Delhi District Court
State vs Mohd. Asif on 15 September, 2012
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.67/10
FIR No.109/10
PS Kamla Market
U/s 302/392/394/411/34 IPC
State
Versus
Mohd. Asif,
S/o Liyakat Ali,
R/o 127C, Gali No.3,
Krishan Kunj, Near Anar Wali Masjid,
Laxmi Nagar, Delhi. ......Accused
Date of institution : 03.10.2010
Date of Judgment : 15.09.2012
J U D G M E N T
Mohd. Asif, accused has been facing trial for an offence U/s 302 read with Sec.34 IPC, Sec.394, Sec.392 read with Sec.34 IPC and 411 IPC, on the prosecution allegation that on 08.09.2010, at about 4/4.30 a.m., in a room situated on the second floor of H.No.P286, Shakur Ki Dandi, Kamla Market, New Delhi, he, in furtherance of common intention of a juvenile committed murder of Smt. Hanifa, aged 50 years, by strangulating her. They are also alleged to have committed robbery of cash and jewellery articles belonging to FIR No.109/10 1 Smt. Hanifa.
2. Present case came to be registered on the statement of Mohd. Hashim. Smt. Hanifa was closely related to Mohd. Hashim as her sisterinlaw. She was putting up at H.No.P286, Shakur Ki Dandi, Kamla Market, New Delhi, for the last several days. Her husband had left this world about two years back. Mohd. Hashim used to take care of and help Smt. Hanifa.
On 07.09.2012, Mohd. Hanifa was present at the house of Smt. Hanifa from 3.00 p.m. to 12.30/12.45 a.m. Then, he left for his house situated in the area of Hauz Qazi crossing, Delhi. It is case of prosecution that at about 4.15/4.30 a.m. Mohd. Faim and Mohd. Alam, tenants in the building informed Mohd. Hashim that food was burning in the house of Smt. Hanifa, with smoke in abundance there but despite repeated calls Smt. Hanifa was not opening the door.
Mohd. Hashim asked Mohd. Faim and Mohd. Alam to go and help. After sometime he again telephonically contacted Pappu and Mohd. Alam. At that time, he came to know that two boys were present inside the room of Smt. Hanifa and that the room was lying bolted from inside. They further informed him to have bolted the door from outside.
Mohd. Hashim reached the spot, after sometime, and found crowd present there. He then informed PCR staff. Dead body of Smt. Hanifa was found lying on the floor with visible injury on her neck. Articles were found lying scattered. Drawers were found lying open. In a corner of the room, Mohd. Asif, accused and juvenile were found present. People told him that both these boys were FIR No.109/10 2 present inside the room of Smt. Hanifa.
Case of prosecution is that when Mohd. Hashim & Others were taking care of Smt. Hanifa, the accused and his companion slipped away from the spot.
Police reached the spot. Mohd. Hashim made statement before Inspector Jarnail Singh. The Inspector appended endorsement to the statement and sent rukka to the police station through Ct. Manoj and got this case registered.
SI Dhan Singh, Incharge of mobile crime team accompanied by other members including Ct. Dinesh, photographer inspector the spot and conducted proceedings. Inspector Jarnail Singh also inspected the spot and prepared rough site plan. During spot inspection, the Inspector collected one chunni from near the body, one pair of gents chappal and three small empty jewellery pouches, turned the same into parcel, sealed the same with the seal bearing impression 'JS' and seized the same vide seizure memo.
On 08.09.2010 at 7.00 a.m., Dr. Kulbhushan examined Smt. Hanifa and declared her 'brought dead'. Dead body of Smt. Hanifa was identified by Sharif Ahmed. Inspector Jarnail Singh conducted inquest proceedings. Dr. Kulbhushan of Maulana Azad Medical College conducted autopsy on the dead body of Smt. Hanifa on 08.09.2010. After the postmortem examination, Inspector Jarnail Singh seized, one sealed parcel sealed with the seal of hospital and sample of the seal deposited with MHC(M). SI Mahesh handed over to Inspector Jarnail Singh clothes of the deceased and a printed bed sheet which he sealed into parcel with his seal bearing impression 'JS' and seized the same.
On the same day i.e. 08.09.2010, Inspector Jarnail Singh received secret FIR No.109/10 3 information about presence of accused and his companion near Hathi Wala Park, Mata Sundari Road, Delhi. Complainant was also joined in investigation. On reaching there, Inspector Jarnail Singh, SI Mahesh and HC Satpal apprehended the accused and his companion Mohd. Naeem (Juvenile). Both of them were apprehended at the pointing out of complainant.
During interrogation the accused made disclosure statement and in pursuance thereof four artificial bangles, three gold rings, two chains and ear tops were got recovered. Inspector seized the aforesaid items got recovered after having turned the same into parcel and sealed the same with seal bearing impression 'JS'.
Naeem (Juvenile) made disclosure statement and got recovered. All these were identified by complainant Mohd. Hashim, sealed and then seized.
On 18.11.2010 SI Mahesh, draughtsman inspected the spot in the company of complainant Mohd. Hashim and prepared scaled site plan.
3. On completion of investigation, challan was put in court. Copies of documents relied upon by the prosecution were supplied to the accused free of costs U/s 207 Cr.P.C. Then case came to be committed to the Hon'ble Court of Session.
Charge
4. Prima facie case having been made out, charge for offences U/s 302 read with Sec.34 of IPC, Sec.392 read with Sec.34 IPC, Sec.394 read with Sec.34 IPC and 411 IPC was were framed against the accused on 19.01.2011, to which he pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to FIR No.109/10 4 lead evidence.
Prosecution Evidence
5. In order to prove its case prosecution examined, following 20 witnesses: PW1 Sharif Ahmed, Real brother of To prove identification of dead body of Smt. Hanifa Smt. Hanifa.
PW2 Rahees, Real brother of Smt. To prove identification of dead body of Hanifa Smt. Hanifa.
PW3 Mohd. Hashim Complainant.
PW4 Mohd. Alam To prove his having seen the accused and his companion at the house of Smt. Hanifa and also to have informed Mohd. Hashim as to what he and Faeem had observed inside the room of Smt. Hanifa.
PW5 Mohd. Faeem @ Pappu To prove having seen the accused and his companion at the house of Smt. Hanifa and also to have informed Mohd. Hashim as to what he and Alam had observed inside the room of Smt. Hanifa.
PW6 Lady Ct. Shimla To prove Ex.PW6/A got recorded regarding receipt of information on the night intervening 7/8.12.2010 that Smt. Hanifa, sisterinlaw of the informer had been killed by strangulation.
PW7 ASI Bodhraj, Duty Officer To prove DD no.6A Ex.PW7/A, FIR Ex.PW7/B, his endorsement Ex.PW7/C and copy of Ex.PW12/A DD no.7D.
PW8 HC Ajay Kumar Member of mobile crime team which inspected the place of occurrence on 08.09.2010.
PW9 SI Mahesh Kumar, To prove scaled site plan Ex.PW9/A on Draughtsman the basis of rough notes and measurements as pointed out by Mohd. Hashim at the spot.
FIR No.109/10 5 PW10 Dr. Ubaid, Jr. Resident, To prove MLC Ex.PW10/A of Smt. Maulana Azad Medical College Hanifa prepared on 08.09.2012 at 7.00 a.m. PW11 Ct. Dinesh, Member of crime To prove negatives Ex.PW11/A and their team positives Ex.PW11/B of 10 snaps taken by him at the place of occurrence on 08.09.2010.
PW12 SI Dhan Singh, Incharge To prove report Ex.PW12/A. Mobile Crime Team PW13 Ct. Kapil Kumar, Special To prove delivery of special reports in the messenger offices of Ilaqa Magistrate, DCP and Joint Commissioner of Police on 08.09.2012.
PW14 Ct. Ravinder To prove delivery of copy of DD no.6A to SI Mahesh on 08.09.2010.
PW15 HC Satpal To prove investigation part of the prosecution story, arrest of the accused and his companion - Juvenile, and recoveries.
PW16 Dr. Kulbhushan, Sr. To prove postmortem examination report Resident, Maulana Azad Medical Ex.PW16/B prepared in respect of dead College body of Smt. Hanifa PW17 Inspector Surinder Jeet Kaur, To prove investigation part of prosecution CAW Cell story.
PW18 Ct. Manoj Kumar To prove investigation part of prosecution story.
PW19 SI Mahesh Investigating Officer.
PW20 Inspector Jarnail Singh Investigating Officer.
Statement of Accused
6. When examined U/s 313 Cr.P.C., the accused denied all the incriminating circumstances regarding recovery, appearing in evidence against him and claimed false implication.
Plea put forth by accused reads as under : FIR No.109/10 6 Smt. Hanifa used to reside at the given address and that she had no child and further that her husband had died two years prior to the present case. I do not know if Smt. Hanifa was sister in law of PW3 Mohd. Hashim.
On the ground floor of the said property tenants used to reside. I do not know about any tenant in any other portion of the property. Mohd. Hashim used to visit Smt. Hanifa at the said house at about 9 pm and used to leave her house at about 2 am. Rest I do not know. I used to run the factory in front of the house Smt. Hanifa. Mohd. Hashim used to direct me that I should not operate the factory during the night and that I case I do not abide by his directions I shall have to face consequences.
In defence, accused has examined DW1 Sh. Miyaz Ali, DW2 Sh. Juber, DW3 Sh. Jaghruddin and DW4 Mohd. Sheyzad.
7. Arguments heard. File perused.
Medical Evidence
8. It is in the statement of PW10 Dr. Ubaid that Smt. Hanifa w/o Mohd. Rayees was brought to Maulana Azad Medical College on 08.09.2010 at 6.40 a.m. by one Qayum. She was medically examined at about 7.00 a.m. The patient was declared 'brought dead'. In this regard, Dr. Ubaid has proved MLC Ex.PW10/A. In her cross examination, the doctor witness stated that there was no external injury on the dead body of Smt. Hanifa and she was unconscious. Further, according to witness, history was given by Qayum.
A perusal of MLC Ex.PW10/A would reveal that she was brought to hospital on 08.09.2010 at 6.40 a.m. As per history, Smt. Hanifa was found lying unconscious at her house, at about 6.40 a.m. Dead body of Smt. Hanifa was subjected to autopsy by PW16 Dr. Kulbhushan. Postmortem examination report Ex.PW16/B depicts the external injuries and internal injuries observed on the dead body of Smt. Hanifa. FIR No.109/10 7
The cause of death in this case was asphyxia as combined effect of smothering and manual strangulation.
In view of medical evidence available on record, it stands proved that Smt. Hanifa died due to asphyxia and strangulation and probable duration that elapsed between her death and autopsy was about half a day. This goes to show that Smt. Hanifa died on the night intervening 7/8.09.2010.
Then the question arises is as to who caused the death of Smt. Hanifa. As noticed above, as prosecution, Mohd. Hashim was informed about the state of affairs at the house of Smt. Hanifa by PW Mohd. Alam and Mohd. Faeem. Mohd. Hashim subsequently reached there.
PW4
9. While appearing in court as PW4 Mohd. Alam has deposed that on 08.09.2012, he was residing at the third floor of house of Mohd. Hashim, in the area of Shakur Ki Dandi. During those days, Smt. Hanifa was living on the second floor of the same premises whereas Mohd. Faeem used to reside on the fourth floor.
According to PW4, on 08.09.2010 at about 4.30 a.m., when he was sleeping he smelt as if something was burning on the second floor of the house. He got up and heard voices emanating outside. Then he called out Smt. Hanifa but she did not respond. He alongwith Mohd. Faeem then called up Mohd. Hashim.
As instructed by him (Mohd. Hashim) both of them went downstairs to know as to what was the matter. On pushing the door, they found that same was FIR No.109/10 8 lying locked from inside. He and Mohd. Faeem tried to peep inside the room through a clink in the door. At that time, he saw accused present in court holding legs of Smt. Hanifa. Another thin built boy, was holding Smt. Hanifa by her neck.
Further, according to PW4, he and Mohd. Faeem locked the door from outside and informed Mohd. Hashim about it. Mohd. Hashim reached the spot in 1015 minutes. It is also in his statement that many persons from the neighbourhood gathered at the spot and after great effort, they could open the door. It was also informed that jewellery boxes were also lying scattered on the floor. On entering the room, they found the accused and his companion present inside.
PW5
10. Prosecution has examined Mohd. Faeem as PW5. According to this witness, during the days of occurrence, he was staying on the fourth floor of H.No.P286, Shakur Ki Dandi, Kamla Market, New Delhi. The same house was occupied by Smt. Hanifa, aged about 50 years. She was staying on the second floor. It is also in the statement of PW5 that during those days, he was observing Roza (fasts). He woke up at about 4.10 a.m., came out of his house and smelt bad smell was emanating from the second floor, where Smt. Hanifa was residing. He also witnessed smoke emerging from the second floor. Being apprehensive, he started calling out Smt. Hanifa, by name. Since, she did not respond, he called out Mohd. Alam who was residing on the third floor. Thereafter, he immediately called up Mohd. Hashim relative of Smt. Hanifa. FIR No.109/10 9
Further, according to the witness, he accompanied by Mohd. Alam came to the second floor pushed the door of Smt. Hanifa, but it did not open. He and Mohd. Alam then peeped into the room through the door and found Smt. Hanifa lying down on the floor. While Mohd. Asif, accused present in room was holding her by her legs, another boy of thin built was trying to strangulate her. Further according to the witness, he bolted the door from outside and immediately gave a call to Mohd. Hashim. Mohd. Hashim reached the spot within 1015 minutes. Many persons from the neighbourhood also came to the premises. At the spot, jewellery boxes were found lying scattered. Further, according to the witness, after great persuasion of everyone, the accused and his companion opened the door and that is how, public entered the room. It is also in his statement that the accused and his companion ran away from the spot. 1015 minutes thereafter, police reached the spot.
PW3
11. Mohd. Hashim has appeared as PW3. As noticed above, occurrence took place on 08.09.2010 at abut 4.00 / 4.30 a.m. The place of occurrence is on second floor of H.No.P286, Shakur Ki Dandi, Kamla Market, New Delhi. Smt. Hanifa (since deceased) was putting up in the said room. It has so come in the statement of PW3 Mohd. Hashim - complainant. In his statement U/s 313 Cr.P.C., accused has admitted that Smt. Hanifa used to reside at the given address. It is also case of prosecution that Smt. Hanifa had no child and her husband had died two years prior to the present occurrence. Mohd. Hashim has stated so as PW3 before the court. In his statement U/s 313 Cr.P.C., accused has FIR No.109/10 10 admitted this fact also. According to Mohd. Hashim, Smt. Hanifa was his bhabhi (sisterinlaw). According to accused, Mohd. Hashim used to visit Smt. Hanifa at the said house but he has displayed ignorance if Smt. Hanifa was sisterinlaw of Mohd. Hashim.
It is in the statement of PW3 Mohd. Hashim that H.No.P286, Shakur Ki Dandi, Kamla Market, New Delhi, is a four storeyed building and it was occupied by the tenants. Further according to him, Smt. Hanifa was living on earnings from rental income. He used to look after her and provide her medicines and other household articles.
As per statement of PW3 Mohd. Hashim, on 07.09.2010, at about 3.00 p.m., he reached the house of Smt. Hanifa. He remained there upto 12.30/12.45 a.m. and then left for his own house. As noticed above, in his statement U/s 313 Cr.P.C., Mohd. Ashif, accused has pleaded that Mohd. Hashim used to visit Smt. Hanifa, at the aforesaid house, at about 9.00 p.m. and used to leave the house at about 2.00 a.m. It has come in the statement of PW3 Mohd. Hashim that he had gone to house of Smt. Hanifa on 07.09.2010 to collect rent from his tenants. However, in his cross examination, he admitted that he has no document to show that he had gone to collect rent from his tenants. According to PW4 Mohd. Alam, PW3 Mohd. Hashim had not come to his room on 07.09.2010 to collect rent. This creates doubt in the version of prosecution regarding visit of Mohd. Hashim at the house of Smt. Hanifa on 07.09.2010 and that he stayed there till 12.30 a.m. during the night.
FIR No.109/10 11
It is also in the statement of PW3 that on 08.09.2010, at about 4.15/4.30 a.m., he received a call on his mobile phone from Mohd. Alam and Mohd. Faeem, tenants of Smt. Hanifa. At that time, he was told by tenants that smoke was coming from the kitchen of Smt. Hanifa and despite their calls from the roof, she was not responding; that the door was lying locked and Smt. Hanifa was not opening it.
Further according to PW3, he told Mohd. Faeem and Mohd. Alam to come downstairs and to try to get the door opened. 23 minutes thereafter when he again made a call on the phone of Mohd. Faeem, he told that two boys were inside the room of Smt. Hanifa and that the room was lying bolted from inside. Mohd. Faeem further informed him that they had bolted the room from inside also.
As regards his arrival at the scene of crime, PW3 Mohd. Hashim has deposed that he reached there within 1015 minutes and found that persons from the public had gathered there in the street and also in the stairs. Persons from the public were banging the door of room of Smt. Hanifa, but it was not being opened.
In the meanwhile, they heard someone saying that the room had been opened. He then rushed to the spot. Persons from the public were standing at the door of the room of Smt. Hanifa. Two boys Mohd. Asif, accused, present in court and his companion were found inside the room. Both of them were looking scared.
As regards the condition of Smt. Hanifa, the witness stated that she was FIR No.109/10 12 lying on the floor. She had injury on her neck. Her jewellery pouches were found lying there. Doors in the room were found lying open. Entire room was in a mess. Further, according to PW3 Mohd. Hashim, he rushed to take care of Smt. Hanifa but in the meanwhile, he found that Mohd. Asif and his companion had slipped away from the spot.
Learned defence counsel has contended that it is case of prosecution that PWs Mohd. Alam and Mohd. Faeem saw the accused and his companion present inside the room of Smt. Hanifa through the chink in the door of that room, but prosecution has failed to bring on record to suggest that there was some chink in the door. So the contention is that prosecution has failed to prove that Mohd. Alam and Mohd. Faeem could see inside the room.
On the other hand learned Addl. P.P. has submitted that presence of PWs Mohd. Alam and Mohd. Faeem, on the given date, time and place stands duly established and there being no suggestion from the side of defence that there was no chink in the door, there is no merit in the contention raised by learned defence counsel.
As noticed above, PWs Mohd. Alam and Mohd. Faeem have testified in court that they peeped inside the room and saw Mohd. Asif, accused holding Smt. Hanifa by her legs and another thin built boy holding her neck while the door was found lying locked from inside.
It was for the prosecution to establish that its witnesses had opportunity to peep inside the room through the door so as to prove the role attributed to the accused and his companion. However, there is no documentary evidence on FIR No.109/10 13 record to suggest that there was any chink in the door of room of Smt. Hanifa so as to provide the opportunity to any person present outside to see inside. In absence thereof, it is difficult to accept the version narrated by Mohd. Alam and Mohd. Faeem that they peeped through any chink in the door and saw the accused hold Smt. Hanifa by her legs and another boy by her neck.
Learned Addl. P.P. has referred to photograph Ex.PW11/B and submitted that as per this photograph from the upper portion of the door one could peep into the room, but this argument of Learned Addl. P.P. is without any basis as the photograph pertains to a door leading to a staircase.
12. Learned defence counsel has also pointed out that as per prosecution version, PW4 Mohd. Alam smelt as if something was burning and smoke was coming from the second floor but during investigation, no such evidence was collected in support of this version and as a result, it cannot be said that Mohd. Alam and Mohd. Faeem were attracted to be at the spot.
According to PW4 at 4.30 a.m., he suddenly smelt something burning on the second floor and thereafter, he accompanied by Mohd. Faeem called up Mohd. Hashim. According to PW5 Mohd. Faeem, about 4.10 a.m., he observed some smoke coming from the second floor and then also saw smoke emanating from the second floor where Smt. Hanifa was living.
Had anything been cooked by Smt. Hanifa, police must have seized the same to prove as to how PW4 & PW5 were attracted to spot. According to PW17, in the kitchen some eatable was found lying burning. However, there is nothing on record to suggest that any such material was seized by the police in FIR No.109/10 14 proof of this fact. However, there is nothing in the statement of PW20 Inspector Jarnail Singh, during investigation, he found that any meal was being cooked or that it was being found in burnt condition by the time they reached on the spot. A perusal of the crime team report Ex.PW12/A also does not reveal any such evidence observed by the members of the crime team at the spot.
It is significant to note that according to PW4 Mohd. Alam, he could also hear some voices from outside, but there is nothing in his statement as to whose voices these were and from where the same were emanating. PW5 Mohd. Faeem nowhere deposed to have heard any voice coming from any direction. In view of the above evidence, it remains unexplained as to how Mohd. Alam and Mohd. Faeem were attracted at the room of Mohd. Hanif at about 4.10 a.m. How accused and companion could escape?
13. In his cross examination PW4 Mohd. Alam clearly admitted that when the door of the room of the house of Smt. Hanifa was opened, many persons entered the room but he did not enter the room. After the room was opened, he went to take water and returned after couple of minutes. This goes to show that he himself did not notice the accused and his companion inside the room, when the door was opened.
It is available in the prosecution evidence that many persons were present in front of the door of the room of Smt. Hanifa PWs Mohd. Alam, Mohd. Faeem, Mohd. Hashim and others were present there. None of them has been examined.
It has also come in the evidence that initially the accused and his companion were not opening the door but ultimately they opened the door and FIR No.109/10 15 that is how the crowd entered the room. In such a situation, first of all, the crowd would have captured the accused and his companion so as to prevent their escape from the spot while some of them like Mohd. Hashim could take care of Smt. Hanifa. However, the prosecution witness, Mohd. Alam, Mohd. Faeem and Mohd. Hashim the court to believe that the accused and his companion made their good escape while they were taking care of Smt. Hanifa. This version put forth by this witness is not believable. Even if anyone of them was taking care of Smt. Hanifa no one would have left the accused and his companion unattended and rather, they would have immediately captured and detained them. No one else from the crowd has been examined to support the testimony of PW3, PW4 and PW5 that the accused and his companion were inside the room or that they were captured but they made good their escape from the spot. PW4 Mohd. Alam clearly stated in his cross examination that he had not seen the accused persons running away from the spot.
Accused not named in information given to PCR
14. It is case of the prosecution that DD no.6A came to be recorded at PS Kamla Market on 08.09.2010 at 4.55 a.m., on receipt of information from PCR staff that someone had informed about strangulation of his sisterinlaw. According to PW3 Mohd. Hashim, he had informed the PCR staff. Had Mohd. Hashim seen the accused and his companion inside the room, when the door was opened, he would not have inform the PCR staff that someone had strangulated his sisterinlaw. Then he would have named the accused and his companion. From the fact that he did not name anyone while informing the PCR staff goes to FIR No.109/10 16 show that neither the accused nor his companion were apprehended at the spot.
Who took Smt. Hanifa to hospital?
15. Learned defence counsel has pointed that as per MLC Ex PW10/A, Smt. Hanifa was brought to the LNJP Hospital by Qayum and that as per this MLC, no police official was accompanying the dead body, which belies the version of the prosecution that dead body was so recovered and brought to LNJP hospital by the police or SI Mahesh.
According to PW19 SI Mahesh as directed by Inspector Jarnail Singh, he took the dead body of the Smt. Hanifa to the hospital where she was brought dead. In case the dead body was so removed from the spot by SI Mahesh, then name of the SI must have been mentioned in MLC Ex PW10/A. Name of the SI does not find mention in the MLC. This goes to show that Smt. Hanifa was brought by Qayum, it becomes doubtful if Smt. Hanifa was brought to the hospital by SI Mahesh and that too from the spot.
It is surprising that during investigation, statement said Qayum was not recorded. He has also not been cited as witness. Only on examination of Qayum it could be gathered as to how he happened to bring the dead body of Smt. Hanifa. In absence of statement Qayum and nonjoining of the Qayum in the investigation, it becomes doubtful that dead body was brought to the hospital by SI Mahesh.
As per the information mentioned in the MLC, given by the Qayum, Smt. Hanifa was found lying unconscious at her home, at around 6 am.
As noticed above, according to PW4 & 5, they saw Smt. Hanifa inside her FIR No.109/10 17 room at about 4/4.30 am while being manhandled by the accused and his companion. As per history provided by Qayum to the doctor that Smt. Hanifa was found unconscious at her home at 6 am. This history again creates doubt in the version narrated by PW4, 5 & 6 that Smt. Hanifa was seen being held by accused by her legs and by his companion by her neck.
Arrest of the accused and recoveries
16. It is case of the prosecution that on 08.09.2010, Inspector Jarnail Singh received secret information about presence of accused and his companion near Hathi Wala Park, Mata Sundari Road, Delhi. On reaching there, Inspector Jarnail Singh, SI Mahesh and HC Satpal apprehended the accused and his companion Mohd. Naeem (Juvenile).
Inspector Jarnail Singh has appeared as PW20 and deposed about arrest of the accused and the companion in presence of SI Mahesh and Ct. Satpal near Hathi Wala Park, Mata Sundari Road, Delhi.
SI Mahesh has appeared as PW19 and stated on the point of arrest of the accused and his companion on the basis of secret information. According to PW19, complainant was also accompanying them at the time the accused and his companion were apprehended.
HC Satpal has appeared as PW15 and narrated the manner in which the accused and his companion were apprehended on 08.09.2010, at about 5.30 p.m. from the aforesaid place.
Prosecution has proved on record personal search memo and arrest memo Ex.PW3/C, Ex.PW3/D, Ex.PW3/G & Ex.PW3/H. FIR No.109/10 18 Further as per prosecution version, the accused and his companion made disclosure statements. According to PW20, Inspector Jarnail Singh, disclosure statements are Ex.PW3/I and Ex.PW3/J. In furtherance of his disclosure statement, Mohd. Asif accused got recovered four artificial bangles, three gold rings, two chains and ear tops. According to the Inspector, he seized these items vide memo Ex.PW3/E, after the same were turned into a parcel and sealed with seal bearing impression 'JS'. Complainant is alleged to have identified all these items.
Further, according to PW20 Inspector Jarnail Singh, Juvenile - companion of the present accused also produced some jewellery article from the pockets of his clothes, which were seized vide memo Ex.PW3/F. These items were also identified by the complainant.
PW19 SI Mahesh has also deposed about interrogation of the accused and his companion, recording of disclosure statements Ex.PW3/I and Ex.PW3/J and recovery of some items at the instance of Mohd. Asif accused. These items included bangles, bundas and rings. However, it is significant to note that PW19 could not remember as to from where Mohd. Asif got those items recovered. Had any recovery been effected in his presence, he would have stated about the same. This creates doubt about any recovery in his presence.
According to PW15 HC Satpal, Mohd. Asif got recovered the aforesaid items which were turned into a parcel, sealed and then seized vide recovery memo Ex.PW3/E. Further according to the witness, the juvenile was found in possession of one nose pin, one pearl necklace, Rs.6000/ in cash, one gold FIR No.109/10 19 necklace and one gold chain. These were also seized vide memo Ex.PW3/F, after the same were turned into a parcel and sealed with the aforesaid seal.
All these items were produced in court and identified by PW3 Mohd. Hashim, PW15 HC Satpal, PW19 SI Mahesh and PW20 Inspector Jarnail Singh. These have been exhibited as Ex.P4 to Ex.P14. To be specific, the items recovered from the accused are Ex.P10 to Ex.P14 whereas the items recovered from the juvenile are Ex.P4 to Ex.P9.
17. Learned Addl. PP for State has submitted that from the recovery of these items from the accused persons it can safely be said that it is the accused and his companion who were involved in commission of murder of Smt. Hanifa and robbery at her house.
18, On the other hand, learned defence counsel has contended that when prosecution has miserably failed to prove that accused and his companion were nabbed at the spot or that they managed to escape, and nothing incriminating was recovered from them or even in their possession at that time, it cannot be said that they were involved in commission of the crime.
As discussed above, according to PW4, PW 5 and PW6, the accused and his companion were found present in the room of Smt. Hanifa but they slipped away when the persons present their were taking are of Smt. Hanifa. This version of the prosecution that the accused persons and his companion were found present in the room and the slipped away has already been held to be doubtful. Even if it is assumed that the accused and his companion were seen inside the room, as discussed above, no one would have allowed them to slip FIR No.109/10 20 away and rather they would have been immediately handed over to the police. It is not believable that any such accused would keep in his possession any stolen article, while he apprehends arrest soon after door is opened.
In the given situation, accused and his companion would have rather immediately parted with the jewellery items, if any.
Furthermore, as per statement of the prosecution witnesses, on entering the room they had found jewellery boxes lying scattered inside the room. On having observed the jewellery boxes lying scattered on the floor of the room, anyone could imagine at the first sight that crime had taken place inside the room and in such a situation, accused and his companion must have been carrying robbed items. Accordingly, the persons present must have seen stolen property, if any, with them, conducted search of the accused and his companion and recovered the items from the them. However, there is nothing in the statements of PW4, PW5 and PW6 that anyone of them found the accused and his companion carrying any jewellery items. This creates doubts in the version of the prosecution that accused and his companion involved in commission of the crime or that articles Ex P4 to Ex P14 were taken away by them. It is not believable that till evening, accused and his companion were carrying any jewellery items with them.
Inspection by mobile crime team
19. It is case of prosecution that on the same day i.e. 08.09.2010 mobile crime team reached the spot. The team was headed by SI Dhan Singh. Ct. Dinesh, photographer was also a member of the team.
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According to PW11 Ct. Dinesh, on reaching LNJP Hospital, he snapped four photographs of the dead body. Thereafter, their team reached the spot i.e. P286, Shakur Ki Dandi, Kamla Market, New Delhi and took snaps of the place of occurrence. He developed Ex.PW11/B photographs from 14 negatives Ex.PW11/A. In his cross examination, PW11 stated to have started from PS Paharganj at 11.06 a.m., then reached PS Kamla Market then LNJP hospital and then the spot. According to the witness, they remained at the spot till 8.30 p.m., but he could not remember as to when they reached the spot. 23 persons from the ground floor were found near the place of occurrence, while they were present there.
PW Dhan Singh, incharge of the mobile crime team has also made to have firstly gone to Kamla Market and then LNJP Hospital where dead body of Smt. Hanifa was lying in the casualty. According to PW Dhan Singh, the photographer member of the crime team took photographs of dead body. Thereafter, they inspected the scene of crime. Even photographer took photographs. No chance print was available for being lifted as further stated by the witness.
Had the accused been involved, his finger print could be lifted or developed from the spot. Had any chance print been developed from the spot and tallied with the fingerprints of the accused, only then it could be said that it is the accused who was involved in commission of crime.
In view of the report of crime team, no chance print was available for being lifted, it cannot be said that the accused and his companion did commit robbery or in that process committed the murder of Smt. Hanifa.
Weighing of jewellery items
20. A perusal of recovery memos Ex.PW3/E and Ex.PW3/F would reveal that FIR No.109/10 22 weight of each item of jewellery finds specific mention therein. According to PW20 Inspector Jarnail Singh, these items were not got weighed from any shop. How this weight came to be mentioned, remains unexplained. The explanation furnished by Inspector Jarnail Singh that he had mentioned the approximate weight of the jewellery items, cannot be said to be satisfactory, the reason being that the Inspector, who is not a goldsmith, could not mention the approximate weight of the jewellery items. This goes to show that the Inspector has concealed the true facts.
Conclusion
21. In view of the above discussion, this Court finds that prosecution has miserably failed to bring home any of the charges against the accused beyond reasonable doubts. Extending the benefit of doubt, this Court hereby orders for acquittal of accused of the charge framed against him.
The jewellery items belonging to Smt. Hanifa be released to her legal heirs in accordance with law, and the other case property be disposed of, on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 15.09.2012 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
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