Delhi District Court
State vs 1. Dilshad (On Bail) on 23 January, 2017
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) / ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI SC No. : 09(I)/13 FIR No. : 307/2012 U/Sec. : 302/201/120-B/34 IPC & 25/27 Arms Act PS : New Usmanpur Case ID : 44608/2015 State Versus 1. Dilshad (on bail) S/o Sh. Abdul Rauf R/o H. No. T-482, Ist Floor, Gali No. 17, Gautam Puri, Delhi 2. Faiz Alam @ Faizan (on bail) S/o Late Naseem Ahmed R/o H. No. C-55/14, Gali No. 30/10, Kashmiri Building, Jafrabad, Delhi 3. Md. Imran @ Kalim (on bail) S/o Sh. Mohd. Rahish R/o H. No. C-48/28, Gali No. 4, Noorani Masjid, Chauhan Bangar, Jafrabad, Delhi 4. Sajid Ali (on bail) S/o Sh. Akhtar Ali R/o H. No. E-416, Gali No. 8, Shastri Park, Delhi Date of Institution : 20.02.2013 Date of reserving order : 09.01.2017 Date of Judgment : 23.01.2017 JUDGMENT
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 1 of 26 Introduction:
1. The accused Dilshad, Md. Imran @ Kalim (In short 'Imran'), Faiz Alam @ Faizan (In short 'Faiz Alam') and Sajid Ali were arraigned for committing murder of Saddam (Hereinafter 'the deceased') at open ground, near wall of partly constructed building, Shastri Park, Delhi (Hereinafter 'the scene of crime') in furtherance of criminal conspiracy and crushing his face with stones so as to disfigure his face punishable under section 302 read with section 120-B of the Indian Penal Code, 1860 (Hereinafter referred to as 'IPC') and section 201 IPC. Facts in brief:
2. Criminal law came into action on 17.11.2012 at 11.05 a.m. when PW-3 W/ASI Santosh Sharma, Duty Officer, PS New Usmanpur, received a PCR call through North-East Control Room on her wireless-set that 'Usmanpur thane ke pichhe, jahan par mela lagta hain, yahan par ek male dead body padi hain' vide DD No. 16A Ex.PW3/B. She conveyed the said PCR call to PW-21 SI Jai Prakash. On receipt of a copy of DD No 16A Ex.PW3/A, PW-21 SI Jai Prakash with PW-13 Ct.
Devender reached at the scene of crime. There was a dead body of a male person aged about 22 / 23 years adjacent to the wall. The dead body was smeared in blood. There were several pieces of stone near the dead body which were stained with blood. There were two wounds on the neck of the dead body. The face was badly disfigured.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 2 of 26
3. The dead body was identified by the local people as that of Saddam S/o Sh. Yaseen R/o Jhuggi No. B-313, E-16, A- Block, near Brahmpuri pulia, Delhi. State of scene of crime and condition of the dead body disclosed the commission of offences under section 302/201 IPC and therefore, PW-21 SI Jai Prakash prepared tehrir Ex.PW21/A for registration of case. At 12.05 p.m., he given tehrir to PW-13 Ct. Devender for being taken to PS New Usmanpur for registration of case. On 17.11.2012 at 12.15 p.m., the case FIR Ex.PW3/D was registered under section 302/201 IPC. PW-24 Insp. Virender Singh conducted further investigation of the case. PW-4 SI E.S. Yadav, In-charge, Crime Team inspected the scene of crime vide report Ex.PW4/A. PW-9 Ct. Shyam Lal taken 22 photographs of scene of crime Ex.PW6/P-1 to Ex.PW6/P-22 and negatives whereof are Ex.PW9/P-1 to Ex.PW9/P-22.
4. During investigation, PW-24 Insp. Virender Singh inspected the scene of crime and prepared site plan Ex.PW24/A. PW-1 Yaseen, father of the deceased and PW-8 Haseen, brother of the deceased came to the spot. They identified dead body of the deceased. He recorded statements of PW-1 Yaseen, PW-8 Haseen, PW-6 Ashok, PW-7 Saleem and PW-2 Mohd. Yaseen. He seized two blood stained stones, blood stained hairs below the head of dead body, blood stained earth control and earth control vide seizure memo Ex.PW21/B. He seized slippers of the deceased vide seizure memo Ex.PW21/C. He sent dead body to Mortuary, GTB Hospital.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 3 of 26
5. In their statements under section 161 of the Cr.P.C., PW-1 Yaseen, father of the deceased and PW-2 Mohd. Yaseen, public witness stated that the deceased was last seen with the accused Imran on 16.11.2012 at 10.00 p.m. near Jag Parvesh Chandra Hospital and since then, he was missing. PW-8 Haseen, brother of the deceased stated, in his statement under section 161 of the Cr.P.C., that on 16.11.2012 at 10.00 p.m., the accused Imran had taken the deceased towards Jag Parvesh Chandra Hospital. PW-7 Mohd. Saleem stated that on 16.11.2012 at 10.30 p.m., he had seen the deceased with the accused Dilshad, Imran, Faiz Alam and Sajid near gate of Jag Parvesh Chandra Hospital and they went towards partly constructed building while talking. PW-24 Insp. Virender Singh searched the accused persons but they were not found. He deposited the seized articles in police malkhana.
6. On 18.11.2012, PW-24 Insp. Virender Singh made request for conducting post-mortem on the dead body of the deceased vide Ex.PW10/B. PW-10 Dr. Neha Gupta, Autopsy Surgeon performed post-mortem on dead body of the deceased. The deceased had 62 external ante-mortem injuries on his body, as stated in the post-mortem report Ex.PW10/A. On internal examination, there was extravasation of blood under the entire scalp. There was linear fissured fracture on the vault and base of the skull. Brain had sub-arachnoid haemorrhage on left parieto-temporal lobes and multiple haemorrhagic contusions on frontal, temporal and left parieto-occipital lobes.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 4 of 26
7. PW-10 Dr. Neha Gupta, Autopsy Surgeon opined that time since death was about 1 ½ day. The cause of death of the deceased was 'shock as a result of ante-mortem injuries to head and incised stab wounds of neck'. Head injury was caused by blunt force impact and incised wound on neck was caused by a sharp edged weapon. Injury No. 22 on neck and injury No. 11, 12, 13, 14, 41, 42 and 43 on head were independently and collectively sufficient to cause death in ordinary course of nature. PW-10 Dr. Neha Gupta, Autopsy Surgeon preserved clothes of the deceased in a sealed cloth parcel and blood on gauze in a sealed envelope. PW-22 Ct. Shish Pal received the said sealed parcel and envelope alongwith two sample seals and handed over to PW-24 Insp. Virender Singh vide seizure memo Ex.PW22/A. PW-22 Ct. Shish Pal handed over sealed wooden box containing viscera of the deceased alongwith sample seal to PW-24 Insp. Virender Singh vide seizure memo Ex.PW22/B. After post-mortem, dead body of the deceased was handed over to PW-1 Yaseen vide memo Ex.PW1/A.
8. On 20.11.2012 at about 6.00 p.m., PW-24 Insp. Virender Singh with PW-21 SI Jai Prakash, PW-14 HC Nathu Ram, PW-20 HC Pradeep, on receipt of a secret information, arrested the accused Imran from DDA Park, in front of Jag Parvesh Chandra Hospital, Shastri Park vide arrest memo Ex.PW8/C and personal search memo Ex.PW8/D. PW-8 Haseen, brother of the deceased identified him. He interrogated him and recorded disclosure statement Ex.PW8/A. FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 5 of 26
9. In his disclosure statement Ex.PW8/A, the accused Imran disclosed that the deceased Saddam and the accused Dilshad were in love with a girl namely Heena. The accused Dilshad asked the deceased to stay away from the said girl but the deceased denied. The accused Dilshad hatched a conspiracy with the accused Sajid, Faiz Alam and Imran to eliminate the deceased. Pursuant thereto, Imran brought the deceased to Jag Parvesh Chandra Hospital on 16.11.2012 at 10.00 p.m. The accused Dilshad, Faiz Alam and Sajid Ali were already present there. They taken the deceased towards a secluded place near wall of partly constructed building. During conversation, the accused Dilshad taken out a knife and attacked on neck of the deceased. All the accused persons beaten the deceased with fists. The accused Sajid attacked the deceased with a metal punch. The accused persons disfigured the face of the deceased with stones and left the said place.
10. In his disclosure statement Ex.PW8/A, the accused Imran further disclosed that he can get the clothes which he was wearing at the time of incident recovered from his house. Pursuant thereto, the accused Imran got recovered one blue jeans Ex.PW14/P-7 and one white shirt Ex.PW14/P-8 containing mild stains from his house vide seizure memo Ex.PW14/X. On 20.11.2012 at 8.00 p.m., PW-24 Insp. Virender Singh with his team arrested the accused Faiz Alam, at the instance of the accused Imran, from his house vide arrest memo Ex.PW14/A and personal search memo Ex.PW14/B. FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 6 of 26
11. PW-24 Insp. Virender Singh interrogated the accused Faiz Alam. He recorded his disclosure statement Ex.PW14/C, the accused Faiz Alam got recovered one black pant Ex.PW14/P-4 and one white shirt Ex.PW14/P-5 having mild blood stains from his house vide seizure memo Ex.PW14/D.
12. Thereafter, on 20.11.2012 at 9.00 p.m., PW-24 Insp. Virender Singh with his team arrested the accused Dilshad from his house vide arrest memo Ex.PW14/E and personal search memo Ex.PW14/F. He interrogated him. He recorded his disclosure statement Ex.PW14/G. The accused Dilshad got recovered blue shirt Ex.PW14/P-1 and jeans Ex.PW14/P-2 having mild stains from his house vide seizure memo Ex.PW14/H. The accused Dilshad led PW-24 Insp. Virender Singh with his team to the scene of crime and the accused Dilshad and Faiz Alam pointed out the place of incident vide pointing out memos Ex.PW14/I and Ex.PW14/J respectively. Thereafter, the accused Dilshad got recovered one button actuated knife Ex.PW10/P-1 from the soil near the wall of partly constructed building. PW-24 Insp. Virender Singh prepared sketch of the said knife Ex.PW14/K and seized it vide seizure memo Ex.PW14/L. He kept the accused Imran, Dilshad and Faiz Alam in muffled face.
13. On 27.11.2012, PW-24 Insp. Virender Singh produced the accused Dilshad, Imran and Faiz Alam in muffled face before the Court of Sh. Shailender Malik, Ld. ACMM, KKD.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 7 of 26
14. PW-24 Insp. Virender Singh moved an application for conducting Test Identification Parade (TIP) Ex.PW23/A of the accused Dilshad, Imran and Faiz Alam. The said application was marked to PW-23 Sh. Sunil Gupta, Ld. MM being Link MM of Sh. Shailender Malik, Ld. ACMM, North-East, KKD Courts, Delhi.
15. On 01.12.2012, Test Identification Parade (TIP) was organised in Central Jail No. 8 / 9, Tihar Jail. The accused Faiz Alam, Dilshad and Imran refused to join Test Identification Parade despite warning that their refusal to join Test Identification Parade may lead to adverse inference against them at the time of trial on the ground that their photographs were taken in the police station and shown to the witnesses. PW-23 Sh. Sunil Gupta, Ld. MM recorded refusal of the accused Faiz Alam, Dilshad and Imran Ex.PW23/B, Ex.PW23/C and Ex.PW23/D respectively.
16. On 04.12.2012 at about 5.00 p.m., PW-24 Insp. Virender Singh with PW-21 SI Jai Prakash and PW-14 HC Nathu Ram arrested the accused Sajid Ali from his house vide arrest memo Ex.PW14/M and personal search memo Ex.PW14/N. He interrogated him. He recorded his disclosure statement Ex.PW14/O. The accused Sajid Ali got recovered a metal claw Ex.PW10/P-2 from his house. PW-24 Insp. Virender Singh prepared sketch of the said claw Ex.PW14/P and seized it vide seizure memo Ex.PW14/Q. The accused Sajid Ali pointed out the place of incident vide pointing out memo Ex.PW14/R. FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 8 of 26
17. PW-24 Insp. Virender Singh muffled the face of the accused Sajid Ali. He produced the accused Sajid Ali before the Court of Sh. Shailender Malik, Ld. ACMM, KKD Courts. He moved an application for conducting Test Identification Parade of the accused Sajid Ali Ex.PW25/A. The said application was assigned to PW-25 Sh. Dharmender Rana, Ld. MM being his Link MM. The accused Sajid Ali refused to join Test Identification Parade despite warning that his refusal to join Test Identification Parade may lead to adverse inference against him at the time of trial vide refusal Ex.PW25/B.
18. PW-24 Insp. Virender Singh obtained subsequent opinion regarding the knife and metallic claw. PW-10 Dr. Neha Gupta, Autopsy Surgeon opined that the injuries mentioned at Sl. No. 8, 9, 10, 11, 12, 13, 14, 15, 16, 30, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 45, 46, 47, 48, 56, 58, 59, 60, 61 and 62, as mentioned in the post-mortem report Ex.PW10/A, were possible with metallic claw Ex.PW10/P-2. She opined that injuries mentioned at Sl. No. 2, 3, 5, 6, 17, 18, 21, 24, 25, 29 and 32, and injuries No. 1, 23, 28, 31, 36, 51, 52, 53 and 55 were possible with the metallic knife Ex.PW10/P-1 vide opinion Ex.PW10/J. PW-24 Insp. Virender Singh sent viscera of the deceased and the case exhibits to FSL for forensic examination. He got Scaled Site Plan of the Scene of Crime Ex.PW5/A prepared. On completion of investigation, he charge-sheeted the accused Dilshad, Imran, Faiz Alam and Sajid Ali under section 302/201/120-B/34 IPC and 25/27 Arms Act.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 9 of 26 The charge:
19. The accused Dilshad, Imran, Faiz Alam and Sajid Ali were charged for committing offences under section 120-B IPC, 302 read with section 120-B IPC and 201 IPC. The accused Dilshad was additionally charged for offences under section 25 and 27 of the Arms Act. The accused persons pleaded not guilty and claimed trial.
Prosecution evidence:
20. The prosecution, in support of its case, examined 25 witnesses, as under:
(a) PW-1 Yaseen was father of the deceased. He identified dead body of his deceased son. He received dead body of Saddam vide memo Ex.PW1/A. He has not supported the case of the prosecution.
(b) PW-2 Mohd. Yaseen was the last seen witness. He has not supported the case of the prosecution.
(c) PW-3 W/SI Santosh Sharma was the Duty Officer.
She recorded PCR call vide DD No. 16A Ex.PW3/B. She recorded case FIR Ex.PW3/D.
(d) PW-4 SI E.S. Yadav was In-charge, Crime Team. He inspected Scene of Crime. He prepared Scene of Crime (SOC) Visit Report Ex.PW4/A.
(e) PW-5 SI Mukesh Jain was the Draftsman, North- East District, Delhi. He prepared Scaled Site Plan of the place of crime Ex.PW5/A.
(f) PW-6 Ashok was the informant. On 17.11.2012, he had seen the dead body of the deceased at the place of crime. He made call at 100.
(g) PW-7 Mohd. Saleem was the last seen witness. He has not supported the case of the prosecution.
(h) PW-8 Haseen was brother of the deceased. He was also last seen witness. He has also not supported the case of the prosecution.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 10 of 26
(i) PW-9 Ct. Shyam Lal was photographer, Mobile Crime Team, North-East District, Delhi. He taken 22 photographs of the Scene of Crime Ex.PW6/P-1 to Ex.PW6/P-22 and negatives whereof are Ex.PW9/P-1 to Ex.PW9/P-22.
(j) PW-10 Dr. Neha Gupta, Autopsy Surgeon conducted post-mortem on the dead body of the deceased. She proved post-mortem report Ex.PW10/A. She given subsequent opinion regarding possibility of use of metallic claw and knife in causing ante-mortem injuries to the deceased. She proved her opinion Ex.PW10/J.
(k) PW-11 SI Prem Singh brought PCR Form regarding PCR call on 17.11.2012 at 10.57.55 hrs. Ex.PW11/A.
(l) PW-12 HC Tarsen was Special Messenger. He delivered copy of FIR to Area MM and senior officers of police.
(m) PW-13 Ct. Devender deposited the dead body in Mortuary, GTB Hospital. He taken rukka to police station for registration of case.
(n) PW-14 HC Nathu Ram was arrest and recovery witness. He proved arrest memo Ex.PW8/C and disclosure statement Ex.PW8/A in respect of the accused Imran. He proved seizure memo in respect of one white shirt and blue jeans recovered at the instance of the accused Imran Ex.PW14/X. He proved arrest memo Ex.PW14/A and disclosure statement Ex.PW14/C in respect of the accused Faiz Alam. He proved seizure memo in respect of one white shirt and black pant recovered at the instance of the accused Faiz Alam Ex.PW14/D. He proved arrest memo Ex.PW14/E and disclosure statement Ex.PW14/G in respect of the accused Dilshad. He proved seizure memo in respect of one blue shirt and jeans pant, and knife recovered at the instance of the accused Dilshad Ex.PW14/H and Ex.PW14/L respectively. He proved arrest memo Ex.PW14/M and disclosure statement Ex.PW14/O in respect of the accused Sajid Ali. He proved seizure memo in respect of one metallic claw recovered at the instance of the accused Sajid Ali Ex.PW14/Q. FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 11 of 26
(o) PW-15 Ct. Pawan deposited two parcels containing knife and metallic claw sealed with seal impression 'VS' in Forensic Department, GTB Hospital, Delhi for subsequent opinion.
(p) PW-16 Ct. Azad Singh deposited wooden box containing viscera of the deceased sealed with seal impression 'NG' in FSL, Rohini, Delhi vide RC No. 192/21/12 Ex.PW19/F.
(q) PW-17 Ct. Ram Prasad deposited 12 sealed parcels in FSL, Rohini vide RC No. 11/21/13 Ex.PW19/E.
(r) PW-18 Ramesh Singh proved Notification dated 17.02.1979 Ex.PW18/A issued by Delhi Administration
(s) PW-19 HC Raj Kumar was MHC (M). He proved relevant entries in Reg. No. 19 regarding deposit of spot seizures, autopsy seizures and case properties.
(t) PW-20 HC Pradeep Kumar was also an arrest and recovery witness. He deposed in sync with PW-14 HC Nathu Ram.
(u) PW-21 SI Jai Prakash was first Investigating Officer. He prepared rukka Ex.PW21/A. He proved seizure memo in respect of two stones, blood stained hairs, blood stained earth and earth control Ex.PW21/B. He proved seizure memo in respect of slippers of the deceased Ex.PW21/C. He was also an arrest and recovery witness.
(v) PW-22 Ct. Shishpal collected viscera box and other sealed parcels from Autopsy Surgeon and given to PW-24 Insp. Virender Singh vide seizure memo Ex.PW22/A and Ex.PW22/B respectively.
(w) PW-23 Sh. Sunil Gupta, Ld. MM, North-East, Karkardooma Courts proved TIP in respect of the accused Faiz Alam, Dilshad and Imran vide Ex.PW23/B to Ex.PW24/D respectively.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 12 of 26
(x) PW-24 Insp. Virender Singh was the Investigating Officer. He seized blood stained stones, blood stained earth, blood stained hairs and earth control from the scene of crime vide seizure memo Ex.PW21/B. He seized a pair of slippers of the deceased from the scene of crime vide seizure memo Ex.PW21/C. He prepared sketch site plan of the scene of crime Ex.PW24/A. He prepared inquest papers Ex.PW10/B. He got the post-mortem conducted on the dead body of the deceased. He arrested the accused Dilshad, Imran, Faiz Alam and Sajid Ali. He got their TIP conducted. He effected recovery of knife from the accused Dilshad and metallic claw from the accused Sajid Ali. He obtained subsequent opinion Ex.PW10/J from Autopsy Surgeon. He sent sealed exhibits to FSL, Rohini. He tendered the FSL report Ex.PW24/F, Ex.PW24/G and Ex.PW24/H. He identified the accused persons and the articles seized by him.
(y) PW-25 Sh. Dharmender Rana, Ld. MM, North- East, Karkardooma Courts proved TIP in respect of the accused Sajid Ali Ex.PW25/B. Examination under section 313 of the Cr.P.C.:
21. On conclusion of the prosecution evidence, incriminating circumstances and evidence were put to the accused persons as required under section 313 of the Cr.P.C.
The accused persons denied each and every circumstance. The accused Dilshad denied that he got recovered clothes and knife. The accused Sajid Ali denied that he got recovered the metallic claw. The accused Faiz Alam and Imran denied that the clothes were recovered at their instance. They denied that any cloth or weapon of offence was recovered from them. They pleaded innocence and claimed false implication.
22. No witness was examined in defence.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 13 of 26 Prosecution arguments:
23. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that there are strong incriminating circumstances against the accused persons. He submitted that the knife recovered at the instance of the accused Dilshad and the metallic claw recovered at the instance of the accused Sajid Ali were opined to be weapon of offence as the injuries mentioned in the post-mortem report of the deceased Ex.PW10/A were possible with the said knife and metallic claw. He submitted that the accused Dilshad and Sajid Ali have not explained their possession of the said knife and metallic claw. He submitted that human blood was detected on the white shirt Ex.PW14/P-5 recovered at the instance of the accused Faiz Alam. He submitted that the accused Imran, Dilshad, Faiz Alam and Sajid Ali pointed out the scene of crime vide memos Ex.PW8/B, Ex.PW14/I, Ex.PW14/J and Ex.PW14/R respectively. Defence arguments:
24. Sh. S.N. Qureshi, Ld. Defence counsel submitted that PW-1 Yaseen, father of the deceased, PW-2 Mohd. Yaseen, PW-7 Mohd. Saleem and PW-8 Haseen, brother of the deceased were witnesses of the last seen evidence but they have not supported the case of the prosecution. He submitted that the knife and metallic claw did not have blood of the deceased. He submitted that mere recovery of a shirt from the accused Faiz Alam having human blood is hardly sufficient to convict him for an offence under section 302 IPC.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 14 of 26 Examination of the evidence:
25. I have carefully examined the evidence, oral and documentary, on record.
Points for determination:
(a) Whether the death of the deceased Saddam was homicidal, suicidal or accidental?
26. The defence has not disputed that the death of the deceased was not a homicide. PW-21 SI Jai Prakash was the first police officer who reached at the scene of crime on receipt of PCR call on 17.11.2012 at 10.54.15 hrs. vide PCR Form Ex.PW11/A. He stated that there were two injuries on the neck and the face of the dead body was disfigured and the clothes as well as the dead body were smeared in blood. He stated that stones lying near the dead body were also smeared in blood. PW-4 SI E.S. Yadav, In-charge, Crime Team stated that there were multiple injuries over the dead body and there was blood on some of the stones and wall. Photographs Ex.PW6/P-1 to Ex.PW6/P-22 depict extensive injuries on the face of the dead body. From the photographs, it can be seen that blood stained pieces of stones were lying near the dead body and the blood had scattered around the dead body. Post-mortem report Ex.PW10/A mention as many as 62 external ante-mortem injuries on the dead body. There were 7 incised stab wounds on the back of the deceased. There were two incised stab wounds on the neck of the deceased. Impact of the injuries was such that it caused linear fracture of the vault and base of the skull.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 15 of 26
27. Cause of death of the deceased was 'shock as a result of ante-mortem injuries to head and incised stab wounds of neck'. Injury No. 22 on neck and injury No. 11, 12, 13, 14, 41, 42 and 43 on head were independently and collectively sufficient to cause death in ordinary course of nature.
28. Given by the nature of the injuries, number of the injuries, state of the body of the deceased and the scene of crime, there should not be any hesitation in reaching to the conclusion that the death of the deceased was a homicide and it was caused with the intention to cause his death and accordingly, it falls under clause 1 of section 300 IPC. The death of the deceased Saddam was a murder.
(b) Whether the accused persons were the perpetrators of the crime?
29. The case of the prosecution was based on the circumstantial evidence.
30. The prosecution relied upon the last seen evidence, recovery of the blood stained clothes from the accused Dilshad, Imran and Faiz Alam, recovery of weapon of offence i.e. knife and metallic claw from the accused Dilshad and Sajid Ali respectively, pointing out of the scene of crime and refusal of the accused persons to participate in Test Identification Parade.
(i) Last seen evidence:
31. PW-1 Yaseen, father of the deceased, PW-8 Haseen, brother of the deceased, PW-2 Mohd. Yaseen and PW- 7 Mohd. Saleem were witnesses of the last seen evidence. They have not supported the case of the prosecution.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 16 of 26
32. PW-1 Yaseen was father of the deceased. In his statement under section 161 of the Cr.P.C., he stated that on 16.11.2012 at about 10.00 p.m., the deceased Saddam was standing at Brahmpuri pulia near his house and from there, he went with the accused Imran. He stated that his elder son Haseen told the said fact.
33. In his evidence, PW-1 Yaseen stated that on 16.11.2012, he was not in Delhi as he went to his native Vill. Sikandara Rao in U.P. He stated that on 17.11.2012, his son Haseen informed him on telephone regarding murder of Saddam and thereafter, he came to Delhi on 17.11.2012 at 9.00 p.m. He denied that police had made any enquiry from him. He denied that police had recorded his statement except the statement at the time of identification and handing over of the dead body.
34. PW-1 Yaseen was cross-examined by Ld. Addl. PP for the State. The State could not elicit anything from him. Relevant portion of his cross-examination is as under:
".....It is wrong to suggest that I had told the IO in my statement that my son Haseen told me that Saddam was lastly seen in company of Imran at about 10.00 p.m., near Brahmpuri Pulia and from where, he went alongwith Imran. Confronted with statement Ex.PW1/PX, where, it is so recorded. It is wrong to suggest that I had told the IO in my statement that on 16/11/2012, we has searched for Saddam in the nearby area, but, in vain. Confronted with statement Ex.PW1/PX, where, it is so recorded. Vol. I was not in Delhi.....I do not know the Imran....."
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 17 of 26
35. PW-8 Haseen, brother of the deceased stated, in his statement under section 161 of the Cr.P.C., that on 16.11.2012 at about 10.00 p.m., he was sitting at Brahmpuri pulia in front of his house and his brother Saddam was standing near a Tea- shop at some distance and at that time, his friend Imran @ Kalim came and they went towards Jag Parvesh Chandra Hospital via Pandusheela Road. He stated that he called Saddam but they went towards the said hospital. He stated that Saddam did not return to his house and thereafter, he went to the house of Imran @ Kalim but he was also not found in his house.
36. PW-8 Haseen stated, in his evidence, that he had seen his brother alive at 3.00 p.m. in his kabari shop. He stated that the police had not made any enquiry from him. He stated that police had not recorded his statement. He denied that the accused persons were arrested by the police at his instance. He stated that police officials obtained his signatures on blank papers on 18.12.2012. He even did not identify any of the accused persons. He was cross-examined by Ld. Addl. PP for the State. He denied that he made any statement to the police. Relevant portion of his cross-examination is as under:
"It is wrong to suggest that I had stated to the police that on 16.11.2012 at about 10.00 p.m., I was sitting on Brahmpuri pulia in front of my house and my brother Saddam was standing at a Tea-shop at some distance from me, when, one of his friend, namely, Imran @ Kalim came to meet him and thereafter, both of them went towards Jag Parvesh Chandra Hospital via Pandu Sheela Road and I called Saddam but, he did not answer and both of them went towards FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 18 of 26 Hospital side and till late night, Saddam did not come back at home. Confronted with statement Ex.PW8/PA, where, it is so recorded at point A to A. It is wrong to suggest that I had told the IO in my statement dated 17.11.2012 that I went to the house of Imran @ Kalim at C-48/28, Gali No. 14, Chauhan Bager, Delhi and by that time, Imran did not reach at his house. Confronted with statement Ex.PW8/PA, where, it is so recorded at point B to B."
37. PW-2 Mohd. Yaseen was also a witness of last seen evidence. In his statement under section 161 of the Cr.P.C., he stated that on 16.11.2012 at about 10.00 p.m., he reached near Pandusheela Mandir after hawking and saw that Saddam was going towards Jag Parvesh Chandra Hospital with Imran. However, in his evidence, he stated that he had not seen Saddam in the company of any person before his death. He was cross-examined by Ld. Addl. PP for the State, as under:
"It is wrong to suggest that I had told the IO in my statement dated 17.11.2012, that on 16.11.2012 at about 10.00 p.m., when I reached near Pandu Shila Mandir via Zero Pusta Main Road, after fehri (rickshaw rehri), there, I saw Saddam S/o Yaseen, who was going alongwith his friend Imran to the side of Jag Parvesh Chandra Hospital and many times Imran @ Kalim was seen by me standing with Saddam at Brahmpuri pulia and I knew him, prior to that and I did not feel it good to ask anything from them and thereafter, I came back to my house. Confronted with statement Ex.PW2/PX, where, it is so recorded."
38. PW-7 Saleem, in his statement under section 161 of the Cr.P.C., stated that on 16.11.2012 at about 10.30 p.m., he went to answer natural call in the open field where Saddam was talking with his friends Imran, Dilshad, Sajid and Faizan and they went towards partly constructed building while talking.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 19 of 26
39. PW-7 Saleem, in his evidence, stated that he does not know anything about this case. He stated that he does not know any of the accused persons. He stated that police neither made any enquiry from him nor recorded his statement. He was cross-examined by Ld. Addl. PP for the State. However, he could not elicit anything from his cross-examination, as under:
"It is wrong to suggest that on 17.11.2012, I told the police in my statement that on 16.11.2012 at about 10.30 p.m., I went to ease myself in the open fields where, near road side near the wall the son of my neighbour, namely, Saddam S/o Yaseen was talking in high pitch with his friends Imran @ Kalim, Dilshad, Sajid @ Robert and Faizan and thereafter, they went towards incomplete building while talking and these all boys were generally seen together, while roaming at and near the gate of Jag Parvesh Chandra Hospital. Confronted with statement Ex.PW7/PX, where, it is so recorded from point A to A."
(ii) Pointing out memo is inadmissible in evidence:
40. Ld. Addl. PP for the State submitted that the accused Dilshad, Imran, Faiz Alam and Sajid Ali pointed out the scene of crime and pointing out memos Ex.PW8/B, Ex.PW14/I, Ex.PW14/J and Ex.PW14/R respectively.
41. Ld. Defence counsel submitted that the scene of crime was already known to the police before the arrest of the accused persons. He submitted that the scene of crime was not discovered at the instance of the accused persons. He submitted that the accused persons did not get discovered any new fact pursuant to their pointing out memos. He submitted that pointing out memos are neither admissible under section 27 of the Evidence Act nor section 8 of the Evidence Act.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 20 of 26
42. Pointing out memo is neither admissible under section 27 of the Evidence Act nor section 8 of the Evidence Act. In 'Mahesh Chand vs. State', Crl. A. No. 160/2001 decided on 18.08.2009, Hon'ble Delhi High Court dealing with such contention held as under:
"11. The fourth incriminating circumstance held established by the learned Trail Judge i.e. the appellant identifying the place where the dead body of the deceased was thrown, is based on the ignorance of the fact that the dead body of the deceased was recovered much prior to the arrest of the appellant and the place where it was thrown was thus obviously known to the police. The police taking the appellant to the same spot is neither admissible in evidence under section 27 of the Evidence Act as no new fact got discovered. It is also not a relevant fact under section 8 of the Evidence Act for the reason the alleged pointing out by the appellant cannot relate to conduct as there is no guarantee that the police, which knew the spot where the dead body was recovered, itself took the appellant to the said spot."
(iii) The knife and metallic claw could not be connected:
43. The case of the prosecution is that the knife Ex.PW10/P-1 and metallic claw Ex.PW10/P-2 were recovered pursuant to disclosure statement of the accused Dilshad and Sajid Ali and Autopsy Surgeon has given opinion Ex.PW10/J that the injuries on the dead body of the deceased were possible with the said knife and metallic claw.
44. The knife Ex.PW10/P-1 and metallic claw Ex.PW10/P-2 were sent for forensic examination. According to FSL report Ex.PW24/F, blood could not detected on the knife and metallic claw / punch.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 21 of 26
45. The said knife and metallic claw could not be connected with the offence in question. Mere possibility of causing injuries to the deceased with the said knife and metallic claw is not an incriminating circumstance.
(iv) Presence of human blood on the shirt recovered at the instance of the accused Faiz Alam:
46. The case of the prosecution was that blood stained clothes which the accused Dilshad, Imran and Faiz Alam were wearing at the time of commission of offence were recovered from their houses at their instance.
47. According to FSL report Ex.PW24/F, blood could not be detected on the clothes recovered at the instance of the accused Dilshad and Imran.
48. However, blood was detected on the shirt recovered at the instance of the accused Faiz Alam vide FSL report Ex.PW24/F. On serological examination, it could not be detected whether the said blood was of human origin.
49. In Mahesh Chand vs. State (supra), Hon'ble Delhi High Court observed as under:
"16. As held in the decision reported as JT 2008 (1) SC 191 Mani vs State of Tamil Nadu (para 21) discovery of common objects is a weak kind of evidence and conviction in a serious matter like murder cannot be based solely upon the discovery of common objects. The common objects referred to by the Supreme Court were blood-stained clothes and blood-stained weapon of offence i.e. a koduval recovered at the instance of the accused.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 22 of 26
17. In the decision reported as Narisnbhai Haribhai Prajapati v Chhatrasinh & Ors AIR 1977 SC 1753 the Supreme Court had held that in the absence of any other evidence the circumstances of seizure of blood stained shirt and dhoti from the person of an accused and dharias from the houses of the accused are wholly insufficient to sustain the charge of murder against the accused.
18. In the decision reported as Surjit Singh v State of Punjab AIR 1994 SC 110 a watch belonging to the deceased and one dagger which was found to be stained with human blood were recovered at the instance of the accused. It was held by the Supreme Court that said recovery by itself, does not connect the accused person with the murder of the deceased. It was further held that said circumstance may create some suspicion but the same cannot take the place of proof.
19.....
20. In the decision reported as Prabhoo v State of U.P. AIR 1963 SC 1113 a kulhari, a shirt and a dhoti which were found to be stained with human blood were recovered from the house of the accused, at his instance. Holding that it is well settled that circumstantial evidence must be such as to lead to a conclusion which on any reasonable hypothesis is consistent only with the guilt of the accused and not with his innocence and that from the mere production of the blood stained articles by the accused, one cannot come to the conclusion that the accused committed the murder inasmuch as the fact of production cannot be said to be consistent only with guilt of the accused and inconsistent with his innocence, for the reason it is quite possible that someone else committed the murder and kept the blood stained articles in the house of the accused and that the accused might have produced the said articles when interrogated by the police, the Supreme Court acquitted the accused. We conclude by holding, taking guidance from the afore-noted decisions of the Supreme Court, that the chain of incriminating circumstances is not complete wherefrom the guilt of the appellant can be inferred."
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 23 of 26 Recovery of knife from the accused Dilshad doubtful:
50. According to the prosecution, the knife Ex.PW10/P-1 was recovered from the house of the accused Dilshad pursuant to his disclosure statement Ex.PW14/G. However, disclosure statement does not state this fact. PW-24 Insp. Virender Singh did not prepare site plan of place of recovery of the said knife. He had not handed over seal to any independent person.
51. In Mohd. Jabbar vs. State, Crl. A. 1022/2008 decided on 21.05.2010 by the Hon'ble High Court of Delhi, it was observed, as under:
"18. Way back in the year 1943, Justice Muneer, in the decision reported as AIR 1943 Null 5 Shera vs. Emperor, had cautioned Courts to be vigilant against the known practice of the police to plant ordinary objects on the accused persons to prove access by the accused to the place where the crime was committed."
The conclusion:
52. The prosecution failed to prove complete chain of incriminating circumstances from which inference of guilt of the accused Dilshad, Imran, Faiz Alam and Sajid Ali can be drawn.
53. The prosecution has failed to prove the charges under section 120-B IPC, 302 read with section 120-B IPC, section 201 IPC, section 25 and 27 of the Arms Act.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 24 of 26
54. Accordingly, the accused Dilshad, Imran, Faiz Alam and Sajid Ali are acquitted from offences under section 120-B IPC, 302 read with section 120-B IPC and section 201 IPC. The accused Dilshad is acquitted from section 25 and 27 Arms Act.
Announced in the open court SANJAY SHARMA rd on this 23 day of January, 2017. Special Judge NDPS (North-East) ASJ:KKD Courts, Delhi.
FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 25 of 26 SC No. 09(I)/13 FIR No. 307/2012 Under Section 302/201/120B/34 IPC & 25/27 Arms Act PS New Usmanpur 23.01.2017 Present: Sh. I.H. Siddiqui, Ld. Addl. PP for the State.
Sh. Mohd. Rahat, Ld. Defence counsel.
All accused on bail.
It is 3.30 p.m. Vide separate judgment announced in the open Court, the accused Dilshad, Imran, Faiz Alam and Sajid Ali are acquitted from offences under section 120B IPC, 302 read with section 120B IPC and section 201 IPC. The accused Dilshad is acquitted from offence under section 25 and 27 Arms Act.
Dilshad, Imran, Faiz Alam and Sajid Ali have already furnished bail bonds as required under section 437A of the Cr.P.C.
File be consigned to record room.
Sanjay Sharma Special Judge NDPS (NE) ASJ/KKD/Delhi/23.01.2017 FIR No. 307/2012 State Vs. Dilshad & Ors. Page No. 26 of 26