Delhi District Court
S T A T E vs (1) Sha H N A W A J @ Sonu on 9 October, 2009
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FIR No. 157/04
PS Welcome, Delhi
09.10.09
Present: Ld. Addl. P.P for the State.
Accused/convict Sonu @ Shahnawaj in J/C with
Sh. Abdul Sattar, Amicus Curiae, Advocate.
Vide my separate order on sentence announced
today, convict Sonu @ Shahnawaj is sentenced to rigorous
imprisonment for life for offence punishable U/s 302 IPC. He
shall also be liable to pay fine of Rs. 30,000/. The fine, if
recovered, shall be paid as the compensation to the mother of
the deceased/victim. In default of payment of fine, he shall
further undergo simple imprisonment for the period of one
year.
The benefit of Section 428 Cr.P.C be given to the
convict.
Copy of the judgment, order on sentence, charge,
evidence, statement of accused, exhibited documents etc. duly
attested by the reader of the Court be given to the convict, free
of cost. The case property i.e. recovered money be confiscated
to the State and the other case property be destroyed after the
expiry of the period of appeal. File be consigned to record
room.
(GURDEEP SINGH)
ASJ/KKD/9.10.09
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IN THE COURT OF SH. GURDEEP SINGH
ADDL. SESSION JUDGE04, NORTHEAST DISTRICT
KARKARDOOMA COURTS, DELHI.
FIR No. 157/04
PS: Welcome, Delhi
U/s 302/120B/34 IPC
ORDER ON SENTENCE
09.10.2009
Present: Sh. Virender Singh, Ld. Addl. P.P for State.
Accused/convict Sonu @ Shahnawaj in J/C with
Sh.Abdul Sattar, Amicus Curiae, Advocate.
Heard on sentence for accused Sonu @ Shahnawaj.
It is submitted on behalf of the convict that convict
is young and unmarried person. He was aged about 19 years,
at the time of commission of offence. He has no previous
involvement and has clean antecedents. He has old aged
parents to support. He is the sole bread earner of his family
and is responsible for supporting his old aged parents.
Therefore, lenient view is prayed for. It is further submitted
that this case does not fall in the category of rarest of the rare
case, therefore, the convict be given lesser imprisonment.
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In the present case, the convict had killed a young
child aged about 11 years and had given 20 stab injuries out of
which 4 injuries were given on the chest and one injury was
given in the abdomen.
On the other hand, Ld. Addl. P.P submits that in the
manner the child was killed, the convict be given examplery
punishment.
The Hon'ble Supreme Court in many cases has
reiterated that life imprisonment is the rule and death penalty
is the exception to be given only in the rarest of the rare case.
In Lehna V. State of Haryana, 2002 SCC (Cri) 526, it was held
that the death penalty can be awarded when:
(1)When the murder is committed in an
extremely brutal, grotesque, diabolical,
revolting, or dastardly manner so as to
arouse intense and extreme indignation
of the community.
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(2)When the murder is committed for a
motive which evinces total depravity and
meanness, e.g., murder by hired assassin
for money or reward, or coldblooded
murder for gains of a person visavis
whom the murderer is in a dominating
position or in a position of trust, or
murder is committed in the course for
betrayal of the motherland.
(3)When murder of a member of a
Scheduled Caste or minority community,
etc., is committed not for personal
reasons but in circumstances which
arouse social wrath, or in cases of "bride
burning" or "dowry deaths" or when
murder is committed in order to remarry
for the sake of extracting dowry once
again or to marry another woman on
account of infatuation.
(4)When the crime is enormous in
proportion. For instance when multiple
murders, say of all or almost all the
members of a family or a large number of
persons of a particular caste, community,
or locality, are committed.
(5)When the victim of murder is an
innocent child, or a helpless woman or
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old or infirm person or a person visavis
whom the murderer is in a dominating
position, or a public figure generally
loved and respected by the community.
In the present case, the deceased was killed by knife
blows. The deceased was the young child. However, the
convict was also in his adolescent age and there was no
previous enemity between the convict and the deceased.
Keeping in view the totality of the facts and
circumstances of the case, I am of the opinion that the present
case does not fall within the category of rarest of the rare case,
Convict Sonu @ Shahnawaj is accordingly sentenced to
rigorous imprisonment for life for offence punishable U/s 302
IPC. He shall also be liable to pay fine of Rs. 30,000/. The
fine, if recovered, shall be paid as the compensation to the
mother of the deceased/victim. In default of payment of fine,
he shall further undergo simple imprisonment for the period of
one year.
The benefit of Section 428 Cr.P.C be given to the
convict.
Copy of the judgment, order on sentence, charge,
evidence, statement of accused, exhibited documents etc. duly
attested by the reader of the Court be given to the convict, free
of cost. The case property i.e. recovered money be confiscated
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to the State and the other case property be destroyed after the
expiry of the period of appeal. File be consigned to record
room.
Announced in the open
Court today i.e on 09/10/2009
(GURDEEP SINGH)
Additional Sessions Judge
Karkardooma Courts, Delhi
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IN THE COURT OF SH. GURDEEP SINGH:ASJ 04
NORTH EAST DISTRICT: KARKARDOOMA
COURTS:DELHI
FIR No. 157 / 0 4
PS: Welcome, Delhi
U/ s 302 / 1 2 0 B / 3 4 IPC
Sessions Case No. : 56 / 0 9
Date of instit ution : 16 / 0 8 / 2 0 0 4
Date of committ al : 21 / 0 8 / 2 0 0 4
Date on which reserved for order : 03.10.09
Date of delivery of Ju dg m e n t : 03.10.09
S T A T E Versus (1) Sha h n a w a j @ Sonu
S /o Mohd.Afzal
R/o. B 77,Pili Mitti, Ja n t a
Colony, Delhi.
(2) Tahir @ Yamin
S /o Sh. Yasin Khan
R/o H.No. 190 / 1 , GAli No. 14,
Vijay Mohalla, Mauzp u r
Delhi.
(3) Wasi m @ Munna
S /o Sh. Nawab u d di n
R/o H.No. M109, Gali No.5
Subh a s h Mohalla,
Mauzp u r,Delhi.
J U D G M E N T
1.Accused Sha h n a w aj @ Sonu, Tahir @ Yamin and Wasim @ Munn a were sent up for trial by police of PS:Welcome, Delhi for offence punis h a ble U/ s 302 / 1 2 0 B / 3 4 IPC on the 7 8 allegations that on 21.05.200 4 , at about 8.15 PM, one passerby told ASI Devi Ram that one child aged about 10 11 years was lying near Kacha Rasta, Gand a Nala Patri, Delhi Jal Board, New Jaffraba d, Delhi. Then, ASI Devi Ram informed the same to the Duty Officer depute d at PS: Welcome. He also informed the duty officer that the dead body is having injury mark on this body. On this duty officer, vide DD No. 17 A recorded the report and S.I Emad ul Islam alongwith Ct. Deshr aj were sent to the spot. Inspector Ram Singh, Additional SHO alongwith Ct. Rajinder also reached at the spot in the Govern me n t vehicle. The SHO also reached at the spot and found the decease d was wearing brown colour cottoriged half pant, light grey colour round neck half sleeves Tshirt and 'hawai chapp al'. The clothes of the deceased were blood stained. The Crime Team and photogra p he r were called. The 8 9 deceased was having injury marks on his chest, stomac h and other parts of the body and the said injury marks were cause d by the sharp edged object. The blood was lying near the dead body. Some earth was wet near the spot which appear s to be due to urine of the deceased. The dead body could not be identified nor any eye witnes s was found at the spot. On this FIR U/ s 302 IPC was got registered. The blood stained earth, wet earth and 'chapal' (sleepers) alongwith eart h were taken into posses sion. The dead body was sent to mort u a ry, GTB Hospital. Smt. Farida, W/o Late Mohd. Salim came alongwith her brother in law Sh. Hameed Raza at GTB Hospital and identified the dead body of the decease d as Mohd. Sami @ Nanh a. The post morte m was conduc te d on 22.05.04 at about 11 AM and as per the post morte m report, the time since deat h was about 16 hours. Therefore, the time of 9 10 death comes between 7 to 8 PM. The dead body was noticed at 8.20 PM. The cause of death was shock as a result of hemorr h age produce d by ante mortem injuries to intern al organs. Injuries were produced by sharp edged weapon and injury No. 1, 2, 3, 5 and 9 are sufficient to cause deat h indepe n de n tly as well as collectively and it was opined that the opinion regarding the sexual assa ult will be given after obtaining the report of Anal swab. Smt. Farida i.e the mother of the deceased disclosed during the investigation that her son was take n by accuse d Sonu @ Shah n a w aj on the pretext of taking him to Gym. The elder brother of the deceased namely Sun ny also suspected accuse d Sonu and Tahir. One Ahmed Ali on 21.05.04 at about 8.00 PM, had seen the deceased with accuse d Sonu, Tahir and Wasim after crossing 66 feet road towards Jaffraba d pulia 65 feet road. On 24.05.04, accu se d 10 11 Shah n a w aj @ Son u was appre he n d e d at the insta nce of Farida i.e the mother of the deceased. Accused Sha h n a w aj @ Sonu confessed and at his insta nc e, accuse d Tahir @ Yamin was arreste d, who also made the disclos ure state me n t . Accused Tahir @ Yamin got recovered one knife and on the same day, at the insta nce of accused Sonu, accuse d Wasim was also appre he n d e d and he also confessed the crime. The medical examin a tion of accuse d Wasim @ Munn a was cond uc te d at GTB Hospital and doctor opined that there was nothing to suggest that the patient cannot have sexual intercour s e. The exhibits were sent to FSL for opinion. However, accused Ajam could not be arrested and he was declared proclaimed offender. After completion of the investigation, the charge sheet was filed.
2. After supplying the copies to the accuse d persons , the case was committed to the court 11 12 of session s vide order dated 21 / 0 8 / 2 0 0 4 .
3. My Ld. Predeces sor vide order dated 02 / 1 2 / 2 0 0 4 , after finding prima facie, charged the accused person s for the offence punis h a ble U/ s 302 / 1 2 0 B / 3 4 IPC to which they pleaded not guilty and claimed trial.
4. During the course of trial prosec u tion in support of their case examined as ma ny as 27 witnes se s.
The mat e r i a l witn e s s e s exa mi n e d by the prose c u t i o n are:
PW 1 Farida, the mother of the decease d, who proved the identification of the dead body Ex.PW3 /A of her son and is the witnes s of last seen.
PW 2 Sh. Ahmed Ali testified that on 21.05.04, at about 8 PM, he had seen accuse d Sha h n a w aj @ Sonu holding hand s of the deceased Nanhey and taking him alongwith accuse d Tahir and Wasim. 12 13
PW 3 Sun ny Sha hj a d is the brother of the deceased. He stated that accuse d Tahir had quarreled with him and accuse d had threate ne d him to kill his brother. PW 5 Mohd. Yunu s @ Lallu is the brother of accuse d Ajam (who is proclaimed offender). He stated that he came to know Sanjida was having illicit relations with Ajam. He stated that he coun seled his brother Ajam but he did not listen.
PW 6 Mohd. Nasir is the witness of conspiracy. He deposed that on 18.05.04 at about 7.00 PM, he had seen Ajam present near the house of accuse d Sonu and Tahir and Ajam was telling accuse d Sonu that the minor child namely Nanhe was proving to be a thorn in his plans and that they should remove him even by taking some more money from him.
PW 7 Rashid Ali is the witness regarding the 13 14 illicit relations between Ajam and Sanjida. He deposed that he has seen them in compromising position in the house of Hamid Raja who is the hus b a n d of Sanjida. PW 8 Mohd. Anwar and PW 9 Shaba n a are the witnesse s regarding the illicit relations of Sanjida and Ajam.
PW 10 Mohd. Aslam and PW 13 Sh. Abdul Rahim are also the witnes se s regarding the illicit relations of Sanjida and Ajam but they turne d hostile and did not support the prosec ution.
PW 16 Nissar Ahmed and PW 26 Sh. Mohinu d di n are the hostile witnes s. The form al witn e s s e s exa mi n e d by the prose c u t i o n are:
PW 4 ASI Devi Ram gave the informa tion regarding lying of the dead body to PS:
Welcome.
PW 11 Ct. Sahed Singh who delivered the 14 15 copy of the FIR bearing No. 157 / 2 0 0 4 to the senior officers and Area M.M. PW 12 S.I Suk hvir Singh who recorded the DD No. 17 A regarding the dead body and register the FIR Ex.PW12 / C and made his endorse me n t on the rukka Ex.PW12 / D . PW 14 Head Const a ble Anil Kumar is the photograp he r who took photograp h s of the spot Ex.PW14 / 1 to PW14 / 1 2 . He also placed on record the negatives of the said photograp h s Ex.PW14 / 1A to PW14 / 1 2A. PW 15 S.I Amad ul Islam who reached at the spot on the receipt of DD entry and lifted the blood stained eart h and sample earth and chapp al of the deceased Ex.P1 and seized the same vide seizure memo Ex.PW15 /A. PW 18 S.I Mukes h Kumar Jain who prepared the scaled site plan Ex.PW18 /A. PW 19 Dr. N.K Aggarwal who cond uc te d the post morte m and proved its report 15 16 Ex.PW19 /A and gave the opinion that there was nothing to suggest that sexual assa ul t has taken place over the deceased. PW 21 Inspector Rohta s h from Crime team who reached at the place of occurre nce and prepared the report of the crime scene Ex.PW21 /A. PW 23 Dr. S. Kohli who examined accuse d Wasim and prepared his MLC Ex.PW23 /A. PW 24 ASI Rajbir Singh hande d over the clothes of the deceased after post morte m and anal swab to the IO which were seized vide memo Ex.PW24 /A. PW 25 Ct. Rambir Singh who deposited the exhibits to the FSL.
The witn e s s e s of arre s t and inves t i g a t i o n exa mi n e d by the prose c u t i o n are: PW 17 H.C Tara Chan d who arrested accuse d Sha h n a w aj, at the insta n ce of mother of the deceased. He proved the 16 17 disclos ure state me n t of accuse d Sonu @ Shah n a w aj as Ex.PW17 /A, arrest memo and person al searc h memo of accuse d Sonu @ Shah n a w aj Ex.PW17 / B and PW17 / C respectively. He stated that accu se d Sonu @ Shah n a w aj got recovered Rs. 2800 / and one churri (meat cutter). PW 17 also proved the sketch of churri Ex.PW17 / D , seizure memo of churri and curre ncy note Ex.PW17 / E , seizure of blue coloured blood stained shirt Ex.PW17 / F . He also proved the arrest memo of accused Tahir Ex.PW17 / G and his person al searc h memo Ex.PW17 / H and disclos ure state me n t of accu se d Tahir PW17 / J , recovery of knife and its sketch Ex.PW17 / K, s eizure memo of knife Ex.PW17 / L. He also proved the arrest memo of accused Wasim Ex.PW17 / M , his personal searc h memo Ex.PW17 / N and his disclos ure state me n t Ex.PW17 / O . He also proved the recovery of gupti and Rs. 3000 / rupees from 17 18 the posses sion of accused Wasim, sketch of Gupti Ex.PW17 / P and its seizure memo Ex.PW17 / Q .
PW 20 Ct. Deshraj who alongwith S.I Amadul Islam reache d at the spot where ASI Devi Ram was already present.
PW 22 Ct. Yasin Khan joined the investigation with PW 17 and proved the churri recovered from accuse d Sonu @ Shah n a w aj as Ex.PW22 /Article 1, shirt of blue cover recovered from accuse d Sonu as Ex.PW22 /Article 2, knife recovered from accuse d Tahir Ex.PW22 /Article 3, shirt and T Shirt recovered from accuse d Wasim Ex.PW22 /Article 4 and PW22 /Article 5, currency notes recovered from accuse d Wasim as Ex.PW22 /Article 6 (colly.) and currency notes recovered from accused Shah n a w aj @ Sonu as Ex.PW22 /Article 7 (colly.).
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PW 27 Inspector Ran Singh is the Investigating Officer. He prepare d Tehrir Ex.PW27 /A, request for post morte m Ex.PW27 / C and application for postmorte m of dead body Ex.PW27 / D . He proved the seizure memo of blood stained earth, wet eart h near the dead body, sample earth and the sleepers worn by the deceased as Ex.PW27 / B . He also proved the dead body identification vide memo PW27 / E and PW1 /A and site plan Ex.PW27 / F .
5. Stateme n t of accused persons were recorded U/ s 313 Cr.P.C wherein accuse d person s denied the prosec u tion evidence and claimed innocence. Accused Sonu @ Sha h n a w aj and accuse d Wasim choses not to lead defence evidence. Accused Tahir examine d DW 1 Ms. Nisha Yadav in his defence.
6. I have heard Ld. Addl. P.P for the State and Sh. Abdul Sattar, Amicus Curiae, Advocate for the accused persons . I have also gone 19 20 through the record.
7. As per the FIR, the place of occurre nce was kacha rasta, ganda nala paveme nt, Delhi Jal Board, New Jaffraba d behind barbed wire which is recorded in the rukk a Ex.PW27 /A, which was at the dista nce of 1½ kms on the north direction from the police station. As per the FIR, the place of occurre nce was kacha rasta, ganda nala pagda n di, near Delhi Jal Board, sewage pumpi ng station behind barbed wire bound a ry near 65 feet road, Jaffraba d pulia. As per the rough site plan Ex.PW27 / F , the place is shown between Jal Board barbed wire and ganda nala on the kacha rasta. As per the scaled site plan, the dead body was lying at point A and at point D, there was a pulia. The dista nce between the two is about 2900 cms i.e 29 meters.
8. There are five sets of witnes se s. The first set of witnes se s is of with respect to the illicit relations between Sanjida and Ajam, which 20 21 is shown to be the motive. The second set of witnes s is the witness who had heard the conspiracy. The third set of the witnes se s are also of motive having the previous enemity with accuse d Sonu @ Saha n a w aj and accuse d Tahir with the brother of the deceased. The fourth set of the witnesse s are the witnesse s of the last seen and the fifth set of the witnesse s are the witnes se s of arrest, recovery and investigation.
9. Firstly, I shall examine the witnesse s with respect to motive of the illicit relations between Ajam and Sanjida.
10. PW 1 Farida, mother of the deceased, deposed with respect to the motive of the Ajam who is proclaimed offender that the Ajam was the son of mam a of her hus b a n d is the resident of Ramp u r District Etta, U.P. Her hus b a n d has expired. There were also relations with his elder brother Abdul Rahim and Mohd. Yunus and Idris with each other. 21 22
Ajam was not married and he did not intention ally want to marry since he had developed illicit relations hip with Sanjida W/o Hamid Raza i.e her jetha ni. Accused Ajam was residing alongwith her in her house since he was related to her mother in law Maqboolan. Hamid Raza had seen Ajam alongwith his wife Sanjida in compromising position on which Hamid had objected to their relations hip, thereafter, Ajam had brought Katta (country made pistol) from Ramp u r and threate ne d Hamid. On which, Hamid had became afraid and had stopped objecting to the relations hi p of Ajam and Sanjida. Once Ajam was beating Sanjida, the son of Sanjida namely Rashid, aged about 18 years, had seen him and thereafter, Ajam was turned out of the house, at that time, her son Nanhe (deceased) was also presen t. Thereafter, Ajam started residing in the house of her younger dewar Anwar where 22 23 Sanjida used to provide him food and wash a ble clothes. When Ajam was turne d out of the house by Rashid, Ajam called his brothers Yunus, Abdul, Raheem and also raised a dispute of Rs. 50,000 / agains t Sanjida. Despite, that after arriving at settleme nt , Sanjida would not meet Ajam but she contin ue d to meet him. Her son Nanh a (deceased) used to object to this meeting of Sanjida with Ajam while Ajam was residing in the house of her devar Anwar. Her son Nanh a used to report in this regard to his dadi and Anwar about the same. Sanjida used to provide food to Ajam at his new premises and the food used to be taken away by her son Nanha (deceased) and he used to object to the same. Ajam also gave beatings to her deceased son Nanh a on ma ny times. In her cross examin a tion, she admitted that there was illicit relations between Sanjida and Ajam and her son used to tau n t them in 23 24 this respect. She admitted that she had stated to the police that Ajam had got killed her son. The other part of her cross examin a tion in this respect is unc h alla nged.
11. PW 5 Mohd. Yunu s @ Lallu is the brother of the Ajam. He stated that he came to know Sanjida was having illicit relations with Ajam from the ladies. He alongwith his brother had couns eled Ajam on ma ny occasions but he did not agree. This witnes s is not the witnes s of having seen the illicit relations between Sanjida and Ajam but he had heard the same. However, he had coun seled Ajam to which he did not agree.
12. PW 7 Rashid Ali testified that he has been doing the work of property dealing from his office at Mama Property Dealer at main road Jaffrab a d. His house is adjace nt to the house No. 12 / 1 2 7 belonging to Farida and the door of both the house s opens towards Gali No.
14. He stated that half portion of H.No. 24 25 12 / 1 2 7 is occupied by Farida and remaining half one is occupied by Sarvar i.e the dewar of Farida who had expired. Ajam used to reside in the house of Sarvar and Ajam used to say 'fufi' i.e bua to the mother of Hamid Raza. He stated that Sanjida is the wife of Hamid Raza and she was having illicit relations with Ajam as he has seen both of them in a compromising position in the house of Sarvar. Ajam used to be given food by Sanjida and she used to prepare food for him. Mohd. Sami @ Nanhey (deceased) used to threate n Ajam that he will tell everybody about his relations hip with Sanjida and there used to be quarrel on this accou n t. Sanjida used to wash clothes of Mohd. Ajam. PW 7 Rahsid Ali was not cross examine d on this aspect.
13. PW 8 Mohd. Anwar also deposed that Ajam is the son of his matern al uncle, who used to reside in the house of Sarvar. He stated that 25 26 Ajam used to be served food by Sanjida i.e the wife of his eldest brother Hamid Raza. He stated that Sanjida was having illicit relations hi p with Azam. He knew this fact as he was residing alongwith his wife and children in a portion of the same house. He stated that there was panc h ay a t held in this respect. Panc h aya t member s had coun seled / a d vi sed both Sanjida and Ajam to desist their illicit relations hip but they had not complied with their advise. Further, he stated that he does not know as to whether Mohd. Sha mi @ Nanhey (deceased) used to say anyt hi ng regarding their illicit relations hi p of Sanjida and Ajam. He was cross examine d by Ld. Addl. P.P but he maint ai ned that he does not know what Nanhey used to say about the illicit relations hi p between Ajam and Sanjida.
14. PW 9 Shab a n a also stated that Sanjida was having illicit relations with Ajam. Nanhe was 26 27 a small boy and he generally used to see her going and talking with Mohd. Ajam. He used to object and tau n t Sanjida regarding her illicit relations hi p with Ajam. She had also advised Sanjida not to contin ue with her illicit relations hi p with Ajam but she did not pay any heed. She was also not cross examine d in this respect.
15. Therefore, from the testimonies of these witnes se s, it is established that there was illicit relations hi p between Ajam and Sanjida. Although, all the witnes se s supporting this version does not say whether Nanhey (deceased) was tau nti ng them but PW 1 Farida, PW 7 Rashid Ali and PW 9 Shab a n a supporte d that Nanhey was aware of the illicit relations hip and used to tau n t them and threate n them that he will disclose the same to the family member s.
16. The second set of witnes se s are the witnes se s who had last seen the decease d in 27 28 the compa ny of the accuse d persons .
17. PW 1 Farida, mother of the deceased, testified in this regard that on 21.05.04 at about 7 7.30 PM, after doing (offering) the nam az, she was coming from the house of Papp u chach a to her house who resides in the vicinity of her house. At that time, she had seen in the gali near her house that accuse d Sonu @ Shah n a w aj was taking her younger son Mohd. sam mi @ Nanha alongwith him by catching hold of his hand. She asked him as to where he was going as there was lot of work in the home to be done. On this, Sonu @ Sha h n a w aj had toldher that he was going to Jim (gym) alongwith her son Nanh a and that he would retur n back soon alongwith him. On this, she had told her son Mohd. Sami to retur n back early to the house and she came back to her house. When her son did not retur n home by 10 PM in the night, she became worried and had 28 29 gone out in searc h of him leaving her daugh ter Roji at the home. She had made enquiry regarding her son in the locality from the people residing there. She had also gone to the house of the mau s a of the accuse d Sonu who had take n her son where she found that accuse d Sonu was not present there on which she had contin u e d to search for her son in the gali and the mohalla. When at about 12 mid night when she was presen t in the gali outside the house, she saw accuse d Sonu coming towards her house. When she asked him as to where her son Nanh a was who had gone alongwith him on which he told that her son Nanh a had not gone alongwith him and Nanh a retur ne d from the corner of the gali. When Nanh a was not found, she had telephone d her mother from the house of her neighbo u r Tahir *not accuse d) at Bara Hindu Rao and he had inquired about him and at about 1.30 AM, 29 30 she gone to PS Seelam p u r alongwith her dewar Aslam and had lodged the missing report in respet of her son Nanh a. After lodging the missing report, she contin ue d also searc hi ng for her son Nanha but till the morning he could not be found. Thereafter, she had again gone to the PS: Seelamp u r in the morning of the next day alongwith the son of her jetha ni namely Raju. At that time, she had been told by the police official of PS Seelam p u r that she should go to PS Welcome to enquire about her son on which she had then proceeded to PS Welcome. Her jeth Hamid Raja had also reached PS Welcome. She inquired and came to know that the dead body of a child had been recovered from ganda nala in the area of PS Welcome. Thereafter, she alongwith Raju, his jeth and the police officials had gone to GTB Hospital and in the mort u a ry of GTB Hospital, she identified the dead body of her son. 30 31
18. In her cross examin a tion, she testified that she had not gone to gym to enquire about her son. She had waited for him as she was not aware of the addres s of the gym. She admitted that her son never used to be outside for so long (it should be outside her house for long). She stated that she cannot say whether any other boy from the neighbor hood also used to go to the gym. She made enquiries about her son from the relatives of accuse d Sonu. She, however, admitted that she never had fight with accuse d Sha h n a w aj @ Sonu. She also admitted that accuse d Sonu had never threate ne d her son Nanhey, the deceased. She denied the suggestion that she had not seen Sonu taking away her son on 21.05.04, at about 7 7.30 PM. There is no other cross examin a tion on this aspect.
19. PW 2 Ahmad Ali is the anot her witnes s of last seen. He testified that on 21.05.04, at 31 32 about 8.00 PM, he was present at his mater n al uncle shop near Jenea t School, Jaffrab a d. He had seen accuse d Sonu @ Shah n a w aj holding the hand s of decease d Nanhey and taking him alongwith him to the pulia towards Ja n t a Colony. Accused Tahir and Wasim were also prese nt alongwith them, at that time. He had thought, at that time, that they were going together for taking a walk since they all belonged to the same mohalla. He stated that on 22.05.04, in the morning, he came to know that Nanhey, the deceased had been murdere d. Police had also come to the mohalla. He had given his state me n t to the police to the effect that he had last seen the deceased Nanhey with the accuse d person s.
20. In his cross examin a tion on behalf of accuse d Wasim, PW 2 Ahmad Ali stated that the dista n ce between Mauzp u r and Jafra b a d is five minute s walk. He denied the 32 33 suggestion that accuse d Wasim was not residing in the locality of Mauzp u r, Subh a s h Mohalla. He could not tell as to what dress accuse d Wasim was wearing, at that time. He denied the suggestion that he does not know the na me of the accuse d Wasim and volunta rily, stated that he know his name since he is residing in the same locality. He stated that his state me n t was recorded by the police on 22.05.04 at about 11 12 A.M. He stated that he came to know about the death of deceased Nanhey at about 9 9.30 AM. He stated that he had not informed the police prior to receiving the informa tion regarding the deat h of Nanhey that he had last seen Nanhey. He had seen the accused persons alongwith the deceased Nanhey, at that time from a close dista nce i.e the dista nce of only 3 to 4 steps. In his cross examin a tion on behalf of accuse d Tahir, PW 2 Ahmad Ali stated that he cannot tell the 33 34 name of the shop of 'kaba di' from which side he had come to the place where he had seen the decease d with the accuse d person s. He stated that the person who used to sell the water melon is his mater n al uncle Hanif. He stated that he had not told the police about the fact of his coming from the side of 'kaba di' shop, when he had seen the accuse d persons with the decease d. He volunt a rily stated that he had been stan di ng at the shop of his mater n al uncle at that time. He had seen the house of accuse d Tahir. He stated that he knew accuse d Sonu @ Sha h n a w aj, Tahir and the decease d Nanhey from before and he had identified accuse d Wasim in the Court. He stated that accuse d Tahir was walking just behind Sonu @ Sha h n a w aj and the decease d Nanhey whose han d was being held by Sonu, at that time. He denied the suggestion that he has deposed in the Court on the tutoring of Farida, mother of the 34 35 deceased. He denied the suggestion that he had deposed agains t accuse d Tahir on accou n t of his previous enemity with him. He volunta rily stated that he had no enemity with accused Tahir. In his cross examin a tion on behalf of accuse d Sonu @ Sha h n a w a z, PW 2 stated that he had gone out of his house on his 'ferri' in the morning and retur n e d back to his house at about 6 7 PM. He stated that normally, he does not wear watch. He, however, denied the suggestion that the occurre nce can be of some minut e s prior to 8 PM or after 8 PM. He admitted that immediately after coming to know the deat h of Nanhey, he did not go to the house of the deceased and told that he had last seen the deceased Nanhey with the accuse d persons . He stated that he could not say where the deceased Nanhey had gone alongwith the accuse d, at that time.
21. The testimony of this witnes s has gone un 35 36 challanged as no enimity with accuse d Tahir has been shown by him. The testimony of the witnes s is consiste n t and despite, the cross examin a tion, he had stood with his testimony. The testimony of PW 2 has a ring of trut h.
22. Ld. Couns el on behalf of the accuse d person s sub mitte d that accuse d Wasim is not the resident of that area and therefore, testimony of PW2 with respect of accuse d Wasim is not trut hf ul.
23. As per the charge sheet, the addres s of accuse d Wasim is shown as Subh a s h Mohalla, Mauzp u r and the addres s of accuse d Tahir is shown as Vijay Mohalla, Mauzp u r s . PW 2 was given the suggestion that accuse d Wasim was not the resident of Subh a s h Mohalla, Mauzp ur to which he denied. As per the record and even as per the testimony of PW 2, accuse d Wasim was the resident of Subh a s h Mohalla, Mauzp ur. The 36 37 addres s of this witnes s is also that of Subh a s h Mohalla. Therefore, there cannot be any doubt about the veracity of the testimony of the witness with respect to the accuse d person s.
24. From the testimonies of PW Farida and PW Ahmad Ali, it is establis he d that Farida had seen accuse d Sonu holding the hand s of her son at about 7 7.30 PM and going and Farida had visited the house of accuse d Sonu in searc h of her deceased son Nanhey. Accused Sonu was not found in his house. Thirdly, when she met with accuse d Sonu at about 12 midnight, he denied that Nanhey had gone alongwith him and stated that he had retur ne d from the corner of the gali. Whereas, PW 2 Ahmad Ali had seen Nanhey alongwith accuse d Sonu holding his han d at near Zenat School, Jaffraba d and taking him alongwith him to the pulia towards Ja n t a Colony and they were closely followed by 37 38 accuse d Tahir and Wasim. Therefore, accuse d Sonu has falsely stated to the Farida i.e the mother of the deceased, that deceased had not gone alongwith him and had retur ne d from the corner of the gali.
25. The third set of the witnesse s are PW 1 Farida herself regarding the enemity between them and the accuse d person s. PW 1 Farida stated that about eight mont h s prior to the incident a quarrel had take n place between her sons Sun ny and Sami @ Nanh a with a boy na mely Tahir who was residing near the neighbor hood and at that time, accu se d Tahir had threate ne d that he would finish her sons. In her cross examina tion, she deposed that the relations between accuse d Tahir and her son Nanhey were not cordial and Tahir used to threate n her son. Tahir had threate ne d to kill her son. She made complaint in respect of this threat to the father of accuse d Tahir. However, she had 38 39 not made complaint to the police in this regard. She denied the suggestion that she has falsely implicated accuse d Tahir due to enemity. There is no challenge to this aspect to her state me n t regarding accuse d Tahir having threate ne d her son or had fight with them. Therefore, it is establis he d on record that accuse d Tahir had fight with her son about 8 mont h s prior to the occurre nce and Tahir had threate ne d to finish her sons.
26. PW 3 Sun ny Sha hj a d is the brother of the deceased. He testified that accuse d Shah n a w aj @ Sonu is known to him. He had quarrel with accuse d Sonu on accou n t of cassette s, about one and a half mont h s prior to the incident. Thereafter, he had stopped talking with accuse d Sonu, on accou n t of this, accused Sonu was harbo u ri ng jealousy against him. Accused Sonu @ Sha h n a w aj used to visit his house. Accused Sonu used to take his younger brother Mohd. Sami @ 39 40 Nanhey alongwith him for dance etc. He stated that sometimes, he used to become late at night, then, he used to go and get his brother Nanhey from accuse d Sha h n a w aj @ Sonu. He stated that accuse d Sonu @ Shah n a w aj also used to ask clothes and shoes from him to wear but he had not given the same to him. He stated that he also had quarrel with accuse d Tahir and Tahir threate ne d to kill his younger brother Mohd. Sami @ Nanhey. He stated that at that time, accuse d Tahir had gone away and he had again come after about one or two weeks, when they again had a physical fight and accuse d Tahir was abu si ng him, at that time. Thereafter, after about 4 5 days, a quarrel had taken place between him and Tahir. His brother Mohd. Sami @ Nanhey has expired. He suspect accu se d Tahir and Sha h n a w aj @ Sonu had murdered his brother.
27. In his cross examin a tion, PW 3 stated that 40 41 four days prior to the incident, he had gone to Ja m a t (gathering of muslims to learn religious teachings. He stated that he had gone to Sikan dr a b a d for gathering in Ja m a t . He stated that he came back from the Ja m a t on the next day of the incident. He stated that he had not lodged the report with the police in respect of his fight with accuse d Tahir, prior to the incident. He stated that he had not lodged any report with the police regarding the threat given by the accuse d Tahir to kill his brother, prior to the incident. He denied the suggestion that he never had any fight or quarrel with accuse d Tahir or that he has falsely implicated accuse d Tahir in the prese nt case.
28. PW 1 Farida had testified that the fight had taken place between accuse d Tahir and her sons about 8 mont h s ago. Wherea s, PW 3 Sun ny Sha hja d claims that the fight had taken place about 4 5 mont h s prior to the 41 42 incident. Thereafter, again after 4 5 days of the earlier fight. Therefore, there is inconsiste ncy between the testimony of PW 1 Farida and PW 3 Sun ny Sha hja d regarding fight with Tahir. It is not possible that fight had taken place about 4 5 mont h s ago which did not come to the notice of their mother i.e PW 1. Further, no police report was lodged in this regard which appare n tly shows that it was only fight amongs t children on trivial issues. There was no immediate motive proved against accused Tahir. The inconsiste ncy to the extent of more tha n three mont h s between the fights as deposed to by the mother and the son would further shows that it appear s to be a version created by them to give a colour of motive on the part of accuse d Tahir. As regards, accuse d Sonu @ Sha h n a w aj, PW 3 stated that he used to ask for clothes and shoes from him which he did not give and had quarrel with accuse d 42 43 Sonu @ Sha h n a w aj on accou nt of cassette s about 1½ mont h s prior to the incident. However, he stated that accused Sonu used to visit his house and used to take his younger brother (deceased) alongwith him for dance etc. Whereas, her mother Farida does not say so or impute any motive on accused Sonu @ Sha h n a w aj. Furt her, even if there was illwill on the part of accuse d Sonu @ Shah n a w aj, it was agains t PW 3 and not against the deceased, as per the state me n t of PW 3. Therefore, the motive agains t accuse d Sonu @ Sha h n a w aj is doubtful.
29. The other set of witnes s is with respect to the conspiracy. PW 6 Mohd. Nasir testified that he has been run ni ng the shop of property dealer in the na me and style of Nasir Property Dealer in Jaffraba d. He knew Ajam, Sha h n a w aj @ Sonu and Tahir being the resident s of his mohalla. On 18.05.0 4, at about 7.00 PM, when he was going towards 43 44 patlee gali from Gali No. 14, he had seen Ajam near the house of accused Tahir and accuse d Sonu and Azam were stan di ng at that place alongwith accuse d Tahir and Shah n a w aj @ Sonu. Azam was telling to accuse d Sonu and Tahir in his presence that minor child namely Nanhe was proving to be a thorn in his plans and that they should remove him even by taking some more money from him. Then accuse d Tahir and Saha n a w aj had told Ajam in his prese nce that they would do their work after the evening (maghrib) na m az on the coming Friday (jumm a). On hearing the abovesaid fact, he had passed alongside the accused in (through) the gali and gone ahead. After about a week on Satur d ay i.e 22.05.04, he had come to know that a dead body of a minor child had been found near the Nala at Welcome having knife stab wound s on his person. He had then came to know that the 44 45 dead body of the minor child was of Nahey on of Farida. On 27.05.0 4, he had met Farida and had told of the above facts to Farida. She had taken him to the police station where he had also told these facts to the police.
30. In his cross examin a tion, PW 6 Mohd. Nasir testified that he had studied upto 9 th stan d a r d. It was not dark in the gali when he was passi ng throug h the same and had seen the accuse d person s. He stated that gali no. 14 is having persons going by (it appears that it mea n s public persons were passing through gali, at that time). He had heard the accuse d person s talking at that time as they were conversing in normal tones. He was at a dista nce of about 6 7 feet from them at that time. He was stan di ng at the shop of scrap located in the gali at that time. He stated that he had not told anybody regarding the conversa tion heard by him of the accuse d 45 46 persons at that time. He had also not informed the police regarding the same, at that time. He had not attende d the last rites of Nanhey. He had not come to know that the deceased Nanhey was the son of Farida on 22.05.04. He came to know of the said fact on 25.05.04. He had not told this fact on 25.05.04 to Farida, mother of the deceased, or any other person. He denied the suggestion that he had given his state me n t to the police on 27.05.04 at the insta nc e of Farida.
31. In his cross examin a tion on behalf of accuse d Tahir, PW 6 stated that he knew Tahir since he was of his locality and was knowing him since about five years prior to the occurre nce. He denied the suggestion that he had ever any altercation or quarrel with Tahir. The accuse d had not seen him at the time when he had heard their conversa tions . He had not told of the fact of 46 47 the conversa tion to anybody prior to 27.05.04 since he had taken the same lightly. He stated that he could not tell what colour of clothes Tahir was wearing, at that time.
32. This witness had heard the conversa tion on 18.05.04 and he came to know on 22.05.04 that a dead body of the child has been found and that child was Nanhey despite that he came on 27.05.04 and told Farida about this fact. Furt he r, in his cross examin a tion, he denies this fact and stated that he does not know on 22.05.04 that Nanhey was the son of Farida. He came to know this fact on 25.05.04. On 25.05.04, he does not go to her or to the police. PW Mohd. Nasir is a property dealer living in the same Mohalla. He knows the accu se d persons who are the resident s of the same mohalla and also the deceased is the resident of the same mohalla, despite, that he does not attende d the last 47 48 rites of the deceased and despite living in the same mohalla, he does not know that Nanhey was the son of Farida. The cond uc t of this witnes s is very un n a t u r al and his testimony does not inspire confidence. It is also highly unlikely that the persons conspiring together will speak at a public place in a street which is used by the public as a thorough fare to discu s s the plan to get rid off child that to in a norm al voice audible to others. In the ma n ne r, his state me n t was recorded by the police after a gap of 5 days, I am of the opinion that his testimony cannot be relied upon to hold that the witness had heard Ajam, Sah n a w aj and Tahir conspiring together to finish the minor child Nanhey.
33. Now this leaves us to the testimonies of the witnes se s of the recovery. PW 17 Head Const a ble Tara Cha nd testified that on 24.05.04, he alongwith Inspector Ran Singh, H.C Mada n Pal, Ct. Yasmin Khan and Ct. 48 49 Saleem had joined investigation of this case. He stated that at about 11.00 AM they had gone to Zeenat Mahal School, 66 foota road in Tata 407 bearing No. DL 1LD 9987 which was parked by them at 66 foota road. They had already informed Smt. Fareeda, mother of the deceased Mohd. Sami @ Nanh a and she was called by them at Zeenat Mahal School to know the wherea bo u t s of Accused Sonu and Tahir. At about 02.35 PM, at the insta nce of Farida, accused Shah n a w aj @ Sonu was appre he n d e d from narrow lane (patli gali) near gali No. 14, Vijay Mohalla Maujpur, Delhi. He stated that accuse d Sonu was interrogated by the IO and his disclos ure state me n t Ex.PW17 /A was also recorded by the IO. Accused Sonu was arrested vide his arrest memo Ex.PW17 / B and his personal searc h was cond ucte d vide memo Ex.PW17 / C . He stated that state me n t of Smt. Farida was recorded by the IO and 49 50 thereafter, she was let off. As per his disclos ure state me n t , accused led them to the house of his ma u s a Nissar Ahmed in Gali No. 14 and he had produce d Rs. 2800 / and got recovered one churi (meat cutter) from behind an almira h from another room. Sketch of the churri was prepare d by the IO. After preparing the sketc h, currency notes and churri were separa tely sealed by the IO in the parcels and sealed with the seal of RS. and were taken into posses sion vide memo Ex.PW17 / E . Thereafter, they alongwith accuse d Sha h n a w aj went to Ganda Nala water pipe line Ja nt a Colony. Near the pipe line, there was no water. As per the disclos ure state me n t, accused Sonu had produce d one shirt of blue colour. Shirt was having blood stains and mud on it. He stated that during the investigation, accused Shah n a w aj had disclosed about the wherea bo u t s of accuse d Tahir. Thereafter, 50 51 Shah n a w aj had led us to a corner of Gali No. 12, Main Road Jaffraba d where accuse d Tahir was present and he was appre he n de d on the pointing out of accuse d Sha h n a w aj. Accused Tahir @ Yamin was interrogated by the IO and was arrested vide arrest memo Ex.PW17 / G and his person al searc h was conduc te d vide memo Ex. PW17 / H . Accused Tahir was interrogated and he made disclos ure state me n t Ex.PW17 / J . Accused had made disclos ure state me n t to get effected the recovery of knife. Accused led them to his house situa te d in Vijay Mohalla, Gali No.14, Maujpur, Delhi and had produce d one knfie from the Taand (parapit) of the room. Sketch of the knife Ex.PW17 / K was prepare d by the IO and thereafter, the parcel was made. Knife was having blood stains and dust on the blade. Thereafter, they alongwith both the accuse d person s went to ganda nala Jaffraba d pulia where 51 52 accuse d had pointed out to have thrown the shirt of Tahir but despite efforts, it could not be found. As per the disclos ure state me n t of accuse d Sha h n a w aj, they went to the house of accused Waseem @ Munn a but he was not found at his house. His mother was prese nt and she had informed that Waseem had gone to his sister's house at Shast ri Park. Thereafter, at about 10.30 PM, they alongwith mother of the accuse d went to Shas h t ri Park near red light north side direction where accuse d Sha h n a w aj had pointed out towards the accuse d Waseem who was presen t near the bus sta n d. Accused Waseem @ Munn a was arrested by the IO and his person al search was conduc te d vide memo Ex.PW17 / M and PW17 / N. He stated that accuse d Waseem was interrogated and he made disclos ure state me n t Ex.PW17 / O . As per the disclos ure state me n t of accuse d Waseem, they came to 52 53 his house NO. M109, Gali NO. 5, Sub h a s h Mohalla and he got recovered one gupti from under the double bed and he also produced Rs. 3000 / and one T Shirt which were also lying under the bed. At the time of recovery of gupti, accused had disclosed htat he had washe d the gupti but blood type stains were visible on the gupti. Sketch of the gupti was prepared. He stated that Gupti, TShirt and currency notes were separa tely converted into a cloth parcels and same was sealed and seized vide seizure memo Ex.PW17 / Q . He stated that accu se d Waseem was got medically examined at the GTB Hospital.
34. The testimony of PW 17 H.C Tara Chan d is corroborated by PW 22 Ct. Yasin Khan and PW 27 Inspector Ran Singh.
35. Ld. Couns el on behalf of the accuse d person s sub mitte d that the recovery is doubtful. The testimonies of the witnes se s of recovery are inconsiste n t and no public witnes s was 53 54 joined in the recovery. Furt her, the mother of the deceased was presen t alongwith them but she was discha rged before the recovery was effected which is not unders t a n d a ble.
36. PW 17 H.C Tara cha n d in his cross examin a tion has stated htat he joined the investigation on 24.05.0 4. He made the depart u re entry at the police station at 11 AM but he does not reme mber the DD num be r. They reache d at the spot at about 11.30 11.45 AM. The dista nce between the police station and the spot is about 2 2½ kms. He stated that Inspector Ran Singh called Farida at the spot at about 11.45 AM. He had not asked about the whereabo u t s of accuse d Sonu and Tahir from anybody. He stated that accu se d Sonu was appre he n d e d from narrow street No. 14 Vijay Mohalla. He stated that no public person / n e ig h b orer was called at the time of his arrest. IO recorded the state me n t of Farida at the spot at about 54 55 3.30 PM. IO recorded the disclos ure state me n t of accuse d Sonu @ Sha h n a w aj in gali No. 14 but he does not remem ber in front of whose house, his disclos ure state me n t was recorded. he stated that they reache d at the house of Nisar Ahmed on foot at about 5 PM. The dista nce between the house of Nisar Ahmad and the spot is about ½ km. He, however, could not tell what is the area of the house or in how many stories the house was built or how ma ny rooms were constr uc t e d on the second floor or how ma ny doors were prese n t in the house. He stated that the stairs were from inside the house. He stated that he does not know the direction of the door of the room in which recovery was effected but it was on 'tand'. He stated that the height of the tand was approxim ately 7 feet. The size of the tran sfor mer was of like comp u ter. The tran sfor mer was lying at the right side of the 55 56 tand on its corner but he does not know whether it was a stoned tand or concrete tand. He stated that accuse d himself removed the curre ncy notes from the tand with the help of the stool and same were hande d over to the IO. There was no identification mark on the curre ncy notes got recovered by the accuse d. He stated that he had not counte d the nu m be r of family members of Nisar Ahmed prese nt in the house. He does not know whether the Nisar or his wife were prese nt in the house as he does not know them. He stated that he does not know whether the copy of the seizure memo of currency notes Rs. 2800 / were hande d over to the accuse d or not. He admitted that there was residential area near the house of Nisar. He stated that IO did not record the state me n t of any public witnes s from the neighbor hood or Nisar and his wife in his prese nce at the spot. He had signed 56 57 the recovery memo of Rs. 2800 / as witnes s. He stated that accuse d Sonu also lead the police party at the first floor of the house and from where, he got recovered the churi lying under the almira h in a room. He does not remem ber how many rooms were on the first floor. The churi was recovered from the first room at the left side. The said room was about 10 X 10. The churi was blood stained and churi was also having mud on it. He stated that the churi was take n out by the accuse d himself and the same was uncovered. He stated that the blue colour shirt was recovered at the insta nce of accuse d Sonu near the nala at dry place but he does not reme mber whether it was a check or plain shirt. The shirt was blood stained or having mud. He does not remem ber as to how many spots of blood stains were prese nt but there was no cut mark on the shirt. The blood stains were on 57 58 the front side as well as on the arms. The blood stains were dried. He stated that accuse d Tahir was apprehe n d e d at about 7.30 PM from the corner of main road, Jaffrab a d, Gali No. 12. He stated that accuse d Tahir got recovered knife on the tand of his room. They reached at the house of accuse d Tahir at about 830 8.45 PM. The family member of the accuse d Tahir were presen t. He does not remem be r as there were how many rooms in the house and the meas u re m e n t s of the house. There were only one main gate. IO did not record the state me n t s of family members and neighborers of the accuse d. The height of the tand was about 5 foot. He does not remem ber whether the tand was made up of stone or concrete. He stated that the knife was uncovered. It was lying in the right to middle side of the tand. The length of the tand was about 8 9 foot. He stated that 58 59 accuse d Wasim was appre he n d e d at about 10.30 PM at near red light at dista nce of 50 steps from DTC bus stan d, Shas tri Park at the insta n ce of accuse d Sha h n a w aj. There was no identification mark on the gupti. He did not noticed whether the handle of gupti was of metal or wood. There was only one room at the ground floor. the door of the house was wooden but he does not remem ber its colour. He stated that there was no stairca se. The mother of the accuse d and two three other ladies were prese nt at the house. IO did not record the state me n t of any public person. He stated that accuse d taken out the gupti from the front side under the double bed and the said gupti was uncovered. The gupti was blood stained and having mud on the blade. Accused Wasim also taken out one full sleeves T shirt lying in the suitca se under the bed and said that the colour of the suitca se was of silver colour. 59 60
There was one pocket in the T Shirt. The blood stains were on the front side of the T shirt on entire portion. He did not noticed whether there were blood stains on its back side. Accused Wasim also got recovered Rs. 3000 / lying in the same suitca se.
37. On the other hand, PW 22 Ct. Yasin Khan does not say whether Farida was discha rged after arrest of accuse d Sonu before recovery was effected In his cross examin a tion, he stated that the mother of the deceased was called by the telephone but he does not remem ber the telephone num be r. The mother of the deceased was also in the bus (it should be with us) when they appre he n d e d accu sed Sonu @ Sha h a n a w aj. He stated that accuse d Sonu was appre he n d e d from the corner of gali no. 14. He stated that the resident s of the area living nearby were asked to join the investigation but none agreed. He stated that the IO 60 61 recorded the state me n t of Farida when the accuse d made the disclos ure state me n t . He does not reme mb er whether Farida also signed the confession al state me n t . He denied the suggestion that the confession al state me n t was not signed by Farida as she was not prese nt at the spot. He stated that accuse d Sonu @ Sahn aw aj led them at the second floor of the house of his ma u s a but he does not reme mber as to how ma ny rooms were in the house of his ma u s a or in how many yards his house was built. He stated hat accuse d Sonu take n out Rs. 2800 / under the stabliser on the tand of the room. The room was at the right side of the second floor. He does not remem ber what was at the left side of the house. He does not remem ber what was constr u c te d on the same floor beside the room from where the recovery was effected due to lapse of five years. He does not remem ber as to how 61 62 many family members were prese nt in the house of his ma u s a . He does not remem be r whether his ma u s a and ma u si were present or not. He denied the suggestion that there is no house in the gali belonging to Nisar i.e mau s a of the accu se d Sonu. He stated that there were houses adjoining the house of Nisar but he does not know who were the occupa n t s of those house s. He does not know the dista nce between the place of arrest of the accu se d and the house of his mau s a . He stated that the churri was recovered from the first floor from the beneat h of the almira h in the room situa te d at the left side of the house of his ma u s a . He stated that the churi was not visible. He stated that the churri was not having rust but it was having blood stains and mud. He stated that the curre ncy notes were lying loose and were not wrapped in any parcel beneat h the stablizer. The stablizer were of 62 63 mediu m size but he does not remem be r the colour of the stablizer. He stated that the shirt was found lying on the dried bed of the nala. The shirt was lying inside the nala at the side of nala which was dried near paveme nt (kachi pagda n di). The shirt was blood stained but he does not reme m be r the place of the blood stains and the dimension of the blood stain s. The colour of the shirt was of blue colour and was having one pocket but he does not remem be r the size of the shirt. He stated hat the family member s of the deceased were not called there to join the investigation. As regards accuse d Tahir, PW 22 stated that accuse d Tahir was arrested at about 7.15 7.30 PM. The knife was recovered from the tand of the room of accuse d Tahir. He does not remem ber the area of the house in which it was built. He stated that he also could not tell in how many stories, the house was built. The 63 64 recovery was effected from the ground floor. He does not remem ber how many rooms were built on the ground floor. He stated that he could not tell the size of the room and width of the tand. He stated that the height of the tand was about 6 feets. He stated that he does not know how the knife was hidden in the tand as accu se d himself produced the same. He stated that the knife was having blood stains and mud. He stated that accuse d Wasim was arrested at about 1.30 PM from Shas tri Park Bus Stand. He stated that the house of accuse d Wasim was surrou n d e d by other residential house s. He stated that the colour of the shirt got recovered by accu se d Wasim is Firozi. He stated that the washed stains of blood were on the front side of the shirt. He stated that there was no cover on the gupti. He stated that no public witness signed as a witness on the disclos ure state me n t He stated that the 64 65 information of arrest of accuse d Wasim was given to his mother who was also prese nt with them.
38. On the other han d, PW 27 Inspector Ran Singh in his cross examina tion stated that he had made the depart u re and arrival entry but he does not remem be r the same. He stated that they reache d to the house of Mohd. Nisar i.e Maus a of accuse d Shah n a w aj at about 3.00 PM. He stated that all the family member s of Mohd. Nisar were presen t in the house but he could not tell their nu m be r. He stated that he had not recorded the state me n t of any of them while recovering the curre ncy notes. He stated that the curre ncy notes were recovered from the 2 nd floor of the hou se and had been kept on the tand beneat h the stablizer. He stated hat the height of the tand was of about 8 feet. He could not tell the make, size, colour and identification of the said stablizer. He stated 65 66 that the knife was recovered from the first floor of the said house. The knife was taken out by accuse d Sha h n a w aj from under the almira h. He stated that no neighbo ure r was asked to become witnes s of recovery. He stated that on the knife recovered from accuse d Sha h n a w aj SAIUDA was written in English and it was rusted / b l ood stained / d u s t y . He Stated that they reache d to the ganda nala at about 5.00 PM. He stated that accu se d Wasim took them to Gali No. 5, Subh a s h Mohalla at about 11.45 PM, his mother and sister were prese nt in the house. He stated that suitca se was lying in the box of the bed. He stated that he could not tell the exact size, colour of the suitca s e. He stated that the sky blue colour shirt was lying inside the suitca se and in the fold of the shirt these curre ncy notes were kept. He stated that there were two rooms in the house of accuse d Tahir. The house was 66 67 single storey. He stated that the knife was taken out by the accuse d from the corner of the tand. He stated that it was not concealed. He stated that the father of the accuse d was presen t in the house but his state me n t was not recorded. He could not tell any identification mark on the knife. He stated that no public witness has joined as witnes s of recovery.
39. There are inconsiste ncies between the testimony of three witnes se s of the recovery with respect to the place of recovery i.e tand. One witnes s claims that the height of the tand was 6 feets, second claims the height of the tand was 7 feet and third witness claims that the height of the tand was 8 feet. All the three witnes se s are consiste nt that the public witnes se s were present including the family members of the accuse d person s but none of them were joined in the investigation. The witnes se s are also not sure 67 68 about the place from where they had effected the recovery and they take shield behind not having knowledge or that do not reme m be r that what was the area of the house or how many rooms were built in the house, which creates doubt whether they had actu ally visited the spot and effected the recovery as alleged by them. Although, it is a settled law that "nonjoining of the public witne s s e s do not in any manner bring down the credibility of the police witnes s e s, if they are, otherwise, found to be consistent" . The testimony of these three witnesse s are inconsiste n t with respect to the material aspect s of the matter i.e (1) as to how if the mother of the decease d Farida was present with them and accuse d Sonu was appre he n d e d at her insta nce, why she was not joined as the witnes s of recovery from the accuse d, (2) there are inconsiste ncies in the testimo nies whether Farida contin ue d to remain with them or left 68 69 after the accused Sonu was arrested. Further, Farida i.e the mother of the deceased in her own testimony does not at all speak a word that accuse d Sonu was arrested at her insta nc e or she was called to join the investigation, at the time of arrest of accuse d Sonu. Therefore, I am of the opinion that recoveries effected from the accuse d persons are doubtful.
40. The FSL result in respect of churri, knife and gupti were having soil similar to the soil, eart h with blood, wet soil and earth control. The blood was also detected on churri, knife, gupti, Tshirt and half pant. However, the blood could not be detected on shirt and T Shirt allegedly recovered from the accuse d persons . The blood group on T shirt, half pant and on blood stained gauge cloth appare n tly of decease d was found to be of AB group. However, no blood grouping of other weapon of offences could be found. 69 70 Therefore, these scientific evidence also does not lead us to any where as the blood on the recovered articles did not matc h with the blood of the deceased. Although, it is stated that the soil on the weapon of offence was similar to the soil where the dead body was found but again the staining of weapon of offence with the soil leaves ma ny question that what it answers. As while using the knife, one would not soil with mud. Be that as it may. Even otherwise, these evidence alone does not prove the complicity of the accuse d person s.
41. Now, we are left with the evidence of last seen and motive. As regards the motive, the motive is appare n tly with Ajam to finish of Nanhey as he was appre he n sive about Nanhe who was creating trouble for him by disclosing his illicit relations with Sanjida. However, this motive cannot be impute d to accuse d Sonu, Tahir and Wasim. Once, the 70 71 theory of conspiracy is rejected, this motive becomes irrelevant.
42. In my considered opinion, the prosec ution has succeeded in proving the following insta nce s against accuse d Sonu @ Shah n a w aj.
(1) that the dead body was found lying near kacha rasta at about 8.15 PM. (2) that accuse d Sonu @ Shah n a w aj was last seen by mother of the deceased i.e PW1 at about 7 7.30 PM with the decease d going alongwith him holding his hand. (3) PW 2 Ahmed Ali had seen Sonu @ Shah n a w aj holding the hand s of the deceased going to the pulia towards Ja n t a Colony near the place where the dead body was found.
(4) the dista nce between the pulia and the place of kacha rasta is very less and the time of death and the last seen is so proximate 71 72 that it is unlikely that there can be any other intervention by any other person during the said period.
(5) When PW 1 Farida, the mother of the deceased, visits the house of accuse d Sonu @ Shah n a w aj between 7.30 PM and 12:00 midnight, accuse d Sonu was also missing from his house.
(6) Accused Sonu @ Sha h n a w aj is seen by PW 1, the mother of the deceased, at 12 midnight retur ni ng to his house near her house (7) PW 1 questioned accuse d Sonu @ Shah n a w aj as to where her son is. On this, accuse d Sonu @ Shah n a w aj gave false reply and stated that her son had retur n e d back from the corner of the gali and did not go with him.
43. The law on the circu m s t a n ti al evidence is now well settled by Hon'ble Supre me Court 72 73 in "State of U.P. Vs. Satish", AIR 2005 Supre me Court 1000 . Observed with approval the law laid down in "Padala Veera Reddy Vs. State of A. P." (AIR 1990 SC 79) it was held by Hon'ble Supre me Court that when a case rests upon circum s t a n ti al evidence, suc h evidence mus t satisfy the following tests :
1) the circumstance s from which an inference of guilt is sought to be drawn, must be cogently and firmly establishe d ;
2) those circumstance s should be of a definite tendenc y unerringly pointing toward s guilt of the accuse d;
3) the circumstance, 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 accuse d and none else; and
4) the circumstantial evidence in order to 73 74 sustain conviction must be complete and incapable of explanation of any other hypothe sis than that of guilt of th29e accuse d and such evidence should not only be consistent with the guilt of the accuse d but should be inconsistent with his innocence.
44. Further, the law is settled that a fact within a special knowledge of a person has to be explained by the said person U/ s 106 of the Indian Evidence Act. The Hon'ble Supre me Court in "State of Rajastha n Vs. Kashi Ram", AIR 2007 SC 144 observed as under: "It is not neces s ar y to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is specially within the knowle dge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the decease d, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. 74 75 If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstance s proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is alway s upon the prosecution. It lays down the rule that when the accuse d does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothe si s compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218."
45. The prosec ution with cogent and consiste n t evidence has proved the above stated circu m s t a n c e s against the accuse d Sonu @ Shah n a w aj. The decease d was seen minute s before his deat h with Sonu @ Sha h n a w aj near the place where the dead body was 75 76 found. There was close proximity between the place and time of deat h as well as when deceased was last seen alive in the compa ny of accuse d Sonu @ Sha h n a w aj. However, in his state me n t U/ s 313 Cr.P.C, he simply state s that the same is incorrect. He does not explained as to where he had gone. Same was within the exclusive knowledge of accuse d Sonu @ Shah n a w aj as to where the deceased Nanhey had gone from pulia. The burde n U/ s 106 of Evidence Act now shifts to accuse d Sonu to explain as to where the deceased had gone or where he had left him which accuse d Sonu failed to explain and therefore, this missing link is filled by the non explana tion on the part of accuse d Sonu. Therefore, the prosecu tion has succeeded in completing the chain of the circu m s t a n c e s, which unerringly points towards accuse d Sonu being the person who had committed the murder of the deceased 76 77 and there is no hypothe sis of innoce nce against him. It is a settled law that that the motive is not neces s a ry to be proved. The Hon'ble Supre me Court in case titled as "Ujjagar Singh Vs. State of Punjab", (2007) 14 SCALE 428 observed as under: "It is true that in a case relating to circumstantial evidence motive does assu m e great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the clichi) the motive is in the mind of the accused and can seldom be fathome d with any degree of accuracy."
46. Subseq u e n t conduc t of accuse d Sonu @ Shah n a w aj of stating falsehood to the mother of the deceased is anot her strong circu m s t a n c e which is additional circu m s t a n c e from which inference of his guilt can be drawn and which rejects any hypothe sis of his innocence.
47. As regards, accuse d Tahir, the 77 78 circu m s t a n c e s proved by the prosec ution are that he had a fight with the decease d and his brother about 8 mont h s prior to the occurre nce and he had threate ne d that he would kill Nanhey and he was seen going behind accuse d Sonu on the date of occurre nce by PW 2 Ahmad Ali. The motive of threat given about 8 mont h s ago is far fetched to conclude that he has execute the threat which he has given 8 mont h s ago. The fact that he was going with accuse d Sonu is only circum s t a n c e which alone cannot in the abse nce of any other circu m s t a n c e points towards the guilt of the accused Tahir and on that accuse d, accuse d Tahir is entitled to benefit of doubt.
48. Similarly, as regards accuse d Wasim @ Mun n a , the only circu m s t a n c e proved against him is that he was going behind accuse d Sonu and Tahir on the date of occurre nce. The possibility that he might be 78 79 going indepe n de n tly of the others or before the place of occurre nce, he might have left for some other destina tion cannot be ruled out. Accordingly, accuse d Wasim @ Munn a is also entitled to benefit of doubt.
49. As per the discus sion above, I am of the opinion that the prosec ution has succeeded in proving the offence punis h a ble U/ s 302 IPC agains t accu se d Sonu @ Sha h n a w aj beyond reason a ble doubt. He is accordingly convicted for the offence punis h a ble U/ s 302 IPC. Accused Tahir @ Yamin and Wasim@ Mun n a are acquitted of the charges. Accused Tahir and Wasim be released from J / C , forthwith, if not required in any other case. Announce d in the open Court today i.e on 03 / 1 0 / 0 9 (GURDEEP SINGH) Additional Sessions Ju dge Karkardoom a Courts, Delhi 79