmi Chand that the head and hand were found at a little distance from the body and the blood was lying near pipe of water supply and there was one blood stained stone, one water bottle having blood stains. It is further deposed by PW9 Sub-Inspector Lakhmi Chand that a dagger was also found at a little distance from the body and the photographs were taken at the spot. It is further deposed by PW9 Sub-Inspector Lakhmi Chand that he had lifted the blood from the body, head and hand from the spot and instructed the IO to make samples of bottle, stone and earth-control which was having blood stains and he had prepared report Ex.PW9/A.
53. PW10 Head Constable Kumer Singh has deposed that on 15.11.2015, at about 22.10 hours an information was recorded in DD No.60A Ex.PW10/A by Inspector Sunil regarding arrest of accused persons namely Mohd. Tahir and Danish. It is further deposed by PW10 Head Constable Kumer Singh that he has also seen DD entry No.64A Ex.PW10/B placed in judicial file which was recorded by Inspector Sunil regarding his departure to the spot of incident along with Constable Naresh, Inspector Ravinder Kumar.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 30 of 8854. PW11 Constable Manoj Kumar has deposed that on 12.11.2015, upon receipt of information in police station, he was informed by duty officer regarding a dead body lying in the jungle area of NTPC and he informed Sub-Inspector Harender Singh and they both had reached in the jungle of NTPC and found a dead body of a male person. It is further deposed by PW11 Constable Manoj Kumar that the body was found in a mutilated condition, its head and one hand were lying at a distance from the man body and one stone and a knife were also found at the spot and some murmure were also lying. It is further deposed by PW11 Constable Manoj Kumar that the crime team and dog squad were called at the spot and the photographs were taken and the investigating officer, after some time had prepared a rukka which he brought to police station and presented the same to duty officer who registered the FIR No.816/15 under section 302 IPC and he had taken copy of FIR and the original rukka to the spot and had handed over the same to Inspector S. K. Sharma.
55. PW12 Saurabh Agarwal, Nodal Officer, Vodafone Mobile Services Ltd. has deposed that he has proved relevant record in respect of mobile phone number 9990206746 which was in the name of Sahjad S/o Mohd. Ali, R/o 1/13, Haldwani, Bisrarh, Dadri, Gautam Budh Nagar, U.P and the copy of customer application Form Ex.PW12/A having copy of ID i.e. election ID Ex.PW12/B. It is FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 31 of 88 further deposed by PW12 Saurabh Agarwal that he has also brought the call details of this mobile phone for the period w.e.f. 01.11.2015 to 16.11.2015 Ex.PW12/C and these call details are produced from their official computer. It is further deposed by PW12 Saurabh Agarwal that he has also issued certificate under section 65-B of The Indian Evidence Act regarding correct contents of computer- generated record of call details taken out from their official computer, the certificate Ex.PW12/D and the copy of Cell ID Chart Ex.PW12/E, bear his signature and seal of the company at point A.
56. PW13 Mohd. Azad has deposed that Mohd. Shahjad was his elder brother and he was engaged in doing work of white wash. It is further deposed by PW13 Mohd. Azad that on 11.11.2015 before noon, he had gone in a jamat to Salmani Masjid in a near by area of their locality and he had returned from jamat on 12.11.2015 as his mother had told him that his brother Shahjad has not returned home. It is further deposed by PW13 Mohd. Azad that on he had requested his mother to send motorcycle to his place to come to home and then Tahir along with one boy namely Shakeel had come on motorcycle and had met him. It is further deposed by PW13 Mohd. Azad that he had enquired from Tahir as to where his brother was and his brother Shahjad used to do work of white-wash together. It is further deposed by PW13 Mohd. Azad that on accused Tahir had told him that on 11.11.2015 in the evening at about 4.00 p.m. had left FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 32 of 88 Shahjad at the turn of Haldani and had gone to Delhi, thereafter, he and Tahir searched for Shahjad at various places like Kuleshra and no clue could be found of Shahjad. It is further deposed by PW13 Mohd. Azad that Tahir had left for his work and he had continued for search of his brother in other areas of Haryana with his brother-in- law namely Samar but no clue could be found. It is further deposed by PW13 Mohd. Azad that they had returned home and he had enquired from mother about the entire sequence and his mother namely Samina had informed him that on 11.11.2015 after the prayer (namaz of Johar). It is further deposed by PW13 Mohd. Azad that Shahjad was taken from their house by Tahir and he had further enquired from Tahir about his brother, who mislead him and his relatives that Shahjad was having an affair with a lady at Chaipur, Greater Noida and when he made enquiry from a thekedar namely Tahir, he was informed that on 11.11.2015, Shahjad had come with Tahir and one Danish had come at his house in Village Alivirdhipur and had demanded sweets as it was Diwali occasion. It is further deposed by PW13 Mohd. Azad that Tahir and Danish were having alcohol smell in their mouth and on sustained interrogation of Tahir by local people of his area, he had confessed that he had killed Shahjad in the area of Jaitpur while Tahir was being questioned by the local people, Tahir had received a call from his friend Danish and one netaji namely Kunwar Nadir asked Tahir to talk with Danish and enquire about Shahjad on which Danish from the other side said that FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 33 of 88 why he was enquiring about Shahjad when he had already cut Shahjad's throat and killed him, then, Tahir was handed over to police officials of Echo Tech III police station and in the same night, he was called by police officials of PS Jaitpur, Delhi and they showed him photographs in the mobile phone and he had identified the dead body of his brother, its hand and head were separated from rest of the body. It is further deposed by PW13 Mohd. Azad that at that time, his brother was using mobile phone number 9990206746 of Samsung and this mobile phone was also found in the house of Tahir and he had seen Danish once or twice with his brother Shahjad. PW13 Mohd. Azad has correctly identified accused Danish in the court. It is further deposed by PW13 Mohd. Azad that he had also identified dead body of his brother in AIIMS hospital and had obtained the dead body from there and did the last rites of burial at their village Haldani and his statement regarding identification of dead body Ex.PW13/A bears his signature at point A.
57. During his examination-in-chief, Addl. PP for State has put some leading questions to this witness and PW13 Mohd. Azad has admitted that police officials of PS Jaitpur made enquiry from him regarding the facts and circumstances of the case. PW13 Mohd. Azad has further admitted that he had met Inspector S.K. Sharma. PW13 Mohd. Azad has further admitted that accused Tahir and Danish had caused murder of his brother Shahjad. PW13 Mohd.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 34 of 88Azad has voluntarily deposed that the accused Tahir had confessed this fact when he was interrogated by the police officials of Echo Tech III police station. PW13 Mohd. Azad has further admitted that his brother Shahjad used to tell him that there was some amount was due to Shahjad from Tahir but he was not told if it was Rs.40,000/- or more.
58. PW14 Constable Mukhtar Ahmed has deposed that on 14.11.2015, he along with Sub-Inspector Dinesh, Constable Purushotam had gone to Noida while investigating the present case to get the dead body identified and they were having hue and cry notice and photographs of the dead person. It is further deposed by PW14 Constable Mukhtar Ahmed that they had reached in PS of Echotech Greater Noida, Gautambudh Nagar, Ghaziabad, UP and some relatives were already present there to make complaint regarding missing of Shahzad. It is further deposed by PW14 Constable Mukhtar Ahmed that they had met one person namely Azad, who stated that his brother Shahzad were missing since 11.11.2015 and they had shown him the photographs of dead body and PW14 has identified the dead person as his brother Shahzad by seeing some marks on the chest portion. PW14 Constable Mukhtar Ahmed was joined in the investigation and they had come to PS Jaitpur where Azad had identified sandal and jeans pant of his brother Shahzad, thereafter, they along with Inspector S.K. Sharma FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 35 of 88 had come to mortuary of AIIMS, where Azad had identified the dead body as his brother Shahzad.
59. PW15 Smt. Samina has deposed that Shahzad was her son and on 11.11.2015, her son Shahzad was called and taken by Tahir from their house and he waited for her son till night but he did not respond to the calls made on his mobile phone by her and mobile phone of her son was found to be switched-off. It is further deposed by PW15 Smt. Samina that the next day, she enquired from Tahir as he was residing in her neighbourhood, about her son Shahzad, then, Tahir told her that he had left Shahzad at Haldani Morh and the accused Tahir had also tried to search for her son with her in the area here and there. It is further deposed by PW15 Smt. Samina that her son Shahzad and Tahir, both used to work together of white-wash and there was some money dispute between Tahir and her son Shahzad. It is further deposed by PW15 Smt. Samina that her son used to take theka of white-wash and Tahir used to work with him and he had come know the dispute was regarding Rs.40,000/- and Rs.15,000/- was already received however, she did not know by whom Rs.15,000/- was received.
60. It is further deposed by PW15 Smt. Samina that they searched for her son for about three days and on the fourth day, accused Tahir had disclosed in the presence of the people of her area FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 36 of 88 that Tahir was having some affairs with a woman, then in the evening, he and her area people pressurized accused to disclose the real thing and he had started giving different explanations, thereafter, a call had come on the mobile phone of accused Tahir made by Danish, a friend of Tahir and in the conversation of that telephone call, Tahir was asked to enquire from Danish about Shahzad to which Danish replied that Tahir had cut the throat of Shahzad, then why he was enquiring from him now about Shahzad, thereafter, Tahir had disclosed that he along with his friend Danish had caused death of Shahzad in the area of Jaitpur, Delhi. It is further deposed by PW15 Smt. Samina that she along with her other relatives had taken Tahir to Echotech police station where police officials of Delhi PS Jaitpur met them, there photographs of the dead body and clothes were shown to them and she had identified the clothes on the dead body as of her son, thereafter, he with her other relatives had gone to AIIMS Trauma Center where she had identified the dead body of her son Shahzad. It is further deposed by PW15 Smt. Samina that after some days, police officials of Delhi had taken her to a doctor where her blood sample was taken and she had narrated the facts to police as stated by her and she had seen once accused Danish in her area with accused Tahir. PW15 Smt. Samina has correctly identified the accused Danish in the court.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 37 of 8861. PW16 Constable Purshottam has deposed that in the month of November, 2015, he along with Sub-Inspector Dinesh had gone to Noida after taking Hue and Cry Notice and photograph of deceased. It is further deposed by PW16 Constable Purshottam that during their visit, they had reached at Echotech Greater Noida, Gautam Budh Nagar, UP, where he had shown notice and photograph of deceased to the public persons present over there and out of them, one person namely Mohd. Azad had identified the photographs and had told them that it was the photograph of his brother Shahzad, who was missing since 11.11.2015. It is further deposed by PW16 Constable Purshottam that Mohd. Azad had further told him that one person namely Tahir, who was living in Noida had taken away his brother Shahzad and one person namely Danish was also with them. It is further deposed by PW16 Constable Purshottam that they both had taken away his brother Shahzad for obtaining a tender of distemper painting, thereafter, Sub-Inspector Dinesh had told Mohd. Azad to come to AIIMS Hospital and identified dead body of Mohd. Shahzad to which Mohd. Azad had replied that he would come to AIIMS Hospital next day.
62. PW17 Constable Ripul Kumar has deposed that on 12.11.2015, he had taken copies of FIR of this case from duty officer at about 3.00 p.m. and had delivered the copies of FIR at the office FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 38 of 88 of DCP, South-East, Sarita Vihar; Joint CP office, PHQ and learned MM in Saket Court at about 4.00 pm.
63. PW18 Head Constable Rajesh Kumar has deposed that on 08.02.2016, he had taken the sealed pulandas along with sample seal of case FIR No. 816/15 vide road certificate No. 25/21/16 Ex.PW18/A from malkhana and had deposited the sealed parcel in the office of CFSL, CBI, Lodhi Colony. It is further deposed by PW18 Head Constable Rajesh Kumar that till the parcels remained in his custody, they were not tampered with in any manner and the proof of receipt of pulandas was given to MHC(M) on his return to police station.
64. PW19 Inspector Mahesh Kumar has deposed that on 25.01.2016, he was called by Inspector Sunil Kumar at police station Jaitpur from where they had gone to the spot of incident at NTPC Jungle, near B Block, Madanpur Khadar Extension, New Delhi where at the instance of Inspector Sunil Kumar, he had taken rough notes and measurements of the place of incident, thereafter, on 03.02.2016, in his office, he had prepared scaled site-plan Ex.PW19/A of the place of incident on the basis of rough notes and measurements and the rough notes were destroyed after preparation of the scaled site-plan.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 39 of 8865. PW20 Yogesh Tripathi, Alternate Nodal Officer, Reliance Communication Ltd. has deposed that she has brought the CDR and customer application form Ex.PW20/A of mobile number 9015442114 from 01.11.2015 to 16.11.2015 which was in the name of Firoz s/o Bahadur Khan, R/o C-436, Block No.C, Madanpur Khadar, Delhi. It is further deposed by PW20 Yogesh Tripathi that the customer had furnished his election ID card Ex.PW20/B with the name of Firoz s/o Bahadur Khan. PW20 Yogesh Tripathi has proved the call detail records Ex.PW20/C of this mobile number from 01.11.2015 to 16.11.2015 and the certificate u/s 65 B Ex.PW20/D in relation to these CDR of the above said mobile issued by him and the CDR brought by him today also shows the location of the mobile phone.
66. PW21 Constable Sikandar Khan has deposed that on 01.02.2016 as per directions of the investigating officer, he had taken one sealed pullanda along with sample seal and two documents from the MHC(M) to be deposited at CFSL CBI Lodhi Road, New Delhi vide RC No.24/21/16 dt. 01.02.2016 and accordingly the same was deposited by him there. It is further deposed by PW21 Constable Sikandar Khan that he had also acknowledged receipt from the CFSL and had handed over the same to MHC(M) after coming back to the PS. It is further deposed by PW21 Constable Sikandar Khan that till the pullanda and the documents remained in his possession, the same FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 40 of 88 were not tempered by him and his statement was recorded by the investigating officer. PW21 Constable Sikandar Khan has also proved the original Road Certificate No.24/21/16 Ex.PW21/A which also contains endorsement made by the CFSL staff in receipt of pullanda and document at point A.
67. PW22 Constable Puneet has deposed that on 12.11.2015, he was posted as Constable/photographer in South East District, Crime Team, New Delhi and on that day, on receipt of information from the Control Room, he had accompanied to Incharge Crime Team Sub-Inspector Lakhmi Chand, NTPC Jungle near B- block, Madanpur Khadar, Extension, New Delhi where dead body of a male without head and left hand and the dead body was in mutilated condition. It is further deposed by PW22 Constable Puneet that the dead body was wearing blue colour jeans and black colour belt and one shirt stained with blood was found tied around the legs and the dead body was wearing black colour sandel. It is further deposed by PW22 Constable Puneet that one head without eyes, nose and jaws was found lying at a distance of 15 steps in the bushes and one left hand was found lying at a distance of 30-40 steps towards the Eastern side of the dead body and the blood was lying in the pipe line and under the pipe line at a distance of about 20 feets, one blood-stained piece of stone was also lying there and one knife was also lying near the dead body at the scene of crime. It is further FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 41 of 88 deposed by PW22 Constable Puneet that he had taken photographs of the aforesaid scene of crime covering all the objects from different angles and his statement was also recorded by the investigating officer. Later on, on the negatives of those photographs, he had got developed 21 photographs Ex.PW22/P22 to Ex.PW22/P42 along with 21 negatives Ex.PW22/P1 to Ex.PW22/P21 of those photographs and one set of photographs was supplied to the Ld. Counsel for the accused.
68. PW23 Dr. Rajeev Ranjan, CMO, VIMHANS Prima Maid Hospital, New Delhi has deposed that on 12.11.2015, he was posted at AIIMS Hospital and one unknown patient was brought to casualty by Constable Rajesh at AIIMS Hospital and the condition of the patient on arrival was brought dead. It is further deposed by PW23 Dr. Rajeev Ranjan that on examination, pulse was not palpable, head separated and crushed from the body at the level of cervical spine and separated from the body male genital part and the dead body referred to forensic department. PW23 Dr. Rajeev Ranjan had prepared the MLC Ex.PW23/A.
69. PW24 Constable Jagram has deposed that on 15.11.15, he had joined the investigation of this case and on that day, he along with Sub-Inspector Harender had gone to Mortuary of AIIMS Hospital for getting the postmortem on the body of Shahzad and the FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 42 of 88 postmortem was done on the dead body and after postmortem, doctor gave 11 sealed pullandas along with sample seal to Sub-Inspector Harender Singh who had seized vide seizure memo Ex.PW24/A.
70. PW25 Assistant Sub-Inspector Hari Singh has deposed that on 01.02.2016, investigating officer Inspector S.K. Sharma had instructed him to send one sealed exhibit to CFSL CBI Lodhi Road, New Delhi and on this, he had handed over one sealed exhibit to Constable Sikander Khan through RC No. 24/21/16 dated 01.02.2016 Ex.PW25/A and Constable Sikander Khan had got the exhibits deposited at CFSL CBI Lodhi Road, New Delhi and had come back at police station Jaitpur and had handed over the receiving receipt to him. It is further deposed by PW25 Assistant Sub-Inspector Hari Singh that the endorsement of receiving at CFSL CBI Lodhi Colony was encircled in red at point A and on 08.02.2016, the investigating officer Inspector S.K. Sharma had instructed him to send the various sealed exhibit to CFSL CBI Lodhi Road, New Delhi, on this, he had handed over one sealed exhibit to Constable Rajesh through RC No.25/21/16 dated 08.02.2016 Ex.PW25/B and Constable Rajesh had got the exhibits deposited at CFSL CBI Lodhi Road, New Delhi and had come back at police station Jaitpur and had handed over the receiving receipt to him and the endorsement of receiving at CFSL CBI Lodhi Colony was encircled in red at point A. FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 43 of 88
71. PW26 Sub-Inspector Dinesh has deposed that on 14.11.2015, he along with constable Purshottam and constable Mukhtiyar had gone to Noida and they had visited many areas and police stations at Noida along with hue and cry notice and the photographs of the deceased Shahzad. It is further deposed by PW26 Sub-Inspector Dinesh that he had gone to police station Eco Tech Greater Noida, Gautam Budh Nagar, UP and he had shown the photograph of deceased Shahzad to some persons where one person namely Mohd. Azad had told him that his brother was missing since 11.11.2015 and Mohd. Azad had also identified the clothes and sandals as his missing brother namely Shahzad. It is further deposed by PW26 Sub-Inspector Dinesh that Mohd. Azad told them that persons namely Tahir and Danish had taken his brother namely Shahzad with them to Delhi for fetching some work to him and since then his brother did not come back to his house and he had instructed Mohd. Azad and his family members to come to AIIMS Hospital Delhi to identify the dead body. It is further deposed by PW26 Sub- Inspector Dinesh that they had told him that they would come tomorrow, thereafter, he along with the staff had come back to police station Jaitpur.
72. PW27 Constable Ram Awatar has deposed that on 31.12.2015, the investigating officer Inspector S.K. Sharma had given him a request letter and had sent him to collect the PCR form FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 44 of 88 and he had gone to PHQ and had collected the PCR form (2 PP) and had come back at police station Jaitpur and had handed over the PCR form Ex.PW5/A to the investigating officer.
73. PW28 Sub-Inspector Harinder Singh has deposed that on 12.11.2015, on receiving DD No.63A, he along with Constable Manoj and beat staff had gone to Madan Pur Khadar in front of B- Block NTPC Jungle Area where there were two pals (heaps) of ash, one is bigger in height and other is small. It is further deposed by PW28 Sub-Inspector Harinder Singh that they had found a headless body over there and there was an iron drainage pipe on the lower heap of ash which drains ash water and a head of dead body was found around 15 steps away from the headless body and the left hand of the body was also missing which was found 15-20 steps away from the dead body. It is further deposed by PW28 Sub-Inspector Harinder Singh that the recovered hand was without skin and flesh and the head of the body was not having eyes, jaw and flesh except hairs and the private parts (genital organs) were also in mutilated condition. It is further deposed by PW28 Sub-Inspector Harinder Singh that a blue colour jeans pant and black belt was present over the dead body which was worn by him and a gray blue check shirt was present over thigh and a grey and black colour sandals were present in the feet of the dead body and a big piece of stone was lying 15-20 feet away from the dead body near the drainage pipe. It FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 45 of 88 is further deposed by PW28 Sub-Inspector Harinder Singh that the stone was having blood stains and dry blood stains were also present near the drainage pipe and a knife was recovered from 30-40 steps away from the dead body which was having blood stains. It is further deposed by PW28 Sub-Inspector Harinder Singh that a polythene was wrapped around the handle of the knife and he had conducted local inquiry to get the dead body identified but to no avail and had also called crime team, dog squad and photographer at the spot. It is further deposed by PW28 Sub-Inspector Harinder Singh that he had put his endorsement on DD No.63A vide Ex.PW28/A and had prepared the rukka and got the FIR registered through Constable Manoj, thereafter, the case was marked to Inspector S.K. Sharma. It is further deposed by PW28 Sub-Inspector Harinder Singh that the second investigating officer Inspector S.K. Sharma had lifted exhibits from the spot on the direction of the crime team vide seizure memo Ex.PW28/B and the investigating officer had prepared the site-plan vide Ex.PW28/C and the investigating officer had prepared sketch of the knife vide Ex.PW28/D. It is further deposed by PW28 Sub-Inspector Harinder Singh that the total length of the knife was 34.5 cm and length of the blade was 24.5 cm and length of handle was 10 cm and the investigating officer had kept the knife in a transparent plastic box and had wrapped with doctor tape and sealed with the seal of the HS, thereafter, the investigating officer had seized the recovered knife vide seizure memo Ex.PW28/E. It is FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 46 of 88 further deposed by PW28 Sub-Inspector Harinder Singh that the investigating officer had also lifted blood-stained mitti, one empty blood-stained water bottle and one blood-stained iron pipe from the spot and sealed the exhibits with the seal of HS and had seized the same vide seizure memo Ex.PW28/F and after use of the seal, seal was handed over to him, in the meanwhile, Constable Manoj Kumar had come at the spot and had handed over the copy of FIR and original rukka to the investigating officer, thereafter, the dead body was shifted to the mortuary of AIIMS Trauma Center through Constable Rajesh and the dead body was got preserved, thereafter, the investigating officer had collected crime team report and had recorded their statements u/s 161 Cr.P.C. It is further deposed by PW28 Sub-Inspector Harinder Singh that the crime team official and dog squad had left the spot and they had gone to the police station and the case property was deposited in the Malkhana of police station and the investigating officer had recorded his statement u/s 161 Cr.P.C., thereafter, the investigating officer flash WT message and had also given notice on Hue and cry notice and had also filled- up missing person report, thereafter, they had received information from police station Eco Tech, Noida regarding missing of the deceased Shehzad, thereafter, they had gone to the Eco Tech Greater Noida, where they had met brother of the deceased namely Azad and Nadir Ali and had shown the photographs of the dead body. It is further deposed by PW28 Sub-Inspector Harinder Singh that they FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 47 of 88 had identified the dead body in the photographs, thereafter, they had gone to the mortuary of the AIIMS Trauma Center and he had prepared the inquest paper Ex.PW28/G and the investigating officer had recorded dead body identification statement of Mohd. Azad and Nadir Ali and after postmortem of the deceased dead body was handed over to Mohd. Azad and Nazir Ali. It is further deposed by PW28 Sub-Inspector Harinder Singh that the doctor had handed over the exhibits to him and he had sealed the same with the seal of "HS" and had deposited the same in the malkhana, thereafter, he along with Inspector S.K Sharma, Azad (brother of the deceased), had gone to Jal Pura village PS Eco Tech Third, Noida UP, where they had met accused Tahir and at the instance of Azad, they had apprehended accused Tahir and had arrested him vide arrest memo Ex. PW28/H and had conducted his personal search vide memo Ex.PW28/I. It is further deposed by PW28 Sub-Inspector Harinder Singh that the investigating officer had recorded his disclosure statement Ex.PW28/J, thereafter, they had returned towards police station and on the way near Kalindi Kunj, they had met accused Danish and at the instance of accused Tahir, they had arrested him vide arrest memo Ex.PW28/K and had conducted his personal search vide memo Ex.PW28/L. It is further deposed by PW28 Sub-Inspector Harinder Singh that the investigating officer had also recorded his disclosure statement Ex. PW28/M and they had come back to PS and accused persons were kept in the lock-up after conducting their FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 48 of 88 medical examination and the investigating officer had recorded his statement u/s 161 Cr.P.C. It is further deposed by PW28 Sub- Inspector Harinder Singh that on 16.11.2015, accused persons were produced before the court and had got one day PC, thereafter, he along with Inspector S.K Sharma and accused Tahir had gone to village Jal Pura PS Eco Tech Third, Noida UP, from where they had recovered the clothes i.e. grey colour inner, which was worn by the accused at the time of the incident and same was taken into possession and sealed with the seal of "HS" vide seizure memo Ex.PW28/N, thereafter, they had gone to the house of accused Danish at C-134, Gali no. 8, Madanpur Khadar, New Delhi, where they had recovered one blue colour jeans and one blue and yellow colour check shirt, which was worn by the accused Danish, thereafter, same was taken into possession and sealed with the seal of "HS" vide seizure memo Ex.PW28/O, thereafter, they had come back to PS and case properties were deposited in the malkhana. It is further deposed by PW28 Sub-Inspector Harinder Singh that the investigating officer had recorded his statement and on 17.11.2015, accused persons were produced before the court and sent to JC. PW28 Sub-Inspector Harinder Singh has correctly identified the accused Danish in the court. PW28 Sub-Inspector Harinder Singh has correctly identified the case property i.e. grey colour inner Ex.P1 and stated that the same was recovered from accused Tahir and the blue colour blood-stained jeans and blue and yellow check blood-
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 49 of 88stained shirt Ex.P2 (colly) and stated that the same were recovered from accused Danish. It is further deposed by PW28 Sub-Inspector Harinder Singh that he could identify the knife, if shown to him, however, the knife was not in the bag brought by MHC(M).
74. PW29 Dr. B.K. Mohapatra, PSO Biology CFSL Lodhi Road, New Delhi has deposed that on 08.02.2016, 22 sealed parcels were received in their office related to the present case and the seals on the parcels were intact and tallied with the specimen seal and the parcels were marked to him for examination. It is further deposed by PW29 Dr. B.K. Mohapatra that he had de-sealed the parcels before examination and had carried out biological examination of the exhibits as per the query. It is further deposed by PW29 Dr. B.K. Mohapatra that the details of description of the parcels and the exhibits were mentioned in his report bearing No.CFSL-2016/B-0174 dated 08.08.2016 and his findings of examination in brief described as below:-
DNA profile generated from the source of exhibit 4 (stone recovered from the spot), exhibit 7 (cotton wool swab recovered from the spot), exhibit 8 (plastic bottle recovered from the spot), exhibit 10a (shirt of the accused Danish), exhibit 10b (jeans pant of accused Danish), exhibit 12 (cloth piece from the deceased), exhibit 13 (Tissue from the deceased), exhibit 14 (nail clippings from the deceased), exhibit 16 (dried grass from the deceased), exhibit FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 50 of 88 17 (tissue from the deceased), exhibit 18 (anal swab from the deceased), exhibit 20 (tissue from the deceased), exhibit 21a (jeans of the deceased), exhibit 21b (underwear of the deceased), exhibit 21c (shirt of the deceased), exhibit 21e (bed sheet from the deceased) and exhibit 23 (knife recovered from the spot) was found to be matching with each other.
Further the same DNA profile was found to be matching as biological child of the individual whose DNA was available on exhibit 22 (blood stained cloth).
75. It is further deposed by PW29 Dr. B.K. Mohapatra that he has submitted his report bearing No.CFSL-2016/B-0174 dated 08.08.2016 running into 4 pages Ex.PW29/A bears his signature on each page at point A.
76. PW30 Dr. Kulbhushan Assistant Professor Department of Forensic Medicine AIIMS New Delhi has deposed that on 15.11.2015, he along with Dr. Mantaran and Dr. Piyush had conducted postmortem examination on the dead body of one Mohd. Shahjad, 22 years male pertaining to case FIR No. 816/15 PS Jait Pur. It is further deposed by PW30 Dr. Kulbhushan Assistant Professor that after the postmortem examination, the postmortem report No.1354-15 dated 15.11.2015 Ex.PW30/A was prepared which bears his signature at point A and of Dr. Mantaran at point B and of Dr. Piyush at point C on each page. It is further deposed by PW30 Dr. Kulbhushan Assistant Professor that all the injuries were FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 51 of 88 mentioned in the postmortem report and the cause of death could not be ascertained with the parts of body available for examination and the time since death could also not be ascertained as the major parts of the dead body were missing as mentioned in postmortem report in column no.5. It is further deposed by PW30 Dr. Kulbhushan Assistant Professor that piece of muscle tissue from thigh, clothing material, vegetative matter over the body, arm band around right arm, nail clippings of left and right hand, anal swab, control swab, scalp hair from the head, muscle tissue from base of thumb of left upper limb and muscle of thigh have been preserved and sealed in pullanda which were given to the police along with sample seal.
77. PW31 Inspector Sanjay Sinha has deposed that on 14.10.2017, he was posted as SHO at PS Jaitpur and on that day, after collecting FSL Result Ex.PW29/A, he has filed supplementary charge-sheet after approval from the competent authority.
78. PW32 Assistant Sub-Inspector Dharmendra Kumar has deposed that on 14.11.2015, he has recorded DD No.32A Ex.PW32/A.
79. PW33 Retired ACP S.K Sharma has deposed that on 22.11.2015, he was posted as SHO at police station Jaitpur and on that day, Sub-Inspector Harender got the present case registered and thereafter, investigation was conducted by him and during FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 52 of 88 investigation, he along with staff had visited the place of occurrence i.e. NTPC Jungle near Madanpur Khadar, near Block-B, where they had found male dead body (shat-vikshat condition) and was in different parts. It is further deposed by PW33 Retired ACP S.K Sharma that he had called crime-team officials and crime-team officials had come there and had taken the photographs and blood sample of deceased which he had seized vide seizure memo Ex.PW28/B. It is further deposed by PW33 Retired ACP S.K Sharma that he had also taken blood sample, soil sample, blood-stained stone and one empty blood-stained water bottle which was lying at the spot and he had taken them into possession vide seizure memo Ex.PW28/F. It is further deposed by PW33 Retired ACP S.K Sharma that they had also found blood-stained knife on the spot and had prepared the sketch memo of the knife Ex.PW28/D and had taken it into possession vide seizure memo Ex.PW28/E. It is further deposed by PW33 Retired ACP S.K Sharma that during investigation, he had prepared the site-plan Ex.PW28/C and had tried to get identify the dead body from nearby area and had also flashed WT message, hue and cry notice and had also filled-up missing person UIDB Form vide Hue and cry notice Ex.PW33/A and UIDB Form Ex.PW33/B.
80. It is further deposed by PW33 Retired ACP S.K Sharma that on 14.11.2015, he had constituted a team including Sub- Inspector Dinesh Kumar and others for identification of dead body, FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 53 of 88 thereafter, Sub-Inspector Dinesh Kumar along with team had gone to Police Station Eco Tech, Greater Noida, U.P. with hue and cry notice, where they had met Mohd. Azad, who had identified the photograph and clothes of the person who was identified as Shehzad, missing since 11.11.2015 and he had further told that deceased was his real brother. It is further deposed by PW33 Retired ACP S.K Sharma that Mohd. Azad had also told that on 11.11.2015, he had gone with Tahir and Danish, working together, thereafter, Sub-Inspector Dinesh Kumar with team and Azad had returned to police station and had informed him. It is further deposed by PW33 Retired ACP S.K Sharma that on 15.11.2015, he along with Sub-Inspector Harender, Mohd. Azad and Nadir Ali had gone to the mortuary of AIIMS Trauma Center where dead body was identified by them and he had recorded their statements vide Ex.PW13/A (of Mohd. Azad) and Ex.PW33/C (of Nadir Ali), thereafter, postmortem of the deceased was got conducted and dead body was handed over to them, thereafter, they had gone to the house of Mohd. Tahir at Jal Vihar, Village Haldoni, Greater Noida, where they had met Mohd. Tahir. It is further deposed by PW33 Retired ACP S.K Sharma that thereafter, he had interrogated him and Mohd. Tahir had disclosed that he along with his friend Danish had brought the deceased in Delhi on 11.11.2015 and Mohd. Tahir had also disclosed that due to money dispute they had killed deceased near NTPC jungle near Madanpur Khadar and he had recorded disclosure statement of accused Mohd.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 54 of 88Tahir vide Ex.PW28/J and he had arrested Mohd. Tahir vide arrest memo Ex.PW28/H and had conducted his personal search vide memo Ex.PW28/I. It is further deposed by PW33 Retired ACP S.K Sharma that at the instance of accused Mohd. Tahir, they had apprehended co-accused Danish and Mohd. Tahir was interrogated, his disclosure statement Ex.PW28/M was recorded and Mohd. Tahir was arrested vide arrest memo Ex.PW28/K and had conducted his personal search vide memo Ex.PW28/K, thereafter, they had returned to police station and after medical examination, accused persons were kept in the lock-up.
81. It is further deposed by PW33 Retired ACP S.K Sharma that on 16.11.2015, he had produced them before the Court and had got one day police custody remand and during their PC remand, the accused Tahir had got recovered one blood-stained shirt from his house. It is again stated by PW33 Retired ACP S.K Sharma that it was an inner and the accused Danish had got recovered one shirt and one jeans from his house which were taken into possession vide memos Ex.PW28/N and Ex.PW28/O respectively. It is further deposed by PW33 Retired ACP S.K Sharma that he had also prepared site-plan of the place of recovery Ex.PW33/D and Ex.PW33/E and had also prepared pointing out memo Ex.PW33/F where Danish had thrown his mobile phone, thereafter, they had returned to police station and accused were kept in the lock-up.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 55 of 8882. It is further deposed by PW33 Retired ACP S.K Sharma that on the next day, they were produced before the court and had sent to JC and on 08.02.2016, exhibits were sent to FSL through one constable, whose name he did not remember. It is further deposed by PW33 Retired ACP S.K Sharma that during investigation, he had also collected the CDR of accused persons as well as deceased vide applications Ex.PW33/G to Ex.PW33/K and had also got prepared a scaled site-plan through draftsman Inspector Mukesh Jain and had recorded the statements of witnesses. It is further deposed by PW33 Retired ACP S.K Sharma that he had also collected PCR Form and photographs and after completion of the investigation, he had filed the charge-sheet before the court. PW33 Retired ACP S.K Sharma had pointed out towards accused Danish sitting in the court but he did not remember his name. PW33 Retired ACP S.K Sharma had also correctly identified one inner of light brown colour with some portion missing Ex.P1, which was stated to be having blood stains, had also correctly identified one blue jeans and one blue yellow check shirt Ex.P2 and had also correctly identified one heavy stone Ex.P3. Thereafter, PW33 Retired ACP S.K Sharma had also correctly identified on small plastic bottle containing earth control Ex.P4, had also correctly identified one plastic bottle Ex.P5, one cotton swab and one small piece of wood through which blood was taken Ex.P6, earth control Ex. P7, blood sample Ex.P8, one empty small plastic bottle Ex.P9, blood-stained piece of cloth Ex.P10, one small empty FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 56 of 88 plastic bottle Ex.P11, blood sample Ex.P12, one small piece in some liquid Ex.P13, blood sample Ex.P14, one jeans, one bed-sheet, one pair of chappal and one shirt belonging to deceased collectively Ex.P15, one mobile phone of deceased Ex. P16. PW33 ACP S.K. Sharma has admitted that he had taken blood sample of mother of deceased vide seizure memo Ex.PW33/L.
83. In the light of the charge framed against accused persons and the arguments advanced before the Court, following are the points for determination:
1. Whether the accused persons, in furtherance of the common intention of both of them, have caused death of the deceased Shahzad, with the intention of causing death, or with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom harm is caused., or with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death., or with the knowledge that the fact is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death.
2. Whether the accused persons committed the afore-stated offence and have caused disappearance of the evidence FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 57 of 88 thereof with an intention to screen the offenders from legal punishment.
3. Whether the accused persons, while committing the afore-stated offfence have acted in concern.
DISCUSSION ON THE POINTS FOR DETERMINATION
84. On these points, to prove the commission of offence, the testimonies of PW1 Head Constable Ram Krishan, PW2 Firoz, PW13 Mohd. Azad, PW15 Shamina, PW28 Sub-Inspector Harinder and PW33 ACP S.K. Sharma are relevant.
85. In the present case, the criminal justice system was set into motion on receiving of an information in the police station Jaitpur which was recorded vide DD No.63A (Ex.PW1/A). As per the testimonies of PW1 Head Constable Ram Krishan on 12.11.2015 at about 10.00 a.m., he had received an information from the control room regarding lying of a dead body at Gali No.1 Pusta at J.J. Colony and the said information was recorded by him vide DD no.63A (Ex.PW1/A) and the said DD was marked to Sub-Inspector Harinder. PW1 Head Constable Ram Kishan was working as duty officer on 12.11.2015 has proved the DD No. 63A(Ex.PW1/A). PW4 Vijay Singh has proved the fact of making call to the 100 number thereby informing the police about the dead FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 58 of 88 body of the deceased lying at Pusta. PW5 Constable Ankit was posted at CPCR PHQ and he has proved the call where such information was given. PW5 has also proved PCR form (Ex.PW5/A). PW 27 Constable Ramavatar has proved the fact that he had gone to PHQ and collected PCR form (Ex. PW5/A) and handed over it to the investigating officer.
86. As per the testimonies of PW28 Sub-Inspector Harinder, on 12.11.2015 on receiving of DD no.63A, he along with constable Manoj and beat staff went to Madanpur Khadar in front of B Block NTPC Jungle Area and found the headless body in mutilated condition and there was a big stone lying near the dead-body having blood-stained and a knife was also recovered from that area and he put his endorsement (Ex.PW28/A) on DD no.63A, prepared the rukka and got the FIR registered through Constable Manoj and further investigation was marked to Inspector S.K. Sharma. The above testimonies of PW28 Sub-Inspector Harinder have been corroborated by PW11 Constable Manoj, who had accompanied Sub- Inspector Harinder Singh when he reached the spot after receiving DD and he has proved the fact of receiving rukka to police station for registration of FIR. PW3 Constable Rajesh had also joined the investigation of this case on 12.11.2015 and accompanied Sub- Inspector Harender and other police staff to the place of incident.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 59 of 8887. Regarding registration of FIR, testimonies of PW1 Head Constable Ram Kishan, PW11 Constable Manoj and PW28 Sub- Inspector Harinder are relevant.
88. PW28 Sub-Inspector Harinder has proved the rukka for registration of FIR. PW11 Constable Manoj has proved the fact of taking of rukka to the police station for registration of FIR. PW1 Head Constable Ram Kishan who was working as duty officer in the police station on 12.11.2015 has proved that he had made endorsement on the rukka and got the FIR registered by the computer operator, the copy of which is Ex.PW1/B and he had given certificate (Ex.PW1/C) regarding the correctness of contents of FIR.
89. From the testimonies of PW1 Head Constable Ram Kishan, PW11 Constable Manoj and PW28 Sub-Inspector Harinder, the prosecution has been successful in proving the registration of FIR against the accused persons. During the cross-examination of prosecution witnesses and in the course of arguments, the registration of FIR against the accused persons have not been disputed by the defence counsel. No delay in the registration of FIR has been pointed out by the defence.
90. It is important to note here that there is no eyewitness of the crime committed in the present case. The prosecution had proposed one witness, namely, Firoz to prove the commission of FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 60 of 88 offence by the accused persons Mohd. Tahir and Danish and has examined him as PW2, however, during his evidence, PW2 Firoz turned hostile and did not support the case of the prosecution.
91. The prosecution has also set up the present case on the basis of last seen together theory against the accused Tahir and pursuant to the disclosure made by the accused Tahir regarding involvement of the accused Danish in the commission of crime in the present case and discovery of the blood-stained clothes of both the accused persons.
92. The Hon'ble Supreme Court in Ram Gopal v. State of Madhya Pradesh, 2023 LiveLaw (SC) 120 has analysed various judgments on last seen theory and held as follows:
6. It may be noted that once the theory of "last seen together" was established by the prosecution, the accused was expected to offer some explanation as to when and under what circumstances he had parted the company of the deceased. It is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. Of course, Section 106 is certainly not intended to relieve the prosecution of its duty to prove the guilt of the accused, nonetheless it is also equally settled legal position that if the accused does not throw any light upon the facts which are proved to be within his special knowledge, in view of Section 106 of the Evidence Act, such failure on the part of the accused may be used against the accused as it may provide an additional link in the chain of circumstances required to be proved against him. In the case based on circumstantial evidence, furnishing or non-furnishing of the explanation by the accused would be a very FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 61 of 88 crucial fact, when the theory of "last seen together" as propounded by the prosecution was proved against him.
In case of Rajender vs. State (NCT of Delhi), it was observed as under:
"12.2.4. Having observed so, it is crucial to note that the reasonableness of the explanation offered by the accused as to how and when he/she parted company with the deceased has a bearing on the effect of the last seen in a case, Section 106 of the Evidence Act, 1872 provides that the burden of proof for any fact that is especially within the knowledge of a person lies upon such person. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the court to be probable and satisfactory, and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which are specially within his/her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances."
In Satpal Vs. State of Haryana, this Court observed as under: -
"6. We have considered the respective submissions and the evidence on record. There is no eyewitness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 62 of 88 stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes- a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine."
In view of the afore-stated legal position, it is discernible that though the last seen theory as propounded by the prosecution in a case based on circumstantial evidence may be a weak kind of evidence by itself to base conviction solely on such theory, when the said theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused does owe an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence.
93. For establishing and proving the last seen together theory, the prosecution has examined PW13 Mohd. Azad, brother of the deceased and PW15 Smt. Shamina (mother of the deceased).
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 63 of 8894. As per the testimonies of PW13 Mohd. Azad, his elder brother Mohd. Shahzad was engaged in doing the work of white- wash and on 12.11.2015, his mother had told him that his brother Shahzad had not returned home, so, he asked his mother to send motorcycle to his place to come to home and then Tahir, who is accused in the present case, along with one boy, namely, Shakeel came by his motorcycle and met him and he inquired from accused Tahir as to where his brother was as he used to do work of white- wash with the deceased and Tahir had informed him that on 11.11.2015 in the evening at about 04.00 p.m., he had left Shahzad at the turn of Haldwani. It is also in the evidence of PW13 Mohd. Azad that he and Tahir had searched for Shahzad at various places but no clue was found and he inquired from his mother about the entire sequence, who informed that on 11.11.2015 after the prayer, Shahzad was taken from their house by Tahir and when he further inquired from Tahir about his brother, Tahir had misled him and his relatives that Shahzad was having an affair with the lady at Chaipur, Greater Noida and when he made inquiry from a Thekedar, he was informed that on 11.11.2015 Shahzad had come with Tahir and one Danish and demanded sweets from him as it was Diwali occasion and Tahir and Danish were having alcohol smell in their mouth. It is also in the evidence of PW13 Mohd. Azad that on sustained interrogation by the local people of the area, the accused Tahir had confessed that he had killed Shahzad in the area of Jaitpur and while he was being FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 64 of 88 questioned by local people, he had received a call from his friend Danish and one Netaji, namely, Kunwar Nadir had asked Tahir to talk with Danish and inquire about Shahzad on which Danish from the other side had asked why he was inquiring about Shahzad when he had already cut Shahzad's throat and killed him and then Tahir was handed over to police officials of ECO TECH police station and in the same night, he was called by the police officials of police station Jaitpur, Delhi and they showed him some photographs in the mobile phone and he had identified the dead-body of his brother. It is also in the evidence of PW13 Mohd. Azad that at that time, his brother Shahzad was using the mobile phone number 9990206746 which was found in the house of Tahir and he had also seen Danish once or twice with his brother Shahzad.
95. The testimonies of PW13 Mohd. Azad have been corroborated by PW15 Smt. Shamina (mother of the deceased). PW15 Smt. Shamina has corroborated the facts that his son Shahzad (the deceased) used to work of white-wash with the accused Tahir and that the accused Tahir was having a money dispute with the deceased. It is in the evidence of PW15 Smt. Shamina that on 11.11.2015, her son Shahzad was called and taken by the accused Tahir from their house. During cross-examination of PW15 Smt. Shamina, mother of the deceased, nothing has come out to dent the story of the prosecution to prove the fact that on 11.11.2015, the FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 65 of 88 deceased Mohd. Shahzad (son of PW15 Smt. Shamina) was called from her house and taken by the accused Tahir on 11.11.2015.
96. From the statement (Ex.PW15/A) made under section 161 Cr.P.C. by PW15 Smt. Shamina, mother of the deceased till the testimonies given by her during trial in the Court, the consistent case of the prosecution is that the deceased Mohd. Shahzad was called and taken along from the house of the deceased by the accused Tahir. The said assertions made by PW15 Smt. Shamina in her examination-in-chief have not been rebutted on behalf of the accused persons during her evidence and she was not cross-examined by the defence on this point. During her cross-examination, a question was put to PW15 Smt. Shamina to which she has replied as follows:
"I did not tell the police in my statement that on 11.11.2015, my son Shahzad was called and taken by Tahir from our house. I waited for my son till night but he did not respond to the calls made on his mobile phone by me. His mobile phone was found to be switched off".
97. PW15 Smt. Shamina was confronted with her statement Ex.PW15/A where these facts were not so recorded, however, she has maintained the stand that she had stated to the police that her son Shahzad was called from her house and taken by the accused Tahir on 11.11.2015. A perusal of statement of under section 161 Cr.P.C.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 66 of 88(Ex.PW15/A) of Smt. Shamina clearly reveals that she had stated in the said statement that on 11.11.2015, Tahir had called her son Shahzad from her house and taken him along and she has not been cross-examined on such statement. It is not the defence that deceased was not called from his house by the accused Tahir on 11.11.2015.
98. It is well settled law that cross-examination is a matter of substance and not of procedure, one is required to put one's version in the cross-examination of an opponent. The effect of non- cross-examination is that the statement of the witness has not been disputed.
99. It has been held by the Hon'ble High Court of Delhi in Rakesh Kumar & Ors. v. State (Delhi), 2009 (163) DLT 658 as under: -
"175. It is settled law that where a witness is not cross- examined on any relevant aspect, the correctness of the statement made by a witness cannot be disputed. (See the decisions of Supreme Court reported as State of U.P. v. Nahar Singh AIR 1988 SC 1328 and Rajinder Prasad v. Darshana Devi AIR 2001 SC 3207)."
100. Further, the Hon'ble MP High Court in Moti Lal and Others v. State of Madhya Pradesh, 1990 Crl.L.J (NOC) 125 has held that it is a well settled principle of law that when the accused does FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 67 of 88 not challenge a prosecution witness in his cross-examination on certain facts, it leads to inference of admission of that fact. In Moti Lal's case (supra), the Hon'ble MP High Court observed as follows:-
"In Velu Pillai Padikalingam v. Paramandam it was ob- served; "every cross-examiner should and can if he is care- ful indicate in cross-examination whichever part of the evi- dence given in examination-in-chief is challenged and an omission to do so would lead to the inference that the evi- dence is accepted subject of course to its being assailed as inherently improbably." Again in Sayed Aleem v. State of Karnataka it was observed that non-cross-examination of prosecution witnesses of certain facts leds to admission of that fact, circumstances could be taken for consideration. Thus, non-consideration, particularly P.W3 Achhelal and P.W.4 Bhajna, on what is being projected in the defence has been rightly held by the trial as sheer afterthought."
101. Similarly, The Hon'ble Supreme Court in Sarwan Singh v. State of Punjab, 2002 (4) RCR (Crl) 471 held as follows:
"It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted. A decision of the Calcutta High Court lends support to the observation as above. (See in this context AEG Carapiet v. AY Derderian : AIR 1961 Calcutta 359 (P.B. Mukherjee, J. as he then was)]."
102. In the light of the above testimonies and judgments in Rakesh Kumar's case (supra), Moti Lal's case (supra) and Sarwan Singh's case (supra) and the statement made by PW15 Smt. Shamina in her examination-in-chief to the effect that the deceased was called and taken away by the accused Tahir from the house of the deceased on 11.11.2015, the prosecution has been able to establish that on FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 68 of 88 11.11.2015 the deceased Shahzad was called by the accused Tahir from the house of the deceased and taken with him.
103. The dead body of the deceased Shahzad was recovered on 12.11.2015 from the jungle area in front of B-Block NTPC in Madanpur Khadar New Delhi by the police officials of the police station Jaitpur when they received an information regarding the dead body of the deceased being lied in the jungle.
104. In the light of afore-stated settled legal position regarding the last seen together theory, the deceased Shahzad was last seen together with the accused Tahir on 11.11.2015, and recovery of dead body of the deceased on 12.11.2015, being in very close proximity of time, the accused Tahir owes an explanation with regard to the circumstances under which the death might have taken place.
105. The most important piece of evidence against the accused Danish are the testimonies of PW28 Sub-Inspector Harinder Singh and PW33 ACP S.K. Sharma. PW28 Sub-Inspector Harinder Singh had first reached at the place of incident after receiving of DD No.63A dated 12.11.2015. PW33 ACP S.K. Sharma is the investigating officer in the present case. As per the testimonies of PW33 ACP S.K. Sharma, he had arrested and interrogated the accused Tahir on 15.11.2015 and during his interrogation, the FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 69 of 88 accused Tahir had made disclosure statement whereby disclosing that he along with his friend Danish had brought the deceased in Delhi on 11.11.2015 and they had killed the deceased near N.T.P.C. jungle near Madanpur Khadar due to some money dispute. PW33 ACP S.K. Sharma has also proved the disclosure statement (Ex.PW28/J) of the accused Tahir. It is also in the evidence of PW33 ACP S.K. Sharma that at the instance of the accused Tahir, they had apprehended the co-accused Danish and interrogated him and recorded his disclosure statement (Ex.PW28/M) and arrested him vide arrest memo and personal search memo (Ex.PW28/K and Ex.PW28/K).
106. The above disclosure whereby admitting their guilt by the accused persons Tahir and Danish have been made by them during police custody. The relevant provisions regarding confession are provided for under sections 25,26 & 27 of Indian Evidence Act, 1872 which read as follows.
25. Confession to police officer not to be proved- No confession made to a police officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 70 of 88[Explanation.- In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882)]
27. How much of information received from accused may be proved- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
107. It is well settled that in the light of provisions of section 25, 26 & 27 of the Indian Evidence Act, confessional statement of the accused before the police officers are inadmissible in evidence which cannot be made basis by the prosecution to obtain conviction, however, a fact discovered in an information supplied by the accused in his disclosure statement is a relevant fact that is only admissible in evidence if something new is discovered or recovered from the accused which was not within the knowledge of the police before recording the disclosure statement of the accused.
108. Another important piece of evidence against the accused Danish is the testimonies of PW33 ACP S.K. Sharma that on 16.11.2015, he had produced both the accused persons in the Court and got one day PC remand and during their PC remand, the accused persons Tahir and Danish had got their blood-stained clothes FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 71 of 88 recovered; the accused Danish got recovered one shirt and one jeans from his house and recovered articles were taken into possession vide seizure memos (Ex.PW9/N and Ex.PW9/O respectively). The testimonies of PW33 ACP S.K. Sharma regarding seizure of blood- stained clothes of the accused Danish have also been corroborated by the testimonies of PW28 Sub-Inspector Harinder Singh, who had accompanied the investigation officer at the time of such seizure. Above-said testimonies remained unrebutted during cross-examination.
109. PW-9 Sub-Inspector Lakhmi Chand was in charge of the crime-team and he along with Constable Puneet (Photographer) and Constable Chirag (Proficient) had gone to the place of incident on 12.11.2015, where he had met Sub-Inspector Harender and other police officials. As per the testimonies of PW9 Sub-Inspector Lakhmi Chand, he had inspected the spot and there was a dead body of a male person in a mutilated condition and the body was not having left hand and its head and the head and hand were found at a little distance from the body and the blood was lying near pipe of water supply and there was one blood stained stone, one water bottle having blood stains and a dagger was also found at a little distance from the body and the photographs were taken at the spot and he had lifted the blood from the body, head and hand from the spot and instructed the IO to make samples of bottle, stone and earth-control which was having blood stains and he had prepared report (Ex.PW9/A). PW22 Constable Puneet has corroborated the FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 72 of 88 testimonies of PW9 Sub-Inspector Lakhmi Chand regarding the condition of dead body of the deceased. As per the testimonies of PW22 Constable Puneet on 12.11.2015, he was posted as Constable/photographer in South East District, Crime-Team, New Delhi and on that day, he had accompanied to in-charge of Crime- Team, Sub-Inspector Lakhmi Chand, to the spot of incident and he had taken photographs of the afore-said scene of crime covering all the objects from different angles and his statement was also recorded by the investigating officer and later on, he had got developed 21 photographs (Ex.PW22/P22 to Ex.PW22/P42) from 21 negatives (Ex.PW22/P1 to Ex.PW22/ P21).
110. As per the testimonies of PW28 Sub-Inspector Harinder and PW 33 ACP S.K. Sharma, the blood-stained clothes recovered from the accused Danish were deposited in the police malkhana.
111. During their evidence, PW28 Sub-Inspector Harinder and PW 33 ACP S.K. Sharma have correctly identified the clothes, namely, blood-stained jeans and blue & yellow check shirt in the Court when produced by MHC(M).
112. PW18 Head Constable Rajesh has proved the fact that on 08.02.2016, he had taken sealed pullandas from malkhana of police station Jaitpur along with sample seal of case FIR No.816/2015 vide road certificate no.25/21/16 (Ex.PW18/A) and FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 73 of 88 deposited the sealed parcel in the office of CFSL, CBI Lodhi Colony and handed over the receipt of pullandas to MHC(M) in the police station on his return. PW21 Constable Sikander Khan has proved the fact that he had taken one sealed pullanda with one sample seal and two documents from MHC(M) and taken it vide road certificate number 24/21/16 (Ex.PW21/A) and deposited the same to FSL, CBI Lodhi Road. The testimonies of PW18 Head Constable Rajesh and PW21 Constable Sikander Khan regarding their taking of pullandas to FSL have been corroborated by PW25 Assistant Sub-Inspector Hari Singh who was working as MHC(M) in the police station Jaitpur at the relevant time. As per the testimonies of PW25 Assistant Sub-Inspector Hari Singh, on 01.02.2016, on the instruction of the investigating officer Inspector S.K. Sharma to send one sealed exhibit to CFSL CBI Lodhi Road, New Delhi, he had handed over one sealed exhibit to Constable Sikander Khan through RC No.24/21/16 dated 01.02.2016 Ex.25/A and Constable Sikander Khan had got the exhibits deposited at CFSL CBI Lodhi Road, New Delhi and had come back at police station Jaitpur and had handed over the receiving receipt to him and the endorsement of receiving at CFSL CBI Lodhi Colony was encircled in red at point A and on 08.02.2016, on the instruction of the investigating officer Inspector S.K. Sharma to send the various sealed exhibit to CFSL CBI Lodhi Road, New Delhi, he had handed over one sealed exhibit to Constable Rajesh through RC No.25/21/16 dated 08.02.2016 FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 74 of 88 Ex.25/B and Constable Rajesh had got the exhibits deposited at CFSL CBI Lodhi Road, New Delhi and had come back at police station Jaitpur and had handed over the receiving receipt to him and the endorsement of receiving at CFSL CBI Lodhi Colony was encircled in red at point A.
113. A perusal of road certificate no.25/21/16 (Ex.PW18/A) reveals that the blood-stained clothes recovered from both the accused persons are mentioned at serial number 9 & 10 which are reproduced as follows:
9) One sealed pullanda containing "inner body warmer written over Amul" of the accused Tahir (Mark-9) sealed with seal of HS.
10) One sealed pullanda containing "check one shirt color blue & yellow and one blue & yellow and one Jean Pant Blue color"
of the accused Danish (Mark-11) sealed with the seal HS.
114. As per the FSL report (Ex.PW29/A), in the description of parcel(s)/exhibit(s), blood-stained clothes of the accused persons which they were wearing at the time of incident are, inter-alia, mentioned at serial number Ex.9 (accused Tahir) and Ex.10a and Ex.10b (accused Danish) as follows:
Parcel-9: One sealed cloth parcel sealed with the seals of "HS". It contained exhibit-9.FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 75 of 88
Exhibit-9: One dirty grey colored full sleeved upper warmer having specks of reddish brown stains at few places described as "Inner body warmer written over Amul of the accused Tahir (Mark-9)".
Parcel-10: One sealed cloth parcel with the seals of "HS". It contained two exhibits which were marked as exhibits-10a and 10b in the Biology division of this Laboratory.
Exhibit-10a: One blue and yellow colored checked full sleeved shirt having few reddish brown stains.
Exhibit-10b: One blue colored jean pants having few reddish brown stains.
115. PW31 Inspector Sanjay Sinha, who was posted as S.H.O. of police station Jaitpur on 14.10.2017 has proved the facts that on that day, he had collected FSL result (Ex.PW29/A) and he had filed supplementary police report after approval from the competent authority.
116. The FSL result has been proved by PW29 Dr. B.K. Mohapatra, PSO Biology, CFSL, Lodhi Road, New Delhi. The result of examination in the FSL report Ex.PW29/A is reproduced as follows:
8. Result of Examination:
"8.1 Blood was detected on the exhibits 1, 2, 3, 4, 5, 7, 8, 9, 10a, 10b, 12, 13, 14, 16, 17, 18, 19, 20, 21a, 21b, 21c, 21d, 21e, 22 &
23. 8.2 Blood could not be detected on the exhibits- 6, 11 & 15.FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 76 of 88
8.3 DNA profile generated from the source of exhibits- 4 (Stone), 7 (Cotton wool swab), 8 (Plastic bottle), 10a (Shirt), 10b (Jeans pant), 12 (Cloth piece), 13 (Tissue), 14 (Nail clipping), 16 (Dried grass), 17 (Tissue), 18 (Anal swab), 20 (Tissue), 21a (Jeans), 21b (Underwear), 21c (Shirt), 21e (Bedsheet) and 23 (knife) was found to be consistent with each other. The said DNA profile was also found to be consistent as biological child of the individual contributing to the source of DNA available on exhibit- 22 (Blood stained gauze).
8.4 DNA Profile was generated from the source of exhibit 9 (Upper warmer) and the same is documented.
8.5 DNA Profile could not be generated from the source of exhibits 1, 2, 3, 5, 6, 11, 15, 19 and 21d.."
117. In the light of the FSL report (Ex.PW29/A), it is established that the blood found on the blue and yellow colored checked full sleeved shirt and one blue colored jeans of the accused Danish which he was wearing at the time of incident, matched with the blood of the deceased.
118. Since, pursuant to the disclosure statements made by the accused persons, their blood-stained clothes were recovered and blood found on such clothes had matched with the blood of the which fact has been duly proved the FSL expert (PW29 Dr. B.K. Mohapatra) by way of his FSL report (Ex.PW29/A), therefore, such fact discovered in an information supplied by the accused in his disclosure statement is a relevant fact and is admissible in evidence.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 77 of 88119. As per the testimonies of PW33 ACP S.K. Sharma, he has also prepared pointing out memo (Ex.PW33/F) where Danish has thrown his mobile phone.
120. Another important piece of evidence produced by the prosecution is the Call Detail Reports (CDRs) of the deceased Shahzad and the accused persons Tahir and Danish. As per the testimonies of PW33 ACP S.K. Sharma that during the course of investigation, he had also collected CDRs of the accused persons as well as the deceased vide applications (Ex.PW33/G to Ex.PW33/K). PW33 ACP S.K. Sharma has also proved the signatures on the above applications.
121. The Call Detail Reports (CDRs) of the deceased as well as the accused persons have been proved by the prosecution by calling Nodal Officer/Alternate Nodal Officers of the concerned telecom companies, namely, PW7 Pawan Singh, PW12 Saurav Aggarwal, PW20 Yogesh Tripathi.
122. PW7 Pawan Singh is the Nodal Officer from Idea Cellular Limited and he has brought CDRs of mobile phone numbers 8750395165 and 8744965116 issued in the name of Ilias son of Khachedu resident of C-134, Block-CJ, J Cluster Madanpur Khadar Extension, Delhi and Mohd. Aslam son of Abdul Hadi resident of B-970, B Block Madanpur Khadar Extension, New Delhi. PW7 FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 78 of 88 Pawan Singh, Nodal Officer has also proved Customer Application Forms (Ex.PW7/A and Ex.PW7/B) (CAFs) of the above-said mobile numbers and as per his testimonies, customers had given copy of election ID card at the time of issuance of SIM cards. PW7 Pawan Kumar has also proved CDR of mobile phone number 8750395165 running into 6 pages from 01.11.2015 to 16.11.2015 (Ex.PW7/C colly.) and CDR of mobile number 8744965116 running into 5 pages from 01.11.2015 to 16.11.2015 (Ex.PW7/D colly.) and the certificate (Ex.PW7/E) under section 65B of Indian Evidence Act regarding above-said CDRs and as per his testimonies, the SIM of mobile phone number 8750395165 has been issued in the name of Ilias son of Khachedu, who is father of the accused Danish. A perusal of CDR (Ex. PW 7/C) of mobile number 8750395165 reveals that the location of the said mobile phone on 11.11.2015 at 12:11:30 hrs and at 12:45:07 hrs, was at Madanpur Khadar and at 16:02:36 hrs and at 16:02:40 hrs, it location had shifted to village Haldwani, District G.B. Nagar and again at 17:26:26 hrs, its location showed at Madanpur Khadar Extension.
123. Call Detail Records (Ex. PW12/C), CAF (Ex. PW 12/A) and Election ID (Ex. PW 12/B) of the customer qua mobile phone numbers 9990206746 of the deceased Shahzad have been proved by PW 12 Saurabh Aggarwal, Nodal Officer from the Vodafone Mobile Services Ltd. A perusal of CDR (Ex. PW12/C) reveals that on FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 79 of 88 11.11.2015 at 11:24:01, 11:34:29, 11:36:30, 14:12:48, location of mobile phone of the deceased was at Haldwani G.B. Nagar U.P. however at 18:25:09 on the same day, its location changed to Gali No. 08 Madanpur Khadar Extension New Delhi.
124. From the CDRs (Ex.PW7/C) of the accused Danish and (Ex. PW 12/C) of the deceased, the location of the both the mobile phones were at the Village Haldwani, District G.B. Nagar during day hours and it changed to Madanpur Khadar Extension, New Delhi during evening hours on 11-11-2015, the date on which the deceased went missing from his house, and probably murdered on that date, which is also an additional circumstance/fact discovered from the disclosure statements made by the accused persons and has been proved by evidence produced by the telecom companies.
125. From the testimonies of PW13 Mohd. Azad (brother of deceased) and PW15 Smt. Shamina (mother of the deceased), it is proved that the accused Tahir and the deceased were doing the work of white-washing together with the deceased. During the cross- examination of PW13 Mohd. Azad, a question was put to him and he replied that it is correct that his brother Shahzad used to tell him that there was some amount due to him from Tahir but he had not told if it was Rs.40,000/- or more. From such question put to PW13, it has been admitted on behalf of the accused Tahir there was some money FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 80 of 88 dispute between the accused Tahir and the deceased. From their testimonies, it is also proved that there was some money dispute between the accused Tahir and the deceased Shahzad. From the testimonies of PW13 Mohd. Azad (brother of deceased) and PW15 Smt. Shamina (mother of the deceased), the prosecution has also been successful to prove the motive behind commission of crime.
126. For proving the injury on the person of the deceased, PW23 Dr. Rajeev Ranjan CMO has proved the MLC (Ex. PW23/A) of the deceased. PW30 Dr. Kulbhusan, Assistant Professor, Department of Forensic Medicine, AIIMS, New Delhi has proved the Postmortem Report (Ex.PW30/A) and as per his testimonies he has conducted the Postmortem examination of the deceased Mohd. Shahzad and all the injuries were mentioned in the postmortem report and the cause of death could not be ascertained with the parts of body available for examination. PW31 Inspector Sanjay Sinha has proved the supplementary police report. As per testimonies of PW31 Inspector Sanjay Sinha, after collecting FSL Result (Ex.PW29/A), he had filed supplementary police report after approval from the competent authority.
127. PW23 Dr. Rajeev Ranjan has proved the MLC (Ex.PW23/A) and as per his testimonies on 12.11.2015, he was posted at AIIMS Hospital and one unknown patient was brought to FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 81 of 88 casualty by Constable Rajesh at AIIMS Hospital and the condition of the patient on arrival was brought dead and on examination, pulse was not palpable, head separated and crushed from the body at the level of cervical spine and separated from the body male genital part and the dead body referred to forensic department. As per testimonies of PW23 Dr. Rajeev Ranjan, he had prepared the MLC (Ex.PW23/A) of the deceased.
128. The postmortem of the deceased was conducted by PW30 Dr. Kulbhushan Assistant Professor of Department of Forensic Medicine, AIIMS, New Delhi. As per the testimonies of PW30 Dr. Kulbhushan on 15.11.2015, he along with Dr. Mantaran and Dr. Piyush had conducted postmortem examination on the dead body of one Mohd. Shahjad, 22 years male pertaining to case FIR No. 816/15 police station Jaitpur and after the postmortem examination, the postmortem report No.1354-15 (Ex.PW30/A) dated 15.11.2015 was prepared bearing his signature at point A and of Dr. Mantaran at point B and of Dr. Piyush at point C on each page and all the injuries were mentioned in the postmortem report and the cause of death could not be ascertained with the parts of body available for examination and the time since death could also not be ascertained as the major parts of the dead body were missing as mentioned in postmortem report in column no.5. It is also in the evidence of PW30 Dr. Kulbhushan that piece of muscle tissue from thigh, clothing FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 82 of 88 material, vegetative matter over the body, arm band around right arm, nail clippings of left and right hand, anal swab, control swab, scalp hair from the head, muscle tissue from base of thumb of left upper limb and muscle of thigh have been preserved and sealed in pullanda which were given to the police along with sample seal.
129. The postmortem of the deceased was got conducted by PW28 Sub-Inspector Harinder Singh and as per his testimonies, he had gone to the mortuary of the AIIMS Trauma Center and prepared the inquest paper (Ex.PW28/G) and postmortem of the deceased was got conducted. It is also in the evidence of PW28 Sub-Inspector Harinder Singh that the doctor had handed over the exhibits to him and he had sealed the same with the seal of "HS" and had deposited the same in the malkhana. The above testimony of PW28 Sub- Inspector Harinder Singh has been corroborated by PW24 Constable Jagram who had joined the investigation of this case and had accompanied Sub-Inspector Harender to Mortuary of AIIMS Hospital for getting the postmortem on the body of deceased and he has proved that doctor had given 11 sealed pullandas along with sample seal to Sub-Inspector Harender Singh who had seized them vide seizure memo (Ex.PW-24/A).
130. Regarding identity of the accused Danish, PW28 SI Harender Singh, PW33 ACP S.K. Sharma (Investigating Officer) and FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 83 of 88 PW13 Mohd. Azad have correctly identified the accused Danish in the Court.
131. For proving the identity of the deceased/dead body testimonies of PW13 Mohd. Azad, brother of the deceased, PW15 Samina, PW26 Sub-Inspector Dinesh and PW33 ACP S.K. Sharma are relevant.
132. As per the testimonies of PW26 Sub-Inspector Dinesh, on 14.11.2015, he along with Constable Purshottam and Constable Mukhtiyar had gone to Noida and they had visited many areas and police stations at Noida along with hue and cry notice and the photographs of the deceased Shahzad; they had gone to police station Eco Tech Greater Noida, Gautam Budh Nagar, UP and had shown the photographs of deceased Shahzad to some persons, where one person, namely, Mohd. Azad had told him that his brother was missing since 11.11.2015 and Mohd. Azad had also identified the clothes and sandals of his missing brother, namely, Shahzad. It is also in the evidence of PW26 Sub-Inspector Dinesh that Mohd. Azad had told them that the accused persons, namely, Tahir and Danish had taken his brother Shahzad with them to Delhi for getting some work to him and since then his brother had not come back to his house and he had instructed Mohd. Azad and his family members to come to AIIMS Hospital Delhi to identify the dead body. PW13 FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 84 of 88 Mohd. Azad, brother of the deceased has corroborated the testimonies of PW26 Sub-Inspector Dinesh regarding identification of the deceased and it is in his evidence that he had identified the dead body of his brother, its hand and head were separated from rest of the body. It is also in the evidence of PW13 Mohd. Azad that he had also identified dead body of his brother in AIIMS hospital and had received the dead body from there and did the last rites of burial at their village Haldani. PW13 Mohd. Azad has also proved his statement (Ex.PW13/A) regarding identification of dead body and he has also identified his signature on that document. Even otherwise, the identification of the deceased has been proved by the scientific evidence. It is in the evidence of PW15 Smt. Samina that police officials of Delhi had taken her to a doctor where her blood sample was taken. PW33 ACP S.K. Sharma, the investigating officer of this case has corroborated that he had got blood sample of mother of deceased vide seizure memo (Ex.PW33/L). As per the testimonies of PW29 Dr. B.K. Mohapatra and in the light of his report bearing No. CFSL-2016/B-0174 (Ex.PW29/A) dated 08.08.2016 the same DNA profile of the deceased was found to be matching as biological child of the individual (mother of the deceased).
133. From the testimonies of PW13 Mohd. Azad, brother of the deceased, PW14 Constable Mukhtar Ahmed, PW15 Samina, FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 85 of 88 PW26 Sub-Inspector Dinesh and PW33 ACP S.K. Sharma, the identity of the dead body of the deceased Shahzad is duly proved.
134. PW19 Inspector Mahesh Kumar has proved the scaled site-plan (Ex.PW19/A) of the place of incident and as per his testimonies, on 25.01.2016, he was called by Inspector Sunil Kumar at police station Jaitpur from where they had gone to the spot of incident at NTPC Jungle, near B Block, Madanpur Khadar Extension, New Delhi where at the instance of Inspector Sunil Kumar, he had taken rough notes and measurements of the place of incident, thereafter, on 03.02.2016, in his office, he had prepared scaled site-plan (Ex.PW19/A) of the place of incident on the basis of rough notes and measurements and the rough notes were destroyed after preparation of the scaled site-plan.
135. It is important to note here that the accused Danish has not examined any witness in his defence.
136. It is noteworthy here that nothing material has been brought to my notice from the cross-examination of above prosecution witnesses for suspecting the truth of the version given by either of them and their testimonies have remained consistent to prove.
FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 86 of 88137. From the evidence led on behalf of the prosecution which has been discussed herein above, the prosecution has been successful in proving that (i) on the date of incident, the accused Tahir had called the deceased Shahzad from his house and taken his along on 11.11.2015, (ii) the dead body of the deceased was found on 12.11.2015 i.e. in close proximity of time when the deceased was last seen together with the accused Tahir, ( iii) the accused Tahir was arrested and made disclosure confessing his guilt and also about involvement of the accused Danish in the commission of offence,
(iv) pursuant to their disclosure statements, the accused persons got recovered their blood-stained clothes, (v) the blood found on the clothes of both the accused persons persons matched with the blood of the deceased, and (vi) location of the mobile phones of the deceased and the accused Danish during day hours were at same place and changed simultaneously to the place of incident, ( vii) motive to commit the offence is established, (viii) the accused persons owe but did not tender any reasonable explanation of their conduct. The accused Danish has not been able to spell out any plausible reason for their false implications.
138. There is no direct or cogent evidence to convict the accused Danish for the offence under section 201 of the Indian Penal Code, 1860. therefore, the accused Danish is hereby acquitted for the FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 87 of 88 offence punishable under section 201 of the Indian Penal Code, 1860.
139. To sum up, in view of above discussion, the prosecution has proved beyond reasonable doubt the charge under section 302/34 of the Indian Penal Code against the accused Danish, so the accused Danish is found guilty of having committed the said offence and hence, he is convicted of offence punishable under sections 302/34 of the Indian Penal Code, 1860.
140. Let the convict be heard on the question of sentence.
Pronounced in the open Court (DR. RAKESH KUMAR)
th
on 24 of December, 2024. Additional Sessions Judge, (FTC)-02, South-East, Saket Court Complex, New Delhi(ag) FIR no. 816/2015 PS Jaitpur State v. Mohd. Tahir & Anr. Page 88 of 88