Delhi District Court
State vs . Md. Akbar@ Gabbar. on 23 November, 2017
IN THE COURT OF SH. RAGHUBIR SINGH
ADDL. SESSIONS JUDGE02 (NORTH EAST)
KARKARDOOMA COURTS : DELHI
SESSIONS CASE No. 09/12
FIR No. 327/11
PS. Jafrabad
U/s. 302/34 IPC.
Instituted on 13.02.2013
Argued on 23.11.2017
Decided on 23.11.2017
Final Order 23.11.2017
State Vs. Md. Akbar@ Gabbar.
S/o. Md. Safi
R/o. Mohalla Lal Bagh Retia
Beech Wali Masjid,
Hussanpur, Distt J.P. Nagar,
Uttar Pradesh.
Furkan @ Nadeem,
S/o Sh. Asif Khan,
R/o H. No. 9/13, Gali No.5,
Vijay Mohalla Maujpur, Delhi.
JUDGMENT
1.The facts of the case are to the effect that on 02.11.2011 on receiving the DD No. 23A, ASI Krishan Pal along with police officials had reached there at Gali No.1, Brahm Puri, Delhi where the dead body of a person smeared with blood was lying and lot of persons had gathered there. Blood was scattered all around. One Sh. Lalu Shah present there at the spot identified the dead person as Mohd. State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14 Salim. His statement was recorded there at the spot. He stated therein that he was resident of Village Jhallari, Distt. Punia Bihar and was presently residing there at Jhuggi No. A 374, Dhobi Ghat, Kirbi Palace, Delhi Cantt and used to ply cycle rickshaw. The deceased Mohd. Salim was permanent resident of a neighbouring village of the complainant and used to reside in another jhuggi in his vicinity. Said Sh. Salim was to leave for his native village in the morning. He owed a sum of Rs. 2000/ to the complainant. On demanding the same said Sh. Salim told him that a person of his village was living there in Ghonda and he was also supposed to go to his native village accompanying said Sh. Salim. Said Sh. Salim assured the complainant that he would borrow Rs. 2000/ from that person and would hand it over to the complainant and hence asked him to accompany said Sh. Salim. On this, both of them i.e. complainant and Mohd. Salim (since deceased) hired an auto rickshaw and reached there at Ghonda chowk at about 3.00 (?). On reaching there the complainant remained seated in the auto rickshaw and Mohd. Salim (since deceased) deboarded it and after a while returned back and apprised that the 'said person' had already left for the railway station. On this, the complainant told him that his brother was residing there in Gali No.1 and asked Mohd. Salim to visit his brother's house. Further, when they reached there at Gali no.1, State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14 Brahm Puri at about 03.10 am (night time) on foot, two boys came from behind and inquired as to why they were roaming around in the area. They started using filthy language and on being resisted, both of them took out knives. On this, the complainant ran away therefrom. They had caught hold of Mohd. Salim (since deceased) and gave knife blows on his person. On reaching at the house of his brother Abdul Rehman, the complainant apprised him of the entire incident and on returning back to the spot, they found that a number of persons had gathered there and in the meanwhile police also reached there as the assailants had killed said Sh. Salim. On the basis of this complaint, an FIR u/s 302/34 IPC was registered.
2. Final report under section 173 Cr. P.C (for the offence under section 302/392/397/411/34 IPC was filed as against the accused .
3. Charge for the offence under section 302/392/411/34 IPC was given to the accused persons and separate charge under Section 397 IPC was given to accused Mohd. Akbar @ Gabbar and a separate charge u/s 25/27 Arms Act was given to accused Furkan @ Nadeem vide order dated 27.03.2012 to which the accused persons pleaded not guilty and claimed trial.
State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14
4. In support of its case, prosecution got examined as many as 21 witnesses.
5. File perused. Counsels heard.
6. The present one is a case u/s 302/34 IPC, which was investigated by an official of inspector rank i.e. official namely Inspector N.R. Lamba D3520. However, despite going through the case file number of times, the undersigned is unable to understand as to what the IO did in the name of investigation. The present case proceedings were initiated on the basis of the statement/complaint dated 02.11.2011 (Ex. PW8/P1, initially inadvertently shown exhibited as Ex. PW9/1) of Sh. Lalu Shah, s/o Sh. Kariman Shah whereby the complainant had alleged that one Mohd. Saleem resident of Village Jhankua, Zila Purnia Bihar (who used to reside in the vicinity of the complainant in the jhuggis there at Dhobi Ghat, Kirbi Palace, Delhi Cantt.) was murdered at about 03.00 a.m (early morning) on 02.11.2011 when both of them were going towards the house of the brother of the complainant situated in Gali No.1, Brahm Puri, Delhi by two unknown persons who had come from behind and stabbed said Sh. Saleem with knife blows. Thus, the name of the deceased was disclosed as Mohd. Saleem who was stated to be State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14 permanent resident of Village Jhankua, Distt. Purnia Bihar. However, in the final report filed u/s 173 Cr. P.C, though the starting lines are the verbatim (re)production of the complaint as well as FIR version yet in its further details, the name of the deceased as well as name of his village both are different. Here the name of the deceased becomes Sayyum (instead of Mohd. Saleem) and the name of his village becomes "Parihar" (instead of village "Jhankua"). There is no explanation at all on either of these aspects.
7. Further, the Charge Sheet talks about two versions of the complainant Sh. Lalu Shah. The first one is the version in the form of statement/complaint Ex.PW8/P1 which narrates the story as summarized hereinabove. The second version is a changed version/story which further adds to the ambiguities in the case file in general and in the Charge Sheet in particular. To be more precise, as per the first version, the deceased was to leave for his village there in Bihar on the fateful day and since he owed a sum of Rs. 2000/to the complainant, the deceased asked the complainant to accompany him up to Ghonda Delhi where (as per the version in complaint Ex. PW8/P1) a person of the village of deceased used to reside and the deceased was to give Rs. 2000/ to the complainant by borrowing it from the said villager. Hence, at around 03.00 am State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14 (early morning) the complainant and deceased had reached there at Ghonda Chowk. However, as per the second version (regarding which version, the IO has no where specified as to on which date the second version came on record and under what circumstances), the complainant and the deceased had come on the previous day (i.e in the intervening night of 1 st - 2nd November 2011) there to the brother of the complainant and had stayed there at his tea shop during the said night. Next day early morning they hired an auto rickshaw and after deboarding it they were going towards gali no.1, Brahm Puri so as to reach the house of brother of the complainant, the incident was allegedly committed. Here it is worth mentioning that both these versions are common in so far as the complainant's assertion to the effect that out of fear he had run away and reached the house of his brother and came back along with his brother there at the spot where they came to know that said Sh. Saleem (or Mohd. Sayyum) had succumbed to the injuries allegedly inflicted upon his person by the two accused persons. In the given facts, it was very much incumbent upon the IO to join the said brother of the complainant in inquiry and to make investigations from him to check the veracity of the complainant's version as well as to afford substance to the prosecution story. However, the entire investigation does not at all reveal any such inquiries/investigations on all these aspects. Even State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14 the IO did not deem it fit to join the said/alleged brother of the complainant as a witness or to cite the reasons for not doing so. This is a major lacuna which affects at the very veracity of the prosecution story and is in a way an irreparable dent to it. Even the name of the said brother (i.e. Abdul Rehman) of the complainant becomes Muniruddin during the testimony of the complainant Lalu Shah which makes the entire story an unreliable one. The second version of the complainant (as reflected in the report u/s 173 Cr.P.C) also talks about another (younger) brother of the complainant with whom the deceased was to allegedly leave for Bihar by train as on 02.11.2011 and their tickets were also allegedly booked together. However, this aspect is also not at all part of the investigation. There are also a number of material lacunas reflected on the very face of it on the file which are to be discussed at the appropriate places in the further appreciation of the material.
8. Now coming to the testimony of the most material witness namely the complainant/eye witness/companion of the deceased, this witness has been examined as PW8 and is the only eye witness to the incident in question. However, when one goes through his deposition, it makes the prosecution story highly unbelievable. To be more precise, as per the complaint/FIR version, he along with the State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14 deceased was going to the house of his brother namely Abdul Rehman residing in Gali No. 1, Brahmpuri, Delhi whereas; as per his deposition as PW8, he was going to the house of his brother namely Muniruddin (residing perhaps in Gali No. 2, Brahmpuri, Delhi). It has nowhere been clarified as to whether said Sh. Abdul Rehman and Sh. Muniruddin are two different persons or are one and the same person having both these names. His deposition at a number of other places is also somewhat an improvement/deviation from the earlier both versions which further add the ambiguities. Here, in his deposition he has added having fainted there at the house of his brother and regained consciousness after a while which fact is altogether missing elsewhere. This material witness is also not sure about the very identity of both the accused persons as time and again he has been changing his deposition to that effect. On the very first day of his examination in chief i.e. on 21.01.2013, he deposed that 'the boys (accused) who are present in the court today are similar to the assailant boys'. However, on the very next date of examination in chief i.e. on 01.05.2013, he again took a turn and became completely hostile by stating that 'those boys (assailants) are not present in the court today'.
State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14
9. This witness i.e. PW8 (eye witness) was cross examined in detail by the Ld. Addl. PP for the State wherein he categorically deposed that the accused persons were not the persons who had committed the offence under consideration. During his cross examination by Ld. Defence counsel, he went to the extent of saying that continuously for a number of days, he was tortured by the police and also that it was the police/the IO who made him to depose in a particular fashion. Regarding TIP also the prosecution case stands defeated by PW8/complainant himself as he has categorically deposed that the accused persons and their photographs had been shown to him for the purpose of identifying him prior to TIP proceedings.
10. Another aspect of his testimony is his deposition (dated 21.01.2013) that his Aadhar Card was robbed by the accused persons during the incident in question. As a matter of fact, as per the prosecution version, the Aadhar Card was not at all included in the list of the articles allegedly robbed from the complainant or from his companion/deceased. In his own crossexamination, he categorically admitted that during the investigation of this case, he himself had handed over the Aadhar Card to the police on their asking. Thus, the testimony of the sole eye witness lends no support to the prosecution story.
State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14
11. Now coming to the testimony of PW14 Dr. MeghaliKelkar, this witness had conducted the postmortem on the body of the deceased while being posted as Sr. Demonstrator in Deptt. Of Forensic Medicine, UCMS & GTB Hospital Delhi. As per this testimony, there were at least 25 incised wounds/incised stab wounds besides numerous other scratches and reddish abrasions. The number and nature of these injuries; does prima facie show that it would have been the intention of the assailants that the victim should not survive. However, if the prosecution case is to be taken on its very face, the confrontation with the accused persons was either a chance confrontation or at the most a confrontation for the purpose of robbing the deceased and the complainant. In both these exigencies in all probabilities the assailants would not have inflicted upon; such number of injuries as inflicting one or two knife blows would have been sufficient even for the purpose of robbing the victims. Moreover, during the search of the dead body, a sum of Rs. 4800/ was recovered by the police/IO meaning thereby that the assailants had not confronted with him for the purpose of robbing him as had that been so, they would certainly have taken the entire belongings with them. Thus, the number and nature of injuries on the person of the deceased in itself is not in consonance with the prosecution story. State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14
12. Stepping ahead and coming to the 'recovery' aspect, the recovery of 'Aadhar card' has already been appreciated herein above. Two mobile phones are also shown recovered during the course of investigation. The mobile phone of complainant Lalu Shah bearing no. 8800577403 has been shown recovered from one Sh. Jarif Salmani resident of Mohalla Lal Bagh, Hasanpur, UP as on 12.11.2011 and as per the prosecution story, he had purchased this handset from accused Akbar as on 10.11.2011. The other phone bearing No. 9911148823 belonging to the deceased has been shown recovered from coaccused Furkan. However, the prosecution story regarding the recovery of these mobile phones as well as connecting them with the accused persons is full of doubts. In this regard, the version of said Sh. Jarif Salmani (examined as PW13) and the rest police officials including the IO Inspector N.R. Lamba and SI Vivek Sharma (PW21 & 20 respectively) are totally mismatching. As per PW13 Jarif Salmani, 34 police officials had visited his house in Hasanpur UP and had brought him to the police station in Delhi where he was kept confined the whole night until the arrival of the accused in the police station on the next evening. However, as per PW20 SI Vivek Sharma and PW21 IO/Inspector N.R. Lamba, said Sh. Jarif Salmani had been telephonically called there at the police station on 12.11.2011 and no police official had ever been sent to State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14 bring him to the police station. Here it is also worth mentioning that the IO did not give any reasons at all as to how and why he believed the version of said Sh. Jarif Salmani that the mobile phone in question had been purchased by him from accused Akbar, moreso, when neither the IO nor any other police official (either on the instructions of IO or otherwise) visited there to Hasanpur UP to conduct a local inquiry regarding the residence; profession etc. of said Sh. Jarif Salmani or regarding his assertions to the effect that on 10.11.2011 said Sh. Akbar had come to his barber shop where he purchased the old mobile handset from the said accused. It has also nowhere been made explicit on record as to how the IO came to know that such'n'such person was using the mobile phone in question as no such CDRs (of the relevant dates) or any other documentary proof has been annexed with the charge sheet or produced & relied upon during the course of the trial of the matter. The IO did not deem it fit to collect the call detail record at least up to the period of recovery of the handset in question i.e up to 12.11.2011. The CDRs so collected during the course of investigation are confined up to the date of the incident i.e. 02.11.2011 thereby giving no clue as to who was using the mobile handset between the period w.e.f 02.11.2011 up to 12.11.2011. During his cross examination, the IO gave an evasive answer in this State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14 regard to the effect that he had obtained the call detail records of mobile No. 8800577403 up to the period 11.11.2011 through mail, but the same stood deleted inadvertently from his laptop and that he had come to know of this fact before filing of the charge sheet. Neither this sort of assertion does appear in the entire chargesheet nor it is otherwise probable in the light of the specific testimony of PW18 Nodal Officer, who has categorically deposed that 'no CDR from 03.11.2011 to 12.11.2011 were asked for by the police'. The same is the fate of the recovery of the second mobile handset regarding which also the material on record and particularly the testimony of the IO does inspire no confidence. Even the recovery of weapon of offence (knife) attributed to coaccused Furkan is under the shadow of doubt as neither any public person was joined or tried to be joined as a witness of recovery nor the FSL result thereof gave any positive result so as to connect it with the offence in question.
13. Even the arrest of the accused persons from the respective places of arrest stands shaken by the very testimony of prosecution witnesses. For example accused Akbar has been shown arrested from a place near Ghonda Chowk, Delhi on the information received through a secret informer, however, PW13 Jarif Salmani has categorically deposed that in his presence there at police station State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14 Jafrabad, the said accused namely Akbar was telephonically called and who appeared in the police station along with his father in law and other relatives. There was not at all any cross examination by the Ld. Addl. PP on this aspect. The arrest of the coaccused namely Furkan has also been shown effected on the information received through a secret informer as if the secret informer were omniscient, omnipresent and panacea for each and every exigency.
14. The appreciation made hereinabove makes it crystal clear that the investigation of the case was totally an eye wash and the prosecution version is highly unbelievable in each and every material aspect and thus it is bound to fail. The only conclusion which could be arrived at is that the prosecution has failed to prove its case beyond reasonable doubts and the accused are entitled to be acquitted of the charges leveled against them. Ordered accordingly.
Announced in the open court (RAGHUBIR SINGH)
as on 23.11.2017 Addl. Sessions Judge02,
North East District
Karkardooma Courts, Delhi
State Vs. Akbar & Anr. FIR No. 327/11 Page No. 14 of 14