Delhi District Court
State vs . Abdul Rehman & Ors. S.C. No. 111/2013 ... on 5 August, 2016
In the Court of Sh. Ajay Kumar Jain, Additional Sessions
Judge02, South District, Saket Court, Delhi.
Session Case No. 111/2013
In the matter of :
State
Versus
1) Md. Abdul Rehman
S/o. Late Samshul Haq
R/o. Village Gogodi, P.S. Jamalpur,
District Khagariya, Bihar.
2) Shamshad
S/o. Jamshad
R/o. Village Gogodi, P.S. Jamalpur,
District Khagariya, Bihar.
3) Mohd. Mamur
S/o. Late Samshul Haq
R/o. Village Gogodi, P.S. Jamalpur,
District Khagariya, Bihar.
4) Afroj Ajam @ Mannu
S/o. Abdul Gafar
R/o. Village Gogodi, P.S. Jamalpur,
District Khagariya, Bihar.
FIR No. : 285/2013
Police Station : Sangam Vihar
Under section. : 394/302/411/120B IPC
Date of assignment : 30.10.2013
Reserved for order on : 28.07.2016
Date of decision : 05.08.2016
State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 1 of 39
JUDGMENT
1. Prosecution story in brief is that after receiving the information regarding a dead body lying the street in front of House No. H 17/10 and 17/11, Sangam Vihar, New Delhi on 02.07.2013, Sub Inspector Amit alongwith Constables reached at the spot and found the dead body, thereafter, crime team was called which inspected the scene of crime. On inquiry from the nearby persons, the identity of the deceased was revealed as Bulbul Khan, aged 35 years, native of West Bengal and resident of House NO. 17/10, Sangam Vihar, New Delhi, and it is also found during inquiry that he was seen lastly on 01.07.2013 at around 11.30 P.M. while preparing food. On searching the CDR of his mobile phone, it was found that he lastly contacted one of his neighbours Manish at around 01.00 A.M. in night intervening 01.07.2016 02.07.2016.
2. After getting the secret information on 13.07.2013, accused were arrested. Accused Abdul Rehman in his disclosure statement stated that the deceased Bulbul Khan resides at house of one Vijay Bidhuri for the last 5/6 years and used to do the job of a salesman and submits the collection in his office on every Wednesday. He used to collect Rs.1,00,000/ in a week. He further disclosed that all the accused hatched conspiracy on 30.06.2013 to rob the collection by murdering deceased Bulbul Khan, thus in pursuance to the conspiracy on 01.07.2013 at around 12.00 in the night they assembled at the office of Abdul Rehman. Accused Mamur Khan called Bulbul Khan at that office State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 2 of 39 and at that time, Bulbul Khan was sitting on the stairs of his house which is nearby and talking on mobile. Thereafter, Bulbul Khan came to the office then he was threatened by accused Mamur and Shamshad and they asked how much money lying in his room and also threatened to hand over the keys otherwise he would be killed. Thereafter, Bulbul Khan gave the keys and also told about the money. Then accused Mamur and Afroz strangulated him with the angojha carried by deceased, at that time accused Abdul Rehman caught hold his hands, accused Shamshad his legs, thereafter, Afroz also strangulated him with the hands and Bulbul Khan got died in the office of Vijay Bidhuri. Thereafter, accused Afroz and Mamur went to the room of Bulbul Khan and came back with Rs.1,07,000/ in one black colour bag and then all the 4 accused carried and dropped the dead body in the narrow street and covered the same with the angoojha. Accused Mamur has broken the SIM card of the mobile phone of deceased Bulbul Khan and thrown the mobile phone in gandi nali.
3. Out of the robbed money, Rs.30,000/ was taken by accused Abdul Rehman and at the instance of Abdul Rehman the said money alongwith the black colour bag, PAN card and ID card of the deceased were recovered. At the instance of accused Shamshad, a sum of Rs.2,000/ and the inamee coupon of Jai Bharat Bidi were recovered and at the instance of accused Afroz, a sum of Rs.5,000/ alongwith one purse carrying Bulbul Khan photograph and Icard of Jai Bharat Bidi were recovered. Accused Abdul Rehman, Shamshad and Afroz were arrested on State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 3 of 39 13.07.2013. Accused Mamur surrendered before the Court on 22.08.2013 and stated that he has thrown the robbed mobile phone while going to his village from the train and further thrown the SIM card after breaking the same in gandi nali and the SIM card could not be traced. During investigation, site plan of the place of occurrence was prepared. As per the postmortem report cause of death is asphyxia due to combine effect of manual and ligature strangulation and all injuries are found to be antemortem in nature. As per FSL report, no common poisoning was found, however, deceased appears to be under the influence of liquor. On completion of investigation, charge sheet under section 302/394/411/201/120B/34 was filed before the Court.
4. On committal, charges were framed against all the accused persons vide order dated 30.01.2014 under sections 394/302/411/120B, IPC.
5. Prosecution for substantiating its case, examined 29 witnesses. Statement of public witnesses in brief
6. PW3 Hasim Khan, son of deceased Bulbul Khan stated that his father used to supply bidi in the area of Lal Quila, Nizamuddin and Sangam Vihar, and he used to talk to his father occasionally. On 02.07.2013 at about 10.45 A.M., he received a call from the police that they found the dead body of his father. He also stated that he was interrogated by the police in the month of July and was also taken to the room of his father. Two rooms at the ground floor were in the possession of deceased and some bundles of bidi were lying in that room and some household articles belonging to State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 4 of 39 his father was lying in one room. One iron box was also recovered, however, nothing recovered from the said iron box. He stated that on 03.07.2013, he was again called by the police officials for identification of dead body of his father. Furthermore, after 15/20 days, he was informed that 4/5 persons were arrested and some dairies etc. looted by them were recovered. He was informed by the police that his father was killed and his articles and belongings were looted. He also deposed that he can identify the case property. During examination in chief, he identified one black purse, one voter I card, two ball pens, 7 small paper clips, one railway ticket, bundles of notes, one brown colour purse, identity card of M/s. Jai Bharat Bidi and 8 notes in the denomination of Rs.500/ and 10 notes in the denomination of Rs.100/ i.e. total Rs.5,000/ and thereafter also identified 8 coupons of Jai Bharat Bidi on which 5 having signatures and three having signatures and seal both, and 4 notes of denomination of Rs.500/ He also identified towel (gamjha), having cut marks and baniyan having blood stains and nikkar and thereafter two diaries, one of yellow colour and another of red colour and one register having entries in Bangla.
7. In cross examination stated that he was interrogated by police on 02.07.2013 and 03.07.2013 and no other statement was recorded by the police. He also told that he contacted his father 4/5 days prior to the incident and also stated that he was not aware about the house number where his father was a tenant in two rooms and on 02.07.2013 at 03.00 P.M., he reached with the State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 5 of 39 police at the said accommodation of his father and at that time both rooms were locked and police removed the lock in his presence and thereafter they entered in the room, however, denied the suggestion that all the articles which were alleged to be recovered, used to be kept by his father in black bag and stated that some of the articles used by his father were kept in the bag and sometimes diaries are used to keep in the bag and sometimes used to keep cash in box. He also stated that on 02.07.2013 at around 3/4 p.m., police taken the black bag with them which was identified by him in his examination in chief in his presence. However, nothing was found in cash box and the cash box was locked. He also stated that he don't know how many articles were taken by the police from the room of his father. He also stated that he do not know about the preparation of any list by the police. Bidi coupons or currency notes do not bear the signature of his father. He also stated that he do not know who had signed those documents. Police not recorded his statement regarding the missing of articles. However, police told him after 15 / 20 days that some cash was missing from his room. He also stated that on 02.07.2013, police put lock in the room after he left with the police at around 05.00 P.M. and the key of the locks was with the police, however, denied suggestion that the articles were shown to him by the police in the police station and submits that he was not called by the police to identify the articles belonging to his father. He also stated that bidi material of his father has been removed by his manager ZiaulIslam and other belongings were handed over to State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 6 of 39 him by the manager. However, he do not remember the exact date of handing over. He denied the suggestion that his father used to consume liquor. He also stated that currency notes produced in the Court do not bear any special mark.
8. PW5 Vijay Bidhuri stated that he is a cable operator. Accused Rehman and Mohd. Mamur were doing the work with him in the year 20092010 and Mohd. Mamur left the work 5 / 6 months prior to the incident, but at that time, Abdul Rehman was working with him and on the day of incident, he received a telephonic call by his father that tenant Bulbul Khan was killed by someone who was residing in a room at second floor for the last 3/4 years. On being declared hostile by the Additional Public Prosecutor stated that he police visited him regularly for about 8/10 days, however, his statement was not recorded. He also stated that 8/10 persons were working with him in those days. He also stated that he is not aware whether the police of police station Sangam Vihar had taken the search of the room of deceased Bulbul, however, police has visited his office on the day of incident and accused Abdul Rehman used to reside at his office at first floor and do not used to pay any rent. He also stated that he was not called by the police station in this case. Accused remained residing at first floor of their office till date of his arrest. He also stated that in his presence, no person from his locality were interrogated by the police, and when the dead body of Bulbul Khan was found he remained in his office and Abdul Rehman was also present there.
9. PW6 Harswaroop Bidhuri also stated that his son is a cable State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 7 of 39 operator and accused Abdul Rehman was with him and saw the dead body in the street thus called the police. On being declared hostile by Additional Public Prosecutor for State, he stated that police interrogated and recorded his statement. He stated that the deceased was a tenant and there were two rooms in his possession. One was used as a store room for his bidi and in other room residing, and in the year 2003, he was residing alone. He denied the suggestion that accused Mamur and Abdul Rehman were involved in the murder of deceased Bulbul Khan. In cross examination stated that police and police visited the tenanted room of the deceased and took away many articles with them. He also stated that accused Abdul Rehman used to stay at the first floor of his office and police also searched the office on that day. He also stated when he reached the office on 02.07.2013, only Abdul Rehman was there and he remained in the office till date he was arrested and deceased Bulbul Khan was paying a rent of Rs.4,000/ per month.
10. PW7 Rajesh Kumar Chaurasiya stated to have Paan shop at H17/27, Sangam Vihar and used to purchase bidi from Bulbul Khan and came to know about the murder when he opened his shop on that day and identified the photograph of the dead body of the deceased. In cross examination stated that he used to purchase one Puda of bidi containing 20 bundles of bidi, however, no inamee coupon used to be there and police recorded his statement after 3/4 days of the incident.
11. PW8 Gunbir Gupta stated that he do not know deceased State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 8 of 39 Bulbul Khan and never purchased any bidi from him. On being declared hostile by Additional Public Prosecutor for State stated that he do not know that Bulbul Khan was murdered. PW10 Murad Ali stated that he is the owner of G2/11, Sangam Vihar, New Delhi and identified accused Afroz Alam @ Nannu as his tenant. PW11 Dharmender also identified his tenant accused Shamshad in the Court.
12. PW15 ZiaulIslam stated that he is Manager in the company and Bulbul was salesman in the company and used to sell Jai Bharat Bidi in the area of Sangam Vihar and used to come to his office to make the payments. On 02.07.2013, it came to his notice that Bulbul Khan was murdered and identified his dead body on 03.07.2013. On being declared hostile, he denied suggestion that police recorded his statement on 13.07.2016, however, stated that police interrogated him on 02.07.2013 and 03.07.2013 and also denied suggestion that on 13.07.2013, accused Abdul Rehman was arrested by police from cable operator office where he was interrogated and made disclosure statement and recoveries were effected from him. But, he identified articles of accused Bulbul Khan i.e. one black colour bag, PAN card and ID card of the deceased, 7 small paper clips, one railway ticket, 3 bundles of Rs.100/ in the denomination of Rs.100, totalling Rs.30,000/, however, stated that the said bag and cash was not recovered in his presence but identifying as same is seen in the possession of deceased Bulbul Khan. In cross examination stated that bundles of currency notes do not bear the signature of the deceased and State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 9 of 39 also stated that he also cannot tell the date on which date Bulbul Khan made a payment in his office. PW26 Mohd. Sharik Sheikh identified the dead body of the deceased.
13. PW28 Manish stated that he was residing in Gali No. 17, house No. 16 and used to supply utensils and deceased Bulbul was also residing in the same building as a tenant and in the summers he took meals and slept around 01.30 A.M. He also stated that he received a call from Bulbul Khan that he was somewhere and his house was locked and to take care of his house and thereafter call was disconnected, and thereafter on the next day his dead body was lying in the gali. He stated that around 10.00 P.M. Bulbul Khan was taking meal and also denied suggestion that on 30.07.2013 one red colour diary and one register containing details of sale and purchase of Bulbul were seized by the police, and were taken into possession. It is correct that seizure memo of diary bears his signature Ex.PW22/B. In cross examination stated that it is correct when Bulbul was murdered his house was locked and he was called inside when the diaries and register were seized from his house. He also stated that police entered the room by break open the locks, but the same was not broken in his presence. He also stated that accused Bulbul Khan did not inform him that he was going with the accused persons when call was made to him at around 1.30 A.M. in the night.
Statement of Police Officials
14. PW22 Inspector K.L. Meena stated that after registration of State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 10 of 39 the FIR, the investigation of the present case was assigned to him. He inspected the spot and prepared the site plan of the place of occurrence and also visited the rented accommodation of the deceased in presence of Hashim Khan i.e. son of the deceased and inspected both the rooms at the first floor of the house No. 17/16, H block where it came to his notice that some cash and belongings of the deceased were missing. Two diaries and one register having writing material in Bangal were seized vide seizure memo Ex.PW22/B in presence of Constable Ashok, SubInspector Pankaj. Thereafter, police officials reached at the office of cable operator operated by Vijay Bidhuri and asked name of his worker and stated it came to his notice that Mohd. Mamur worked with him and went away from his office prior to 4 / 5 days. He also stated that he made inquiries from nearby spot, but no clue came forward on that day. On 03.07.2013, dead body was identified through Hashim Khan and postmortem was conducted. On 13.07.2013, he alongwith SubInspector Pankaj, Constable Brij Mohan, Head Constable Rajender busy in the investigation and reached at the house on secret information of Vijay Bidhuri and one of the workers of Vijay Bidhuri namely Abdul Rehman was interrogated by him who made disclosure regarding his involvement in the case alongwith 3 accused namely Afroz, Shamshad and Mamur and stated that the murder was committed at the office of Vijay Bidhuri on intervening night of 0102.07.2013. Abdul Rehman produced one black colour bag containing Rs.30,000/, PAN card, voter I card, two pens and some other papers stating that and he his State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 11 of 39 associates robbed the aforesaid bag from the possession of Bulbul Khan. Thereafter, accused Abdul Rehman was arrested and his arrest memo and personal search memos were also prepared. One Manish also joined the arrest proceedings and personal search memo bears his signatures also. In pursuance to the disclosure statement, accused Abdul Rehman pointed out the place of murder i.e. office of Vijay Bidhuri and also shown the place where the dead body was thrown. Thereafter accused led the police party to the house of Shamshad in H Block where Shamshad was arrested and his disclosure was recorded. In pursuance to the disclosure, accused Shamshad took out Rs.2,000/ and 8 inamee coupons of Jai Bharat Bidi lying in an iron box in his tenanted room, stating that these were robbed from the room of the deceased. Seizure memo of the recoveries were prepared. Thereafter, accused Shamshad took the police party to place of murder and pointed out the same. Then, both the accused led them to the house of accused Afroz Alam in Sangam Vihar and his disclosure statement was recorded and in pursuance to his disclosure, a purse containing Rs.5,200/ and ID card of deceased lying under the quilt was recovered. However, accused Mamur could not be found at that date. On 22.08.2013, accused Mamur was formally arrested with the permission of the concerned Court where he appeared. Two days police custody remand was taken and his disclosure statement was also recorded. He did not gave the information about the mobile phone with SIM of the deceased. Sometimes he told he has given to someone and State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 12 of 39 sometimes he told that he thrown the same from the running train. He stated on the same day, he interrogated Vijay Bidhuri who had given one letter that Abdul Rehman worked with him for the last 5/6 years. On 01.08.2016, Inspector Mahesh was taken by him to the spot where he took rough notes and thereafter prepared the scaled site plan. He also examined one ZiaulHaq, Manager of M/s. Jai Bharat Bidi factory and one letter was delivered by him stating therein that Bulbul used to deposit a cash with him against the sale of bidi. A certificate is also issued by the Manager in this regard.
15. In cross examination, he submitted that information regarding the dead body was received from one Harswaroop, however, no eye witness was found at the spot. SI Pankaj also visited the spot on 2/7/13, however, his statement is not recorded regarding the joining of the proceedings on 2/7/13. Sh.Hashim Khan son of the deceased joined the investigation on 2/7/13 at 10am. The deceased was found in occupation of two rented rooms however, he do not remember the exact number of floors on which the aforesaid two rooms were there, but stated that it was on the ground floor. He also stated that one of the rooms was found open when Hashim Khan visited the spot, but he could not say whether the other room was open or locked as other room was used as godown. He denied the suggestion that the said room was locked and they broke open the lock. He also stated that he did not seize the lock or key from the room in which the deceased was living. No finger prints were lifted from the door by the crime team in his State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 13 of 39 presence. Seizure memo Ex.PW22/B do not bear the date , however, the date was 2/7/13 and it is correct that son of the deceased did not complain about theft of any article. It is also correct that son of the deceased namely Hashim Khan did not complain of theft of any article etc till the arrest of the accused persons. He also stated that on 13/7/13 he left the PS alongwith staff at around 4pm and the information was given by the informer at around 4pm, however, he do not remember if any DD entry for departure in this regard was made and accused Abdul Rehman got recovered Rs. 30,000/ from the place where he used to reside on the ground floor. It is wrong to suggest that accused Abdul Rehman not used to reside on the ground floor. He was arrested at around 6pm on 13/7/13. The recovered articles were sealed with the seal of SGVII and only one seal used to remain with him which he handed over after use to SI Pankaj. However, there is no handing over memo. It is correct that seizure memo only reflects SGV. He also stated that it took around 30 minutes to complete the proceedings qua accused Abdul Rehman. Accused Shamshad was arrested at around 7 pm and accused Afroz at around 8 pm. Case property recovered from accused Shamshad was sealed with the seal of SGV2. At the time of arrest of accused Abdul, Manish was asked to joined the investigation and he was present during the proceedings conducted in respect of accused Abdul. However, he is not a witness to the proceedings. He further stated that statement of Manish was recorded on 3/7/13, however, do not remember whether his statement was recorded on 13/7/13 and State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 14 of 39 after looking into the file stated no statement was recorded of this witness on 13/7/13. He further stated that he recorded statement of Sh ZiaulIslam on 13/7/13 and also denied suggestion that he recorded false statement of joining investigation on 13.07.2013. He also denied the suggestion that from personal search of accused Afroz Rs.200/ were recovered and Rs, 5,200/ were recovered from the beneath the pillow of the bed which was lying in the room of accused Afroz and he came back to the PS with his team at around 9:30pm. No key of the room of the deceased was recovered from the accused persons and he also do not remember whether anything was said in his disclosure statements regarding key of the room of the deceased. He also submitted that how many rooms are in occupation of Shamshad and from where he was arrested. At the time of arrest of accused Shamshad, one lady was found but he has not recorded her statement. He further stated that he cannot say whether the inamee coupon which was recovered from accused Shamshad were easily available in the market.
16. PW16 SI Pankaj stated that on 13/7/13 he joined the investigation with Inspt. KL Meena, Ct. Brijmohan and HC Rajender and in search of accused persons they reached H Block, Sangam Vihar and at the instance of secret informer Inspt. KL Meena visited the cable office at H16/2, Sangam Vihar, New Delhi where he found accused Abdul Rehman. On interrogation, he disclosed that he alongwith his associates committed murder of Bulbul Khan at the cable office. Thereafter, he was arrested and State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 15 of 39 disclosure statement was recorded. Even he took out one black bag under the sofa in the cable office and the same was checked by the IO which contained Rs. 30,000/, ID Card, Pan Card, two pens of deceased etc. In pursuance to the disclosure statement, accused Shamshad was arrested and from the wearing pant of the Shamshad Rs. 2000/, 08 coupons of Jai Bharat beedi was recovered and he disclosed that those Rs. 2,000/ was part of his share of robbing of Rs. 1,07,000/. He got a share of Rs. 5000/ out of which, he spent already Rs. 3,000/. The said recovered articles were sealed with the seal of SGV2. Thereafter, both the accused led the police to the house of accused Afroz. Pursuant to his disclosure statement, accused Afroz took out one brown colour pocket purse from his room which was found containing Rs. 200/, one photo of Bulbul Khan and I card of Bulbul Khan and he also got recovered Rs. 5,000/ as part of looted money share. The same was seized and sealed with the seal of SGV2. Thereafter, all the three persons led the police party to the place of incident and pointed out the same.
17. In cross examination he stated that he joined the investigation first time on 13/7/13 and denied the suggestion that he had joined the investigation on 2/7/13 also and visited the spot. However, admitted his signatures on the seizure memo Ex.PW22/B. He also stated that he do not remember whether at the time of arrest of accused Abdul Rehman, owner Vijay Bhiduri was present or not. He also stated that seizure memo of Rs. 5,000/ was prepared, however, again stated that it is of Rs. 5200/ and denied that Rs.
State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 16 of 39200/ was recovered from the personal search of accused and also stated that Rs. 5,000/ was recovered from beneath the quilt and the recovery effected from the accused persons were sealed with the seal of SGVII. He do not remember whether the seal after use was handed over to any police official or not. He also stated that accused Shamshad was arrested at around 7pm from his residence and he also do not remember whether any public person was asked to join the investigation at that time.
18. PW13 Rajender Prasad also stated that he joined the investigation on 13/7/13 alongwith Inspt. KL Meena, SI Pankaj and Ct. Brijmohan and they reached the house of one Vijay Bhiduri Cable operator where the employee of Vijay i.e. Abdul Rehman was interrogated who disclosed about the murder of Bulbul and he produced one black colour bag containing Rs. 30,000/, Pan card, ID Card, two pens and some other papers before IO. In pursuance to the disclosure statement Abdul Rehman pointed out the place of murder and also laid them to the narrow street where they threw the dead body. Then he led to the house of coaccused Shamshad from where accused Shamshad was arrested and in pursuance to the disclosure statement, he took out Rs. 2000/ and 08 inamee coupons from an iron box lying in his tenanted room and the articles were sealed with the seal of SGVII. Thereafter, he pointed out the place of murder and both the accused then led to the house of accused Afroz Azam and in pursuance to disclosure statement of accused Afroz, one purse containing Rs. 5,200/ were recovered alongwith ID card of deceased which was lying under State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 17 of 39 the quilt. Then the same were seized with the seal of SGVII.
19. In cross examination, he stated that he joined the investigation at around 9:30am and he alongwith other staff members were briefed by the Investigating Officer including the place and accused was arrested at around 6:30pm and prior to that he was interrogated. He also stated that they straight away went to 'H' Block. IO asked the public persons to join the investigation, however, none agreed but owner of the cable operator i.e. Vijay Bhiduri was present and the sum of Rs. 30,000/ do not contain any note of Rs. 500/ and all the notes were in the denomination of Rs. 100/. In his presence, IO did not obtain signatures of Vijay Bhiduri on any of the papers and after arrest of accused Abdul Rehman, accused Afroz was arrested and then accused Shamshad was arrested. The black colour bag and the currency notes were sealed with he seal of SGV2 and the said seal after use remained with Inspt KL Meena and was not handed over to anybody else.
20. PW1 SI Kanchan Mala is the duty officer who registered the FIR. PW2 WCt. Shashi Sharma received the information on PCR and recorded that information in PCR form. PW4 SI Sanjay Kumar, Incharge of Mobile Team inspected the spot on 2/7/13 and took the photographs of the place of occurrence. In cross examination, he also stated that he did not accompany IO to the house of the deceased in order to further investigate the matter.
21. PW12 SI Amit Kumar reached the spot after receiving of the information of lying of dead body in the street. He also stated that State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 18 of 39 SHO also reached the spot and inspected the dead body. Crime Team also called at the spot. In the cross examination, he stated that no evidence was found that the dead body was dragged to the place where it was found and he did not go to the house of the deceased on that day nor did he collect anything from his house.
22. PW14 Ct. Mahesh stated that being the member of the crime team, he took 06 photographs at the spot and he was also taken by SI Amit to the tenanted room of the deceased where one photograph at the instance of SI Amit was taken. In cross examination he stated that he took the photographs of the room of the deceased first and two other Constables were also present besides, him and SI Amit at the room of the deceased and the said room was not locked. He also stated that he cannot tell the name of the Constables who accompanied SI Amit.
23. PW18 Ct. Ashish deposited sealed parcels at CFSL Delhi. PW19 Inspt. Shahid Khan stated that being SHO he visited the spot and crime team was also called which prepared the report. In cross examination, stated that his statement was not recorded and Inspt. KL Meena did not come to the spot in his presence and he alongwith SI Amit visited the house of the deceased on the same day and door of the room of the deceased was opened by one of the relatives of the deceased and deceased was occupying only one room and no article was seized in his presence. Landlord was also not called in his presence. The son of the deceased Hashim Khan was not called at the spot in his presence. No secret information was also received by him from 2/7/13 to 13/7/13. He State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 19 of 39 also stated that he is not aware of any complaint filed by accused Abdul Rehman, however, this fact has been apprised to him later during briefing by Inspt. KL Meena. He also stated that he did not find any clue to the effect that there was any robbery in the room and also not noticed any document or paper in the room of the deceased. PW21 Ct. Gopal is the witness to the arrest and interrogation of accused Mohd. Mamur.
24. PW23 Ct. Ashok stated that on 2/7/13, he alongwith Inspt. KL Meena inspected the spot i.e., H. No. 17/16 Sangam Vihar from where Inspt. KL Meena took into possession two diaries, one register and some medical papers of the deceased vide memo Ex.PW22/B. On 22/8/13, accused Mohd. Mamur surrendered in Saket Court.
25. In cross examination, he stated that they reached spot between 9:30 to 10am and SI Amit and Ct. Rahul met there and 1020 public persons were also present. IO asked some of the public persons to join investigation but none came forward. The distance between the spot and the house of the deceased is about 2030mtrs. IO did not prepare any document at the spot in his presence and they remained at the spot first time for 1015 minutes. He also stated that Asif son of the deceased alongwith one neighbour took the police party to his house and also stated that he do not know if son of the deceased stated to the IO that some cash, ID card, voter ID card etc were missing. He also stated that he alongwith IO remained in the house of deceased for about 1520 minutes. He also stated that one Manish had also come State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 20 of 39 alongwith son of the deceased. He also stated that he alongwith IO, Ct.Jacob and Emergency reserve vehicle staff and accused had visited the office of cable operator and no public person was found at the spot which is about 1520 steps away from aforesaid cable office.
26. PW24 Ct. Rahul stated that he accompanied SI Amit to spot after receiving DD No. 9A that one person was lying dead on the road. SHO Inspt. Shahid Khan and Inspt. KL Meena also reached the spot. Crime Team also inspected the scene of crime and photographs were taken. In cross examination, he stated that there are about 1520 persons were present at the spot when they reached at the spot. SI Amit prepared rukka, however no other document were prepared by IO in his presence. SHO Inspt. Shahid and Inspt. KL Meena reached the spot separately within a difference of 510 minutes of their arrival at the spot. SI Amit had not visited the house where the deceased was residing in his presence. IO had prepared the seizure memo before his return back to spot with original rukka and SI Amit had handed over the seal to him after use.
27. PW25 Ct. Sidharth Singh had delivered the FIR to the senior police officers and Ld. MM. PW29 Shiv Dutt exhibited the malkhana register.
Statement of Doctors, FSL Expert and Nodal Officer:
28. PW9 Dr. Asit Kumar Sikray deposed on behalf of Dr. Rajesh Kumar who conducted the postmortem and as per postmortem report, cause of death was asphyxia due to combined effect of State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 21 of 39 manual and ligature strangulation. PW17 Sh. Amarpal Singh, Asst. Director (Chemistry) FSL examined the viscera of deceased and found containing ethyl alcohol and methyl alcohol but negative test for common poison. Pw20 Jyotish Moharana, exhiited the CDR details of the deceased mobile No. 8459677896. PW27 Dr. Chandra Sena prepared the MLC of the deceased and declared him brought dead.
Material Exhibits: Ex.PW1/B is FIR Ex.PW12/A and Ex.PW1//A is DD No. 9A alongwith rukka.
Ex.PW2/A is the PCR form regarding information of lying of dead body dated 02.07.2013 at around 6.35 A.M. Ex.PW4/A is the crime team inspection report.
EW.PW9/A is the postmortem report of deceased Bulbul Khan showing cause of death is asphyxia due to combined effect of manual and ligature strangulation.
Ex.PW22/B, Ex.PW13/F, Ex.PW13A and Ex.PW13/B are the arrest memos of the accused persons.
Ex.PW13/C, Ex.PW13/L, Ex.PW13/G and Ex.PW22/Q is the personal search memos of the accused persons. Ex.PW13/D, Ex.PW13/H, Ex.PW13/M are the disclosure statement of Abdul Rehman, Shamshad, Shahjad and Afroz recorded by Inspector K.L. Meena in presence of SubInspector Pankaj, Sub Inspector Rajender Prasad and Constable Brij Mohan.
Ex.PW21/A is the disclosure statement dated State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 22 of 39 24.18.2013 of accused Mohd. Mamur recorded by Inspector K.L. Meena in presence of Constable Gopal.
Ex.PW22/R, Ex.PW13/E, Ex.PW13/J and Ex.PW13/O are the pointing out memos of the place of occurrence by the accused persons.
Ex.PW13/A is the seizure memo of the recovered articles of Rs.30,000/, one black colour bag, PAN card, voter ID card, two pens and other papers seized at the instance of accused Abdul Rehman from his room i.e. H16/2, Sangam Vihar which is Sonali Cable Office lying below the sofa in one black coloured bag in presence of SubInspector Pankaj, SubInspector Rajener and Constable Brij Lal. Ex.PW13/I is the seizure memo of articles recovered at the instance of accused Shamshad of description of Rs.2,000/, inamee coupon of Jai Bharat Bidi from his house at H 17/21, Sangam Vihar, New Delhi. Ex.PW13/N is the seizure memo of recovered articles from accused Afroz i.e. Rs.5,200/, one brown colour purse, ID Card of Jai Bharat Bidi of Bulbul Khan and photo of Bulbul Khan from his house G2/18, Sangam Vihar.
Ex.PW14/A1 to Ex.PW14/A5 and Ex.PW14/B are the photographs of deceased and of the room of deceased respectively and Ex.PW14/C (colly) is the negatives of these photographs.
Ex.PW20/A1 is the call details of mobile No. 8459677896 of deceased Bulbul Khan.
Ex.PW22/I is the seizure memo of viscera, sample seal and clothes of deceased. Ex.PW22/B is the undated seizure State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 23 of 39 memo of diary and register stated to be recovered from the room of deceased Bulbul Khan recovered by Inspector K.L. Meena in the presence of Constable Ashok, SubInspector Pankaj and Manish. Ex.PW22/J another seizure memo of articles recovered from the spot. Ex.PW22/S is the letter dated 04.09.2013 from Vijay Bidhuri to SHO, Sangam Vihar showing accused Abdul Rehman working in his office i.e. SOnali Cable T.V. Networks for the last 6 years and this letter is showing and attested by Investigating Officer on 24.08.2013. Ex.PW22/C is the letter dated 04.09.2013 showing to be given by Vijay Bidhuri to the Investigating Officer showing that Mohd. Mamur had left his office. Ex.PW22/W is the letter dated 27.09.2013 given by ZiaulIslam to SHO, Sangam Vihar regarding the payment received by the company from deceased Bulbul Khan. Ex.PW22/X is the certificate dated 04.09.2013 issued by Md. ZiaulIslam, Manager of Joy Bharat Bidi Factory showing deceased working as Salesman in the company for the last 6 years. Ex.PW22/E is the MLC of deceased. Ex.PW22/L is the scaled site plan. Ex.PW22/A rought site plan of the place of occurrence.
29. Ld. Defence Counsel for the accused persons submitted that the accused persons falsely implicated in this case and entire recoveries are planted upon the accused persons. He further submits that PW3 in his cross examination categorically stated that the black bag containing Rs.30,000/ and other I cards of deceased were already seized by the police on 02.07.2013. Ld. Defence Counsel further submitted that no independent witness State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 24 of 39 joined at any point of time. Ld. Defence Counsel further submits that none of the public witnesses deposed against the accused persons. Ld. Defence Counsel further submits that the prosecution case is entirely based on circumstantial evidence and prosecution utterly failed to prove its case against the accused persons.
30. Ld. Additional Public Prosecutor for State on the other hand submitted that all the accused persons were duly connected with the commission of crime as there are incriminating recoveries against them. Ld. Additional Public Prosecutor for State further submits that none of the public persons ready to join the investigation and therefore the testimony of the police officials over the factum of recoveries cannot be disbelieved. Ld. Additional Public Prosecutor for State further submits that though there are minor variations in the testimony of police officials regarding recovery of articles, but these variations are natural and bound to occur, however this further strengthens the case of the prosecution. Ld. Additional Public Prosecutor for State submits that the accused persons could not explain why they are in the possession of incriminating recoveries. Ld. Additional Public Prosecutor for State submits that prosecution is able to prove its case beyond a reasonable doubt and accused persons are liable to be convicted for the charged offences.
31. Arguments heard. Record perused.
32. It is a case in which a dead body of a person was found 10 / 20 meters from his house in a narrow street and also alleged to be murdered in the nearby place at Cable office by the accused State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 25 of 39 persons. The entire case based on circumstantial evidence. No direct evidence was found during investigation. The information regarding the lying of dead body of deceased Bulbul Khan received from PW6 Harswaroop who is the landlord of the deceased. Deceased was residing as a tenant in ground floor having two room. One room is used as a godown for keeping bidi material etc. and other room was for his residence. As per the case of the prosecution, the deceased lastly talked to one Manish residing in same tenanted premises on mobile phone at around 01.00 A.M in the intervening night of 0102.07.2013, who is also residing in the house in which deceased Bulbul was a tenant.
33. The police was informed about the incident at around 07.00 A.M. on 02.07.2013 and after reaching the spot, on inquiry they found it was the body of deceased Bulbul Khan residing nearby in the tenanted premises and thereafter they visited the tenanted premises and also the cable office where the murder took place. Cable office do not have any connection with the deceased, and it has not come in the evidence for what purpose the police went to the cable office. Police did not get any clue about the accused on 02.07.2013, however, on secret information received on 13.07.2013 arrested accused Abdul Rehman from the cable office and pursuant to his disclosure statement made looted articles were recovered and thereafter accused Shamshad and accused Afroz Azam @ Mannu arrested and recoveries were made consequent to their disclosure statements.
34. The pertinent question is whether on the day of incident i.e. State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 26 of 39 02.07.2013, the police got the knowledge of looting of articles or not. Public witness examined by the police before this Court is PW3 Hashim Khan s/o deceased Bulbul Khan, PW5 Vijay Bidhuri owner of the cable office and s/o the landlord where the deceased was a tenant namely PW6 Harswaroop and PW28 Manish to whom deceased Bulbul talked on the intervening night of incident at around 01.00 A.M. PW3 Hashim Khan nowhere in his examination in chief stated that when he went to the tenanted room of his father, he found any looting in the said room. However, stated that it was informed by the police that his father was killed and his articles and belongings were looted. It is an enigma how the police came to know that the articles were looted from the house when none of the public witnesses have deposed about the same. PW3 Hashim Khan in his cross examination stated that police told him after 15/20 days of the incident that some cash was missing from the room of his father. It is clear from his statement that he has no knowledge of missing of any cash on the day of incident and police also do not know that some looting had taken place on that day. However, PW22 Inspector K.L. Meena in his examination in chief stated that he alongwith PW3 Hashim Khan inspected both the tenanted rooms and noticed that some cash and belongings of the deceased were missing. There is nothing on record on what basis he has stated that some cash and belongings of the deceased were missing. Though PW22 Inspector K.L. Meena deposed regarding this fact but PW3 in his cross examination categorically stated that it is the police who State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 27 of 39 informed him about 15/20 days later on that cash and articles were looted. PW19 Inspector Shahid Khan, SHO who also inspected the tenanted room of deceased Bulbul Khan on the day of incident stated that he also could not find any clue of robbery in the said room.
35. As per the prosecution case, the accused persons have looted Rs.1,07,000/, however, the prosecution not able to show through any witness that on the day of incident deceased was having Rs.1,07,000/ in his possession. PW3 Hashim Khan as already discussed nowhere stated that any money was looted from the rented room of his deceased father Bulbul Khan on the day when police inspected the room i.e. on 02.07.2013. He on the other hand stated that it is the police who informed him about the looted money on 13.07.2013. No other witness also stated anything about the looting of money prior to the arrest of the accused persons. Police examined PW15 JiaulIslam, manager of the company in which deceased Bulbul Khan was a salesman. PW15 JiaulIslam stated that deceased Bulbul Khan used to come to the office to make the payments, however, he has nowhere stated that on the day of incident deceased might have Rs.1,07,000/ in his possession. At this stage, it is pertinent to discuss one letter dated 27.09.2013 bearing signature of ZiaulIslam, received by SHO, Sangam VIhar Ex.PW22/W in which it is mentioned that deceased had deposited weekly payments of more than Rs.1,00,000/ on 05, 12, 19 and 26 of June, 2013. However, PW15 JiaulIslam was not confronted with this letter in his testimony. This letter is State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 28 of 39 exhibited through Investigating Officer only. No record is brought from office before the Court to show such weekly amounts of money were deposited in the said office. The testimony of the relevant witness i.e. PW15 on this aspect is completely silent. Furthermore, the money recovered at the instance of accused persons also do not bear any special mark to suggest that this money belongs to the deceased which are the sale proceeds of bidi supplied. Thus, the prosecution unable to prove any circumstance of looting of money before 13.07.2013.
36. During investigation, on the day of incident i.e. 02.07.2013, police inspected the tenanted room and taken away various articles. The seizure memo of articles taken away by police on 02.07.2013 is Ex.PW22/B. This exhibits is the seizure memo of diary, register and some medical papers. As per this seizure memo also it cannot be inferred that any looting was taken place from the said room. This seizure memo is signed by PW28 Manish also. However, he is not examined in respect of this seizure memo. PW22 Inspector K.L. Meena stated that at the time of inspection, PW3 Hashim Khan was also present, but he was also not made a witness to this seizure memo. Now, pertinent question arose whether the police has taken the articles only as per the seizure memo or taken some other articles also from that room. According to the police witnesses no other articles except those mentioned in this Ex.PW22/B were taken by the police from the tenanted room on 02.07.2013. However, PW3 Hashim Khan stated that police had taken into possession a black bag which was State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 29 of 39 shown to be recovered from accused Abdul Rehman on 13.07.2013. PW6 Harswaroop Bidhuri in his statement stated police visited the tenanted room of the deceased and took away many articles with them. Therefore, from the testimony of PW3 Hashim Khan and PW6 Harswaroop Bidhuri it can be inferred that the police had taken number of articles besides shown in Ex.PW22/B on 02.07.2013.
37. The prosecution case is also dubious on the factum that whether the tenanted rooms of deceased Bulbul Khan were found locked or in the open condition. First police official to reach at the spot is SubInspector Amit alongwith Constable Gopal. Sub Inspector Amit (PW12) in his testimony stated that he did not go to the house of the deceased on that day not collected anything from his house. However, his testimony is duly belied by PW14 Constable Mahesh i.e. photographer of the crime team who stated that SubInspector Amit took them to the room of the deceased where one photograph of that room was taken at his instance and when SubInspector Amit took him to the said room, it was not locked. PW22 Investigating Officer Inspector K.L. Meena stated that when he inspected the tenanted room of the deceased, one room was found open and he do not know whether the other room was opened or locked as it was used as a godown. PW3 Hashim Khan stated when he reached with the police at the room of the deceased, then both the rooms were locked and police removed the locks in his presence. It is not clear whether the police removed the locks with the key or broken the locks. However, if State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 30 of 39 the statement is seen with the statement of Constable Mahesh, it is possible that after the photographs of the room were taken, the said room might have been locked by the police and thereafter opened when PW3 Hashim Khan entered the room with the police officials. PW28 Manish residing in the same building with deceased Bulbul Khan stated that when he received the call in the night from deceased Bulbul Khan, Bulbul Khan told him that his house was locked and to take care of his house. Therefore, as per his version, when the incident took place, the house of Bulbul Khan was locked and in cross examination also, he stated that the house of Bulbul Khan was locked at the time when he received his call in night. He further stated that police entered the room after break opening the locks, but the said locks were not broken in his presence. Therefore, from prosecution case, this material circumstance whether on the day of incident the tenanted rooms were locked or not is not clear.
38. The circumstance whether the locks were opened or not, is very material because as per the disclosure statement of the accused, the accused persons has taken the keys of tenanted room of the deceased and after opening the same, looted the money. But the police case is entirely silent over the factum of 'keys' of the room. Even in the disclosure statement, there is no inquiry regarding what happens to the keys if the accused persons had taken out the looted material after opening the locks.
39. There is another angle to this aspect. As per the version of PW14 Constable Mahesh (photographer), the rooms were in open State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 31 of 39 condition when the photograph of the room was taken. It also implies that police might have taken the keys from somebody else to open the same, but on that part the prosecution case is silent. But PW19 SHO Shahid Khan stated room of the deceased opened by one of the relatives. The name and particulars of that relative is not found mentioned during investigation or testimonies before Court.
40. It is also important to notice that PW28 Manish is also residing in the same premises where the deceased was residing and if the room of the deceased was locked in the night and was opened by the accused persons for looting the money, then it appears inconceivable that either Manish or anybody else will not notice the factum of opening and taking of money in that room particularly when PW28 Manish stating that he was awaked till 01.30 A.M.
41. According to prosecution case they have no clue about the accused persons till 13.07.2013. PW22 Investigating Officer Inspector K.L. Meena stated that on 13.07.2013 he met with a secret informer who gave information about the presence of assailants and thereafter he alongwith SubInspector Pankaj (PW
16), Constable Brij Mohan and Head Constbale Rajender Prasad (PW13). However, PW16 SubInspector Pankaj stated they reached in the search of accused persons at H Block, Sangam VIhar and then at the instance of secret informer, Inspector K.L. Meena visited the office of the cable operator where accused Abdul Rehman was found. According to this witness, the team went to apprehend the accused persons in H Block, Sangam VIhar State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 32 of 39 without anything in sight that any secret informer will met whereas PW22 Investigating Officer Inspector K.L. Meena stated that on getting the information from the secret informer, they went to Sangam Vihar. PW13 Rajender Prasad nowhere stated that at the instance of secret informer, they went to the office of Vijay Bidhuri, cable operator where accused Abdul Rehman was interrogated. It is pertinent to look at the cross examination of PW 13 who stated that the Investigating Officer had briefed in the morning at 09.30 A.M. about the place where they have to visit for apprehension of the accused. PW22 Investigating Officer Inspector K.L. Meena in his cross examination stated that he received the secret information about 04.00 P.M. and thereafter they left from the police station. The statement of both PW13 and PW22 irreconcilable on this aspect. PW13 categorically stated that they were briefed about the place at 09.30 A.M. and not talked about any secret information whereas Investigating Officer stated that he got the secret information at about 04.00 P.M. In these circumstances, the case of the prosecution that the police had arrested the accused on the basis of secret information becomes doubtful.
42. Pursuant to the disclosure statement of accused Abdul Rehman, he made recoveries from below the sofa from his cable office i.e. one black colour bag containing Rs.30,000/ PAN Card, voter I card of deceased, two pens and some other papers. This black colour bag which is found to containing all these articles stated by PW3 Hashim Khan is taken by the police from the room State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 33 of 39 of the deceased on the day of incident i.e. 02.07.2013. This fact in itself is sufficient to dent the said recovery of black colour bag by the police. As per the prosecution case, PW15 ZiaulIslam also witnessed the arrest and recoveries made from accused Abdul Rehman, however, on being declared hostile, he denied suggestion that accused Abdul Rehman was arrested by the police from cable operator office where he was interrogated and made disclosure statement consequent to which recoveries were effected from him. As per the prosecution version, he is the independent witness to the disclosure as well as recovery, however, the seizure memo Ex.PW13/A do not show any independent witness associated at the time of disclosure and recoveries at the instance of accused Abdul Rehman. PW13 Constable Rajender Prasad in his cross examination stated that at that time Vijay Bidhuri was also present, however, he is als not made a witness. Furthermore, no site plan of the place of recovery of the articles was made. Accused Abdul Rehman stated to be residing in the cable operator office as employee and a tenant, however, none of the employee / employer of the said office were associated in the said proceedings. Furthermore, no feasible or plausible reason is given by the Investigating Officer for non associating any such witness during the proceedings.
43. Now, let me examine the nature of recoveries. As per seizure memo Ex.PW13/A, a sum of Rs.30,000/, PAN card and voter I card of deceased were recovered at the instance of accused Abdul Rehman. Admittedly, there is no special mark on the notes which State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 34 of 39 could suggest that these notes belongs to the deceased Bulbul Khan. It also appears unnatural that if somebody will loot a person then he will keep the PAN card or voter I card of that person with him for about 10/11 days. Thus, said PAN card and voter I card appears to have been planted, this stand is furthermore fortified due to the fact the witness PW6 Harswaroop has stated that police had taken number of articles from the tenanted room of the deceased on the day of incident i.e. 02.07.2016 and PW3 stated that police taken black bag, then black bag might have been containing these identity cards on the day of incident i.e. 02.07.2013. Thus, in view of above discussion, the recoveries made from the accused Abdul Rehman do not appears to be credible and the prosecution is unable to prove that circumstance against accused Abdul Rehman.
44. According to the prosecution case, consequent to the disclosure statement and recoveries effected at the instance of accused Abdul Rehman, then he took the police to the house of coaccused Shamshad and at the instance of accused Shamshad a looted money of Rs.2,000/ and 8 inamee coupons of Jai Bharat Bidi were recovered vide seizure memo Ex.PW13/I from one box found in the rented room of accused Shamshad. During this proceeding also, no independent witness was joined by the police. Though as per the prosecution case, the said recovery was made from one box lying in the room of accused Shamshad, however, PW16 SubInspector Pankaj witness to this proceeding stated that this money was recovered from the wearing pant of accused State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 35 of 39 Shamshad. Police neither seized the box in which money was kept nor the wearing pant of accused Shamshad. The contradicting version is appearing regarding the recovery. This contradiction becomes material as no independent witness was joined. Furthermore, appears unreliable because the previous recovery from accused Abdul Rehman was also unreliable. There is nothing on record that on the day of incident, deceased was having inamee coupons in his possession. It is also not clear that inamee coupons specifically belongs to deceased. There is no specific mark which could show that these inamee coupons belong to deceased. It is otherwise unnatural why after 11 days of incident, the accused will keep inamee coupons with him.
45. Consequent to the arrest, disclosures and recoveries from accused Abdul Rehman and Shamshad, police arrested accused Afroz Ajam @ Mannu and at his instance, recovered Rs.5,200/ below gadda (mattress) I card of deceased issued by Jai Bharat Bidi from a purse vide seizure memo Ex.PW13/N. This recovery is also not witnessed by any independent witness. It also appears unnatural that why the accused will keep the I card of deceased with him for 11 days. PW16 SubInspector Pankaj stated that Afroz took out a brown colour pocket purse which contains one photo and I card of deceased Bulbul Khan and also got recovered Rs.5,000/ as a part of looted money share. Furthermore in his cross examination stated that Rs.5,000/ was recovered under the quilt and also denied that Rs.200/ were recovered as a personal search. PW22 Inspector K.L. Meena, Investigating Officer of the State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 36 of 39 case, gave another version by stating that Rs.5,200/ were recovered from beneath the pillow of the bed. He is neither stated the quilt as stated by PW16 SubInspector Pankaj nor the gadda as mentioned in the seizure memo. Thus the recoveries shown at the instance of accused persons do not appear to be credible and the prosecution is unable to prove the circumstance of recovery against the accused persons.
46. There are other anomalies in the statement of witnesses. As per the seizure memos of the recoveries, the recoveries were sealed with the seal of SGV2, however, the recovery witnesses given the different versions of the seals in their testimony. Furthermore, PW22 Inspector K.L. Meena, Investigating Officer of the case, in this statement stated that after seizing of the articles, the seal was handed over to PW16 SubInspector Pankaj, however, PW16 and other official witnesses denied of handing over of seal.
47. PW22 Inspector K.L. Meena, Investigating Officer of the case, stated that after arrest and disclosure statements, first the accused Abdul Rehman pointed out the place of murder and thereafter accused Shamshad after arrest pointed out the place of occurrence and then accused Afroz Ajam after arrest pointed out the place of occurrence. Therefore all the three accused persons pointed out the place of occurrence at different times. However, PW16 SubInspector Pankaj stated that after the arrest and recovery proceedings, all the accused pointed out the place of occurrence together. No independent witness was joined at the State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 37 of 39 time of pointing out by the police.
48. The prosecution case is that the police did not get any clue about the accused persons on the day of incident, however, on the basis of secret information, arrested the accused persons on 13.07.2013. PW5 Vijay Bidhuri on being declared hostile by Additional Public Prosecutor, stated police had visited his office i.e. the office of Sonali Cable on the day of incident where the accused Abdul Rehman used to reside at the first floor and accused Abdul Rehman used to reside on the same place till the date of his arrest and he was present on the day of incident also in the said office. PW6 Harswaroop also stated that accused Abdul Rehman was with him and saw the dead body, thereafter, the police was called and denied the suggestion that accused Mamur and Abdul Rehman were involved in the murder of deceased. In cross examination he stated that Abdul Rehman used to stay on the first floor of his office and on the day of incident, police also searched his office. PW22 Inspector K.L. Meena stated that police officials also reached at the Cable office and asked the name of the worker and came to know that accused Mohd. Mamur was worked there and went away from the office 4/5 days prior. From the above testimonies, it appears that the investigating agency had suspicion over the accused Abdul Rehman and Mohd. Mamur, however, this is in contradiction to the entire prosecution case which shows that the police did not get any clue till they arrested the accused on the basis of secret information i.e. 13.07.2013.
49. This also suggests another story that the police despite State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 38 of 39 knowledge has not taken any action till 13.07.2013 and tried to make up the case only on the basis of the recoveries made on behalf of the accused persons. The entire substratum of prosecution case that they got the clue of the present accused persons when the arrested the accused persons on secret information appears totally suspicious. This all suggest that the entire investigation was shoddy and fishy. The police appears to have not brought the facts in the manner revealed to them during investigation.
50. The entire prosecution case against the accused persons rests on the alleged recoveries consequent to the disclosure statements of the accused persons. However, as already discussed, the said recoveries do not appear to be credible at all. Furthermore, even there is no recovery shown from accused Mohd. Mamur.
51. On appreciation of all the facts and circumstances, prosecution unable to prove its case against the accused persons beyond reasonable doubt and as a result of the same, accused persons namely Abdul Rehman, Shamshad, Mohd. Mamur and Afroj Ajam are acquitted of all the charges framed against them. After compliance of Section 437A Cr.P.C., file be consigned to Record Room.
Announced in the open Court (AJAY KUMAR JAIN)
On 05th day of August, 2016 Additional Sessions Judge02,
South District, Saket Courts,
New Delhi
State Vs. Abdul Rehman & Ors. S.C. No. 111/2013 Date: 05.08.2016 Page 39 of 39