Delhi District Court
State vs Firoz @ Gota on 9 March, 2022
IN THE COURT OF SPECIAL JUDGE (NDPS) cum
ADDITIONAL SESSIONS JUDGE, NORTH EAST
DISTRICT, DELHI
Sessions Case No. 44597/2015
CNR No. : DLNE01-000413-2015
FIR No. : 989/2014
PS. : Gokalpuri
U/s. : 302/363/201 IPC
State Versus Firoz @ Gota
S/o Zamaluddin
R/o D-35, Gali No. 4,
Brijpuri, Delhi.
Charge Sheet received on committal : 23.04.2015
Arguments completed on : 09.03.2022
Judgment Announced on : 09.03.2022
JUDGMENT:
1. The facts of the present case as per record are that on 30.09.2014, report was made to the police about missing of a girl aged 5 years from Chand Bagh, Gokulpuri area and police came into action and the intimation was dispatched to local police who recorded the information vide DD No. 87B and the inquiry was given to ASI Ompal Singh. The inquiry officer reached to the place mentioned in the information where complainant Dharamraj Dubey met him and his statement was recorded that SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 1 of 15 his daughter aged 5 years, fair complexion, 3 feet in height, slim body who had worn white colour top and blue colour panty is missing from 08:40 pm in front of his house. The complainant stated that she was searched by his wife and neighbours and when he returned to house at 09:10 pm, he reported the matter to the police on 100 number. The complainant raised suspicion on a 22 years old boy who was freaking in the street for the last 2-3 days. The case was registered u/s 363 IPC and the investigations were initiated by ASI Ompal Singh. The missing girl was searched and the CCTV installed in C-1/105 was checked and it was seen that one boy aged about 22 years wearing pant-shirt was talking with the girl and taking her with him. A footage was taken from owner Umesh in two CDs and the girl was searched and the announcement was also made through loudspeaker. The information was uploaded on the Zipnet and the informers were also deputed.
1.1 An information was received on 04.10.2014 about a dead body of a child thrown near Johripur Naala near Police Chowki, U.P. Police Loni vide DD No. 9A and ASI Ompal Singh reached there and in the meanwhile, SHO also arrived there. The place was inspected by the Crime Team and the photographs were taken. During inquiry, it came to the knowledge of the police officials that the dead body is of missing girl. The dead body was in a plastic bag and the said bag was seized and the body was sent to mortuary for its preservation. On 05.10.2014, medical board was formed and post-morteum was conducted on 07.10.2014. The viscera, clothes and other samples for expert opinion were preserved and the body was handed over to the family members for last rites.
SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 2 of 15 1.2 The investigations were handed over to Inspector Dharamdev after inserting Section 302/201 IPC in the case and the most of the CCTVs were searched and footage were taken and on their basis, photo of suspect was developed and the same were pasted in the nearby colonies. On 05.11.2014, one secret informer informed the IO that one boy namely Firoz @ Gota may be similar to the boy whose photos have been pasted and that he is missing from his house for the last so many days. The IO reached to house no. 35, D- Block, Gali No. 3 where it was found closed and no information was received from the neighborhood. Upon repeated inquiries, telephone numbers of suspect were collected and their call data record was collected. The blood sample of the complainant was collected and was seized. 1.3 On 01.12.2014 upon change of investigating officer, raid was conducted at the house of said suspect Firoz @ Gotaand notice u/s 160 Cr.PC was served upon his father but he did not join the investigations and on 06.12.2014, one informer apprised the IO that the suspect is trying to leave Delhi and that he will come to Brijpuri stand. Upon receiving the information, raiding party was prepared which reached to the place at the instance of secret informer and apprehended the suspect. He was interrogated and initially he did not cooperate but later on, made his disclosure statement that he kidnapped the girl. He disclosed that he later on came to know that her father is working at a Milk diary so his plan was going to fail and when the girl started crying in night, he shut her mouth with his hands due to which she died. He further disclosed that he put the dead body in a plastic bag in Johripur Naala. The suspect Firoz @ Gota was arrested and the remaining investigations were carried out. The SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 3 of 15 police approached the court for conduct of TIP of the accused but he refused to join it. The samples were deposited with the FSL for their examination. Upon completion of the investigation final report in the form of charge sheet was filed before the Ld. Metropolitan Magistrate.
2. The Court received the case upon committal on 23.04.2015 and the charge for the offences punishable u/s 363/302/201 IPC was framed against the accused on 04.07.2015 by Ld. Predecessor of this Court to which the accused pleaded not guilty and claimed trial.
3. Prosecution have examined thirty one witness in support of the case during the trial. PW-18 ASI Brahm Singh recorded DD No. 87 B upon receiving the information about missing of girl. PW-7 HC Mohd. Yameen was deputed on PCR Van and he after receiving information on 30.09.2014 went to the house of complainant and conveyed the information to the PCR. SI E. S. Yadav who was incharge of the Crime Team who inspected the scene of crime where dead body was found on 04.10.2014 is examined as PW-1. PW-2 Ct. Sanjay Kumar was the member of crime team and he took 12 photographs of the dead body of the child on 04.10.2014. PW-3 Ct. Adesh Kumar was posted in the PCR on 04.10.2014 and he received the information regarding dead body of female child and recorded the same. PW-8 ASI Birju was deputed on PCR Van on 04.10.2014 and he received a call about the dead body in Naala and he reached with the staff there and in his presence, SHO and ASI Ompal Singh reached there.
3.1 The complainant has appeared in the witness box as PW-4 whereas his wife is examined as PW-5. Prabhunath Dubey SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 4 of 15 is examined as PW-6 who is brother of the complainant and assisted him in search of missing girl and upon his application, the medical board was constituted for postmortem of the dead body. PW-10 is the neighbor of the complainant who provided his telephone to the brother of the girl to make a call to the police. Sh. Umesh Singh, owner of the house from where CCTV footage were taken is examined as PW-20.
3.2 PW-11 Dr. Arvind Kumar, PW-12 Dr. Anil Kohli and PW-13 Dr. N. K. Aggarwal were the members of the board which was constituted for conducting the postmortem upon the dead body and after conducting the postmortem gave their report. PW- 16 provided the call details of telephone which was subscribed to Sh. Firoz Khan S/o Jamalluddin R/o D-35, Gali No. 4, Brijpuri, Dayalpur, North-East, Delhi 110094. The accused refused to join the TIP in the proceedings carried out by PW-21 Sh. Sunil Gupta who was posted as Ld. Metropolitan Magistrate, Karkardooma Courts on 07.12.2014. PW-26 Dr. C. P. Singh examined the sealed parcel on 13.05.2016 and gave his report after examining the CCTV recording in CDs that there was no indication of any form of alteration in the identified video shot on the basis of frame by frame examination.
3.3 PW-22 Ct. Surender Singh received sealed box of viscera, jar and parcel having seal impression 'AK' with envelops and sample seal from mortuary on 07.10.2014 and handed over the same to SI Ishwari Prasad. PW-24 Ishwari Prasad was the investigating the matter on 05.10.2014 and through him on 06.12.2014 application for constitution of Board of Doctors for the postmortem on the dead body was given to the authorities. He was member of investigating team which conducted the SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 5 of 15 investigation on 06.12.2014 and the accused was arrested. On 27.11.2014, he produced the complainant in the hospital for collection of blood sample and sealed the parcel of blood sample and deposited the same with MHC(M).
3.4 PW-14 HC Urmila, PW-15 Ct. Suman Singh, PW-17 Inspector Mahesh Kumar, PW-23 HC Budh Prakash and PW-25 Ct. Mohit joined the investigations on different occasions. PW-19 Ct. Nishant deposited one box sealed with the seal of 'AK' handed over to him by MHC(M), PS Gokulpuri in FSL, Rohini on 15.12.2014. PW-27 Inspector Dharamdev investigated the matter on 10.12.2014 and 05.12.2014. PW-29 HC Vijay pal was posted as MHC(M) on 07.10.2014 and with him, sealed viscera peti, one pullanda, one jar with three envelops along with sample seal were deposited on 07.10.2014 and on 06.12.2014 personal search articles of the accused were handed over to him and on 15.12.2014, he gave the sealed viscera peti along with sample seal to Ct. Vikas and has produced the register maintained in the police station. PW-28 SI Ompal Singh was the initial investigating officer and investigated the matter on 30.09.2014 and 04.10.2014. Inspector Rambir has been examined as PW-30 by whom the investigations were carried out on 01.12.2014, 06.12.2014, 08.12.2014, 09.12.2014 and 15.12.2014. ASI Yashpal is examined as PW-31 who was working as MHC(M) on 13.05.2016 and one sealed pullanda was handed over to him by Inspector Rambir Singh on that day which was handed over by him to Ct. Rajesh on the same day to deposit it with FSL. On 03.06.2016, HC Sushil handed over to him one pullanda containing cassette and FSL result after collecting the same from FSL which was handed over to Inspector Rambir by him on SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 6 of 15 04.06.2016. The witness made the entries in the register about the receiving and handing over the pullanda and produce the register during his testimony.
4. The accused in his examination u/s 313 Cr.PC has denied his involvement and stated that the witnesses have been falsely planted and their statements are manipulated by the IO to support the case and he was lifted by the police on 05.12.2014 from the shop of a cable operator when he went there to make a complaint about the cable connection installed at his house. He stated that his signatures and thumb impressions were taken forcibly by police during police custody on several blank/printed forms. He had denied that he visited the place ever. He examined one witness in his defence.
5. I have heard the submissions as made by learned Additional Public Prosecutor for the State and learned Counsel for accused and have gone through the file with their assistance.
6. It is submitted by Ld. PP that the minor daughter of the complainant was taken by the accused from the street and thereafter her dead body was recovered and the medical board constituted for conducting postmortem of the body has given the cause of death as asphyxia as a result of antimortem drowning. It is further submitted that the witnesses have deposed that the accused took the deceased with him from the street and his said act was recorded in the CCTV camera installed in the house of his neighbourer Umesh Singh and the witnesses have identified the accused as the person who is taking the girl with him. It is further submitted that as the girl was seen alive in the company of accused last time, then the accused has to explain the conduct, but he has not given any explanation. It is submitted that the SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 7 of 15 prosecution has successfully proved its case by examining the witnesses that the girl was taken by the accused from the Street without consent of her parents and thereafter the accused has murdered him by throwing her putting in a plastic bag in naala. It is submitted that the testimony of the witnesses about the identification of the accused is consistent and reliable.
7. It is submitted by the Ld. Counsel for accused that it is the prosecution upon whom burden lies to prove the case beyond reasonable doubt and the witnesses examined by the prosecution have not seen the accused taking the girl with him. It is further submitted that the prosecution is merely relying upon CDs but the contents of the CDs have not been proved as per law and no reliance can be made of the contents of the CDs. It is further submitted that the prosecution has not proved that the alleged CCTV cameras whose footage was taken into CDs were installed in the street and that the alleged clip pertains to the place of incident. It is further submitted that there was no opinion about the cause of death with the chargesheet and the cause of death given by the witnesses while their examination in the Court cannot be considered.
8. It is submitted by Ld. APP for the State that the contents of the CDs were examined by the expert from the FSL, Rohini and the official who examined the CDs have been examined during the trial and he has testify that there was no indication of any form of alteration in the identified video shot on the basis of frame by frame examination. It is submitted that the testimony of the witnesses about the cause of death made before the Court is reliable and can be considered by the Court as at the time of filing of the final report, the opinion was not collected.
SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 8 of 15
9. As per testimony of parents of the girl and the members of the medical board, the age of the girl was about 5 years, as such the girl was minor. Mother of the girl has appeared in the witness box as PW-5 and she deposed that on 30.09.2014, her daughter was missing from outside her house since 08:40 pm and she was searched but could not be found and she informed her husband about it. Father of the girl has appeared in the witness box as PW-4 and he deposed that on 30.09.2014 at about 09:00 pm, his wife came to him and informed that their daughter is not traceable and that she had already searched in the area but she was not traceable. The father also traced his daughter and with the help of public person but she was not traced out. It is deposed by mother of the girl that her husband made a call at 100 but father has deposed that someone made call to the police at 100 number. The inconsistency in the testimony of parents of the girl on this aspect is immaterial as police was informed and police official attended the call and reached at the place.
10. Father of the girl has deposed that he also saw the CCTV footage which was installed just in front of the house of Nanhe Thakur which was situated in front of their house and he saw that one male person aged about 20-23 years was following his daughter continuously while she was playing and thereafter he took away his daughter holding her finger.
11. The prosecution has also examined one Prabhu Nath Dubey who is brother of the father of the girl and he deposed that on 30.09.2014, his niece was missing and he along with his bhabhi searched her in the area but girl was not found. He also deposed that he with his brother, police official, other family SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 9 of 15 members and neighbours seen the CCTV camera of Umesh and that he saw that accused came in the gali and took Mehak after giving something to her. It is the contention of the counsel for the accused that this witness is planted witness and that in the cross examination, he stated that he had taken CCTV footage in pendrive whereas no other witness has claimed that CCTV footage had taken in the pendrive.
12. The owner of the house in which the CCTV cameras were installed has appeared in the witness box as PW-20 and he deposed that he had installed two CCTV cameras on the main gate of his house for security purpose which were functioning 24 hours and recording live videos of the street. He further deposed that Sh. Dharamraj Dubey was his neighbour and his daughter was missing on 30.09.2014. He deposed that police officials including SHO and ACP PS Gokulpuri saw the CCTV footage and that one boy who was wearing pant shirt was seen in the footage while taking girl with him. The witness deposed that he prepared two CDs from his DVR of the recording and handed over it to police officer and he signed on both the CDs. The witness has identified the CDs produced during the trial as the same CDs which were prepared by him and given to the police.
13. The contents of the CDs have examined by PW-26 Dr. C. P. Singh, Assistant Director (Physics), FSL, Rohini. During the examination of the CDs, the witness marked them as Ex. 1a and Ex. 1B. As per deposition of the witness, the CDs were containing one identified video shop each in VCD format. The witness deposed that there was no indication of any form of alteration in the identified video shot on the basis of frame by frame examination.
SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 10 of 15
14. The prosecution has played both the CDs during the trial and the contents are put to the witnesses. The duration of CD-1 MO1 is 59 minutes and the visibility of the accused in the footage is pointed by the witnesses at 14.23 minute, 14.28 minute, 16.04 minute, 23.25 minute, 28.29 minute and 36.25 minute. At 40.11 minute, the accused is seen taking the girl with him. The witnesses have identified the accused as the person visible in the CD taking the girl with him.
15. It is the contention of Ld. Counsel for the applicant that the witnesses have admitted that the date and time is not appearing in the footage. It is further argued that the number of the house of parents of the girl is also not visible in the clipping and it cannot be said that the clipping is of the street in which the house of the parents of girl situates. The witnesses i.e. parents of the girl and the owner of the house where CCTV cameras were installed have disclosed their addresses during their testimony and PW-20 has deposed that one medical shop in front of house of girl is visible. Considering their testimony, it can be safely deduced that the contention raised by the accused in regard to the place is merit less and that the footage is of the street in which the house of the girl situates. PW-20 has deposed that the actual time was recorded in the original CCTV installed in his system but IO had taken a copy of the relevant period and therefore, the actual time recorded in the system is not being displayed in the CCTV footage played before the Court. It is the contention of the Ld. PP in this regard that the CD was prepared by the witness who as per his testimony is not having any technical training in handling CCTV system, it might be possible that while copying the contents from the DVR due to the system setting, the date and SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 11 of 15 time of the clipping is not recorded in the CD. Each and every technological device is having its own settings and the appearance of the details of the date and the clipping may be set by the user. Thus, it is not necessary that the date and time of the recording will always appear in the footage or its copy taken from the device. Considering the expert opinion given about the footage contained in the CDs, the plea about non disclosing of date and time is considered meritless.
16. It is the contention of the Ld. Counsel for the accused that DVR was not seized and in the absence of DVR, no reliance may be placed on the CDs. It is submitted by Ld. APP that PW-20 Umesh has deposed that he prepared two CDs from his DVR of the recording and handed over it to police officer and he also signed on both the CDs. The CDs are examined by the expert and the video shot in the CDs is found without having any alteration and that the CDs produced before the Court and played during the trial are also identified by the witness with his signatures. It is submitted that it was the duty of the investigating officer to collect the DVR and for the lapses of investigating officer injustice to the victim cannot be made on the technicalities. It is submitted that the deposition of the witness is sufficient to prove the recording. The best evidence was to be collected by the investigating agency and the IO PW-28 collected two CDs from the owner of the premises where CCTV cameras were installed and he also took the certificate Ex. PW-20/B in this regard. Admittedly the evidence produced before the Court in respect of CCTV recording is not primary evidence, however, the testimony of PW-20 that he prepared two CDs from his DVR of the recording and gave to the police officer when is considered SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 12 of 15 with the testimony of PW-6, the expert witness who has not found any form of alteration in the video shot, it can be said that the prosecution has proved the recording of the incident of taking away of girl by the accused.
17. Considering the testimony of PW-4 Dharamraj Dubey, PW-5 Smt. Sarita, PW-6 Prabhu Nath Dubey and PW-20 Umesh in which they are identifying the accused as the person who took the girl with him on 30.09.2014 from the street, I am of the opinion that the prosecution is able to establish the fact of taking away the minor girl from the custody without the consent of her guardian constituting the offence of kidnapping as described by Section 361 IPC which is punishable under Section 363 IPC.
18. As per evidence on 04.10.2014, message was received to the police about a dead body in Johripuri naala. The dead body was identified by the witnesses as of Baby Mehak, daughter of PW-4 and PW-5, who was missing and was taken by the accused on 30.09.2014 from the street in front of her house. The postmortem of the body of the girl by conducted by medical board consisting of PW-11 Dr. Arvind Kumar, PW-12 Dr. Anil Kohli and PW-13 Dr. N. K. Aggarwal. The postmortem was conducted on 07.10.2014 and its report Ex. PW-11/A was given by the board, as per the testimony of these witnesses, they opined that time since death was about 7 days and the board withheld the cause of death for want of report of chemical analysis of viscera. During the testimony of the doctors, the chemical viscera analysis report bearing no. FSL2014/C-9133 dated 30.09.2015 available on judicial file was put to the witnesses and they opined that the cause of death was asphyxia as a result of antimortem SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 13 of 15 drowning. It is not necessary that the viscera report was required to be put to the doctors prior to filing of the final report and that the opinion of the board given during the trial cannot be considered. As per testimony of doctors, the death of the girl is not natural. The intimation received about the dead body of a child in a naala was attended by PW SI Ompal Singh and he was accompanied by PW-22 Ct. Surender Singh and PW-24 SI Ishwari Prasad. As per deposition of the witnesses, the dead body of the child was found lying in a naala and half portion of the dead body was inside a gunny bag. The medical board opined that on dissection of lungs, there was thick blackish mud was present in bronchus primary and secondary bronchi and bronchiole of right lung. The board also found that skull sutures were separated due to decomposition and brain was liquefied due to composition but dural membrane was intact. The findings of the medical board and the testimony of the members indicates that the girl was thrown in naala in bag.
19. It is the contention of the Ld. APP that the girl was seen alive last time in the company of accused and now as per requirement of the law, it is to be explained by the accused that after taking the girl with him, what happened with the girl. It is further submitted that the accused has not explained the facts and thus, inference is to be drawn against the accused that he put that girl in the bag and throw the same in the naala due to which the girl died by drowning.
20. It is propounded by a catena of judgments that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that the SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 14 of 15 possibility of any person other than the accused being the author of the crime becomes impossible. Case law titled Mohd. Azad alias Samin vs. State of West Bengal 2008 (15) SCC 449, State through Central Bureau of Investigation vs. Mahender Singh Dahiya 2011 (3) SCC 109 and S. K. Yusuf vs. State of West Bengal, J.T.2011 (6) SC 640 may be referred in this regard.
21. The accused has denied the allegations in toto and no explanation has been put on record by the accused as to what happened with the girl after the time, she was taken by him from the street of her house. Thus, record produced during the trial when considered in the light of law, the accused is found author of the crime i.e. murder of the girl as well as causing disappearance of her body.
22. For the reasons stated above, I have no hesitation to arrive at conclusion that the prosecution is able to prove the charges framed against the accused. Accordingly Firoz @ Gota S/o Zamaluddin is held guilty for the charges framed against him for the offence of kidnapping punishable under Section 363 IPC, of murder punishable under Section 302 IPC and causing disappearance of evidence punishable under Section 201 IPC.
Announced in the open court Digitally signed on 09th of March 2022 Sunil by Sunil Chaudhary Chaudhary Date: 2022.03.09 15:46:34 +0530 (Sunil Chaudhary) Additional Sessions Judge North East District, Delhi SC 44597/2015 STATE vs FIROZ @ GOTA Page No. 15 of 15