Delhi District Court
State vs Shadab Khan on 17 September, 2011
IN THE COURT OF MS. R. KIRAN NATH
ASJ 01, SOUTH DELHI, SAKET COURTS
S. C. No. 01/10
STATE
Vs.
Shadab Khan
S/o Md. Wasim Khan
R/o Mohilla Pakka Bagh
PSShahabad, DistrictHardoi,
UP.
FIR No. : 513/09
P.S. : Mehrauli
U/S : 302 IPC
Date of Institution : 06012010
Date of Judgment : 17092011
FIR No. : 513/09 1
J U D G M E N T
1. The accused has been charged with and has faced trial for having committed offence u/s 302 IPC.
2. The case of the prosecution is that on 030709 a dead body of female was found lying near Mehrauli Nazria Peer Baba. The initial investigations were made by the police at the spot. However, the dead body could not be identified despite efforts. The postmortem was finally got conducted on 070709 and the body was cremated. The cause of death was opined to be asphyxia due to ligature strangulation. FIR u/s 302 IPC was registered on this postmortem report. Accused was apprehended in Gurgaon on 120909. The accused is alleged to be the husband of the deceased. He disclosed that he was married to deceased Sabha in November, 2005. His wife had developed illicit relations with neighbour and despite reprimanding she did not mend her ways. Once he returned from his duty at night and caught his wife red handed with another boy and he FIR No. : 513/09 2 decided at that time itself to punish his wife. Accordingly he had taken her on 010709 on the pretext of taking her for outing. He took her inside the jungle near Dargah Aashiq Allah and strangulated her with her dupatta and told everyone that she had gone to her parental house.
3. Statement of the persons in the neighbourhood of the accused were also recorded who stated that they had not seen the wife of the accused since 010709. Accused had also handed over the photographs of his wife from inside his house which was seized by the police and is put up by the police as the photograph of the deceased. After completing the investigation the chargesheet was filed in the court.
4. On the basis of allegations contained in the charge sheet, charge u/s 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In support of its case the prosecution examined 18 witnesses.
FIR No. : 513/09 3
6. PW1 is ASI Ravi Shankar, who joined the investigation of this case when accused Shadab was arrested u/s 41.1 Cr.PC by Special Staff. He had proved his arrest memo as Ex.PW1/A and his disclosure statement was proved as Ex.PW1/B. He further testified that police custody of accused was taken and thereafter accused was taken to Gurgaon where he pointed out his room and produced one photograph displaying him and his wife. The same was seized vide memo Ex.PW1/C and was proved as Ex.P2. IO also seized the borrowing account register of the accused from the shop of Sanjeet Kumar vide memo Ex.PW1/D and was proved as Ex.P1 and the relevant entry at page no. 28 where account of accused was given was proved as Ex.D1.
7. PW2 is Dr. Akhilesh, Junior Resident from AIIMS hospital. He had proved the postmortem report of the deceased as Ex.PW2/A which was prepared by Dr. Sunay Mahesh. He had also proved the subsequent opinion as Ex.PW2/B. FIR No. : 513/09 4
8. PW3 is Dr. Sudhir Gupta, Associate Professor at AIIMS hospital, under whose supervision Dr. Sunay Mahesh prepared the postmortem report. He had also signed the postmortem report. He also testified that opinion given in the postmortem report regarding cause of death was asphyxia due to ligature strangulation.
9. PW4 is Sanjeev Kumar, who had testified that he was having a parchun shop and accused Shadab present in the court used to reside in the neighbourhood and used to take grocery from his shop on credit basis. He had also seen the photo Ex.P2 and identified the wife of the accused in Ex.P2 and also deposed that finally an amount of Rs.1200/ was due towards the accused. He further testified that his register was seized in which the account of the accused was written. However the witness was partly hostile in as much as he testified that he did not ask the accused about his wife at any point of time and that he did not know anything else.
10. PW5 is Satpal Singh, in whose house accused was FIR No. : 513/09 5 staying with his wife on rent. He testified that accused took a room from him in the month of June 2009 in which he was staying along with his wife and this room was situated on a plot at Naharpur. That accused met him on 300609 and when he asked rent from him, he stated that he will pay the same in 12 days. That after 57 days he received rent. He further testified that police met him on 221009 and told him that accused had killed his wife and that he did not know anything else.
11. PW6 is Tek Chand, who used to work with accused in factory at Manesar. He had testified that he was having a mobile no. 9813789082 upon which persons related to accused used to make call. That in such an event he used to hand over his phone to accused Shadab. He further testified that once accused received a call from lady but he did not know if she was his wife or not. That he did not know what talks took place between the two.
FIR No. : 513/09 6
12. PW7 is constable Sanjeev, who testified that on 110909 accused Shadab was arrested in his presence by SI Shiv Prasad. He had proved the arrest memo of accused as Ex.PW7/A and his personal search memo as Ex.PW7/B. The disclosure statement made by the accused was proved by him as Ex.PW7/C and pointing out memo was proved as Ex.PW7/D.
13. PW8 is Dhanpat, who used to work with accused Shadab. He testified that he did not know if any call was received on his phone on any date and he did not know anything else.
14. PW9 is SI Shiv Raj Singh, who had arrested the accused u/s 41.1 (A) Cr.PC at the instance of secret informer. He prepared the kalandra Ex.PW9/A and proved the copy of DD no. 11 as Ex.PW9/B. He also recorded the disclosure statement of the accused and prepared the pointing out memo.
15. PW10 is Shri Ishtifa Ali, the maternal uncle of the Sabha. He had testified that deceased (Sabha) was FIR No. : 513/09 7 married to accused Shadab Khan, present in the court. However, after the marriage there were quarrels between the accused and Sabha. That on such quarrels, they used to intervene and pacify and Sabha used to go again to the house of the accused. That deceased used to complain about the beatings given by the accused and they used to convince accused that he should not give beatings to Sabha. He further testified that Sabha went missing and accused told them that Sabha had gone to bring some medicine. That accused told them that he had asked Sabha to wait at a place when they went to take medicine but he found Sabha missing when he came back. He further testified that he did not know what happened thereafter. However, he received an information from PSMehrauli that accused had killed Sabha. That he was shown the photograph of Sabha in the police station but her face was not visible in the photographs therefore, he was not sure that the photographs were that of Sabha.
FIR No. : 513/09 8
16. PW11 is constable Azir Ahmad Siddiqui, uncle of deceased. He had testified that deceased Sabha was the daughter of his sister in law (sali). That there used to be some quarrels between the deceased and accused; they used to pacify both of them and everything was running smoothly. That they came to know that Sabha was missing; accused Shadab was also searching. That police informed that some dead body was recovered but he could not identify the deceased from the photographs.
17. PW12 is constable Sher Singh, who had deposited the case property with FSL Rohini.
18. PW13 is SI Mahesh Kumar, the draftsman who had prepared the scaled site plan of the spot on the basis of the rough notes taken by him. He had proved the said site plan as Ex.PW13/A.
19. PW14 is SI Brahm Prakash, who had testified that on the said day at the instructions of IO, he collected one sealed pulanda sealed with the seal of Department of Forensics Medicines containing ligature material along FIR No. : 513/09 9 with the sample seal and opinion letter and took the same to AIIMS hospital and deposited in the Department of Forensic Medicines.
20. PW15 is SI Paras Nath Verma, who had gone to the spot on receipt of a call vide DD no. 18B Ex.PW15/A on 030709 along with constable Vijender and constable Karan Singh and found a dead body in semi decomposed condition. He called the crime team and got the spot photographed. He also seized one wig, blood stained earth and slippers of the deceased vide memo Ex.PW15/B and dead body was sent to AIIMS hospital. He further testified that on 070709 the postmortem of the dead body was got conducted. That prior to that he also conducted inquest proceedings vide memo Ex.PW15/C and Ex.PW15/D. He also proved the application for postmortem as Ex.PW15/E. He also seized the medical exhibits pertaining to deceased vide memo Ex.PW15/F.
21. PW16 is Retd. ASI Atar Singh, who had recorded FIR No. : 513/09 10 the DD no. 18B upon an information regarding discovery of the dead body of a lady. He had also proved DD no. 13B dated 120909 regarding arrest of accused Shadab u/s 41.1A Cr.PC vide DD no. 11 by special staff of SE district and further to send the IO to Patial House court for further action as Ex.PW16/A.
22. PW17 is constable Karan Singh, who had gone to the spot and had joined the investigations at spot and has deposed on the lines of prosecution case. He was also sent to AIIMS hospital for preservation of the dead body. He collected the medical exhibits of the dead body and handed over the same to the IO.
23. PW18 is Inspector Rajender Bhatia, the IO of the case. He has deposed on the lines of the prosecution case. He had testified that on 030709 an information was received about a female dead body near Ashiq Ali Dargah, Jungle, Mehrauli at PS vide DD no. 18B. The said DD was marked to SI Paras Nath who along with other staff reached the spot and conducted proceedings FIR No. : 513/09 11 u/s 174 Cr.PC and sent the dead body of the female to mortuary for postmortem. That SI Paras Nath made efforts and adhered to procedure formalities to establish the identity of the female dead body but despite efforts identity of the female dead body could not be established.
24. He further testified that on receipt of postmortem report and from the circumstances, he got the case registered (u/s 302 IPC) vide his endorsement Ex.PW18/A and took up the investigation. That during investigation, he prepared the site plan Ex.PW18/B without scale at the instance of ASI Ravi Shankar and also brought relevant papers under section 174 Cr.PC on record. Thereafter, special staff SE district got a report lodged at PSMehrauli regarding arrest of one Shadab in connection with murder of his own wife. The said Shadab (accused) was produced in the court on 120909. Subsequently, he also reached the court along with staff members and after seeking permission from the court, FIR No. : 513/09 12 he interrogated the accused and recorded his disclosure statement and arrested the accused. PC remand of the accused was taken and in pursuance to the same the accused took the police team to his rental home at village Naharpur, Gurgaon, from where he got recovered a photograph of his wife namely Sabha from an 'attechi' (suitcase) kept in the said home. The said photograph was seized and was Ex.P2. He also seized a register in which the transactions between the accused and shopkeeper were mentioned from that shopkeeper namely Sanjeet whose shop was situated in front of the said rental home. That he also obtained subsequent opinion from AIIMS on the ligature; he got the scaled site plan prepared from the draftsman; obtained the record of mobile phone Ex. C1 to C 29 through constable Khem Chand to establish that wife of accused used to call the accused in night hours to verify his presence at his working place.
25. He further testified that during police custody FIR No. : 513/09 13 remand accused also led them to the place of incident. That during investigation copies of DD no. 11 Ex.PW18/D; DD no. 7 Ex.PW18/E; photographs of dead body Ex.PW18/F 1 to F10 along with negatives Ex.F11 (colly); copies of disclosure of accused recorded vide DD no. 11 Ex.PW18/G; pointing out memo Ex.PW18/H were collected by him. He also collected the mobile crime team report Ex.PW18/J; copy of DD no. 18 B and copy of FIR Ex.PW18/L.
26. In his statement u/s 313 Cr.PC all the incriminating evidence was put to the accused which he denied and stated he had been falsely implicated in this case. He further stated that dead body alleged to be of his wife has not been identified by anybody and it was not the dead body of his wife. That he still felt that she was alive and that she was missing. He went to the PS Manesar, Nharpur, Gurgaon to lodge a missing complaint of his wife but he was told by the police to approach the concerned PS at his native place Lucknow FIR No. : 513/09 14 and District Hardoi. He informed his relatives at his native place at Lucknow and District Hardoi to do the same and in the meanwhile he along with other relatives kept on searching for his wife. That he had been implicated in this case by the police to dispose of the case pending in the PS. He further stated that he was not involved in this case in any manner. That all the disclosure statements were obtained by the police under duress and coercion as he was taken on police remand on false and frivolous grounds. Nothing had been recovered at his instance or at his pointing out. That he was not arrested by special cell, rather he had gone to PS in search of his wife on 110909 where he was arrested. That the age of his wife was 22 years whereas the age of the dead body in the postmortem was shown as 3032 years. He was living happily with his wife and he had never quarreled with her and had never beaten her.
27. I have heard the Ld. Addl. PP for the State and the counsel for the accused and have also gone through the FIR No. : 513/09 15 record carefully.
28. The dead body of the deceased was found lying abandoned in the jungle on 030709. After hue and cry notice, the postmortem was got conducted on 090709 according to which the cause of death was asphyxia due to ligature strangulation. The dead body was in decomposed condition when the same was discovered by the police. The FIR in this case was registered on 100909. The accused was arrested u/s 41 (h) Cr.PC on a secret information and thereafter stated to have made a disclosure statement about having killed his wife at the said place.
29. The case of the prosecution is that wife of the accused was having illicit relations with other persons for which accused had reprimanded his wife number of times but the wife did not relent and continued to indulge in illicit relations with other persons. Accused used to work in shifts and whenever there was any evening shift she used to check upon him by calling him FIR No. : 513/09 16 in his factory about the time he would return and then continue with her illicit relations. The deceased had telephoned the accused in the factory on the phone number of his colleague and the accused pretended that he was coming late. However, after saying so accused left early and went home and caught his wife red handed in compromising position with some other person and decided at that time to kill his wife. He had thus taken her out on that day and then strangulated her in the jungles. The accused had also disclosed that he had given the telephone number of his colleagues Dhanpat and Chautala to his wife as he was not having his phone number.
30. It is the case of the prosecution that the wife of the accused used to ring up the accused in his office to find out his time of return on the phone numbers of Dhanpat and Chautala. Both i.e. Dhanpat and Chautala were produced in the court as PW6 and PW8 but they both turned hostile.
FIR No. : 513/09 17
31. PW6 Tek Chand had stated that he had mobile phone and accused used to receive his calls on the said mobile phone; that once accused had received a call from a lady but he did not know if she was his wife or not or that what talks took place between them.
32. The other witness Dhanpat has been examined as PW8. He is totally hostile but had admitted that accused was working with him in the same factory but he did not know if any call was received at his mobile phone. He was declared hostile by the Ld. Addl. PP but he still denied that in the night shift of June, 2009 a phone call had been received at his phone from the wife of the accused or that he had called accused and accused and his wife had talks on his phone.
33. Thus, both these witnesses are inconsequential and do not establish the motive of the accused to kill his wife. There is no other evidence produced by the prosecution to establish the motive i.e. though it is the case of the prosecution that the people in the neighbourhood used to FIR No. : 513/09 18 talk about the wife of the accused having illicit relations at the back of accused; no person from the neighbourhod has been examined or produced in the witness box to this effect.
34. Ld. Addl. PP has tried to argue that call detail records of these witnesses establishes that the wife of the accused used to ring up the accused on the mobile phone to find out about his time of coming home. Even if it be so, in my opinion it does not establish anything. The deceased was the wife of the accused and even in the normal course when the accused was away working at night, wife may ring up her husband to find out about the time he would be returning. These call details by itself cannot establish that the wife of the accused was having illicit relations with other persons or that, that was the reason for which the accused decided to kill his wife.
35. The prosecution has tried to further put up a case that the deceased was last seen alive going with the FIR No. : 513/09 19 accused on 010709 by PW4 and PW5.
36. PW4 is Sanjeev Kumar, the shop keeper from whom the accused used to purchase groceries on credit basis and running account was maintained. This witness, however, turned totally hostile in the court and denied having seen the accused and his wife going away together in July, 2009 or that he had demanded money from them or that accused had told him that he was going out and will clear the account after coming back. He had produced his register Ex.P1 in which all the accounts were maintained and the account of the accused was written at page no. 28 and the relevant entry was Ex.PW1/D. Perusal of these entries show that the accused had taken grocery from the said witness in August, 2009 also and this witness had himself also stated that he did not know anything about the wife of the accused. He had denied that he ever demanded money from the accused while accused was going away with his wife in July, 2009. This gets fortified by the FIR No. : 513/09 20 entry in the register which shows that accused had purchased grocery in August, 2009 from him. Thus, there could not have been any question, anywhere of witness demanding the arrears from the accused in July, 2009.
37. The other witness put up by the prosecution to show that accused was last seen with his wife was PW5 Satpal Singh, from whom the accused had taken a room on rent and was staying along with his wife since 2009. He testified that accused had last met him on 300609 when he asked for his rent and he had assured to pay the same in one or two days and that he received the rent after 5 or 7 days i.e. he received the rent from the accused on 05th or 06th of July, 2009. Though he was declared hostile by the Ld. Addl. PP, the witness denied that he had met the accused on 010709 when he was leaving with his wife or that accused told him that he will pay rent after coming back as he was taking his wife out for few days.
FIR No. : 513/09 21
38. Thus it is seen that the prosecution has even failed to show that the wife of the accused was last seen in the company of the accused by any person on 010709 when he allegedly took her out the last time.
39. The other two witnesses relating to the strained relations between the husband and wife are PW10 and PW11.
40. PW10 Ishtifa Ali, is the maternal uncle of the deceased who had admitted that the accused and deceased used to quarrel but stated that after their intervention deceased used to be pacified and used to go back to the house of the accused again. That they came to know from the accused that Sabha had gone to bring some medicine and thereafter had gone missing.
41. Then there is PW11 constable Azir Ahmad Siddiq, who was related to the deceased and had testified that there used to be some quarrels between the accused and his wife but everything was running smoothly. They later came to know that Sabha had gone missing. FIR No. : 513/09 22
42. The photographs of the dead body was shown to these witnesses i.e. PW10 and PW11. However, PW10 and PW11 have both categorically stated in the court that they could not say if the photographs was that of Sabha (wife of deceased) as the face was not clearly visible.
43. Though the witness PW10 had admitted in the crossexamination that the accused used to give threats to kill his wife but he categorically denied that he had identified the deceased shown in the photograph Ex.PW10/1 to 10 as that of Sabha (wife of the accused). Similarly, PW11 had admitted that there were quarrels between accused and his wife but he had also categorically denied having identified the dead body in the said photograph Ex.PW10/1 to 10 as the photographs of Sabha (wife of the accused). The photographs Ex.PW10/1 to 10 are the photographs of the dead body found in the jungle on 030709. While the photo Ex.P2 is the photograph of the wife of the accused and the FIR No. : 513/09 23 accused together.
44. The photographs Ex.PW10/1 to 10 show the dead body to be in a decomposed state and the face is not clearly visible and seems to be highly decomposed.
45. It would be difficult to compare these photographs Ex.PW10/1 to 10 with the photograph Ex.P2 which shows the accused and his wife together. Not only this, even the postmortem report Ex.PW2/A also mentions that body was in advance decomposed state. It was specifically mentioned that face was disfigured due to advanced decomposition; both eye balls collapsed; tongue protruding from mouth; scalp hairs were easily pluckable; scalp was partially bald and abdomen wall was distended.
46. In these facts and circumstances of the case I hold that prosecution has not been able to connect that the dead body found by the police on 030709 at Mehrauli Nazeria Peer Baba was that of wife of the accused or to establish that the accused had murdered his wife Sabha. FIR No. : 513/09 24 The accused is thus acquitted of the charges levelled against him.
Announced in the open court on 17th September, 2011.
(R. Kiran Nath) ASJ01/South New Delhi.
FIR No. : 513/09 25 State Vs Shadab Khan FIR no. 513/09 PS Mehrauli 17092011 Present: Shri Manoj Chaudhary, Ld. Addl. PP for the State.
Accused on bail along with counsel.
Vide separate judgment of the date, accused is acquitted of the charges levelled against him.
Accused is directed to furnish bail bond in the sum of Rs.20,000/ with one surety in the like amount in terms of section 437A Cr.PC on 200911.
(R. Kiran Nath) ASJ01/Saket Court 17092011 FIR No. : 513/09 26 State Vs Shadab Khan FIR no. 513/09 PS Mehrauli 20092011 Present: Ld. Addl. PP for the State.
Accused is present along with counsel. Bail bond u/s 437A Cr.PC furnished by the accused and accepted.
File be consigned to record room.
(R. Kiran Nath) ASJ01/Saket Court 20092011 FIR No. : 513/09 27