Delhi District Court
State vs . 1. Akeel Ahmed, S/O Mohd. Umar on 30 April, 2014
IN THE COURT OF SH. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE :NORTH EAST:
KARKARDOOMA COURTS, DELHI
SC No.86/2012
FIR No.238/2003
PS M.S. Park
U/s 302/201/120B/34 IPC
State Vs. 1. Akeel Ahmed, S/o Mohd. Umar
R/o H. No.C31, Gali No.1,
Jawahar Park, Ghaziabad, U.P.
2. Arif @ Rahul, S/o Abdul Mannan,
R/o H468, Welcome, Delhi.
3. Kadim, S/o Salim,
R/o H. No.173, Gali No.6,
Jawahar Park, P.S. Sahibabad,
District Ghaziabad, U.P.
4. Farukh S/o Babu Khan,
R/o H. No.173, Gali No.6,
Jawahar Park, P.S. Sahibabad,
District Ghaziabad, U.P.
5. Gufran, S/o Bela Pahalwan,
R/o B274, Welcome, Delhi.
6. Pawan Sharma, S/o Ved Prakash Sharma,
R/o 1/6314, East Rohtas Nagar,
Shahdara, Delhi.
7. Asha Chaudhry @ Pooja,
D/o Dharmendra Chaudhary,
R/o H. No.302, Gali No.2, Baljeet Nagar,
Patel Nagar, Delhi.
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.1 of pages 97
:J U D G M E N T:
1. The above named accused persons have been charge
sheeted and have faced trial for having committed the offence
punishable u/s 302/201/120B/34 IPC.
2. As per prosecution, Neeraj Gupta (the deceased) was
running a business of visual equipments under the name and
style of M/s A.V. Focus and had offices at Kalkaji and
Barakhamba Road, New Delhi and at Dehradoon and was a
resident of A48, Shakti Apartments, Rohini, Delhi. On
31.07.2003, at about 8.30 a.m, he left his house in his Lancer
Car No.DL2C5055 but did not return home till the morning of
01.08.2003. Smt. Deepa Gupta, W/o Neeraj Gupta came to
know from his driver namely Bhagirath that Neeraj had left his
Kalkaji office in his car with Bhagirath at about 2.30 p.m on
31.07.2003. Neeraj got the car parked at Metro Station
Shahdara and asked Bhagirath to wait till he returns but he did
not return the whole night, while Bhagirath waited and returned
only in the morning of next date. On 01.08.2003, Smt. Deepa
lodged a missing report at 6.05 p.m. at PS Shahdara, where
DD No.15A was recorded. In the said report she gave details
of her husband and mentioned that her husband was wearing
white pant, light blue shirt, black shoes and white shocks.
On 01.08.2003 itself, at 10.35 a.m, vide DD No.6A an
information regarding recovery of a dead body contained in
gunny bag was recorded at PS Mansarovar Park (which was
subsequently identified as that of Neeraj Gupta).
On receipt of DD No.6A, SI Arun Chaudhary alongwith
ASI Dharamvir Singh and other staff members, reached at spot
i.e. G.T. Road, Shahdara, near Desi Sharab Theka under
flyover G.T. Road, where one gunny bag was lying and besides
the bag some blood was lying on the earth. On checking the
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bag, after getting the same opened, one dead body of an
unknown male aged about 25/30 years, height 5'.6",
complexion fair, strong built up, round face having mark of an
old injury on forehead, was found and one white colour
handkerchief was found lying on the private part of the body.
SHO Shahdara and Addl. SHO PS M.S Park also reached at
the spot. Dog Squad Crime Team also arrived at the spot.
Photographs of the dead body were got done. On checking
the body incised wounds, on both the sides of chest and
stomach, lacerated wound on the head and around the neck,
ligature marks, were found. There was a white metal ring in
the middle finger of the right hand of body. The tongue was
found stuck between the teeth and from the circumstances, it
was appearing that after killing the man somewhere else, his
dead body was dumped at the aforesaid spot at G.T. Road,
Shahdara. On the aforesaid circumstances, after getting the
FIR registered, U/s 302/201 IPC, the investigation was initiated
by Insp. Kamla Meena. During the course of investigation, IO
recorded the statements of witnesses. Dog Squad Incharge
Ct. Rajender Singh informed that due to heavy rain at the spot
and non finding of other articles, the use of Dog Squad can not
be made. After inspecting the spot, IO prepared the Site Plan
and for the purpose of getting the dead body identified, got the
message flashed to all DCPs & SSPs in India and all SHOs in
Delhi but the same could not be identified. Thereafter, the dead
body was sent to Mortuary GTB Hospital for preservation. On
01.08.2003 itself, complainant Deepa Gupta and Bhagirath
(driver) alongwith SI Arun Kumar met with Insp. Kamla Meena
and SI Arun Kumar informed her about lodging of report by Ms.
Deepa Gupta regarding missing of her husband Neeraj Gupta,
vide DD no.15A at PS Shahdara and accordingly they were
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shown the dead body at the said mortuary for the purpose of
identification and they identified the dead body to be of Neeraj
Gupta (deceased). Insp. Kamla Meena, collected the duplicate
report of DD No.15A from SI Arun Kumar. Complainant Deepa
Gupta informed that besides other things/goods, her husband
Neeraj Gupta was also carrying his mobile phone bearing no.
9810006511 and accordingly IO got collected the call details of
the mobile phone of deceased Neeraj Gupta and on analyzing
the said record, it was revealed that after 26.07.2003,
deceased Neeraj Gupta had made calls at phone no.
9811582375 on many occasions and had also received the
calls on his mobile number from said phone. Contact to the
user of said mobile phone bearing no.9811582375 i.e. Sh.
Prem Nath Nagpal, was made, who informed that he had lost
his mobile on 26.07.2003. Accordingly, call details of the said
mobile phone pertaining to the period from 02.07.2003 to
02.08.2003 were collected. On 02.08.2003, postmortem on
the dead body of Neeraj Gupta was got conducted whereupon
doctor mentioned cause of death-asphyxia due to
antemortem strangulation by ligature and also mentioned
that fourteen injuries were found on the dead body.
Thereafter, the dead body of Neeraj Gupta was handed over to
his father namely Fakir Chand. On analyzing the call details of
mobile no.9811582375, it was revealed that on 30.07.2003 from
the phone no.36984880, three calls were received at the said
mobile phone no.9811582375. On making inquiry, the name of
the registered owner of said mobile number was revealed as
Smt. Bilkis Begum, who told that the said mobile number was
used by his son Abid. Abid told to the police that on
30.07.2003 at about 4.15 p.m., his friend Arif had used his
mobile phone and talked to someone. Accordingly, on the
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pointing out of Abid, his friend Arif was apprehended and on
interrogation, he disclosed that he used to ply rehdi at Dariya
Ganj Sabzi Mandi and about 2-2½ years back (from that time)
he met with one Asha Chaudhary @ Pooja near India Gate.
Thereafter, they both started loving each other and used to go
to the house of each other. Asha @ Pooja told him that for the
purpose of getting a job, she went to the office of Neeraj Gupta
situated at Barakhama Road, New Delhi, where after interview
Neeraj Gupta besides offering her a job on the monthly salary
of Rs.5,000/ also offered a friendship proposal to her but she
refused and also left the said job. Around twothree months
prior to the date of his disclosure, Asha @ Pooja in order to get
her a good job, approached to Neeraj Gupta at his office
situated at Kalkaji for getting a recommendation letter, where
Neeraj Gupta forcibly tried to sexually assault her and she
while narrating the said incident to him, instigated him to teach
a lesson to Neeraj Gupta and accordingly, he made up his
mind for taking revenge from Neeraj Gupta for his act of
misbehavior with his lover Asha @ Pooja and for that purpose
he sought help from his friends namely Qadeem, Farukh and
Gufran. He also joined one Pawan Sharma in the plan to whom
he knew through his friend Parveen and he told him that "ek
bahut paise wali party hai jiski Asha @ Pooja ke sath blue film
taiyar karke paise aithney hai aur uske liye tumhara ghar
istemaal karna hai". Said Pawan Sharma agreed for the same.
Apart from that he alongwith his coassociates namely
Qadeem, Farukh, Gurfan and Asha @ Pooja hatched a
conspiracy to kill Neeraj Gupta. He also hatched a conspiracy
with his associates/friends that they will extract money from
Neeraj Gupta after making his blue film with Asha @ Pooja
and thereafter, they will kill him. In order to give colour to the
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said conspiracy, he purchased a SIM card from a drug edict
and from that phone he started making friendship with Neeraj
Kumar and allured him for getting his meeting fixed with Asha
@ Pooja and for that purpose he invited him at Shahdara. In
order to make his blue film with Asha @ Pooja, he asked his
friend Gufran to bring his video camera, to which he said that
his video camera was out of order, to which he (Arif) told that
their work will be done by only showing video camera to Neeraj
Gupta. According to plan, on 31.07.2003 Asha @ Pooja made
a call from mobile no.9811582375 (which was purchased by
him from a drug edict), on the mobile phone of Neeraj Gupta
and asked him to come to Shahdara. After leaving Neeraj
Gupta at the house of Pawan Sharma, she herself manage to
escape from there and after leaving the house of Pawan
Sharma by Asha @ Pooja, Qadeem, Gurfan and Farukh
entered in the house of Pawan Kumar and without telling
anything, they made Pawan Sharma to sit in an another room.
They all four took Neeraj Gupta to a room situated inside and
made him nude and attacked on his chest with blade, to which
he started shouting and they switched on the deck lying in the
room in full volume and then they tied the hands and legs of
Neeraj Gupta with rope. In order to put Neeraj Gupta in fear,
Qadeem and Farukh also inflicted injury on the person of
Neeraj Gupta with blade. Thereafter, he (Arif) and Qadeem
made themselves sit on the chest and legs of Neeraj Gupta
respectively and pressed him, whereas, Farukh and Gufran
with the help of rope/string killed Neeraj Gupta by
strangulation. After killing Neeraj Gupta, he (Arif) retained
watch (RADO) and shoes with him; Qadeem took out the ear
rings of Neeraj Gupta; Farukh took out the digital diary from the
pocket of Neeraj Gupta and Gufran took the purse and belt of
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Neeraj Gupta. Thereafter, they called Pawan Sharma and after
seeing the dead body he became perplexed but since the
incident took place at his house, so he agreed with them in
disposing of the dead body. Accordingly, they kept the dead
body of Neeraj Gupta in a gunny bag (taat ki bori) lying in his
house and tied the mouth of gunny bag with the help of same
rope, with which they had killed Neeraj Gupta. Thereafter, they
kept the dead body of Neeraj Gupta on the first floor of the
house of Pawan Sharma and then he (Arif) alongwith Farukh
and Qadeem went to the house of the friend of Farukh namely
Akeel Ahmed at Jawahar Park to whom they narrated about
the incident and in order to dispose off the dead body of Neeraj
Gupta, they asked for his motorcycle bearing no.DL7SS0387,
to which he agreed and accordingly, they alongwith the
motorcycle reached at the house of Pawan Sharma. They
brought down the gunny bag (bori) having dead body of Neeraj
Gupta therein from the first floor of the house of Pawan
Sharma. He (Arif) was sitting on the driver seat of motorcycle,
whereas Qadeem was pillion rider and Pawan & Farukh picked
up the gunny bag (bori) containing the dead body of Neeraj
Gupta and put the same between him and Qadeem and they
dumped the same at G.T. Road, Shahdara Flyover near
Country Liquor Shop.
On making further interrogation, Arif disclosed that he
could get his other associates arrested. He was arrested in this
case and his disclosure statement was also recorded and
watch (RADO) worn by deceased Neeraj Gupta was got
recovered. On 04.08.2003, on the identification of Arif, Gufran
was arrested in this case from his house at Welcome, Delhi.
Other accused persons namely Qadeem, Farukh and Akel
were arrested from Sabzi Mandi, Darya Ganj, Delhi, accused
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Asha Chaudhary @ Pooja was arrested from her house at
Baljeet Nagar, Patel Nagar, Delhi and accused Pawan Sharma
was arrested from his house at East Rohtash Nagar, Delhi and
their disclosure statements were also recorded. On 04.08.2003
itself, on the pointing out of Akeel motorcycle bearing no.DL7S
S 0387 was recovered and from the house of Pawan Sharma
one diary and deck and from Gufran belt of deceased and his
video camera make Sony and on the pointing out of Farukh
digital diary CASIO 64 KB of deceased, were recovered. On
04.08.2003 also from accused Asha Chaudhary @ Pooja apart
from a SIM Card (cell phone no.9811582375) used in the
occurrence and instrument make Panasonic GD90, one diary
wherein Asha @ Pooja mentioned about her relationship with
Arif, one telephone diary containing the visiting card of Neeraj
Gupta and also mentioning therein the phone numbers of Arif
and deceased Neeraj Gupta, photograph of Arif and Asha @
Pooja, which was taken at the house of Pawan Sharma, two
love letters, written by Asha @ Pooja to Arif etc., were
recovered. On 05.08.2003 all the seven accused persons were
produced before the court and PC remand of accused Arif,
Qadeem, Farukh, Gufran and Pawan Sharma was taken and
accused Asha @ Pooja and Akeel Ahmed were remanded to
JC. During PC remand, the above said five accused persons
on 05.08.2003 pointed out the place of crime and accused Arif
and Qadeem got identified the spot of recovery of dead body.
On 06.08.2003, the supplementary disclosure statement of
Gufran was recorded and at his instance purse of deceased
and on the pointing out of Qadeem, the ear top of deceased
Neeraj was recovered. On 07.08.2003, on the pointing out of
Arif, shoes of deceased were got recovered. On 08.08.2003,
the said five accused persons were sent to JC. On 12.09.2003
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judicial TIP of the articles recovered from the accused persons
were got conducted through the wife of deceased Neeraj
Gupta. On 22.09.2003, by the order of court, motorcycle in
question was handed over to its registered owner namely Anuj
Gupta. On 18.10.2013, scaled site plan was got prepared by
the IO through Draftsman SI Mukesh Jain after getting him
visited the place of recovery of dead body of deceased and
spot of crime. On 26.09.2003, exhibits in the matter were sent
to CFSL, Haiderabad. On 14.10.2003, print out of mobile
phone no.36984880 was taken out, vide which it was cleared
that on 30.07.2003 at about 4.20 p.m from the said number,
call was made at phone no.9811582375 and talks were lasted
for 98 seconds. Thereafter, statements of witnesses were
recorded in this case and then on finding sufficient material,
charge sheet U/s 302/201/120B IPC against all the accused
persons was filed before the court of concerned Metropolitan
Magistrate.
3. After supply of copies etc, Ld.MM committed the case to
the court of Sessions where after due deliberation charge
charge under Sec.302/201/120B IPC was framed against all
the accused persons, to which they pleaded not guilty and
claimed trial.
4. Prosecution examined 29 witnesses in all.
5. PW1 Fakir Chand, father of deceased Neeraj Gupta, is
the witness, who had identified the dead body of Neeraj Gupta
at GTB Hospital and thereafter, the dead body was handed
over to him vide receipt Ex.PW1/A. He stated that he came to
know that dead body of his son was recovered from the side of
G.T. Road, Shahdara by the police.
During cross examination he stated that in his statement
dated 02.08.2003 he did not suspect anyone. His daughter in
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law Deepa Gupta was not with him when the dead body of his
son was identified by him. Deepa Gupta met him on
01.08.2003. She did not disclose him anything regarding this
case as she was nervous. He stated that in the morning of
31.07.2003 his son Neeraj left the house for his office and gave
a call at about 2.00 or 2.15 p.m to his mother at the house to
the effect that he would come early in the house but he did not
come back till 10.00 p.m. On making inquiry from his daughter
in law, she intimated that she had also been trying to contact
Neeraj Gupta but his mobile phone was not responding.
Despite their best efforts, they could not contact his son Neeraj
Gupta. It came to their knowledge that his son Neeraj Gupta
had left the office with the driver and thereafter, in the morning
it came to their notice that even the driver has also not returned
back till morning. Thereafter, at 7.30 a.m the driver alongwith
the vehicle was available but his son Neeraj Gupta was found
missing. His daughter in law went to the Kalkaji office and
thereafter, she went to PS Shahdara and lodged the missing
report.
PW2 Bhagirath (driver of deceased Neeraj Gupta)
deposed in his testimony that he had been working as driver
with Neeraj Gupta since February, 2003. On 31.07.2003 he
was the driver of Neeraj Gupta and driving the Lancer Car
No.DL2CM5055. On that day, at about 9.00 a.m, he had
taken him from his house at Rohini and took him to Kalkaji in
his office. At about 2.30 p.m, Neeraj Gupta came out of his
office and told him to take him to metro station Shahdara.
Before starting from his office, Neeraj Gupta procured five bear
bottles from his peon and kept the same in the vehicle. On
their way, Neeraj Gupta received number of phone calls on his
mobile phone bearing no.9810006511 as there was frequent
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calls on his mobile, it seemed to him that someone was calling
him in hurry, because he was repeatedly saying "Asha main
thodi der main pahuchne wala hu". He was also stating
"Asha that you should have met me at Pandara Park and
now you are meeting me at Shahdara". On reaching
Shahdara Metro Railway Station, he asked him to park the
vehicle at the parking and he obtained one slip bearing no.
19372 and left him at the parking while ask him to stay there
and wait for him till he comes and after taking the five bear
bottles, he left him at the parking. He waited throughout the
night for Neeraj Gupta and on the next morning at about 7.00
a.m, when Neeraj Gupta did not return, he informed at Kalkaji
Office about not arrival of Neeraj Gupta. The phone was
received by one Ashokji, who told him to reach Kalkaji Office
alongwith the vehicle. He got the outing number at the slip
from the Metro Parking and left for Kalkaji Office at about 8.30
a.m and he reached there at 9.30 a.m, where Deepa Gupta
W/o Neeraj Gupta met him. She inquired him and thereafter,
consulting the other employees of the office, she thought of
lodging the missing report and accordingly from Kalkaji Office
he alongwith Deepa Gupta came to PS Shahdara, where DD
No.15A was lodged regarding missing of Neeraj Gupta. From
there, he alongwith SI Arun Kumar and Deepa Gupta went to
GTB Mortuary and there they saw the dead body of Neeraj
Gupta and identified the same. Neeraj Gupta was wearing
blue half shirt, white pant (with belt), one wrist watch with black
steps make Redo, one tops in his ear with diamond studded in
it, two rings in his finger, black colour shoes without laces,
when he left metro railway station in his presence. Neeraj
Gupta was also having his mobile with him. After the
identification of dead body, they came to PS Shahdara and
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from there they came to PS M.S. Park alongwith SI Arun
Chaudhary and Insp. Kamla, where his statement was
recorded. He handed over the parking slip of Shahdara Metro
Railway Station to Addl. SHO and the same was seized vide
memo Ex.PW2/A. The slip of Delhi Metro Rail Corporation
bearing the number of vehicle 5055 and time is 3.00 P.M dated
31.07.2003 Ex.P1. He further confirmed that he had handed
over one telephone directory Ex.P2 (correctly identified)
belonging to Neeraj Gupta to the police and the same was
seized by the police in his presence vide memo Ex.PW2/B. He
further identified the belt and Rado wrist watch Ex.P3 & P4
respectively, belonging to the deceased Neeraj Gupta. He also
identified one ear pin (tops) with diamond studded Ex.P5 to be
the same which deceased Neeraj Gupta was wearing in his
ear. He also identified one ring Ex.P6 as the same which
deceased Neeraj Gupta was wearing in his ear. Similarly, he
further identified one pair of black shoes Ex.P7, as the same
belonging to Neeraj Gupta, the deceased. He further
confirmed that Ex.P3 to P7 were the same which the deceased
Neeraj Gupta was wearing when he left the Railway Station.
During cross examination he confirmed that he had
identified the dead body of deceased in the naked condition
and Ex.P6 was not taken by the police in his presence. He
stated that he had not seen the watch Ex.P4 in the police
station and could not tell any specific identification mark of the
watch Ex.P4. When he was at the Metro Railway Station
throughout the night, he did not try to contact Deepa Gupta or
even Neeraj Gupta on phone as he was not having any phone
with him nor he could leave the vehicle. He could not confirmed
as to whether there was any arrangement to make local calls at
Delhi Metro Station Shahdara. He admitted that in the parking
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of metro station, the vehicle remains safe. The DD No.15A was
lodged by Smt. Gupta in his presence and the fact of watch,
ear ring, rings, shoes, belt and cloths of deceased was
mentioned by Deepak Gupta in DD no.15A but Deepa Gupta
had not signed DD No.15A in his presence. The diary Ex.P2
was not read by him but there were phone numbers mentioned
therein. Though, he could not tell the details of the phone
numbers. When he alongwith Deepa Gupta, SI Arun
Chaudhary and Addl. SHO went to PS M.S. Park, they did not
show their suspicion towards anyone. The father of Neeraj
Gupta was not with them. Even he was not present with them
at the time of the identification of the dead body nor his
statement was recorded in his presence. He claimed that his
statement was recorded only once i.e. on 01.08.2003 and the
fact that the deceased was receiving phone calls from a girl
frequently and the name of the said girl was Asha, was
disclosed in DD No.15A to the police. He could not tell as to
how many girls were working in the office of Neeraj Gupta.
Sushmit Boss was known to him but his statement was
recorded in his presence. He had identified the dead body in
the mortuary at about 5.30 p.m. He had seen the shoes Ex.P7
wearing by the deceased Neeraj Gupta at the time of leaving
the car at Metro Railway Station and at that time he had not
seen any of the accused persons with Neeraj Gupta at that
time. He conceded that the police had not shown him the place
from where the gunny bag containing the dead body of Neeraj
Gupta was recovered. Fakir Chand Gupta met him on
02.08.2003, when he had gone the mortuary to take the dead
body. He could not confirm as to whether Neeraj Gupta
remained outside his house throughout the night on earlier
occasions also nor he could confirm as to whether he used to
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take liquor during late night hours. He confirmed that in the
night of 31.07.2003, he remained in the vehicle throughout the
night as it was raining at that night. He even did not go out of
the vehicle upto the station to take tea etc. He used to see the
employees going out and inside the office while sitting in the
car. He had seen the ladies, who used to go inside the office
in the morning and used to come out in the evening. Before
31.07.2003, he had met Neeraj Gupta on 30.07.2003 when he
had taken him to his house from his office. On 30.07.2003,
Neeraj Gupta was wearing white shirt and cream colour pant.
On 31.07.2003 when he reached the office, Neeraj Gupta
opened the back door and went inside the office. He had not
seen Neeraj Gupta on 31.07.2003 between 10.30 a.m and 2.30
p.m. At about 2.30 p.m he was standing near the car, Neeraj
Gupta came, sat on the rear seat and he drove the car. While
lodging the report at Shahdara, it was told to the police that
Neeraj Gupta also had a belt when he was last seen by them.
On confrontation with report mark DB, it was not found
mentioned therein. Neeraj Gupta had many belts and used to
change the same on days. He could not tell as to what type or
colour of belt Neeraj Gupta used to wear on days prior to
31.07.2003. There was a steel buckle with circles on the belt
but nothing else was written on it. It was a black colour belt.
He was not made to identify the belt in question before
Magistrate. He stated that there was no specific mark of
identification of Neeraj Gupta on the belt. He further stated
that his only one statement was recorded and no second
statement was recorded. However, his statement to the effect
that he had handed over the parking slip to the police was
recorded separately from his earlier statement. He stated that
he had stated to the police that he would be able to identify the
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personal belongings of the deceased like belt, shoe, watch, ear
tops etc, if shown to him but on confrontation it was not found
recorded in the statement Ex.PW2/DA. He was never taken
before any Magistrate to identify the belongings of the
deceased.
PW3 Sushmit Bose is the witness, who was employed
with the company of Neeraj Gupta namely AV Focus Private
Limited at Kalkaji, as Consultant Director. He stated that on
31.07.2003, he was present in the house and at about 10.30
a.m, he come to the office and after usual daily meeting,
Neeraj Gupta left the office at 2.30 p.m in his Lancer car with
his driver Bhagirath. At that time Neeraj Gupta was wearing
white pant with blue shirt and black shoes. He was also
wearing diamond Tops in his right ear and one watch and had
two rings in his fingers. He was also carrying his mobile phone
with him. After the departure of Neeraj Gupta at 2.30 p.m, he
tried to contact him at about 8.30 p.m but his mobile was
switched off. Next day, in the morning he came to his office as
usual at about 9.30 a.m or 9.40 a.m and he was informed that
a phone call was received from Bhagirath that Neeraj Gupta
had left at Metro Station Shahdara at 3.00 p.m instructing him
to stay and wait for him and when he did not turn up, Bhagirath
made a call from a nearby market. Bhagirath was asked to
come back to office with vehicle. He had conversation with
Deepa Gupta in this regard and she also came to office. Then
they all decided that an FIR should be filed at Shahdara. Later
on, they were told that Neeraj Gupta was found murdered.
During cross examination he stated that he went to PS
Shahdara on 01.08.2003 regarding the case and his statement
was recorded in PS Shahdara. Deepa Gupta was also present
when his statement was recorded and Bhagirath was outside
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.15 of pages 97
the PS at that time. He conceded that he was not remembering
the number of the vehicle even on the day when his statement
was recorded and today also (i.e. on the day of recording of his
statement before the court) and he did not state the number of
vehicle in his statement. He had not mentioned the complete
mobile number of Neeraj Gupta because he could only
remember 9811, however, he had mentioned the make of
mobile phone as Nokia. Bhagirath met him on 01.08.2003
when he returned with the vehicle at office and he came to the
office on the asking of Ashok Kumar. He had conversation
with Bhagirath when he came back to the office and he asked
Bhagirath whether he lodged any report through out the night
and he replied in negative. Bhagirath did not tell him that he
tried to contact any other person on telephone. His statement
was not recorded by any police official except of PS Shahdara.
He did not visit even PS Mansarovar Park. He did not state to
the police about the character and conduct of Neeraj Gupta.
He had mentioned that number of girls used to visit the office
of Neeraj Gupta and this version is correct. He stated that he
did not tell to the police that he was the business partner of
Neeraj Gupta but on confrontation from his statement
Ex.PW3/DA, it was found mentioning therein. He had seen
Neeraj Gupta while leaving the office and except his mobile
phone he was carrying nothing else with him. On that day, he
had not seen any employee of his office keeping beer bottles in
the car of Neeraj Gupta. There used to either 2 or 3 girl
employees with him. Other girls also used to visit either to sell
something or to seek employment in his office. He used to
come to the office at about 10.30 a.m or left at about 7.00 or
7.30 p.m and around 7.00 p.m outsider girls also used to visit
the office.
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.16 of pages 97
PW4 Anu Negi deposed that in the year 2003, she was
working as Sr. Executive in AV Focus Pvt. Ltd at Kalkaji and
Neeraj Gupta was the owner of said firm. On 31.07.2003, she
came to her office at 9.30 a.m and Neeraj Gupta had come to
office at about 10.30 a.m. At about 3.00 p.m, after lunch, he
left alongwith his driver Bhagirath in his Lancer car. He was
wearing two gold rings and one ear ring (tops) of diamond in
his ear. He had a mobile phone with number 9810006511.
Neeraj Gupta did not return back in his office till she remained
there upto 6.00 p.m. Next day on 01.08.2003 when she came
to her office at about 9.30 a.m, she came to know from Ashok
Kumar (another employee of said firm) that Neeraj Gupta had
neither reached in office nor any contact was made with him.
Ashok also told her that Bhagirath had informed him on
telephone that he had taken Neeraj Gupta to Metro Station
Shahdara on 31.08.2013 and he was directed to stay in the
parking and to wait for him and he did not return back. Ashok
further told him that he had told Bhagirath to come to office in
the vehicle. Deepa Gupta W/o Neeraj Gupta also reached
there alognwith the driver Bhagirath to PS Shahdara. Later
they were told that Neeraj Gupta was found murdered and he
was no more.
During cross examination she stated that as an employee
she was not aware of the fact as to how many trousers, shirts
and watches Neeraj Gupta had. There were no fixed date for
Neeraj Gupta to wear particular brand of watch, pant or shirt.
She did not notice as to at what time Deepa Gupta reached the
office on 01.08.2003. She stated that in PS M.S. Park, besides
she, Bhagirath, Deepa Gupta, Sushmit Bose, Ashok Kumar
and peon Raju were also present there. Police had not
recorded anyone's statement in her presence. She stated that
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.17 of pages 97
she had not stated to the police in her statement that Neeraj
Gupta was in the habit of taking liquor after office hours,
however, on confrontation with her statement Ex.PW4/DA, the
same was found mentioning therein. She had stated to the
police that the boys and girls had been visiting the office of
deceased as usual. She stated that there was no hole in the
nose of Neeraj Gupta.
PW5 Prem Nath in his testimony stated that in the year
2003, he was having one mobile phone no.9811582375. On
26.07.2003, he was travelling in bus route no.623 at Vikas
Marg and he lost this mobile phone on his way. He did not
lodge any report with the police regarding the loss of his
mobile.
During cross examination he could not tell if his mobile
was being used by anyone after its loosing or not.
PW6 SI Mukesh Kumar Jain, is the Draftsman, who
stated that on 18.10.2003 on the request of IO W/Insp. Kamla
Meena, she reached at PS M.S. Park and from there he
alongwith IO visited two spots i.e. G.T. Road, Shahdara under
Shahdara Fly over and H. No.1/6314, East Rohtash Nagar,
Shahdara. On both the spots, he had taken rough notes and
measurements on the pointing out of W/Insp. Kamla Meena
and on the basis of said rough notes and measurement, he
prepared scaled site plans Ex.PW6/A & Ex.PW6/B respectively
bearing his signatures at points A. He stated that after
preparation of scaled site plan, rough notes and
measurements were destroyed.
PW7 HC Rajpal, is the Duty Officer, who recorded DD
No.15A in this case. He stated that on 01.08.2003 at about 6.50
p.m Deepa Gupta came to PS and lodged the DD regarding
the missing of her husband Neeraj Gupta since 31.07.2003. On
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.18 of pages 97
the basis of the information received from her, he recorded DD
No.15A (true copy of which is Ex.PW7/A) in his own hand. He
obtained the signature of Deepa Gupta at two places in the
original DD register, which he identified at point A & A1. He
stated that after recording of the DD, the copy of DD was
handed over to SI Arun Kumar PS Shahdara and the
complainant Deepa Gupta was also sent to SI Arun Kumar.
During cross examination he stated that Deepa Gupta
alone had come to him when the above DD entry was made.
She had not brought any written complaint, rather, the DD was
written at the dictation of Smt. Deepa Gupta verbatim. He
conceded that in the DD there is no mention about purse and
belt of the deceased. He further stated that had Mrs. Deepa
Gupta told him about the belf and purse of the deceased, he
would certainly have written the same in DD. He further
conceded that in DD No.15A there is no mention of Rado watch
as she did not dictate it and the same was not written by him.
Deepa Gupta did not suspect anyone in the missing report
Ex.PW7/A. Deepa Gupta did not narrate before him where her
husband went. He confirmed that in the DD No.15A, there is no
mention of any ornament of the deceased that is why he had
not mentioned. He had himself informed the PCR about the
missing of Neeraj Gupta vide the same daily diary to Ct. Asha
Sharma of PCR. He could not tell if any official of PS Shahdara
had information about the recovery of the dead body of Neeraj
Gupta before 5.00 p.m on 01.08.2003. He could not tell if SHO
Narender Pal Singh and other staff had visited the spot near fly
over, G.T. Road Shahdara and that the dead body had been
found by the police. He had informed SHO Narender Singh
immediately after recording the DD No.15A at around 6.15 p.m.
PW8 Ct. Vinod Kumar, the photographer, who took 11
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.19 of pages 97
photographs Ex.PW8/12 to Ex.PW8/2, on the instructions of
the IO, of the gunny bag and of the dead body (taken out of the
gunny bag) with different angles. He also proved on record the
negatives of that photographs as Ex.PW8/1 to Ex.PW8/11. He
stated that on 07.08.2003, he visited the H. No.6314, Gali No.3,
Rohtash Nagar and on the request of IO, he had taken 18
photographs, Ex.PW8/41 to Ex.PW8/58, of inside the room
with different angels. He also proved on record the negatives
thereof as Ex.PW8/23 to Ex.PW8/40.
During cross examination he stated that he had left the
office at about 7.30 p.m and reached back at about 9.30 p.m.
He had gone to Rohtash Nagar, where he had taken the
photographs. He conceded that the photographs do not show
any house number, street number or the mohalla from where
the same had been taken by him. The photographs were taken
in the light of tube and bulb but the source of light has not been
shown in the photographs. Neighbourers were also present
but none of them had been shown in the photographs. He
stated that there are some yellow spots on the photographs,
which he has seen today in the file, and it is due to the reason
that the negatives were stick together and while separating the
negatives some stains were developed and that is why there
are stains on the photographs. After taking the photographs,
the reel was given to one police official for getting the same
developed and was not developed in his presence.
PW9 Deepa Gupta (wife of deceased) stated that his
husband Neeraj Gupta (since deceased) was dealing in audio
visual equipments and supply with the name of A.V. Focus,
having its office at Kalkaji, Dehradoon and Barakhamba Road,
Delhi. On 31.07.2003 his husband Neeraj Gupta had left the
house at about 8.30 a.m and at that time he was wearing white
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.20 of pages 97
pant and light blue half sleeve shirt, black shirt, white
handkerchief, Rado wrist watch, two rings and one diamond
ear pin in his right ear. He was having his mobile Nokia 2100
having no.9810006511, a black purse containing driving
license, bank papers, ATM cards and some cash. He left the
house in his lancer car No.DL2C5055 alongwith driver
Bhagirath but he did not return back till night. As it was too
late, she made a call in the office and she came to known that
the Neeraj had left alongwith driver Bhagirath at about 2.30
p.m in his said car for Shahdara and did not come back. On
making contact on mobile phone, it was found to be switched
off. She thought that he must have stayed due to the nature of
work. On the next day, Bhagirath telephonically informed at
Kalkaji office that Neeraj Gupta had left him at Shahdara metro
station while saying that he should wait for him, even if he is
late and Bhagirath told that Neeraj had not return till then. On
hearing this, she got perplexed and reached at Kalkaji office
where Ashok and Bhagirath met her and then after having a
conversation amongst them, they decided to lodge a complaint
and thereafter, she alongwith Bhagirath went to PS Shahdara
and lodged the missing report vide DD no.15A. Thereafter, she
alongwith SI Arun Kumar and Bhagirath went to GTB Hospital
mortuary where she identified the dead body of Neeraj Gupta.
From there she went to PS M.S. Park. In the way Bhagirath
told her that Neeraj Gupta was talking to some girl Asha on his
way from Kalkaji to Metro Station Shahdara. After reaching PS
M.S. Park, her statement was recorded in which she raised
suspicion that in the death of Neeraj Gupta, Asha was
involved. Thereafter, in her presence Bhagirath handed over
one telephone diary of Neeraj Gupta to police, which was
seized vide memo Ex.PW2/B. Thereafter, on 12.09.2003, she
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.21 of pages 97
identified the articles/belongings of her husband in the TIP
proceeding Ex.PW9/A held at Karkardooma Court, wherein
she had identified the purse, belt, digital diary, shoes, ear pin
and watch of deceased Neeraj Gupta. She identified the
telephone diary (which was given by Bhagirath to the Police in
her presence) Ex.P2, belt Ex.P3, one wrist watch make Rado
alonwgith black strap Ex.P4, one ear pin (top) studded with
diamond Ex.P5, ring Ex.P6, one pair of black shoe Ex.P7
(which were kept in one unsealed polybag, lather purse
containing driving license and one visiting card of deceased
Ex.P8(colly). She claimed that except Ex.P2, she had identified
all the articles during the TIP proceedings held on 12.09.2003.
During cross examination she conceded that she used to
prepare break fast for her husband before he used to go for his
work and on 31.07.2003 also she was busy in preparing his
breakfast in the kitchen whereas his husband was getting
ready in his bed room to go to office. On 31.07.2003 she had
served him breakfast in the bed room and by that time her
husband was already ready to go to the office and there was
none else in the room at that time. Her husband took break fast
while sitting in the bed and thereafter, his husband immediately
left the flat. She conceded that she did not mention the fact
that her husband was wearing the belt and was carrying a
purse in DD No.15A and she had got written about clothes of
her husband in the said DD. By bank papers, she meant ATM
card. She stated that there was a ball type of things on the
buckle of belt and such like belt are easily available in the
market. Her husband used to have many belts but she does
not remember the exact number or their colours. She further
stated that the word Woodland was inscribed on the purse and
in the purse Ex.PW8, ATM card or any other bank papers or
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.22 of pages 97
cash were not there. She stated that such type of purse are
easily available in the market. She stated that at the time of
identification parade Smt. Kamla Meena IO of the case was
present at the place of identification and there were more than
4 or 5 purses before the Magistrate which were of black and
brown colour and perhaps there was no slips pasted on the
purses which were there. She further stated that although she
does not remember as to how many belts were there before
the Magistrate but the belts were of black and brown colour
and did not remember whether there were some slips pasted
on those belts or not.
She further stated that on her way from Kalkaji to PS
Shahdara, she did not have any conversation with Bhagirath as
she was crying nor at that time Bhagirath told her about the
phone calls which Neeraj Gupta had received on 31.07.2003.
She further stated that Bhagirath had not told anything about
the phone calls till the lodging of DD No.15A by her. She
conceded that she had stated in DD No.15A to the police on
dated 01.08.2003 that they had no suspicion as against
anyone. She conceded that she had not seen the accused Arif
earlier at any place. The DD No.15A was written as per her
dictation. She conceded that she had not gone through the
contents of the telephone directory of her husband as it was
handed over to the police by Bhagirath, however, in the said
diary the telephone numbers of the clients of her husband
were mentioned. IO had not prepared any list of the articles in
her presence before 12.09.2003. She had signed DD No.15A
as well as seizure memo of diary. She further claimed that she
had mentioned the make of wrist watch of her husband as
Rado in her statement on 01.08.2003 and such wrist are easily
available in the market and she had identified the wrist watch
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.23 of pages 97
of her husband in the TIP proceedings. She claimed that she
was not informed by any of the employees of her husband that
he used to take liquor in the night by sitting in late hours. She
claimed that her husband was having separate jewellery for
himself and he used to wear ear pin and pin like Ex.P5 can be
used by male as well as by female and the same can be used
in nose as well as in the ear. She conceded that she had not
stated about digital diary in DD No.15A.
PW10 Om Prakash (a shopkeeper) brought an original
register on which the name of Ved Prakash Sharma R/o
1/6314, East Rohtash nagar has been mentioned at Sl. No.7
and he stated that the Ration Card number of Ved Prakash
Sharma is 47390007.
PW11 Mahesh Mittal confirmed that he had identified
the dead body of deceased Neeraj Gupta and vide a receipt
Ex.PW1/B the dead body of Neeraj Gupta was handed over to
him and the father of deceased.
PW12 Anuj Gupta stated that he had one motorcycle
make Hero Honda Passion bearing no.DL7S0387 to which he
wanted to sell and in July, 2003 he had sold out the said
motorcycle to Akeel Ahmed (who was working in his factory
since September, 2002) for Rs.14,000/. He further stated that
Akeel Ahmed used to take the said motorcycle from him daily
as he (Akeel Ahmed) had given him Rs.14,000/ in cash and
remaining amount was to be paid in installments from his
salary and after completion of full payment, only he would get
the registration of said motorcycle done in his name.
During cross examination he conceded that he had made
no documentary evidence with regard to the sale of motorcycle
nor any receipt for aforesaid money transaction was got
prepared. The said motorcycle was got transferred in the name
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.24 of pages 97
of Akeel Ahmed in July, 2003.
PW13 Ashok Kumar (the employee of deceased)
confirmed that on 31.07.2003 Neeraj Gupta (the deceased)
came to the office at about 10.30 a.m and left the office at
about 2.30 p.m with Bhagirath, the driver in lancer car bearing
no.DL2CM5055 and at that time he was wearing white pant,
sky blue shirt, black shoes and two rings in the hand one ear
pin in his ear. He had the mobile phone of Nokia 2100 no.
9810006511 and on that night Neeraj Gupta did not come back.
Bhagirath also did not return. On 01.08.2003 on receipt of a
phone call from Bhagirath that he was speaking from Metro
Station Shahdara Parking, where Neeraj Gupta had left him on
previous day at 3.00 p.m and since then he had not returned.
Thereafter, he called Bhagirath to come back to the office
alongwith the car. He also informed Mrs. Deepa Gupta, W/o
Neeraj Gupta, about the said message. Thereafter, Deepa
Gupta came to the office. The matter was discussed and then
the missing report was lodged and thereafter, they came to
know about the death of Neeraj Gupta.
During cross examination he stated that he went to PS
Shahdara alongwith Sanjeet Singh and Anu Negi but the report
was not lodged in his presence. He confirmed that some out
side girls and boys used to come in the office for seeking job.
PW14 Dr. Anil Kohli, is the Doctor, who conducted the
postmortem on the dead body of Neeraj Gupta vide
Postmortem Report No.694/03 Ex.PW14/A bearing his
signature at point A. He stated that on examination the male
body was wearing no clothes, his eyes were closed and cornea
was hazy. Rigor motis had passed off. Red hypostasis present
over the back except the pressure points. Face and conjunctiva
of both eyes was congested. Sub conjunctival haemorrhages
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.25 of pages 97
were present. Small superficial burn like marks present over
right side front of chest and over middle of right forearm. He
narrated about the antemortem injuries as under:
(i). Incised wound 6cm x 0.2 x 0.1 cm present over
left side front of abdomen placed 3 cm to the left
of middle line and 6 cm below the rib cage.
(ii).Incised wound 8 cm x 0.2 cm x 0.2 cm present
over right side front of chest placed 5 cm to the
right of middle line and 13 cm below the clavicle.
(iii).Incised wound 3.5 cm x 0.7 cm x 0.1 cm present
over left side front of chest placed 5 cm above
left nipple and 10 cm to left of middle line.
(iv).Red abrasion 4 cm x 0.2 cm placed horizontally
over outer aspect of right wrist.
(v).Red abrasion 5 cm x 0.5 cm placed horizontally
over outer aspect of left wrist.
(vi).Red bruise 10 cm x 2.5 cm present over outer
aspect of left arm placed 10 cm above the elbow.
(vii).Red bruise 4 cm x 1.2 cm present over outer
aspect of left arm placed 2 cm below the top of
shoulder.
(viii).Red bruise 5 cm x 2 cm present over front of
left shoulder placed 3 cm below top of left
shoulder and 12 cm to left top mid line.
(ix).Red bruise 1 cm x 1 cm over and around
frenulum of over lip.
(x).Red bruise 0.5 cm x 0.5 cm over mucosal
surface of upper lip in the middle.
(xi).Red bruise 3 cm x 2 cm present over top of left
shoulder.
(xii).Multiple hemorrhages varying in size from pin
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.26 of pages 97
point to 0.3 x 0.2 cm present all over front of
chest and its size.
(xiii).Lacerated wound 1 cm x 0.8 cm x 0.8 cm over
centre of vertex of scalp.
(xiv).Red ligature mark present completely,
horizontally and below the thyroid cartilage. In
the front of neck the mark is 3 mm broad and
place 6 cm below the chin. On the right side the
mark is 3 mm broad and place 5 cm below angle
of mandible. On the left side the mark is 7 mm
broad and place 5 mm blow angle of mandible.
Over the nape of neck the mark is 4 mm broad
and place 11 cm below the occipital
protuberance. Over the right side of neck two
such marks present for the distance of 5 cm with
1 mm gap between the marks. Circumference of
neck around ligature mark is 40 cm. No fracture
of hyoid bone, thyroid or cricoid cartilage seen.
He further stated that on internal examination, the internal
organs were congested. The stomach contained semi digested
food material.
Items preserved:
1. blood of deceased obtained on gauze piece in
an envelop.
2. blood of deceased preserved in a glass bottle
with sodium fluoride for analysis for alcohol.
He stated that in his opinion the time since was about one
and half days and cause of death was asphyxia due to ante
mortem strangulation by ligature. He further stated that he
signed the following 14 inquest papers, all bearing his
signatures at points A and sealed exhibits alongwith the
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.27 of pages 97
postmortem report were handed over to police:
(i). request for postmortem.
(ii).Form No.2535.
(iii).copy of FIR.
(iv).copy of FIR.
(v).copy of FIR.
(vi).DD No.6A.
(vii).Site Plan.
(viii).Brief facts.
(ix).Seizure memo of ring.
(x).Seizure memo of earth control and blood
stained earth.
(xi).Identification statement.
(xii).Identification statement.
(xiii).Request for preservation of body.
(xiv).Gunny bag and handkerchief.
During cross examination he stated that deceased might
have taken food 2 to 6 hours prior to his death. He could not
tell whether food taken by deceased was full stomach or light
eating. He stated that he did not find any evidence that the
deceased had taken alcohol prior to his death. He had
preserved the blood of the deceased in sodium fluoride for
analysis for alcohol because IO had not specified as to for
what purpose the blood sample was to be preserved. Blood
sample was not preserved for alcohol testing as a matter of
routine unless there is suspicion of the deceased having
consumed alcohol. He also stated that although the police had
not asked specifically for alcohol test but considering the
circumstances of the case and the dead body, he had kept the
blood sample for alcohol analysis. He confirmed that injury no.
14, the ligature mark, was itself sufficient in ordinary course of
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.28 of pages 97
nature to cause death irrespective of the other injuries found on
the dead body.
PW15 Sanjeet Kumar (the Account Director in the
company of deceased Neeraj Gupta) confirmed that on
31.07.2003, at around 2.0 p.m Neeraj Gupta left the office with
the driver Bhagirath in its lancer car towards east Delhi and at
the time of leaving, Neeraj Gupta was wearing white pant,
blue half shirt, two rings, topaz diamond ring in his ear and a
Rado wrist watch. He had mobile phone nokia 2100 number
9810006511 and did not meet him thereafter. On 01.08.2003,
he went to the office at 9.30 a.m where the wife of deceased
came and then the missing report regarding Neeraj Gupta (the
deceased) was lodged at PS Shahdara. He also confirmed that
girls used to come to meet Neeraj Gupta for job and sales
purpose.
During cross examination he stated that he had not told
the name of Ms. Asha to the police in his statement and for the
first time he mentioned her name before the court only.
PW16 Abid Malik stated that the name of his mother is
Bilkis Begum, who was having a mobile phone of reliance
company bearing connection no.36984880 in the year 2002
and he used to use the mobile of his mother. He denied that
on 30.07.2003 at about 4.00 p.m his friend Arif, who resides at
H468, Welcome, Delhi came to him and took the above mobile
phone and he made the telephone call from that mobile to
someone or that he heard him saying that jaldi hi kaam ho
jayega. He claimed that he does not know the owner of mobile
no.9811582375 and to whom Arif was talking to. He clarified
that the said phone used to keep at his shop and customers
come there and some times they use it with his permission but
he did not maintain any record of said customers.
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.29 of pages 97
PW17 Ct. Sudhir Malik confirmed that on 24.09.2003, on
the directions of IO, he collected the exhibits of the case from
MHC(M) for being taken to CFSL Hyderabad and accordingly
deposited the same there on 30.09.2003 and handed over the
receipt thereof to MHC(M).
PW18 SI Arun Kumar Chaudhary testified that on
01.08.2003, a call vide DD No.6A, copy of which is Ex.PW18/E,
was received to SI Dharamvir regarding lying of a gunny bag
containing dead body near Desi Sharab Theka under flyover
GTB Road, Shahdara and as per the directions of ACP
Shahdara, he also accompanied SI Dharamvir and Ct. Farooq
to the spot, where they found that a gunny bag was lying at the
above place and leg of the dead body was visible from the side
of gunny bag. The dead body was taken out from the gunny
bag by cutting open the stitches of gunny bag. At that time
SHO PS Shahdara also reached there and summoned the
Crime Team and dog squad. After sometime, Addl. SHO M.S.
Park Insp. Kamla Meena also reached there. The spot was got
photographed. The dead body was inspected, which was
naked. It appeared to be aged about 2530 years. There was
a silver ring on middle finger of the right hand and one white
handkerchief was kept over on the private part of dead body.
The silver ring was taken out from the finger of deceased and it
was sealed in a parcel with the seal of AKC and was taken into
possession vide seizure memo Ex.PW18/A bearing his
signature at point A. The gunny bag and the handkerchief
were also taken into possession after sealing the same in
separate parcel with the seal of AKC vide seizure memo
Ex.PW18/B. Earth control and blood stained earth were lifted
from the spot and were sealed in a small plastic bottles and
were sealed with the seal of AKC and were taken into
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.30 of pages 97
possession vide seizure memo Ex.PW18/C. Further on
inspection of the body, there were apparent three incised
wounds on the front side i.e. two on chest and one on
abdominal region. There was one lacerated wound on the
back side of the head. No eye witness met at the spot. He
made endorsement Ex.PW18/D on rukka and sent the same
through Ct. Farooq to PS M.S Park for registration of the case
and after registration of case, investigation was handed over to
Insp. Kamla Meena. They were making efforts for identification
of the dead body. Insp. Kamla Meena prepared Site Plan.
Investigating Officer recorded the statement of Photographer
and in the meantime, Ct. Farooq came back to the spot with
rukka and carbon copy of FIR and handed over the same to
IO. On the instructions of IO, he alongwith Ct. Farooq had
taken the dead body to GTB Hospital in mortuary and it was
got preserved for 72 hours vide his application, carbon copy of
which is Ex.PW18/F. Ct. Farooq was deployed to safeguard
the dead body and he came back to the spot. In the evening,
SI Arun Kumar of PS Shahdara alongwith one Deepa Gupta
and Bhagirath came to the spot and informed him about
lodging of a missing DD by Deepa Gupta about her husband
Neeraj Gupta on the same day in the evening. Thereafter, he
alongwith SI Arun, Deepa Gupta, Bhagirath and Insp. Kamla
Meena went to GTB Hospital mortuary where the recovered
dead body was identified to be of Neeraj Gupta by Deepa
Gupta and Bhagirath. Driver of Neeraj Gupta had told him that
on 31.07.2003 he had brought his employer Neearj Gupta in his
lancer to parking of Metro Station Shahdra and produced the
parking slip of vehicle no.5055 Ex.P1, to which IO seized vide
seizure memo Ex.PW2/A. Thereafter, statements of Smt.
Deepa Gupta, Bhagirath and SI Arun Kumar of PS Shahdara
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.31 of pages 97
were recorded. Then SI Arun Kumar of PS Shahdara left PS
M.S. Park and thereafter, they all except SI Arun Kumar, went
to the office of Neeraj Gupta at A15, Kalkaji, where IO made
inquiry from father of deceased as well as from other
employees. Fakir Chand Gupta, the father of deceased, had
produced a telephone directory to the IO, which was taken into
possession vide memo Ex.PW2/B. The above telephone
directory contained mobile no.9811582375 against the name of
accused Arif. Deepa Gupta in her statement disclosed that
Neeraj Gupta was having his mobile phone no. 9810006511. IO
requested ACP Seema Puri to get the call details of said
mobile number of deceased Neeraj Gupta, provided. Then on
02.08.2003, he again joined the investigation with IO alongwith
other staff and they went to mortuary GTB Hospital where
father of deceased and Mahesh Mittal met them. They
identified the dead body. The inquest proceeding was
conducted by the IO and then the postmortem was got
conducted on the body of deceased Neeraj Gupta and after
postmortem, dead body was handed over to Fakir Chand vide
Ex.PW1/B. During postmortem blood sample of deceased
Neeraj Gupta was also got preserved. On the analysis of call
details of the mobile of deceased Neeraj Gupta, it was
revealed that after 26.07.2003, there were frequent incoming
and out going calls from mobile no. 9811582375. IO obtained
the call details and address of user of the said mobile phone
from Hutch company and it was revealed that the said mobile
phone was belonging to Prem Nath Nagpal R/o R14, Naveen
Shahdara, Delhi. Prem Nath Nagpal was interrogated by the
IO and he told that on 26.07.2003, his mobile phone was stolen
in a bus but he could not show any complaint or report
regarding loss of mobile phone. On further analyzing, it was
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.32 of pages 97
noticed that on 30.07.2003 at about 4.15 p.m there was an
incoming call from mobile phone no. 36984880. On making
contact to the user of said Reliance phone, the call at other
end was attended by Sh. Abid R/o Z1/128, Welcome, Delhi
and he disclosed that the said reliance phone was in the name
of his mother Bilkis Begum. On inquiry about the mobile no.
9811582375 he could not give any satisfactory reply. On
04.08.2003 he alongwith SI Ajay Bali and other staff member
and IO went to the house of Abid, where on interrogation, said
Abid informed that the said reliance phone was used by one
Arif on 30.07.2003 at 4.15 p.m. Then after recording the
statement of Abid and Bilkis Begum they went to the house of
accused Arif i.e. H468, Janta Colony, Welcome, where at the
instance of Abid, accused Arif was apprehended and
interrogated by the IO. He was arrested in the case vide memo
Ex.PW28/F and his personal search was conducted vide
memo Ex.PW28/F1. He made disclosure statement
Ex.PW18/F. One Rado Watch which was produced by accused
Arif from the pocket of his pant was seized and taken into
possession vide seizure memo Ex.PW18/H. Accused Arif
made confession of having committed the murder of deceased
Neeraj Gupta alongwith his associates namely Gufran, Kadim
and Farukh at the house of Pawan. He further disclosed that
he alongwith Kadim had used the motorcycle of Akeel to
dispose off the dead body. He further disclosed that deceased
Neeraj Gupta had tried to molest his girl friend Asha.
Thereafter, at the instance of accused Arif they reached at the
house of accused Gufran at B274, Welcome, where Gurfan
was apprehended at the instance of Arif and his disclosure
statement Ex.PW18/J was recorded. One belt of deceased
Neeraj Gupta was produced by accused Gufran which was
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.33 of pages 97
seized vide memo Ex.PW18/K. Accused Gurfan also produced
one video camera and charger from his house to the IO which
was intended to be used to blackmail deceased Neeraj Gupta
by showing his (Neeraj Gupta) presence with Asha, which was
seized memo Ex.PW18/L. Thereafter, at the instance of
accused Arif, three accused persons namely Farukh, Akeel
and Kadim were apprehended from Sabzi Mandi Darya Ganj.
After interrogation, they were arrested and their personal
search were conducted. Thereafter, their disclosure statements
Ex.PW18/M1, M2 & M3 were recorded. Thereafter, at the
instance of accused Arif, accused Asha Chaudahry, @ Pooja
was apprehended from her house bearing H. No.302, gali No.2
situated at Baljeet Nagar. She was interrogated and arrested
by IO. Her disclosure Statement Ex.PW18/N was also
recorded. On checking the hand bag of accused Asha by the
IO, the bag was found containing a SIM Card of phone no.
9811582375, one mobile phone make Panasonic, whose cell
number was 9811985137, two diaries (one general and one
telephone diary). The telephone diary contained the telephone
numbers of accused Arif as well as of deceased Neeraj Gupta.
The said bag also contained the photograph of Arif with Pooja,
two love letters and other articles. All the said articles were
seized vide memo Ex.PW18/O. Thereafter, they went to East
Rohtash Natar, where accused Arif pointed out house no.
1/6314. On knocking the door, the accused Pawan Kumar
opened the door and he was identified by the accused
persons. He was interrogated and arrested and his disclosure
statement Ex.PW18/P was recorded. Accused Pawan Kumar
got recovered one cassette player from his house which was
stated to be used in producing loud voice at the time of
commission of offence. He also got recovered a telephone
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.34 of pages 97
directory and both the said articles were seized vide memo
Ex.PW18/Q. Thereafter, they went to ACP Office, from there
they alongwith accused Akeel and Kadim went to the house of
accused Akeel, where at the instance of accused Akeel one
Motorcycle make Hero Honda Passion bearing no.
DL7SS0387 was seized vide memo Ex.PW18/R. Thereafter,
they went to the house of Kadim at Jawahar Park, Shahibabad,
District Ghaziabad, from where one digital diary make Casio
belonging to deceased was seized vide Seizure Memo
Ex.PW18/S. Thereafter, on 05.08.2003 he alongwith IO, SI
Ajay Bali, Ct. Pawan, Ct. Satender and Ct. Mahavir etc. and
the accused persons went to the place of occurrence i.e.
1/6314 East Rohtash Nagar, Delhi, where the pointing out
memos Ex.PW18/T1 to T5 were prepared. Thereafter, they
went to the house of Anuj Gupta (registered owner of
motorcycle, recovered from accused Akeel) bearing H. NO.
27/45B, Vishwas Nagar, Shahdara, where Anuj Gupta was
interrogated and his statement was recorded. Thereafter,
accused Qadeem and Arif led them to the place i.e. below
Shahdara Flyover near Liquor Theka where the dead body of
Neeraj Gupta was stated to have been thrown by them in a
gunny bag. Pointing out memos at the instance of Qadeem
and Arif, Ex.PW18/T6 & P7 respectively were prepared. On
06.08.2003 accused Gufran made further disclosure vide
supplementary Disclosure Statement Ex.PW18/U that the
purse of deceased which was retained by him was thrown by
him in Qabristan in front of his house. The said purse
contained the driving license of Neeraj Gupta and some
visiting cards and the same were taken into possession vide
seizure memo Ex.PW18/B. Thereafter, accused Kadim got
recovered a diamond ear top from a small box lying in his room
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.35 of pages 97
at ground floor of his house no.173, Gali No.6, Jawahar Park.
The same was belonging to deceased and it was taken into
possession vide memo Ex.PW18/W. On 07.08.2003, the
accused Arif was again interrogated and his supplementary
Disclosure Statement Ex.PW18/X was recorded wherein he
disclosed that the blade which was used in the offence was
thrown outside the place of occurrence and the nara by which
the deceased was strangulated was used in stitching the
gunny bag for disposal of dead body. Thereafter, the accused
took them to his house at H468, Janta Colony, Welcome and
got recovered one pair of shoes without laces, which was
seized vide memo Ex.PW18/Y. He also disclosed that he had
taken a SIM card of mobile phone from a vagabond.
Thereafter, the search for blade was made but the same could
not be recovered. He correctly identified the case property i.e.
one telephone directory Ex.P2, belt Ex.P3, Video Camera
make Soni with charger Ex.PW18/P1, ring Ex.P6, gunny bag
and handkerchief Ex.PW19/P1 & P2 respectively, slip of Delhi
Metro Rail Parking Ex.P1, wrist watch make Rado Ex.P4,
ladies purse Ex.PW18/P7 containing one SIM Card no.
10007713068 and phone make Panasonic Ex.PW18/P2 (colly.),
diary of 2000 of brown colour Ex.PW18/P3, one telephone
index diary containing some visiting cards in the nameof
Neeraj Gupta, one photograph of accused Arif Ex.PW18/P4,
one postcard size photograph of Asha with accused Arif
Ex.PW18/P5, two love letters written by Pooja to Arif
Ex.PW18/P6, one telephone diary Ex.PW18/P8, one stereo
and speaker box Ex.PW18/P9 (colly.) recovered from the
accused Pawan Sharma, one digital diary make Casio
Ex.PW18/10 recovered from accused Qadeem, ear top Ex.P5,
one pair of shoes Ex.P7 recovered from accused Arif. He
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.36 of pages 97
correctly identified the accused persons.
During cross examination he stated that first of all, the
disclosure statement of accused Arif was recorded in his
presence on 04.08.2003 at the house of Arif and PW Abid had
led them to his house. They had joined Abid in the
investigation from his house at Welcome, which was at the
distance of half KM from the house of Arif. No public witness
was joined by them in the investigation, as they were in hurry.
They were seven to eight persons in all and they were in
uniform. Some persons from the locality collected after seeing
them but none from the public persons was asked to join the
raiding party. He stated that disclosure statements of Kadim,
Arif, Akeel Ahmed & Asha and supplementary disclosure
statement of Arif Ex.PW18/M2, Ex.PW18/G, Ex.PW18/M3 &
Ex.PW18/N and Ex.PW18/X respectively are in his handwriting.
He stated that he was transferred from PS M.S. Park in the
month of October, 2003 and till that period Insp. Kamla Meena
was posted in the PS M.S. Park. He confirmed that Report U/s
173 Cr.P.C Ex.PW18/DA is in his handwriting. He, after seeing
the Disclosure Statement of accused Arif, confirmed that
according to the same the house number of accused Arif was
H468, Welcome Colony but he did not collect any documents
like voter card, ration card etc. showing that Arif was residing at
H. No.H468, Welcome Colony. The pair of shoes of the
deceased was got recovered by accused Arif from his house
but the same were not sealed by them at that time. He
confirmed that recovery memo of pair of shoes Ex.PW18/Y
bears his signature but he could not tell as to in whose writing
it has been prepared. He stated that during their stay at the
house of accused Arif i.e. for about one hour to one hour 30
minutes, people had collected there but none of them cited as
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.37 of pages 97
a witness. He further stated that house of Kadim was at the
distance of approximately 8 to 10 KM and when they visited to
the house of Kadim at Shalimar Garden, Sahibabad, District
Ghaziabad, they parked their vehicles 4050 meters from his
house. His house was situated in a thickly populated area and
the streets were about 15 to 20 feets wide. They had walked
for about 4050 meters to reach at the house of Kadim after
leaving the vehicles but they did not ask any public person to
join the investigation. He could not tell as to whether the
persons present there, were the family members or outsiders.
No documentary evidence like ration card, election card etc.
was collected by them showing that Kadim was one of the
occupants of the said house. Thereafter, they had gone to the
house of accused Farukh prior to the house of Kadim and his
house was situated at Jawahar Park and situated in a thickly
populated area. After leaving the government vehicle at the
distance of 40 to 50 meters, they had walked to the house of
Farukh and there were houses nearby, wherein peoples were
residing but not of them joined the police party. He stated that
nothing was recovered at the instance of accused Farukh.
They searched the house of accused Pawan around 4.30 PM.
No public witness was joined in the investigation. Further in his
presence the handwriting of the accused Arif were not taken
for comparison with alleged love letters found in possession of
Asha. At the time of recovery of love letters, which were
recovered vide recovery memo Ex.PW18/O, no public person
was present. No statement of any witness was recorded for
identifying the hand writing of accused Asha Chaudhary.
Further the gate was opened by accused Pawan when they
visited his house and his other family members were also
present. No blood stain were detected in any of the room.
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.38 of pages 97
Further pocha (duster) of the house of accused Pawan was not
seized by them. Music system was recovered from the house
of accused Pawan but verification of the ownership of music
system was not done by him. He could not tell whether the
music system, when taken into possession, was in a running
condition or not and he did not check the same. He conceded
that the motorcycle bearing no.DL7SS 0387 Hero Honda
Passion belong to Anuj Gupta S/o Sh. Banarsi Gupta R/o H.
No.27/45, Gali No.9, Vishwas Nagar, Shahdara, Delhi and no
documents with regard to sale and purchase in respect of said
motorcycle was produced by Anuj Gupta or Akil when they
seized the motorcycle. No receipt of Rs.18,000/ or Rs.13,000/
were produced by Anuj Gupta to him. No inquiry was made by
the police from the neighbours of accused Akeel regarding
using of motorcycle by him. He conceded that at the time of
recording of disclosure statement of accused Arif no one from
the locality was called to join as a witness. Arif had not given
the residential address of Gufran but he only stated that he
was the resident of Welcome. The house of Gufran was about
3/4 of KM from the house of Arif and there were residential
houses in between but no one was joined from those
residential houses. When they reached at the house of Gufran
it was closed from inside. On knocking, Gufran himself opened
the door but he had not gone inside the house. Arif had
identified Gufran. There were 34 persons in the house and
one of them was stated to be the brother of Gufran but his
statement was not recorded. The disclosure statement of
Gufran was recorded by SI Ajay Bali on the dictation of Insp.
Kamla Meena. In his presence the purse was not searched in
the drain near Shyam Lal College on the day of recording of
the disclosure statement of Gufran. The Gufran was wearing
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.39 of pages 97
belt and perhaps Spanish Leather was written on belt but as
per his knowledge no proof of ownership of belt being that of
deceased was collected from the family of deceased. No
particular identification mark of the deceased was there on the
belt. Besides the statement of Gufran the TIP of belt was held
in which the wife of deceased had identified it to be of the
deceased. He admitted that Gufran was produced before Ld.
MM on 05.08.2003 and three day police remand was obtained
and his second disclosure statement was recorded on
06.08.2003. He conceded that after the arrest on 04.08.2003
till the second disclosure statement dated 06.08.2003, Gufran
remained in police custody. No independent witness was called
at the time of recording of second disclosure statement dated
06.08.2003. The Qabristan was situated at 1½ KM from PS
Shahdara and there are houses in between. The gate of
Qabristan is quite big and was opened at that time. No one
met them inside the Qabristan. There was no personal
identification mark of the deceased on the purse but there were
visiting cards inside the purse and the words AV Focus was
printed on the cards. No site plan of the place of recovery was
prepared.
PW19 Ct. Farooq Ahmed confirmed that on 01.08.2003
on receipt of copy of DD No.6A, he alongwith ASI Dharamvir
went under flyover Shahdara near Aksh Missionary, where SI
Arun Chaudhary also reached and they found there a gunny
bag containing dead body of a male lying there. On opening of
gunny bag a dead body of male was found in complete naked
condition except a handkerchief on his private parts. One silver
type ring was on the finger of dead body. No eye witness met
at the spot nor the dead body could be got identified there. On
the basis of said DD, SI Chaudhary made endorsement for
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.40 of pages 97
preparation of rukka. Prior to that SHO PS Shahdara Insp. N.P.
Singh also reached there. In the meantime Insp. Kamla
Meena, Addl. SHO M.S. Park reached there too. He took rukka
to PS M.S. Park for registration of FIR. After getting the case
registered he came back to the spot and handed over rukka
and carbon copy of FIR to Insp. Kamla Meena. Ring of
deceased was taken into possession vide seizure memo
Ex.PW18/A. The gunny bag from which the dead body was
recovered alongwith above said handkerchief was also taken
into possession vide seizure memo Ex.PW18/B. Crime Team
visited the spot and took photographs. The blood stained earth
and control earth were also lifted from the spot by the IO and
they were sealed in separate parcels and they were taken into
possession vide seizure memo Ex.PW18/C. The dead body
was removed to GTB Mortuary. He guarded the dead body
there. On the same day at about 7.00 p.m, the dead body was
identified by wife, driver and father of deceased Neeraj Gupta.
On 02.08.2003, the postmortem examination was got
conducted on the dead body of deceased and thereafter the
dead body was handed over to the family members of
deceased. He identified the gunny bag and the handkerchief
Ex.PW19/P1 & P2 respectively.
During cross examination he stated that he reached at the
about at about 10.15 a.m, where 10/15 persons were standing
near the dead body and the gunny bag containing dead body
was lying on garbage. Insp. Kalma Meena reached there at
about 11.00 a.m. He did not notice any handkerchief or peace
of sutli in the garbage and the same were not in much quantity.
He stated that in his presence no person was made a witness
to the recovery of dead body and in his presence no attempt
was made to lift finger prints from the spot.
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.41 of pages 97
PW20 SI Arun Kumar confirmed that DD No.15A was
marked to him for inquiry. On the same day a dead body of
similar description as mentioned in DD No.15A was reported to
be lying in the area of PS M.S. Park. He contacted Insp.
Kamla Meena IO of the case. She took Deepa Gupta, driver
Bhagirath and himself to the GTB Hospital Mortuary, where
Deepa Gupta and driver identified the dead body to be that of
Neeraj Gupta, husband of Deepa Gupta. On the same day he
sent written application to the Bharti Cellular Office (Airtel) for
obtaining call details of mobile no.9810006511 belonging to
deceased Neeraj Guptra.
During cross examination he conceded that in the daily
diary no.15A Ex.PW7/A, there is no mention of any wrist watch,
ornaments, mobile phone having been taken by person, who
was alleged to have gone missing. He also confirmed that
there is no mention of belt and purse of deceased in the said
entry. Within 57 minutes receiving of DD entry Ex.P7/A he got
the information regarding recovery of dead body which was
lying at GTB Hospital mortuary, Delhi.
PW21 R.K. Singh, the Nodal Officer of Bharti Aircel,
confirmed that he had sent the call details of mobile no.
9810006511 of the period from 30.07.2003 to 01.08.2003 to Sh.
Sanjeev Yadav, ACP Nand Nagari. He proved on record the
call details of above said mobile phone pertaining to the said
period Ex.PW21/A1 to A5.
PW22 Sh. Gulshan Arora, Nodal Officer, of Hutch
Company, proved call details of the mobile phone bearing no.
9811582375 for the period from 02.07.2003 to 02.08.2003
Ex.PW22/A 1 to A3.
During cross examination he conceded that the hard disc
in which the original information was recorded was not taken
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.42 of pages 97
by the police and also Ex.PW22/A does not bear any certificate
of its authentication.
PW23 HC Kamal Singh confirmed that on 01.08.2003 he
was working as MHC(M) at PS M.S. Park. On that day, Insp.
Kamla Meena deposited two pullandas, one contain gunny bag
and handkerchief duly sealed with the seal of AKC and another
containing ring, two plastic boxes, containing sample earth and
blood control earth, duly sealed with the seal of AKC and one
telephone directory in the malkhana. He further confirmed that
on 02.08.2003 again Insp. Kamla Meena deposited two
pullandas with one sample seal duly sealed with the seal of
hospital, in the malkhana and on 04.08.2003 she again
deposited one video camera, digital diary, motorcycle
no.DL7SS0387, one telephone diary, one cassette player, one
belt, one wrist watch, both belonging to deceased, duly sealed
with the seal of AKC, one SIM Card speed no.10007713068,
one mobile phone Panasonic, diary, one telephone index diary
make Anoop no.55 containing some visiting cards, two love
letters, one postcard size photograph, one hand bag containing
powder, wrist watch, bangles, Rs.15/ cash, SIM card Airtel
Magic, in Malkhana in this case. He also confirmed that on
06.08.2003 Insp. Kamla Meena deposited one pullanda
containing ear top duly sealed with the seal of KM. One
pullnda containing purse, visiting cards, driving license duly
sealed with the seal of AKC, one leather shoe belonging to
deceased in the Malkhana. He further stated that on
24.09.2004 vide RC No.123/21, he sent five pullandas to CFSL
Hyderabad through Ct. Sudhir Kumar and on 09.12.2004, he
received five pullandas and one CFSL Report from Hyderabad.
All the aforesaid entries to that effect were made in register no.
19 vide seizure no.1281, 1283, 1286, 1290 and 1293. The
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.43 of pages 97
copies thereof are Ex.PW23/A1 to A14.
During cross examination he conceded that belt deposited
with him on 04.08.2003, the purse deposited with him on
06.08.2003 were not sent to CFSL. The purse was said to have
been recovered at the instance of Gufran. He also conceded
that there is no mention of depositing of CFSL form in register
no.19 while depositing the above said exhibits by the IO. There
is only one entry dated 24.09.2004 regarding sending of
articles to CFSL Hyderabad and there is no mention in that
entry that CFSL form was sent to CFSL Hyderabad alongwith
the exhibits. He also conceded that there is no mention of
sample seal having been sent to CFSL Hyderabad in entry
dated 24.09.2004.
PW24 Prashant Gaurav, Nodal Officer Reliance
Communication Ltd., proved the details of out going and
incoming calls of Reliance phone no.1136984880 for the period
20.07.2003 to 31.08.2003 Ex.PW24/A.
During cross examination he stated that no authentication
certificate is given on Ex.PW24/A. The original information is
recorded in Hard Disc which is maintained in Switch Room,
situated in Okhla and hard disc can not be handed over to the
police.
PW25 Sh. Sanjeev Kumar Yadav, the then ACP,
confirmed that the IO of the case Insp. Kamla Meena had
requested him to provide call details of phone no.9810006511
and he had given the details of the same on the same day.
PW26 ASI Jai Prakash, who recorded the formal FIR of
this case, proved the copy of FIR Ex.PW26/A and
endorsement on rukka Ex.PW8/D and his own endorsement
Ex.PW26/B.
During cross examination he conceded that he did not
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.44 of pages 97
mention that the copy of Fir was sent to Sr. Officers and
concerned MM. He did not bring DD No.8A dated 01.08.2003
and he conceded that the copy of DD No.8A is not placed in
judicial file.
PW27 SI Ajay Bali stated that on 04.08.2003 he
alongwith Insp. Kamla Meena, SI Arun Chaudhary, Ct.
Mahavir, Ct. Kishan Sahai, Ct. Pawan and Ct. Satender went to
Z1/127, Welcome on Tata 407 bearing no,DL1LE5324, where
one boy namely Abid met him and he was interrogated about
his mobile no.36984880 and he informed that the said mobile
phone belongs to his mother namely Bilkis Beguim but he uses
the phone. He also informed that on 30.07.2003 his friend Arif
came to see him and had used the phone by making a call on
phone no.9811582375 but he did not know to whom he had
talked. Thereafter, Abid took the police party to house
no.H468, Janta Colony, Welcome, where one Arif was met.
On interrogation he disclosed that on 31.07.2003 he alongwith
his friends Qadeem, Farukh and Gufran had committed the
murder of one Neeraj Gupta at the house of Pawan Sharma.
Arif was arrested and his disclosure statement Ex.PW18/G was
recorded. A watch of make Rado was recovered which was
tied by him on his left wrist. The watch was taken into
possession vide seizure memo Ex.PW18/H. Thereafter, Arif
took the police party to the house of Gufran at B274,
Welcome, where on the identification of Arif, Gufran was
apprehended and interrogated. He corroborated the facts
already narrated by accused Arif. Gufran was arrested and his
Disclosure Statement Ex.PW18/J was recorded. A video
camera make Soni with charger was recovered from his house
about which Gufran had told that the camera was to be used
for blackmailing Neeraj Gupta, the deceased. The video
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.45 of pages 97
camera with charger was seized vide memo Ex.PW18/L.
Gufran also took out belt of the deceased which he was
wearing at that time. It was a black leather belt on the buckle
of which a foot ball was embossed. The belt was seized vide
memo Ex.PW18/K, thereafter, Arif and Gufran took the police
party to Subzi Mandi Darya Ganj, where on the pointing out of
accused Arif, accused Qadeem, Farukh and Akeel were
interrogated and arrested and their Disclosure Statements
were recorded. Thereafter, accused Arif took them to house
no.302, gali no.2, Baljeet Nagar, Delhi where accused Asha
Chaudhary @ Pooja was found and she was identified as Asha
Chaudhary. She was interrogated and she disclosed that she
took deceased Neeraj Gupta to house of Pawan Sharma,
where Arif and other coaccused committed the murder of
Neeraj Gupta. She was arrested and her Disclosure Statement
Ex.PW18/N was recorded. The hand bag of Asha Chaudhary
was searched and one mobile phone of make Panasonic, one
SIM card, two love letters, one photograph of Arif and Pooja,
two diary and some make up articles were recorded and they
were taken into possession vide Seizure Memo Ex.PW18/O.
Thereafter, IO alongwith staff and accused persons reached at
PS Shahdara where all the accused persons were put in the
lock up, except accused Akeel and Arif to whom IO took away
to Jawahar Park. On 05.08.2003, he alognwith Insp. Kamla
Meena, SI Arun Chaudhary and other constables with all the
accused persons except Akeel went to the house of Pawan
Sharma in East Rohtash Nagar, Delhi where pointing out
memos were prepared at the instance of accused persons
namely Arif, Qadeem, Farukh and Gufran vide Ex.PW18/T1 to
Ex.PW18/T5. He further stated that on 05.08.2003 they went
to the hosue of Amit Gupta, at Vishwas Nagar, the registered
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.46 of pages 97
owner of motorcycle, used for removing the dead body of
deceased Neeraj Gupta. After recording his statement, they
reached at G.T. Road, near Deshi Wine Shop at the instance
of accused Arif and Qadeem, where they pointed out the place
where the dead body was thrown. On 06.08.2003 Arif.
Qadeem, Gufran, Farukh and Pawan were again interrogated
by IO. Gufran disclosed that he had thrown the purse of
deceased in Qabristan opposite of his house and his
Disclosure Statement to that effect was recorded vide
Ex.PW18/U. Accused Qadeem disclosed that ear tops of
deceased were kept by him in his house. Thereafter, they went
to Qabristan where at the instance of Gufran purse of
deceased Neeraj Gupta was recovered. The word Woodland
was written in English on the purse of Neeraj Gupta. Driving
license of Neeraj Gupta and some visiting cards were
recovered from inside of the purse. The articles were seized
vide memo Ex.PW18/V. Thereafter, they went to the house of
Qadeem where at the instance of accused Qadeem, one ear
top of golden colour of deceased was recovered. One stone
was affixed on the ear top. The ear top was seized vide
Seizure Memo Ex.PW18/W. On 07.08.2003, accused Arif was
interrogated and he disclosed that he purchased SIM of mobile
no.981582375 from one Raju and he had kept the shoes of
deceased Neeraj G/X was upta in his house. Accordingly his
Disclosure Statement Ex.PW18/X was recorded and thereafter,
at the instance of accused Arif one pair of black colour shoes
without laces were recovered from the house of Arif and same
were taken into possession vide Seizure Memo Ex.PW18/Y.
Thereafter, a search for Raju was made but he was not found.
He correctly identified the accused Akeel Ahmed, Arif,
Qadeem, Gufran, Farukh, Pawan and Asha in the court. He
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.47 of pages 97
also identified the case property Ex.P8 (purse), Ex.PW18/P7
(hand bag), Ex.PW18/P2 SIM Card and mobile Panasonic,
Ex.P18/P3 Diary, Ex.PW18/P4 telephone index diary,
Ex.PW18/P5 postcard size photograph, Ex.PW18/P6 two love
letter, Ex.P4 Wrist Watch Rado, Ex.P3 belt, Ex.P5 ear tops and
Ex.P7 one pair of shoes.
During cross examination he claimed that he was the
witness of the disclosure statement of accused Arif recorded
on 04.08.2003 but the disclosure statement of accused Arif
Ex.PW18/G does not bear his signatures. He conceded that
the disclosure statement of accused Arif was recorded at his
house and there were other houses near the house of Arif but
no one was called from that locality. He also conceded that in
his statement accused Arif had disclosed the names of his
companions but not their addresses, however, he had
disclosed the address of Gufran. But on showing the statement
Ex.PW18/G, the witness conceded that the address of accused
Gufran is not mentioned therein. He admitted that the house of
Gufran was at a distance of 1½ KM from the house of Arif and
it was located in a residential colony but no witness was joined
from there. The accused Gufran was identified by his brother
but the statement of his brother was not recorded. In his
disclosure statement dated 04.08.2003 Gufran had told that he
had thrown the purse of deceased in drain (nala) near Shyam
Lal College but on the day of recording of the disclosure
statement no attempt was made to trace out the purse from
drain. The belt of deceased was seized from Gufran to which
he was wearing and on the belt perhaps Spanish leather was
written. In his presence the purchase receipt was not taken
from the family of deceased. The name of deceased was not
written on belt. The second disclosure statement of Gufran was
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.48 of pages 97
recorded on 06.08.2003 and it was recorded inside the police
station. On 04.08.2003, the belt was sealed but he could not
tell as to whom the seal was given after sealing. On
06.08.2003, the same seal was used for sealing the purse but
he could not tell as to who had produced the seal on that day
and to whom it was returned after use. No site plan of the
place of recovery of purse was prepared. He conceded that in
his presence the video camera recovered from the site was not
tested to find out as to whether it was in working condition or
not. He further stated that he had recorded the disclosure
statement of three accused persons but did not recollect their
names. The door of the house of Arif was knocked by one of
the constable accompanied by them and Arif had opened the
door but they had not gone inside the house. Arif was wearing
the shoes. On that day no shoe was recovered and the shoes
were recovered on 07.08.2003. No search of the house was
conducted to see if any incriminating thing was there or not.
One wrist watch belonging to the deceased was recovered.
The house of Arif was not locked nor sealed from outside on
04.08.2003 or 05.08.2003 or thereafter. They did not depute
any constable to guard the house also, however, accused Arif
was arrested on 04.08.2003. On 04.08.2003 the shoes which
he was wearing were belonging to him. On 07.08.2003, when
they visited the house of Arif it was not locked and it was found
in opened condition. The accused went inside and brought out
the shoes of the deceased. The shoes were recovered after
34 days of the arrest of accused Arif. The shoes recovered at
the instance of accused were not sealed. The house of
accused is situated in thickly populated area and about 8 to 10
people had collected out side the house of accused Arif when
they visited his house but no respectable person of the area
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.49 of pages 97
was joined in the investigating nor they had asked any person
from local police of PS Welcome to join the proceedings. In the
Subzi Mandi Darya Ganj, the accused Farukh, Kadim and
Akeel were not found selling any vegetables, rather, they were
sitting separately and talking with each other. First of all, they
recorded the disclosure statement of Kadim but signature of
any independent person was not obtained on his disclosure
statement. The disclosure statement Ex.PW18/G, X, M3 &
Ex.PW18/N were recorded in the handwriting of SI Arun Kumar
Chaudhary but he could not tell as to why it was not recorded
by the IO Insp. Kamla Meena herself, when she was in a fit
condition to write. He admitted that in his presence no
document was checked to verify the address of Arif. He
claimed that to his knowledge Ex.PW18/N (disclosure
statement of accused Asha) was recorded by SI Arun
Chaudhary and it was signed by Insp. Kamla Meena at the
house of accused Asha, after recording of the same. He could
not tell as to from which place the mobile and other articles
were recovered as he was outside the house and IO had gone
inside the house alongwith the accused. The finger prints from
the mobile phone were not lifted nor the finger prints of
accused Asha was taken by them. He could not tell as to
whether any articles belonging to the deceased was recovered
from accused Asha or not. He could not as to whether the SIM
card recovered from accused Asha belongs to her or not.
PW28 ACP Kamla Meena, is the IO of the case, who
confirmed that on 01.08.2003 at about 10.30 a.m on receipt of
wire less message recording ercovery of a bead body in a
guuny bag, she went to the spot i.e. under GTB Flyover,
Shahdara, near Deshi Sharab Theka in front of Akash
Machinery Store. ASI Dharamveer, Ct. Farukh, SI Arun Kumar
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.50 of pages 97
Chauhdary, SHO PS Shahdara met her there. Dog squad
Team and Crime Team officials were also present there. After
cutting the stitches of gunny bag from one side, a dead body of
a male person in a nude condition was recovered. A white
handkerchief was found on the private part of the dead body
which was of the person aged about 25 to 30 years. In the
middle finger there was a ring of silver colour having a stone.
Three incised wounds, two on the chest and one on stomach,
were found on the dead body. One lacerated wound was also
found at the back side of the head. Dog Squad Team was
conducting the proceeding but they were unable to search any
clue due to rain. SI Arun Chaudhary prepared rukka on DD
No.6A and got the FIR registered by sending Ct. FArukh with
rukka. After registration of FIR, investigation was assigned to
her. She seized the silver colour ring, handkerchief and the
gunny bag bearing JP Brand Dal in a separate cloth pullanda
and the same was seized vide memo Ex.PW18/A. Gunny bag
and handkerchief were seized vide memo Ex.PW18/B. She
also lifted earth control and blood stained from the spot and
kept the same in separate glasses and sealed them with the
seal of AKC. Same were seized vide memo Ex.PW18/C.
Thereafter, the dead body was removed to GTB hospital
Mortuary and she directed SI Arun Chaudhary and Ct. Farukh
to preserve the dead body for 72 hours as it was an
unidentified dead body. Thereafter, the message was flashed
to all SSP in India and all SHO in Delhi. She recorded the
statements of Crime Team Officials. On the same day, at
evening time, SI Arun of PS Shahdara (where DD No.15A
dated 01.08.2003 regarding missing of one Neeraj Gupta was
lodged) alongwith Smt. Deepa Gupta (wife of Neeraj Gupta)
and Bhagirath, came at PS M.S. Park and she alongwith SI
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.51 of pages 97
Arun, Deepa Gupta, Bhagirath and ASI Arun Chaudhary went
to GTB Hospital mortuary where the recovered dead body was
identified to be of Neeraj Gupta by Deepa Gupta and
Bhagirath. He collected DD No.15 A from SI Arun and
thereafter, she recorded the statement of SI Arun Kumar of PS
Shahdra, Deepa Gupta and Bhagirath. Deepa Gupta informed
him that her husband was wearing a wrist watch make Rado,
white pant and blue half shirt, one black belt, one ear diamond
top in his one ear, one digital diary and black shoes. She also
told that he was carrying one mobile phone make Nokia 2100
bearing no.9810006511 while going from the house. Driver
Bhagirath produced one parking slip Ex.P1 of Metro Station
Shahdara bearing dated 31.07.2003 timing 3.00 p.m regarding
parking of lancer car of deceased Neeraj Gupta in the parking
of Metro Station Shahdara and she seized the parking slip
Ex.P1, vide seizure memo Ex.PW2/A. She narrated that driver
Bhagirath further told that he had taken out the said lancer car
from the above said parking on 01.08.2003 at about 8.30 a.m
and till that time Neeraj Gupta did not turn up there. She went
to the parking of metro station Shahdara and met Raja Ram,
the care taker of parking and recorded his statement.
Thereafter, she alongwith SI Arun Chaudhary, Deepa and
driver Bhagirath went to the office of deceased at A15, Kalkaji
and made inquiry from the staff members and they confirmed
that deceased Neeraj Gupta had left the office at about
1.30/2.00 p.m on 31.07.2003. Shje recorded the statements of
four persons there. Driver also produced one telephone
directory of deceased Neeraj Gupta and also told her that
Neeraj Gupta was talking to some Asha, when they were going
to Metro Station Shahdara from the office. They perused the
telephone diary and found the mobile number of one Asha in
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.52 of pages 97
the diary. The diary was seized vide memo Ex.PW2/B. Then
on her request ACP Seema Puri provided the call details of
mobile no.9810006511 of deceased Neeraj Gupta. On
02.08.2003, the inquest proceedings and the postmortem of
the dead body was got conducted. Then after identification of
the dead body the same was handed over to the claimant of
dead body. On 01.08.2003 she prepared the rough site plan of
the spot where the dead body was found which is Ex.PW20/D.
Ct. Farukh handed over blood gauze, blood sample in sealed
condition alongwith sample seal to her to which she seized
vide seizure memo Ex.PW28/E and she deposited the same in
Malkhana. However, Ex.PW28/E does not bear her signatures.
She further stated that on perusing the call details she came
tro know that there were frequent calls from mobile no.
9811582375 to the mobile phone of deceased Neeraj Gupta.
Thereafter, they came to know about the owner of mobile
phone no.9811582375 as Prem Nath Nagpal and on making
contact, he informed that his mobile phone was missing since
26.07.2003. Thereafter, he obtained print outs of mobile phone
no.9811582375 Ex.PW22/A1 to A2 from Hutch Company and
therefrom she came to know that one Reliance No.
01136984880 was used to contact the above said mobile
phone number 9811582375 on 30.07.2003. She contacted on
the said number one Abid responded, who informed her that
Reliance number was owned by his mother Bilkis Begum. On
interrogation, made on 04.08.2003, the said Abid informed her
that the said reliance phone was used by one Arif on
30.07.2003. Then after recording the statement of Abid and
Bilkis Begum they went to the house of accused Arif i.e.
H468,Welcome, where at the instance of Abid, accused Arif
was apprehended. During interrogation, the accused Arif made
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.53 of pages 97
confession about the incident. He was arrested in the case
vide memo Ex.PW28/F and his personal search was
conducted vide memo Ex.PW28/F1. He made disclosure
statement Ex.PW18/G. One Rado Watch which was produced
by accused Arif from the pocket of his pant was seized and
taken into possession vide seizure memo Ex.PW18/H.
Thereafter, at the instance of accused Arif they reached at the
house of accused Gufran at Welcome in B Block. There Gurfan
was apprehended at the instance of Arif and he also made
confession about the incident. He was arrested vide arrest
memo Ex.PW28/G and his personal search was conducting
vide personal search memo Ex.PW28/G1 and his disclosure
statement Ex.PW18/H was also recorded. Thereafter, he
produced a wearing belt of black colour which was seized vide
Seizure Memo Ex.PW18/K. Accused Gurfan also produced
one video camera and charger from his house which was also
seized memo Ex.PW18/L. Thereafter at the instance of
accused Arif they went to Subzi Mandi Darya Ganj where at his
instance three accused persons Farukh, Akeel and Kadim
were apprehended and interrogated. They also made
confession about the incident and thereafter, they were
arrested vide memos Ex.PW28/H, J & K respectively and there
personal search were also conducted vide memos
Ex.PW28/L1, L2 and L3. There disclosure statements
Ex.PW18/M1, M2 & M3. Thereafter, at the instance of accused
Arif, accused Asha Chaudahry, @ Pooja was apprehended
from her house bearing H. No.302, gali No.2 situated at Baljeet
Nagar. She was interrogated and arrested vide memo
Ex.PW28/M. Her personal search was conducted vide memo
Ex.PW28/M1 and her Disclosure Statement Ex.PW18/N was
recorded. She produced one lady purse of gray colour, one
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.54 of pages 97
SIM bearing phone no.9811582375, one mobile phone
instrument, one telephone directory, one another diary, one
photograph and two love letters in the purse. All the said
articles were seized vide memo Ex.PW18/O. Thereafter,
accused Arif led them to the house of accused Pawan at East
Rohtash Natar, where Pawan was apprehended at the instance
of Arif. He was interrogated and he confessed about the
incident. He was arrested vide arrest memo Ex.PW28/N. His
personal search was taken vide Ex.PW28/N1 and his
Disclosure Statement Ex.PW18/P was also recorded. At the
instance of accused Pawan, one music system make Magic
was seized and one more telephone direcotry was also seized.
These articles were seized vide memo Ex.PW18/Q.
Thereafter, they reached at PS Shahdara, therefrom they went
to Jawahar Park, Shahdara alongwith accused Akeel and
Qadeem. Remaining accused persons were left at PS
Shahdara in the custody of SI Ajay Bali. At the instance of
accused Akeel they went at H. NO.C31, Jawahar Park, Gali
NO.2, where at the instance of accused Akeel one Motorcycle
make Pulsar was seized vide Ex.PW18/R. Then they went to
the house of Qadeem at 173, Jawahar Park, where one digital
diary make Casio was seized vide Seizure Memo Ex.PW18/S.
She further stated that on 05.08.2003 accused Arif, Qadeem,
Farukh, Gufran and Asha pointed out the place of occurrence
vide Ex.PW18/T1 to T5. Accused Qadeem and Arif pointed out
the place where they had thrown the dead body and pointing
out memo Ex.PW18/P6 & P7 were prepared at the instance of
Qadeem and Arif respectively. Thereafter, the three days PC of
accused Arif, Qadeem, Gufran, Farukh and Pawan were
obtained. On 06.08.2003, accused Gufran made a
supplementary Disclosure Statement recorded vide
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.55 of pages 97
Ex.PW18/U. Then at the instance of accused Qadeem one ear
top golden colour having shining colour stone was recovered
from the house of Quadeem. The same was seized vide
memo Ex.PW18/W. On 07.08.2003, the accused Arif was again
interrogated and his supplementary Disclosure Statement was
recorded and then at his instance one pair of shoes of black
colour without laces was recovered from his house. The same
was seized vide memo Ex.PW18/Y. Then on 07.08.2003, in
the evening time, they went to the house of Pawan at East
Rohtash Nagar, where Ct. Vinod, the photographer of Crime
Team was called and at her instance, Ct. Vinod took
photographs of the house of Pawan i.e. the place of incident,
from different angles. On 08.09.2003, she moved an
application for TIP of case property and on 12.09.2003, the TIP
was conducted wherein Smt. Deepa Gupta w/o deceased
Neeraj correctly identified the belongings of Neeraj Gupta. On
24.09.2003, exhibits of this case were sent to CFSL Hyderabad
through Ct. Sudhir. She further claimed that during her
investigation scaled site plan was got prepared from SI Mukesh
Kumar Jain. She collected positive photographs also. On
14.10.2003, she collected print outs of the call details of phone
no.36984880 owned by Bilkis Begum, which are Ex.PW24/A
and it shows that on 30.07.2003, at about 4.10 p.m a phone call
from the said number was made to number 9811582375, the
SIM of which was recovered from accused Asha. The FSL
Report Ex.PW28/P1 and P2 were also received. She also
correctly identified the accused persons and the case property
i.e. one telephone directory Ex.P2, belt Ex.P3, Video Camera
make Soni with charger Ex.PW18/P1, ring Ex.P6, gunny bag
and handkerchief Ex.PW19/P1 & P2 respectively, wrist watch
Ex.P4, ladies purse Ex.PW18/P7 containing one SIM Car no.
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.56 of pages 97
10007713068, one telephone index diary, visiting cards in the
name of Neeraj Gupta, one photograph of Arif and mobile
phone make Panasonic containing SIM Card No.
H220006495906 Ex.PW18/P2 (colly.) recovered from accused
Asha @ Pooja, one brown colour diary of 2003 Ex.PW18/P3
taken out from the purse Ex.PW18/P7. She also identified one
postcard size photograph of Asha and accused Arif
Ex.PW18/P5 and two love letters written by Pooja to Arif
Ex.PW18/P6 and one telephone diary Ex.PW18/P8 and one
stereo and one speaker box Ex.PW18/P9 Icolly.) recovered
from the accused Pawan Sharma. She also identified one ear
top Ex.P5 and one digital diary make Casio Ex.PW18/10
recovered from accused Qadeem, one pair of shoes Ex.P7
recovered from accused Arif and purse Ex.P8 recovered at the
instance of accused Gufran.
During cross examination, she stated that accused Akeel
was arrested from Subzi Mandi Darya Ganj at the instance of
accused Arif on the basis of the disclosure statement dated
04.08.2003 of accused Arif. They had not joined any neighbour
in the investigation before entering in the house of accsued
Akeel nor they inquired about the ownership of motorcycle
bearing NO.DL7SS0387 at that time. Only on 05.08.2003,
she came to know that the registered owner of the said
motorcycle was one Mr. Anuj Gupta. She stated that when the
said Anuj gupta was interrogated he informed that he had sold
the motorcycle to Akeel for Rs.18,000/ but he did not produce
any documentary material/proof to that effect. She also did not
collect any proof regarding the claim of Anuj Gupta that Akeel
was his employee. She conceded that the signatures of the
family member or neighbors of accused Akeel were not
obtained on Seizure Memo of motorcycle. She also conceded
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.57 of pages 97
that as per rules, it is required that police officials visiting out
side jurisdictions should make proper entry at the concerned
PS but in this case she did not visit PS Shahibabad. She
further conceded that the accused Pawan Sharma was
arrested after the disclosure of Arif and no articles/belongings
of deceased Neeraj Gupta was recovered from the possession
of accused Pawan. There is no public witness or any family
member as witness on the seizure memo of music system.
Neither any ownership receipt of music system was obtained
nor any statement of the shop keeper was recorded. The music
system was in working condition at the time of its seizure but it
was not played in front of any public person. The two love
letters Ex.PW18/P6 (colly). recovered from accused Asha
Chaudhary were not concerned with deceased Neeraj Gupta
but they indicate the relationship between accused Arif and
Asha. She admitted that the signature of the mother of
accused Asha was not obtained on her disclosure statement.
The disclosure statement was recorded after the preparation of
the recovery memo of SIM. She further admitted that in her
disclosure statement there is no mention about the love letters.
No document regarding the employment of accuased Asha
was recovered from the deceased Neeraj Gupta nor any
identity card issued by Neeraj Gupta was recovered from the
possession of Asha. No recommendation letter, as alleged by
Asha, was recovered during investigation. As per disclosure
statement accused Asha was working with Neeraj Gupta for
about 2½ years prior to the occurrence of the instant case.
She further concded that in DD No.15A dated 01.08.2003,
there is no mention that the deceased was having purse and
blet when he last left his house. Although there is mention of
other wearing articles etc. She further conceded that Deepa
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.58 of pages 97
Gupta had not stated in her statement that deceased was
having a belt and visiting cards in his purse, when he last left
his house. The disclosure statement of accused Arif was
recorded between 8.00 a.m to 8.30 a.m. at his house on
04.08.2003 and he was arrested at about 8.30 a.m. She had
not called any persons from the adjoining houses at the time of
recording of disclosure statement of accused Arif and in his
disclosure statement, Arif had stated "apne sathiyon ko
pakadwa sakta hun" but he had not given the residential
address of accused Gufran. The distance between the house
of Arif and Gufran was about 1 or 1½ KM and there were
residential houses and market in between but no witness was
taken from there. When they reached at the house of Gufran
at about 9.45 a.m, at that time main gate of the house was
closed and Arif made it opened by knocking the door. Brother
of Gufran and lady of middle age were found there but except
Arif no identification in respect of accused Gufran was got
done from any one else. At the time of recording of Disclosure
Statement of Gufran no outsider or neighbor was called to
become a witness. At the time of arrest Gufran was wearing
the belt in question upon which Spanish leather was written
and there was a mark of football. She conceded that such belt
are easily available in the open market. No specific
identification mark was found on the belt to indicate that the
same belong to the deceased. During investigation of the case
no documentary evidence was received from the family of the
deceased to confirm that the belt produced in the court
belongs to the deceased. She conceded that Gufran was
produced before the Magistrate on 05.08.2003 and his three
days PC was taken and his second disclosure statement was
recorded at about 12.00 noon on 06.08.2003 and from the time
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.59 of pages 97
of arrest till recording of his second disclosure on 06.08.2003,
Gufran was in their police custody and at the time of recording
of second disclosure statement no independent witness was
called. They got the purse from by the side of wall of Qabristan
in front of the house of Gufran and the purse was wet but at
that time it was not raining when they visited the Qabristan.
There were 34 visiting cards in the purse. No Site Plan of the
place of recovery of purse i.e. qabristan was prepared. The
video camera was not used in the case as it was out of order.
They had gone to the house of Arif on foot and there was a
grave yard at some distance from the house of accused Arif.
The house of accused Arif was not searched on 04.08.2003 to
find any incriminating articles. They reached at the house of
accused Qadeem at about 4.00 p.m on 06.08.2003 and before
taking the search of the house of Qadeem, at the time of
recovery of ear top, she had not offered herself for search to
any person. She confirmed that she was knowing the
difference between the ear top and nose pin. In the seizure
memo Ex.PW18/W, the recovery of an ear top is mentioned.
She confirmed that in Ex.PW28/A there is no mention of any
hole in the ear of deceased.
PW29 Ms. Ruby Alka Gupta, the then Ld. MM, KKD
Courts, confirmed that on 12.09.2003 she conducted the TIP
proceeding of the articles of this case. The articles for mixing
up with the case properties were brought by the IO. The
articles to be identified was produced in sealed condition and
the same was opened by her and the articles were correctly
identified by the witness. She draw the proceedings vide
detailed report Ex.PW9/A. She further stated that on the
request of IO, the copy of TIP proceeding was given to the IO
vide Ex.PW29/A.
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.60 of pages 97
During cross examination she confirmed that IO had not
given her any list of articles which she had brought for mixing
up with the properties to be identified and all the articles
subjected to identification were placed at same serial number
i.e. Sl. No.4. Articles were put in separate groups on the table
simultaneously and the witness was asked to see each ground
one at a time and identify the articles. She conceded that the
witness was not got identified by the IO at the commencement
of the TIP and the serial of the placing of the articles to be
identified was not changed. She explained that the phrase
looking alike articles means the articles of the same style and
make. She conceded that it is not mentioned in the report
whether the words leather plus was mentioned on the belts
produced for mixing as it was mentioned on the belt which was
to be identified. She also admitted that it is not mentioned in
her report as to whether she had placed a slip over the word
leather plus and the other belts at the same time. Similarly, it is
not mentioned in the report as to whether the words woodland
was mentioned on the wallets produced for mixing up with the
wallet to be identified or not as it was mentioned on the wallet
which was to be identified. She conceded that she had not
placed a slip over the words woodland on the wallet to be
identified and at the same place on the other wallets produced
for the purpose of mixing up.
6. After conclusion of prosecution evidence, statements of
accused persons U/s 313 Cr.P.C were recorded, wherein they
claimed innocence on the ground of false implication in this
case.
Accused Mohd. Akeel stated that only Anuj Gupta has
deposed against him. IO SI Arun Chaudhary with the collusion
of Anuj Gupta and officials of PS M.S. Park have falsely
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.61 of pages 97
implicated him in this case in place of Anuj Gupta, who was the
registered owner of motorcycle bearing no.DL7SS0387. He
was working in the factory of Anuj Gupta at that time, so police
officials with the collusion of Anuj Gupta got him falsely
implicated in this case by citing Anuj Gupta as witness in this
case.
Accused Gufran stated that the purse of deceased has
been planted on me after keeping him in police custody for
more than two days and the belt, which has been shown to be
that of deceased, belongs to him.
Besides above, accused Akeel, Asha Chaudhary, Pawan
Sharma, Arif, Kadim, Farukh and even Gufran stated that TIP
proceedings were not held correctly as all the case properties
items were placed simultaneously before the identifying
witness. No Paper slips were pasted on the written portions of
the case properties and the articles which were mixed with the
same. All articles for identification were placed at serial
number 4 to give an indication to the witness.
The accused persons opted not to lead any evidence in
their defence.
7. I have carefully heard the rival submissions of Ld.
Respective counsels for accused persons as well as Ld. Addl.
Public Prosecutor for the State and also of Ld. Counsel for the
complainant. I have also given my prolonged consideration to
the matter in light of evidence adduced and the case law relied
upon by Ld. Counsels for parties.
8. The case of the prosecution can be summarized as
under:
(i). That on 31.07.2003 at about 2.30 p.m
deceased Neeraj Gupta left his office with his
deriver Bhagirath (PW2) and at that time he
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.62 of pages 97
was wearing white pant, light blue shirt, black
shoes and white shocks and was having
purse, mobile phone, ear ring, digital diary
etc. He reached at Metro Station Shahdara
and in the way, he received telephone calls
from mobile no.9811582375 and he was
addressing to the caller by the name of Asha.
Further he left his driver at the Metro Station
Shahdara and left the said place while asking
his driver to wait for him but he did not return
till next morning. On 01.08.2003 at about 6.05
p.m, a missing report was lodged by the wife
of Neeraj Gupta at PS Shahdara vide DD No.
15A therein mentioning the description of the
clothes and other belongings of her husband.
(ii).On 01.08.2003 itself at about 10.35 a.m dead
body of a male person in nude condition (only
having an handkerchief on his private parts)
was recovered in the area of PS M.S. Park,
information regarding the same was recorded
in PS M.S. Park vide DD No.6A. The said
dead body was identified by Smt. Deepa
Gupta to be that of her husband Neeraj
Gupta.
(iii).After recovery of dead body, it was disclosed
by PW2 Bhagirath to the police that while
going to Metro Station Shahdara, deceased
Neeraj Gupta was talking to one Ms. Asha on
his mobile phone no.9810006511. Call details
of said mobile number were obtained and it
was revealed that in the recent past many
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.63 of pages 97
calls were exchanged between phone no.
9811582375 and the mobile phone of
deceased. The owner of the said number
9811582375 was located, who was revealed
as Prem Nath (PW5), who stated that on
26.07.2003 he had lost his mobile phone. The
call details of mobile phone of deceased
revealed that the calls from mobile number
9811582375 on the mobile phone of
deceased having no.9810006511 had been
made only after 26.07.2003. The call details
also revealed that on 31.07.2003 also, before
the deceased had left from Metro Station
Shahdara, he had received calls from mobile
no.9811582375.
(iv).Call details of mobile no.9811582375 were
also obtained and it was revealed that on
30.07.2003, three calls were received on
mobile no.9811582375 from mobile no.
36984880. The owner of the said mobile
phone was revealed as one Smt. Bilkis
Begum, who disclosed that her son Abid
Malik (PW16) was using the said phone. In
interrogation, Abid Malik revealed that his
friend Arif had made calls from his mobile
phone on 30.07.2003.
(v).On this Arif was tracked and interrogated,
who confessed to have committed the
offence and pursuance to his disclosure
statement, he got his coaccused persons
namely Akeel, Asha Chaudhary, Pawan
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.64 of pages 97
Sharma, Gufran, Kadim and Farukh arrested
and it was pursuant to their disclosure
statements, belongings of the deceased
Neeraj Gupta were recovered. Accused Arif
disclosed about hatching of conspiracy with
his other co accused persons to kill Neeraj
Gupta, who was having an illeye on his girl
friend Asha Chaudhary @ Pooja. Accused
Arif produced one Rado watch from the
pocket of his wearing pant. Thereafter, he led
the police team to the house of accused
Gufran and accused Gufran was arrested in
this case and he produced one wearing belt
of black colour, one video camera and
charger from his house. Thereafter, at the
instance of accused Arif, the other accused
persons namely Farukh, Kadim & Akeel were
apprehended and they also made their
respective Disclosure Statements.
Thereafter, at the instance of accused Arif,
Asha was apprehended and she produced
one lady purse of Gray colour, one SIM Card
bearing no.9811582375, one mobile phone
instrument, one diary, one photograph and
two love letters. Thereafter, accused Arif led
the police to the house of accused Pawan
Sharma and he got recovered one music
system and one telephone directory from his
house. Then at the instance of accused
Akeel, motorcycle bearing no.DL7SS0387
was recovered from house no.C31, Jawahar
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.65 of pages 97
Park, Gali No.2. Thereafter, they went to the
house of accused Kadim from where he got
recovered one digital diary make Casio and
one ear top golden colour having shining
colour stone. On 07.08.2003, the accused
Arif was again interrogated and his
supplementary Disclosure Statement was
recorded and then at his instance one pair of
shoes of black colour without laces was
recovered from his house. The said articles
were identified by his wife Smt. Deepa Gupta
in the TIP proceedings to be that of his
husband Neeraj Gupta (deceased). Then on
07.08.2003, they went to the house of Pawan
at East Rohtash Nagar, where Ct. Vinod, the
photographer of Crime Team took
photographs of the house of Pawan i.e. the
place of incident, from different angles.
9. According to the contentions of Ld. Addl. PP for the State,
the case of the prosecution launched U/s 302/201/120B/34
IPC, based on the circumstantial evidence, is crystal clear. By
the combined reading of the consistent, natural and trustworthy
statements of PW2 Bhagirath (Driver), PW9 Deepa Gupta
(wife of deceased Neeraj Gupta), PW12 Anuj Gupta (owner of
vehicle in question bearing registration no.DL7S0387) coupled
with the medical and scientific evidence together with other
evidence of police officials, the case of the prosecution that
accused persons by hatching a conspiracy killed the Neeraj
Gupta and thereafter destroyed the evidence regarding
commission of such offence. The factum of unnatural death of
Neeraj Gupta (the deceased) is not in dispute at all. Further the
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.66 of pages 97
testimonies of PW2 Bhagirath (Driver of deceased) and PW9
Smt. Deepa Gupta (wife of deceased) is in consonance to the
medical and scientific evidence brought on record in the form
of MLC and Postmortem Report, which confirms that the cause
of death was asphyxia due to antemortem strangulation by
ligature and also mentioned that fourteen injuries were
found on the dead body. FSL Result further corroborates the
case of the prosecution. Further evaluation of the calls details
of the mobile phone of deceased reveals that accused Arif had
talked with deceased Neeraj Gupta from mobile no.
9811582375 and even on the day when deceased was going to
Metro Station Shahdara, from the same number Asha was in
touch with deceased (as disclosed by PW2 Bhagirath)
coupled with the respective disclosure statements of accused
persons regarding theirs involvement in the crime and recovery
of the articles belonging to the deceased subsequently
recovered from them, further strengthen the story of
prosecution that it were the accused persons, who committed
the offence alleged. Further the contradictions and short
comings, as pointed out by Ld. Defence Counsel, are of minor
and negligible nature and they have been failed to cause any
dent to the case of prosecution. Besides, the medical and
scientific evidence, the other documents like FIR, seizure
memos, memos of arrest and personal search of accused
persons and also their disclosure statements have been
proved by the prosecution witnesses in their respective
testimonies. From the aforesaid, the prosecution has been able
to form an unbreakable chain of evidence against the accused
persons to draw an inference of guilt totally incompatible to the
innocence of accused persons and it can be said that the case
of the prosecution is firmly established.
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.67 of pages 97
Per contra, according to Ld. Counsel for accused persons,
the prosecution has been miserably failed in its mission of
proving its case beyond the shadow of reasonable doubt and
therefore, all the accused persons are entitled for an order of
acquittal in their favour by giving them benefit of doubt. Firstly,
there is no direct evidence on record to show that the accused
Arif, Asha Chaudhry, Kadim, Farukh, Gufran, Akil and Pawan
Sharma had entered into a criminal conspiracy to commit the
murder of Neeraj Gupta and furtherance of said conspiracy
they had killed Neeraj Gupta and dumped his body at G.T.
Road Shahdara under flyover in a gunny bag, within the area
of PS M.S. Park. Further in the instant case no independent
public witness was joined in the investigation at any point of
time. The recoveries, shown to be effected from the accused
persons or at their instances are not beyond doubt and there
are number of material contradictions amongst the testimonies
of the prosecution witnesses which goes to the root of the case
and as such all the accused are entitled for an order of
acquittal in their favour on account of benefit of doubt.
10. In a case based on circumstantial evidence, the settled
law is that the circumstances from which the conclusion of guilt
is drawn should be fully proved and such circumstances must
be conclusive in nature. Moreover, all the circumstances
should be complete and there should be no gap left in the
chain of evidence. Further, the proved circumstances must be
consistent only with the hypothesis of the guilt of the accused
and totally in consistent with his innocence.
In I (2008) SLT 682 titled as Sattatiya @ Satish Rajanna
Kartalla Vs. State of Maharashtra, it was held that, "It is
settled law that an offence can be proved not only by direct
evidence but also by circumstantial evidence where there is no
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.68 of pages 97
direct evidence. The Court can drawn an inference of guilt
when all the incriminating facts and circumstances are found to
be totally incompatible with the innocence of the accused. Of
course, the circumstances from which an inference as to the
guilt is drawn have to be proved beyond reasonable doubt and
have to be shown to be closely connected with the principal
fact sought to be inferred from those circumstances.
In Hanumant Govind Navgundkar Vs. State of MP, AIR
1952 SC 343, which is one of the earliest decisions on the
subject, the Apex Court of land observed as under:
"It is well to remember that in cases
where the evidence is of a circumstantial
nature, the circumstances from which the
conclusion of guilt is to be drawn should
be in the first instance be fully
established and all the facts so
established should be consistent only
with the hypothesis of the guilt of the
accused. Again, the circumstances
should be of a conclusive nature and
tendency and they should be such as to
exclude every hypothesis but the one
proposed to be proved. In other words,
there must be a chain of evidence so far
complete as not to leave any reasonable
ground for a conclusion consistent with
the innocence of the accused and it must
be such as to show that within all human
probability the act must have been done
by the accused."
In Padala Veera Reddy Vs. State of AP (1989) Supp (2)
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.69 of pages 97
SCC 706, the Hon'ble Supreme Court held that when a case
rests upon circumstantial evidence, the following tests must be
satisfied:
(i). the circumstances from which an inference of
guilt is sought to be drawn, must be cogently
and firmly established;
(ii). Those circumstances should be of a definite
tendency unerringly pointing towards guilt of
the accused;
(iii). the circumstances, taken cumulatively, should
form a chain so complete that there is no
escape from the conclusion that within all
human probability the crime was committed
by the accused and none else; and;
(iv). the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that
of the guilt of the accused and such evidence
should not only be consistent with the guilt of
the accused but should be inconsistent with
his innocence."
In Sharad Birdhichand Sarda Vs. State of
Maharashtra, (1984) 4 SCC 116, it was held that the onus
was on the prosecution to prove that the chain is complete and
falsity or untenability of the defence set up by the accused can
not be made basis for ignoring serious infirmity or lacuna in the
prosecution case. The Court then proceeded to indicate the
conditions which must be fully established before conviction
can be based on circumstantial evidence. These are:
(i). the circumstances from which the conclusion
of guilt is to be drawn should be fully
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.70 of pages 97
established. The circumstances concerned
must or should and not may be established;
(ii). the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that it is to say, they should not be
explainable on any other hypothesis except
that the accused is guilty;
(iii). the circumstances should be of a conclusive
nature and tendency;
(iv). they should exclude every possible
hypothesis except the one to be proved; and
(iv). there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show
that in all human probability the act must
have been done by the accused."
In state of UP Vs. Ashok Kumar Srivastava, (1992) 2
SCC 86, it was pointed out that great care must be taken in
evaluating circumstantial evidence and if the evidence relied on
is reasonably capable of two inferences, the one in favour of
the accused must be accepted. It was also pointed out that the
circumstances relied upon must be found to have been fully
established and the cumulative effect of all the facts so
established must be consistent only with the hypothesis of
guilt.
The above noted propositions have been reiterated in
Bodhraj @ Bodha and Others Vs. State of Jammu and
Kashmir, V (2002) SLT 111; Bharat Vs, State of MP., I (2003)
SLT 724; Jaswant Gir Vs. State of Punjab, III (2006) CCR;
Harmuddin Vs. State of Delhi ILR (2008) II Delhi 107, AIR
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.71 of pages 97
2007 SC 2957.
In Ramreddy Rajesh Khanna Reddy and another Vs.
State of AP (Supra), the Hon'ble Supreme Court while
reiterating the settled legal position observed:
"It is now settled that with a view to base
a conviction on circumstantial evidence,
the prosecution must establish all the
pieces of incriminating circumstances by
reliable and clinching evidence and the
circumstances so proved must form
such a chain of events as would permit
no conclusion other than one of guilt of
the accused. The circumstances can not
be on any other hypothesis. It is also
well settled that suspicion, however
grave it may be, can not be a substitute
for a proof and the Courts shall take
utmost precaution in finding an accused
guilty only on the basis of the
circumstantial evidence."
In Reg. Vs. Hodge [1838 2 Lewin 227], it was held that
"the mind was apt to take a pleasure in adapting circumstances
to one another, and even in straining them a little, if need be, to
force them to form parts of one connected whole; and the more
ingenious the mind of the individual, the more likely was it,
considering such matters, to overreach and mislead itself, to
supply some little link that is wanting, to take for granted some
fact consistent with its previous theories and necessary to
render them complete."
In Sarwan Singh Rattan Singh Vs. State of Punjab
[AIR 1957 SC 637], it has been held that "it is no doubt a
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.72 of pages 97
matter of regret that a foul cold blooded and cruel murder
should go unpunished. There may also be an element of truth
in the prosecution story against the accused. Considered as a
whole, the prosecution story may be true; but between 'may be
true' and 'must be true' there is inevitably a long distance to
travel and the whle of this distance must be covered by the
prosecution by legal, reliable and unimpeachable evidence
before an accused can be convicted."
As per settled law, it is not as if the conviction can only be
based on the sole ground of last seen as last seen together
may not by itself necessarily lead to the inference that it was
the accused who committed the crime. I consider it necessary
at this stage to refer to a decision of the Supreme Court of
India reported in State of Rajasthan Vs. Kanshi Ram AIR
2007 SC 145, where the law on this subject has been
discussed in detail. Relevant portion of the same reads as
under:
"Ld. counsel for the State strenuously
urged before us that the High Court
committed an apparent error in ignoring
the evidence on record which disclosed
that the respondent was last seen with
deceased Kalawati in his house on February 3, 1998 late in the afternoon.
Thereafter, he was not seen by anyone and his house was found locked in the morning. The evidence of PW--5, mother of the deceased Kalawati, and her brother Manraj, PW--2 clearly prove the fact that the house was found locked on February 4, 1998. The evidence also establishes beyond doubt that the doors State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.73 of pages 97 were removed and dead bodies of the deceased Kalawati and her daughters were found inside the house on February 6, 1998. In these circumstances, the disappearance of the respondent was rather suspicious because if at all only he could explain what happened thereafter. He, therefore, submitted that in the facts of the case, in the absence of any explanation offered by the respondent, an inference must be drawn against the respondent which itself is a serious incriminating circumstance against him."
In Sahadevan alias Sagadevan Vs. State, represented by Inspector of Police, Chennai (2003) Vol.1 SCC 534, the prosecution established the fact that the deceased was seen in the company of the appellants from the morning of March 5, 1985 till at least 5 p.m. on that day when he was brought to his house, and thereafter his dead body was found in the morning of March 6, 1985. In the background of such facts, the court observed: "Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them.
This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.74 of pages 97 instant case, the appellants have failed to discharge this onus. In their statement under Section 313 Cr.P.C they have not taken any specific stand whatsoever."
11. Applying the aforesaid principles of law, I have examined the evidence on record and come to the conclusion that the prosecution has been failed in its mission of proving its case beyond the shadow of reasonable doubts and therefore, the accused persons are entitled for an order of acquittal in their favour by giving him benefit of doubt for the reasons given below:
12. The case of the prosecution rests entirely on circumstantial evidence, which has been elaborated above. To prove the prosecution case, the prosecution was supposed to prove and link all the chains with each other without even an iota of doubt, but such is not the case herein.
13. The fact that deceased Neeraj Gupta left his office with his driver Bhagirath (PW2) in his Lancer Car bearing no.DL2CM5055 on 31.07.2003 at about 2.30 p.m is confirmed from the testimony of PW2 Bhagirath. PW2 Bhagirath deposed that on 31.07.2003 at about 9.00 a.m., he had taken Neeraj Gupta from his house at Rohini and took him to his office at Kalkaji. At about 2.30 p.m, Neeraj Gupta came out of his office and told him for taking him to Metro Station, Shahdara and before starting from his office, Neeraj Gupta had procured five bear bottles and kept the same in the vehicle. He further confirmed that Neeraj Gupta had received a number of phone calls on his mobile phone bearing no.9810006511, as there was frequent calls coming on his mobile, and he was addressing the caller as Asha and was saying Asha "main thodi der main pahuchne wala hun", Asha you should meet me State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.75 of pages 97 at Pandara Park and now you are meeting me at Shahdara. He further deposed that at Shahdara Metro Station, Neeraj Gupta asked him to park the vehicle in parking and asked him to wait there till he comes and after taking five bear bottles, he left from there. He further deposed that he waited for Neeraj Gupta throughout night and about 7.00 a.m (of 01.08.2003) when Neeraj Gupta did not return, he informed at Kalkaji Office about not arrival of Neeraj Gupta and left the Metro Station on the directions of one Sh. Ashokji and reached Kalkaji Office at 9.30 a.m, where Deepa Gupta W/o Neeraj Gupta met him. After discussing the matter, PW2 Bhagirath and PW9 Smt. Deepa Gupta went to PS Shahdara, where she lodged missing report vide DD No.15A at about 06.05 p.m. DD No.15A Ex.PW7/A reads as under: ".......... Her husband Neeraj Gupta S/o Fakir Cand yesterday on 31.07.2003 alongwith his driver had left his office at Kalkaji for going to Shahdara Metro Station in his Lancer Car bearing registration no.DL2CM5055. Bhagirath told them that Neeraj Gupta asked him to park the vehicle at Shahdara Metro Station and wait for him and proceeded toward G.T. Road while saying "main abhi aata hun thodi der lag jayegi". He waited for him but he (Neeraj Gupta) did not return back. They do not have any suspicion on anybody. Her husband was wearing white pant, light blue shirt, black leather shoes and white shocks and her husband is aged about 42 years, hight 5' 4" and colour whitish, light strong State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.76 of pages 97 built up, face round, there was a cut mark on the forehead near left eye...................." On the information given by the complainant to the police regarding missing of her husband DD No.15/A Ex.PW7/A was lodged, however, bare perusal of DD No.15A reveals that it does not contain the several material particulars regarding the deceased i.e. the exact cloths, accessories and jewellery article being carried by him. As per PW7 HC Raj Pal (Duty Officer), who recorded DD No.15A, he had recorded DD No. 15A at the exact dictation of PW9 Deepa Gupta. He admitted in his cross examination that there is no mention about the purse, belt, Rado Watch being carried by deceased. He further admitted that DD No.15A also does not find mention as to where and with whom Sh. Neeraj Gupta had left. He also confirmed that in DD No.15A there is no mention of any ornament having been worn by the deceased.
It is not the case of prosecution that PW9 Deepa Gupta had met PW2 Bhagirath after lodging of DD No.15A. It has been admitted by PW2 Bhagirath and PW9 Deepa Gupta that after having discussed the matter at Kalkaji Office, they had gone to PS Shahdara for getting the missing report lodged as PW9 was over tensed and perplexed about missing of her husband as the mobile phone of her husband was switched off. Had it been so, then what prevented her to give all the necessary details i.e. regarding belt, purse, Rado watch, mobile phone and ornaments having been worn and carried by her husband and as to whether he had gone and with whom he was talking lastly on phone. Such lapse on the part of PW9 Smt. Deepa Gupta creates doubt and the possibility of planting of materials on the accused persons, which found no mention in the DD No.15A, can not be completely ruled out. The fact State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.77 of pages 97 that PW2 Bhagirath had also accompanied PW9 Deepa Gupta to the Police Station Shahdara for getting the missing report of Neeraj Gupta lodged, is evident from their testimonies recorded in the Court. The fact that while going to Metro Station Shahdara, he was talking to somebody on his mobile phone having no.9810006511 and was addressing the caller as Asha is also not mentioned in DD No.15A. In such circumstances, the first link of chain i.e. that deceased left his office with his driver PW2 Bhagirath on 31.07.2003 at about 2.30 p.m and at that time he was carrying his mobile phone bearing no.9810006511, digital diary and purse and was wearing a Rado watch and a belt, is not free of doubt. Further the clothes of deceased that have been mentioned in DD No. 15A have not been recovered in the present case. There is no explanation in the entire police report as to where those clothes have gone and whether any efforts were made by the police team to recover those clothes.
14. The second link of the prosecution case is that on 01.08.2003 at about 10.35 a.m, dead body of a male person was recovered from the G.T. Road, Shahdara near Deshi Sarab Theka under flyover, G.T. Road in a gunny bag vide DD no.6A within the jurisdiction of P.S M.S. Park. Senior Officials of police also reached at the spot on receipt of information regarding recovery of a dead body. Crime Team and dog squad also called at the spot. FIR No.238/03 of the present case U/s 302/201 IPC was lodged in the PS M.S Park on the basis of said DD No.6A.
The fact that after recovery of dead body vide DD No.6A and registration of FIR, the information in this regard was flashed to all SSP in India and all the SHOs in Delhi, is evident from the statement of IO ACP Kamla Meena (PW28), State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.78 of pages 97 however, as per the statement of PW20 SI Arun Kumar, he had received the information regarding recovery of dead body after about 57 minutes of recording of DD No.15A Ex.PW7/A. The delay between the time of recovery of dead body in the area of PS M.S. Park and flashing of information in the police stations of Delhi is however unexplained in the entire charge sheet, specially in view of the fact that as per PW28 ACP Kamla Meena, SHO PS Shahdara had also reached at the spot at the time of recovery of dead body. Had the information regarding recovery of an unidentified male dead body in the area of PS M.S. Mark been available at PS Shahdara, there was no occasion for the DD Writer to record the information regarding missing of Sh. Neeraj Gupta on the statement of Smt. Deepa Gupota, rather than producing her before the SHO PS Shahdara.
Be that as it may be, the fact that the dead body was of deceased Neeraj Gupta is not disputed in the present case and as such the above lacuna/lapses on the part of police officials of PS Shahdara and M.S. Park is of no consequences.
15. As per the prosecution case, it was only after the identification of the dead body of deceased Neeraj Gupta, PW2 Bhagirath for the first time stated before the IO that deceased Neeraj Gupta had left his office at 2.30 p.m on 31.07.2003 in his Lancer Car and at that time he was carrying his mobile phone, digital diary, purse and was wearing Rado Watch, belt and ear top and two gold rings. He further disclosed that while going to PS Shahdara, he was talking to some one on phone and was addressing the caller as Asha. As per PW2 Bhagirath, while leaving Sh. Neeraj Gupta had asked him to wait for him at the parking of Metro Station Shahdara and when he did not return till next morning, he informed the State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.79 of pages 97 Kalkaji Office. It was of this statement of PW2 Bhagirath that police machinery took up speed and call details of mobile phone of Neeraj Gupta i.e. 9810006511 were obtained. The call details revealed that Neeraj Gupta had received calls from the mobile phone number 9811582375 and accordingly the owner of the said mobile number was contacted and owner of said mobile phone was found to be Sh. Prem Nath (PW5). As per PW5 Prem Nath, on 26.07.2003 he had lost his mobile phone while traveling in bus root number 623 at Vikas Marg and th said mobile phone was having a SIM card of number 9811582375. However, in his statement, he has not given the description of mobile phone, which was being used by him with the SIM Card in question and he had not even lodged any report regarding the missing of his mobile phone with SIM card nor did he bother to get the SIM card blocked from the concerned subscriber. The mobile phone of Sh. Prem Nath, which was allegedly lost by him in the bus is also not been recovered in the present case and same is also fatal to the prosecution case specially in view of the fact that time gap between loss of mobile phone and the arrest of accused persons is less than ten days.
16. The next link of chain relied upon by the prosecution is that as per prosecution case since PW5 Prem Nath could not assist in the further investigation of the case in view of his statement that he had lost his mobile on 26.07.2003, the investigation again took the dead end and as such the call details of mobile phone number 9811582375 were obtained by the IO. The said call details revealed that on 30.07.2003 three calls were received on the mobile phone number 9811582375 from the mobile no.36984880. Owner of the mobile phone no. 36984880 was found to be Smt. Bilkis Begum and on receipt of State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.80 of pages 97 this information, police officials reached at the house of Smt. Bilkis Begum, where on interrogation Smt. Bilkis Begum told that the said phone was being used by her son Abid Malik. Interrogation from the Abid Malik was also made, wherein he told that on 30.07.2003 at about 4.15 p.m, his friend Arif had used his mobile and had talked to some one. However, while appearing in the witness box as PW16, Abid Malik though admitted that the mobile phone no.36984880 belongs to his mother Smt. Bilkis Begum but he denied that on 30.07.2003 at 4.00 p.m his friend Arif had used the said mobile phone to make call to some one or he had heard him saying "jaldi hi kaam ho jayega". He further stated that he does not know the owner of mobile phone number 9811582375 and the person to whom Arif was talking. He clarified that the said mobile phone used to be kept by him at the shop and the customers used the same for making calls on his permission. PW16 Abid Malik was declared hostile by Ld. Addl. PP, however, despite cross examination he did not change his stand. Even otherwise, the actual owner of mobile phone bearing no.36984880 Smt. Bilkis Begum has not been examined by prosecution for the reasons best known to the IO.
The other lacuna on the part of prosecution is that there is nothing on record to show that the mobile phone no.36984880 was actually in the name of Smt. Bilkis Begum. No Customer Application Form or the ID proof annexed with the same, has been proved on record. Although, PW24 Prashant Gaurav, Nodal Officer, Reliance Communication Ltd. produced and proved on record the call details of mobile phone bearing no. 36984880 Ex.PW24/A from the period 20.07.2003 to 31.08.2003, however, he has not proved on record any document with regard to the ownership of the said mobile State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.81 of pages 97 phone. This lacuna is also fatal and sufficient enough to break the chain of circumstances sought to be proved on record by the prosecution specially in view of the fact that PW16 Abid Malik has not supported the case of prosecution in this regard.
17. It was only on the statement of PW16 Abid Malik, police team apprehended accused Arif on 04.08.2003 from his house at H468, Welcome, Delhi and on interrogation, he disclosed about his involvement in the present case alongwith his other associates namely Akeel Ahmed, Kadim, Farukh, Gufran, Pawan Sharma and Asha Chaudhary @ Pooja.
As per the prosecution case, accused Arif had made disclosure statement to the effect that he was having love affair with coaccused Asha and it was on her instigation that he had hatched conspiracy with his other co accused persons to kill Neeraj Gupta, who was having an illeye on his girl friend Asha Chaudhary @ Pooja. As per settled propositions of law as propounded by Hon'ble Apex Court and various other Hon'ble High Courts and the provisions of 'Indian Evidence Act', "any confession before the police officials can not be read against the accused unless it is supported by subsequent recovery".
As per the prosecution case, after Disclosure Statement (recorded on 04.08.2013) accused Arif produced one Rado watch from the pocket of his pant, which was seized by the IO vide memo Ex.PW18/H. Thereafter, he led the police team to the house of accused Gufran from where accused Gufran was arrested in the present case and after recording of his Disclosure Statement, he produced one wearing belt of black colour, which was seized by the IO vide Ex.PW18/A. Accused Gufran also produced one video camera and charger from his house, which was also seized by IO vide memo Ex.PW18/L. Thereafter, at the instance of accused Arif, the State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.82 of pages 97 other accused persons namely Farukh, Kadim & Akeel were apprehended and they also made their respective Disclosure Statements Ex.PW18/M1, M2 & M3. Thereafter, at the instance of accused Arif, Asha was apprehended from her house at H. No.302, Baljeet Nagar, Delhi and after interrogation, she made Disclosure Statement Ex.PW18/N and produced one lady purse of Gray colour, one SIM Card bearing no.9811582375, one mobile phone instrument, one diary, one photograph and two love letters, which were seized by the IO vide memo Ex.PW18/O. Thereafter, accused Arif led the police to the house of accused Pawan Sharma from where he was arrested and after interrogation he got recovered one music system and one telephone directory from his house, which was seized by the IO vide memo Ex.PW18/Q. Then at the instance of accused Akeel, the motorcycle bearing no.DL7SS0387 was recovered from house no.C31, Jawahar Park, Gali No.2, vide memo Ex.PW18/R. Thereafter, they went to the house of accused Kadim from where he got recovered one digital diary make Casio, which was seized by the IO vide Memo Ex.PW18/S. On 05.08.2003, the accused persons namely Arif, Kadim, Farukh, Gufran and Asha pointed out the place of occurrence vide memo Ex.PW18/T1 to T5. Accused Kadim and Arif pointed out the place where they had thrown the dead body vide pointing out memo Ex.PW18/P6 & P7. As per the prosecution case, the accused persons were produced before Illaqua Magistrate on 05.08.2003 and their three days PC remand was taken. On 06.08.2003, accused Gufran made a supplementary Disclosure Statement recorded vide Ex.PW18/U. Then at the instance of accused Qadeem one ear top golden colour having shining colour stone was recovered from the house of Quadeem. The same was seized vide memo State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.83 of pages 97 Ex.PW18/W. On 07.08.2003, the accused Arif was again interrogated and his supplementary Disclosure Statement was recorded and then at his instance one pair of shoes of black colour without laces was recovered from his house. The same was seized vide memo Ex.PW18/Y. Then on 07.08.2003, in the evening time, they went to the house of Pawan at East Rohtash Nagar, where Ct. Vinod, the photographer of Crime Team was called and at her instance, Ct. Vinod took photographs of the house of Pawan i.e. the place of incident, from different angles.
Since in the instant case as many as seven persons have been charge sheeted for committing the offence of murder, so the factum of recoveries of the articles of deceased at the instance of accused persons assumes a great significance and therefore, this link of chain of the case of prosecution is required to be evaluated very carefully. In the case in hand, it is expected from the Investigating Officer, who is a very senior rank officer, that all the necessary due care and caution would be taken by her to make this case beyond the shadow of reasonable doubts, however, the careful scrutiny of record reveals that the alleged recoveries are claim to have been effected from the accused persons on the basis of their respective Disclosure Statements have not been effected in the presence of any public person. It is not the case of prosecution that public persons were not available near the spot from where the alleged recoveries were effected. PW28 ACP Kamla Meena (IO) has admitted in her cross examination that there are residential houses and market in between the houses of Arif and Gufran but no witness from there was asked to join investigation. She has further deposed in her cross examination that at the time of recording of Disclosure State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.84 of pages 97 Statement of accused Gufran, no outsider or neighbour were called to become the witness. No explanation has put forwarded on behalf of prosecution for non joining of public witnesses. Further no serious efforts appears to be made by IO to join the public witnesses in the investigation as nothing has come on record to show that any notice u/s 160 Cr.P.C was given to any witness to join investigation. Even PW27 SI Ajay Bali has admitted in his cross examination that house of accused Arif situated in a thickly populated area and about 810 people had collected outside the house of Arif when they visited his house but no responsible persons of the area was joined in the investigation nor they had asked any person from the local Police Station Welcome to join the proceeding. Had the IO made serious efforts, she could have at least called either the family members or employees of deceased Neeraj Gupta to join investigation, who could have most probably not refused to join the investigation. Even PW16 Abid Malik, who had allegedly led the police team to the house of accused Arif has also not been joined in the investigation nor his signatures were obtained on any documents, which could establish on record that accused Arif was apprehended at the instance of PW16 Abid Malik and recoveries subsequent there to had been effected.
Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under: " ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.85 of pages 97 to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation.
At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
This Court is, however, conscious that the prosecution State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.86 of pages 97 case cannot be thrown out or doubted on the sole ground of nonjoining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
Besides non joining of public witnesses there are other factors also to disbelieve the recoveries allegedly effected from the accused persons.
So far as accused Pawan Sharma is concerned, as per the prosecution case his house was used in the commission of crime and the murder was also committed at his house, however, house of the accused Pawan Sharma was not got inspected by the Crime Team to lift/procure any forensic evidence to support the case of prosecution. As per the Disclosure Statement of accused Pawan Sharma, he had cleaned his house using the mop, however, the said mop has also not been recovered or forensically examined in the present case nor any efforts have been made for its recovery. The only evidence on record to connect accused Pawan Sharma with the alleged crime is the Disclosure Statement of his coaccused persons particularly that of Mohd. Arif, which are totally inadmissible in law being confession of accused. As per the prosecution case, accused Pawan Sharma had got recovered a diary and the deck from his house, however, the said diary and the deck have no concern whatsoever with the alleged commission of offence and as such the prosecution has failed to prove its case against the accused Pawan State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.87 of pages 97 Sharma and he definitely deserves the benefit of doubt in this case.
As regard to the accused Akil Ahmed, as per prosecution, he had used his bike bearing no.DL7SS0387 in disposing off the dead body of Neeraj Gupta and the said motorcycle was recovered at his instance. However, there is nothing on record to show that the said motorcycle was registered in his name, rather, the registered owner of the said motorcycle was PW12 Anuj Gupta. As per PW12 Anuj Gupta, in July 2013 he had sold the motorcycle bearing no.DL7SS0387 to Akil Ahmed, who was his employee and accused Akil Ahmed used to take the said motorcycle from him daily as he had given him Rs. 14,000/ cash and remaining amount was to be in installments but admittedly no documents were executed in favour of Akil Ahmed in respect of sale of said bike to him. Further there is no other witness to corroborate the version of PW12 that it was the accused Akil Ahmed, who had purchased the said motorcycle from PW12 or during the relevant time, he was using the same. In such circumstances, there is nothing on record to connect accused Akil Ahmed with the said bike or to connect the said bike with the alleged offence of disposing off the dead body of deceased Neeraj Gupta. As such prosecution has failed to prove beyond reasonable doubt against accused Akil Ahmed as well. Thus accused Akil Ahmed is also entitled to be acquitted.
As regards to accused Asha Chaudhary, as per prosecution, she is the perpetrator of crime in the present case as it was she, who was having grudge against the deceased Neeraj Gupta, who had made certain unwarranted advances to her and therefore, she had instigated her boy friend accused Arif to kill deceased Neeraj Gupta and accused Arif entered State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.88 of pages 97 into a criminal conspiracy with coaccused Gufran, Kadim, Farukh and Asha to kill the deceased Neeraj Gupta and subsequently got him killed. Although it is the case of prosecution that accused Asha had worked with deceased Neeraj Gupta about 22½ years prior to the alleged commission of offence, however, there is nothing on record to prove that accused Asha have ever worked with deceased Neeraj Gupta in any of his offices. In this case six staff members of the deceased Neeraj Gupta i.e. PW2 Bhagirath (Driver), PW3 Sushmit Bose, PW4 Anu Negi, PW13 Ashok Kumar and PW15 Sanjeet Kumar have been examined but none of the said witnesses has produced anything on record to show that accused Asha had ever worked with Neeraj Gupta (deceased). The other circumstance to connect accused Asha with the alleged crime is that she had made calls to deceased on his mobile phone no.9810006511 from the mobile number 9811582375. As has already been discussed above that owner of the said mobile phone Prem Nath has stated in his testimony before the court that he had lost his mobile phone containing SIM of mobile phone bearing no.9811582375 while travelling in a bus, however, the said mobile phone which was containing SIM of mobile phone no.9811582375 has not been recovered in the present case. Although, a mobile phone make Panasonic GD 90 and the SIM of mobile phone no.9811582375 has been allegedly recovered from the possession of accused Asha, however, there is nothing on record to prove that the said mobile phone of make Panasonic GD90 was used to make call from the mobile phone no.9811582375. Further the Nodal Officer concerned PW22 Gulshan Gupta has though proved on record the call details of mobile phone number 9811582375 from the period 02.07.2003 to 02.08.2003 as Ex.PW22/A1 to State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.89 of pages 97 A3, however, he has not proved any document to show that mobile phone make Panasonic GD90 was used to make calls from the mobile phone no.9811582375. The alleged missing mobile of Prem Nath, which was containing the SIM of mobile phone no.9811582375 as also not been recovered in the present case.
Further the telephone diary containing the visiting card of Neeraj Gupta and a diary wherein the accused Asha has mentioned about her relationship with Arif, a photograph of accused Arif and accused Asha and two love letters written by accused Asha to Arif have also ben recovered in the present case, however, the said documents though might have proved on record to show that there was love affair between accused Arif and accused Asha but they are not sufficient to connect accused Asha with the alleged commission of offence. The visiting card of deceased Neeraj Gupta is not a thing, recovery of which could connect her with the alleged offence. In such circumstances the prosecution has also failed to prove on record that accused Asha had ever worked with deceased Neeraj Gupta, she was having grudge against the accused Neeraj Gupta, she hatched a conspiracy with her alleged boy friend Arif to kill Neeraj Gupta and that she aided the alleged commission of crime by making calls to deceased Neeraj Gupta and to call him to the house of accused Pawan Sharma where he was murdered. In such circumstances, the prosecution has also not been able to prove the involvement of accused Asha in the alleged commission of offence beyond reasonable doubt and as such benefit of doubt deserves to be given to accused Asha Chaudhary.
18. So far as accused Arif, Kadim, Farukh and Gufran are concerned, as per the prosecution story the Rado watch and State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.90 of pages 97 black colour shoes belonging to the deceased were recovered from accused Arif, the belt and purse of deceased and one camera and charger were recovered from accused Gufran and one digital diary make CASIO was recovered from accused Farukh and one ear top of deceased were recovered from accused Kadim. The recovery of these items at the instance of accused persons is the last and the most important link of circumstances with which the prosecution has sought to connect the accused persons with the alleged commission of crime and as such it has to be evaluated very carefully.
Careful scrutiny/evaluation of the statements of all the prosecution witnesses had led to the suggestion that the alleged recoveries from the accused persons are not free from the shadow of doubts for the reasons that:
(i).Criminal conspiracy not proved: In the instant case, all the seven accused persons have been charged for the offence of entering into the criminal conspiracy for committing the murder of Neeraj Gupta (since deceased) and in furtherance of said conspiracy they called Neeraj Gupta at Shahdara Metro Station and took him to H. No.1/6314, East Rohtash Nagar in the house of accused Pawan Sharma, where the said Neeraj Gupta was murdered by strangulation.
The criminal conspiracy has been defined u/Sec. 120A of IPC (hereinafter shall be referred to as Code) and it is punishable u/Sec. 120B of Code.
Section 120A IPC reads as under: When two or more persons agrees to do, or State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.91 of pages 97 cause to be done,-
(1).an illegal act, or (2).an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. Offence of criminal conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable.
It was held in Hira Lal Hari Lal Bhagwati Vs. CBI 2003 SCC (Cri) 1121 that, "To bring home the charge of conspiracy within the ambit of Section 120B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is difficult to establish conspiracy by direct evidence."
Though in the present case the accused State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.92 of pages 97 persons have been charged for the offence punishable U/s 120 B IPC, but the prosecution has been failed to prove on record as to when, where and which of the accused persons had entered into the criminal conspiracy to kill deceased Neeraj Gupta. Further there is no evidence on record to establish that there was prior meetings of minds amongst the accused persons either by meeting personally or even showing that the accused had spoken to each other on phone before the said incident. Important link of case of prosecution PW Abid has not supported the case of prosecution and his mother Smt. Bilkis Begum has not been examined and they are also fatal to the case of prosecution.
(ii).Non joining of public witnesses: As discussed above also, the alleged recoveries at the instance of accused persons have not been effected in the presence of any public witnesses. Neither any independent pubic witness nor any relative or employee of the deceased has been joined in the investigation of the present case despite their availability.
(iii).Contradictions and discrepancies in the statements of recovery witnesses: ■ Though as per the prosecution case as narrated in the police report U/s 173 Cr.P.C, the purse of the deceased was recovered at the instance of accused Gurfan during PC remand, however, PW29 ACP Kamla State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.93 of pages 97 Meena, the IO of the case, is totally silent on this material point.
■ As per PW27 SI Ajay Bali, accused Arif was wearing the Rado watch of the deceased when he was arrested and he had produced the same to the police after removing it from his wrist, however, as per PW28 ACP Kamla Meena, accused Arif had produced the Rado watch from the pocket of his pant.
■ ACP Kamla Meena while identifying the case property in the present case, identified the ear top as well as digital diary make CASIO as the one recovered from accused Kadim, however, as per the case of prosecution, the digital diary was recovered at the instance of accused Farkh.
(iv).Departure entries not proved: Further as per police rules, the police officials before leaving the Police Station are required to make departure entry but in the instant case such entries are not proved on record.
(v). TIP not conducted properly: One of the most important aspect to disbelieve the alleged recoveries at the instance of accused persons is that the TIP in the instant case is not conducted in a proper and rightful manner. The necessary precautions like putting the hiding slip on the case property and also on the articles brought by the IO for the purpose of mixing up with case property to hide the specific mark of identification on the case property were State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.94 of pages 97 not taken; instead of conducting TIP of each article of case property separately, entire articles of case property were simultaneously displayed (though in different rows) alongwith the articles brought by the IO for the purpose of mixing with the case property etc. Further admittedly, all the articles to be identified in the TIP proceeding were kept in the same serial number in the rows i.e. at fourth place. As the instant case is a case of peculiar nature and based on circumstantial evidence, the TIP must have been conducted in the proper manner but it is not so in the case in hand. Moreover, admittedly in the instant case the witness was not got identified from the IO before TIP.
(vi).No proof of ownership of alleged articles: Further in the instant case the IO also did not obtain any proof of ownership of the alleged articles, from the family of deceased. In the instant case the deceased was a rich man having good income and as such he was maintaining a good class and used to wear and carry branded articles and accessories and as such be mush be in possession of the bills in respect of such articles, however, the said bills etc. have not been collected in the present case.
(vii).Non mentioning of recovered articles in the DD No.15A: In the instant case the police machinery came into action when first of all, the report regarding State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.95 of pages 97 the missing of deceased was lodged in the Police Station. However, as discussed before also, the said DD does not find mention of the material particulars about the items recovered at the instance of accused persons and as such the possibility of those articles having been planted upon the accused persons can not be ruled out. Besides this, there is no supplementary statement of the family members of deceased having been recorded by the IO before the arrest of accused persons wherein they should have elaborated the articles being carried by the deceased.
(viii). The other material lacuna in the instant case is that the provisions of Sec.157(2) Cr.P.C has not been complied with, which mandatorily required that FIR registered in a fatal case should be communicated/ delivered to the Illaka Magistrate immediately. In the instant case there is nothing on record to suggest that the copy of FIR was delivered to the Illaka Magistrate or the Senior Officials and for this lapse an adverse inference has to be drawn. Here reliance can be placed upon a judgment reported as 2011 JCC 1461 DB.
19. The standard of proof required to convict a person on circumstantial evidence is now well settled by Hon'ble Apex Court in a series of decisions. According to said criteria, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.96 of pages 97 innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn are not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis and that all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime. However, in the case in hand it is not so and therefore, all the accused persons are entitled for an order of acquittal in their favour by giving them benefit of doubt. It is ordered accordingly. Existing Bail Bonds of accused persons are extended for the further period of six months in terms of the order of Hon'ble High Court of Delhi.
20. File be consigned to Record Room after completion of necessary formalities.
(Announced in Open court (RAKESH KUMAR)
on 30th April, 2014) Addl. Sessions Judge/North East
Karkardooma Courts, Delhi
State Vs. Akeel Ahmed & Others (SC No.86/2012) D.O.O. 30.04.2014 Page No.97 of pages 97