Delhi District Court
State vs . 1. Kanchid @Raja S/O Babu Khan on 25 February, 2010
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.24/09
FIR No.476/02
U/s 364/302/201/120B IPC
PS - Hazrat Nizamuddin
State Vs. 1. Kanchid @Raja s/o Babu Khan
2. Rashid @Chairman S/o Abdulla
3. Matloob Ahmed@Pradhan s/o Ahmad Shahid
4. Maenuddin @Maen s/o Ahmed Shahid
5. Tayyab Iqbal s/o Sh.Qayum (Declared P.O. on
02.09.03)
Challan filed on : 26.04.03
Received by Fast Track Court on:08.04.09
Reserved for Order on : 20.02.2010
Judgement delivered on : 25.02.2010
JUDGMENT
The brief conspectus of facts are that on 16.08.02, complainant Mohd. Hammad s/o Mohd. Isa r/o F-11/3 Shaheen Bagh, Okhla, New Delhi reached at PS-Hazrat Nizamuddin and gave information regarding missing of his father Mohd. Isa. The said information was recorded by the Duty Officer vide DD no.6A dated 16.08.02 which is Ex.PW5/B. The contents of said DD are reproduced hereunder:-
"At about 11.05 a.m Mohd. Hammad came to PS and gave his statement FIR No.476/02 Page No. 1 State Vs. Kanchid Etc. that his father Mohd. Isa had gone to Ahmedabad on 26.07.02 to attend a marriage. On 03.08.02 he came back to his in-laws house at Basti Nizamuddin, New Delhi. He had seen his father in the house of his in- laws. On the said date i.e. 03.08.02 at about 11.20 a.m his father had gone to his native village with one boy named Shakil s/o Kuturtullah r/o village Kuraina, PS Hafispur, District Ghaziabad, UP. On 12.08.02 when he called up at his native village, he came to know that his father has yet not reached in the village and Shakil has reached the village. On enquiry Shakil is not disclosing anything. He has given description of his father as height 5' 7" thin body, long face, black and white beard and he is wearing kurta paijama of white colour. He is also wearing shoes without laces".
This information was recorded in the missing report & it was handed over to SI Baldar Singh who made his endorsement Ex.PW7/A and got recorded the present FIR no.476/02 u/s 365 IPC. Thereafter hue an cry notices were published in newspaper. Even the photograph of Mohd. Isa was sent to missing persons squad and it was broadcasted on TV. Thereafter on 29.01.03 on the basis of secret information accused Kanchid @ Raja was apprehended by the police from near Sofital Surya Hotel and his disclosure statement was recorded. In his disclosure statement he disclosed about the present case crime i.e. apprehension of Mohd. Isa and then committing his murder in Alwar (Rajasthan). The accused was taken to Alwar (Rajasthan) and he pointed out the place of incident. On enquiry from PS Sadar, Alwar, the Delhi Police officials came to know that on 03.08.02 case FIR no.225/02 u/s. 302/201 IPC has been registered in PS Sadar, Alwar (Rajasthan). It was got transferred to Delhi. The photograph of deceased clicked by Rajasthan Police was FIR No.476/02 Page No. 2 State Vs. Kanchid Etc. shown to Mohd.Hammad, complainant who identified the same as of his father. Thereafter on the basis of disclosure statement of accused Kanchid, other accused Rashid, Matloob, Moinuddin were arrested by the Police and their disclosure statements were also recorded. Accused Tayyab was declared Proclaimed Offender. Thereafter, after completion of investigation, the accused persons were challaned to the court for their trial.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM on 06.06.03 and received by the court of sessions on 13.06.03. Thereafter it was received by Fast Track court on 08.04.09.
3. The charge against all the accused persons was framed u/s 302/364/201/120B IPC on 16.09.2003 to which all the accused persons pleaded not guilty and claimed trial.
4. The prosecution to prove its case in all has examined as many as 38 witnesses.
5. The evidence against the accused persons were put to them in FIR No.476/02 Page No. 3 State Vs. Kanchid Etc. their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. Accused Rashid has also opted to lead defence evidence and he has examined DW1 Dharam Singh who is the witness from Morepur Kisan Sewa Sehkari Samiti Ltd. Thereafter the case was fixed for final arguments.
6. I have heard the Ld.Counsels Sh Shiv Kumar Sharma and Sh Tanvir Ahmad Advs. for the accused persons as well as Sh Inder Kumar, Ld.APP for the State and Sh. F. Haq, counsel for Complainant at too length on day to day basis who have drawn the attention of the court on the testimonies of each witness and exhibited documents.
7. In view of the arguments advanced by the Ld.APP and Ld.counsels on behalf of the accused persons, I have also perused the testimonies of witnesses adduced by the prosecution in this case.
8. PW1 Bhajan Singh has deposed in his testimony that on 3.8.02 at about 8 a.m he was going for natural call. When he reached in his field he found a dead body in his field. He reported the matter to the Police at PS Alwar. He proved his report Ex.PW1/A. He has seen the FIR No.476/02 Page No. 4 State Vs. Kanchid Etc. photographs Ex.PW1/2 to Ex.PW1/9. He further deposed that police had seized a NAULI (used for keeping money and generally made of cloth) lying by the side of dead body vide memo Ex.Pw1/9. One SAFI (like towel tied on the head or waist) was also seized vide memo Ex.PW1/10. Police lifted the blood stained earth vide memo Ex.Pw1/11 and 12. He further proved site plan Ex.PW1/13. He further deposed that on 30th January after 5-6 months, Delhi Police official brought a person to his farm and that person led the police and he also followed them. The accused who was leading the police party is present in the court and the witness has pointed out towards one of the four accused and identified accused stated his name as Kanchid. The accused took them in the field from where the dead body was found and accused also confessed that he alongwith his 3-4 co-accused had murdered a man about 5-6 months before. He identified his signatures on Ex.Pw1/14. He identified the NAULI Ex.P1. He also identified two pieces of red coloured check clothes as Ex.P2 (colly.) which were recovered from the spot. In cross examination he has stated that he is owner of land in Alwar. His statement was recorded as he reported the matter to the police. It was recorded in the month of March 2002. No proof was asked by the police for the land from him and hence it was not given. Police met him after 5/6 FIR No.476/02 Page No. 5 State Vs. Kanchid Etc. months of the murder. From 30.1.2003. Police officials came in two vehicles. Rajasthan Police was not with Delhi Police. The police official came to him after enquiry and nobody accompanied the police when they came to him. He asked them as to who they were told them that they have come in connection with kand. He did not ask their identity as he was saving his life. His statement was not recorded by Delhi Police. They prepared report and he signed the same. He cannot read Ex.Pw1/9, however it bears his signatures. It was not read over to him before he signed. Same is his reply with respect to Ex.PW1/10 & 11. The papers were not explained to him and his signatures were obtained on Ex.PW1/12, 13 & 14.
9. PW2 Dr.Rajender Kumar is the witness from FSL, Rohini, Delhi. He has stated that the exhibits were examined in FSL and he prepared report which is Ex.PW2/2. In cross examination he has stated that blood stains from the barber's razor was lifted with the help of gauze cloth piece dipped in normal saline and then it was thoroughly dried under natural conditions. RBC could not be detected as it gets ruptured. He has not mentioned the age of stains in his report. The colour of Nauli was white but he cannot tell its length at this stage. It is correct that in Ex.5A the measurement of ustra are not mentioned.
FIR No.476/02 Page No. 6 State Vs. Kanchid Etc.
10. PW3 Dr.P.S.Chaudhary has deposed that on 4.8.02 he conducted the post mortem on the dead body of unknown person being member of the board. At the time of post mortem rigour mortis at the last stage of disappearance had set in. Hypostatis was faintly visible. The cloth of the deceased was found soaked with blood and had dried up. He has further stated about external injuries found by him. All the injuries were ante-mortem in nature. Besides the external injuries there was sub scalp haemotoma on left parietal region. The cause of death in this case was shock with asphyxia as a result of injuries mentioned and were sufficient in ordinary course of nature to cause death. Time since death was 48 hours i.e. to say the death had occurred within preceeding 48 hours. He proved the post mortem report Ex.PW3/A. ON 23.4.03, after seeing the weapon of offence i.e. razor he came to the conclusion that injuries mentioned in the post mortem report could have been caused by the weapon shown to him. He proved his opinion Ex.PW3/B. He identified the razor Ex.PX and stated that the injuries mentioned in the post mortem report could have been caused with it. In cross examination he has stated that he has not put date under his signatures on Ex.PW3/A. There was no mark of identification on the ushtra. He can definitely say that both the injuries were caused by the same weapon. These injuries are possible by this FIR No.476/02 Page No. 7 State Vs. Kanchid Etc. weapon and these injuries also possible by any other similar sharp edged weapon. These injuries are possible by one culprit only. He ascertained the time of death by rigour mortis because it was in disappearing state and on that basis he concluded the time. There was faintly lividity present on the depended parts of the body. There was no change in colour in respect of stomach on examination. He denied the suggestion put by the Ld.. defence counsel that on account of disappearance of rigor mortis within 48 hours the deceased did not die before 48 hours.
11. PW4 Vinod Kumar Yadav is the photographer who runs Happy Photo Studio at Alwar. He has deposed in his testimony that in the month of Aug,2002 he went to the spot near Padisal Railway Station and took photographs at the instance of police from various angles. He has seen the negatives Ex.PW4/A1 to A5 and positive prints thereof are Ex.PW1/2 to 8. These were taken by him. In cross examination he has stated that he took the photographs between 3 to 4 p.m. He took the photographs in the filed but he does not know the name of its owner. He denied the suggestion that he had not taken any photograph.
12. PW5 ASI Sakhi Ram has deposed that on 22.9.02 he was posted as D.O in PS HN Din and he recorded FIR of this case, carbon FIR No.476/02 Page No. 8 State Vs. Kanchid Etc. copy of FIR is Ex.PW5/A. In cross examination he has stated that he recorded FIR on the basis of DD no.6A which is Ex.PW5/B. It is correct that this DD entry was treated as original complaint. In cross examination he has stated that he did not see the complainant or any person accompanying him as no one had come to him personally. He recorded the FIR when the copy of DD entry was brought to him with the endorsement.
13. PW6 Mohd. Hammad has deposed that on 16.08.02 he got lodged a missing report of his father Mohd. Isha vide DD no.6A at PS H.N.Din and in said DD entry he has stated that his father had gone to Ahmedabad on 26.7.02 to attend the marriage of his cousin sister. On 1.8.02 two boys namely Shakil and Azad came to him and told that the proposed marriage between the niece of Shakil with the son of my brother in law has been cancelled. Shakil further told him that this has been conveyed to his father and also that his father will leave Ahmedabad for Delhi and will reach H.N.Din railway station next morning. On 02.08.02 Shakil and he reached to the house of his in laws in H.N.Din. At about 8/8.30 am his father also reached the house of his in laws in Nizamuddin. There was conversation between Tekhadar Ishaq, Hafis Nissar Ahmed and Shakil Ahmed regarding the marriage. After conversation was over his father told him that he will immediately leave for his village. Shakil also FIR No.476/02 Page No. 9 State Vs. Kanchid Etc. accompanied his father to the village. His father had shown his willingness to perform Namaz Jumma at the village. On 12.08.02 he rang up his mother in the village to enquire about the well being of family members. His mother told him that his father had not reached the village yet. Then he went to his inlaws house and told that his father had not reached village though, he had left their village with Shakil. He went to the village and made enquiries. When he did not find his father anywhere he reported the matter to the police vide DD no.6A dated 16.8.02. His father had been village Pradhan for quite some time and later Raiz Ahmed, brother of accused Matloob had become Pradhan of the village. There had been some inimical feelings between his family and the family of Raiz Ahmed. After some time Raiz Pradhan was done to death by some persons. The family of Raiz Pradhan suspected the hand of his father in the commission of that murder. He further stated that photos on page 331, 333 and 335 marked A1 to A3 are that of his father. In cross examination he has stated that DD entry was written at his instance and it was signed by him. He does not remember whether he had filed an application before Hapur Court u/s 107/116/152 Cr.P.C. He is not aware whether a case u/s 107/151 Cr.P.C was pending against his father before SDM, Hapur. Before lodging the FIR he knew that his father had gone to attend the marriage in the house of Samir Bhai. He did not mention this fact to the police. He has made FIR No.476/02 Page No. 10 State Vs. Kanchid Etc. improvement that on 3.8.02 his father had reached the house of his inlaws in Nizamuddin. It is correct that he has made statement before the police that on 3.8.02 at about 11 a.m his father had left for his vilalge along with Shakil s/o Hudratullah. It is correct that he did not ring up to his family members between 3.8.02 and 12.8.02. It is correct that he did not receive any telephone between these dates from his native place in vilalge Hafispur. Since there is no telephone installed at the house of Shakil he did not call him between these days. He had given a written report to the police in Delhi regarding missing of his father on 14.8.02 but it was registered on 16th August. It is correct that Ex.PW5/B does not bear his signatures. He met Shakil for the first time on 1.8.02 thereafter in Delhi when he had come to his house. He did not go to the house of Shakil to enquire about his father. On 1.8.02 he had asked Shakil about his father and he replied that his father would be coming from Ahmedabad to Delhi on 2.8.04. He did not ask from Shakil where he had left his father on or before 01.08.02. Shakil met him on 6th or 7th August 02 at Okhla and told him that he came for applying for passport. He did not ask Shakil as to where he had left his father. Shakil left for Saudi Arabia and did not meet him thereafter. His statement was recorded after lodging of FIR. It is correct that the police had published the hue and cry notice in the papers with his consent which is Ex.PW6/DA and DB. It is correct that some FIR No.476/02 Page No. 11 State Vs. Kanchid Etc. cases were pending against their family members which were lodged by the accused party before lodging the FIR of this case. He made improvement that Shakil and Azad had come to him. He has also made improvement that he came to know that his father had not reached the village as told to him by his mother. He admitted that he had not stated in his report the names of the persons from whom he had come to know that his father had not reached the village. He had not asked to raid at the house or hide out of Shakil. He did not make any enquiry from Shakil regarding missing of his father after or before lodging the report. Since he did not suspect any foul play before 12.8.02 he did not make any enquiries from Shakil. He admitted that a case u/s 107/151 Cr.PC is pending against him at Hapur and the accused are the complainant party. He is living in Shinebagh for last four years. He was not invited in marriage at Ahmedabad. Only his father was invited. The marriage was of the niece of wife of Shakil for which the conversation was to take place at the house of his inlaws.
14. PW7 SI Baldar Singh has deposed that on 16.8.02 Mohd. Hammad lodged a report regarding missing of his father vide DD no.6A. He made endorsement Ex.PW7/A on it and got the case registered. He recorded the statement of witnesses. He did not know about the death of FIR No.476/02 Page No. 12 State Vs. Kanchid Etc. Mohd. Ishaq. The name of deceased was Mohd. Isha and he recorded the statement of Mohd. Ishaq. In cross examination he has stated that the investigation remained with him till 13.12.02. Till then the accused was not named as suspect. During investigation he had met Shakil for the first time in the month of August 2002 . He was called to his office. He sent constable to bring him. He has not placed any record for summoning him. Shakil is resident of village Khurana near Ghaziabad. On his asking as to whether Isha had gone with him on 3.8.02 Shakil told him that Isha did not go with him. Shakil also denied the factum of meeting Isha at the house of In-laws of Mohd. Hammad in Nizamuddin area. Also he told him that he did not go to the house of In laws of Mohd. Hammad at all. Hammad told him that his father had gone with Shakil.
15. PW8 Shahnajar Ali has deposed in his testimony that on 2.8.02 at about 7.45 a.m he reached at the house of Thekedar Ishaq Ahmed at Nizamuddin and found five persons. One was Mohd. Hammad and another Isha Pradhan who was samdhi/relative of thakedar as disclosed by thakedar were also there. The father name of Hammad is Mohd. Isha and he was hailing from village Kurana. Thakedar told him that Mohd. Isha came from Ahmedabad and he cannot tell where he was to go. He remained there till 9 a.m. Isha Pradhan and Shakil left that place in my FIR No.476/02 Page No. 13 State Vs. Kanchid Etc. presence. He was declared hostile by the Ld. APP for the state and cross examined wherein he has stated that it is correct that he reached at the house of Thekedar on 3.8.02 . It may be possible that Mohd. Isha and Shakil left that house at 11 A.M. His cross examination is quite formal.
16. PW9 Balbir singh has deposed that in Feb 2003 Delhi Police Official with one person named Arshad Chairman and he identified Raja Kanchid, the chairman is some other person. He accompanied police with that Chairman to railway line. The accused pointed out that he has thrown something which was with him and one polythene bag was taken out by that person. That polythene bag contained ushtra. Sketch of ustra was prepared which is Ex.PW9/1. He identified the ushtra Ex.PX. The Ushtra was taken into possession vide memo Ex.PW9/2. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has admitted that the name of the person in custody of the police was Rashid @ Chairman. He could not identify proper person as his eye sight is weak. The seal of RCM was used. The seal after use was given to one person Hassan Khan. In cross examination he has stated that he cannot tell the name of vehicle in which police came but it was big vehicle but not truck. No official from PS Sadar, Alwar was with Delhi Police at FIR No.476/02 Page No. 14 State Vs. Kanchid Etc. that time. He did not demand their identity card because they told them that they had brought accused and blame was also levelled on them. Field of Makhan Singh are at a distance of one fur long from his field. He cannot tell now whether accused Kanchid Raja was in police custody at that time or not.
17. PW10 Vijay Singh has deposed that Maruti Car no. DL 4CA 6732 white colour was purchased by him from Manjit Singh in March 2002 for Rs.60,000/-. On 23.6.02 he sold that vehicle to one Pradhanji, body of which has been touched by the witness and accused has disclosed his name as Matloob Ahmed. He has seen receipt Ex.PW10/A. The receipt was in the hand of his brother Gaje Singh. His cross examination is quite formal.
18. PW11 Fayaz has deposed that on 2.8.02 at about 10/10.30 a.m he saw Maieen in Maruti Car no. DL 4CA 6732 at Mathura Road near Nursery in the area of Nizamuddin near Gol Gumbaz. It was vehicle of Matloob. He had been married to village Kurana and he often visit that village. In cross examination he has stated that he used to supply milk also in Nizamuddin area. The vehicle is TATA Make and he does not remember the number of that vehicle. On 2.8.02 they left Gazipur at 6.30 FIR No.476/02 Page No. 15 State Vs. Kanchid Etc. a.m via Ashram. They reached Nizamuddin market at 8 a.m. He saw vehicle from the distance of 20-25 feet. He knew the person sitting in the maruti vehicle. He saw the vehicle 15 days prior to 2.8.02 at village Kurana. He saw vehicle outside house of Matloob. The face of the vehicle was towards Ashram when he saw it near Gol Gumbaz. No other person was in vehicle except accused. The number plate of the vehicle was of white colour. He was not told by anybody on his visit to Khurana that any murder took place in that village. He denied the suggestion that he is servant of Mohd. Hammad. He admitted that Mohd.Hammad earlier was running business of selling milk in Gajipur. When accused was in the vehicle they wished each other. He know Hammad and his relations.
19. PW12 Nissar Ahmed has deposed that Mohd. Isha was his relative being the father of his son in law. On 2nd or 3rd August 2001 he had come to his house no.3 in Basti H.N.Din from Ahmedabad. Mohd. Hammad and Shakil Ahmed had also come to his house in the morning at about 8/8.30 a.m. After remaining at the house upto 11/11.30 a.m Mohd. Isha left for his village Kurana saying that he had to offer prayer of Jumma at his village. On 13th or 14th August he came to know that he had not reached his village. He was declared hostile by the prosecution and cross FIR No.476/02 Page No. 16 State Vs. Kanchid Etc. examined by the Ld.APP for the State wherein he has stated that he does not remember as to whether or not it was 2001 or 2002 but a period of 2 and half years has been elapsed. In cross examination he has stated that Hammad and Shakil did not leave his house in his presence. Pradhan and Shakil left his house in his presence. No other person accompanied them in his presence. Isha and Shakil left his house together. He had telephonic talk with Isha Pradhan after 10/12 days of his departure from his house. He came to know about death of his Samandhi after having telephonic talk with Jubeda. Jubeda did not tell him about physical condition of pradhan. He came to know about death of Pradhan after six months of his talk with Jubeda. He did not go to the house of Shakil to make enquiry. He told his son law that he had talked with Shakil and Shakil told him that he did not accompany pradhan and separated from him. He asked his son in law to lodge report in police regarding missing of pradhanji. He cannot say if Maulvi Mohd Isha has relations in Rajasthan.
20. PW13 Dr.Matloob Ali has deposed that he purchased car no.DL 4CA 6732 from Matloob Ahmed Pradhan on 15.7.02 for a sum of Rs.50,000/-. He proved memo Ex.PW13/A and B in this respect. In cross examination he has stated that the vehicle remained with him from FIR No.476/02 Page No. 17 State Vs. Kanchid Etc. 15.7.02 to the date it was taken into possession by the police. He does not know Matloob Pradhan. He purchase the car through a mechanic. He was declared hostile and cross examined by the Ld. APP for the State wherein he denied the suggestion that Matloob Pradhan was directly known to him even before he purchased the car. He denied the suggestion that he purchased the car from him in the month of Oct. 2002 and not on 15.7.02. he denied the suggestion that car was in his possession on 2nd & 3rd Aug 2002. The car was with him at that time.
21. PW14 Sh Hassan Khan has deposed that two years ago he joined investigation and accused Rashid Ali was sitting in the car. The accused led 3-4 persons to a nearby bushes in the field and pointed out the place and took out a polythene bag from the bushes which contained a razor/ushtra.The razor had blood stains. The sketch of razor was prepared. It was sealed with a seal made of brass. He proved the memos Ex.PW6/P9/2 and sketch Ex.PW6/P9/1. He identified the razor Ex.P1. He does not remember any special mark of identification due to lapse of time. In cross examination he has stated that 3-4 persons were in civil dress. The Ilaqua police was not with Delhi Police at that time. He cannot tell the name of train which he boarded. He is not having ticket now of the train. He denied the suggestion that no train stops at that station at that time. it is FIR No.476/02 Page No. 18 State Vs. Kanchid Etc. correct that Padesal Railway Station is very small. He was to go on foot from padesal to Chandoli. It is correct that there is a village Naurangabad near Padesal. It is correct there is another village Dilapur on the main road at the distance of 2 kms from Naurangabad. He denied that police had taken him from Alwar and razor was already with the police. There was abadi at a distance of 20 or 30 paces from the place from where the razor was recovered. The place from where the razor was recovered was near railway track. He has no relationship with Mohd. Ishaq s/o Abdul Aziz r/o H.No.3 Basti Hazrat Nizamuddin, New Delhi. He did not stated to the police that accused Rashid was sitting in the car. He did not state to the police that razor was shown to him and Sardar. The razor was in a polythene and when he saw it, it was open.
22. PW15 Mohd. Tanveer Alam has deposed that on 26.7.02 he received a telephone call from Rashid Chairman that two of his persons were coming to Ahmedabad in connection with some business and they would be staying with him. His mobile number 9824082225 was given to them. Next day at about 8 or 9 p.m Kanchid and Taiyab made a call on his mobile from railway station, Ahmedabad. He went there and took them to a room near Charodiya Chowk. Taiyab is not present in the court. Kanchid is present in the court and he identified him. When Kanchid and Taiyab FIR No.476/02 Page No. 19 State Vs. Kanchid Etc. were taken to the room, they requested him to facilitate their talk with Rashid Chairman. He dialled the number of Rashid Chairman and they had a talk with him. Kanchid and Taiyab stayed there for four or five days and then they left without informing him. When he went to the room, the sareewala told him that they had left. Rashid Chairman is present in the court and he know him as he belong to his village. He never met him in Ahmedabad. He was declared hostile by the Prosecution and cross examined by the Ld. APP for the State wherein he has stated that Mohd. Isa was well known to him. He had not stated to the police that he had brought Kanchid, Taiyab and Chairman Rashid from the Railway Station. He was confronted with his statement Ex.PW15/A in this respect. He denied that the said persons stayed in the room for a week or that on 1.8.02 he had gone to the railway station to see off Kanchid and Taiyab. He denied the suggestion that Rashid Chairman left Ahmedabad on the next day and he had seen him off at Railway Station. He was confronted with his statement Ex.PW15/A in this respect. In cross examination he denied the suggestion that he never had such talk with Rashid Chairman on his mobile. He heard the voice on his mobile and he felt that it was the voice of Rashid Chairman. He did not state to the police that he had taken mobile phone 9824082225 in the name of Mohd. Abseen Rajput. He was FIR No.476/02 Page No. 20 State Vs. Kanchid Etc. confronted with his statement in this respect. He had stated to the police that Kanchid and Taiyab stayed in the room at Ahmedabad for four or five days. He was confronted with his statement in this respect where it is recorded that Kanchid and Taiyab were seen off by the witness on 1.8.02. He had stated to the police that after reaching the room Kanchid and Taiyab requested him to facilitate their talk with Rashid and then he dialed the number of Rashid. This is also not stated in his statement. He has made further improvement in his statement by stating that he had stated to the police that Kanchid made a telephone call to him after reaching Ahmedabad and then he had gone to the Railway Station to take him and Taiyab. He has made further improvement in his statement by stating that he had stated to the police that he received telephone message from Rashid Chairman that two of his persons were coming to Ahmedabad in connection with some business. Rather it is recorded that one Arif conveyed the message to the witness that Rashid Chairman would be coming to Ahmedabad with two persons). He admitted that the police did not read over to him the statement that they had recorded. Isa was missing and seven or eight months later, police came to Ahmedabad with accused Kanchid and Rashid Chairman and then he made statement.
23. PW16 Mohd. Ayub has deposed that in the year 2003, on 3rd FIR No.476/02 Page No. 21 State Vs. Kanchid Etc. instant at around 10.30 a.m he went to the house of Mohd. Ishaq where two or three persons were sitting with him at that time. One of them was introduced by Ishaq as his samdhi (relative) and his name was told as Mohd. Isa. One person came there and Mohd. Isa left with him. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has admitted that it was 2.8.02 at about 8.30 a.m when he had gone there. It is correct that the person who came to call Mohd. Isa was Shakil. It is correct that negotiation for the marriage of the son of Mohd. Ishaq with the niece of Shakil had taken place at that time. It is correct that Mohd. Isa left with Mohd. Shakil at about 11 a.m. In cross examination he has stated that he cannot say whether they took a bus or autorickshaw from the road for ISBT. He denied the suggestion that Mohd. Ishaq had gone upto the road to see off his samandhi(relative) or that he had hired an auto for him. He had no relationship with Hamad nor he is related with Ishaq.
24. PW17 Rahim Khan has deposed that on 3.8.02 a dead body was lying near the house of Bhajan Singh. Again said in the field of Jawar. Public collected there. Police came there. Blood was lying near the body. There was signs of cut on the neck of the dead body and the veins were FIR No.476/02 Page No. 22 State Vs. Kanchid Etc. coming out of the stomach. Police recorded his statement and seized the dead body and obtained his signatures (there is no such document bearing his signatures) In cross examination he has stated that his statement was recorded by Police of PS Sadar Vol. Delhi police had also met him after about six months. He denied the suggestion that no dead body was recovered in his presence.
25. PW18 Mohd. Kasim has deposed that on 4.8.02 he was studying in the Madarsa of Alwar. Police from Alwar had come to the Dhaba of Mohd. Isab on that day and thereafter to his Madrasa. He alongwith Isab went with police to the mortuary of Alwar Hospital. The unknown dead body was brought to the Madarsa. The last rites as per muslim religion was performed. He read the Namaz of Janaza and there the dead body was burried in the Kabristan of Mugaska. In cross examination he has stated that he had done Maulviyat in Urdu. He had seen the dead body and there were no clothes on the dead body. The age of the deceased was about 50 years. Isab had called him and no police official called him. He does not recollect what was kept beneath the dead body when it was kept in the tempo. He does not recollect the specific date on which Delhi Police met him.
FIR No.476/02 Page No. 23 State Vs. Kanchid Etc.
26. PW19 Mohd. Isab has deposed that he running dhaba on Alwar Road. On the request of the police his brother and Mohd Anas and Kasim went to the hospital and brought the dead body to Mdarsa and he alongwith Mohd.Anas and Kasim performed last rites as per Muslim Religion and peformed Kafan on the dead body. In cross examination he has stated that the dead body was identified as to of a muslim by him on the basis of long beard. The leaves of neem tree were placed beneath the dead body. It is correct that there was no blood on the person of dead body. He does not recollect if signatures of any other person was taken by the hospital authorities when the dead body was being taken from the hospital. There was no entry system of the dead body when the same was taken in kabristan. No record is being maintained at the kabristan regarding the burying of the dead body in the kabristan. He does not have any documentary evidence to show that the unknown dead body of that person was buried in kabristan on 4.8.02.
27. PW20 Samir Bahi Kasim Bhai Rajput has deposed that his daughter Sharin Bano was to get married to Liyakat s/o Aqil on 27.7.02. ON 22.7.02 Mohd. Isa Pradhan (now deceased) came to his residence to join the marriage ceremonies. He left on 01.08.02 for Delhi. He left him at FIR No.476/02 Page No. 24 State Vs. Kanchid Etc. Ahmedabad Railway Station at 6 p.m. After 5-6 months Delhi police came to him for making necessary enquiries that Mohd.had visited him in connected of the marriage of his daughter. He handed over the marriage card of his daughter Ex.PW20/A &B which were seized vide memo Ex.PW20/C. He identified accused Rashid. In cross examination he has admitted that as per the card Ex.PW20/B, the nikah had to take place on 28.7.02 at 2 p.m. Photograph of Mohd. Isa was there in the marriage. He does not possess any proof in writing that he made Mohd. Isa board train for Delhi on 1.8.02. Police had not recorded his statement. The compartment of train in which Mohd. Isa was made to sit was crowded. He denied the suggestion that Mohd. Isa was possessing lots of money at that time kept in NAULI(cloth belt). The packed lunch was also given to him for the way. No sweets were given. He denied the suggestion that on the early hours of 2/3.3.02 some unknown persons had looted and killed Mohd.Isa at Padisal Railway Station.
28. PW21 Mohd. Naseem Rajput has deposed that on 7.2.03, 6-7 persons from Delhi Police met him who were accompanied by Rashid and Kanchid, correctly identified both the accused. At the request of police he accompanied them and the accused led the police force to a house no.532/106 PS Rakhyal and they pointed out towards the aforesaid house FIR No.476/02 Page No. 25 State Vs. Kanchid Etc. and disclosed that accused Kanchid and One Tayyab had stayed in this house on 27.7.02 to 1.8.02. He signed the panchnama. (No panchnama available on file).. He was declared hostile by the prosecution and cross examined by the Ld. APP for the state wherein he has stated that by panchnama he means pointing out memo. He identified his signatures on pointing out memo Ex.PW21/A. In cross examination he has stated that he signed his statement before the police. (there is no such statement on record). In his presence none had signed Ex.PW21/A. None from the family of the deceased was present with the police. He knew Rashid from before and as such when he saw him in the company of police, he stopped and joined him in the investigation. No Police of Ahmedabad was accompanying them. He knew Mohd. Isa, the deceased. He knew accused persons since they all belong to the same village. He denied the suggestion that he is deposing falsely for the reason that deceased Mohd. Isa was his relative.
29. PW22 SI Anjana has deposed that on 16.8.02 she was working as Duty Officer and at about 11.05 a.m, Mohd Hammad s/o Mohd Isha r/o F11/3 Shahin Marg, Okhla, New Delhi came to PS in person and got recorded his statement Ex.Pw5/B. She has brought the original DD no.6A Ex.PW22/A signed by Mohd. Hammad. She handed FIR No.476/02 Page No. 26 State Vs. Kanchid Etc. over the DD no.6A to IO. She was not cross examined.
30. PW23 HC Kishan Chand has deposed that on 23.4.03 he was working as MHC(M). He sent on sealed pullanda sealed with the seal of RK FSL to General Hospital, Alwar vide RC no.172/21 through SI Ramesh for seeking opinion from autopsy surgeon. The carbon copy of RC is Ex.PW23/A. He has brought RC no.144/21 recorded by HC Rajkumar. Copy of RC is Ex.PW23/B. In cross examination he has stated that SI Ramesh Chand handed over pullanda to him on 5.2.03. It is correct that SI Ramesh Chand collected pullanda from Malkhana for CFSL on 24.3.03. He has brought the copy of seizure memo Ex.PW23/D1. It is correct that no entry number of the register has been given on the copy of seizure memo of ustra.
31. PW24 Baliquiddin has deposed that he is running dairy at Gazipur. On 10.2.03 he was going to his village and when he reached near the gher of Rashid one vehicle came and stopped near the gher. One person who was handcuffed and ¾ more persons in plain clothes also got down and went inside the gher. The handcuffed persons were Kanchid (correctly identified). He disclosed that about 6/7 months before he, Tayaib, Rashid, Matloob and Moin held a meeting there. Police prepared FIR No.476/02 Page No. 27 State Vs. Kanchid Etc. a documents. He is not aware of its contents. He is illiterate. He can read Urdu to some extent like his name and nothing else. He identified his signatures on pointing out memo at point A. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State where in he has stated that police had not recorded his statement. Again said police had recorded his statement. He had stated to the police that Kanchid who was in custody had pointed out the baithak of Rashid@Chairman and stated that on 25.7.02 Tayyab, he, Rashid, Moin and Matloob had planned there to commit murder of Mohd. Isa. In cross examination he has stated that he on his own went to the house of Rashid. Haroon, Layaqat, Attah, Hashim and Muzahesaleem were there but they refused to give their statements. The deceased was not related to him but he was his co- villager. Complainant and all the accused except Kanchid and Taiyab are his co-villagers. Police had not called any respected of the locality to join the investigation. He denied that complainant Hammad owns a dairy in Gazipur. After 10.2.03 he never met Shakeel. However, he had seen him for some distance, once or twice after a month/1-1/2 of 10.2.03. He does not know since when he is not in village. He denied the suggestion that he did not state to the police that when he came from Delhi and reached in village police met him near gher and requested him to join the investigation. He denied the suggestion that he became witness at the FIR No.476/02 Page No. 28 State Vs. Kanchid Etc. behest of complainant.
32. PW25 Manjit Singh had deposed that on 1.3.02 he sold maruti car no.DL 4CA 6732 to Vijay Singh s/o of Khillo Singh for Rs.60,000/- . He proved form no. 29 & 30 Ex. PW25/A to D. He was not cross examined by the Ld. defence counsel.
33. PW26 Naresh Chand has deposed that as per record of transport department car no. DL 4CA 6732 is in the name of Manjit Singh. he proved RC Ex.PW26/A.
34. PW27 HC Ragener Singh has deposed that on 28.01.03 he joined the investigation with other police officials and at about 9 p.m one secret information was received that one person namely Raja would come in Surya Sofital Market who is involved in robbery cases. They had gone to the Surya Sofital Market. Some passersby were requested to join the raiding party but they refused. AT about 11 p.m a person came from the side of Mathura Road and secret informer pointed out towards that boy and he was apprehended. He told his name Raja and thereafter told his correct name Kanchid s/o Babu Khan. He was interrogated and his disclosure statement Ex.PW27/A was recorded. He disclosed that he FIR No.476/02 Page No. 29 State Vs. Kanchid Etc. received Rs.50,000/- for the murder of Isha Pradhan (objected to) from Rashid Chairman and Matloob Pradhan. Accused Kanchid took them to the place near nursery Mathura Road and pointed out the place Gol Gumbaz Chauraha from where they had kidnapped Isha Pradhan (deceased) in Maruti car on 2.8.02. Pointing out memo is Ex.PW27/B. Accused Kanchid was arrested vide his arrest memo Ex.PW27/C and his persons search was conducted vide memo Ex.PW27/D. In cross examination he has stated that he had gone through the guidelines to arrest, delivered by Hon'ble Supreme court of India. They did not record secret information in any register as information was received when they were in area. Secret informer did not disclose description of that person to Insp.KP Singh in his presence. Accused Kanchid is not related to any member of the raiding party. He was not known to them prior to his arrest. Secret informer accompanied them at the time of raid. IO had made departure entry for investigation of this case. IO made his arrival entry in the morning of 29.1.03. They were in private vehicle Zen. Insp.KP Singh was driving the said car. The accused was on foot when he entered in the market. The disclosure statement was recorded by Insp.KP Singh in his presence. Pointing out memo was prepared by IO near Nursery. ¾ passersby were asked to join the raiding party but they refused and left. IO has not asked any particular person to join the raiding party. AT the time FIR No.476/02 Page No. 30 State Vs. Kanchid Etc. of arrest no intimation about arrest was given. Vol. it was given in the morning. He admitted that writing of Ex.PW27/A and Ex.PW27/B are of different persons. It is correct that writings of Ex.PW27/D and C are also of different persons. He denied the suggestion that accused Kanchid was taken away by them on 18.1.03 from his factory at Shahid Nagar Seema Puri on 18.01.03. They started the investigation from Adarsh Nagar at 6 p.m and reached Sofital market at 9 p.m. He denied the suggestion that secret informer is a ruffian of the area.
35. PW28 Ct.Vikal Singh has deposed that on 30.01.03 he along with SI Ramesh Chand had gone to Alwar along with accused Kanchid with other staff. Accused Kanchid pointed out a field of Barsim (green fodder) situated towards western side of railway station padisal and told them that he, Tayyab and Rashid committed murder of Isha Pradhan before six months ago with razor and threw the dead body in the field of jawar. One Bhajan Singh and one Amar Singh Yadav also reached there. Pointing out memo of the place of occurrence is Ex.PW1/14. Kanchid told them that he, Rashid Chairman, Tayyab Khan and Moinuddin had brought Isha to the field in maruti car. On 31.01.03 he received case file of FIR no.225/02 and five sealed pullandas vide RC from PS Sadar, Alwar and handed over to IO on 2.2.03. Pullandas were deposited in Malkhana. On FIR No.476/02 Page No. 31 State Vs. Kanchid Etc. 10.02.03 he along with SI Ramesh Chand and other staff took accused Kanchid to village Kurana where accused pointed out the bathak situated near Masjid in village Kurana and told them that he alongwith Rashid Chairman, Matloob, Tayyab and Moinuddin hatched a conspiracy on 25.7.02 to commit murder of Isha Pradhan. Pointing out memo was prepared which is Ex.PW28/A. He further deposed that on 15.02.03 accused Matloob took them to village Murshad Pur where Dr. Matloob met them and produced maruti no.6782 which was taken into possession vide memo Ex.PW13/A and papers of the car vide memo Ex.PW13/B. He further deposed that on 16.02.03 accused Matloob took the police to Fatehpuri Lal Quila Road, Tours and Travel cabin and pointed out the cabin that on 25.7.03 again said on 25.7.02 at about 11.30 p.m, he, Kanchid, Rashid and Tayyab had a talk for murder of Mohd Isha for a sum of Rs.50,000/- and Moinuddin gave Rs.5000/- to Tayyab for expenditure. The pointing out memo of cabin was prepared. In cross examination he has stated that his statements were recorded by SI and he signed the same on different dates and places i.e. 30.1.02 at Alwar, dated 2.2.02 in Delhi, dated 10.2.02 at village Kurana, dated 15.2.02 in village Murshadpur, dated 16.2.02 at Fatehpuri Lal Quila Road, Chandni Chowk. They went to Alwar in Maruti Car driven by private driver. He does not know if his departure entry with regards to Arms and along with number of maruti FIR No.476/02 Page No. 32 State Vs. Kanchid Etc. was made before leaving for Alwar. Before they left for Alwar, they had no information that FIR no.225/02 was registered with PS Sadar. Copy of FIR was collected by them on 1.2.02. On reaching Alwar they did not go to PS but to the spot. Bhajan Singh and Amar Singh Yadav who were working there were called to join the investigation. They were four police officials i.e. SI Ramesh Chand, ASI Ravinder and others whose names he does not remember. He was sitting on the rear seat of the car along with the accused Kanchid. He does not remember if any entry was made regarding the maruti car in which they were travelling from Delhi to Alwar and the toll tax stop. He is not aware when they reach any particular State they had to make any entry in the concerned Police Station. He does not know if IO had made entry in concerned PS about arrival there. He had received pullandas from Malkhana mohrar of PS Alwar. There must be order from SHO for handing over the pullandas to him. SHO before or after handing over him pullandas did not record his statement. They had gone to village Kurana either in car or maruti zen. He denied various suggestions put by the Ld. Defence counsels.
36. PW29 ASI Shiv Kumar Sharma is the witness from PS Arawali Vihar, Alwar and he has deposed that he joined investigation of Case FIR no.225/02 PS Sadar and on 4.8.02 he arranged for the last rites FIR No.476/02 Page No. 33 State Vs. Kanchid Etc. of deceased (unknown) according to Muslim Rites and Ceremonies. In cross examination he has stated that he did not hand over the dead body to anyone for last rites. Again said he does not remember if he had handed over the same.He did not prepare any documents regarding receipt of deadbody or its last rites. He did not see the memo handing over the dead body to him. The IO or the SHO did not record the statement of the persons referred above in his presence. The members of the Muslim association had arranged for the last rites of the deceased. He denied the suggestion that he did not perform the last rites of the deceased with the members of the Muslim Association or that he did not collect the dead body of the deceased.
37. PW30 Inspector Janesh Singh is also the witness from Rajasthan Police who has deposed that on receiving information about lying of dead body of some unknown person, he reached in the field of Bhajan Singh and found the dead body lying there. Bhajan Singh gave a written complaint Ex.PW1/1, on which he made endorsement Ex.PW30/A and got the case registered through Ct.Ajay Kumar. He prepared the site plan Ex.PW1/13. A currency of Rs.10/- denomination was found lying near the deadbody of deceased which was seized vide memo Ex.PW1/12. A NAULI was also lying near the dead body which was seized vide memo FIR No.476/02 Page No. 34 State Vs. Kanchid Etc. Ex.PW1/9. The blood stained clothes of the deceased which was lying near the dead body were also seized. Now he does not remember what clothes were lying near the dead body. After refreshing his memory he states as per Ex.PW1/10 one white colour tehmat, one check design safi (gamcha) of red and white colour were recovered from near the dead body. The dead body was found nude. The clothes were seized at the spot vide memo Ex.PW1/10. . He further deposed that blood stained earth and plain earth were lifted from the spot which were kept in separate polythene and seized vide memo Ex.PW1/11. He proved the photographs Ex.PW1/1 to Ex.PW1/8. He further proved the inspection report of the dead body Ex.PW30/B. He conducted the inquest proceedings which is Ex.PW30/C. He also proved carbon copy of FIR no.225/02 Ex.Pw30/D. He further deposed that he moved an application for conducting post mortem on the dead body which is Ex.PW30/E. On 4.8.02 the post mortem was conducted and thereafter some person from Madarsa was called and dead body was sent for last rites. He searched for relatives but in vain. He got flashed message through newspapers and also distributed some pamphlets but nobody came forward. He proved copy of pamphlet Ex.PW30/F. On 30.10.02 he moved an application before the Higher Authority seeking permission to close the case as untraced. On 30.01.03 Delhi Police came to PS Sadar, Alwar for investigation of a case of FIR No.476/02 Page No. 35 State Vs. Kanchid Etc. abduction and disclosed that they have arrested a person who had disclosed that he had killed Mohd. Isha near Railway Station Pedesal. They showed them the photographs Ex.PW6/DA and DB of abducted person and compared with the photographs of deadbody of unknown person recovered in FIR no.225/02 and it was found to be same. He identified accused Kanchid as he accompanied Delhi Police to PS Sadar. He further stated that an application before SP for obtaining the police file of FIR no.225/02 was moved and after two days he handed over the police file under the orders of SP to Delhi Police. He identified the NAULI Ex.P1. He also identified Gamcha/Safi Ex.P2 and white colour cloth/Tehmed Ex.P3.He also identified the currency note of Rs.10/- as Ex.P4. In cross examination he has admitted that the graveyard in Alwar is under Wakf Board. He has not seen the GD entry regarding information about lying of dead body. information was passed on to him orally. The distance between PS Sadar and Spot was about 20 KM. They had gone there in official jeep. Ex.P1 to Ex.P3 and currency note were lying within the radius of 10 feet from the dead body. They reached the spot where the deadbody was lying within 5 minutes from PS. He admitted that in the endorsement Ex.PW30/A except his signature no other writing is in his hand. He admitted that Ex.PW1/9,10,11,12&13 were not written by him. He does not know how much amount was paid to photographer and who FIR No.476/02 Page No. 36 State Vs. Kanchid Etc. paid. They did not claim reimbursement for the same. The Panchnama Ex.PW30/C was prepared at the spot of recovery of dead body. It was not reduced in writing by him. He had not obtained any permission for conducting inquest proceedings. No memo was prepared for handing over the deadbody to the members of Madarsa. He did not accompany the dead body to graveyard for last rites. ASI Shiv Kumar did not give any particular of any entry made by him in the register at graveyard regarding performance of last rites of the dead body. The order of SP to hand over the file is Ex.PW20/D1. (The witness was directed to produce the DD entry dated 20.1.03 and register no.19 by which pullanda of FIR no.225/02 were handed over to Delhi Police). He has further stated that he has brought DD register for the period 27.1.03 to 15.2.03 of PS Sadar. There is no departure or arrival entry of Delhi Police in PS Sadar. on 30.1.03 or thereafter. He has brought DD no.26 dated 1.2.03, the extract of DD is Ex.PW30/D1. He admitted that there is no acknowledgment of pullandas received by Delhi Police in DD no.26. Besides lifting the dead body and depositing the same in the mortuary and proceedings of Panchnama, no other proceedings were conducted at the spot under his supervision. There was no order from SP or any other senior officer to hand over the case file to Ct.Vikal. He admitted that he had not given any direction to MHC(M) to handover the case file and pullanda to Ct.Vikal. FIR No.476/02 Page No. 37 State Vs. Kanchid Etc. He does not know if village named Bhatesara in Rajasthan fall within the jurisdiction of PS Sadar, Alwar. He does not recollect if any case of village Bhatesara came to his notice.
38. PW31 HC Rajiv Mohan has deposed that on 28.01.03 secret informer informed that one person named Raja who is contract killer and does the job of robbing trucks would come to meet some of his accomplice near hotel Surya Sofital at 11 p.m. They reached there. At about 11 p.m accused Raja @ Kanchid came there and he was apprehended by Ct.Sajjad. He was interrogated and his disclosure statement Ex.PW27/A was recorded wherein he has disclosed about the murder of Mohd Isa alongwith his accomplices. He further deposed the version of PW27 regarding arrest of accused, conducting his persons search, pointing out Fatehpuri ahead of railway station from where he had boarded the tourist bus for going to Ajmer. He also pointed out near Hazrat Nizamuddin Gumbad, from where Mohd Isa was abducted. the pointing out memo is Ex.PW31/A and Ex.PW31/B. On 4.2.03 he alongwith other police officials went to Bullandshehar alongwith Kanchid in search of co accused Rashid Chairman, Matloob Pradhan, Moinuddin and Tayyab. Secret information was received that Rashid hasgone to Ghaziabad. They all reached New Bus Stand Ghaziabad and at about 5.30 FIR No.476/02 Page No. 38 State Vs. Kanchid Etc. a.m on 4.2.03 on the pointing out of Kanchid, accused Rashid Chairman was apprehended. He made disclosure statement Ex.PW31/E regarding the present case. He was arrested vide memo Ex.PW31/C and his personal search was conducted vide memo Ex.PW31/D. He also pointed out the Fateh Puri Tour & Travel Cabin from where he boarded the bus vide memo Ex.PW31/F. On 5.2.03 he alongwith other police officials and accused Rashid reached Padesal Railway Station, Alwar and from near poultry farm near railway line and from the bushes accused got recovered a green colour double panni polythene in which one ustra was got recovered. On checking some stains of blood and hairs were found. The sketch of ustra was prepared. Hasan Khan and Balbir were joined as witness. The handle of the ustra was Kathia colour and the handle was of plastic red and blue strips were on the handle. The sketch of ustra is Ex.PW9/1 an seizure memo Ex.Pw9/2. He identified the ustra Ex.PX. The accused pointed out towards bushes near poultry farm near Barsim fields, place where murder was committed and the deadbody was dragged and thrown to jawar field. The pointing out memo is Ex.PW31/G. He has further stated that on 7.2.03 accused Kanchid and Rashid were taken to Ahmedabad where they pointed out H.No.536/106 GHB babu Nagar Rakheyal, Ahmedabad again said he may be confused in the house no., where Kanchid and Tayyab stayed, the pointing out memo is Ex.PW21/A. FIR No.476/02 Page No. 39 State Vs. Kanchid Etc. Tanvir Alam gave his mobile number. IO also collected one wedding card which was handed over by Samir Bhai and taken into possession vide memo Ex.PW20/C, the card is Ex.Pw20/B and envelope is Ex.Pw20/A. He has further deposed that on 10.02.03 he alongwith other police officials took accused Kanchid and Rashid to village Kurana where accused Kanchid pointed out a gher, where they had planned regarding the commission of offence. The pointing out memo is Ex.PW28/A. They came to know that accused Matloob Pradhan has gone to Jama Masjid Churiwalan. On 13.2.08 again said on 13.2.03 he alongwith other police officials and accused Rashid Chairman went to Churiwalan Jama Masjid where on road accused Rashid identified Matloob Pradhan and on his pointing out Matloob was apprehended. He was arrested vide memo Ex.PW31/H and his personal search was conducted vide memo Ex.PW31/J. His disclosure statement Ex.PW31/K was recorded. Thereafter they went in search of accused Moinuddin at Janta Colony, Welcome Ghaziabad where accused Matloob pointed out towards Hapur Chungi on Bullandshehar Road, the place where Matloob had given money to Kanchid and Tayyab. He proved the pointing out memo Ex.PW31/L. He identified accused Matloob. He further deposed that on 16.02.03 he with the police party and accused Matloob went to Fatehpuri Tours and Travels Cabin which was pointed out by accused Matloob, the FIR No.476/02 Page No. 40 State Vs. Kanchid Etc. place where Tayyab, Rashid Chairman and Kanchid were left by him after giving money. He proved pointing out memo Ex.PW31/M. On 10.06.03 IO had formally arrested accused Moinuddin who was produced on production warrant in the court. Accused Moinuddin had also pointed out the Gole Gumbad Nizamuddin. In cross examination he has stated that Insp.KP Singh received secret information at about 9 p.m. They all left the office at 10 a.m.The vehicle tempo travel no.DL 1CF 4288 was got issued. They had gone to Ghazipur to show the photographs of the deceased to the person belonging to Gulavti, Kurana with pamphlets Ex.PW6/DA and DB etc. He does not know at whose instance IO had taken them to Gazipur dairy farm. He admitted that while they were searching the deceased, non from the family of deceased had accompanied them. They reached market Surya Sofital at 11 p.m. Surya Sofital Market closes at 12 midnight again said it closes at 11 p.m. He does not know at that time all the shops in Delhi were closed by the directions of Govt at 9 p.m. The secret informer did not disclose the name of the friend of Kanchid and purpose of meeting. He does not recollect which all public persons were asked to join the proceedings. Accused Kanchid was arrested at 3-4 a.m by SI Ramesh. He admitted that he has no personal knowledge that on 30.1.03 accused Kanchid was taken to Padesal Alwar and his statement is based on the information received. No person from the family of Mohd Isa FIR No.476/02 Page No. 41 State Vs. Kanchid Etc. accompanied them to Tajpur, Kurana and Hirdyapur. He does not know where accused were taken on 2.2.03. He did not meet the relatives of Rashid at Daryapur. The had left for Delhi at about 4/4.30 p.m. They never took the help of local police on any of their visits to different places. On both visits to the house of Matloob he has no house search warrants. They left village Kurana at about 1.30/2 a.m and reached Ghaziabad at around 5.30 a.m. At the time of search of house of accused several villagers were collected there. Shamim real brother of accused Matloob had accompanied them from his dabha at the time of search of accused Rashid. Accused Rashid was apprehended by him and Ct.NK Pavithran. The disclosure statement was recorded while sitting in the vehicle and stool was lying outside the vehicle. There were some shops which were opened and were scattered at some distance. It was not too dark at 5.30 a.m. He does not remember if any site plan of the place of arrest was prepared by the IO. No site plan of the Gol Gumbad was prepared by the police. He does not remember where his statement was recorded and who recorded the same. It is correct that he does not remember that his statement was recorded or not u/s 161 Cr.P.C. No statement of Tour and Travel Agents were recorded. No site plan of tour an travel office at Fatehpuri was prepared. He denied the suggestion that accused Kanchid was lifted from his house and put his arrest in the special team Adarsh FIR No.476/02 Page No. 42 State Vs. Kanchid Etc. Nagar. He further denied that accused Rashid was not arrested at New Bus Stand Ghaziabad at the instance of Accused Kanchid. He denied the suggestions put by the Ld. defence counsels regarding arrest, disclosure statement and pointing out of accused persons. He did not accompany police team to Pedesal Rajasthan. On 5.2.03 he went to Padesal Alwar in a private taxi. They have not approached PS Sadar Alwar. The field of Barsem was about at a distance of 2/3 km from Padesal railway station. It was about 2/2.30 p.m when they reached that field. PW Hasan Khan belonged to village Bhatesara. He does not know if he is related to complainant Hammad. They remained near the fields upto 6.30/7 p.m. From the spot they have gone to PS Padesal, Alwar. He does not remember if any DD entry was made in the PS Sadar that they had come from Delhi and effected the recovery. He has further stated that it is correct that IO had having copy of FIR and copies of the relevant record of the FIR registered at Alwar. He does not know who put the blood on ustra. In his presence ustra was recovered at the pointing out of accused Rashid Chairman and at that time there were blood and hairs on ustra. He does not know if he visited the house of Shakil s/o Kurat Ullah during the first visit to Kurana. He also does not remember if he ever met Shakil along with IO or he ever saw him. He did not make any departure or arrival entry of their visit to Ahmedabad. IO had made an entry in this regard. In Ahmedabad FIR No.476/02 Page No. 43 State Vs. Kanchid Etc. entry was made in PS Rakhial. He denied the suggestion that no recovery of ustra was affected in his presence. He denied the suggestion that first 3 pages of the charge sheet is in different ink than from the rest of the pages. (the first two pages in different ink from rest of the charge sheet). He has seen CD and found no entry in the CD regarding preparation of the charge sheet. The entire page 1 of the charge sheet is in his handwriting. He further stated that list of witnesses, internal CD, disclosure of accused Kanchid are in his handwriting and disclosure statement of accused Rashid and Matloob are in the handwriting of IO. Rest of personal search memo, arrest memo, conviction slip, address verification, statement of some witnesses are in his hand. He has no knowledge if IO has mentioned this fact in CD. He has further stated that he does not recollect on which direction the churiwala gali is situated from Jama Masjid. No public person was asked to join the investigation in churiwalan gali. No public person gathered at the spot at the time of apprehension of accused Matloob. He does not recollect at what time they went to Hapur Kurana. He cannot say it was morning, evening or afternoon time. In his presence IO had not checked the passbook and bank account of accused Matloob. He admitted that except the disclosure statement of accused no evidence was collected during investigation of handing over the money to Tayyab and Kanchid by accused Matloob. He does not remember for how many FIR No.476/02 Page No. 44 State Vs. Kanchid Etc. days accused Kanchid was interrogated by them. Prior to arrest of accused Kanchid they never went to village Kurana for investigation of this case.
39. PW32 SI Attar Singh has deposed that on 03.08.02 he was posted in PS Sadar Alwar and on 4.8.02 he went to Mortuary along with Ct.Surta Ram and got the post mortem conducted on the deadbody of unknown person. In cross examination he has stated that the hospital authorities had handed over the dead body of the said unknown person to him. NO memo of receiving of dead body was prepared. He had not joined the last rites ceremonies. He is not aware of any village Bhatesra exists in Alwar.
40. PW33 Ct.Ajay Kumar is the witness from Rajasthan Police who has deposed that on 3.8.02, he alongwith SHO went to village Padesal. In Jawar field one dead body of a male was lying in naked condition, having cut mark on the neck and intestine had come out from the stomach. SHO gave him rukka and he got the case registered vide FIR no.225/02. He proved the copy of FIR Ex.PW30/D. In cross examination he has stated that Padesal railway station is 25 km from PS Alwar. They went to the spot in official gypsy. He does not know at what time they FIR No.476/02 Page No. 45 State Vs. Kanchid Etc. started from PS for the spot. He does not know at what time SHO handed over the rukka to him. He does not recollect at what time the FIR was got recorded. The panchnama was prepared and deadbody was removed to hospital in Alwar for post mortem.
41. PW34 Muzeeb Ahmed has deposed that in the month of Jan.2003 he joined the investigation and the person who was with the police at that time pointed out towards the main road nursery and that person told that they had parked the vehicle there in August 2002 and from there they had abducted Isha. The person who was with the Police was Kanchid. He pointed towards accused Rashid as Kanchid. Pointing out memo is Ex.PW28/D. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has admitted that due to lapse of time he could not identify accused Kanchid. VOL. at that time when he had pointed out he was not having beard. In cross examination he has stated that his statement was recorded by the police. Hehad read his statement and signed the same. Ex.PW28/D was the document regarding his statement. He had gone to the round about before the nursery for starting the generator. He does not know Isha and Hammad.
FIR No.476/02 Page No. 46 State Vs. Kanchid Etc.
42. PW35 Dy.Jailor KP Chandila is the witness from Agra District Jail and he has deposed in his testimony that on 3.4.03 on the direction given by CJM Bulandshahar on the application of SI Ramesh of Delhi Police regarding period of detention of accused Rashid, Kanchid and Tayyab, he mentioned the details on Ex.PW35/A on its reverse. AS per record accused Rashid and Moinuddin remained in JC in case FIR no.404/00 u/s 302 IPC PS Gulawati from 27.11.00 to 27.5.02. Accused Kanchid remained in Jail from 29.11.00 to 28.7.01 and Tayyab remained in jail from 4.4.01 to 21.7.01. In cross examination he has stated that it is correct that his statement was not recorded by Delhi Police. It is correct that there is overwriting/cutting in the period of detention of accused Rashid and Moinuddin at portion C. It is correct that Ex.PW35/A is not in his handwriting.
43. PW36 Viraf is the witness from IDEA Cellullar Ltd. and he has deposed in his testimony that he has seen letter dated 7.2.03 addressed to Special Team, Crime Branch signed by Shyam Sunder Prajapati, which is Ex.PW36/A regarding call details of telephone no. 9824043655 and 9824082225 and the details for the period 20.7.02 to 10.8.02 were provided to the police. He proved the same Ex.Pw36/B. He has not seen FIR No.476/02 Page No. 47 State Vs. Kanchid Etc. Shyam Sunder Prajapati writing and signing in the discharge of his official duties. In cross examination he has stated that he did not provide the said letter to the police. Letter Mark PW36/A was not prepared by him or under his instruction. Police never recorded his statement.
44. PW37 Ct.N.K Pavithran has deposed that on 30.1.03 he alongwith other police officials went to Alwar where accused Kanchid pointed towards field, on service road, the place where they had killed and thrown the dead body at a little distance. He proved pointing out memo Ex.PW1/14. The owner of the field came there and they went to PS Padesal. On 4.2.03 he alongwith IO and other staff and accused Kanchid went in search of other accused in UP. IO received an information that accused Rashid has gone to Ghaziabad and thereafter they reached at Ghaziabad bus stand where accused Rashid was pointed out by accused Kanchid. Accused Rashid started running from there. He with the help of HC Rajiv apprehended accused Rashid. He further deposed the versions of PW31 regarding arrest, personal search and disclosure statement of accused. He further deposed that thereafter they all went to Tours and Travel office near Old Delhi Railway Station which was pointed out by accused Rashid from where Rashid, Tayyeb and Kanchid had boarded the bus. The Pointing out memo is Ex.PW31/F. He identified accused FIR No.476/02 Page No. 48 State Vs. Kanchid Etc. Kanchid and Rashid. On 13.01.03 again said on 13.2.03 IO received an information that accused Matloob has gone to Old Delhi to meet some of his relative in the morning. He alongwith other police officials and accused Rashid went to Churiwalan and at about 5.30 a.m, on the road accused Rashid pointed out towards accused Matloob who was coming from opposite direction and he was apprehended. He further deposed the version of PW31 regarding arrest, personal search and disclosure statement of accused. Thereafter accused Matloob took the police party to Bullandshahar Old Chungi where accused had given money to accused Tayyeb and Kanchid and he proved the pointing out memo Ex.PW31/L. Some telephone bills were also recovered from accused Matloob at the time when he was apprehended which were seized vide memo Ex.Pw37/A. He proved the bills Ex.PW37/A1 to A2 (objected to). In cross examination he has stated that they had gone to Rajasthan by private taxi. He does not know who made the payment for the said vehicle. He does not remember if petrol was filled in the said vehicle on way to Rajasthan or way back to Delhi. IO did not join any police from Rajasthan in the investigation. He does not possess any document regarding his visit to PS Padesal except pointing out memo Ex.PW1/14. He denied the suggestion that he did not accompany IO to Rajasthan and no investigation FIR No.476/02 Page No. 49 State Vs. Kanchid Etc. was carried out. They visited village Kurana in private taxi. He does not know the name of the driver who was plying that vehicle. He does not know if the statements of the villagers were recorded by the police or not. In his presence no entry of the vehicle, arrival of police staff and departure of police staff was made in any of the PS during their two visits in UP. He denied each and every suggestion put by the Ld. defence counsel. He further stated that he cannot say who wrote the arrest memo of Matloob. However, pointing out memo was written by IO. It is correct that in his presence during the investigation none person said to the IO that he saw Matlub giving money to Kanchid or Tayyab. He does not remember where IO got the information from informer about the presence/whereabout of Matlub. IO did not record the statement of driver of private vehicle used for the apprehending Matlub. He cannot say the difference between Hapur Chungi and Bulandshahar.
45. PW38 Insp.Ramesh Chandra is the IO of this case and he has deposed in his testimony that on 25.1.03 the case file was entrusted to him and it was revealed that incident had taken place on Saturday whereas in the complaint it was mentioned as Sunday and he pointed FIR Ex.PW5/A, portion A to A in this respect. On 25.1.03 he alongwith his staff went to Shahinbagh, Delhi and examined the complainant and recorded his FIR No.476/02 Page No. 50 State Vs. Kanchid Etc. supplementary statement Ex.PW38/A to the effect that when his father had left the village that day was Jumma and since he was in tension as such he gave the date of incident as 3.8.02 instead of 2.8.02 in his missing report dated 16.08.02. Thereafter he went to the houses of Ayub, Shah Nazar and Thekedar Ishaq Khan and recorded their statements. On 27.1.03 he recorded the statement of Nisar Ahmed Hafizji. On 27.01.03 he went to the complainant and collected the telephone number of Samir Rajput whose daughter was getting married in Ahmedabad. He made him call who inturn informed that deceased Mohd. Isha who was his Maamu and informed that he remained in Ahmedabad from 22.7.02 to 1.8.02 and on 1.8.02 at 10 a.m he was made to board train to Delhi. On 28.01.03 at about 9/9.15 p.m they were present at Okhla where Insp.KP Singh received secret information that one person who claimed himself to be Raja would be reaching the market near Surya Sofital Market to meet one of his associate at 11 a.m and Raja was involved in truck robbery cases in UP and had abducted one person from Delhi and murdered him. They took their positions and at about 11 p.m one person came from the traffic light Mathura Road and at the instance of secret informer Raja was apprehended. He made disclosure statement regarding the commission of present case crime alongwith his co-accused. He deposed the version of PW27 regarding arrest, personal search and disclosure statement made by FIR No.476/02 Page No. 51 State Vs. Kanchid Etc. accused Kanchid wherein he has disclosed about murder of one Fajju r/o Baghra and triple murder case from PS Gulabti. He also met Tayyab who was in jail and involved in murder cases. He further disclosed that he was bailed out and Rashid gave him telephone no.22922 and 22578 to remain in touch and provide good job. On 25.7.02 Raja gave telephone to Rashid Chairman on phone no.29922 who told Kanchid to come to his residence alongwith Tayyab as he had to talk something important. Kanchid and Tayyab reached at the residence of Rashid@Chairman where Mein Khan was present and introduced Kanchid to Pradhan Matloob, elder brother of Mein Khan where Rashid, Mein Khan and Matloob told Kanchid that during election of 1999 in village and Zila Panchayat, deceased Mohd. Isa, his son Hammad had contested against Raisuddin their brother whereby Raisuddin won the election and after 4-5 months Raisuddin was killed at Hindustan Dhaba in which Mohd.Isha and his son Hammad were involved. Mohd Isha and his son had full control over the politicians, police and administration as such they could not take revenge of the murder of their brother Raisuddin and they are in need of help. He also disclosed the motive behind killing of Mohd. Isha. On 29.01.03 he alongwith his staff and accused Kanchid went to Nizamuddin, near Gol Gumbad where 2/3 public persons were asked to join the proceedings where one Muzeeb Ahmed r/o 1-2 Panchpiraan near Surya Petrol Pump FIR No.476/02 Page No. 52 State Vs. Kanchid Etc. agreed to join. Accused Kanchid pointed out towards the Mathura road from where the deceased was abducted. The pointing out memo is Ex.PW27/B. Thereafter they went to Old Delhi Railway Station where accused Kanchid pointed out towards Tours and Travel cabin, the pointing out memo is Ex.PW31/A. On 30.1.03 after obtaining permission, he alongwith Ct.Vikkal, Ct.Pavitran and accused Kanchid departed for Alwar. One Bhajan Singh and another Amar Singh were working in the fields and joined in the investigation. Thereafter accused pointed out towards Birsan field, the place where on 2 - 3.8.02, deceased was taken out from maruti car and murdered alongwith co-accused except Matloob. He prepared pointing out memo Ex.PW1/14. Thereafter they went to PS Sadar. On verification it was found that on 3.8.02 where accused Kanchid had pointed out, a dead body had been recovered and in that connection FIR no. 225/02 u/s 302/201 IPC was found registered at PS Sadar. The hue and cry notices were tallied regarding the identity of the deceased which matched with each other. The hue and cry notice of PS Sadar was shown to Kanchid and he identified the photograph to be that of deceased Mohd. Isha. On next day he moved an application dt 31.01.03 in the court of Addl.CJM (I) Alwar Ex.PW38/B. The Hon'ble Court has given direction to SHO for handing over the file. SHO told him that he will hand over the same after obtaining order from his seniors who were out of FIR No.476/02 Page No. 53 State Vs. Kanchid Etc. station. He left one constable Vikkal there to collect the record. On 01.02.03 he alongwith other staff took accused Kanchid to Sultanpuri and on the pointing out of accused Kanchid reached at H.No.B-349 Jagdamba Market, Aman Vihar, where house owner Etaham Ul Haq met and he was enquired about accused Tayyab who disclosed that he was residing as tenant and when police verification regarding the tenant was carried out and police asked for his photograph,he left the house four months ago. Thereafter he alongwith accused and other police officials went to village Kurana and raid was conducted at the house of Prahan Matloob and Rashid Chairman but none was found there. Thereafter they went to the house of Shakil Ahmed in village Kurana where Shakil Ahemd met them and enquiries were made from him who disclosed that niece of his wife was engaged to the son of thekadar Ishaq and deceased Mohd. Isha was mediator. After some day there was remour regarding the character of the girl and engagement was on the verge of breaking. On 30.7.02 Shaqil Ahmed had gone to the house of Mohd.Isa to discuss the matter where he came to know that he had gone to attend some marriage at Ahmedabad. Shakil Collected the telephone number from his house to contact at Ahmedabad. On 01.08.02 at about 7.30 a.m he again gave call at Ahmedabad and informed about the above fact. Mohd. Isa informed him that it would not happen and after 5-6 days he would return home. It was FIR No.476/02 Page No. 54 State Vs. Kanchid Etc. told by Mohd. Isha to him that he would leave Ahmedabad on the same day at 10 a.m and would reach Delhi on 02.08.02 at about 8 a.m and would visit the residence of thekadar Ishaq Khan at Nizamuddin. He also asked Shakil to meet him at the house of Ishaq Khan. He recorded the statement of Shakil Ahmed on 1.2.03 which is mark PW38/X. ON 2.2.03 Ct.Vikal produced the case file of FIR no.225/02 and exhibits of the said case were deposited in the malkhana. On 02.02.03 they went to the house of Nisar where complainant Mohd. Hammad met them who was shown the photographs of dead body and he identified that photograph. ON 3.2.03 they went to village Kurana with accused Kanchid where secret informer informed them that accused Rashid Chairman had gone to Ghaziabad. He alongwith his team and accused Kanchid reached Ghaziabad Bus Stand. AT about 5.30 a.m accused was pointed out by Kanchid. He stopped him on the way and he was apprehended with the aid of HC Rajeev Mohan and Ct.Pavithran. He gave his name as Kasim and then Hasim. Accused Kanchid told him that he should not conceal the fact as police were aware of the facts. During interrogation he admitted his guilt. He further disclosed about his arrest, personal search and disclosure statement as per version of PW31. ON 4.2.03 he alongwith both the accused Kanchid and Rashid Chairman, on court question Rashid led the police party to Old Delhi railway station where there were cabins of tours FIR No.476/02 Page No. 55 State Vs. Kanchid Etc. and travels and pointed out the place from where they had left for Ajmer at about 11.30 p.m on 25.07.02 and where Moin Khan had given Rs.5000/- to Tayyab Khan for expenses and also told that after he would commit the murder, the balance amount of RS.50,000/- would be paid to him. The pointing out memo is Ex.PW31/F. He further deposed that on 5.2.03 the accused was taken to Alwar and near railway station Padesal, on the directions of accused Rashid Chairman where Balbir Singh and Hassan Khan public persons were joined in the investigation. Accused Rashid Chairman led them near the bushes and took out a green colour polythene bag. On opening, it was found containing another polythene which was also opened and was found containing razor. There were dry blood stains in the polythene which was inside the green colour polythene. The razor was in folded condition when it was opened. It also contained dry blood on blade as well as handle. There were some hair sticked on the blade. The total length of the razor was 25.5 cms, blade was 10.8 cms and handle was 14.5 cms again said 14.7 cms. On folding the length of razor was 16 cms. On the handle of the razor "Man Beauty Bander" was written. The sketch of the knife is Ex.PW9/1. It was seized vide memo Ex.PW9/2. He identified the razor Ex.PX. He further deposed that thereafter accused Rashid led them to field near the service road where barsim (chaara) was sown. Thereafter accused led the police party inside the field and pointed FIR No.476/02 Page No. 56 State Vs. Kanchid Etc. out the place where in the intervening night of 2-3.08.02, deceased Mohd. Isa was brought down from a maruti car alongwith his co accused Kanchid, Moin and Tayyab and slit his throat with the razor and also caused injury in his abdomen. The pointing out memo is Ex.PW31/G. He prepared the site plan of the place of recovery of razor and place of occurrence which is Ex.PW38/A. He examined the panch witnesses to the recovery of dead body. He examined Mohd. Anas and Mohd. Isab who participated in the last rites of the deceased The seizure memos of Exhibits of FIR no.225/02 were shown to him and he proved the same Ex.PW1/9 to Ex.Pw1/12. Other documents are Ex.PW1/1 Ex.PW1/30, the photographs are Ex.PW1/2 to Ex.pw1/8 and negatives Ex.PW4/A1 to A5, site plan Ex.PW1/13, Ex.PW30D, Ex.PW30/B&C, Ex.PW30/E and F. He proved the order of transfer Ex.PW30/D1. ON 06.02.03 he alongwith other police officials and accused Kanchid and Rashid went to Ahmedabad and reached there on 7.2.03. They went to Chaurari Chowk Road, Bapu Nagar and one Nasim Rajput was joined in the investigation. Both the accused pointed out house no.532/106 and disclosed that accused Kanchid and Tayyab Khan stayed in the said house from 27.7.02 till 1.8.02. The pointing out memo is Ex.PW21/A. Thereafter they went to H.No. 764/5173 where Tanvir Alam met who disclosed that mobile phone no. 9820482225 was with his friend Afseen Rajput who had gone to Surat. FIR No.476/02 Page No. 57 State Vs. Kanchid Etc. He proved application for call details Ex.Pw38/B and details were received vide mark PW36/A and B. The calls were made from above mobile to landline no.22578 installed at Hindustan Dhaba run by accused Matloob. Thereafter they went to H.No.325/80 Gujarat Housing Board and met Sameer Rajpur who produced marriage invitation card Ex.PW20/A and B which was seized vide memo Ex.PW20/C. He proved his statement Ex.Pw38/C. Thereafter they came to Delhi and proceeded for Village Kurana in search of accused Matloob and Moinuddin. On the pointing out of accused Kanchid they reached near Nai Masjid in village Kurana where one person namely Baliquddin s/o Abdullah met them and he was joined in the proceedings. Accused Kanchid pointed out towards a gher which was having big iron gate with two rooms and pilsan tree inside. Kanchid pointed toward the baithak, the place where on 25.7.02 he alongwith accused Tayyab Khan, Moinuddin, Matloob Ahmed and Rashid Chairman had planned the commission of murder of Mohd Isa, pointing out memo is Ex.PW28/A. On 13.02.03 he received secret information that accused Matloob Ahmed has come to his relative to celebrate Eid in 2280, Gali Churiwala, Jama Masjid, Delhi and would leave that place early in the morning. Thereafter he alongwith the staff and accused Rashid went to Jama Masjid near gali Churiwalan. At about 5.30 a.m one person was seen coming from the opposite side. Again said the informer was with them. On FIR No.476/02 Page No. 58 State Vs. Kanchid Etc. pointing out of informer that person was apprehended. He disclosed his name as Matloob Ahmed. He was interrogated and his he was arrested & his personal search was conducted vide memo Exz.PW31/H and J. In the personal search of accused two telephone bills of telephone no.22578 and 229896 were recovered and taken into possession vide memo Ex.PW37/A and A1 &A2. He has further stated that disclosure statement of accused was recorded which is Ex.PW31/K. He has further deposed that accused Rashid Chairman and Matloob pointed out old Chungi Hapur and both the accused told that was the place after one week of the murder of Isha where Rs.50,000/- was given. to Tayyab and Kanchid. Pointing out memo is Ex.PW31/L (Objected to). Thereafter he, accused Matloob and his staff went to village Mursadpur where accused pointed out a clinic where a persons name came to know as Dr.Matloob was sitting and he has stated that about four months ago the car bearing no. DL 4CA 6732 was sold to him after committing the murder of Isha. The said car was taken into possession vide memo Ex.PW13/A and its documents were taken into possession vide memo Ex.PW13/B. ON 16.02.03 accused Matloob pointed out tours and travel cabin outside old Delhi railway station and told that on 25.7.02 at about 11.30 p.m accused Kanchid, Rashid Chairman and Tayyab Khan had boarded a bus from there for Ajmer and Rs.5000/- were handed over to Tayyab Khan by accused Moinuddin. ON FIR No.476/02 Page No. 59 State Vs. Kanchid Etc. 14.03.03 he collected the sample seal of the previous IO of FIR no.225/02 PS Sadar, Alwar and deposited in Malkhana of PS- HN Din. He has further deposed that on 18.03.03 the exhibits were sent to FSL, Malviya Nagar, New Delhi. The criminal record of accused Moinuddin, Rashid and Kanchid are mark A1 to A4. He also collected the details of detention period of accused persons, the details is Ex.PW35/A and his application is Ex.PW38/D. On 08.04.03 he collected the copy of Kalandra Ex.PW28/E alongwith document Ex.PW38/F to G. He collected the record of registration of Maruti car no. DL 4CA 6732. On 21.04.03 he collected the FSL report which is Ex.Pw2/1 and 2. He identified all the accused persons. He also obtained the opinion regarding weapon of offence. On 23.4.03 Dr.PS Chaudhary opined that injuries on the person of deceased could be caused by weapon of offence i.s Ustra Ex.PX and it was again sealed with the seal of general hospital, Alwar. He moved application before Sh.BB Aggarwal District & Sessions Judge Ex.PW28/G for production of accused Moinuddin. The order of the court is at reverse of application. On production of accused he procured PC remand. He formally arrested him vide memo Ex.PW38/J. he recorded his disclosure statement Ex.PW38/L. Accused Moinudeen led the police party to tour and travel cabin and pointing out memo Ex.PW38/M was prepared. He searched co-accused Tayab at various places but he could not be traced. FIR No.476/02 Page No. 60 State Vs. Kanchid Etc. Thereafter accused Moinuddin led them to Gol Gumbadh at Mathura Road where he had abducted Mohd. Isa in a car with Kanchid and Tayyab. Moinuddin disclosed that Mohd Isa was abducted at about 11.45 a.m on 2.8.02 in a car, pointing out memo is Ex.Pw38/N. Thereafter on 12.6.03 accused Moinuddin was taken to Padesal railway station where he pointed out that deceased Mohd. Isa was brought in a car by Kanchid, Tayyab, Rashid and he himself on the night of 2/3.8.02 and Rashid Chairman, Kanchid and Tayyab alighted from the car and took Mohd. Isa in the fields of Jawar Bajra. He took a turn and brought back the car and waited for the accused. After the murder of Mohd Isa by accused Rashid Chairman, Kanchid and Tayyab, he took them to village. The Pointing out memo prepared by him is Ex.PW38/O. He further deposed that on 8.6.03 again said on 28.05.03 proceedings u/s 82/83 Cr.P.C against accused Tayyab were issued vide application Ex.PW38/P and on 2.9.03 accused was declared PO by the court. He identified the maruti car no. DL 4CA 6732 Ex.PW38/P1. In cross examination he has stated that it is correct that he belong to Rajasthan District Alwar. After seeing the file he has stated that previous I.O.s were SI Shailender Singh, Insp.Narender Chawla, SI Jaiveer Singh, SI Bahadur Singh. He has not recorded their statements u/s 161 Cr.P.C. It is correct that before this case he had never been the IO in any murder trial case. It is correct that commissioner of police had given FIR No.476/02 Page No. 61 State Vs. Kanchid Etc. directions to every PS that the murder trial case would be dealt by the rank of Inspector. He admitted that on the day when this case was transferred to him he was only SI VOL.Insp.K.P.Singh was the IO of this case prior to him and he had investigated the case under the close supervision of Insp.KP Singh and this was in the knowledge of concerned ACP. Insp.KP Singh had assigned this case on 25.1.03 and he had given verbal instructions.. He admitted that this case was registered on the basis of DD no.6A lodged by Mohd Hammad. It is correct that the contents of DD no.6A Ex.PW5/B are the same contents of FIR Ex.PW5/A. He admitted that on the basis of DD Ex.PW5/B and FIR Ex.PW5/A, Mohd. Shakeel s/o Qudrat Ullah was the suspected person. VOL. he had examined Shakeel but on enquiry found that he was not involved. He had not got the custodial interrogation of Shakeel on the basis of DD Ex.PW5/B and FIR Ex.PW5/A. He interrogated Shakeel that on 2.8.02 he accompanied him to village Kurana and he told him that he had left Mohd. Isha at Nizamuddin. He went to Khurana for interrogation of Shakil, accused Kanchid and his staff was accompanied with him. Hammad was not accompanied them to village Kurana. Inspector KP Singh was also not accompanied them. He had not enquired about the wearing clothes of Mohd Isa from Shakil. He explained the contents of FIR to Shakeel. DD regarding going to interrogate Shakil is not available on judicial file. Shakil told him that he FIR No.476/02 Page No. 62 State Vs. Kanchid Etc. alongwith Mohd. Isa left from H.NO.3 Nizamuddin Basti together and at Nizamuddin, Shakil left Mohd. Isa. He had not interrogated Shakil and Hammad together. He does not know if he prepared pabandinama of Shakil. (After seeing the file he has stated that no pabandinama was prepared). He has not recorded the statement of SI Baldar Singh. It is incorrect to say that the blood of any group is easily available. It is quite possible that blood of B+ve is easily available. The secret information was received by Insp.KP Singh in the field regarding coming of accused Kanchid; where no roznamcha register was being carried so, there was no question of reducing the same in writing. The reached in market of Surya Sofital in tempo traveller no.DL1CF 4280. When they reached there the hotels were all open and shops were closed. They did not ask any person from the hotel to join the investigation. They did not join any public person in the investigation at the time of arrest and personal search of accused Kanchid. VOL. at that time it was 11 p.m and all the hotels/dhabas were closed. Kanchid was wearing pant shirt and coat at that time. From his personal search a purse, few rupees and some other articles were recovered. He denied the suggestion that accused was apprehended from his residence at Shahid Nagar. ON 30.1.03 he had gone to Alwar. Insp.KP Singh did not accompany him. They went to Alwar several times in different vehicles. He does not remember how much payment was paid FIR No.476/02 Page No. 63 State Vs. Kanchid Etc. by him for each such vehicle. He had claimed the expense for each vehicle. It is not necessary to inform the local PS if they have to investigate a case within their jurisdiction. He cannot produce any document regarding their presence in Alwar on 30.01.03 though they had stayed in Rajasthan Police Guest House on that night. Before going to the spot on 30.1.03 they had no information that a case u/s302 IPC was registered there. On 30.1.03 he did not make any entry in PS Sadar. It is correct that he does not possess any document to prove his presence in Alwar on 30.1.03 or 31.1.03. On 5.2.03 at the time of recovery of ustra he did not seek any assistance nor he sent any information to the concerned PS about the said recovery. He denied the suggestion that ustra was not recovered at the instance of accused from Alwar and accused was never taken to Alwar for recovery at their instance. It is correct that he did not get the spot pointed out by the accused persons, photographed from the photographer but he had clicked the photographs of the spot with his own camera but the positives were not clear so did not place them on record. The roll in which he had clicked the pictures of the spot was not kept as case property of the case and the camera has been misplaced. He has further stated that he has received file of FIR no.225/02 There is no seizure memo prepared in the aforesaid FIR regarding seizure of photographs. It is correct that judicial file contained panchnama also. He FIR No.476/02 Page No. 64 State Vs. Kanchid Etc. denied the suggestion that there was index/inventory on the judicial file received by him or he deliberately did not place on record. The maruti car no. DL 4CA 6732 was driven to Delhi by one of his staff member whose name he does not remember. He did not obtain any police assistance nor inorfmed any PS whenever he visited village Kurana for investigation of the present case. No report was lodged with any PS in UP regarding seizure of the maruti car referred above. He had not joined any public person at the time of arrest and personal search of accused Rashid. It is correct that there were passengers available at Ghaziabad from where accused Rashid was arrested, however, they refused to join the investigation. He denied the suggestion that accused Rashid was called from his village to their office of Crime Branch at Prashant Vihar, Rohini and falsely arrested him in the present case. He further denied the suggestion that maruti car no. DL 4CA 6732 was brought by its owner to the crime branch and falsely shown to have seized at the instance of accused Rashid. He further denied that accused Matloob Ahmed was also called from his village and falsely arrested. He has further stated that hue and cry notices of Isa Mohd were got published by him as well as the IO from the kidnapping cell and both the notices are same. They are not on file. The notice which was got published from PS Nizamuddin is Ex.PW6/DA. It is correct that in the said notice the date of missing is FIR No.476/02 Page No. 65 State Vs. Kanchid Etc. mentioned as 03.08.02. It is correct that in the hue and cry notice Ex.PW6/DB issued by ACP Anti Kidnapping Cell, Delhi Police, same date is mentioned. The police of Rajasthan had not sent alongwith case file the clothes of deceased Mohd. Isa i.e. the white colour kurta pajama and a pair of shoes without laces. These clothes of the deceased were not recovered by him during investigation. He has seen the copy of Kalandra Ex.PW38/G in which again the date of Mohd. Isa arriving in Delhi is 3.8.02 from Ahmedabad is mentioned. It is correct that he had not seen the dead body of Mohd. Isa. It is correct that Mohd. Hammad also did not see the recovered dead body. It is correct that he did not make any effort for DNA test on the dead body of the deceased recovered in the present case. He denied the suggestion that the dead body recovered from Alwar was not of deceased Mohd. Isa. It is correct that in the statement of any of the prosecution witnesses including Mohd. Hammad, this fact has not come on record that Mohd. Isa was seen in the company of any of the accused in the maruti car no.DL 4CA 6732 or anywhere else. The chargesheet in the present case is not in his handwriting. He does not know in whose handwriting it is though it is bearing the signatures of Insp.KP Singh. It is correct that Insp.KP Singh never accompanied him to Rajasthan nor any recovery was effected in his presence. Ex.PW38/A is in his handwriting. Ex.PW27/A disclosure statement of accused Kanchid is not in his FIR No.476/02 Page No. 66 State Vs. Kanchid Etc. handwriting. He had verified the contents of FIR relating to the present case Ex.PW5/A and found that the date mentioned therein as 3.8.02 was incorrect. He has no knowledge till what time witness Shakil remained in India and when he left for Dubai and he did not record any statement of his family members in this regard since he did not find it necessary. He denied the suggestion that he has falsely implicated accused persons at the instance of complainant Mohd. Hammad.
46. I have also perused the testimony of Defence Witness DW1 Dharambir Singh examined on behalf of accused Rashid. He has deposed that he is working as clerk in Morepur Kisan Sewa Sehkari Samiti Ltd., Bhatiana, Vikaskhand, Hapur, Ghaziabad and he has brought the summoned record of Rashid Ali s/o Abdula Khan village Kurana containing signatures of Rashid Ali. In sale bill the entry of Rashid Ali has been made at sr.no.3 dated 2.8.02, he proved copy of the same Ex DW1/A. He also proved copy of receipt no.1917 dated 2.8.02 which is the sale cash memo of fertilizer purchased by Rashid Ali, copy of which is Ex.DW1/B. In passbook at sr.no.6 dated 2.8.02, the entry of Rs.6300/- is also in his handwriting which is Ex.DW1/C. Rashid is known to him for last about 20 years when he got membership of the samiti. In cross examination he has stated that he can identify each and every member by face and his name. It FIR No.476/02 Page No. 67 State Vs. Kanchid Etc. is correct that the passbook has been shown to him by the Ld. defence counsel and then he saw the same and stated in respect of this passbook. He used to make entry in the passbook whenever it is produced before him by the member himself. He cannot say whether Rashid used to sign in Hindi language also or not. Except member they cannot issue fertilizer to any other as per their bi-laws. VOL. the law is not brought by him today. IT is correct that there is no initial of Rashid at point PX3. It is correct that the original first copy of receipt bearing no. 1917/46 was handed over to its holder Rashid Ali. They did not take any identification proof at the time of issue of fertilizer to the non member. He denied the suggestion that the signatures available on the passbook at point A are not similar with the signatures available on register at point PX4. He denied the suggestion that Rashid Ali did not come to the Samiti Office for issuance of fertilizer in his name or that he has made false entry in the passbook and register just to save him from the legal consequences of this case.
47. In view of the overall analysis of the testimonies of all the witnesses it is revealed that in this case none of the witnesses have seen the incident with their own eyes. Hence this case depends on circumstantial evidence. It is well settled law that observed by the Apex court in, Tanviben Pankaj Kumar Devtia Vs. State of Gujrat 1997(2) FIR No.476/02 Page No. 68 State Vs. Kanchid Etc. CC cases SC 98 that court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some time unconsciously it may happen to be a short step between moral certainty and legal proof -it has been indicated by this court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. And our Hon'ble High court of Delhi in Raj Mani Vs. State has held that where the evidence last seen together specially considering the evidence of the PWS cannot be said to prove with reasonable certainty that the circumstances of last seen together has been established beyond a shadow of doubt by the prosecution, the state of circumstances of last seen together being not free from suspicion. No finding with regard to the proof of circumstances of last seen together can be recorded.
48. I have also perused the case laws relied upon by the Ld. defence counsel. In case Law (2007) 6 Supreme Court Cases 32, Sujoy Sen Vs. State of West Bengal it is stated in headnote that:-
Criminal Trial - Circumstantial evidence - Link in the chain of circumstances - If established - On the testimony of the first informant and what was stated in the FIR, held, link in the chain of circumstances not established - conviction reversed, Penal Code, 1860 - Section 302' In case law (2006) 10 S.C.C 183, Sunny Kapoor Vs. State, it is stated in FIR No.476/02 Page No. 69 State Vs. Kanchid Etc. head note that :-
'Criminal trial - Circumstantial evidence - Guilt not established - Held, for proving guilt of an accused u/s 302, the prosecution must lead evidence to connect all links in a chain so as to point guilt of the accused alone and nobody else - In the instant case, evidence adduced clearly fell short of the requirement and hence conviction of appellant u/s 302/34 unsustainable'.
It is stated in Ramreddy Rajesh Khanna Reddy Vs. State of A.P (SCC P.181 para 26-27) that :-
'It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it may, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. The story of last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration'.
In case law Padala Veera Reddy Vs. State of Andhra Pradesh, 1989 Supp (2) S.C.C 706 it is stated in head note that :
'Criminal Trial - Circumstantial evidence - Held, on facts, circumstantial evidence not sufficient to conclusively establish guilty of accused persons - Conduct of the accused must be seen in its entirety - Mere suspicion not enough - Penal Code, 1860, Secs. 302/34 and Sec. 498A - Evidence Act, 1972, Sec. 8.
'Evidence Act. 1972 - Sec.3 - 'Proved' - Conviction cannot be based on suspicion, however, strong it may be'.
In case law Raghav Prapanna Tripathi & Ors Vs. State of U.P., AIR FIR No.476/02 Page No. 70 State Vs. Kanchid Etc. 1963 Supreme Court 74 (V50 C4) it is stated in head note that :-
'Murder charge Evidence - Circumstantial evidence - appreciation of - Charge against husband of murdering his first wife and her son by gun shots - Ill feeling between accused and his family and first wife after second marriage - Accused present in his village house with first wife and son on day of occurrence - Gun shots heard from house - Accused leaving village same night in his jeep and reaching Lucknow next day where he had second wife - First wife and son disappearing and not seen alive thereafter - absence of any enquiry by accused or other members of his family as to whereabouts of wife and son - Blood stained earth recovered from house in village - Accused absconding after matter, was reported to police - Blood stained clothes belonging to accused recovered from laundry in Lucknow - Police unable to trace out jeep - Circumstances held insufficient to draw sole conclusion that husband committed murders - Penal Code (1860) S.300'.
In case law Mohan Singh Vs. Prem Singh & Anr. (2002) 10 Supreme Court Cases 236 it is stated in headnote (B) that:-
'S.313 - Statement made by accused under - Nature of - Held, not a substantive piece of evidence or a substitute for the evidence of the prosecution - It could certainly be taken aid of to lend credence to the evidence led by the prosecution - But only a part of such statement cannot be made the sole basis of conviction - Statement u/s 313 can either be relied in whole or in part - Where the prosecution evidence disbelieved and the exculpatory part of the statement of the accused u/s 313 not rejected outright as false, held, the inculpatory part of the statement of the accused u/s 313 could not be the sole basis of his conviction'.
IN case law titled Pandra Khadia Vs. State of Orissa , 1992 CRI L.J 762 it is stated in headnote :-
'Evidence Act (1872), Ss.24 & 25 - Confession - Must be unequivocal statement admitting guilt - It must also be addressed to some person - accused going round village shouting that he had killed his wife - It does not amount to confession'.FIR No.476/02 Page No. 71
State Vs. Kanchid Etc. In case titled Manzoor Vs. State of UP , (1982) 2 S.C.C 72 it is stated that :-
'Criminal Trial - Identification - where at the earliest opportunity the eye witnesses failed to mention any identifying features of the accused when they were examined by investigating officer, held on facts, identification of the accused by one of the witnesses nearly two months later in T.I Parade is suspect - Evidence Act, 1872, Sec.9'.
'Criminal Trial - benefit of doubt - prosecution failing to prove the guilt of the accused satisfactorily beyond all reasonable doubt - Hence, the accused must be acquitted- Sec.302 and 34 IPC'.
It is stated in Padala Veera Reddy Vs. State of A.P. (SCC pp.710- 11, Para 10) and in other catena of Judgements that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-
'10. (1) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established.
(2) those circumstances should be of a definite tendency unerringly pointing towards guilty of the accused (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence'.
49. This case was initially registered when deceased Mohd. Issa did not reach in his village at Kuraina. His son PW6 Mohd. Hammad FIR No.476/02 Page No. 72 State Vs. Kanchid Etc. made complaint to the police regarding missing of his father. DD no.6A on which the FIR was lodged finds mention of date 3.8.02 when father of complainant went to his village. Considering the examination in chief of PW6 Mohd. Hammad who is son of the deceased it is revealed that his father has reached Delhi from Ahmedabad on 02.08.02 at about 8/8.30 a.m. In cross examination he has admitted that he has stated before the police that on 3.8.02 at about 11 a.m his father had left for his village alongwith Shakeel s/o Hudratullah. He has stated to the police that on 3.8.02 his father had reached the house of his in laws in Nizamuddin. Further in his examination in chief he has stated that his father had shown his willingness to perform Namaz Jumma at the village. So, I have taken into consideration the calender of the year 2002 and it is revealed that 02.08.02 was Friday i.e. Jumma Day. The dead body of Mohd. Issa was found in Alwar on 03.08.02. So, it may be that Mohd. Hammad has mentioned the date i.e. 03.08.02 due to inadvertence. By mentioning the fact of performing the Namaz of Jumma Day, it seems that Mohd. Issa had reached Delhi at the house of inlaws of Mohd. Hammad on 02.08.02. But to further corroborate the dates, I have also considered the testimony of other witnesses and documents. PW8 Shah Nazar Ali in cross examination conducted by Ld. APP for the State admitted that he reached the house of thekadar on 3.8.02 and it may be possible that Mohd. Isha and Shakil left FIR No.476/02 Page No. 73 State Vs. Kanchid Etc. that house at 11 a.m. In examination in chief he stated the date as 2.8.02. So, the prosecution has itself established by way of cross examination of PW8 that Mohd. Isa reached at the house of thekadar on 3.8.02 and not on 2.8.02. PW12 Nissar Ahmed could not state the exact date and year as he has stated the date as 2nd or 3rd August and year 2001 or 2002. PW16 has also stated that on 3rd instant in the year 2003 but in cross examination conducted by Ld. APP he has stated that correct dated was 02.08.02. In FIR, it has been stated Mohd. Isa had gone to Ahmedabad on 26.7.02 to attend a marriage and he came back to the in-law house of Mohd. Hammad PW6 on 3.8.02 at Nizamuddin and at about 11 a.m Mohd. Isa alongwith Shakeel went to his village. PW6 Mohd. Hammad had given on application for information to SDM Hapur on 10.09.2002 in case title State VS.Mehmood etc. u/s 107/116/151 Cr.P.C which is Ex.PW38/G and in the said application he has stated that on 02.08.02 his father has boarded in Ashram Express from Ahmedabad and on 03.08.02 he reached at Delhi Railway Station he came to Nizamuddin from where he accompanied Shakeel to village but his whereabouts is not known till that date. In this application he has stated the date of coming of Mohd. Isa as 03.08.02 while this application was filed on 10.09.02 after one month of missing of his father and before that on 14.8.02 he had already lodged missing report in the PS. In hue and cry notice Ex.PW6/DA published by PS Hazrat FIR No.476/02 Page No. 74 State Vs. Kanchid Etc. Nizamuddin the date of missing is stated as 3.8.02 and in other hue and cry notice published by ACP, Anti Kidnapping Cell, Delhi Police it has been stated that Mohd. Issa had left for his village Kuraina from Nizamuddin on 03.08.02 and is missing since then. So, in each and every document the date of reaching of Mohd. Issa (deceased) at Nizamuddin is mentioned as 03.08.02. There can be mistake in respect of date in the deposition of PW6 Mohd. Hammad but each and every witness has stated the date as 03.08.02 and even on the documents the date is mentioned as 03.08.02. Even Prosecution after declaring PW8 Shah Nazar hostile established that the date of reaching of deceased Mohd. Isa in Nizamuddin was 03.08.02 and not 02.08.02. I have also perused the rukka Ex.PW7/A and in the said rukka the date of incident is mentioned as 03.08.02 (11 a.m). PW38 Insp.Ramesh Chandra who is IO of this case in his examination in chief has stated that he received investigation of this case on 25.01.03 and on perusal of the record revealed that the incident had taken place on Saturday whereas in the complaint it was mentioned as Sunday and he pointed out towards FIR Ex.PW5/A where it is mentioned that the incident had taken place on Sunday 3.8.02. But 3.8.02 was not Sunday, it was Saturday. So, he has also deposed that incident has happened on Saturday and Saturday was on 03.08.02. It is well settled law that a person can tell lie but documents cannot. As per the testimony of FIR No.476/02 Page No. 75 State Vs. Kanchid Etc. PW1 Bhajan Singh he found the dead body of Mohd. Issa in his fields in Alwar (Rajasthan) on 03.08.02 at about 8 a.m. So, it is quite impossible that a person who reaches Nizamuddin, Delhi on 03.08.02 at about 8 a.m and leaves Nizamuddin as per the testimonies of witnesses at about 11 a.m, his dead body can be found on the same day i.e. 03.08.02 at about 8 a.m in Alwar, Rajasthan. So, in view of this the date of leaving Nizamuddin as per above discussion is 03.08.02 and not 02.08.02.
50. It has further come in evidence of PW6 Mohd. Hammad that his father had left for village Kuraina with one Shakeel who is also a resident of his village. In DD no.6A, on which the present FIR was registered it has been mentioned that on enquiry Shakeel is not disclosing anything. Shakeel was the most important witness in this case because deceased Mohd. Issa lastly accompanied him to village. But the prosecution has not been able to examine him in the court. PW6 Mohd. Hammad had seen Shakeel in the company of his father lastly when they left for village Kuraina together. But Shakeel reached at his village and father of PW6 had gone missing and later on found murdered. On perusal of the file is it revealed that said Shakeel has been dropped by the prosecution vide order dated 24.01.07 which is appended below:-
''24.01.07 FIR No.476/02 Page No. 76 State Vs. Kanchid Etc. Sh Devender, Addl.PP for State.
Accused Kanchid and Rashid in Custody Accused Tayyab Khan PO Accused Matloob and Moinuddin on bail An application has been moved by complainant Hammad duly forwarded by the Addl.PP Sh Devender for dropping the witness Shakil Ahmed alleging therein that the witness is related to the accused Matloob and Moinudin. These allegations are denied by the accused however in view of the contents of the application and for the reason that several opportunities have already been given to the prosecution to produce this witness including last opportunity on 4.3.06 and further opportunities thereafter but the witness has not been produced in court who is reported to be out of India, he is dropped from the array of the witnesses on the request of the complainant and Addl.PP, through (should be 'though') no adverse inference shall be drawn against the accused persons in respect to the allegations that the witness has been one (should be 'won') over by the accused as there is no such material on record.
Now the only witness who remains to be examined is the IO. Put up on 23/2/07 for RPE & SA.
sd/-
ASJ: ND/24.7.07''
51. In view of the above order it has been clearly established that the witness Shakeel was dropped by the Prosecution itself despite the fact that he was the most important witness in this case. In the application filed by the complainant, the plea has been taken that witness Shakeel is related to accused Matloob and Moinudin. As per version of PW6 Mohd. Hammad who is son of deceased Mohd. Isa, Shakeel accompanied his father to village and he was also very well known to complainant and his father. So, this plea is without any merit. Deceased Mohd. Isa went with him allegedly on 02.08.02 but he did not reach in his village and Shakeel reached in the village. PW6 has got written in DD no.6A that on enquiry Shakeel is not disclosing anything. When PW6 who is son of the deceased Mohd. Isa has clearly disclosed in his complaint Ex.PW5/B recorded on FIR No.476/02 Page No. 77 State Vs. Kanchid Etc. the basis of DD no.6A, the name of Shakeel with whom his father had gone to his village, he should have been made an accused by the prosecution because deceased Mohd. Isa was lastly seen with Shakeel. But said Shakeel has neither been made accused in this case nor examined by the prosecution. PW38 IO Insp.Ramesh has stated in cross examination that he had not got the custodial interrogation of Shakeel on the basis of DD Ex.PW5/B. When Shakeel was suspect as per DD Ex.PW5/B, it is not understandable as to why his custodial interrogation was not taken. He was the star witness in this case because this case depends on circumstantial evidence and his testimony was absolutely crucial to the prosecution case. In case law titled Sohan & Ors. Vs. State, AIR 2001 Supreme Court 1380 it is stated in head note that :-
'S.300 - Murder - Appreciation of evidence - Sole testimony of eye witness, who was not only interested being cousin of deceased but also inimical to accused - Non examination of other material witness though available - Other eye witness, whose name was mentioned in FIR, was also not examined - Conviction of accused on basis of uncorroborated testimony of sole eye witness - Liable to be set aside'.
52. Further, the prosecution has examined PW8 Shah Nazar, PW12 Nisar Ahmed and PW16 Mohd. Ayub as witnesses of Last Seen including PW6 Mohd. Hammad. PW6 Mohd. Hammad has not stated anything in his statement recorded on oath in the court that he had seen his father deceased Mohd. Issa in the company of accused persons at any FIR No.476/02 Page No. 78 State Vs. Kanchid Etc. time. Even he has not casted doubt on accused persons in the murder of his father in his statement. PW8 Shah Nazar Ali has stated at on 02.08.02 at about 7.45 a.m when he reached in the house of Thekedar, he met five persons including Isa Pradhan, Mohd. Hammad and he further stated that Isa Pradhan and Shakeel left that place in his presence. PW8 was declared hostile by the prosecution wherein he admitted that correct date of his going to the house of thekadar(contractor) is 3.8.02. From his testimony it is clear that he also saw deceased Mohd. Isa in the company of Shakeel lastly. PW12 Nissar Ahmed is the smandhi of deceased (father in law of his son). From his testimony it is revealed that deceased Mohd. Isa had come to his house on 2nd or 3rd August 2001 and he left his house at about 11/11.30 a.m. He could not tell the exact date as well as year of coming of Mohd. Isa to his house. He deposed the year wrongly. He was also declared hostile by the prosecution on this aspect. In cross examination he has stated that Pradhan and Shakeel left his house in his presence together and no one accompanied them in his presence. This witness has also not stated that he had seen deceased Mohd. Isa in the company of accused persons. Even on perusal of his further cross examination he has stated that he had telephone talk with Isha Pradhan after 10/12 days of his departure from his house. It is the case of the prosecution that Isha Pradhan left the house of PW12 on 02.08.02 and he was found murdered FIR No.476/02 Page No. 79 State Vs. Kanchid Etc. on 03.08.02 in Alwar in the fields of one Bhajan Lal. The version of PW12 regarding talking to Isha Pradhan after 10/12 days of his departure from his house seems to be doubtful. PW16 Mohd. Ayub has stated that in the year 2003 on 3rd instant when he visited the house of Mohd. Ishaq he met Mohd. Isa. One person came there and Mohd. Isa left with him. He is also a hostile witness and in cross examination he has admitted that person who came to call Mohd. Isa was Shakil and they left at about 11 a.m. All these witnesses of last seen have stated that they saw Shakeel and deceased Mohd. Isa going together on that day to village Kuraina and none of the witness has deposed that deceased was seen by them in the company of accused persons. PW7 SI Baldar Singh who is the first IO, in cross examination has stated that Shakil told him that Mohd. Isa did not go with him and Shakil denied the factum of meeting Mohd. Isha at the house of in-laws of Hammad in Nizamuddin area. When all the other witnesses were stating about going of Mohd. Isa with Shakil, it is not understandable as to why no interrogation or arrest of Shakil has been done by PW7. PW38 Insp.Ramesh Chandra who is last IO of this case has admitted in cross examination that in the statement of any of the prosecution witnesses including Mohd. Hammad, this fact has not come on record that Mohd. Isa was seen in the company of any of the accused in the Maruti car no. DL 4CA 6732 or anywhere else. So, last seen is absent in this case and the FIR No.476/02 Page No. 80 State Vs. Kanchid Etc. prosecution could not prove that the deceased Mohd. Isa was seen by them at any time in the company of present accused persons.
53. The Prosecution has examined PW1 Bhajan Singh who found a dead body in his field on 3.8.02 at about 8 a.m. He reported the matter to Alwar Police. He proved photographs Ex.PW1/2 to Ex.PW1/8. PW4 Vinod has also stated regarding taking of photographs. PW1 has stated that 'NAULI' Ex.P1 & 'SAFI' Ex.P2 were seized by the police vide memo Ex.PW1/9 & 10. PW17 Rahim Khan also stated regarding lying of dead body in the fields of PW1. However, the signatures of PW17 are not available on the seizure memo. The prosecution, no doubt has proved that the dead body was found lying in the fields of Bhajan Singh on 03.08.02 because it has also been stated by other official witnesses PW29 ASI Shiv Kumar Sharma, PW30 Ins. Janesh Singh & PW33 Ct. Ajay Kumar who are the witnesses of Rajasthan Police. But the recoveries made by the Police i.e. NAULI Ex.P1 and SAFI Ex.P2 have not been shown to PW6 Mohd. Hammad to establish as to whether these are the same which his deceased father used to have. Also, one tehmat Ex.P3 and currency note of Rs.10/- Ex.P4 (proved by PW30 Insp.Janesh) were recovered. But nothing has been deposed by PW1 Bhajan Singh about recovery of Tehmat and currency note of Rs.10/- nor the tehmat in question has been shown to FIR No.476/02 Page No. 81 State Vs. Kanchid Etc. PW6 Mohd. Hammad to identify whether it belonged to his father or not. PW6 has stated in his complaint that his father was wearing kurta paijama of white colour and shoes without laces. As per photographs the dead body was found naked. No investigation has been carried out as to whether the kurta paijama and shoes of deceased have gone and no recovery of these articles have been effected. PW1 in cross examination has stated that Rajasthan police recorded his statement in the month of March 2002. He found the dead body on 3.8.02 in his fields and again police met him in Jan.2003. It seems that he has deposed falsely in respect of giving his statement to the police in March 2002. So, the version of PW1 is self contradictory and prosecution could not prove that the tehmat, shafi and nauli found at the spot was belonging to deceased Mohd. Isa because these articles have not been shown to PW6 Mohd.Hammad who is the son of the deceased and he was the best witness to identify the belongings of his father.
54. PW5 ASI Sakhi Ram has recorded the FIR of the present case on 22.09.2002 and proved the copy of FIR Ex.PW5/A. He recorded the FIR on the basis of DD no.6A which is Ex.PW5/B and admitted that DD entry was treated as original complaint. I have perused DD no.6A which is Ex.PW5/B. The said DD was recorded on 16.08.02. PW7 SI Baldar Singh FIR No.476/02 Page No. 82 State Vs. Kanchid Etc. has stated that he made endorsement on DD and got the case registered. On perusal of the endorsement, it is revealed that he made endorsement on the DD no.6A on 22.9.02 and got registered FIR no.476/02 of the present case incident u/s 365 IPC. PW6 Mohd. Hammad has stated in cross examination that he had given a written report to the police regarding missing of his father on 14.8.02 but it was registered on 16.08.02. 34. There is no explanation from the side of the prosecution as to why the delay has occurred in recording the FIR. PW7 SI Baldar Singh who is First IO has not even deposed any single word in this regard. It has also not been stated by any of the witnesses as to when this FIR was converted u/s 302/201/120B IPC. There is FIR no.225/02 of PS Sadar (Rajasthan) Ex.PW30/D available on file. But it was a separate FIR against which the IO of Rajasthan Police had already filed an application to close the case being untraced. There is no evidence on record that the present case FIR has been converted u/s 302/201/120B IPC and no proper evidence has been led by the prosecution in this regard and the prosecution has failed to take any step in this regard and miserably failed to bring on record such evidence. In case Law titled Sujoy Sen @Sujoy Kr Sen Vs. State of W.B, (2007) 6 Supreme Court Cases 32 it is stated in headnote © that :-
'Criminal Trial - Appreciation of Evidence - Discrepancy of FIR, if fatal to prosecution - Held, a minor discrepancy in a FIR will not be fatal to the prosecution case - In the present case, discrepancy a major FIR No.476/02 Page No. 83 State Vs. Kanchid Etc. one, since had the first informant seen the accused entering into the house at the time of the incident he would have definitely mentioned the fact in the FIR'.
55. In the present case in hand, the complainant, Mohd. Hammad has not even casted doubt on the accused persons that they have committed the present case incident in the FIR. Even thereafter in his statement recorded in the court as PW6 he has again not stated anything in this respect. PW5 has not stated as to whether the copies of FIR were delivered to Ld.MM and the Sr. Police officials. IN case Law 1979 CRI. L.J. 1159 it is stated in headnote (B) that:-
'Criminal P.C. (2 of 1974), Ss.154 and 157 - F.I.R. - Cognizable offence - Sending report to the Magistrate - Non-compliance - Bound to cast shadow on the prosecution case'.
56. On the other hand the FIR was registered on 22.09.02 while the missing report was lodged on 16.08.02. There is no explanation from the prosecution side in respect of converting the FIR u/s 302/201 IPC. So, all these circumstances create doubt in the mind.
57. PW25 Manjit Singh has sold car no.DL4CA 6732 to PW10 Vijay Singh on 01.03.02 and PW10 Vijay Singh sold maruti car no. DL 4CA 6732 to Matloob Ahmed on 23.06.02 and he proved receipt Ex.PW10/A. PW13 Dr. Matloob Ali has deposed that he purchased the said car from Matloob Ahmed Pradhan on 15.7.02 and he proved the FIR No.476/02 Page No. 84 State Vs. Kanchid Etc. memo Ex.PW13/A. In cross examination he has admitted that vehicle remained with him from 15.7.02 to the date it was taken by the police. This witness was re-examined by the prosecution and and he has again stated that he does not know Matloob Pradhan. He had purchased the car no.DL4CA 6732 from him through a mechanic. He was declared hostile by the prosecution and cross examined by the Ld.APP for the State. He denied the suggestion put by the Ld. defence counsel that the car was in possession of accused Matloob on 2nd or 3rd Aug.,2002. The car was with him. PW26 Naresh Chand,LDC from Transport Authority has stated that said maruti car no.DL4CA 6732 is in the name of Manjit Singh in the record of transport authority. From the above deposition it is revealed that PW25 Manjit Singh was the real owner of the said maruti car and this car was being sold from one person to another without getting it transferred in the Transport Authority record. Sh Manjit Singh sold this maruti car to Vijay Singh, Vijay Singh sold it to Matloob Pradhan (accused in the present case), Matloob Pradhan sold it to Dr.Matloob Ali PW13. The testimony of PW13 is very significant in this respect. As per his version he purchase the said car on 15.07.02 and it remained with him from 15.7.02 to date, it was taken by the police. The present case incident took place on 02/03.08.02. It is clear that at the time of murder this car was not in the possession of accused Matloob Ahmad @Pradhan because PW13 in his FIR No.476/02 Page No. 85 State Vs. Kanchid Etc. cross examination conducted by the Ld.APP for the State when he was re- examined, has denied the suggestion of the Ld.APP that car was in the possession of accused Matloob on 02nd or 03rd Aug 2002. Here, again Ld. APP for the State himself is not sure and certain as to whether the car was in possession of accused Matloob Ahmed either on 02nd or on 03 Aug 2002. The prosecution could not prove that accused Matloob Ahmed was the owner of Maruti Car no.DL 4CA 6732 as on 02/03.08.02, the alleged day of kidnapping of deceased Mohd.Isa and his murder thereafter while as per the case of the prosecution deceased Mohd.Isa was kidnapped by using maruti car no. DL 4CA 6732. There is also no evidence available on file that he took the said Maruti Car no. DL 4CCA 6732 from PW13 Dr. Matloob Ali on 02/03.08.02 because PW13 has not stated anything in this respect. So, presence of accused Matloob Pradhan as well as availability of maruti car no. DL 4CA 6732 could not be established by the prosecution at the alleged place from where deceased Isa Pradhan was kidnapped i.e. gole gumbaz, Nizamuddin.
58. PW11 Fayaz has stated that on 02.08.02 at about 10/10.30 a.m he saw Maieen in Maruti Car no.DL 4CA 6732 at Mathura Road near Nursery in the area of Nizamuddin near Gol Gumbaz. It was vehicle of Matloob. PW34 Muzeeb Ahmed is the witness who proved pointing out FIR No.476/02 Page No. 86 State Vs. Kanchid Etc. memo of the place from where deceased Isha was abducted as Ex.PW28/D. He has stated that accused Kanchid pointed out the place in the month of Jan.2003. But he could not identify accused Kanchid and he identified him only after being declared hostile by the Ld. APP for the State. As per PW11 Fayaz he saw accused Maieen in the car no. DL 4CA 6732 but it was pointed out by accused Kanchid. The prosecution has got pointed out this place from accused Maieen vide memo Ex.PW38/N and as per this memo one Mohd. Shaukat was joined as witness. But said Mohd. Shaukat has not been examined in the court to prove this memo Ex.PW38/N. PW34 has wrongly identified accused Kanchid. So, the prosecution has failed to prove both pointing out memos as per law. On the other hand it has been stated by PW13 Dr. Matloob Ali that car was in his possession on 2nd or 3rd Aug 2002 as well as he has stated that it was purchased by him from accused Matloob Pradhan on 15.7.02. So, there is contradictory statement available on file regarding possession of car and its availability at the place pointed out by accused Kanchid and Maieen. However, PW11 Fayaz has seen accused Maieen in the alleged maruti car alone and he has not stated that he had seen deceased Isa in the company of accused persons there. Further PW11 has admitted that he is a milk vendor and Mohd. Hammad PW6 who is son of the deceased is also a milk vendor and he was running business of selling milk in Gajipur. This FIR No.476/02 Page No. 87 State Vs. Kanchid Etc. witness PW6 allegedly also brings milk from Gajipur to distribute in the area of Nizamuddin. They are residing in the same locality. He know Hammad and his relations. From this version it seems that PW11 is related to Hammad and he can be interested witness both PW11 and Mohd. Hammad being milkmen.
59. Another circumstance in this case is presence of deceased and accused persons in Ahmedabad. To prove this circumstance prosecution has examined PW15 Tanveer Alam, PW20 Samir Bhai and Pw21 Mohd. Naseem Rajput. First of all I would see as to what PW6 Mohd.Hammad who is the son of the deceased has stated in this respect. It has been stated by PW6 in DD no.6A that his father had gone to Ahmedabad on 26.07.02 to attend the marriage of his cousin sister. PW15 has stated that Rashid Chairman telephoned him on 26.07.2002 regarding coming of his two persons and next day Kanchid and Taiyab came there and he brought them to a room near Charodiya Chowk. When Kanchid and Taiyab were taken to room, they requested him to facilitate their talk with Rashid Chairman and he dialed the number and they had a talk with him. If Kanchid and Taiyab had gone to Ahmedabad for committing such a heinous crime they would have made call to Rashid on their own. However, he has clearly admitted that Rashid Chairman never met him in Ahmedabad. He was FIR No.476/02 Page No. 88 State Vs. Kanchid Etc. declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein again he has deposed that he had not stated to the police that he had brought Kanchid, Taiyab and Chairman Rashid from the Railway Station. He denied that they stayed for a week. On perusal of his cross examination it is revealed that most of the part of his statement recorded in the court has come under improvement as it was not stated by him to the police. On perusal of his statement it is recorded that one Arif conveyed the message to the witness that Rashid Chairman would be coming to Ahmedabad with two persons. But the said Arif has not been examined by the prosecution. He has stated that he heard the voice on his mobile and he felt that it was the voice of Rashid Chairman. So, he is not sure and certain that the person talking on other end was Rashid Chairman or someone else. This witness has improved his statement regarding staying of Kanchid and Taiyab in the room at Ahmedabad for four or five days. He has further stated that his statement was not read over to him by the police. It seems that the statement of this witness was recorded by the Police on its own just to create evidence. From the testimony of PW20 Samir Bhai Rajput it is revealed that deceased Mohd Isa had gone to attend the marriage of his daughter Sharin which was held on 27.07.02 and he had stated that deceased Mohd. Isa Pradhan came to his residence to join the marriage ceremonies on 22.07.02. PW6 Mohd. Hammad who is FIR No.476/02 Page No. 89 State Vs. Kanchid Etc. son of the deceased had stated that his deceased father had gone to Ahmedabad on 26.07.02. So, there is contradiction in the dates of going of deceased Mohd. Isa to Ahmedabad. Ex.PW20/A i.e. marriage card of the daughter of PW20 shows the date of marriage as 28.07.02. From the testimony of this witness it can be inferred that deceased Mohd. Isa was in Ahmedabad on 27/28.07.02. He had stated that he does not possess any proof in writing that he made Mohd. Isa board train for Delhi on 01.08.02. However, deceased Mohd. Isa was murdered but no railway ticket was recovered from near the dead body. PW20 further stated that Police had not recorded his statement. It again seems that police had recorded his statement on its own and it was not read over to him which create doubt in the mind. PW21 Mohd.Naseem Rajput is the witness of pointing out memo of house no.532/106 Rakhyal Extension, Bapu Nagar, where Kanchid and Taiyab allegedly had stayed in Ahmedabad. PW15 Mohd. Tanveer Alam was the witness who allegedly arranged a room for accused persons. But he has not disclosed the house number and address in his testimony and stated that he took them to a room near Charodiya Chowk. Since PW15 who was the witness for establishing the presence of accused persons at Ahmedabad had not stated the address of the room where the accused persons had stayed nor his signatures bears on pointing out memo it cannot be established that accused persons had been to Ahmedabad on FIR No.476/02 Page No. 90 State Vs. Kanchid Etc. the said dates because PW15 has made glaring improvement in his testimony in this respect and even he has stated that Rashid Chairman never met him in Ahmedabad while as per the case of the prosecution he was also available with other accused persons Kanchid and Taiyab. PW21 has stated in cross examination that he knew Rashid from before and as such when he saw him in the company of police he stopped and joined in the investigation. The Police has not tried to bring on record the name of the owner of that house where accused persons stayed in Ahmedabad and it did not even made him as witness in this case while he/she was the most important witness to bring on record that the accused persons had stayed in his house for a week or so. From the testimonies of other public witnesses also it is revealed that they knew complainant Hammad as well as accused persons from before and police had made witnesses while some other independent witnesses should have been joined in the investigation. Even the police officials from Ahmedabad police have also not been joined in the investigation. PW21 proved pointing out memo after declaring him hostile which again create doubt in the mind. By the testimonies of these witnesses, the presence of accused persons at Ahmedabad could not be established beyond reasonable doubt by the prosecution.
FIR No.476/02 Page No. 91 State Vs. Kanchid Etc.
60. PW36 Viraf is the witness from IDEA Cellullar Ltd. and he proved letter written to Special Team Crime Branch Ex.PW36/A by Sham Sunder Prajapati. However, he has stated that he had not seen him writing and signing in the discharge of his official duties. He further stated that the call running into 16 pages is colly. Ex.PW36/B. These call details were collected by the IO from the company and later on exhibited by PW36. These are the computer generated call detail printouts. There is no certification from the responsible officer of the company having control over the computer or authorized to generate a print out from the computer. PW36 Viraf has been examined from the company but he has not stated that these sheets were generated through computer storing the information and information generated was stored in the ordinary course of business of the service provider. So,the mandate of section 65B of Evidence Act has not been complied with. On the other hand when PW36 has not seen the writer even signing or writing the document, this document cannot be taken as exhibited as it well settled law that by putting mere exhibition on the document, it cannot be taken as proved. He further admitted that letter mark 36/A was not prepared by him or under his instructions. So, this documents has not been proved in accordance with law.
61. PW18 Mohd. Kasim and PW19 Mohd. Isab are the witnesses FIR No.476/02 Page No. 92 State Vs. Kanchid Etc. from Alwar (Rajasthan) who have deposed regarding last rites of deceased. From the testimonies of both the witnesses it is revealed that they had performed the last rites of the dead body of unknown person. As per their version dead body was buried on 4.8.02. It was found by Rajasthan Police on 3.8.02. Thereafter, Rajasthan Police had also published pamphlets for identification of the dead body. So, instead of waiting for some time and preserving the unknown deadbody, Rajasthan Police had opted to perform last rites with the help of PW18 & 19. The prosecution could not prove any document on record regarding burying of dead body of unknown person in kabristan on 4.8.02. Even the dead body has not been identified by anyone before performing last rites. It is observed in case titled Bhog Chaudhary & Ors. Vs. State, 117(2005) Delhi Law Times 250 (DB) that:-
'IPC 1860 - Sec. 302, 365, 201, 120B - Murder, Kidnapping. Disappearance of Evidence, Criminal Conspiracy : Circumstantial Evidence: No incriminating evidence available on record which would justify conviction and sentence of appellants: Photographs of dead body taken by police at time of recovery of body seen by this court: Dead body cremated before it could be identified by anybody : Circumstantial evidence devoid of necessary chain of events to conclusively lead to guilt of appellants: Even recovery of dead body doubtful and it cannot be held said body is of deceased : impugned judgment and order of conviction set aside'.
62. Another chain of circumstances in this case is recovery of weapon of offence and to prove it, the prosecution has examined PW9 FIR No.476/02 Page No. 93 State Vs. Kanchid Etc. Balbir Singh and PW14 Hassan Khan. PW9 Balbir Singh has stated that one person named Arshad Chairman (named wrongly stated - real name is Rashid) and he identified Raja Kanchid as accused and stated that he got recovered a polythene bag contained ushtra. PW14 Hassan Khan has stated that accused Rashid Ali led 3-4 persons to nearby bushes in the field and pointed out the place and took out a polythene bag from the bushes which contained a razor/ushtra. The razor had blood stains. Both the witnesses stated about preparing the sketch and taking into possession of the said ushtra. PW9 first of all could not identify accused Rashid Chairman that he got recovered the said Ustra and he identified accused Kanchid Raja in his place. However, in cross examination he has stated that he could not identify the proper person because his eye sight is weak. No document regarding the eye sight of this witness has been proved by the prosecution on record to establish that his eye sight was really weak. However, it has come in the evidence of PW9 that :-
'One envelope sealed with court seal produced. As per note given on this envelope Ushtra has been kept there. One seal of envelope is in broken condition. Ushtra is not there. Another sealed envelope with court seal opened. Ushtra is shown to the witness. According to witness Ex.PX is the same which was recovered. It was taken vide memo Ex.PW9-2 which bears his signatures at point A'.
From the above version, in first envelope in which as per note, ushtra was kept has not been found in the envelope and seal was also found broken which create doubt in the mind. However, in second FIR No.476/02 Page No. 94 State Vs. Kanchid Etc. envelope which was opened with court seal ushtra was found and PW9 identified it as Ex.PX. PW9 has stated in cross examination that police showed him the papers prepared by them. He did not go through contents of those papers and he signed those papers without going through those documents. From this version it seems that the papers were not prepared by the police in his presence at the place of recovery of ushtra and these were already prepared by the police and he had only signed those documents. PW9 Balbir Singh has stated that seal after used was giving to PW14 Hassan Khan. But PW14 is silent in this respect. PW14 could not tell any special mark of identification on the razor. Even at the time of identification of razor he has stated that the razor was like Ex.P1. So, he is not sure and certain that it was the same razor which was recovered by accused Rashid Chairman. From the testimonies of both the witnesses it is revealed that Delhi Police has not associated Rajasthan Police at the time of recovery effected at the instance of accused Rashid Chairman while the recovery was being effected within their jurisdiction. PW14 has stated that there was abadi at a distance of 20 or 30 paces from the place from where razor was recovered. It seems that the place where the razor was thrown is accessible to the general public. It was recovered after about 7 months of the murder. It has come in evidence that it was found in the polythene bag.
But the said polythene bag has not been produced in the court. PW14 in FIR No.476/02 Page No. 95 State Vs. Kanchid Etc. cross examination has stated that he cannot say if those persons who obtained his signatures were not police officials. It is not understandable as to how he joined investigation when he was not aware as to whether police official or someone else was asking him to join the investigation.
The version of witnesses that the razor was found in a polythene bag also does not inspire confidence. The recovery of razor has been effected at the instance of accused Rashid Ali after about seven months of murder. In case law Salim Akhtar @ Mota Vs. State of U.P, 2003 Supreme Court Cases (Cri) 1149 it is stated in head note A that:-
'Terrorist and Disruptive Activities (Prevention) Act, 1987 - S.5- Recovery of a polythene bag containing a pistol, cartridges, a bomb and RDX at the instance of accused - appellant - Recovery from an open place accessible to all and everyone - Conviction u/s 5 - Propriety - Pistol alleged to have been recovered not sealed and its "number" or "make" etc. to fix its identity not mentioned in the recovery memo or FIR - No effort made by police to get any independent public witnesses at the time of alleged recovery - The only public witness (a photographer) examined was not only intimate but was also obliged to the police party - Held, Sec. 27 of Evidence Act what was admissible was the place from where the said polythene bag was allegedly recovery
- The fact that some terrorist organisation had given the pistol and other articles to the appellant or its use, held, not admissible - since the recovery was made from an open place accessible to all and everyone, held, it was not possible to hold that the appellant was in possession of articles alleged to have been recovered from him - Hence conviction and sentence of appellant set aside - Evidence Act, 1872, Sec.27 - Criminal Trial - Possession of incriminating article - Recovery of incriminating articles from an open place accessible to all - Inference of possession, held doubtful'.
As per the testimony the sketch of razor/ushtra, there was mark of identification 'MEN BEAUTY BANDER'. Both neither PW9 nor FIR No.476/02 Page No. 96 State Vs. Kanchid Etc. PW14 who are witnesses to the recovery have stated about the mark of identification on razor. Even PW3 Dr.PS Chaudhary who has examined the weapon of offence in this case has also not stated as to whether there was any mark of identification of the said ushtra. The alleged recovery has been effected from the open place accessible to all because PW14 has stated that it was recovered from 20 to 30 paces away from abadi area.
PW31 HC Rajiv has stated that PW Hasan Khan belonged to village Bhatesara. He does not know if he is related to complainant Hammad. The recovery has been effected after about 7 months of the murder of deceased Mohd.Isa. From the above evidence adduced by the prosecution, the recovery of razor at the instance of accused Rashid Chairman seems to be doubtful.
63. PW3 Dr. PS Chaudhary has conducted the post mortem on the dead body of unknown person on 4.8.02. and proved post mortem report Ex.PW3/A. I have also perused the said Post Mortem report. The following injuries are mentioned:
1. An incised wound on neck anteriorily placed in lower one third region extending from left to right side. The length of the wound was 18 cms and width was 9 cms.It was dissented with skin veins, arteries, subcut tissues, muscles, trachea. Trachea had been cut completely in its full thickness. The margins of wound were clean cut. Blood (dry) was present on the neck, chest, face, hairs and both the upperlimbs. There was staining of the tissues present under the wound.
2. Incised wound on abdomen, left side in middle part, 11 cms. in length and 5 FIR No.476/02 Page No. 97 State Vs. Kanchid Etc. cms in width. Full thickness of abdominal muscles was cut. From the wound intestine 40 cms in length was coming out. A cut on small intestine was present in 10 cms x 2 cm area, in full thickness of the wall. On dis-section of abdominal peritonium contained blood - 250 CC. Other structure were normal.
The wound was 6 cms lateral to umblicus.
All the injuries were antemortem in nature. Besides the above mentioned injures there was sub scalp haemotoma on left parietal region. The cause of death in this case was shock with asphyxia as a result of injuries mentioned above and sufficient in ordinary course of nature to cause death. This witness has also given opinion regarding weapon of offence used for causing injuries and after seeing the razor he has mentioned in his report that injuries could have been caused by the weapon shown to him and he proved his opinion in this respect as Ex.PW3/B. IN cross examination he has admitted that there was no mark of identification on the ushtra. This witness has not prepared the sketch of ushtra at the time of giving opinion. So, it seems that the ushtra shown to PW3 was not having any mark of identification. However, the ushtra recovered in this case and sketch of which is available on file is having mark of identification i.e. "MEN BEAUTY BANDER' is written on it. He has further stated that the injuries are possible by this weapon and these injuries are also possible by any other similar sharp edged weapons. Again this witness is not sure and certain that the injuries on the person of deceased were caused by the ushtra examined by him. Even it has come in FIR No.476/02 Page No. 98 State Vs. Kanchid Etc. the evidence that these injuries are also possible by any other similar sharp edged weapon. He has further stated that there was no change in colour in respect of stomach on examination. Mostly it happens after six hours after death the stomach turns green colour Again said it does not turn green. This witness has also changed his version regarding changing the colour of stomach. I have also perused the CFSL result proved by PW2 as Ex.PW2/1. AS per result of analysis blood was detected on Ex.1a i.e.one big cloth piece Tahmad', Ex.1b i.e. one small cloth piece, Ex.1c i.e. one small clothe piece, Ex.2 cloth Nauli, Ex.3 Earth having blood stains, Ex.5a barber's razor "ushtra' and Ex.5b i.e. polythene bag having brown stains and blood could not be detected on Ex.4 i.e. earth control. As per Biological report Ex.PW2/2 Human Blood of 'B' Group was detected on Ex.1a, 1b, 1c, 2, and Ex.5a. ON Ex.4 Earth control no reaction was found and on Ex.3 Blood stained earth and polythene bag human blood was detected but no reaction for ABO Group was found. On Barber razor human blood of B Group was found. However, PW3 Dr.PS Chaudhary has not stated as to whether at the time of post mortem he has preserved some blood sample of the deceased. The hairs sticked to razor has not been sent to CFSL for examination. The Rajasthan Police should have taken steps to get preserve the blood sample of deceased. The blood found on razor/ushtra has not been tallied with the blood sample of deceased. PW31 FIR No.476/02 Page No. 99 State Vs. Kanchid Etc. has stated in cross examination that he does not know who put the blood on ustra. It means blood on ustra was put by someone but he does not know as to who has put the same and this create doubt in the mind. PW38 IO of this case even has admitted that blood of B+Ve group is easily available. However, in this case the dead body was buried and after apprehension of accused persons, police should have taken steps to get the DNA done of deceased to tally the opinion of FSL expert. But no step has been taken in this respect. In case Law titled Sunil Rajya Kale & Anr. Vs. State of Maharashtra. 2007 CRI. L.J. 526 it is stated in headnote that:-
'Penal Code (45 of 1860), Ss.300, 394, 376 - Robbery, rape and murder - Two persons entering into house of prosecutrix at midnight - One of them committing rape on her - She disclosing said fact immediately after incident - Her husband and their guest sleeping outside their house found in injured condition - Death of husband due to injuries - Prosecutrix identifying accused as person who raped her and snatched her mangalsutra - Her evidence reliable and corroborated by medical evidence - However, fact that accused persons assaulted deceased and their guest not established - Blood found on weapon of accused not proved to be of blood group of deceased - Accused liable to be convicted only for offence of rape and robbery and not for offence of murder'.
It is stated in case Law State Vs. Raj Kumar Khandelwal , 164(2009) D.L.T 713 (DB) that :-
'(ii) Evidence- Expert Opinion - No more than piece of evidence
- Does not absolve court from primary liability to satisfy its judicial conscience by independently, with its own eyes, in light of surrounding circumstances, form its own opinion, pertaining to writing brought before court and alleged to be of a particular person'.FIR No.476/02 Page No. 100
State Vs. Kanchid Etc. In case law titled State of MP Vs. Nisar, (2007) 5 S.C.C 658 it is stated in head note that:-
'Criminal trial - Circumstantial evidence - Acquittal justified - Insufficiency of evidence - High court reversing order of conviction recorded by trial court - Propriety - In a case of murder, trial court convicting the accused, giving weight to the two factors of alleged recovery of an axe and extra -judicial confession - High Court found no eyewitness to the incident and further noticed that there was no reference to the extra judicial confession in the FIR and though blood was stated to have been found on the axe recovered, blood grouping not done - Accordingly conviction set aside - Sustainability - Held, the FIR was lodged much after the alleged extra judicial confession - Hence informant's explanation that he may have forgotten to disclose this fact, is improbable and unacceptable - Also, High court rightly noticed that no disclosure was necessary for locating the dead body - Even a casual search would have revealed the dead bodies and the articles - Moreover, the axe was stained with human blood, yet the blood group was not ascertained - Hence, it was not possible to conclude that the axe was used for killing the deceased persons - Therefore, evidence was insufficient to fasten guilty'.
It is stated in case law Jahid @ Lambu Vs. State, 2009(3) JCC 1760 it is stated in head note that :-
'Penal Code, 1860 - Sec.302 - Recovery of blood stained knife and clothes - Without there being any other circumstance, the recovery of the blood stained knife and clothes by themselves would not lead to the conclusion that the appellant is the perpetrator of the crime'.
64. Taking into consideration the above discussion on this point and the observation of case law, the prosecution could not prove this chain of circumstance without any reasonable doubt.
FIR No.476/02 Page No. 101 State Vs. Kanchid Etc.
65. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. In this case PW6 Mohd. Hammad is the son of deceased Mohd. Isa and complainant in this case. He has stated that his father had been village Pradhan for quiet sometime and later Riaz Ahmed brother of accused Matloob had become pradhan of the village, there had been some inimical feelings, between his family and the family of Riaz Ahmed. After sometime Riaz Pradhan was done to death by some person and family of Riaz Pradhan suspected the hand of his father in the commission of that murder. However, no document in this respect i.e. complaint, FIR etc have been proved on record. Rashid, Moin FIR No.476/02 Page No. 102 State Vs. Kanchid Etc. and one of their relative were arrested in connection of murder of three persons. But he has not stated Rashid Moin and one of their relative was arrested in connection of murder of Riaz Ahmed. So, arrest of Rashid, Moin etc in some other case has no bearing with this present case. It has been admitted by PW6 in cross examination that a case u/s 107/151 Cr.PC is pending against him at Hapur and the accused are the complainant party. From this version of PW6 it seems that complainant PW6 Mohd. Hammad himself was inimical towards accused persons. The motive to cause death because of contesting election against each other by deceased Isa and family members of accused Matloob for village pradhan cannot be believed in the absence of any reliable and cogent evidence adduced by the prosecution by examining the village people or other members of the Panchayat to disclose about the inimical feelings between deceased Isa and family of accused Matloob. Since no complaint regarding suspecting the hand of deceased Mohd. Isa in the murder of Riaz Ahmed has been brought on record and since no statement of villagers regarding inimical terms between Mohd. Isa and accused persons has been recorded and examined in the court, the prosecution could not proved the motive of murder of deceased Isa and this chain of circumstance is not proved as per law. In case law titled Pandra Khadia Vs. State of Orissa , 1992 CRI FIR No.476/02 Page No. 103 State Vs. Kanchid Etc. L.J 762 it is stated in headnote :-
'Evidence Act. 1872, Ss. 3,8 - Penal Code (1860), Ss.299, 300, 302 - Murder - Proof of - Case based on circumstantial evidence
- Motive of accused not proved by prosecution - Held, that since important circumstantial evidence had been disbelieved absence of proof of motive would weigh in favour of accused'.
In case law Sukhram Vs. State of Maharashtra (2007) 7 S.C.C 502 it is stated in head note that :-
'Criminal Procedure Code, 1973, Ss. 464(2) (a) & 386 - conviction u/s 302 IPC by appellate court, where accused was charged only under sec. 201 IPC - Validity of - Held, was not valid when tested on touchstone of provision contained in S.464 (2) Cr.PC as appellate court (High Court) had failed to follow the procedure laid down in the said section - Even on the proven facts on record, no case for conviction u/s 302 IPC made out - Hence, said conviction was liable to be set aside'.
'Criminal Trial - Circumstantial evidence - Motive - Significance of
- Held, in a case based on circumstantial evidence motive assumes great significance inasmuch as its existence is an enlightening factor in a process of presumptive reasoning - Evidence Act, 1872, S.8.'
66. Another circumstance in this case is hatching a conspiracy. To bring home the charge of conspiracy within the ambit of section 120B it is necessary to establish that there was an agreement between the parties for doing an unlawful Act. It is difficult to establish conspiracy by direct evidence. It is true that it is difficult to support the charge of conspiracy with direct evidence in every case but if the prosecution relies upon circumstantial evidence, a clear link has to be established and the chain has to be completed, otherwise it would indeed be hazardous to accept a FIR No.476/02 Page No. 104 State Vs. Kanchid Etc. part of the link as a complete one and on the basis of such incomplete evidence, the allegation of conspiracy cannot be accepted. In this present case in hand the prosecution has examined PW24 Baliquiddin including other investigation witnesses PW27, PW28 and PW31 including IO PW38. PW24 is the witness of public so, I would consider his testimony first. HE has stated that on 10.02.03 accused Kanchid was brought to the gher of Rashid and he had disclosed that about 6/7 months before he, Taiyab, Rashid, Matloob and Moin had a meeting. He has also stated that 4/5 co-villagers were present there. He has not stated as to what accused Kanchid had disclosed about the meeting and the meeting was on what subject. He was declared hostile by the prosecution and firstly he has stated that police had not recorded his statement and again said police had recorded his statement. He has further stated that after being declaring him hostile that Kanchid who was in custody had pointed out to the pathak (should be baithak) of Rashid and stated that on 25.7.02 Taiyab, he himself and Rashid, Moin and Matloob had planned there to commit murder of Mohd. Isha. First this witness has stated only about meeting and after declaring hostile he has admitted the question put by the Ld. APP for the State in affirmative. Also firstly he has stated about all the persons got down and went inside the gher of Rashid and accused Kanchid disclosed that they had a meeting there. It means that they had a meeting inside the FIR No.476/02 Page No. 105 State Vs. Kanchid Etc. gher. But in cross examination conducted by the Ld. APP for the State he has admitted that he had stated to the police that Kanchid pointed out pathak (should be baithak) of Rashid where they had planned to commit the murder of Mohd. Isa. So, Firstly he has stated that the meeting was held in the gher of accused Rashid and when he was cross examined by the Ld. APP he has stated that planning was done in the baithak. Baithak is general used to be inside the house where guests/visitors come and sit. So, he has given inconsistent statement in this respect. This witness has further stated in cross examination that when accused Kanchid gave statement before the co-village then he came to know that Isa Pradhan had died. This witness is the resident of same village where Mohd. Isa was Pradhan. Generally Pradhan is treated as most respectful persons and known person of the village and if his murder is committed, the news spread immediately in the village. But this witness being one of the village did not know about murder of Mohd. Isa for last 7 months and it is astonishing to note from his conduct. Admittedly this witness is doing the work of milk vendor in Gazipur. As per evidence available on file Mohd. Hammad was also running milk dairy in Gazipur. PW24 also know Shakeel. As per admission of PW24 Haroon Liyaqat, Attah, Hashim and Muzahesaleem were present at the time of pointing out made by accused Kanchid. But none of the said villagers have been examined by the prosecution nor they FIR No.476/02 Page No. 106 State Vs. Kanchid Etc. were made as witness in this case. Prosecution has also examined PW35 Dy Jailor KP Chandila to prove the detention period of accused and he gave report Ex.PW35/A. As per this report accused Moinuddin and Rashid remained in District Jail Bulandshahar from 27.11.00 to 27.5.02 and accused Kanchid remained in the same jail from 29.11.00 to 28.7.01. Ld. APP for the State had argued that accused persons had asked Kanchid in Jail itself to contact them for some good work later on and thereafter after release on bail they hatched conspiracy to commit the murder of Mohd. Isa. PW35 in cross examination has admitted that record Ex.PW35/A is not in his handwriting and has been prepared by some other official. It is clear that he has not prepared the said record. Secondly, in jail there used to be separate barracks for each accused and it is quite impossible to talk for long on any subject. Taking into consideration the above discussions, the prosecution could not prove that accused persons have hatched conspiracy to commit the murder of Mohd. Isa.
67. I have also considered perused the testimonies of other witnesses. PW23 HC Kishan Chand is the formal witness who sent the sealed pullanda to General Hospital Alwar for opinion of autopsy surgeon. PW27 HC Ragender is the witness of arrest of accused Kanchid on 28.01.03. In this case allegedly accused Kanchid was arrested first on FIR No.476/02 Page No. 107 State Vs. Kanchid Etc. the basis of secret information from Surya Sofital Market at about 11 p.m on the pointing out of secret informer. PW31 HC Rajiv Mohan PW38 Inspector Ramesh Chandra have stated in respect of apprehension of accused Kanchid from Sofital Surya. All the witnesses have deposed about recording the disclosure statement of accused Kanchid Ex.PW27/A and his arrest Ex.PW27/C and personal search Ex.PW27/D. I have also perused the disclosure statement of accused Kanchid. On the basis of his disclosure statement no recovery has been effected. So, his disclosure statement cannot be taken into consideration. It is evidence that accused Kanchid had come to Surya Sofital Hotel to meet one his known to person. But the police has not investigated as to which person he was to meet and the purpose of his meeting at 11 p.m. The police did not try to bring on record the name of said person or examine him in the court. The Police has not tried to make genuine efforts to make some independent witness at the time of arrest of accused Kanchid while as per the case of the prosecution accused Kanchid had come to meet one of his known to at the place of arrest. Also the arrest place is near Hotel Sofital Surya and if genuine efforts would have been made, the police must have joined some Hotel Staff in the investigation as Hotel Staff is available round the clock in the hotel. All the three witnesses have stated that secret informer was with them but in cross examination PW31 has stated that he did not see the FIR No.476/02 Page No. 108 State Vs. Kanchid Etc. secret informer and thereafter he has stated that secret informer was wearing pant and shirt. He has also stated that Ct. Sajjad had apprehended accused Kanchid. But Ct.Sajjad has not been examined in this case. It is case of the prosecution that weapon of offence was So, arrest of accused Kanchid is also doubtful in this case.
68. Now I would discuss the testimonies of Police officials who remained in the investigation. PW29, PW30, PW32 and PW33 are the witnesses from Rajasthan Police. PW29 ASI Shiv Kumar Sharma is the formal witness who arranged for last rites of deceased accordingly to Muslim Rites and Ceremonis on 4.8.02. PW32 SI Attar Singh has got conducted the post mortem on the dead body of deceased and he is also a formal witness. PW33 Ct. Ajay Kumar has joined the investigation with PW30 Insp. Janesh Singh on receipt of information about lying of dead body in the fields of PW1 Bhajan Singh. PW30 prepared the rukka Ex.PW1/1 on the complaint of Bhajan Singh, made his endorsement Ex.PW30/A and got the case registered and PW33 Ct.Ajay Kumar has also stated that he got the case registered and proved the copy of FIR Ex.PW30/D. PW30 Insp Janesh Singh has proved site plan Ex.PW1/13 and he seized a currency note of Rs.10/- vide memo Ex.PW1/12 & Ex.PW1/9. He proved seizure memo of clothes i.e. tehmat and safi FIR No.476/02 Page No. 109 State Vs. Kanchid Etc. Ex.PW1/10. He conducted inquest proceedings, got conducted the post mortem on 4.8.02 and sent the body for last rites. He has further stated that he got flashed message and also distributed some pamphlets but nobody came forward. In this case the dead body was found on 3.08.02 and last rites were done on 4.8.02. The dead body remained in the custody of IO for approx.24 to 36 hours during which post mortem and last rites were also done. Instead of waiting for some more time, the IO has preferred to perform last rites. He should have taken proper steps by showing the image of dead body on TV. Within short span of time, it is not understandable as to how he got printed the pamphlets and distributed the same also. Thereafter he deposed about reaching of Delhi Police and having over of file to Delhi Police. On perusal of the cross examination of both PW30 and PW33 it is stated by PW33 that Padesal railway station is 25 Kms from PS Alwar while PW30 has stated the distance as 20 kms. PW33 could not tell the time when rukka was handed over to him and the time of recording the FIR. PW30 further stated in cross examination that they reached the spot where the dead body was lying within 5 minutes from PS. It is a matter of knowledge that distance of 20/25 kms cannot be covered in 5 minutes by jeep in which PW30 and PW32 reached at the spot. He further stated that endorsement Ex.PW30/A except his signature no other writing is in his hand. It is clear from this version that he has not FIR No.476/02 Page No. 110 State Vs. Kanchid Etc. prepared the rukka with his own handwriting and he only signed the same. Even Ex.PW1/9 i.e. seizure memo of nauli, PW1/10 i.e seizure memo of safi, Ex.PW1/11 i.e. seizure memo of blood stained earth, PW1/12 &13 and Ex.PW1/13 i.e. site plan have not been written by this witness. It seems that PW30 has only put his signatures on these documents and he is not the preparer of these documents. He has further stated that Panchnama Ex.PW30/C has not been reduced in writing by him. He did not accompany the dead body to graveyard for last rites. Further in cross examination he has stated that there is no departure or arrival entry of Delhi Police in PS Sadar on 30.1.03 or thereafter. The investigation was conducted by Delhi Police in Rajasthan and they could not prove their presence in Rajasthan because no departure or arrival entry in this respect has been proved. Even he admitted that there is no acknowledgment of pullandas received by Delhi Police in DD no.26. He has further stated that besides lifting the dead body and depositing the same in the mortuary and proceedings of panchnama, no other proceedings were conducted at the spot under his supervision. First he has stated that the order of SP to hand over the file is Ex.PW20/D1. Thereafter he has stated that there was no order from SP or any other senior officers to hand over the case file to Ct. Vikal and he has not given any direction to MHCM to hand over the case file and pullanda to Ct. Vikal. When there was no order to the effect that FIR No.476/02 Page No. 111 State Vs. Kanchid Etc. the case file has to be handed over to Delhi Police, it is not understandable as to how Alwar Police has handed over the file of their case to Delhi Police. The testimony of PW30 create doubt in the mind as he has made inconsistent statement as he has clearly stated that no document was prepared by him and only his signatures bears on the documents.
69. PW28 Ct. Vikal Singh and PW37 Ct.NK Pavithran both accompanied to IO PW38 to Alwar on 30.1.03 and both stated about pointing out memo of accused Kanchid. PW28 received file of Case FIR no.225/02 from PS Sadar and handed over to IO. PW28 further stated that accused Kanchid was taken to village Kuraina on 10.2.03 where he pointed out the baithak vide memo Ex.PW28/A near Masjid and told that he alongwith Rashid Chairman, Matloob, Taiyab and Moinuddin hatched conspiracy on 25.07.02 to commit the murder. PW31 HC Rajiv and PW37 Ct. NK Pavithran have also stated in this respect. PW28 further stated about seizure of car vide memo Ex.PW13/B and that on 16.2.03 accused Matloob took the police to Fatehpuri Lal Quila Road, Tours and Travel Cabin and pointed out the cabin and stated that on 25.7.02 at about 11.30 p.m they had a talk for murder for a sum of Rs.50,000/- and Moinuddin gave Rs.5000/- to Taiyab for expenditure. No recovery of any amount has FIR No.476/02 Page No. 112 State Vs. Kanchid Etc. been made in this case. Also the agent from where they purchased ticket to board the bus has not been examined or associated in the investigation. In cross examination PW28 has admitted that they went to Alwar in Maruti Car driven by private driver. No statement of said driver has been recorded nor he has been examined in this case. He has further stated that before they left for Alwar, they had no information that FIR no.225/02 was registered with PS Sadar. Copy of FIR was collect by them on 1.2.02. On reaching Alwar they did not go to PS but to the spot. PW30 who is the witness from Rajasthan Police could not establish the presence of Delhi Police by way of any DD recorded on 30.1.03 or thereafter. Even he has deposed the date of collecting the copy of FIR wrongly. PW37 Ct NK Pavithran stated that on 4.2.03 accused Rashid was apprehended by him and HC Rajiv from Ghaziabad bus stand on the pointing out of accused Kanchid. PW31 HC Rajiv has not stated that he apprehended accused Rashid with the help of PW27 Ct. NK Pavithran. However, he has stated in respect of his apprehension from New Bus Stand Ghaziabad at about 5.30 a.m on 4.2.03. In the month of February at 5.30 a.m there used to be complete dark and it is cold winter season. None of the witnesses have stated as to what the accused was doing at 5.30 a.m at the bus stand. PW31 & PW37 have further stated that on 13.02.03 IO received an information that accused Matloob has gone to Old Delhi to meet some of his relative FIR No.476/02 Page No. 113 State Vs. Kanchid Etc. and they alongwith Rashid went to Churiwalan at about 5.30 a.m on road accused Rashid pointed out towards accused Matloob and he was apprehended. Both the witnesses stated about arrest, personal search of accused Matloob and recording of his disclosure statement Ex.PW31/K. On the disclosure statement of accused Car was recovered but as per testimony of PW13 Dr. Matloob it was in his possession as on the date of incident and it has never been taken by accused Matloob. So, availability of car near gole gumbaz has not been proved in this case while allegedly deceased was kidnapped in the said car. Both the witnesses further stated that accused Matloob pointed out towards Hapur chungi where Matloob gave money of Kanchid and Taiyab. But recovery of any amount has been effected in this case. On 10.06.03 accused Moinuddin was formally arrested who also pointed out the Gole Gumbaz. PW31 HC Rajiv has also stated that on 5.2.03 accused Rashid got recovered a green colour double panni polythene in which one ushtra was kept. He stated about sketch of ushtra Ex.PW9/1 and identified it as Ex.PX. I have gone through the cross examination of both the witnesses PW31 and PW37 . PW37 has stated that IO did not join any police from Rajasthan in the investigation. He does not possess any document regarding his visit to PS Padesal except Pointing out memo Ex.PW1/14. They visited in Kuraina in private taxi. But no statement of private driver is available on file. Even no arrival entry has FIR No.476/02 Page No. 114 State Vs. Kanchid Etc. been proved regarding visit to village Kuraina in any PS in this case. PW37 admitted that in his presence during the investigation none person said to the IO that he saw Matlub giving money to Kanchid or Taiyab. PW31 in cross examination has stated that they had gone to Gazipur to show the photographs of deceased to the person belonging to Gulauti, Kuraina with pamphlet Ex.PW6/DA and DB etc. He does not know at whose instance IO had taken them to Gazipur dairy farm. The photographs in question should have been shown to complainant Hammad who is allegedly a resident of Nizamuddin. From the above version it seems that IO was well aware about the relations/association of complaint Hammad and this inturn proves that Hammad was also a milk seller. PW31 further stated that he did not meet the relatives of accused Rashid at Daryapur. They never took the help of local police and on both the visits to the house of Matloob he has no house search warrants. At the time of search of house of accused several villagers collected there. It is clear that without search warrants IO has searched the house of accused. First he stated that he did not accompany police team to Padesal Rajasthan and then he changed his statement and stated that on 5.2.03 he went to Padesal in a private taxi. PW Hasan Khan belonged to village Bhatesara. Hasan Khan is the witness joined by the police at the time of recovery. He has further stated that he does not know who put the blood on ustra. This version of FIR No.476/02 Page No. 115 State Vs. Kanchid Etc. PW31 create doubt because he has stated that he does not know who put the blood on ushtra but it seems that blood on ushtra was put by someone. Further he has stated that in his presence ustra was recovered at the pointing out of accused Rashid and at that time there was blood and hairs on ustra. The said ustra was recovered after 6/7 months later of the incident and it was lying in the open. Both the witnesses have not stated about identification mark on ushtra. The version of witnesses that it was kept in double green colour polythene create doubt because if the accused had to throw the ustra in the bushes he must have thrown it as it is and not while keeping it in polythene that too double polythene. The recovery has been effected from open place and it is well settled law observed by Hon'ble Apex Court in a catena of Judgments that recovery effected from open place accessible to general public is not a good recovery. Accused Matloob has also been arrested in this case at about 5.30 a.m. PW38 Insp.Ramesh Chandra is the IO of this case. and he has stated the deposition made by other police officials PW28, PW31 & PW37 in respect of the investigation. PW7 Baldar Singh first IO has stated that the investigation remained with him till 13.12.02 i.e. for about four/five months and till then accused were not named as suspects. This case was received by PW38 on 25.01.03 and he recorded supplementary statement of complainant Hammad in which he has stated that when his father had FIR No.476/02 Page No. 116 State Vs. Kanchid Etc. left the village that day was Jumma. The investigation remained with PW7 SI Baldar Singh for about 4/5 months and during the said period he might be in contact with complainant. But during the said period of 4/5 months, he has not disclosed to PW7 that his father had left on the day of Jumma. Suddenly on 25.1.03 when investigation was entrusted to PW38 he disclosed about this fact to him and that too on the same day i.e. 25.1.03 and thereafter on 28.1.03 accused Kanchid was arrested. Disclosing the fact of Jumma(Friday) by Hammad, on the day of receipt of investigation by PW38 create doubt in the mind. However, in his statement PW38 has stated that incident had taken place on Saturday. Perusal of the Calender for the year 2002 revealed that Saturday was 03.08.2002 i.e. the date written in the DD on which the FIR was registered. IO has also deposed about disclosure statements given by the accused persons and narrated the same in his examination in chief. As per evidence of IO, five persons went in maruti car except Matloob. The deceased had been taken upto Alwar and then murdered. It is not the case that he was murdered on the way. On the way many traffic lights must have fallen and the time of kidnapping is day time at about 11 a.m. Even if the deceased has been kept in between the front and rear seat, he could have been visible from outside and he must have made some attempt to get up and make a noise. But there is no such evidence available on file. It has further come in the evidence of PW38 FIR No.476/02 Page No. 117 State Vs. Kanchid Etc. that Shakeel disclosed him that niece of his wife was engaged to the son of thekadar Ishaq and deceased mohd. Isa was mediator. After some day there was remour regarding the character of the girl and engagement was on the verge of breaking. and thereafter he gave call in Ahmedabad on 1.8.02 and even he met deceased Mohd. Isa at Nizamuddin. Shakeel has been the resident of Kuraina and specially he came to Nizamuddin to meet Mohd. Isa during the alleged day of incident and even both deceased and Mohd Isha left together. If he had to talk about marriage he should have waited for one or two days but said Shakeel opted to come to Delhi which again create doubt in mind. PW38 proved the site plan Ex.PW38/A. Since PW38 has deposed in respect of the investigation I have given thoughtful consideration on his cross examination. He has stated that he belong to Rajasthan District Alwar. Admittedly the dead body of deceased was also found in District Alwar. Before this case he had never been IO in any murder case. He admitted that commissioner of Police had given directions to every PS that the murder trial case would be dealt by the rank of Inspector. He further stated that on the day when this case was transferred to him he was only SI Vol. Insp.KP Singh was the IO of this case prior to him and he had investigated the case under the close supervision of Insp. KP Singh and this was in the knowledge of concerned ACP. Insp. KP Singh had assigned this case on 25.1.03 and he FIR No.476/02 Page No. 118 State Vs. Kanchid Etc. had given verbal instruction. So, this case was investigation by PW38 when his rank was Sub Inspector. When there was clear direction from the Commissioner of Police regarding investigation of murder trial by the Inspector level officer, it is not understandable as to why this case was got investigated through SI PW38. PW38 has also stated that he investigated this case under the close supervision of Insp. KP Singh. In this case Insp. KP Singh has not been examined and there is no evidence on record that he supervised the investigation. Even it has been admitted by PW38 that Insp.KP Singh has not accompanied him to anywhere. So, it is not believable that investigation was done in the supervision of Insp.KP Singh. He admitted that on the basis of DD Ex.PW5/B and FIR Ex.PW5/A Mohd. Shakeel was the suspect person. When he was the suspect person it is not understandable as to why he has not been arrested in this case or even no custodial interrogation has been carried out by PW38. It is quite possible that blood of B+Ve group is easily available. The blood on ushtra and other articles recovered in the present case was found to be of B+Ve group. He has further stated that it is not necessary to inform the local PS if they have to investigate a case within their jurisdiction. He cannot produce any document regarding their presence in Alwar on 30.01.03. So, no arrival entry has been made by the Delhi Police in PS Sadar to prove their presence there even at the time of recovery of alleged ustra. No FIR No.476/02 Page No. 119 State Vs. Kanchid Etc. report was lodged with any PS in UP regarding seizure of the maruti car. It means the recovered car in question has also not been involved in any theft. He admitted that there were passengers available at Ghaziabad from where accused Rashid was arrested. The accused was arrested at 5.30 a.m and the month of arrest of February. However, when there were passengers available, the IO should have made efforts to join them in investigation but no witness has been joined at the time of arrest of accused Rashid. He has further stated that hue and cry notices of Isa Mohd were got published by him as well as the IO from the kidnapping cell and both the notices are the same. The investigation of this case was entrusted to PW38 on 25.1.03. The hue and cry notices were published when deceased Mohd. Isa was kidnapped. So, it seems that IO has deposed falsely in respect that he got published hue and cry notices. He admitted that in the notices the date of missing is mentioned as 03.08.02 and even in Ex.PW6/DB the same date is mentioned. He has further stated that police of Rajasthan had not sent alongwith case file the clothes of deceased Mohd. Isa i.e. white colour kurta paijama and a pair of shoes without laces. He admitted that in Kalendera Ex.PW38/G the date of Mohd. Isa arriving Delhi is mentioned as 03.08.02. In this case PW6 Mohd. Hammad who is the son of the deceased has not seen the dead body nor it has been identified by anyone. IO has also not taken any step to conduct the DNA FIR No.476/02 Page No. 120 State Vs. Kanchid Etc. Test on the dead body after arrest of accused persons. PW38 has further admitted that in the statement of any of the prosecution witnesses including Mohd. Hammad, this fact has not come on record that Mohd. Isa was seen in the company of any of the accused in Maruti car no. DL 4CA 6732 or anywhere else. So, IO himself has admitted in his cross examination that there is no evidence available in this case that accused persons were seen by someone in the company of accused persons on 02/03.08.02. He has further stated that the charge sheet in the present case is not in his handwriting. So, PW38 who is IO of this case has not prepared the charge sheet in this case. Even he does not know in whose handwriting it is however, he has stated that it is bearing the signatures of Insp.KP Singh. So, this charge sheet has been signed by Insp.KP Singh. But he has not been examined in this case. It has also come in evidence that IO PW38 has not prepared certain documents available on file while those should have been prepared by him being IO of the case. Taking into consideration the testimony of official witnesses, I find that they have also given inconsistent statements in this case and in view of their deposition in cross examination, their testimonies do not inspire confidence. In this case the blood stained clothes i.e. kurta paijama of white colour and wearing shoes without laces of deceased Mohd. Isa has not been recovered. At the time of murder the blood stains must have also come on the clothes of FIR No.476/02 Page No. 121 State Vs. Kanchid Etc. accused persons. But no investigation has been carried out by the IO regarding blood stained clothes of accused and IO has not conducted any investigation in this respect.
70. In this case Ld. APP for the State as well as complainant counsel has drawn the attention of the court on an application filed by the accused Matloob and Rashid Ali before DCP on 11.08.02 regarding apprehension that they may be implicated falsely. The said documents have been collected by the IO and it has not been exhibited in the court by examining the witness from the concerned DCP office. There is no document on the file to show as to what happened to this complaint and what order was passed. So, this application cannot be taken as proved as per Sec.27 of Evidence Act. Ld. complainant counsel as well as Ld. APP for the State have further drawn the attention of the court on copies of FIR registered against accused Rashid and Kanchid in PS Gulauti. But that was the separate case in which the accused persons have already been acquitted by the court and it has no affect on the present case. Ld. counsel has also relied on certain case lase, 2004(3) JCC 1596AIR 1965 AIR 1978 SC 1183, (2007) 2 SCC 310, AIR 2003 SC 215, JT 2002 (2) SC 637, 1991 CRI. L.J 2653, AIR 2000 SC 3352, (2006) 9 SCC 386, AIR FIR No.476/02 Page No. 122 State Vs. Kanchid Etc. 2008 SC 448, 2006 I AD (Cr.) SC 177, 2007 III AD (Cr.) (S.C.) 380. I have gone through each and every case law carefully. But with due respect, these case laws are not applicable to the present facts and circumstances of the case.
71. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considering as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.
72. In view of my above discussions, I am of the opinion that the prosecution could not establish even a single chain of circumstances in this case while it is well settled principle of law that in a case of FIR No.476/02 Page No. 123 State Vs. Kanchid Etc. circumstantial evidence each and every circumstance has to be proved by the prosecution by leading legal, reliable and unimpeachable evidence. But I did not find any legal, reliable and unimpeachable evidence in this case. I am unhesitatingly of the opinion that the prosecution has utterly failed in proving such chain of circumstantial evidence as would fasten the guilt on the accused persons leaving no room for doubt.
73. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that :-
"Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
74. As a sequel to my findings above, I am of the opinion that the prosecution could not link the chain of circumstances and therefore the accused persons are entitled to be given the benefit of doubt in this case. I therefore give the benefit of doubt to the accused persons namely Kanchid @ Raja, Rashid @ Chairman, Matloob Ahmed and Maenuddin @ Maen and they are acquitted from the charges levelled against them u/s 364/302/201/120B IPC. Accused Kanchid @ Raja and Rashid @ FIR No.476/02 Page No. 124 State Vs. Kanchid Etc. Chairman are in JC. They be released from the jail forthwith if not required in any other case. Accused Matloob Ahmed and Maenuddin @ Maen are on bail. Their bail bond/surety bonds are cancelled and sureties are discharged. File be consigned to record room.
Announced in the open Court on 25.02.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE:FTC (New Delhi and South East District) NEW DELHI FIR No.476/02 Page No. 125 State Vs. Kanchid Etc.