Delhi District Court
State vs . on 10 May, 2011
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 52/01
Unique Identification No. 02404R0269512006
State Vs.
Zakir Ali
Son of Sabbir Ali
R/o A-39/2
Vikrant Vihar, Kumhar Colony,
Uttam Nagar, Delhi.
FIR No. 507/06
PS- Uttam Nagar
U/s. 302/201/34 of IPC
Date of Decision: 07/05/2011
Date of Sentence: 10/05/2011
ORDER ON SENTENCE
10/05/2011
Present. Ld. APP for the State.
Convict Zakir Ali in person with counsel Sh. Dhirender Singh
Heard on the point of sentence.
Learned defence counsel submits that convict Zakir Ali is married. He
has two daughters. He was looking after his parents. He is the sole bread earner of
his family. He has no previous criminal record. He is also not a habitual offender or
remained involved in any case. He is in custody for the last about five years.
Learned defence counsel has further submitted that convict Zakir Ali used to help
his father in selling vegetables.
On the other hand, Ld. APP for the State submits that convict Zakir Ali
brutally committed murder of Bablu Khan as according to postmortem report,
SC No. 52/1 1
deceased was found sustaining 12 injuries and from the photographs of the dead
body, brutal manner is clearly visible. Bablu Khan was doing Zari work and was
earning some money to help her mother. After the death of Bablu Khan, his mother
had lost her support. Hence, convict be dealt with accordingly.
I have considered the facts and circumstances as argued by learned Addl.
PP for State and learned defence counsel Sh. Dhirender Singh. To my mind, the
case is not falling under the category of rarest of the rare case.
Accused Zakir Ali has been convicted for the offences U/s. 302/34 of
IPC and 201/34 of IPC.
Offence U/s. 302 of IPC is punishable with death or imprisonment for
life and shall also be liable for fine.
Accordingly, imprisonment for life is awarded to convict Zakir Ali with
fine of Rs. 1000/- for the offence U/s. 302/34 of IPC. In default of payment of fine,
he shall further undergo SI for six months.
Offence 201 IPC is punishable with imprisonment of either description
for a term which may extend to seven years and shall also be liable for fine if same
has been committed in respect of capital offence.
Accordingly, imprisonment of five years is awarded to convict Zakir Ali
with fine of RS. 1000/- for the offence U/s. 201/34 of IPC. In default of payment of
fine, he shall further undergo SI for six months.
Convict Zakir Ali remained in custody from 12/06/2006 till today.
Benefit of Section 428 of Cr.PC be given to convict.
Both the substantive sentences of imprisonment shall run concurrently.
Fine not deposited.
Convict be remanded to serve the sentence.
Announced in the open court (VIRENDER KR. GOYAL)
today on 10th of May'2011 ADDL. SESSIONS JUDGE
FAST TRACK COURT
ROHINI
SC No. 52/1 2
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 52/01
Unique Identification No. 02404R0269512006
State Vs.
Ashiq Ahmed @ Raju
Son of Shakil Ahmed
R/o R-3, A-2/63,
Mohan Garden,
Uttam Nagar.
FIR No. 507/06
PS- Uttam Nagar
U/s. 302/201/34 of IPC
Date of Decision: 07/05/2011
Date of Sentence: 10/05/2011
ORDER ON SENTENCE
10/05/2011
Present. Ld. APP for the State.
Convict Ashiq Ahmed in person with counsel Sh. Dhirender Singh
Heard on the point of sentence.
Learned defence counsel submits that convict Ashiq Ahmed is
unmarried. He was aged about 20 years at the time of commission of the offence.
He was supporting his father in selling old clothes on rehri. He was further helping
his parents and was supporting his four sisters and brothers. He has no previous
criminal record. He is also not a habitual offender or remained involved in any case.
He is in custody for the last about five years. Learned defence counsel has further
submitted that convict Ashiq Ahmed used to help his father in selling old clothes.
On the other hand, Ld. APP for the State submits that convict Ashiq
Ahmed brutally committed murder of Bablu Khan as according to postmortem
SC No. 52/1 3
report, deceased was found sustaining 12 injuries and from the photographs of the
dead body, brutal manner is clearly visible. Bablu Khan was doing Zari work and
was earning some money to help her mother. After the death of Bablu Khan, his
mother had lost her support. Hence, convict be dealt with accordingly.
I have considered the facts and circumstances as argued by learned Addl.
PP for State and learned defence counsel Sh. Dhirender Singh. To my mind, the
case is not falling under the category of rarest of the rare case.
Accused Ashiq Ahmed has been convicted for the offences U/s. 302/34
of IPC and 201/34 of IPC.
Offence U/s. 302 of IPC is punishable with death or imprisonment for
life and shall also be liable for fine.
Accordingly, imprisonment for life is awarded to convict Ashiq Ahmed
with fine of Rs. 1000/- for the offence U/s. 302/34 of IPC. In default of payment of
fine, he shall further undergo SI for six months.
Offence 201 IPC is punishable with imprisonment of either description
for a term which may extend to seven years and shall also be liable for fine if same
has been committed in respect of capital offence.
Accordingly, imprisonment of five years is awarded to convict Ashiq
Ahmed with fine of RS. 1000/- for the offence U/s. 201/34 of IPC. In default of
payment of fine, he shall further undergo SI for six months.
Convict Ashiq Ahmed remained in custody from 12/06/2006 till today.
Benefit of Section 428 of Cr.PC be given to convict.
Both the substantive sentences of imprisonment shall run concurrently.
Fine not deposited.
Convict be remanded to serve the sentence.
Announced in the open court (VIRENDER KR. GOYAL)
today on 10th of May'2011 ADDL. SESSIONS JUDGE
FAST TRACK COURT
ROHINI
SC No. 52/1 4
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 52/01
Unique Identification No. 02404R0269512006
State Vs.
Mahesh Chand
Son of Ram Sanehi
R/o R-3/111,
Gali No.4, Mohan Garden,
Uttam Nagar.
FIR No. 507/06
PS- Uttam Nagar
U/s. 201/34 of IPC
Date of Decision: 07/05/2011
Date of Sentence: 10/05/2011
ORDER ON SENTENCE
10/05/2011
Present. Ld. APP for the State.
Convict Mahesh Chand in person with counsel Sh. A.S. Rajput.
Heard on the point of sentence.
Learned defence counsel submits that convict Mahesh Chand is married.
He is aged about 50 years. He has two school going children. He was selling eggs
on rehri. He is the sole bread earner of his family. He has no previous criminal
record. He is also not a habitual offender or remained involved in any case. He is in
custody for the last about five years.
On the other hand, Ld. APP for the State submits that convict Mahesh
Chand assisted in disposing off the dead body of deceased Bablu Khan in a well,
who was brutally murdered by his co-accused Zakir Ali and Ashiq Ahmed as
SC No. 52/1 5
according to postmortem report, deceased was found sustaining 12 injuries and from
the photographs of the dead body, brutal manner is clearly visible. Bablu Khan was
doing Zari work and was earning some money to help her mother. After the death
of Bablu Khan, his mother had lost her support. Hence, convict be dealt with
accordingly.
I have considered the facts and circumstances as argued by learned Addl.
PP for State and learned defence counsel Sh. A.S. Rajput.
Accused Mahesh Chand is convicted for the offence U/s. 201/34 of IPC.
Offence 201 IPC is punishable with imprisonment of either description
for a term which may extend to seven years and shall also be liable for fine if same
has been committed in respect of capital offence.
Accordingly, imprisonment of five years is awarded to convict Mahesh
Chand with fine of RS. 1000/- for the offence U/s. 201/34 of IPC. In default of
payment of fine, he shall further undergo SI for six months.
Convict Mahesh Chand remained in custody from 12/06/2006 till today.
Benefit of Section 428 of Cr.PC be given to convict.
Fine deposited.
Convict be remanded to serve the sentence.
Announced in the open court (VIRENDER KR. GOYAL)
today on 10th of May'2011 ADDL. SESSIONS JUDGE
FAST TRACK COURT
ROHINI
SC No. 52/1 6
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 52/01
Unique Identification No. 02404R0269512006
State Vs.
1. Zakir Ali
Son of Sabbir Ali
R/o A-39/2
Vikrant Vihar, Kumhar Colony,
Uttam Nagar, Delhi.
2. Ashiq Ahmed @ Raju
Son of Shakil Ahmed
R/o R-3, A-2/63,
Mohan Garden,
Uttam Nagar.
3. Mahesh Chand
Son of Ram Sanehi
R/o R-3/111,
Gali No.4, Mohan Garden,
Uttam Nagar.
FIR No. 507/06
PS- Uttam Nagar
U/s. 302/201/34 of IPC
Date of institution of the case: 06/09/2006
Arguments heard on: 19/04/2011
Date of reservation of order: 19/04/2011
Date of Decision: 07/05/2011
JUDGMENT
This case was got registered by Inspector Ashok Gera on DD No. 7A dated 11/06/2006, which was recorded at about 6.50 a.m. on the information that SC No. 52/1 7 one person has been thrown in the well after committing his murder.
During investigation, rough site plan was prepared. Exhibits were collected from the spot. Personal search articles of deceased were taken into possession. Scaled site plan was also got prepared. After postmortem, sealed pullanda was also taken into possession from the hospital. Postmortem report was collected. Copies of various DDs were collected. Brief facts and inquest papers were prepared. Statement regarding identification of dead body was recorded. Crime team report was obtained. All the three accused Zakir Ali, Ashiq Ahmed and Mahesh Chand were arrested. Their personal searches were conducted. Wearing clothes of all the three accused persons were also taken into possession, which they produced after making disclosure statements. All the three accused persons also pointed out the place of occurrence and accused Zakir Ali also got recovered one axe (kulhari), which was sealed and seized in this case after preparing sketch of the same. Later on, opinion regarding weapon of offence was also obtained. Photographs of the place of occurrence were taken. Exhibits were sent to FSL. Later on, FSL report was also filed during trial.
On completion of investigation, charge-sheet was filed against all the three accused persons and the case was committed to the Court of Session on 25/09/2006, which was received on 09/10/06.
On 23/03/2007, all the three accused persons were charged for offences U/s. 302/34 of IPC and 201/34 of IPC to which they pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW22 in all. On completion of prosecution evidence, statements of accused persons were recorded. All the three accused persons have denied the case of the prosecution.
Accused Zakir Ali has pleaded that He is innocent. He has been falsely implicated. In fact, he has been picked up from his own house.
Accused Ashiq Ahmed has come forward with the plea that he is SC No. 52/1 8 innocent and has been falsely implicated in this case.
Accused Mahesh Chand has pleaded that he is innocent and has been falsely implicated in this case.
In defence, DW1 HC Harphool and DW2 HC Ajeet Singh have been examined.
I have heard learned Addl. PP for State, Sh. Dhirender Singh, counsel for accused Zakir Ali and Ashiq Ahmed and Sh. S. Rajput, counsel for accused Mahesh Chand. I have also gone through the material placed on record with evidence adduced.
Finding qua offences U/s. 302/34 of IPC and U/s. 201/34 of IPC against accused Zakir Ali and Ashiq Ahmed:
i) Last Seen Evidence:
In this respect, prosecution has examined PW3 Ashaf Beg, who has stated that he resides at the address given with his family and is a driver by profession. Deceased Bablu Khan was son of his co-brother, who was residing with him for the last 5/6 years. His younger brother was living with the mother in the village. After the death of father of Bablu Khan, he brought Bablu Khan with him as he was not doing any work. He got him trained for doing 'Zari embroidery work"
at Uttam Nagar. Thereafter, Bablu Khan and his sons used to do Zari work together at his house. PW3 has further deposed that Bablu Khan has once told him that he had two friends, namely, Harender and Aftab. They had once gone to a wedding, where accused Zakir and Ashiq Ahmed were present. They knew each other as they were residing nearby. At the wedding, somebody had caused beatings to Zakir and Zakir suspected deceased Bablu Khan. Bablu Khan had explained several times that he was not responsible for the beatings of Zakir, but still Zakir and Ashiq Ahmed @ Raju were after him. Couple of days before the occurrence, deceased Bablu Khan had told him that accused Zakir and Ashiq Ahmed had caught hold of him for beatings, but he was saved by his friends Harender and Aftab. He had advised Bablu to avoid any confrontation.SC No. 52/1 9
PW3 has further deposed that on 10/06/2006 at about 8.30 p.m., accused Zakir and Ashiq Ahmed came to his house and knocked at the door. He opened the door and they said that Bablu should be sent with them as they wanted to speak to him. He advised them to maintain peace and not to indulge in any quarrel. He had then sent Bablu with them. Bablu did not return for the entire night. On the next morning, when he went out to search him, he noticed a crowd and when he reached there, he saw dead body of Bablu lying on the road near a well. A cot was also lying nearby. He made statement to the Investigating Officer expressing his suspicion on Zakir and Ashiq Ahmed.
Learned defence counsel has contended that conduct of PW3 Ashaf Beg is doubtful and so is the investigation because if PW3 had identified the dead body of Bablu Khan and had also made a statement to the Investigating Officer expressing his suspicion on Zakir and Ashiq Ahmed, then there was no need to get registered a case on DD No. 7A Ex. PW15/A, which shows that either during that time, PW3 Ashaf Beg was not present at the spot or if he was present, then he had not made any statement to the Investigating Officer suspecting Zakir and Ashiq Ahmed. Learned defence counsel has further contended that according to the cross examination of PW3 Ashaf Beg, he must have reached at the well at about 9.00 a.m. and had told to the police that deceased had left at about 8.30 p.m. alongwith Zakir and Ashiq Ahmed @ Raju. Learned defence counsel has further contended that PW3 has also admitted that some papers were got signed from him by the police in the PS, but he does not know what was written on those papers. So, PW3 cannot be believed in respect of last seen evidence. Learned defence counsel has further contended that deposition of PW3 Ashaf Beg is not corroborating with other witnesses, so, he cannot be relied upon in any manner.
In my opinion, the contentions of learned defence counsel are not tenable in any manner. In the examination in chief and also in the cross examination, PW3 Ashaf Beg has specifically stated that accused Zakir Ali and accused Ashiq Ahmed were not known to him previously and he had seen them for the first time, when SC No. 52/1 10 they had come to his house. PW3 has further stated in the cross examination that he had told to the police that deceased had left at about 8.30 p.m. alongwith Zakir and Raju. So, PW3 Ashaf Beg is trustworthy and inspire confidence. His testimony is unshaken regarding the fact that on 10/06/2006 at about 8.30 p.m., accused Zakir Ali and Ashiq Ahmed @ Raju came to his house and took Bablu Khan with them as they wanted to speak with him . He also advised them to maintain peace and not to indulge in any quarrel. The contention of learned defence counsel that if there was any apprehension of quarrel, then PW3 Ashaf Beg should not have sent Bablu Khan with Zakir Ali and Ashiq Ahmed, is also not tenable because at that time, PW3 could not have imagined such intentions of both the accused that they were taking away Bablu Khan to kill him. Only suggestion has been given that accused Zakir Ali and Ashiq Ahmed had not come to the house of PW3 and deceased Bablu Khan had not accompanied them. Mere suggestion is not sufficient in such circumstances. Both accused Zakir Ali and Ashiq Ahmed were required to explain as to where they were if they had not taken Bablu Khan from the house of PW3 Ashaf Beg with them on 10/06/2006 at 8.30 p.m. on the pretext that they wanted to speak with him. In the statement recorded U/s. 313 CrPC, both the accused have not given any explanation in this respect except denying the same.
PW11 Inspector Mahesh Kumar has also corroborated with PW3 Ashaf Beg and has deposed that later on, dead body was identified as of Bablu Khan by his Mausa i.e. maternal uncle. DD No.7A was recorded at 6.50 a.m. on 11/06/2006 and PW11 Inspector Mahesh Kumar reached at the spot at about 07.05 a.m.. Many public persons were present there. Dead body was taken out from the well. When public persons were asked to identify the dead body, no one could identify the dead body. Mausa of the deceased reached near the dead body after about one hour of his reaching there. So, according to PW11 Inspector Mahesh Kumar, PW3 Ashaf Beg must have reached at the spot at about 08.05 a.m., whereas PW3 has stated in the cross examination that he must have reached at the well at about 9.00 a.m. So hardly there is any difference in the time gap. In the ruqqa also, which was sent by SC No. 52/1 11 Inspector Ashok Gera Ex. PW20/A at about 9.30 a.m. for registration of the FIR, it is mentioned that the dead body of Bablu Khan was identified by PW3 Ashaf Beg and it is clear from the ruqqa that at that time, Ashaf Beg had not told the facts of previous day i.e. 10/06/2006 that at about 8.30 p.m., accused Zakir Ali and Ashiq Ahmed had taken away Bablu Khan on the pretext that they wanted to speak with him. So, PW3 Ashaf Beg had identified the dead body only at that time and later on, his statement was recorded by the police.
PW18 Inspector Bhagwan Singh has also deposed that dead body was identified by Ashaf Beg, Mausa of the deceased, which also shows that at the time except identifying the dead body, PW3 Ashaf Beg did not make any statement to the police suspecting accused Zakir Ali and Ashiq Ahmed. In the cross examination, PW18 Inspector Bhagwan Singh has stated that he reached at the spot at about 7.15 or 7.30 a.m. and after about two hours, ruqqa was sent for registration of the FIR. Dead body was identified by maternal uncle of the deceased. He does not know if maternal uncle of the deceased had given any information to the Investigating Officer apart from identifying the dead body. So, it is clear that at that time, PW3 Ashaf Beg identified the dead body only.
PW20 ACP Ashok Gera has also deposed that he sent ruqqa at about 9.30 a.m. Statement of Ashaf Beg was recorded. According to his cross examination, PW20 ACP Ashok Gera reached at the spot at about 7.15 a.m. and Ashaf Beg, who was present in the crowd, when dead body was brought out from the well, identified the dead body and he sent ruqqa after identification of the dead body by Ashaf Beg. PW20 ACP Ashok Gera has further specifically stated that he recorded statement of PW Ashaf Beg after sending the ruqqa and at the time of identification of dead body, PW Ashaf Beg had also told him that deceased was missing since 8.30 p.m. of the last night after accused Zakir Ali and Ashiq had called the deceased. So, this part of his cross examination is corroborating with the deposition of PW3 Ashaf Beg that he made a statement to the Investigating Officer expressing his suspicion on accused Zakir Ali and Ashiq Ahmed. Statement of SC No. 52/1 12 Ashaf Beg has been recorded on the same day after sending ruqqa, so, it cannot be said that his suspicion towards accused Zakir Ali and Ashiq Ahmed was an afterthought. Had it been recorded on the next day or after few days, then certainly the position would have somewhat other, but it is not so and merely that ruqqa was sent after identification of dead body and statement of PW Ashaf Beg was recorded later on, does not mean that PW3 Ashaf Beg has deposed falsely or his statement has been fabricated later on or that he has not deposed truthfully. All these witnesses have corroborated each other. It is not a thumb rule that ruqqa can be sent only on the statement of the witness. From the circumstances appearing at the spot, PW20 ACP Ashok Gera got registered a case on DD No. 7A itself, which is not illegal and thereafter he recorded statement of PW3 Ashaf Beg, wherein he had shown his suspicion on accused Zakir Ali and Ashiq Ahmed and further told to the police about previous day facts that on 10/06/2006 at about 8.30 p.m., both accused Zakir Ali and Ashiq Ahmed had taken away Bablu Khan on the pretext that they wanted to speak with him. So, prosecution has been able to prove from the depositions of these witnesses that Bablu Khan was taken away by accused Zakir Ali and Ashiq Ahmed on 10/06/2006 at about 8.30 p.m. and was lastly seen with them.
ii)Motive:
The case of the prosecution rest upon the previous enmity to take revenge from deceased Bablu Khan by the accused persons and in this respect, PW3 Ashaf Beg has stated that Bablu Khan once told him that he had two friends, namely, Harender and Aftab. They had once gone to a wedding, where accused Zakir and Ashiq Ahmed were present. They knew each other as they were residing nearby. At the wedding, somebody had caused beatings to Zakir and Zakir suspected deceased Bablu Khan. Bablu Khan had explained several times that he was not responsible for the beatings of Zakir, but still Zakir and Ashiq Ahmed @ Raju were after him. Couple of days before the occurrence, deceased Bablu Khan SC No. 52/1 13 had told PW3 that accused Zakir and Ashiq Ahmed had caught hold of him for beatings, but he was saved by his friends Harender and Aftab. He advised Bablu to avoid any confrontation.
Not only this, PW3 has further deposed that even on 10/06/2006 at about 8.30 p.m., accused Zakir and Ashiq Ahmed came to his house and knocked at the door. He opened the door and they said that Bablu should be sent with them as they wanted to speak to him. He advised them to maintain peace and not to indulge in any quarrel.
Learned defence counsel has contended that in the cross examination, PW3 Ashaf Beg has admitted that deceased was not having any dispute with anybody, which shows that accused persons had no enmity with the deceased, but to my mind, deceased might have not any enmity against the accused persons, but due to the incident, accused persons were having feeling of enmity and they wanted to take revenge, so the contention of learned defence counsel is not forceful in any manner.
PW3 Ashaf Beg has further deposed in the cross examination that on 09/06/2006, deceased Bablu Khan had told him that when he had gone to attend a marriage, accused Zakir and one Raju had caught him and he was saved by Hemant and Aftab. Memory of the witness has also been checked by learned defence counsel by putting certain questions, to which, PW3 has replied that he remembered the dated 09/06/2006 as it was Sikh marriage and he was having a card of the same.
PW3 Ashaf Beg has not been cross examined that at the wedding, as somebody caused beatings to accused Zakir Ali, so, he used to suspect deceased. Not only this, in the cross examination of PW3 Ashaf Beg, it has also come that deceased Bablu Khan had told PW3 Ashaf Beg on 09/06/2006 that when he had gone to attend a marriage, accused Zakir and one Raju had caught him and he was saved by Hemant and Aftab. PW3 has not been cross examined on this aspect that no such facts were told to him by deceased Bablu Khan on 09/06/2006 just before the incident.SC No. 52/1 14
Aftab has been examined as PW22. He has stated that one day, he had gone to attend the marriage of one of his friend Anil with his other friends Ajit, Khuddus and Ravi. They took meals. He and his friends did not consume liquor. Nothing abnormal happened in the marriage in his presence. The marriage took place about 4/5 years back. Police never met him in connection of the same. PW22 Aftab has further not supported the case of the prosecution. So, he has been cross examined by learned Addl. PP. In the cross examination, he has admitted that marriage took place on 09/02/2006 and has further identified accused Zakir Ali and Ashiq Ahmed @ Raju in the Court, but has denied that any quarrel took place in the said marriage.
PW22 has also denied that Zakir Ali was under the influence of liquor and they were also under the influence of liquor. PW22 has further denied that quarrel took place in between Zakir Ali and Bablu and they also gave beatings to each other. PW22 has also denied that accused Zakir Ali used to suspect deceased Bablu Khan for his beatings and due to this reason, Zakir Ali and Ashiq Ahmed were having enmity with Bablu and they wanted to take revenge. PW22 has also denied that he intervened to save Bablu, when he was caught hold by Zakir Ali and Ashiq Ahmed @ Raju.
PW22 has further admitted that he knows accused Zakir Ali and Ashiq Ahmed for the last 8 to 10 years as they are residing nearby his house. Bablu was also residing nearby his house. So, except identifying accused Zakir Ali and Ashiq Ahmed and that marriage had taken place, PW22 has not been able to prove anything else.
PW10 Dr. Dhananjay Kumar has proved the MLC of accused Zakir Ali as Ex. PW10/A, when accused Zakir Ali was admitted on 11/05/2006 in DDU hospital. So, it is also proved that a quarrel had taken place on 11/05/2006, in which, accused Zakir sustained injuries, which corroborates with other facts as deposed by the witnesses.SC No. 52/1 15
PW5 is SI Jassa Singh. On 11/05/2006, he was posted at PS Uttam Nagar. On that day, he was on emergency duty. He was informed on his mobile phone at 11.30 p.m. that one person was beaten at Char Bhai STD Shop, Balaji Chowk. He reached there and came to know that injured had been removed to DDU hospital. He alongwith Constable reached at DDU hospital and obtained MLC of injured Zakir Ali. Doctor opined that injured was not fit for statement. On the next day morning, he again went to DDU hospital and came to know that injured Zakir Ali had been discharged. He went to the house of injured Zakir on the basis of address given on the MLC, but injured was not present there. Next day, injured came to police and he recorded his statement Ex. PW5/A. Accused Zakir Ali was arrested in this case. He handed over MLC of Zakir Ali, DD No. 6A, DD No. 13A and statement of Zakir Ali to Investigating Officer. These were taken into possession vide memo Ex. PW5/B. Learned defence counsel has contended that PW5 SI Jassa Singh has stated in the cross examination that there was a comprise between injured Zakir Ali and Bablu. Zakir Ali had given in writing that he will not take any action against anybody in the said case. So, there was no enmity between accused Zakir Ali and Bablu Khan. But in my view, as no such compromise has been brought on record nor it is admitted by accused Zakir Ali in his statement recorded U/s. 313 CrPC that he had compromised with Bablu Khan, so the contention of learned defence counsel is not forceful.
In answer to question No. 6 of statement U/s. 313 CrPC , accused Zakir Ali has stated that he made complaint against some unknown persons, who quarreled with him, but the police did not take any action against them and required him to make the statement referred above. So, there is no corroboration from the side of accused to the statement of PW5 SI Jassa Singh that matter was compromised by accused Zakir Ali and he gave in writing to the police in this respect.SC No. 52/1 16
From the MLC of Zakir Ex. PW5/A, which is of 11/05/2006, it is also corroborated that incident of quarrel and beating had taken place on 11/05/2006 with accused Zakir, which further corroborated with PW3, to whom, deceased Bablu Khan had told that due to said quarrel, accused Zakir Ali used to suspect him.
According to Ex. PW5/D, which was recorded by PW5 SI Jassa Singh, DD No.6A was kept pending and nothing has been brought on record further that the inquiry of said DD was closed on the request of accused Zakir. Accused Zakir Ali was admitted in DDU hospital on 11/05/2006 at 6.40 a.m. by HC Anil Kumar of PCR with alleged history of assault, as told by the patient. So, from the above depositions of the witnesses, it is proved that a quarrel had taken place on 11/05/2006, in which, accused Zakir Ali sustained injuries and he used to suspect Bablu Khan and again on 09/06/2006, Bablu Khan had told to PW3 Ashaf Beg that he was caught hold by accused Zakir Ali and Ashiq Ahmed for beating, but he was saved by his friends Harender and Aftab.
Although Aftab has not supported the case of the prosecution, but from the deposition of PW3 Ashaf Beg, it is clear that he was neither knowing Harender nor Aftab, so, he came to know names of these two persons only from deceased Bablu Khan, who had told these facts. So, PW3 Ashaf Beg cannot be disbelieved in any manner.
From the reply of question No.6 of statement U/s. 313 CrPC, it is clear that accused Zakir Ali never compromised the matter either with unknown persons or with deceased Bablu Khan. From the statement Ex. PW5/A, it is also clear that accused Zakir has replied incorrectly to question No. 6 in his statement recorded U/s. 313 CrPC because according to statement of accused Zakir Ali Ex. PW5/A, 0n 10/05/2006, he alongwith his friend at Defence Enclave, near Balaji Chowk, had gone to attend a function of engagement of his friend, where Bablu Khan had also come with his friends and on the point of dance in the marriage, a quarrel took place. Both the parties were under the influence of liquor. At the instance of Bablu SC No. 52/1 17 Khan, his friends abused him and caused injuries to him. PCR removed him to DDU hospital. Bablu Khan and his friends had caused beatings to him. During this quarrel, his friend Ashiq Ahmed and Mahesh were also with him. He does not know the names of friends of Bablu Khan and would tell later on.
So, on one hand, PW5 SI Jassa Singh has stated in the cross that there was compromise between injured Zakir Ali and Bablu Khan, which is not substantiated and corroborated with Ex. PW5/A, on the other hand, accused Zakir Ali has nowhere admitted that matter was compromised, rather, he has deposed incorrectly that incident had taken place with some unknown persons. In Ex. PW5/A, he has named Bablu Khan and also has further referred presence of accused Ashiq Ahmed and Mahesh.
PW5 SI Jassa Singh has not been cross examined in any manner by learned defence counsel for the accused persons to the extent that Ex. PW5/A was not the statement of accused Zakir Ali and was recorded by the police as its own. So, from the depositions of PW3 Ashaf Beg, PW5 SI Jassa Singh and PW22 Aftab, prosecution has been able to prove that due to incident of 11/05/2006, accused Zakir Ali and Ashiq Ahmed used to suspect Bablu Khan and were having enmity with him.
The second incident took place on 09/06/2006, which has been deposed by PW3 Ashaf Beg in the cross examination that deceased Bablu Khan had told him that when he had gone to attend a marriage, accused Zakir and one Raju had caught him and he was saved by Hemant and Aftab. PW22 Aftab has corroborated this fact and has stated that said marriage took place on 09/02/2006. It seems that inadvertently Aftab has deposed the date of marriage as 09/02/2006 instead of 09/06/2006 because he has corroborated with other facts that it was an engagement ceremony and he has also identified accused Zakir Ali and Ashiq Ahmed and also told that Bablu Khan was also known to him. PW22 Aftab has also not been cross examined by learned defence counsel for the accused persons that no such marriage/engagement function had taken place on 09/06/2006.SC No. 52/1 18
I have gone through Ex. PW22/A i.e. statement of PW22 Aftab recorded U/s. 161 CrPC. This FIR is dated 11/06/06, whereas inadvertently at the top of Ex. PW22/A i.e. statement of Aftab, date of FIR has been mentioned as 11/02/2006, whereas under the signature of the Investigating Officer, at the bottom, date is mentioned as 11/06/2006 and due to this inadvertence, date of function also mentioned as 09/02/2006 in the statement of Aftab, whereas in fact, it was 09/06/2006, as deposed by PW3 Ashaf Beg, which was told to him by Bablu Khan one day before the incident and similarly, on the basis of this statement, recorded U/s. 161 CrPC Ex. PW22/A, learned APP further confronted the witness with the date of function as 09/02/2006 instead of 09/06/2006.
Firstly, due to incident of 11/05/2006, accused Zakir Ali and Ashiq Ahmed were having enmity against Bablu Khan in their heart and they wanted to take revenge and again on 09/06/2006, just one day before the incident, they caught hold Bablu Khan for beating him, but he was saved by his friends Harender and Aftab. According to PW3 Ashaf Bag, on 10/06/2006 at about 8.30 p.m., accused Zakir and Ashiq Ahmed took away Bablu Khan with them as they wanted to speak with him. So, from this evidence brought on record of the witnesses, which inspire confidence and is believable, prosecution has been able to prove beyond reasonable doubts that accused Zakir Ali and Ashiq Ahmed were having motive to commit murder of Bablu Khan as they wanted to take revenge from him of the incident, which took place on 11/05/2006 and further attempted to take revenge of the same on 09/06/2006, just one day before the incident.
Arrest and recovery of Weapon of Offence PW19 HC Sunil Kumar has deposed that on 11/06/2006, he was posted at Police HQ, ITO on PCR Channel. On that day, he received information about throwing of a person in a well, after killing him near K-5 Extension, H.No.50, before Balaji Chowk, Mohan Garden. He passed on this information on the channel and filled up PCR form, which is Mark DW18/A. Original record had been SC No. 52/1 19 destroyed by the order of DCP, PCR, copy of which is Ex. PW19/A dated 31/05/2010. PW19 has not been cross examined by learned defence counsel in any manner.
DD regarding the information of dead body was recorded by PW15 HC Ramesh Chand. He has deposed that on 11/06/2006, he was posted at PS Uttam Nagar. On that day, at about 6.50 a.m., Operator W60 informed him on the intercom that one person had been thrown in the well after committing murder near K-5 extension, H.No.50 near Mohan Garden, Balaji Chowk. He made DD No. 7A in DD register, copy of the same is Ex. PW15/A. PW15 has further deposed that he also made departure entry of Inspector Parkash Chand Maan, SHO, with SI Bhagwan Singh, SI Randhir Singh, HC Didar Singh, Constable Narinder, Constable Manbir Singh, driver Ajeet Singh and Operator Suresh Chand in government gypsy at about 7.00 a.m. and handed over DD No. 7A and 8A to Inspector Prakash Chand Maan He made entry as DD No.9 in DD register. He also made departure entry of Inspector Ashok Gera vide DD No.10A alongwith government motorcycle and rider Constable Anil, copies of which are Ex. PW15/B and Ex. PW15/C. PW20 ACP Ashok Gera has stated that on 11/06/2006, he was posted at PS Uttam Nagar as Inspector Investigation. On that day, on receipt of DD No.10, he alongwith motorcycle rider reached at K-5, RP School, Mohan Garden, Uttam Nagar, and saw dead body of a male, aged about 26 years, lying in an empty well. SHO Inspector Prakash Chand Mann and SI Mahesh were already present there with staff. He inspected the spot and called crime team and the photographer. Crime team reached at the spot and inspected the spot. Crime team photographer also took photographs of the spot from different angles. The body was brought out from the well. On examination of the body, deep wounds were noticed on the back of the head of the body. There was injury on the left elbow. On search of the body, a 100 rupee note was recovered from the pocket of the pant. The body was wearing white colour pant having patch and a dark colour vest.SC No. 52/1 20
PW20 has further deposed that he seized currency note of Rs. 100/- vide memo Ex. PW11/B and on inquiry and inspection of the body, he came to know that deceased was a Muslim. One Ashaf Beg came out from the crowd and identified the body to be son of his sister in law and disclosed the name of deceased as Bablu Khan. One iron chain, one pair of hawai chappal make Relaxo, blood stained earth and earth control were lifted from the spot. These were kept in separate plastic in pullandas and were sealed with the seal of AKJ. All the four pullandas were then seized vide memo Ex. PW11/A. No eye witness was found at the spot. He made endorsement on DD No.7A and prepared rukka Ex. PW20/A and sent the same to PS through HC Didar Singh at 9.30 a.m. Statement of Ashaf Beg was recorded. Body was sent to DDU hospital mortuary for postmortem. HC Didar Singh came back at the spot after registration of the FIR and handed over copy of FIR and rukka to him. He alongwith police staff and Ashaf Beg reached at the house of Aftab. Statement of Aftab was recorded. Thereafter, he came back to PS and case property was deposited in the malkhana.
PW1 HC Didar Singh has corroborated and has deposed that on 11/06/2006, he was posted as HC at PS Uttam Nagar. On that day, on the instructions of Duty Officer, he reached at Mohan Garden, K-5, Opposite RP Public School, Uttam Nagar, on a vacant plot. At the spot, Inspector Ashok Gera handed over rukka to him for getting registered the FIR. He left the spot at 9.30 a.m. and reached at the PS at 9.45 a.m. Duty officer handed over copy of FIR and original rukka to him at 10.45 a.m. He came back at the spot at 11.05 a.m. and handed over copy of FIR and rukka to Investigating Officer.
PW1 HC Didar Singh has not been cross examined by learned defence counsel in any manner. So, testimony of PW1 HC Didar Singh is unrebutted and unshaken.
PW2 Sarbani Begum has identified Rs. 100/- currency note, which was recovered from the body of her son. Her statement Ex. PW2/A was recorded and SC No. 52/1 21 she also received the dead body vide memo Ex. PW2/B. Currency note of Rs. 100/- was returned to her by executing a receipt on 12/06/2006. PW2 has also not been cross examined in any manner by learned defence counsel for the accused persons. So, the testimony of PW2 is unrebutted and unshaken regarding the identification of dead body and receipt of the dead body and also regarding identification of 100 rupee currency note, which was returned to her.
PW4 HC Pramod Kumar was working as Duty Officer on 11/06/2006 from 9.00 a.m. to 5.00 p.m. On that day, he received rukka, sent by PW20 Inspector Ashok Gera through PW1 HC Didar Singh. On the basis of the same, he recorded FIR of this case, copy of which is Ex. PW4/A. He also made his endorsement on the ruqqa Ex. PW4/A and after registration of the FIR, he handed over original ruqqa and copy of FIR to PW1 HC Didar Singh. PW4 HC Pramod Kumar has also not been cross examined in any manner by learned defence counsel, hence there is no reason to disbelieve him.
So, from the depositions of PW20 ACP Ashok Gera, PW1 HC Didar Singh and PW4 HC Pramod Kumar, prosecution has been able to prove beyond reasonable doubts that ruqqa was prepared by PW20 ACP Ashok Gera on DD no. 7A dated 11/06/2006 and PW1 HC Didar Singh left the spot at about 9.30 a.m.. He got registered the case through DO i.e. HC Pramod Kumar and received copy of FIR at 10.45 a.m and handed over the same to the Investigating Officer at 11.05 a.m. PW6 HC Jaibir Singh has further corroborated with PW20 ACP Ashok Gera and has deposed that on 11/06/2006, he alongwith I/C Crime team reached at the spot and took photographs from different angles. He has proved the photographs as Ex. P1 to P14 and negatives as Ex. P15 to Ex. P28. In the cross examination, PW6 HC Jaibir Singh has deposed that he reached at the spot at 8.00 a.m. and stayed there for about one hour. So, nothing came out from his cross examination to disbelieve his testimony in any manner.
DD No.7A Ex. PW15/A was recorded at 6.50 a.m. and Inspector Ashok Gera reached at the spot and called crime team with photographer. Then certainly, SC No. 52/1 22 PW6 HC Jaibir Singh with I/C Crime Team had reached at the spot at 8.00 a.m. So, there is nothing abnormal in his testimony and he has proved the photographs and negatives, which were taken at the spot.
PW8 ASI Satyavir Singh has further corroborated with PW20 ACP Ashok Gera and has deposed that on 11/06/2006, he was posted at PS Uttam Nagar as MHC(M)(M). On that day, PW20 Inspector Ashok Gera handed over four sealed pullandas with the seal of "AKG" and same were deposited by him in the malkhana vide entry No. 4159 in register No.19, copy of which is Ex. PW8/A. PW8 ASI Satyavir Singh has been cross examined by learned defence counsel for the accused persons and in the cross examination, PW8 has deposed that he had obtained signatures of PW20 Inspector Ashok on Ex. PW8/A at point A. So, the witnesses are trustworthy in respect of the fact that four pullanda, which were sealed by PW20 Inspector Ashok Gera at the spot on 11/06/2006 with the seal of "AKG"
were deposited by him on the same day with PW8 ASI Satyavir Singh.
PW11 Inspector Mahesh Kumar has also deposed the same facts of 11/06/2006 and has further deposed that Investigating Officer had prepared rough site plan also. In the cross examination, PW11 Inspector Mahesh Kumar has stated that he reached at the spot at about 7.05 a.m. Many public persons were present there. PW20 Inspector Ashok Gera also reached there meanwhile and called the crime team and got the spot photographed. Dead body was taken out from the well. Ashaf Beg identified the dead body. Crime team reached at the spot and completed the proceedings in an hour. He remained at the spot for about 4½ hours. So, nothing came out from the cross of PW11 to disbelieve his testimony and also the testimonies of other witnesses as he has corroborated with PW20 Inspector Ashok Gera and other witnesses regarding the removal of the dead body from the well and also seizure of the exhibits, which were sealed in four pullandas with the seal of "AKG" and were taken into possession. PW11 has also corroborated regarding the preparation of ruqqa by PW20 Inspector Ashok Gera and sending of the same for registration of FIR through PW1 HC Didar Singh.
SC No. 52/1 23PW13 HC Kishore Singh has further corroborated with duty officer PW4 HC Pramod Kumar and has deposed that on 11/06/2006, he received three sealed envelopes containing FIR to deliver the same to Joint CP, Southern Range, DCP West and Ilaka Magistrate. Accordingly, he delivered the envelopes and his statement was recorded by the Investigating Officer. PW13 has not been cross examined in any manner by learned defence counsel. So, it cannot be said that FIR was anti-dated or was not delivered immediately to the senior police officers and to the Court of learned Metropolitan Magistrate as per law.
PW18 Inspector Bhagwan Singh has also deposed the same facts of 11/06/2006, as deposed by other witnesses and according to his cross examination, he reached at the spot at about 7.15/7.30 a.m. and ruqqa was sent after about two hours of his reaching, which corroborated with PW1 HC Didar Singh, who left the spot with ruqqa at about 9.30 a.m. Regarding the arrest of accused persons, PW20 ACP Ashok Gera has further deposed that on 12/06/2006, he alongwith PW18 Inspector Bhagwan Singh and SI Lalit went in search of accused Zakir Ali and Ashiq Ahmed in the area of Uttam Nagar. They went to their respective houses, but their houses were found locked and they were not found at their houses. At about 3.00 p.m. he received information that accused Zakir Ali and Ashiq Ahmed were hiding themselves in a park at Village Hastsal having Safeda trees at Uttam Nagar. They reached there , from where, all the three accused were apprehended on the pointing of secret informer.
PW20 has further deposed that on interrogation, all the three accused made disclosure statements Ex. PW9/G to Ex. PW9/I and they were arrested vide memos Ex. PW9/A to Ex. PW9/C. Their personal searches were conducted vide memos Ex. PW9/D to Ex. PW9/F. P20 has further deposed that accused persons led the police party the place of occurrence and pointed out the same vide memos Ex. PW9/J and Ex. PW9/L. PW20 has further deposed that thereafter accused Zakir Ali led the SC No. 52/1 24 police party to the adjoining plot, as pointed out by the accused persons, from where, accused Zakir Ali got recovered one axe (kulhari numa farsa) having blood on the wooden handle, lying hidden under the bricks. The said axe was sealed in a pullanda with the seal of "AKG" and was seized vide memo Ex. PW9/M. Accused Zakir Ali thereafter led the police party to his house at Kumhar Colony, from where, he got recovered his blood stained clothes i.e. shirt and pant lying in a polythene bag underneath the staircase. The polythene bag containing the clothes was kept in a sealed cloth pullanda with the seal of "AKG" and was seized vide memo Ex. PW9/N./ PW20 has further deposed that accused Ashiq Ahmed then led the police party to his house at Mohan Garden, Uttam Nagar, from where, he got recovered his pant and shirt, having blood stains, lying in a polythene underneath the bed. These were also sealed with the seal of "AKG" and were seized vide memo ex. PW9/O. PW20 has further deposed that third accused Mahesh then led the police party to his house at Mohan Garden, Uttam Nagar, from where, he got recovered his shirt and pant, having blood stains, lying in a polythene in his room. These were sealed in a pullanda with the seal of "AKG", which was seized vide memo Ex. PW9/P. Thereafter all the three accused were brought to PS and the pullandas were deposited in the malkhana.
PW9 SI Lalit Kumar has also deposed the same facts as of PW20 ACP Ashok Gera and has further identified the Axe as Ex. P1,blood stained clothes of accused Zakir Ali as Ex. P2 and Ex. P3, blood stained clothes of accused Ashiq Ahmed as Ex. P4 and Ex. P5 and blood stained clothes of accused Mahesh as Ex. P6 and Ex. P7.
Learned defence counsel has contended that the manner and the place of arrest of accused persons is fabricated. Learned defence counsel has further contended that Axe was not recovered at the point of accused Zakir Ali, as deposed by these witnesses and witnesses have contradicted each other. So, they cannot be SC No. 52/1 25 relied upon in any manner.
Learned defence counsel has further contended that the witnesses i.e. PW9 SI Lalit Kumar, PW18 Inspector Bhagwan Singh and PW20 ACP Ashok Gera have contradicted each other. Whereas PW20 ACP Ashok Gera has deposed that when on 12/06/2006, they reached at the house of accused persons, the houses were found locked and accused persons were not found at their houses. On the other hand, PW18 Inspector Bhagwan Singh has stated that after completing the proceedings on the spot, accused persons were searched by the police team. Firstly, they went to the house of accused Zakir Ali and then went to the house of accused Raju @ Ashiq Ahmed. Houses of both the accused persons were locked and their family members were present there. The houses were not searched and their family members were formally inquired. So, the witnesses cannot be believed in any manner.
PW18 Inspector Bhagwan Singh has stated in his cross examination that on the next day, between 12 noon to 2.00 p.m., accused persons were searched in their respective houses and first of all, they reached at the house of accused Zakir at about 12 noon and stayed there for one hour. Thereafter at about 1.00 p.m., they reached at the house of accused Raju and stayed there for about 45 minutes. Thereafter, they reached at the house of accused Mahesh. Thereafter, secret information was received by the Investigating Officer when the accused persons were searched in the locality.
According to the cross of PW18 Inspector Bhagwan Singh, they visited the house of accused persons on 11/06/2006 after completing the proceedings at the spot and then again on 12/06/2006, they searched for the accused persons at their houses and secret information was received by the Investigating Officer when accused persons were searched in the locality.
On the other hand, PW9 SI Lalit Kumar has not deposed anything about 11/06/2006 because he did not join the investigation of this case on that day. PW9 has deposed that on 12/06/2006, he joined the investigation of this case alongwith SC No. 52/1 26 PW18 Inspector Bhagwan Singh and PW20 Inspector Ashok Gera with staff. Firstly, they reached at the house of accused Zakir Ali, which was found locked. Thereafter, they reached at the house of accused Ashiq Ahmed, which was also found locked. Thereafter, they tried to find out other accused Mahesh. Meanwhile at about 3.00 p.m., PW20 Inspector Ashok received a phone call from some public person regarding the presence of accused Zakir Ali, Ashiq Ahmed and Mahesh, in which, they came to know that they were hiding in DDA Park, Hastsal Village. They reached there and on the pointing of public person, accused persons were apprehended.
In the cross examination, PW9 has stated that informer met them, while they were proceeding towards the park, whereas PW18 Inspector Bhagwan Singh has stated that secret information was received by the Investigating Officer, when the accused persons were searched in the locality. PW20 Inspector Ashok Gera has stated in the cross examination that on 11/06/2006, they had searched for the accused persons, but accused persons were not available and on 12/06/2006, they again reached at the houses of accused persons, but their houses were found locked. He received secret information on telephone, when he was walking on road. He also requested 2-3 public persons to join the investigation, but they refused. Thereafter, they reached at the park. Informer met them outside the park, as told by him on telephone, and accused persons were apprehended, while they were sitting.
Learned defence counsel has contended that PW18 Inspector Bhagwan Singh has also stated in the cross examination that accused persons were spotted immediately on entering the park. In fact, they were sitting straight in front of the gate at the distance of about 100 metres from the gate. All the three persons were sitting in the circle and were not seeing towards the gate. Accused persons were apprehended in the sitting posture. Learned defence counsel has further contended that PW9 SI Lalit Kumar has stated that accused persons tried to flee away from the spot, but the accused persons were apprehended, so in view of contradictions, witnesses cannot be believed.
SC No. 52/1 27In my view, the contradictions, as pointed out by learned defence counsel, are minor in nature and the witnesses cannot be disbelieved in any manner. PW9 SI Lalit Kumar did not join the investigation on 11/06/2006 and PW18 Inspector Bhagwan Singh and PW20 Inspector Ashok Gera both have corroborated each other that on 11/06/2006 after completing the proceedings at the spot, they searched for the accused persons. Similarly, PW2o Inspector Ashok Gera has also deposed in the cross examination that on 12/06/2006, they again reached at the houses of the accused persons, but their houses were found locked and then he received secret information on telephone. PW9 SI Lalit Kumar, PW18 Inspector Bhagwan Singh and PW20 Inspector Ashok Gera have corroborated each other that secret information was received and accused persons were apprehended from a park on the pointing of the informer. It is immaterial that when accused persons were apprehended, they were sitting in the park or at the time of apprehension, they had tried to flee away. This contradiction is minor in nature and it is not affecting the testimonies of the witnesses in any manner.
Accused Zakir Ali has stated in his statement recorded u/s. 313 Cr.PC that he was picked up from his house, but no date or time has been given nor PW9 SI Lalit Kumar, PW18 Inspector Bhagwan Singh and PW20 Inspector Ashok Gera have been cross examined on this aspect. Similarly, accused Ashiq Ahmed has not explained as to from where he was arrested and at what time. In reply to question No. 37, accused Ashiq Ahmed has stated that he was arrested from his house, but again he has not given any date or time and in whose presence, he was arrested. No defence witness has been examined to support their contention that they were arrested from their houses. Similarly, accused Mahesh has not explained as to from where he was arrested by the police and at what time. In reply to question No. 37 of his statement recorded U/s. 313 CrPC, accused Mahesh has stated that he was arrested from his house, but again, he has also not given the time and date. More so, no witness has been examined in this respect. If all the accused persons were arrested from their respective houses, then it must had been witnessed by their SC No. 52/1 28 family members, but none of the family member has been examined in this respect that accused persons were arrested from their houses.
So, the testimonies of PW9 SI Lalit Kumar, PW18 Inspector Bhagwan Singh and PW20 Inspector Ashok Gera inspire confidence. They are trustworthy regarding the arrest of the accused persons from the park on the pointing of secret informer.
Learned defence counsel has contended that recovery of Axe on the pointing of accused Zakir Ali is doubtful as according to PCR Form Mark PW20/B, when the PCR reached at the spot, it was written in Part-II of the PCR form that a person was lying in a well in front of RD School, aged 20-25 years, height 5'6-7", wearing white jeans and khakhi baniyan and black belt. One Kulhari was lying nearby. The well is 20-25 feet deep. Bricks of boundary wall of well were also found broken. Well is in the plot.
Learned defence counsel has contended that from the contents of Part-II of Mark PW20/B, it is clear that the recovery of Axe on the pointing of accused Zakir Ali is fabricated. In fact, it was already recovered and was planted upon the accused persons.
To prove PCR form, in defencec, accused persons have examined DW1 HC Harphool. He has stated that on 11/06/2006, he was on duty in PCR van Power- 55 in the area of Uttam Nagar. He was in-charge of the PCR van. At about 6.40 a.m., he received a call about a dead body in a well. They reached there and saw dead body of a male outside the well. The well was dry. One Kulhari was also lying on the side of the well. He informed the police control room about the situation and also recorded the facts about the situation in the call register.
In the cross examination conducted by learned Addl. PP, DW1 has stated that PCR form is not in his handwriting nor was filled up by him. He does not remember the name of the Constable, who was with him in the PCR van due to lapse of time. They stayed there for about 20 minutes. He does not remember whether Kulhari was lying at the spot or not. Depth of the well was 20/25 feet and SC No. 52/1 29 nothing was visible in the well. So far as he remembered, dead body was already removed from the well. DW1 has further deposed in the cross examination that nothing else was lying at the spot except the articles as appearing in the photographs.
Learned Addl. PP has contended that Kulhari is not visible in the photographs Ex. P1 to Ex. P14. Learned Addl. PP has further contended that name of DW1 is also not appearing in the PCR form, who informed about the situation to Police Control Room. So, DW1 cannot be believed that one Kulhari was also lying by the side of the well. More so, from the contents of Mark PW20/B, it seems that Kulhari was lying in the well, whereas DW1 HC Harphool has stated that it was lying by the side of the well. In Par-II of PCR from Mark PW20/B, name of one SI Mahesh Kumar is appearing on the same and further DW2 HC Ajeet Singh was examined, who has deposed that on 11/06/2006, he was on duty in Control Room, Police HQ in the night from 8.00 p[.m to 8.00 a.m. He had seen Para-II of PCR form Mark PW20/B and stated that the same is not in his handwriting. He cannot say who wrote the same in Part-II i.e. Mark PW20/B. Learned Addl. PP has contended that accused persons have not been able to prove Part-II of the PCR form and even otherwise, two meanings can be drawn from the contents of Part-II that either Axe was lying with the dead body in the well or was lying outside the wall nearby the well. On the other hand, learned defence counsel has contended that from this writing of Part-II of PCR from Mark PW20/B, it is clear that when PCR reached there, dead body was lying in the well.
PW20 Inspector Ashok Gera has deposed that body was brought out from the well and he has nowhere deposed that PCR was also present there. Even PW20 has not been cross examined as to by whom the dead body was brought out from the well and in what manner, but PW20 has been cross examined about the PCR, who has deposed that when he reached at the spot, PCR van was not there. He made inquiries about the arrival of the PCR Van and was told that it reached at the spot, however, it had already left before his arrival at the spot.
SC No. 52/1 30Learned defence counsel has further contended that from this part of the cross examination of PW20, it is corroborated that when the PCR reached at the spot, dead body was lying in the well with the Kulhari.
PW18 Inspector Bhagwan Singh has also deposed that dead body was lying in a try well. The same was brought out from the well. PW18 has also been cross examined about the PCR, but he has stated that he does not know if the fact regarding lying of kulhari at the place of crime was also intimated to the Police Control Room or not. PW18 has voluntarily stated that this information was not conveyed to the Police Station from the Police Control Room. So, PW18 is not helpful in any manner to decide the fact as to whether Kulhari was lying at the spot, when the dead body was brought out from the well or was later on recovered at the instance of accused Zakir Ali from the adjoining plot, under the heap of bricks.
In view of the testimonies of PW18 Inspector Bhagwan Singh and PW20 Inspector Ashok Gera and DW1 HC Harphool, it is doubtful whether the Kulhari was lying on the side of the well or was got recovered by accused Zakir Ali from adjoining plot under the heap of bricks on the next date i.e. 12/06/2006 , after his arrest by the police.
Learned defence counsel has contended that as the recovery of Kulhari/axe on the pointing of accused Zakir Ali is doubtful, so, prosecution has not been able to connect the accused persons with the murder of deceased Bablu Khan.
In my opinion, the same is not tenable because there is last seen evidence against the accused persons and also blood stained clothes of accused were recovered having same blood group as of deceased and it has been held in 2008 CRLJ 816, Umar Mohd Vs State of Rajasthan that "We also do not find any force in the submissions of the Ld counsel that the weapon of offence were not recovered. In any event, non-recovery of incriminating material from the accused cannot be a ground to exonerate them of the charges when the eye-witnesses by the prosecution are found to be trustworthy".
SC No. 52/1 31According to Ex. PW20/D, Ex. 8 ie. Axe with wooden handle and Ex. 9a and Ex. 9b i.e. wearing clothes of deceased Bablu Khan were also examined and these were also containing human blood of "O" group except Ex. 9b as there was no reaction regarding grouping of the blood. So, from the FSL reports Ex.PW20/C, Ex. PW20/D and Ex. PW20/E, prosecution has been able to connect blood stained wearing clothes of the accused persons having human blood of "O" group, which was found on the blood stained earth, earth control, Axe, wearing clothes of deceased as of human blood of "O" group and was similar of human blood of "O" group of blood sample, which was taken in the hospital of deceased Bablu Khan.
Learned defence counsel has contended that recovery of the blood stained clothes, as deposed by the witnesses, is also doubtful from the possession of all the three accused persons as witnesses have contradicted each other in this respect.
Learned defence counsel has contended that PW9 SI Lalit Kumar has stated in the cross examination that clothes, which were got recovered by accused Zakir Ali were lying under the stairs and that place was open. PW9 did not see as to how the clothes were lying under the stairs, whether were hidden or open. Learned defence counsel has further contended that PW9 has further deposed in the cross examination that accused Ashiq Ahmed brought out clothes from the room and handed over to the Investigating Officer. PW9 did not enter the room. So, he cannot be believed in this respect.
Learned defence counsel has further contended that PW18 Inspector Bhagwan Singh has also deposed that he does not remember the colour of the polythene, in which, blood stained clothes were produced, but these were brought out by accused Zakir under the staircase. Similarly, accused Ashiq Ahmed @ Raju also produced one polythene, which was lying under the cot.
Learned defence counsel has further contended that PW20 Inspector Ashok Gera has also stated in the cross examination that the clothes were lying SC No. 52/1 32 beneath the first step of the staircase, which were produced by accused Zakir Ali. He does not remember the colour of the polythene. Learned defence counsel has further contended that PW20 Inspector Ashok Gera has also not corroborated the witnesses regarding recovery of blood stained clothes from the possession of the accused persons on their pointing.
The contentions of learned defence counsel are not tenable in any manner as PW9 SI Lalit Kumar, PW18 Inspector Bhagwan and PW20 Inspector Ashok Gera have corroborated each other that blood stained clothes were recovered from the stairs of the house of accused Zakir Ali and also have corroborated that accused Zakir had produced his blood stained clothes. According to FSL reports, clothes were found stained with human blood of "O" group, which was of deceased Bablu Khan and the accused persons have not been able to explain as to how blood of deceased Bablu Khan appeared on their wearing clothes. It is also not challenged by the accused persons that the blood stained clothes, which were seized by the police, were not their wearing clothes and were planted upon the accused persons. It is also not suggested that their wearing clothes were taken into possession by the police and they were stained with the blood of deceased Bablu Khan and were planted against them. Except the recovery of Axe on the pointing of accused Zakir Ali, which also having stains of human blood of"O" group i.e. of deceased Bablu Khan, prosecution has been able to prove the arrest of accused persons in this case by the police officials, as deposed by them, and further recovery of blood stained clothes from their possession, which accused persons have not been able to explain in any manner, indicates that the accused persons have committed murder of Bablu Khan.
In State of Himachal Pradesh Vs. Jeet Singh SC 1991 page 1, Law Finder-Library Edition Supreme Court Law Finder, it has been held that:
" There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is " open or accessible to others". It is a fallacious notion that when SC No. 52/1 33 recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the articles is buried on the main roadside or if its concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. Pulikrai Kottaya, AIR 1947 PC 67. The said ratio has received unreserved approval of this court in successive decisions. (Jaffar Hussain Dastagir vs. State of Maharashtra, 1969(2) SCC 872, K.Chinnaswamy Reddy v. State of Andhra Pradesh, A.I.R. 1962 SC 1788, Earabhadrappa @ Krishnappa v. State of Karnatka, 1983(2) SCC 330, Shamshul Kanwar vs. State of U.P., 1995 (4) SCC 430, State of Rajasthan v. Bhup Singh,1997 (10) SCC 675.
In view of above discussion and the judgment relied upon, the blood stained clothes of accused Zakir Ali and Ashiq Ahmed were recovered on 12/06/2006 from their respective houses, which they had produced themselves. So, it cannot be said that recovery was effected from an open place, which was accessible to all.
PW8ASI Satyavir Singh has further corroborated with these witnesses and has deposed that on 12/06/2006, PW20 Inspector Ashok Kumar handed over four pullandas sealed with the seal of "AKG" to him and he deposited the same in the malkhana vide entry No. 4160 in register No. 19, copy of which is Ex. PW8/B. On 13/06/2006, PW20 Inspector Ashok Kumar further handed over one pullanda and one envelope sealed with the seal of "DFMT DDU Hospital" and one sample seal of "DFMT" to him. He deposited the same in the malkhana vide entry No. 4164, copy of which is Ex. PW8/C. On 13/07/2006, he alongwith PW20 Inspector Ashok Kumar went to DDU hospital mortuary alongwith one pullanda containing SC No. 52/1 34 weapon and the same was handed over to the doctor for obtaining the opinion. On 19/07/2006, PW20 Inspector Ashok Kumar handed over to him one pullanda containing weapon, sealed with the seal of DFMT and he deposited the same in the malkhana.
PW8 has further deposed that on 26/07/3006, as per instruction of Investigating Officer, he handed over seven pullandas sealed with the seal of "AKG" and two pullandas sealed with the seal of "DFMT" , one envelope and one sample seal of DFMT to Constable Rajbir Singh for depositing the same in FSL, Rohini, vide RC No. 122/21, who after depositing the same, handed over the receipt on RC, copy of which is Ex. PW8/E. PW7 Constable Rajbir has further corroborated these facts that he took sealed pullandas to FSL and deposited the same.
According to the FSL report, Ex. PW20/C, blood stained earth, earth control, metallic chain and a pair of hawai chappal were examined in the FSL. According to report of FSL, Ex.1 and Ex. 2 i.e. blood stained earth and earth control and soil adhering to chappal Exhibit-4 was found to be possessing similar physical characteristics. Appreciable amount of soil was not found adhering to metallic chain for comparison with Ex. 2. According to another FSL report Ex. PW20/D, these exhibits i.e. 1,2, 3 and 4 were examined as to whether there was any blood on the same and blood was detected on Ex. 1 and Ex. 2 only i.e. blood stained earth and earth control and blood could not be detected on Ex. 3 i.e. metallic chain and Ex. 4 i.e. pair of hawai chappals.
Blood stained clothes of the accused persons sealed with the seal of "AKG" were numbered as Ex. 5a, 5b, 6a, 6b, 7a and 7b. Blood was also detected on these exhibits and according to serological report Ex. PW20/E, blood stained earth was containing human blood, but grouping could not be done as there was no reaction. However, blood sample of the deceased was found of human of "O"
group. Blood stained clothes of the accused persons Ex. 5a, 5b, 6a, 7a and 7b were also found containing human blood of "O" group except 6b, which was found SC No. 52/1 35 containing human blood, but grouping could not be done as there was no reaction.
PW14 W/Constable Shakuntala has further corroborated and has deposed that on 13/07/2006, she was posted at PS Uttam Nagar and was working as DD Writer. On that day, PW8 HC Satbir, rider HC Ashok and PW20 Inspector Ashok Gera went to DDU hospital and she made departure entry N. 34B in DD register, copy of which is Ex. PW14/A. PW18 Inspector Bhagwan has also identified the wearing clothes of deceased as Ex. P8 and Ex. P9 with belt , blood stained earth as Ex. P10, earth control as Ex. P11, metallic chain as Ex. P12 and one pair of hawai chappal as Ex. P13.
PW16 Inspector Suresh Chand conducted further investigation and he has deposed that on 01/08/2006, he was posted as Inspector Investigation Uttam Nagar. On that day, he received the case file of this case and on 03/08/2006, he collected scaled site plan. He got extended the JC remand of the accused persons. On 29/08/2006, he obtained the copy of ration card from Aisha Begum, mother of accused, which was seized vide memo Ex. PW7/A. He also obtained copy of ration card of accused Mahesh from his wife Urmila Devi and seized the same vide memo Ex. PW7/B. He went to the house of accused Zakir, but his house was found locked. He recorded statement of Constable Rajbir. He filed the challan in the court on 06/09/2006. He also obtained the FSL result in 2007 and filed the same in the court. PW16 has not been cross examined in any manner. Hence, his testimony is unrebutted and unshaken.
Cause of Death:
PW17 Dr. B.N. Mishra has appeared in place of Dr. S. Deka to prove postmortem report and opinion regarding weapon of offence. He has deposed that on 13/06/2006, postmortem on the body of Bablu Khan was conducted by Dr. S. Deka, who was posted in Department of Forensic Medicine as Senior resident, under his supervision. As per postmortem report No. 484/06, body was sent by SC No. 52/1 36 PW20 Inspector Ashok Gera with the alleged history that body was found in a dry well with multiple deep cut wound on the body. Internal and external examinations were conducted and cause of death was due to cranio cerebral damage consequent to injuries. All the injuries were antermortem and same in duration. Injury No.1, 2, 3 and 4 were sufficient to cause death individually in the ordinary course of nature.
PW17 has further deposed that on 13/07/2006, Dr. S. Deka received on sealed packet with the seal of "AKG" from PW20 Inspector Ashok Gera for obtaining subsequent opinion regarding the weapon of offence and after examination of the weapon, Dr. S. Deka gave his opinion that injuries on the body could be possible by that weapon/Kulhari. PW17 has identified signatures of Dr. S. Deka at point A on postmortem report Ex. PW17/A as he had seen him writing and signing in the official capacity. PW17 has not been cross examined by learned defence counsel in any manner. Hence, prosecution has been able to prove from the deposition of PW17 Dr. B.N. Mishra the cause of death and also the subsequent opinion of the doctor regarding weapon of offence.
Postmortem on the body of deceased Bablu Khan was conducted on 13/06/20076 at 12.30 p.m. Time since death is 2½ days, which comes about 12.30 a.m. of the intervening night of 10/11.06.2006. According to the deposition of PW3 Ashaf Beg, accused Zakir and Ashiq Ahmed took deceased Bablu Khan on 10/06/2006 at about 8.30 p.m. and according to postmortem report Ex. PW17/A, Bablu Khan was murdered at about 12.30 a.m. of the intervening night of 10/11.06/2006 i.e. after about four hours of 8.30 p.m. Learned defence counsel has contended that one last seen evidence is not sufficient to held the accused persons guilty and has relied upon 2010 (4) JCC 2903 titled as Ram Bilas V. The State (Delhi Admn.), wherein it has been held that "while appreciating circumstantial evidence, the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are completely pointing to the guilt of the accused persons".SC No. 52/1 37
Learned defence counsel has further relied upon 2011 (1) JCC 441 titled as Ganesh Vs. State , wherein it has been held that "if there is no reliable evidence of the deceased and the accused being last seen alive together in as much as the exact date and time of the death is not known, rather there is a gap of about two days in the time of death as per the report of the postmortem examination and when the accused was last seen together with the deceased, then the subsequent conduct , which by itself is insufficient to prove that it could only be the accused, who was responsible for the murder of the deceased".
In my view, the judgments, as relied upon by learned defence counsel, are not applicable to the facts and circumstances of the case as in 2011(1) JCC 441 titled as Ganesh Vs. State , there was a gap of two days in the last seen together and the time of death, whereas in the present case, deceased was taken by accused Zakir Ali and Ashiq Ahmed on 10/06/2006 at about 8.30 p.m. on the pretext that they wanted to talk with deceased Bablu Khan on some matter. This fact has been proved by the prosecution beyond reasonable doubts and accused persons have not been able to explain about the same in any manner. Death of deceased took place at about 12.30 a.m. night on the same day. So, there was not a considerable gap in between the last seen together and the time of death. The same is also corroborated with the fact that blood stained clothes, which the accused persons got recovered, were having human blood of "O" group, which was of deceased and neither the accused persons have explained as to where deceased had gone after he accompanied them on 10/06/2006 at about 8.30 p.m. and also how the blood appeared on their wearing clothes. Similarly, in another judgment 2010 (4) JCC 2903 titled as Ram Bilas V. The State (Delhi Admn.), the witnesses were found unreliable regarding the manner in which the murder was committed.
It has been observed by the Hon'ble Supreme Court of India in 2007(2)R.C.R(Criminal)458 titled as State of Goa Vs Sanjay Thakran, which is as under:-SC No. 52/1 38
"From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."SC No. 52/1 39
In view of above, prosecution has been able to prove beyond reasonable doubts that on 10/06/2006 at about 8.30 p.m., accused Zakir Ali and Ashiq Ahmed came to the house of PW3 Ashaf Beg and stated that Bablu Khan should be sent with them as they wanted to speak with him and Bablu Khan left with them.
The prosecution has also been able to prove beyond reasonable doubts from the postmortem report and time since death that Bablu Khan was murdered at about 12/30 a.m. in the intervening night of 10/11.06.2006 . The prosecution has also been able to prove beyond reasonable doubts the motive to commit murder of Bablu Khan by accused Zakir Ali and Ashiq Ahmed as they had a quarrel with Bablu Khan on 10/05/2006 and again on 09/06/2006, they caught hold Bablu Khan to take revenge, but he was saved by his friends.
The prosecution has also been able to prove beyond reasonable doubts that blood stained clothes of accused Zakir Ali and Ashiq Ahmed were recovered on their pointing from their respective houses by the police party and according to the FSL report, blood stains on the clothes of the accused persons were of the same blood group as of deceased Bablu Khan examined in FSL i.e. his blood sample, which was taken by the doctor during postmortem examination.
The prosecution has also been able to prove beyond reasonable doubts that both accused Zakir Ali and Ashiq Ahmed with the help of accused Mahesh caused disappearance of evidence of the commission of offence by throwing the body in a dry well, which was recovered from there by the police.
The prosecution has also been able to prove that the time gap i.e. 8.30 p.m., when both accused Zakir Ali and Ashiq Ahmed and deceased were lastly seen together alive and time 12.30 a.m. night, when Bablu Khan was murdered in the same intervening night of 10/11.06.2006, was so small that possibility of another person being with the deceased can be completely ruled out. More so, the murder of Bablu Khan came in the notice in the morning at about 6.50 a.m. and in such circumstances, likelihood of any person other than the accused persons being the author of crime was impossible.
SC No. 52/1 40Although, prosecution has not been able to prove the recovery of Axe on the pointing of accused Zakir Ali from the adjoining plot of the place of recovery of dead body, but from the opinion of the doctor, which has been proved beyond reasonable doubts, the injuries sustained by Bablu Khan could be caused with the axe/Kulhari. According to postmortem report Ex. PW17/A, deceased Bablu Khan sustained 12 injuries, which could not have been caused by a single person.
In view of above discussion, prosecution has been able to prove offence U/s. 302/34 of IPC against accused Zakir Ali and Ashiq Ahmed beyond reasonable doubts, for which, they are held guilty and convicted for the same.
After committing the murder of Bablu Khan, both accused Zakir Ali and Ashiq Ahmed, in furtherance of their common intention with the help of their co- accused Mahesh caused the evidence of commission of offence to disappear and had thrown the dead body in the dry well. So, prosecution has also been able to prove beyond reasonable doubts offence U/s. 201/34 of IPC against accused Zakir Ali and Ashiq Ahmed, for which, they are held guilty and convicted for the same. Finding qua offences U/s. 302/34 of IPC and 201/34 of IPC against accused Mahesh:
It has already been discussed that there is no last seen evidence against accused Mahesh. Accused Mahesh came in the picture from the statement of accused Zakir Ali Ex. PW5/A, which was recorded on 11/05/2006 regarding the quarrel dated 10/05/2006, wherein accused Zakir Ali told to the police that during the quarrel, accused Ashiq Ahmed and Mahesh were also with him. Later on, accused Mahesh was apprehended with accused Zakir Ali and Ashiq Ahmed by the police party in this case and accused Mahesh got recovered blood stained clothes from his house and PW9 SI Lalit Kumar, PW18 Inspector Bhagwan Singh and PW20 Inspector Ashok Gera have corroborated in this respect. According to FSL reports Ex. PW20/C to Ex. PW20/E, blood stained clothes were examined in FSL and were found containing human blood of "O" group, which was similar to the SC No. 52/1 41 blood group of deceased Bablu Khan, which was also found of human blood of "O" group as per blood sample taken by the doctor in the hospital.
Learned defence counsel for accused Mahesh has contended that PW9 SI Lalit Kumar has stated in his cross examination that he had no information about accused Mahesh and they came to know about accused Mahesh from disclosure statement of accused Zakir Ali. Learned defence counsel has further contended that PW9 SI Lalit Kumar has stated in the cross examination that he does not remember the name of the police persons, who accompanied to the house of accused and went inside the house of accused Mahesh, which shows that recovery of blood stained articles was not effected in presence of PW9 SI Lalit Kumar from the house of accused Mahesh.
Learned defence counsel has further contended that PW18 has stated in the cross examination that he did not enter the house of accused Mahesh on reaching there, which means that he is not a witness to the recovery of blood stained clothes from accused Mahesh.
On the other hand, learned Addl. PP has contended that PW18 Inspector Bhagwan Singh has denied the suggestion that accused Mahesh was picked up at about 12 p.m. on 12/06/2006 from his residence. Learned APP has further contended that a court question was also asked from PW18 Inspector Bhagwan Singh to clarify as to whether blood stained clothes of accused Mahesh were recovered in his presence or not, to which, PW18 has replied that he was standing at the entrance gate of the house and could see that accused Mahesh got recovered blood stained clothes, kept in a polythene, from the corner of the room.
PW20 Inspector Ashok Gera has denied the suggestion that before arrest of accused Mahesh in this case, they had visited the house of accused Mahesh, which clearly proves that blood stained clothes were not planted in any manner. PW20 has also denied that accused Mahesh was known to him before the incident and has further denied the suggestion that they did not go to the house of accused Mahesh or that recovery was not effected from his house, as deposed by them .SC No. 52/1 42
The testimonies of PW9 SI Lalit Kumar, PW18 Inspector Bhagwan Singh and PW20 are inspiring confidence and they are trustworthy and can be relied upon about the recovery of blood stained clothes from the possession of accused Mahesh, which have been connected with the blood group of deceased Bablu Khan. Merely that recovery was effected from an open place, accessible to other family members, does not mean that the same was not effected at the instance of accused Mahesh. Recovery from the corner of the room itself shows that it was not an open place, Accused Mahesh has not explained as to how blood stains appeared on his clothes, which were of the same blood group as of deceased Bablu Khan. In State of Himachal Pradesh Vs. Jeet Singh SC 1991 page 1, Law Finder-Library Edition Supreme Court Law Finder, it has been held that:
" There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is " open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the articles is buried on the main roadside or if its concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. Pulikrai Kottaya, AIR 1947 PC 67. The said ratio has received unreserved approval of this court in successive decisions. (Jaffar Hussain Dastagir vs. State of Maharashtra, 1969(2) SCC 872, K.Chinnaswamy Reddy v. State of Andhra Pradesh, A.I.R. 1962 SC 1788, Earabhadrappa @ Krishnappa v. State of Karnatka, 1983(2) SCC 330, Shamshul Kanwar vs. State of U.P., 1995 (4) SCC 430, State of Rajasthan v. Bhup Singh,1997 (10) SCC 675.
In view of above, the contentions of learned defence counsel are not SC No. 52/1 43 tenable in any manner. As there is no last seen evidence against the accused, hence, prosecution has not been able to prove offence U/s. 302/34 of IPC against accused Mahesh, but from the recovery of blood stained clothes of accused Mahesh, having same blood group of deceased Bablu Khan, prosecution has been able to prove beyond reasonable doubts that accused Mahesh was knowing or having reason to believe the same that murder of Bablu Khan was committed and he caused evidence of commission of offence to disappear i.e. by throwing the dead body of deceased Bablu Khan in a dry well with co-accused Zakir Ali and Ashiq Ahmed in the mid of intervening night of 10/11.06.2006. So, prosecution has been able to prove offence U/s. 201/34 of IPC against accused Mahesh, for which, he is held guilty and convicted for the same.
Announced in the open court (VIRENDER KR. GOYAL)
today on 7th of May'2011 ADDL. SESSIONS JUDGE
FAST TRACK COURT
ROHINI
SC No. 52/1 44
SC No. 52/1 45