Delhi District Court
State vs . : 1) Md. Imran on 18 April, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 59391/16
FIR No. : 513/16
U/s : 302/392/397/411/34 IPC
P.S. : Narela
State Vs. : 1) Md. Imran
S/o Sh. Md. Ahmed
R/o H.No.1026, Pocket-4,
Sector A-6, Narela, Delhi.
2) Saddab @ Saddam
S/o Md. Israr Ahmed
R/o H.No.499, Pocket-7,
Sector A-10, Narela, Delhi.
Offence complained of : 302/392/397/411/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Accused Imran convicted u/s 411 IPC
Accused Saddab stands acquitted.
Date of committal : 19.10.2016
Date of Judgment : 18.04.2018
JUDGMENT
1. On 12.07.2016 at about 6:45 am an information was received that in front of factory No.A-74 DSIDC Narela dead body of a boy is lying. SI Satish along with staff reached there and found that a dead body of a male aged about 45 years was lying in front of A-74, DSIDC, Narela on the road. There were injury marks of sharp edged weapon on the S.C. No:59391/16 State Vs.Imran etc. : 1 :
chest and abdomen. Clothes were found to be smeared with blood. Crime team visited the scene of crime and inspected the spot. Photographs were taken. Dead body was identified as of Ashok s/o Sh. Mange Ram R/o village Bhorgarh. Post mortem was got conducted. The belongings of the deceased i.e. about Rs.2,000/- to Rs.2500/- and mobile phone were found missing. It was suspected that he has been killed while committing robbery. The IMEI Number of mobile phone of deceased was put on survilance & it was found that mobile phone is used by Smt. Sheela using mobile No.9911618137. Sheela was contacted who told that mobile phone was purchased by her nephew Aakash. Aakash was contacted who told that he purchased it from Imran through Ajay. Imran and Saddab were apprehended. They confessed about commission of Crime. The mobile phone was recovered. The weapon of offence was also got recorded. After completion of investigation charge sheet was filed against accused persons Imran and Saddab. Ld. MM after complying with the provisions of 208 Cr.PC committed the case to the Sessions Court as offence punishable u/s 302 IPC is exclusively triable by the Sessions Court.
2. Accused were charged for the offence punishable u/s 392 r/w 34 IPC, u/s 302 r/w 34 IPC and 397 IPC by my Ld. Predecessor. Accused Saddab and Imran were also charged S.C. No:59391/16 State Vs.Imran etc. : 2 :
for the offence punishable u/s 411 IPC by my Ld. Predecessor. Both the accused pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
3. Prosecution in order to prove its case examined 26 witnesses.
4. Dr. Anshul Saxena was examined as PW-1. On 12.07.2016 he conducted the post mortem on the dead body of Ashok Kumar S/o Sh. Mange Ram. On external examination he found four injuries detailed in the post mortem report. On internal examination there were injuries over the heart and large intestine which are also detailed in the post mortem report. He opined that the deceased died due to hemorrhage secondary to injury to the right atrium and large intestine by a sharp cutting/stabbing instrument. Injury No.2 & 3 are sufficient to cause death in ordinary course of nature. The blood in gauze piece and clothes were sealed and handed over to the IO. He proved the post mortem report as Ex.PW1/A.
5. On 11.08.2016 an application was moved seeking opinion with regard to the weapon of offence along with the sealed parcel having seal of JS. The parcel was opened. It was found containing one knife. The sketch of the knife is Ex.PW1/B. He examined the knife and gave the opinion that S.C. No:59391/16 State Vs.Imran etc. : 3 :
the injuries present on the dead body are possible with the recovered knife. The knife was re-sealed and handed over to the IO. He proved the opinion as Ex.PW1/C.
6. During cross-examination he stated that the technician and attendants assisted him when he conducted the post mortem. The rigor mortis take 12 hours to be fully formed.
The stage of developing rigor mortis implies that it has not been fully formed in the body.
7. Sh. Sukhbir Singh Nodal Officer Idea Cellular was examined as PW-2. He brought the record of mobile No.9911618137. As per the record this mobile number was issued in the name of Sheela W/o Sh. Putan. The copy of the customer application form is proved as Ex.PW2/A. The photocopy of Election I-card was annexed with the customer application form and the copy of the same is marked Ex.PW2/B. The call detail record of this mobile number from 11.07.2016 to 17.07.2016 is Ex.PW2/C. The certificate u/s 65B Indian Evidence Act is Ex.PW2/D.
8. During cross-examination he denied the suggestion that the call detail record has been manipulated on the directions of IO.
9. Ct. Naveen was examined as PW-3. He deposed that on 14.07.2016 he along with Inspector Jarnail Singh reached in front of factory No. A-74 DSIDC Narela, Delhi. SI Satish S.C. No:59391/16 State Vs.Imran etc. : 4 :
Kumar met them. He took the measurement and rough notes at the instance of SI Satish Kumar. On 18.07.2016 he prepared the scaled site plan Ex.PW3/A. Thereafter, he destroyed the rough notes.
10. During cross-examination he stated that he does not remember the time when he reached the spot. He denied the suggestion that he did not visit the spot or did not take the measurements at the spot.
11. SI Satya Dev was examined as PW-4. He was the Incharge of the crime team which visited the scene of crime on 12.07.2016. On the spot SI Satish Kumar and other staff of PS: Narela met him. He inspected the scene of crime and the photographer Ct. Vinod took the photographs of scene of crime. He proved his report as Ex.PW4/A.
12. During cross-examination he denied the suggestion that he did not visit the spot or did not inspect the scene of crime.
13. Ct. Vinod Kumar was examined as PW-5. He was the photographer of the mobile crime team which visited the scene of crime on 12.07.2016. He took 8 photographs of the body and scene of crime from different angles. He proved the photographs as Ex.PW5/A1 to A8 and the negatives as Ex.PW5/B1 to B8.
14. During cross-examination he denied the suggestion S.C. No:59391/16 State Vs.Imran etc. : 5 :
that he did not visit the spot or did not take the photographs as deposed by him.
15. Vijay Singh was examined as PW-6. He is the younger brother of deceased Ashok Kumar. Ashok Kumar was working in Maruti Udyog Limited, Gurgaon for the last 20 years. Ashok Kumar used to go to the office by bus which he used to board from G.T. Karnal Road near red light. Ashok used to reach G.T. Karnal Road through Muneem ji ka Bagh and 80 feet road.
16. On 12.07.2016 at about 11-12 am he was present at his village. He heard 4-5 people saying that one dead body of male in the uniform of Maruti Company is found in Narela Industrial Area. Hearing the same he got suspicious. He made a call at mobile number 9869058403 of Ashok but the same was found switched off. Thereafter, he contacted in his office and it was revealed that Ashok had not reached. Thereafter, he along with family members reached at Bhor Gharh police post where SI Satish Pandey showed him the photographs of the body. He identified the same as of his brother Ashok. He along with SI Satish Pandey went to mortuary of BJRM Hospital. He along with family members identified the dead body. His statement in this regard is Ex.PW6/A. His statement was recorded by SI Satish Kumar which is Ex.PW6/B. After the post mortem the dead body S.C. No:59391/16 State Vs.Imran etc. : 6 :
was handed over to him. He was told by the son of Ashok Kumar that Ashok was carrying Rs.2,000/- to Rs.2,500/-, one mobile phone and identity card. These documents and mobile phone were not found on the body.
17. During cross-examination by the defence he stated that on 12.07.2016 he saw Ashok going to his office. Police personal did not ask him if he saw Ashok in the morning therefore, he did not tell this fact to the police. He admitted that Ashok did not keep his belonging like Purse/cash and mobile phone in his presence, but he used to keep these in general routine.
18. Pawan Kumar was examined as PW-7. He is the youngest brother of Ashok Kumar. He also deposed on the lines of PW-6. Nothing material came in the cross- examination of this witness to discredit him.
19. Harish Kumar was examined as PW-8. He is running shop No.22 FC-4 DSIDC Shopping Complex Industrial Area under the name of Prime Telecom since the year 2002. On 19.08.2014 he sold mobile phone set make Nokia 220 to Mohit R/o H.No.174 Village Bhorgarh Narela for Rs.2800/- vide Bill No.3419 Ex.PW8/A. The bill was issued by Parvesh, whose signature is at point A. He identified the handwriting and signature of Parvesh.
20. During cross-examination by the defence he stated S.C. No:59391/16 State Vs.Imran etc. : 7 :
that he used to keep the record of selling mobile phone with him for one year as the warranty of the mobile phone is of one year. He along with his employee Parvesh used to issue bills against purchase. His shop was not registered at the time this bill was issued, but now it is registered. He admitted that there is no signatures of the buyer on the bill and his signatures is also not there. He had not given any authority to Parvesh for issuing bills. He admitted that there are two different pens used on the bill for writing the details.
21. Smt. Sheela was examined as PW-9. She desposed that Aakash is son of her younger sister Sarla. Since childhood Aakash is residing with her and she used to take care of him. One day she requested Aakash to purchase a mobile set for him. On 12.07.2016 Aakash brought a black colour mobile set of Nokia for Rs.400/- and handed over to her. She demanded bill of the mobile phone. Ajay told her that he is not having any proof of ownership of mobile set. Thereafter, she returned the mobile phone to Ajay on next day. Ajay had not returned Rs.400/- taken by him from Aakash. On 14.07.2016 police came to her as she had used her sim No.9911618137 in the mobile phone set of Ajay. Police also took Aakash to the police station and she followed them. She told the police that mobile set was sold to her by Ajay. She also identified the mobile phone as S.C. No:59391/16 State Vs.Imran etc. : 8 :
Ex.PW9/Article-1.
22. During cross-examination she deposed that she can sign only in Devnagari script. She does not know how many times police made inquiries from her. Police recorded her statement only once that also in chowki Bhorgarh. She did not mention the date when Aakash got mobile phone for her and handed over to her, but it was two days prior to recording of her statement. She did not tell the make of the mobile phone in her statement to the police. She also did not tell the date of purchase of the mobile phone from Ajay to the police.
23. Sh. Mange Ram was examined as PW-10. He deposed that on 12.07.2016 at about 4 am his son Ashok Kumar left for his duty at Martui Udyog Ltd., Gurgaon. His son used to go upto GT Karnal road via 80 ft. road. On 12.07.2016 he also carried with him his voter ID card, one mobile phone set of Nokia dual SIM having Sim of MTNL Dolphin and approximately Rs.3500/- cash and some other documents. Ashok Kumar intended to purchase a SIM of airtel and that is why he had taken the voter ID Card with him. On the same day between 11 to 12 noon he came to know that police is taking away person who had sustained injury and bleeding to the hospital and that the said person was wearing uniform of Maruti Company. He also came to know that the said person was found in front of factory No. S.C. No:59391/16 State Vs.Imran etc. : 9 :
A-74 DSIDC. Being suspicious he made a call on the mobile phone of his son but the same was found switched off. Thereafter he made a call in the office of Maruti company where his grand son Keshav s/o Sh. Ashok was working. He talked with Keshav in order to inquire if his father had reached the office. Keshav made inquiry from the driver of the staff bus who informed that Ashok had not boarded the staff bus. He made a call at 100 number and police asked him to contact police chowki Bhorgarh, Narela. He along with his son Vijay went to police chowki Bhorgarh. Police had shown him the photograph in the mobile set which he identified to be of his son Ashok. He along with relatives and villagers went to BJRM hospital where he identified body of Ashok. After the post mortem the body was handed over to Vijay and Pawan.
24. On 03.09.2016 he handed over the bill No.3419 of Prime Telecom from where his son Ashok purchased a Nokia mobile set for his son Mohit. The bill was seized by the police vide memo Ex.PW10/A. The bill is Ex.PW8/A. On the bill there was chit of IMEI number also. He identified the mobile set as Ex.PW9/1. He also identified the voter ID card of Ashok Kumar as Ex.PW10./Article1.
25. During cross-examination he stated that Ashok was not sleeping in the room where he used to sleep. On S.C. No:59391/16 State Vs.Imran etc. : 10 :
12.07.2016 Ashok left home at 4:00 am after meeting him.
Ashok had not kept anything with him in his presence. In the previous night i.e. on 11.07.2016 Ashok has kept his Voter Identity card in his purse and then in his pocket for purchasing SIM of Airtel as told to him by Ashok. He can not tell the denomination of the currency notes of Rs.3500/- kept by his son. He admitted that bill Ex.PW8/A is not in his name and also not in the name of his son Ashok. They purchased two different mobile sets with two different bills in the name of Mohit and Keshav. He had also brought the original bill in the name of Keshav which is Ex.PW10/B. Ashok Kumar purchased two mobile phones from Prime telecom as the owner of the shop is their neighbour. He admitted that name in both the bills is mentioned with different ink.
26. Aakash was examined as PW-11. He deposed that his Mausi Smt. Sheela is looking after him as her son. He is working in Azadpur Market to make packets of products. On 12.07.2016 he purchased an old mobile phone make Nokia from Ajay R/o H.No.39, Sector-A-5 Narela for a sum of Rs.400/-. Ajay came to him with one boy whose name he lateron came to know as Imran and gave him one black colour nokia mobile phone. Ajay demanded Rs.600/-. After bargaining he purchased the said mobile phone for a sum of Rs.400/-. He requested them to furnish the bill of the said S.C. No:59391/16 State Vs.Imran etc. : 11 :
mobile phone. It was assured that they would give the same to him after 2-3 days. He had shown the said mobile phone to his mausi Sheela who asked him as to from where he purchased this mobile. He informed his Mausi that he purchased this mobile phone from Ajay and his friend Imran. Next day he met Imran and asked him to give the documents of the said mobile phone. Imran Informed him not to insert any sim in the said mobile phone and that he would give the document to him within 2-3 days. He accordingly conveyed these facts to his mausi. His Mausi doubted that this mobile phone may be stolen one. On the same day he returned mobile set to Imran and demanded back Rs.400/-. Next day police reached at his home and inquired, from where he had taken the said mobile phone. He informed the police that he had taken the mobile phone from Imran and Ajay. He also pointed out the house of Ajay to the police. He and Ajay were taken to police post. His mausi also followed him and reached police post. Police made inquiries from him and he was released. He identified Imran in the court. He also identified the mobile set as Ex.PW9/Article-1.
27. During cross-examination he deposed that he gave the house number as 451 which belongs to his Nani. His Mausi is residing at H.No.467 Malka Ganj. He knew Ajay for the last 3 to 4 years. He met Imran first time on 12.07.2016.
S.C. No:59391/16 State Vs.Imran etc. : 12 :
Ajay introduced him to Imran. He had not purchased anything from Imran except this mobile phone. He used to play cricket etc. with Ajay and knew his residential address. When Ajay did not provide him bill of mobile set, he returned the mobile phone to him. He denied the suggestion that he had not purchase any mobile set from accused Imran or that Imran was not introduced to him by Ajay.
28. ASI Naresh Kumar was examined as PW-12. On 12.07.2016 he was working as duty officer from 4 pm to 12 midnight. At 4:35 pm SI Satish Kumar gave him the rukka on the basis of which he recorded FIR No.513/16 u/s 302 IPC.
He proved the computer generated copy of FIR as Ex.PW12/A. He made endorsement on the rukka Ex.PW12/B.
29. During cross-examination he denied the suggestion that FIR is ante dated and ante timed.
30. Keshav was examined as PW-13. He deposed that he is working in Maruti Udyog Ltd. Gurgaon as apprentice. His father, late Sh. Ashok Kumar, was also working in the same factory for the last 20 years. Their duty was in shifts. On 11.07.2016 at about 4:30 am he along with his father Ashok Kumar left for performing their duty at Maruti Udyog Ltd. His father had kept Rs.2000 to 2500 in his pocket along with ID card for purchasing sim of Airtel. After the duty his father S.C. No:59391/16 State Vs.Imran etc. : 13 :
returned home on 11.07.2016. He went to the paying guest room situated in Gurgaon after his duty in Maruti Udyog. On
12.07.2016 he reached the office at about 6:30 am. At about 11:30 am his grand father Mange Ram made a call to him on mobile phone No.9990215452 and inquired from him if his father had reached office. He made a call to the driver of the staff bus of Maruti Udyog Ltd., who informed that his father had not boarded the staff bus. After some time his uncle Vijay made a call on his mobile and asked him to reach home urgently as his father is not feeling well. He immediately reached his house. After reaching home he came to know that his father had expired. He used to call his father on mobile phone No.9868058403, he identified the election I-card of his father as Ex.PW10/Article-1.
31. During cross-examination he stated that he never tried to find out in whose name the sim was, which was used by his father. He admitted that he was not with his father on the day of incident. He cannot tell the colour of the mobile phone of his father.
32. ASI Surat Singh was examined as PW-14. On the intervening night of 11/12.07.2016 his duty was as Incharge on Libra 56 from 8 pm to 8 am. At about 6:30 am on 12.07.2016 he was going towards 80 ft. road Industrial Area towards Muneem Ji ka Bagh from GT Road. Some persons S.C. No:59391/16 State Vs.Imran etc. : 14 :
informed him that a dead body is lying in Industrial Area in front of factory No.A-74. He left the vehicle there and jumped over the wall and found the person in the age group of 40 to 45 years lying dead. He made a call at 100 number. Libra 23 PCR Van reached the spot to attend the call. Thereafter, he left.
33. During cross-examination by the defence counsel he stated that about 15-20 persons were present there. He remained on the spot for about 5 minutes. He was again called on the spot by the police of PS: Narela at 8 am and at that time his statement was recorded.
34. ASI Ram Kishan was examined as PW-15. On 12.07.2016 at 6:45 am wireless operator came to him and informed that in DSIDC Narela in front of factory No.A-74 on the road a boy is lying dead. Wireless operator got this information from control room. He passed on this information to SI Satish to carry out necessary proceedings. He recorded DD No.6A on this information. He proved the copy of the same as Ex.PW15/A.
35. During cross-examination he stated that he passed on this information to SI Satish Pandey immediately after wireless operator told him.
36. Sh. Naresh Kumar Sr. Scientific Officer FSL was examined as PW-16. He conducted the Biological and DNA S.C. No:59391/16 State Vs.Imran etc. : 15 :
finger printing examination on the exhibits. He found that on DNA examination Ex.1 piece of road of concrete, Ex.3a(pants), Ex.3b (handkerchief), Ex.4 (blood gauze of deceased), Ex.PW5 (knife) DNA was isolated and it was concluded that DNA profile generated from the source of Ex.4 was found matching with DNA generated from Ex.1, 3a and 3b. He proved the report as Ex.PW16/A. The testimony of witness has gone unchallenged and uncontroverted.
37. Ct. Sunil was examined as PW-17. He deposed that on 06.09.2016 he was posted at PS: Narela. On that day he collected 5 sealed parcels and sample seal from MHC(M) for depositing the same at FSL. He went to FSL Rohini and deposited the parcels and sample seal. He collected the acknowledgment from FSL. He returned to the police station and handed over the acknowledgment to the MHC(M).
Nobody tampered with the case property till it remained in his custody. In reply to the leading question put by the APP he stated that RC number was 241/21/16.
38. During cross-examination by the defence he stated that he collected the sealed parcels and sample seal from MHC(M) at 11 am. He did not make any departure entry. He reached the FSL at about 12:00 noon. He denied the suggestion that the case property was not properly sealed or that the parcels were tampered with in connivance with IO. S.C. No:59391/16 State Vs.Imran etc. : 16 :
39. Ct. Hem Chander was examined as PW-18. On 11.08.2016 he collected one sealed parcel having seal of JS from MHC(M) vide RC NO:222/21/16 along with post mortem report. He went to BJRM hospital and deposited the same at BJRM hospital. No one tampered with the exhibits till the same remained in his custody.
40. During cross-examination he stated that he left the police station at 10:30 am. He reached hospital at about 11:30 am. He denied the suggestion that exhibits were tampered with in connivance with IO or that he had not taken the exhibit to hospital as deposed by him.
41. Sh. Gauri Shankar was examined as PW-19. He deposed that he is running a general store in the rented accomodation near Shiv Mandir, Bhorgarh, Alipur. His landlord Naresh had let out 23 rooms to the tenants. The tenants used to give him the monthly rent and he used to hand over the same to Naresh. He remained tenant of Naresh for 3 months only. Out of those 23 rooms 6-7 rooms are lying vacant. On 17.07.2016 accused Saddam was in police custody and they reached his shop. [The witness was not able to identify Saddam but pointed towards Imran]. Saddam opened the lock of his room and produced one knife from the shaft of the house. One pants was hanging on the peg and from the pocket of the pant accused produced voter S.C. No:59391/16 State Vs.Imran etc. : 17 :
ID card to the police. The sektch of the knife was prepared which is Ex.PW10/A. The knife was put in a polythene, wrapped in a piece of cloth and seized vide memo Ex.PW19/B. The voter ID card was also seized by the police vide memo Ex.PW19/C. The voter ID card was in the name of Ashok. MHC(M) produced the ID card which he identified as Ex.PW10/Article-1. He also identified the knife as Ex.PW19/Article1.
42. He was cross examined by Ld. Addl. PP for the State and Saddam was pointed out to him as the person who got recovered the knife and also the election ID card but he failed to identify the accused. Witness stated that both Saddam and Imran are real brothers. He denied the suggestion that he is deliberately not identifying the real accused in order to save him.
43. During cross-examination by the defence he stated that he does not remember if police put any specific mark on the knife. The document Ex.PW19/B was prepared at his shop. He denied the suggestion that knife and ID card were not recovered in his presence or that accused was not residing there as tenant. He denied the suggestion that accused persons were shown to him before recording of his statement.
44. Sh. Vinod Kumar Nodal Officer MTNL was examined S.C. No:59391/16 State Vs.Imran etc. : 18 :
as PW-20. He brought the record of mobile phone No.9868058403. He proved the call detail record of this mobile phone number from 11.07.2016 to 17.07.2016 as Ex.PW20/A. The cell ID chart is proved as Ex.PW20/B. The certificate u/s 65B Indian Evidence Act is proved as Ex.PW20/C. The copy of application form is proved as Ex.PW20/D. According to this record this phone number is in the name of Ashok Kumar.
45. During cross-examination he denied the suggestion that call detail record was tampered.
46. Ajay Kumar was examined as PW-21. He deposed that he used to work at New Anaj Mandi Narela. Accused Saddab @ Saddam and Imran are known to him as they used to meet him regularly in the market. Some days prior or 12th July 2016 Aakash requested him that he is willing to purchase one old mobile phone. On 12.07.2016 accused Imran told him that he is having an old mobile phone and is willing to sell the same. At that time Saddab was also with Imran. He took Imran and Saddab to Aakash. Aakash purchased the said mobile phone for Rs.400/-. On being asked about the bill by Aakash accused Imran told him that he will provide the bill to Aakash in one or two days. On 14.07.2016 his statement was recorded by the police. He identified the mobile phone as Ex.PW9/Article-1. He also S.C. No:59391/16 State Vs.Imran etc. : 19 :
identified both the accused persons.
47. During cross-examination he stated that he has no document to show that he is working in house keeping in new Anaj Mandi Narela. He did not tell the police since when he was working there. He admitted that he did not tell the make of the mobile phone and its colour to the police in his statement u/s 161 Cr.PC. He denied the suggestion that no such mobile phone was purchased or that accused had not given him any mobile phone. He denied the suggestion that he is deposing falsely.
48. Ct. Sunil Kumar was examined as PW-22. He deposed that on the intervening night of 11/12 July 2016 he was posted at PS: Narela. On that day on receipt of information about dead body of a boy lying in front of factory No.A-74, DSIDC Narela, he reached the spot along with SI Satish Pandey. They found the dead body lying there having injuries on the chest and abdomen with some sharp edged weapon. The clothes of the body were found smeared with blood. Crime team was called. Photographer of the crime team took the photographs. Crime team inspected the scene of crime. IO moved application for preservation of the body.
He took the body to BJRM hospital and got it preserved. In the day hours SI Satish came to BJRM hospital and prepared inquest papers. The dead body was identified by the S.C. No:59391/16 State Vs.Imran etc. : 20 :
relatives. After the post mortem the dead body was handed over to the relatives. Doctor handed over him one red colour plastic bag, one white colour envelope and sample seal which he handed over to SI Satish who seized the same vide memo Ex.PW22/A.
49. During cross-examination by the defence he stated that they were informed by the duty officer about the dead body. They reached the spot at about 7 am. 10-15 public persons were present near the spot. SI Satish made inquiries from them but they were not able to identify the dead body .
IO also made inquiries from the persons working in A-74 and other nearby factories but they were not aware about the incident. When he left for BJRM mortuary SI Satish was still present on the spot. He does not remember the time when he left the spot, but he remained there for about 1 or 2 hours. He reached BJRM hospital at about 10 am. He reached PS:
Narela at about 4 pm from BJRM hospital. He does not know if IO obtained the signatures of any public person on Ex.PW22/A but he signed the same. IO deposited the exhibits in the malkhana.
50. HC Abhimanyu Singh was examined as PW-23. On the intervening night of 11/12 July 2016 he was on emergency duty along with Ct. Sunil. After receiving information about the dead body he also reached the spot S.C. No:59391/16 State Vs.Imran etc. : 21 :
where SI Satish Pandey and other staff were present. SHO along with staff also reached there. The crime team was called, which inspected the scene of crime and also took the photographs. IO SI Satish prepared the application for preservation of dead body and Ct.Sunil took the dead body to BJRM hospital. The blood stained concrete pieces of road were broken, put in a plastic container, sealed with the seal of SKP. Similarly, the earth control piece of the road was also taken put in plastic container sealed with the seal of SKP. Both the parcels were seized vide memo Ex.PW23/A.
51. During cross-examination he stated that they were present in Bhorgarh chowki when the information was received. It took 5 minutes to reach the spot. He does not remember the exact time of reaching the spot. They reached the spot on motorcycle. SHO also reached the spot but after some time SHO left. SHO remained on the spot for about half an hour. Crime team reached the spot after about 1 hour of their reaching the spot. On the body of the deceased there was one white shirt and a baniyan and blue grey colour pants. He does not know what was found in the clothes of the dead body. He did not mention in his statement as to whether chappals were found in the feet of dead body. About 50 to 60 persons gathered on the spot. He does not know if SI Satish recorded the statement of those public persons.
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The inquiries were made from the guard and other workers but they were not aware about the incident. He remained on the spot for about an hour. He denied the suggestion that documents were not prepared on the spot.
52. ASI Balwan Singh was examined as PW-24. He was working as MHC(M). He proved the entries in register No.19 as Ex.PW24/A & Ex.PW24/B. He proved the entries in register No.21 as Ex.PW24/C & Ex.PW24/D. The acknowledgment of FSL is proved as Ex.PW24/E. The testimony of the witness has gone unchallenged and uncontroverted.
53. SI Satish Kumar Pandey was examined as PW-25. He deposed that on 12.07.2016 he was posted at PS: Narela as Incharge of police post DSIIDC Narela. On that day on receipt of DD No.6A Ex.PW15/A he reached the scene of crime. One male dead body was lying there. HC Abhimanyu and Ct. Sunil also reached the spot. There were injury marks on the chest and abdomen caused by some sharp object on the body. Crime team was called on the spot. Crime team inspected the scene of crime and also took the photographs.
He moved application for preservation of the body. The body was shifted to the mortuary of BJRM hospital through Ct. Sunil. He corroborated the testimony of PW-23/A about lifting the blood stained concrete and the control concrete pieces S.C. No:59391/16 State Vs.Imran etc. : 23 :
from the spot and seizure of the same vide seizure memo Ex.PW23/A. At the same time Ct. Naresh informed him that some persons are present at police post who said that the deceased is resident of village Bhorgarh. He reached police post where he met Vijay Kumar. He had shown the photograph of dead body in his mobile phone to Vijay Kumar. Vijay Kumar identified the dead body as of his brother Ashok. Vijay also informed that his brother left the office in the morning at about 4:00 am for going to Maruti Company. He used to catch the bus from GT Karnal Road, 80 ft road T- point for going to Gurgaon. He along with relatives of deceased reached at BJRM hospital. He prepared the inquest papers i.e. Ex.PW25/A, Form 25.35 was filled which is Ex.PW25/B. He moved application Ex.PW25/C. The dead body was identified by Vijay Kumar and Pawan Kumar vide statement Ex.PW26/A and vide ExPW25/D. After post mortem the dead body was handed over to the relatives vide memo ExPW25/E. After the post mortem the doctor handed over him one plastic bag, one envelope and sample seal which is seized vide PW-22/A. He along with Ct. Sunil came back to the police station. He made endorsement Ex.PW25/F and handed over the rukka to the duty officer with request to assign the investigation to SHO PS: Narela. He deposited the case property with the MHC(M). He handed over the S.C. No:59391/16 State Vs.Imran etc. : 24 :
documents of case to SHO Inspector Jarnail Singh. He reached the spot where he met SHO who prepared the site plan at his instance.
54. On 14.07.2016 Ct. Naveen and IO met him at the spot. Ct. Naveen took the measurement and prepared rough notes at his instance.
55. On 17.07.2016 he joined the investigation with IO and Ct. Mukesh. They left the police station in search of accused persons. On the way near Kasturi Ram School one secret informer met them and informed that the offenders of this case are sitting in Muneem Ji ka Bagh. They along with secret informer reached Muneem ji ka bagh. On the pointing out of secret informer two boys sitting in the park were apprehended. They revealed their names as Imran and Saddab. IO interrogated both the accused. Imran was arrested vide arrest memo Ex.PW25/G1. His personal search was conducted vide memo Ex.PW25/G2. One mobile phone of Lava was found in search of the accused along with Rs.335/-. The phone and the currency notes were seized vide memo Ex.PW25/G3.
56. Sadab was arrested vide memo ExPW25/H1, his personal search was conducted vide memo Ex.PW25/H2.
One mobile phone of Lava and Rs.415 were recovered in his personal search the same were seized vide memo S.C. No:59391/16 State Vs.Imran etc. : 25 :
Ex.PW25/H3. He identified both the accused persons. Accused Imran and Sadab made the disclosure statements Ex.PW25/G4 and Ex.PW25/H4.
57. Accused Imran led them to his house No.1026 pocket 4, sector A-6 Narela. From the room accused produced one mobile phone black colour make Nokia. IO noted down its IMEI number in the seizure memo. The phone was put in a plastic container, sealed with the seal of JS and seized vide memo Ex.PW25/G5.
58. Accused Saddab led them to his rented accomodation i.e. plot No.12 Jag Jeewan Ram colony village Bhorgarh Narela. The care taker of the house was called who revealed his name as Gauri Shankar. Accused got recovered one knife which was lying under the clothes on the shelf/taand in the room. The sketch of the knife was prepared which is Ex.PW19./A. The knife was put in a polythene wrapped in a cloth piece, sealed with the seal of JS and seized vide memo Ex.PW19/B.
59. Accused Sadab also produced one voter ID card which was in the name of Ashok Kumar. This ID card was also seized vide memo Ex.PW19/C.
60. Both the accused pointed out the place of occurrence vide memo Ex.PW25/I. He identified both the accused persons. He identified Rs.335/- recovered from Imran as S.C. No:59391/16 State Vs.Imran etc. : 26 :
Ex.PW25/Article-1. He identified the currency notes of Rs.415/- recovered from the possession of Sadab as Ex.PW25/Article-2. The mobile phone make Nokia is identified as Ex.PW9/Article-1. The knife is identified as Ex.PW19/Article-1. The voter ID card is identified as Ex.PW10/Article1.
61. During cross-examination he stated that secret informer met them at about 2:30 or 2:45 pm. No DD entry was made about the secret information received. They all were present in front of Kasturi Ram School Narela when they got the secret information. The secret informer remained with them for about 15 to 20 minutes i.e. till the pointing out of accused persons. They were in govt. gypsy. The distance between the place where secret informer met them and where he pointed out the accused persons is about 250 to 300 meters. There was none else in the park except the two accused. The site plan of the place of apprehension was not prepared. The distance between the police station and place of apprehension is about 2 kms. The park is in the area of about 1 acre. They reached back the police station at about 4:15 or 4:30 pm.
62. House of accused Imran is double storied. He does not remember the model number of mobile phone make Lava but it was dual SIM. No photograph of mobile phone was S.C. No:59391/16 State Vs.Imran etc. : 27 :
taken. No identification mark was put on the mobile phone. The site plan of the place of recovery of mobile phone was not prepared. He denied the suggestion that mobile phone was planted upon the accused. He did not make the departure entry before leaving the police station. No site plan of the house of Imran was prepared. No public person signed the seizure memo. He denied the suggestion that accused did not make the disclosure statement.
63. They reached the room of Saddam at about 7 pm. The landlord was not called. The care taker was available who was called. No site plan of room of Saddam was prepared.
The room of Saddam was found bolted. The photographs of the place of recovery including the knife were not taken. He does not know if such type of knife is available in the market. No mark of identification was put on the knife. He denied the suggestion that Gauri Shankar did not join the investigation or that the case property was planted upon the accused.
64. Inspector Jarnail Singh was examined as PW-26. He fully corroborated the testimony of PW-25. He also proved the site plan of the place where dead body was found as Ex.PW26/A. He also sent the request for the CDR of the mobile phone number of the deceased. On 13.07.2016 he received the CDR of the mobile phone of the deceased. He analysed the same and found that mobile No:9911618137 S.C. No:59391/16 State Vs.Imran etc. : 28 :
has been used from that said mobile phone. He came to know that this mobile phone number belongs to Sheela. They met Sheela and came to know that this mobile phone was purchased by Aakash from Imran through Ajay. He corroborated the testimony of PW-25 regarding the arrest of accused persons and the recovery. He identified both the accused persons and also the case property. After completion of investigation he filed the charge sheet.
65. During cross-examination he stated that on 12.07.2016 at about 7 am duty officer informed him about the present incident. Within 5-10 minutes he along with driver and operator reached the spot. The distance between Muneem Ji ka bagh and place where dead body was found is about 2-3 km. DSIDC area is under the security of PNC. He does not know if the owners of factories have employed security guards or not. He does not know if the CCTV cameras were installed by the factory owners of DSIDC. He denied the suggestion that he found the CCTV footage showing the occurrence and the persons who were involved in the incident or that the said CCTV footage is not placed on record because the same is not in consonance with the case of prosecution.
66. He admitted that if any person had to reach GT Karnal road from Bhorgarh village he has to pass through Muneem S.C. No:59391/16 State Vs.Imran etc. : 29 :
Ji ka Bagh and then on 80 ft road. GT Karnal road is at a distance of about 5 to 6 km from the spot. He denied the suggestion that crime scene was manipulated and was arranged before the arrival of crime team. On 14.07.2016 after meeting the witnesses they went to the house of accused Imran. He does not remember how many stories are there in the house of Imran. He does not remember who opened the door of house of Imran. No public person was asked to join the proceedings. No photograph of Imran was taken from the persons present in the house of Imran. He also does not remember as to how many stories were there in the house of Saddab and the person who opened the door. He had not taken the photograph of accused Sadab from the occupants of that house. During 14.07.2016 to 17.07.2016 he visited the house of accused number of times. The search of house of accused persons was not conducted on 14.07.2016.
67. On 17.07.2016 they left the police station at about 2:00 pm. There is distance of about 50 to 100 meters between Muneem Ji ka bagh and CNG Pump situated on 80 ft. road. No employee of school and CNG petrol pump and security guard of PNC was asked to join investigation.
68. Secret informer met them near Muneem Ji Ka Bagh at about 2:00 or 2:30 pm. The secret informer pointed out the S.C. No:59391/16 State Vs.Imran etc. : 30 :
accused persons from a distance of about 100 to 200 meters. The accused persons were apprehended at about 3:00 pm. First of all accused Imran was arrested at about 3:15 pm. After apprehending the accused persons he asked the public persons to join the investigation but none agreed. From the spot they reached the police station at about 5 pm. At about 7:00 pm they again left the police station for recovery, but he does not remember the DD number vide which they left the police station. No public person was asked to join the investigation while leaving the police station. Within half an hour they reached the house of Imran. He does not remember as to how many rooms were there in the house of Imran. The mobile phone was lying in the old clothes lying on the floor in the house. He asked the nearby residents to join the investigation but none agreed. He does not recollect how many persons were present in the house of Imran.
69. The house of Saddab is situated in sector-A-10. Some persons were present in the house of Sadab but he does not know how they were related to the accused. No photography or videography was conducted at that time. After sealing the articles in the house of Imran he did not hand over the seal to anyone. He does not remember as to who opened the door of the house of Saddab. He does not remember how many S.C. No:59391/16 State Vs.Imran etc. : 31 :
stories were there in the house of Saddab. There is a distance of about 4 to 5 km in between the house of Imran and Jag Jeevan Ram Colony, village Bhorgarh. Saddab was tenant in a room measuring 10 to 12 sq yards. He does not remember the name of landlord but care taker Gauri Shankar met them. There is no commercial shop or establishment inside that building. Gauri Shankar resides on the ground floor of the said building. No rent agreement was given to them by Gauri Shankar.
70. Thereafter prosecution evidence was closed. Statements of accused persons were recorded u/s 313 Cr.PC wherein they denied the entire evidence and stated that they have been falsely implicated. They did not wish to lead evidence in defence. Thereafter, the case was fixed for final arguments.
71. I have heard Ld. APP for the State, Ld. Amicus for both accused persons and perused the record.
72. In the present case there is no eye witness of the case. The case is based only upon circumstantial evidence. In the case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 held that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the S.C. No:59391/16 State Vs.Imran etc. : 32 :
conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
73. The prosecution intend to prove the guilt of the accused persons by establishing the following circumstances:
i) Circumstance of recovery of weapon of offence at the instance of Saddab.
ii) Recovery of ID card of deceased at the instance of Saddab
iii) Recovery of Mobile Phone of deceased from the possession of Imran.
74. I take up the circumstances one by one. Circumstnace of Recovery of weapon of offence at the instance of Saddab.
75. The case of prosecution is that on 17.07.2016 after the arrest accused Saddab led the police i.e. PW-25 and PW-26 to his rented accommodation situated near Shiv S.C. No:59391/16 State Vs.Imran etc. : 33 :
Mandir, Bhorgarh, Alipur. From the rented accommodation from the shelf/taand accused got recovered one knife Ex.PW19/Article-1, sketch of the knife is Ex.PW19/A and the same was seized vide memo Ex.PW19/B. There are three witnesses about the recovery i.e. Gauri Shankar PW-19, SI Satish Kumar PW-25 and PW-26 Inspector Jarnail Singh. The only public witness PW-19 Gauri Shankar has not supported the prosecution case and has turned hostile, though he stated that the knife was recovered but he did not identify Saddam and pointed towards Imran. Saddam was pointed out to him by Ld.APP for the state during cross- examination but he still failed to identify him. Under the circumstances as the only public witness has not supported the prosecution case the onus became heavy on prosecution to prove the recovery of knife Ex.PW19/Article1 at the instance of accused Saddab. There are other two police witnesses PW-25 SI Satish Kumar and PW-26 Inspector Jarnail Singh. They have deposed about the recovery of knife at the instance of accused but the two have contradicted each other. According to PW-25 they reached the house of Saddab at 7:00 pm whereas according to PW- 26 they left the police station at 7:00 pm. It is pertinent to note here that after leaving police station they firstly went to the house of Imran and thereafter to the rented S.C. No:59391/16 State Vs.Imran etc. : 34 :
accommodation of Saddab. The prosecution has taken the subsequent opinion of Dr. Anshul Saxena about this knife. He examined this knife, also prepared its sketch which is Ex.PW1/B and he opined that the injuries present on the dead body are possible with this knife and he proved his report as Ex.PW1/C. The knife was sent to FSL. The FSL result is proved as Ex.PW16/A. According to the report blood was detected on the knife but the DNA could not be isolated. Therefore, the prosecution has failed to prove and establish that the injuries found on the dead body were caused by using this knife only. The onus was upon the prosecution to prove and establish this fact but the prosecution has failed. Even the recovery of the knife itself is doubtful as the only public witness has not supported the same. Keeping in view the above discussion in my opinion the onus which was upon prosecution has not been discharged.
Recovery of the Voter ID Card of deceased:
76. According to the witnesses examined i.e. PW-6 Vijay, PW-10 Mange Ram and PW-13 Keshav the deceased was also carrying his voter ID card with him as he has to purchase one SIM of Airtel. When the dead body was found the voter ID card along with some money and mobile phone of deceased were missing. According to the prosecution case and as deposed by SI Satish PW-25 and Inspector Jarnail S.C. No:59391/16 State Vs.Imran etc. : 35 :
Singh PW-26 accused Saddab led the police team to his rented accommodation and got recovered his voter ID Card Ex.PW10/Article-1. Gauri Shankar the care taker of the building was joined in the investigation. He was examined as PW-19. He stated that this recovery was got effected by Imran and not by Saddab @ Saddam. Saddab was also pointed out to the witness but still he failed to identify him. All these facts show that only public witnesses has not supported the prosecution case. As pointed out earlier there is also contradictions in the testimony of PW-25 and PW-26 as to at what time they reached the rented accommodation of Saddab. This itself makes story of prosecution highly unbelievable. Even otherwise this ID card is of no value to accused and hence, there is no possibilities of accused keeping the same with him even after 5 days. Keeping in view the above discussion I found that prosecution has failed to prove the recovery of the Voter ID card Ex.PW10/Article-1 at the instance of accused Saddab.
Recovery of Mobile Phone of deceased at the instance of Imran.
77. Prosecution in order to prove this fact that Imran was found in possession of mobile phone of deceased had examined two witnesses SI Satish PW-25 and Inspector Jarnail Singh PW-26. Infact family members of the deceased S.C. No:59391/16 State Vs.Imran etc. : 36 :
i.e. Vijay examined as PW-6. Mange Ram PW-10 and Keshav PW-13 all stated that deceased was carrying the mobile phone which was not found on the dead body. The number used in that mobile phone was 9868058403. The IMEI number of mobile phone was put on surveillance and it was found that mobile No.9911618137 was being used from that mobile phone. It was found to be in the name of Sheela. Sheela was examined as PW-9. She told that this mobile phone was brought by her son Aakash, who purchased it from Ajay. Aakash was examined as PW-11. He told that he purchased this mobile number Ex.PW9/Article-1 from Imran through Ajay. Ajay was examined as PW-21. He also identified the mobile phone and also identified that it was Imran who came to him for selling the mobile phone Ex.PW9/Article-1. The mobile phone was sold to Aakash but as Imran was not able to give the original bill the mobile phone was returned to Imran. It is important to note that the IMEI number of the mobile phone recovered from Imran and it was seen in his possession by the PW-11 and PW-21 is the same which was used by Ashok. Both PW-25 and PW-26 also corroborated each other on this point. No public persons was joined at the time of effecting recovery but only on this ground their testimonies cannot be discarded. Even otherwise they are trustworthy and reliable. Even otherwise S.C. No:59391/16 State Vs.Imran etc. : 37 :
the other witnesses PW-11 and PW-21 have also established that this mobile phone was with Imran.
78. So far as Saddab is concerned there is no evidence on record that Saddab was in possession of this mobile phone. The only evidence against him is that he was with Imran when Imran came to Ajay for selling the mobile phone but this fact itself does not establish or prove that Saddab was in conscious possession of the mobile phone.
79. Keeping in view the above discussion in my opinion the prosecution has established the recovery of mobile phone of deceased from the possession of Imran.
80. Keeping in view the above discussion I found that prosecution has been able to prove and establish only one circumstance that also against accused Imran i.e. recovery of mobile phone Ex.PW9/Article-1 from the possession of Imran. The other circumstances are not established and proved. The chain is not complete. The circumstance proved and established does not show or establish that accused persons killed Ashok or committed robbery on Ashok. Recovery is also after 5 days of commission of offence. Under the circumstances I found that prosecution has failed to establish that accused persons robbed Ashok by causing his death by using any weapon in the commission of offence. Therefore, both the accused are acquitted for the offence u/s S.C. No:59391/16 State Vs.Imran etc. : 38 :
392 r/w 34 IPC, u/s 302 r/w 34 IPC and u/s 397 IPC. The prosecution has failed to prove recovery of belongings of deceased from the possession of Saddab. Hence he is acquitted u/s 411 IPC. Prosecution has established that mobile phone of deceased Ashok was recovered from the possession of Imran, hence, he is held guilty and convicted u/s 411 IPC. Accused Saddab be released on furnishing Personal Bond in the sum of Rs.20,000/- with one surety of like amount u/s 437 A Cr.PC for a period of six months.
Accused Imran is also directed to furnish the Personal Bond in the sum of Rs.20,000/- with one surety of like amount u/s 437 A Cr.PC for a period of six months.
81. Now come up for arguments on the quantum of sentence qua accused Imran on 21.04.2018. Digitally signed
VIRENDER by VIRENDER
KUMAR KUMAR BANSAL
Date: 2018.04.18
BANSAL 13:26:24 +0530
Announced in the open court (VIRENDER KUMAR BANSAL)
today on 18.04.2018 ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
S.C. No:59391/16 State Vs.Imran etc. : 39 :