Delhi District Court
Fir No. 76/07, P.S New Usmanpur, St. vs Hamid & Ors on 3 September, 2011
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FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
IN THE COURT OF SH. B.S. CHUMBAK, ADDITIONAL SESSIONS
JUDGE-3 /NORTH EAST DISTT./ KKD COURTS / DELHI
Case ID Number 02402R0424942007
Session Case No. 91/08
Assigned to Sessions 09/07/07
Arguments heard on 16/08/11
Date of order 03/09/11
FIR NO. 76/07
Police Station NEW USMANPUR
Under Section 302/363/201/120B/34 IPC
Out come of the judgment CONVICTED
STATE VS. 1.HAMID
2.RASHID BOTH S/O ALAUDDIN
3.FIRDOS W/O ALAUDDIN
4.VAKILA W/O RASHID
ALL R/O E-16B/147,
JHUGGI SEELAMPUR, DELHI
5.SABIR S/O IMAMUDDIN
R/O H. NO. 83, GALI NO.1, MUNGA NAGAR,
GOKUL PURI, DELHI
Pr : Sh. S.K. Dass, Ld. Addl. PP for the state.
Sh. Abdul Sattar amicus curiae on behalf of accused
Hamid, Vakila, Rashid and Firdaus.
Sh. Sanjay Gupta Advocate on behalf of accused Sabir.
JUDGMENT
1. Initially on 03.03.07 a case u/s 363/365 IPC was registered at PS New Usmanpur vide FIR no. 76/07 on the basis of statement of Kadir Alam s/o Jamir Ahmad r/o R-41, Gali no.20, Braham Puri, Delhi against unknown person.
1/118 2 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
2. Brief facts arising out of this case are that on 2.3.07 a DD no.21A regarding missing report of Kasim Alam s/o Kadir Alam recorded by Kadir Alam. When he could not found then on 03.03.07 aforesaid case was registered on the basis of statement of Kadir Alam which is as under :
"On 2.3.07 at about 3:30 p.m his son Kasim Alam @ Rahil aged about 10 years, wearing jeans pant blue colour T- Shirt, red colour jacket and black colour leather shoes was playing in front of his house and had not returned. Despite repeated efforts he could not be traced."
3. Investigations were initiated and during the course of investigation it was revealed that on 2.3.07 at about 3:30 p.m, child/victim was seen with Hamid and one another boy aged about 20/21 years.
4. Pursuant to said information, on 09.03.07 IO accused Hamid was apprehended, interrogated, during interrogation he made a disclosure statement which is as follows :
2/118 3
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS "He had been working in the factory of Kadir Alam since last four years at Gali No.20 Braham Puri, Delhi. Kadir Alam was a rich person due to that he made a plan to kidnap Kasim Alam @ Rahil s/o Kadir Alam and to demand Rs.5 lacs from him as ransom.
On 02.03.07 in pursuant to said plan he took Rahil on the pretext of playing with him at about 3.30 p.m to his house. When he reached at his house, mother Firdos was present and she confined Rahil in a room and after some time Rahil (APNE GHAR JANE KI ZID KERNE LEGA TO MAINE USKO THAPPER MAR KER CHUP REHNE KO KHEA LEKIN VEH RONE LEGA) then he thought in case Rahil would be left then he (Rahil) would disclosed all the facts to his father therefore, due to this apprehension he pressed the mouth and neck of Rahil and killed him. He further disclosed that when he was keeping his dead body under the bed lying in the room in the meantime his mother reached there and insisted him to go back to the factory and thereafter he returned to his factory and started searching Rahil with Kadir Alam. He further disclosed that at about 7.30 p.m he again reached at his house to remove the dead body of Rahil, on reaching there his mother Firdos, Rashid and Vakila (DEKHTE HI KEHA KI TUNE BACHE KO MAR KER THEEK NAHI KIYA JO MERI GALTI MANNE PER TEENO NE KAHA KI TU WAPIS KARKHANE CHALA JA AUR HUM TEENO RAHIL KI LASH KO THIKANE LAGA DENGE.) Thereafter again he started searching Rahil and at about 2 a.m when he again returned to his house, his mother, his brother and his 3/118 4 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS Bhabhi told him that they all had thrown the dead body of Rahil while keeping in a gunny bag at Gokal Puri Nala near Tripal Factory Indra Vihar. He also disclosed that on 8/3/07 he also disclosed all these facts to one Nadeem that he had killed Rahil. He can got the place identified and also can get arrested his mother, his brother and his Bhabhi and also can get recovered the dead body of Rahil."
5. On the basis of aforesaid facts collected by IO matter was further investigated and on 10.03.07 accused Rashid and Firdos were arrested from Pooja Colony, Loni, Uttar Pradesh and at their instance dead body of Kasim Alam @ Rahil was recovered from the bank of nala between Bhagirathi Vihar & Ganga Vihar . The dead body was thrown while putting the same in a gunny bag containing bhussa and other waste papers. The rehree rickshaw which was used for throwing the dead body was also recovered at the instance of co-accused Rashid. On 11.03.07 punchnama of deceased Kasim Alam @ Rahil was prepared at GTB hospital. All the exhibits were taken in possession and thereafter on 12.3.07 place of incident i.e a jhugee bearing no.E-16B/147, Seelam Pur was got inspected by the crime team. Blood stained 4/118 5 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS wooden piece after cutting from the bag, blood stained stone taken out after digging the floor and blood stained clothes were taken in possession. At the instance of Rashid and Firdos polythene bag containing shoes of deceased Rahil, screw driver/ pechcus used for killing Kasim Alam @ Rahil and blood stained pant of accused Hamid were recovered from Ganda nala Braham Puri.
6. On 26.3.07 co-accused Sabir was arrested from near Kabutar Market, Welcome. His TIP was schedule to be fixed for 29.3.07 but he refused to join the TIP proceedings before Ld. MM. On 25.4.07 scaled site plan was prepared and on 26.4.07 co- accused Vakila was arrested from Chand Bagh Pullia near Gokul Puri. All the exhibits were sent to the office of CFSL Calcutta on 27.04.07. Postmortem report of deceased was obtained. In view of the facts discovered by the IO during investigation of this case section 364A/302/201/120B IPC was also added and after completion of all the necessary investigation challan u/s 173 Cr.P.C was presented in the court of Ld. MM.
5/118 6
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS Ld. MM after taking cognizance for the offence supplied the copies of the challan to the accused as provided u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial. Thereafter case was fixed for arguments on charge.
8. After hearing arguments and on perusal of the material placed on record, charge for the offence u/s 302/364/201/120B IPC was framed against all the accused to which they pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.
9. Rahisuddin s/o Sajaduddin appeared as (PW1), Nadim s/o Mohd.
Sayeed as (PW2), Rizwan Ulhaq s/o Rayamulhaq as (PW3), Riyaz s/o Abdul Salam as (PW4), Farid Alam s/o Kamar Alam as (PW4 A), Rafiuddin s/o Mohd. Yusuf as (PW5), Sanjeev Kumar Singh as (PW6), Ct. Sunil as (PW7), Lady Ct. Noor Jahan as (PW8), Kadir Alam as (PW9), ASI Ram Kishore Tyagi as (PW10), 6/118 7 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS HC Jasbir Singh as (PW11), HC Anil Kumar as (PW12), SI Mukesh Kumar Jain as (PW13), HC Krishan Pal as (PW14), HC Mahavir Singh as (PW15), HC Bachu Singh as (PW16), Inspector Dinesh Kumar as (PW17), SI Parmod as (PW18), Inspector K.L. Sharma as (PW19), Ct. Manvir Singh as (PW20) and Dr. Arvind Kumar, Lecturer, Department of Forensic Medicine, UCMS & GTB hospital as (PW21). Thereafter no PW was left to be examined, therefore, prosecution evidence was closed.
10. Brief testimony of all the PW's are as follows :
(i) PW1 was examined on 25.2.08 and deposed that he is the owner of a rickshaw rehree (allegedly used for throwing the dead body of deceased). He deposed that in the year 2007 before 1 /2 days of Holi festival (he cannot recollect the exact date and month) at about 8/8:30 p.m Smt. Firdos and her son Hamid present in the court had come to his dairy/house and demanded his rickshaw rehree from him. At the time of taking rehree they disclosed that they were in need of rehree for throwing some malba. He further deposed that on 7/118 8 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS that day at about 1:30/2 a.m Hamid and his brother Rashid both present in the court had come to his dairy and informed him that they had parked Rehree out side his house,but he was sleeping at that time and could not come outside to see the rehree. He further deposed that after 4/5 days accused Hamid and police officials came to his house seized his rehree. He had also identified his rehree Ex.
P.1 in the parking of Karkardooma Court. He also identified, two photographs of the said rehree which are Ex. PW1/A and PW1/B. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
(ii) PW2 was examined on 25.2.08 and deposed that Kadir Alam (father of deceased) is known to him as he has been working in his factory at gali no.20, Braham Puri since last five years. He cannot recollect the month of incident however, on 8th day of the month in the year 2007 Hamid accused present in the court met him in a gali no.20 at about 10 a.m. At that time he was perplexed and told him that he had kidnapped son of Kadir Alam and killed him by strangulation. He further disclosed that he kidnapped son of Kadir Alam for want of 8/118 9 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS money. Thereafter he went to the factory of Kadir Alam and informed him about conversation between himself and Hamid. Kadir Alam took him to PS Usman Pur and on reaching there IO recorded his statement.
During his cross examination by Ld. counsel on behalf of all the accused except Sabir he deposed that fancy lights are being prepared in the factory. He earned Rs.5000/- per month on an average from Kadir Alam. He also disclosed the name of many workers still working there such as Majid, Saleem, Khalid, Affaq, Wasim, Faisal, Azim, Zahid and Sheru but he specifically stated that he had no document to show regarding his employment with Kadir Alam. He also deposed that he used to meet Kadir Alam daily and also met him on 2.3.07. He further stated that on 2.3.07 and 3.3.07 he remained at the house of Kadir Alam from 9 am to 10/11 p.m. He also disclosed names of other children of Kadir Alam and distance between his house and house of Kadir Alam is walking distance for 5/7 minutes. He also reproduced the exact words used by Hamid which are as follows :
9/118 10
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS "HAMID NE MUJHE BULAYA, MAINE POOCHA KYA BAAT HAI, HAMID GABRAYA HUA THA, PHIR KEHENE LAGA, MAINE RAHIL KI GALA GHOOT KAR HATYA KAR DI, PAISO KE LALACH MEIN, YEH KEH KAR HAMID CHALA GAYA, MAIN KADIR ALAM KE PAAS CHALA GAYA, ISKE ALAVA USNE KUCH NAHI KAHA. PHIR KAHA KI, KHALA KA LADKA SAATH THA".
During his further cross examination on 3/7/09 he deposed that whatever stated by him in his examination in chief on 25.02.08 i.e regarding the fact that accused Hamid had told him that he had kidnapped son of Kadir Alam and killed him by strangulation were stated only at the instance of police officials. He also admitted that he had not disclosed about the extra judicial confession made by accused Hamid to Kadir Alam. He also admitted that accused Hamid had left his job from the factory of Kadir Alam about four/five months prior to the incident and he started working in the factory of someone else two three months prior to the incident. He also admitted that Kadir Alam was trying to bring accused Hamid back to the work in his factory but when he refused for the same Kadir Alam implicated him in this case.10/118 11
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS During re-examination by Ld. Addl. PP for state he deposed that he had given his statement before this court after taking oath and he know that he should speak truth, but he denied the suggestion that whatever he deposed today in the court is false or that he had been won over by accused Hamid. He specifically stated that whatever deposed on 25.2.08 was under the pressure of the police. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(iii) PW3 deposed that Kadir Alam is known to him being his friend and also related to his business. On 2.3.07 at about 4/4:30 p.m he had seen accused Hamid present in the court taking away Rahil s/o Kadir Alam at gali no.20 Braham Puri towards pulia and on next day he heard announcement about missing of Rahil. He informed this fact to Kadir Alam on telephone that he had seen his son Rahil with accused Hamid. On the next day i.e 4.3.07 he went to PS with Kadir Alam and got his statement recorded. On 2.3.07 except accused Hamid and Rahil no other person was with them.11/118 12
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS Ld. Addl. PP for state cross examined the witness as he resiled from his earlier statement on the point of presence of one another person aged about 20/21 years with Hamid. But during his cross
-examination he specifically stated that he had not state to the police that on 2.3.07 he had seen one another boy aged about 20/21 years with Hamid and Rahil. He voluntarily Stated that accused Hamid told to the police in his presence that he and son of maternal aunt namely Sabir had hatched a conspiracy for kidnapping Rahil for ransom and kidnapped him in pursuance of the conspiracy among them. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(iv) PW4 is the STD owner was examined on 5.3.08 and deposed that he has been running STD booth at E-111, Kabutar Market, Welcome near Khajoor Wali Masjid, Delhi. He failed to recollect the exact date and month of the incident but deposed that in the last year it was the period of MCD election and at about 10:30 p.m a lady had been making a call from his booth. In the meantime a boy reached there under the influence of liquor and started raising 12/118 13 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS quarrel with others who were standing outside his booth. He reached there and pacified the matter as that lady was also feeling disturbance. He further deposed that in the meantime a boy reached there and made a call from his STD booth. He was of fair complexion. When that boy left his booth he checked the call meter and noticed that he had a talk for about 60/90 second and thereafter he had closed his STD booth. He further deposed that in the next day morning on receipt of a call he had gone to PS New Usmanpur. On reaching there police official asked him that someone had made a ransom call from his STD booth. Police official also shown him a boy who allegedly made a call from his STD booth. Police official also obtained his signature when accused confessed about making call from his STD booth. Therefore, Ld. Addl. PP cross examined the witness and during his cross examination he admitted that person had made a telephonic call on 9.3.07 from his STD booth. He also admitted that telephone number of his STD booth was 22823986. He also admitted that, that person had made a call from his telephone number to a phone number 65821196 vol. Stated that was a Tata Phone. He also admitted that after about 2/3 days (during election of 13/118 14 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS MCD) police official brought that person to his STD booth but he was not aware if the name of that boy was Sabir Ali s/o Immamuddin. During his cross examination he denied the suggestion that accused Sabir Ali had made a call on 9.3.07 or that on 26.3.07 however, specifically stated that person who had made a call from his STD booth on 9.3.07 was identified by him while he was in police custody. Rest of his testimony is reiterated as submitted by him during examination in chief.
(v) PW4 A identified the dead body of his cousin Kasim @ Rahil at the mortuary of GTB vide his identification memo Ex.PW4/A.
(vi) PW5 deposed that he had seen the certificate Ex. PW5/A bearing his signature at point A. As per their school record Kasim Alam Siddiqui s/o Kadir Alam was the student in class 3rd in year 2006-2007 and his date of birth is 21.10.97.
(vii) PW6 is Ld. MM who conducted the TIP proceedings Ex. 14/118 15
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS PW6/A and deposed that on 29.3.07 Sabbir Ali refused to join the TIP proceedings inspite of warning that his refusal may be read against him during the course of trial. TIP proceedings are Ex.PW6/B bearing his signature at point A. IO identified the accused vide his endorsement Ex.PW6/C. His certificate is Ex.PW6/D. Copy of TIP proceedings was also given to IO.
(viii) PW7 is the formal witness and deposed that on 10.3.07 at about 6 p.m he alongwith other crime team members reached at Bhagirath Vihar Nala. He took four photographs of the dead body which are Ex. PW7/1 to 4 and negatives are Ex.PW7/5 to 8. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
(ix) PW8 deposed that on 26.4.07 she joined the investigation of this case with SI Pramod. On that day at about 10 a.m accused Vakila present in the court was arrested by SI Pramod vide arrest memo Ex.PW8/A bearing her signature at point A. She took personal 15/118 16 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS search of accused Vakila Ex. PW8/B. Accused Vakila also made disclosure statement in her presence which is Ex. PW8/C. She further deposed that co-accused Vakila took them to ganda nala Bhagirathi Vihar and pointed out the place where she along with other co-accused had thrown the dead body of deceased Kasim Alam @ Rahil. Pointing out memo is Ex.PW8/D. She also pointed out towards her jhugee at Seelam Pur and where Kasim Ali was killed. Pointing out memo is Ex.PW8/E. During his cross examination by Ld. counsel for accused on behalf of all the accused she reiterated her testimony as submitted by her during examination in chief.
(x) PW9 deposed that on 2.3.07 his son Kasim Alam aged about 10 years was playing outside his house at about 3:30 p.m. He came to know at 5:30 p.m that his son was found missing from the gali. At about 7:30 p.m he lodged a missing report of his son Kasim Alam. He further deposed that on 03.03.2007 he had gone to PS and got the case registered vide his statement Ex.PW9/A bearing his 16/118 17 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS signature at point A and missing report is Ex.PW9/B. He further deposed that on 3.3.07 at about 9/10 p.m his friend Rizwan told him that he had seen his son on 2.3.07 with accused Hamid and one another person to whom he can identify, if shown to him. On 4.3.07 at about 10 a.m he alongwith Rizwan went to PS and got the statement of Rizwan recorded by the police officials. He also deposed that at the time of missing of his son Rahil he was wearing blue colour jeans pant, jeans jacket, red colour T-shirt and black colour shoes of relaxo. They searched Rahil in the locality but he could not trace him.
He further deposed that on 08.03.07 at about 11 p.m one Nadeem (karigar ) who told him that Hamid had disclosed before him that on 2.3.07 he alongwith Sabir Ali kidnapped his son for ransom and they took his son Kasim to the house of accused Hamid. Nadeem further told him that Hamid also told him that as child started crying therefore, Hamid and Sabir killed him. He further told him that Hamid disclosed in his presence that after murder of Kasim his dead body 17/118 18 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS was thrown by his brother Rashid, his mother Firdaus and Bhabhi Vakila in Ganda nala. Pursuant to his extra judicial confession he took Nadeem to PS and got his statement recorded by the police. On 9.3.07 SI Pramod and other police officials took him at Shastri Park and apprehended accused Hamid from the opposite side of hospital. He was arrested vide memo Ex.PW9/C, his personal search was conducted vide memo Ex.PW9/D both bearing his signature at point A. Accused Hamid was interrogated and he also made his disclosure statement which is Ex.PW9/E bearing his signature at point A. In his disclosure statement he stated that dead body of his son was thrown in a nala near Mustafabad by his brother Rashid, mother Firdaus and Bhabhi Vakila. Pursuant to his disclosure statement police officials took him near the nala but due to night time dead body of his son could not be recovered.
On 10.3.07 he received telephonic call from SHO PS New Usmanpur directing him to come at nala near Brijpuri, accordingly he went there and saw police officials alongwith accused Hamid and Firdaus. Accused persons pointed out the place of throwing the dead body and accordingly, dead body was got recovered at their instance. 18/118 19
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS Dead body was thrown in a ganda nala by putting in a gunny bag. He identified the dead body of his son. Pointing out memo and recovery memo of dead body were prepared which is Ex.PW9/F. He further deposed that on 11.3.07 postmortem of dead body of his son was conducted. He identified the dead body vide memo Ex. PW9/G. After conducting postmortem dead body was handed over to him. On 12.3.07 he was again called by the police officials to pulia of Brahampuri accordingly, he reached there. Accused Firdaus, Vakila and Rashid alongwith police officials were also present there. One pair shoes, one screw driver and one jeans pant were recovered from the nala at the instance of accused persons. He identified the shoes of his son which he was wearing at the time of his missing. The aforesaid articles were sealed in separate pullanda and taken into possession vide memo Ex.PW9/H. Blood stains were also noticed on the pant worn by Kasim Alam @ Rahil. All the accused persons were correctly identified by him in the court.
He also identified the screw driver Ex.P2 and pant Ex.P3 which were 19/118 20 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS got recovered by the accused Rashid and Firdaus. He also identified the socks, jeans pant and red colour T shirt, Ex.3,4 and 5 which were worn by his son Kasim Alam at the time of his missing. He also identified the pair of shoes Ex.P6 which were got recovered at the instance of accused persons.
During his cross examination he also stated that he had produced the photograph of his son and also disclosed the hulia (description) of his son to the police. He further stated that Rizwan told him that he had seen his son Rahil with his karigar Hamid and one another person. Police official recorded statement of Rizwan in his presence. He further stated that Nadeem disclosed before him that Hamid killed his son Rahil by strangulation and pressing his throat and Sabir was also present with him. He further deposed that on 8.3.07 Hamid had disclosed to Nadim that he and Sabir had kidnapped Rahil and on that very day Nadim had disclosed these facts to him/(Kadir Alam/PW.9). He further clarified that when he visited the spot, the gunny bag in which the dead body of his child was kept was not lying in side the drain, however, it was lying near the bank of the drain and 20/118 21 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS the accused namely Firdos, Rashid and Hamid were present there. He also deposed that on 12/3/07 when one pair of shoes, screw driver and one jeans pant were recovered from out side of Nala and the Nala was dry at that time. He also denied the suggestion that neither Rizwan Ul-Haq nor Nadeem had ever informed him about taking away of his child by Hamid and Sabir. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(xi) PW10 deposed that on 25.4.07 he obtained sealed pullanda from MHCM vide RC no. 48/21 and had deposited the same to the office of CFSL Calcutta. He handed over the receipts to MHCM and also stated that so long as pullandas remained in his custody same were not tampered with.
(xii) PW11 deposed that on 10.3.07 Inspector Kishan Lal had deposited one Rehri/hand cart which he had entered at sl no. 1141 in register no.19. He further deposed that on 11.3.07 Inspector Kishan Lal deposited with him four parcels out of which one was sealed with the seal of KL and others were sealed with the seal of BG and one 21/118 22 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS sample seal of BG. He entered all these pullandas at sl. no. 1143 at register no. 19.
Again on 12.3.07 Inspector Kishan Lal deposited with him six parcels sealed with the sal of KL. He made entry at sl. no.1146 in register no.
19. He further deposed that on 25.4.07 he sent all ten parcels to CFSL Calcutta through ASI Ram Kishore vide RC no. 48/21 in intact condition who had deposited the same on 27.4.07 and submitted its receipts to him on 30.05.07. He further deposed that on 6.09.07 FSL result and exhibits were received through Ct. Jag Om which he made entry in register no. 19. He also produced original register no. 19 and
21. Photocopy of the entries no.1141 is Ex.PW11/A, copy of entries no.1143 is Ex.PW11/B, copy of entries no. 1146 is Ex,.PW11/C and photocopy of R/C no. 48/21 is Ex.PW11/D also placed on record (original seen and returned).
(xiii) PW12 deposed that on 26.3.07 he joined the investigation of this case with SI Pramod and Inspector Kishan Lal. When they reached at Baghwali Masjid, Kabtur Market, Welcome and at about 7 p.m IO of this case received a secret information that accused in this 22/118 23 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS case can be apprehended and accordingly, on the pointing out of secret informer one person was apprehended, whose name was revealed as Sabir Ali accused present in the court. After brief interrogation accused Sabir Ali was arrested by the IO vide arrest memo Ex. PW12/A and his personal search was conducted vide memo Ex. PW12/B. Accused was thoroughly interrogated and his disclosure statement Ex. PW12/C was also recorded. One Riaz also reached at the spot and identified the person who had made telephone from his PCO on 9.3.07 at about 10:30 p.m. IO directed the accused to cover his face as his TIP is yet to be conducted. He further deposed that pursuant to the disclosure statement accused Sabir took the police team to jhugee at E-16B/147 New Seelam Pur and pointed out the spot where he alongwith his other associates killed Kasim Alam @ Rahil. IO prepared the pointing out memo Ex. PW12/D. All the memos bearing his signature at point A. During his cross examination he denied all the suggestions given by Ld. counsel for accused person and also reiterated his testimony as submitted by him during examination in chief. 23/118 24
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
(xiv) PW13 is the draftsman and deposed that on 25.4.07 he alongwith Inspector Kishan Lal reached at Jhuggee no.E-16/B-147 New Seelam Pur Delhi and as per the pointing out of IO he took rough notes and measurements of the spot and from there he went to Gokul Pur Drain near Iron Bridge pullia, opposite house no. C-169 Bhagirathi vihar, Gokul Puri, Delhi and as per his pointing out he took rough notes and measurement. On the basis of rough notes he prepared scaled site plan and handed over to the IO. Scaled site plan is Ex. PW13/A bearing his signature at point A.
(xv) PW 14 is the formal witness who had recorded FIR no. 76/07 on the basis of rukka sent by SI Pramod Kumar through Ct. Manvir, copy of FIR is Ex.PW 14/A bearing his signature at point A. He further deposed that after registration of the case he send the copy of FIR and rukka to SI Parmod Kumar through Const. Manbir. (xvi) PW15 deposed that on 12.3.07 on receipt of Wireless message he along with SI Dinesh Kumar, Const. Sushil Kumar and other staff went to spot I.e jhuggi No. E-168 New Usman Pur. On the 24/118 25 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS direction of IO and I/C Crime Team he took thirteen photographs of the spot from different angles. Positive photographs already available in the judicial file are Ex.PW 15/P-1 to P-13 and negatives are Ex.PW 15/P-14 to P-26.
(xvii) PW16 deposed that on 10/3/07 he joined the investigation of this case with IO/SI Parmod Kumar and accused Hamid was also with them. On that day they went to Pooja colony Pavi village and as per pointing out of accused Hamid accused Rashid was apprehended. After brief interrogation he was arrested vide his arrest memo Ex.PW 16/A, his personal search was conducted vide memo Ex.PW16/B. His disclosure statement Ex.PW 16/C was also recorded. As per pointing out of accused Hamid and Rashid, accused Ms. Firdos was apprehended and after brief interrogation she was also arrested vide memo Ex.PW 16/D and her personal search was conducted through his son Rashid, vide memo Ex.PW 16/E. She was interrogated thoroughly and thereafter she made disclosure statement Ex.PW 16/F. Pursuant to disclosure statement accused persons took the police team to a drain in between E block Bhagirath 25/118 26 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS Vihar and G block Ganga Vihar and pointed out to the place where a Gunny bag containing the dead body of Rahil was lying. On opening the said gunny bag dead body of child was found therein. There were three gunny bags kept one after the other and inside that dead body of child with Bhoosa was found. Complainant Kadir Alam came to the spot and identified the dead body of his son Kasim Alam @ Rahil. Crime team along with photographer reached at the spot and photographs of the spot were taken. Dead body of the child with gunny bag were taken to GTB Hospital by him for postmortem. He further deposed that on 11.3.07 postmortem over the dead body was got conducted and thereafter dead body of deceased child was handed over to his relatives. Empty bag with Bhoosa and plastic pieces which were inside the gunny bag were handed over to the IO by him. IO kept the same in a pullanda and sealed with the seal of KL and seized the same vide memo Ex.PW 16/G. He further deposed that doctor who had conducted the postmortem handed over three sealed pullandas and one sample seal to him which he handed over to the IO, which were seized vide memo Ex.PW 16/H. All the memos 26/118 27 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS bearing his signature at points A. His statement was recorded by the IO. Accused Hamid, Rashid and Ms. Firdos identified by him in the court and he also identified cloths of the deceased, other articles and one white ganni bag containing three boras/ganni bag along with bhoosa and plastic pieces from which dead body of child was recovered which are collectively Ex. PW 15/P1. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
(xviii) PW17 deposed that on 10/3/07 on receipt of an information he along with crime team went to Ganda Nala Bhagirathi Vihar near Brij puri Pullia and found many police officials along with accused persons present at the spot. As per his direction he took the photographs of the spot. He also inspected the spot and prepared a report in his own hand Ex.PW 17/A bearing his signature at point A. On 12/3/07 he again visited the spot i.e jhuggi no. E-168 Usman Pur and found the IO along with his other staff members present there and as per his direction photographer took the photographs of the 27/118 28 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS spot.
During his cross examination he reiterated his testimony as submitted by him during examination in chief.
(xix) PW18 is the IO of this case and deposed that on 02/3/07 DD No. 21A Ex.PW 9/B was assigned to him for further investigation. On 03/3/07 Kadir Alam father of deceased Kasim Alam @ Rahil had come to police station and got his statement recorded which is Ex.PW 9/A. He gave his endorsement on the same vide Ex.PW 18/A. He prepared rukka and handed over the same to DO for registration of the FIR and after registration of the FIR investigation was assigned to him. He recorded statement of witnesses on 04/3/07 and 08/3/07 and also initiated search of accused Hamid.
On 09/3/07 accused Hamid was apprehended from near Shashtri Park hospital and after brief interrogation he was arrested vide memo Ex.PW 9/C, his personal search was conducted vide memo Ex.PW 9/D. He was also interrogated thoroughly and his disclosure statement Ex.PW 9/E was also recorded. He further deposed that 28/118 29 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS pursuant to disclosure statement accused Hamid took the police team to his jhuggi and pointed out the spot where he along with his other co-associates had killed the child. He prepared the site plan, Ex.PW 18/B, pointing out memo Ex.PW 18/C and thereafter on the basis of investigation conducted by him section 302/364A/201/120B IPC was also added with the section of FIR. Thereafter investigation was assigned to Inspector K.L Sharma.
On 10/3/07 he again joined the investigation of this case with IO and Const. Bachu Singh in the presence of accused Hamid. Accused Hamid took the police team to Pooja colony Pavi village and as per his pointing out of accused Hamid accused Rashid was apprehended. After interrogation he was arrested vide his arrest memo Ex.PW 16/A. His personal search was conducted vide memo Ex.PW 16/B and his disclosure statement was recorded which is Ex.PW 16/C was recorded. As per pointing out of accused Hamid and Rashid, accused Ms. Firdos was apprehended and after brief interrogation she was arrested vide memo Ex.PW 16/D and her personal search was conducted through his son Rashid, vide memo 29/118 30 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS Ex.PW 16/E and her disclosure statement was recorded vide memo Ex.PW 16/F. Pursuant to their disclosure statement accused persons took the police team to the drain in between E block Bhagirath Vihar and G block Ganga Vihar and pointed out to a place where a gunny bag containing dead body was lying. On opening the said gunny bag dead body of a child was found. There were three other gunny bags were kept one after the other and inside that the dead body of child was found along with bhoosa and plastic pieces. Complainant Kadir Alam came to the spot and identified the dead body of his Kasim Alam @ Rahil. Crime team along with photographer reached at the spot, photographs of the spot were taken from different angle. Pointing out memo, recovery memo of dead body and of the gunny bags were prepared by the IO which are Ex.PW 9/F. Dead body along with gunny bags were taken to GTB Hospital and were kept in the custody of Const. Bachu Singh for postmortem.
On 11.3.07 postmortem of the dead body was got conducted at GTB 30/118 31 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS hospital and thereafter dead body was handed over to the relatives of deceased. Gunny bag with Bhoosa and the plastic pieces were handed over to the IO by Const. Bachu Singh. IO kept the same in a pullanda and sealed with the seal of KL and seized the same vide memo Ex.PW 16/G. He further deposed that doctor after conducting postmortem handed over the three sealed pullandas and one sample seal to Const. Bachu Singh, which he handed over to IO, IO seized vide memo Ex.PW 16/H. All the memos bearing his signatures at points B. One Rehri Richshaw make Neelam was also got recovered at the instance of accused Rashid from B-6 New Seelam Pur Delhi which was seized vide memo Ex.PW. 18/C. On 11/3/07 accused Hamid, Rashid and Firdos were interrogated and their disclosure statements were recorded vide memos Ex.PW 18/D to Ex.PW 18/F in his presence.
On 12/3/07 he again joined the investigation with the IO and accused persons Hamid, Rashid and Ms. Firdos again took the police team to their jhuggi E- 16B/147 and got recovered one stone, one wood piece 31/118 32 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS and a cloth piece and IO seized the same vide memo Ex.PW 18/G. On 26/3/07 he again joined the investigation of this case with IO and went to Kabooter Market Welcome from where co-accused Sabir Ali was apprehended and was arrested vide arrest memo Ex.PW 12/A, his personal search was conducted vide memo Ex.PW 12/B. He was interrogated and his disclosure statement Ex.PW 12/C was also recorded. Accused also took the police team to Jhuggi No. E- 16B/147, New Seelam Pur and pointed out the spot where he along with other co-associates killed the child. Pointing out memo prepared by IO which is Ex.PW. 12/D. Accused Sabir was kept in muffled face and on 29/3/07 TIP of accused was got conducted but he refused to join the TIP proceedings on that day. Copy of TIP proceedings were handed over to the IO.
On 26/4/07 he again joined the investigation team and went to Chand Bagh Pullia from where accused Vakila was apprehended and after 32/118 33 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS brief interrogation she was arrested by the IO vide arrest memo Ex.8/A. Lady Const. Noor Jahan and she conducted personal search of co-accused Vakila vide memo Ex.PW 8/B. Accused Vakila was interrogated thoroughly and her disclosure statement was recorded vide memo Ex.PW 8/C. Accused Vakila took the police team to Ganda Nala Bhagirathi Vihar and pointed out the place where she along with her associates had thrown the dead body of deceased Kasim Alam. IO prepared the pointing out memo Ex.PW 8/D. She also took the police team to her jhuggi and pointed out the spot where she along with her associates had committed the murder of the child. Pointing out memo Ex.PW 8/E was prepared by the IO and all the memos bearing his signature. He also identified the case property i.e cartoon box, one Stone, one Wooden piece, cloth piece which were seized from the house of Hamid, Rashid and Ms. Firdaus which are collectively Ex.PW18/P1 to P3.
He also identified three gunny bags along with Bhoosa and plastic pieces in the court wherein the dead body of child was recovered which are collectively Ex.PW 15/P1. He also identified the Rehri 33/118 34 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS rickshaw Ex.P.1.
During cross-examination on behalf of Ld. counsel for accused persons he only clarified that jhuggi of accused persons consisting of two stories and blood stained were noticed on the floor inside the jhuggi and over the bed lying in the said jhuggi. It is further clarified that blood stained stones were taken in possession after breaking the floor and blood stained wooden piece were taken in possession after cutting the bed. Rest of his testimony is reiterated by him as submitted by him during examination in chief. (xx) PW19 deposed that on 10/3/07 he took over the investigation of this case after adding section 302/364A/201/120B IPC. He corroborated the testimonies of PW .8, PW .9, PW .12, PW.15, PW. 16 and PW.18, therefore, same is not required to be reproduced. He also prepared the site plan of the place of recovery vide memo Ex. PW .19/A. He further deposed that accused Rashid took the police team near to 34/118 35 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS his house and from where he got recovered the Rerhi Rickshaw make Neelam from B-6 New Seelam Pur Delhi which was seized vide memo Ex.PW. 18/C. He also recorded the statement of owner of the Rehri.
He further deposed that accused persons Rashid and Firdos took the police team to their house I.e E-16B/147 Seelam Pur jhuggi and pointed out the spot where they had committed the murder of the child. He prepared the pointing out memo in this regard Ex.PW 19/B. On 12/3/07 Rashid and Ms. Firdos took the police team to their jhuggi E- 16B/147 and he noticed blood stained on the floor and bed. He called the crime team at the spot and photographs of the spot were also taken. He seized one blood stained stone piece, one wood piece after cutting it from the bed and a mattress vide seizure memo Ex.PW 18/G. He further deposed that pursuant to the disclosure statement accused Rashid and Firdos took the police party to Ganda Nala near their house and got recovered one polythene bag containing pant, 35/118 36 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS shoes of the deceased and weapon of offence I.e Patchkus/screw driver were recovered. Complainant Kadir Alam and one public person Amir Khan also reached at the spot. Kadir Alam father of deceased identified the shoes and pant of his son. All these articles were kept in pullanda and sealed it with the seal of KL and seized vide memo Ex.PW. 9/H. He further deposed that accused Sabir refused to join the TIP proceedings, therefore, on 30/3/07 the accused Sabir was shown to the witnesses who identified the accused in the police station while saying that accused Sabir was taking the child with him on the day of incident I.e on 2/3/07. On 25/4/07 SI Mukesh/ draftsman was called at the spot and from there he was taken to Ganda nala where dead body of child was recovered. As per his pointing out SI Mukesh took rough notes and prepared the rough site plan and later on he prepared scaled site plan and handed over to him.
He further deposed that on 25/5/07 he collected the certificate regarding the age of deceased from Cresent School New Seelam Pur 36/118 37 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS road Delhi, same is Ex.PW 5/A, and thereby corroborated the testimony of PW .5 He also collected the employment certificate of accused Hamid from the complainant vide memo Ex. PW . 19/D. He recorded the statements of witnesses, collected the postmortem report, photographs and scaled site plan. He also sent the case property/exhibits to CFSL and obtained the CFSL report which is Ex.P.X and after completion of all the necessary investigation he presented the challan to the court of Ld. MM.
He also identified the case property i.e one stone, one Wood piece/Phata, cloth piece which were seized from the house of accused persons and are already Ex.PW 18/P1 to P3. He also identified three boras/ganni bag along with bhoosa and plastic pieces wherein the dead body of child was kept which are already collectively Ex.PW 15/P1. He also identified pant, shoes and screw driver which were got recovered by accused persons and same are already Ex. P.2, P.3 and P.6 respectively. He also identified the Rehri Ex.PI when shown to him.
37/118 38
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS During cross examination by Sh. Sanjay Gupta Advocate on behalf of accused Sabir he deposed that on 26.3.07 one public person namely Riyaz having PCO booth near the place of arrest was called by him to join the proceedings in the presence of SI Pramod but he refused to join the proceedings therefore, he was not cited as a witness of arrest. He also admitted that no incriminating material was recovered pursuant to the disclosure statement of accused Sabir at his instance due to the reason that he was arrested after the discovery of all the incriminating facts, however, his name was already disclosed by the co-accused in their disclosure statement recorded by the police. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(xxi) PW20 deposed that on 3.3.07 at about 5:30 p.m Duty Officer handed over him the original rukka and copy of FIR for onward transmission to SI Pramod who was present at Gali no.20, Braham Puri and accordingly he handed over the same to him. Again on 9.3.07 he joined the investigation of this case with SI 38/118 39 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS Pramod Kumar and complainant Kadir Alam went to Braham Puri Pullia. On reaching there SI Pramod Kumar received a secret information that one of the accused Hamid allegedly involved in the present case was standing near the hospital Shastri Park. He immediately went near the hospital alongwith secret informer and as per the pointing out of complainant Kadir Alam accused Hamid was apprehended and after brief interrogation he was arrested vide arrest memo Ex. PW9/C and his personal search was conducted vide memo Ex.PW9/D and his disclosure statement was recorded vide memo Ex.PW9/E. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
(xxii) PW21 is the doctor who identified the handwriting and proceedings conducted by Dr. Barkha Gupta who conducted postmortem of deceased Rahil and deposed that he had seen postmortem report no. 281/07 conducted on 11.3.07 by Dr. Barkha Gupta, Sr. Resident who had now left the services of the hospital 39/118 40 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS and her present whereabouts are not available in the office. He can identify her handwriting and signature. The postmortem report prepared by Dr. Barkha Gupta is Ex. PW21/A is in her handwriting and bearing her signature at point A, B, C and D. He further deposed that as per alleged history recorded by Dr. Barkha Gupta it was the case of kidnapping on 2.3.06 at 3:30 p.m from outside his residence and later on victim was found dead and his dead body was found kept in a closed gunny bag lying in nala of Bhagirathi Vihar, Gokul Puri on 10.3.07 and dead body was identified by the clothes worn by the child.
GENERAL OBSERVATIONS:
"It was dead body of a male child wearing matching blue denim blue jacket and red belt, red T Shirt, white baniyan, pair of blue socks. All clothes were intact, wet and dirty. Straw was also present on the clothes and body of the child. Changes of decomposition was present, body was bloated up, face was distended, eyes was buldgeing out, mouth opened, scrotum was distended. There was sero sangenous discharge oozing from the mouth and nostril. Other orifices were found normal. There was greenish discolouration of body at places, peeling of skin was present at many places, scalp hair lying loose, teeth was loosen. Rigor mortis was passed off . Postmortem staining could not be 40/118 41 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS differentiated. Maggots was crawling all over the body and clothes".
On external examination she found following antemortem injuries :
a). Lacerated stab wound of size 1.5 x 0.5 c.m., Irregular in shape was present on right parietal eminence situated 5 c.m outer from midline and 17 cm behind right eye brow. On dissection there was depressed fracture of underline wound of size 1 cm x 0.4 c.m and tearing of meninges underlying the defect. Depth was till the meninges was 2 cm and further depth could not be ascertained due to liquification of the brain tissue.
b).Lacerated stab wound 1.2 cm x 0.4 c.m irregular in shape present on right parietal area situated 4.5 c.m above right ear tip and 9 cm behind right eye brow. On dissection there was depressed fracture of under line bone of size 1.1 cm x 0.6 c.m and tearing of meninges underlying the defect. Depth was till the meninges was 2 cm and further depth could not be ascertained due to liquification of the brain tissue.
c). Lacerated stab wound 1.2 cm x 0.5 c.m irregular in shape present on right parietal region situated 7 c.m above right mastoid process and 10 cm behind the right eye brow. On dissection there was depressed fracture of size 1 cm x 0.4 c.m of underline bone and tearing of meninges.
Depth till the meninges was 2 cm and further depth could not be ascertained due to liquification of the brain tissue.
41/118 42 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
d). Lacerated stab wound 1.4 cm x 0.5 c.m irregular in shape present on right temporal region situated 3 c.m above mastoid process and 15 cm behind right eye brow. On dissection there was depressed fracture of under line bone of size 1 cm x 0.6 c.m and tearing of meninges. Depth was till the meninges was 2 cm and further depth could not be ascertained due to liquification of the brain tissue.
On internal examination it was observed as under :
a) Brain was liquified, injuries were noticed on scalp, scull and brain as mentioned in external injuries no. 1 to 4.
(b) Lungs were congested, soft and flabby.
(c ) Heart was soft and flabby.
(d) Stomach was containing 50 ml of food.
(e) Intestine was full of gases.
(f) Liver, spleen and kidneys were
congested soft and flabby.
(g) Urinary bladder was empty.
On the basis of postmortem examination she gave her opinion as follows :
"Time since death was about one week and cause of death was shock due to ante mortem head injury caused by penetrating blunt edge weapon. Injuries no. 1 to 4 were caused by penetrating blunt edge weapon and independently sufficient to cause death in ordinary course of nature. All the injuries were 42/118 43 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS ante mortem and of recent origin."
She further deposed that viscera was preserved for chemical analysis, cloth as mentioned earlier and blood on gauge were sealed with the seal of BG and handed over to the police. During his cross examination he deposed that rigor mortise passes away after about 36 to 40 hours after death during the month of March. Thereafter no PW was left to be examined, therefore, prosecution evidence was closed and case was fixed for examination of all the accused u/s 313 Cr.P.C.
11. During course of examination of all the accused u/s 313 Cr.P.C they controverted all the allegations as alleged against them and submitted that they were innocent and falsely implicated in this case. They further stated that all the witnesses are false and interested being friends, factory partner and relative of the complainant. They all desire to lead defence evidence, therefore, case was fixed for defence evidence.
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FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
12. Shamim s/o Sabbir Ahmed appeared as DW1 and Smt. Shabnam w/o Mohd. Rafi as DW2.
13. DW1 deposed that accused Hamid was working in his factory at Braham Puri, Delhi and was earing Rs.6000/- per month. He joined his factory after leaving the factory of Kadir. Accused Hamid was arrested from his factory but he cannot tell the date and time of his arrest.
During his cross examination by Ld. Addl. PP for state he deposed that mother of accused Hamid requested him to appear before the court and to give evidence in favour of accused Hamid. He also stated that he cannot produce any document showing thereby that accused Hamid was working in his factory. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
14. DW2 deposed that in the year 2007 she saw accused Firdos and Rashid while taking by the police officials from their houses and at that time she was present on the roof of her house. 44/118 45
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS She is the neighbour of Firdos and knew nothing more about this case.
During her cross examination she failed to explain the date, month and year when she had seen the accused persons in the police custody from the roof of her house. Thereafter defence evidence was closed and case was fixed for final arguments.
15. I have heard arguments on behalf of Ld. Addl. PP for state, Sh. Sanjay Gupta Advocate on behalf of accused Sabir and Sh. Abdul Sattar, Advocate on behalf of accused Rashid, Hamid, Firdaus and Vakila.
16. Ld. counsel on behalf of all the accused submitted that before convicting the accused under any penal law it is the duty of the prosecution to prove its case beyond reasonable doubt and in the present case no incriminating corroborative evidence is brought on record. Moreover, present case is totally based on the disclosure statement of accused/co-accused persons as well as on the basis of 45/118 46 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS extra judicial confession recorded by the IO during investigation of this case and only on the basis of such statement and extra judicial confession no conviction is based.
17. In support of his contention Ld. counsel Sh. Abdul Sattar on behalf of accused persons submitted that initially case was investigated on the basis of extra judicial confession made by PW2 Nadim s/o Mohd. Sayeed and during his cross examination he specifically stated that whatever stated by him on 25.2.08 in his examination in chief with regard to the fact that accused Hamid disclosed before him that he had kidnapped the son of Kadir Alam and killed him by strangulation was stated only at the instance of police officials and he denied having been made any extra judicial confession to Kadir Alam. He also admitted that Kadir Alam (father of deceased) was trying to take back accused Hamid to work in his factory, when he refused to join the factory of Kadir Alam he was falsely implicated by him in this case. Even during cross examination by Ld. Addl. PP for state he specifically stated that whatever deposed by him on 25.2.08 was under pressure of police. In such 46/118 47 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS circumstances extra judicial confession allegedly recorded by the police officials cannot be relied upon.
18. He further pleaded that PW3 Rizwan is the witness of last seen of deceased with accused Hamid and Sabir. In his statement u/s 161 Cr.P.C recorded by IO on 4.3.07 he stated that he had seen Kasim Alam @ Rahil s/o Kadir Alam with Hamid (karigar of Kadir Alam) and one another boy aged about 20-21 years having fair colour but during his cross examination before the court he deposed that he informed Kadir Alam on telephone that he had seen his son Kasim Alam with accused Hamid only and even during cross examination by Ld. Addl. PP for state he specifically stated that he had never stated to the police that on 2.3.07 he had seen one another boy aged about 20-21 years with Hamid and Rahil. He only voluntarily deposed that accused Hamid told to the police in his presence that he and son of his maternal aunt namely Sabir had hatched a conspiracy for kidnapping Rahil for ransom and accordingly kidnapped him is not admissible in evidence being hearsay evidence. 47/118 48
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
19. He further pleaded that PW4 Riaz s/o Abdul Salam in his statement u/s 161 Cr.P.C recorded by IO stated that on 09.03.07 at about 10:30 p.m a young boy aged about 20-21 years made a call from his PCO booth at phone no.65821196 and identified that boy at about 7:30 p.m in the custody of the police near Bagh Masjid. He also disclosed the name of that boy as Sabir Ali s/o Islamuddin but during his cross examination by Ld. counsel on behalf of accused Sabir he denied the suggestion that accused Sabir had made a call on 9.3.07 or that on 26.3.07.
20. It is further pleaded that Lady Ct. Noor Jahan (PW8) has joined the investigation on 26.4.07 with SI Pramod Singh. On that day co-accused Vakila was arrested. Her disclosure statement was recorded and pursuant to disclosure statement she took the police official at Ganda nala Bhagirath Vihar and pointed out the place throwing the dead body of deceased Kasim Alam @ Rahil but during his cross examination on behalf of accused Sabir she failed to explain that who had recorded that disclosure statement and how much time was taken by writer of statement.
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FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
21. It is further pleaded that PW9 father of deceased stated that on 2.3.07 his son Kasim Alam aged about 10 years was playing outside his house till 3:30 p.m and he came to know that his son was found missing from the gali at about 5:30 p.m. He lodged a missing report at 7:30 p.m and further lodged a report on 3.3.07 vide his statement Ex. PW9/A. As per his statement, on the day he lodged the FIR his friend Rizwan already told to him that he had seen his son with accused Hamid and other person but their names were not mentioned in the FIR, admittedly it was lodged against unknown person and no action was taken against any of the person prior to 9.3.07. On the other hand PW9 stated that on 8.3.07 PW2 Nadeem (karigar ) told to him that Hamid disclosed before Nadim on 2.3.07 that Hamid alongwith Sabir Ali kidnapped his son for ransom. He further told that accused Hamid told him that as the child was crying, therefore, Hamid and Sabir had killed him. Hamid further disclosed in the presence of Nadim that after killing Kasim his dead body was thrown by his brother Rashid, his mother Firdaus and his Bhabhi Vakila in the ganda nala but PW2 Nadim during his examination 49/118 50 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS before the court only deposed that on 2.3.07 he had seen deceased Rahil with Hamid and no other person was present there and no further extra judicial confession is made by him to Kadir Alam. In such circumstances testimony of PW9 appears to be untrustworthy and unreliable.
22. As per prosecution version on 25.4.07 all the exhibits (10 in number) were sent to the office of CFSL Calcutta through PW10 and on 6.09.07 FSL result of all the exhibits were received and vide FSL report Ex. PX. However, on perusal of the opinion given by Junior Scientific Officer it is established that blood could be detected on exhibit 2A (Full pant), Ex. 2B, (one sleeveless T Shirt), Ex. 2C (one sandow baniyan), Ex.2C (pair of socks), Ex.2D (blood gauge), Ex.3, gunny bag with straw Ex. 5, full pant Ex.6 , screw driver Ex.7, stone Ex.8 , one wooden piece Ex.9 which was removed from the bed lying in the house of accused and exhibit 10 one mattress which was lying on the bed kept in the house of the accused persons. However, human blood could only be detected only on Ex. 2A, 2B, 3 and 9 but blood group could not be detected on any of the exhibit. In such 50/118 51 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS circumstances it cannot be said that blood which was detected on clothes of deceased, cloth of accused, stone, wooden piece and mattress recovered from the house of accused were of the same blood group, therefore, in the absence of matching the blood group of the deceased with the other exhibits it cannot be said that the human blood found detected on the stone and the piece of wood was of the deceased and no conviction can be based on the basis of report of scientific expert and reliance is also placed on a decided case cited as "State (Delhi Admn.) Vs. Sahid Mia & Ors. 166 (2010) DLT 350 (DB)" wherein it is observed as under:
" All the exhibits did as positive for human blood but blood group on the same could not be detected, resulting in failure to establish that blood group of human blood found on recovered chhuri and knife matched with blood group of either of the deceased and it was observed that prosecution has failed to link the knife and chhuri recovered from Sahid Mia with the alleged murders."
24. PW .4A is a formal witness who only identified the dead body of his cousin Kasim vide identification memo Ex.PW 4A/A. 51/118 52 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
25. PW .5 deposed that as per school record deceased Kasim was student of 3rd class in the year 2006-07 and his date of birth is 21/10/07. He also proved the certificate as Ex.PW. 5/A.
26. PW .6 fixed the TIP of co-accused Sabir but he failed to join the TIP and the TIP proceedings are Ex.PW.6/B.
27. PW .7 is photographer who took four photographs of the dead body.
28. PW . 13 is a draftsman who prepared the rough site plan of the place of incident I.e jhuggi no. E-16/B-147 New Seelam Pur Delhi on the pointing out of the IO and also prepared the site plan of the spot from where the dead body of Kasim was recovered I.e main road near Brij Puri Pullia, opposite house no. C-169 Bhagirathi Vihar, Gokal Puri Delhi.
29. PW .14 recorded the FIR. PW15 took thirteen photographs of the spot from different angles.
52/118 53 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
30. PW .17 is police official in whose presence, photographer / PW.15 took photographs of the spot in presence of crime team I.e at Ganda Nala, Bhagirathi Vihar, near Brij Puri Pullida.
31. PW .21 is doctor who identified the handwriting and postmortem proceedings conducted by Dr. Barkha Gupta. Dr. Gupta opined the cause of death as shock due to antimortem head injuries caused by penetrating blunt edge weapon on the other hand in the disclosure statement of co-accused Hamid Ex. PW9/E recorded by the police official he disclosed that he killed the deceased by strangulation which raises a serious doubt upon the mode of recording disclosure statement of the co-accused.
32. PW .8, PW .12, PW .16, PW . 18, PW . 19 and PW . 20 all are the police officials and they all joined the investigation at the time of apprehension, arrest, interrogation and recording disclosure statements of the accused persons. There is no other evidence brought on record by the prosecution except the disclosure statement of co-accused and the statement of accused which 53/118 54 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS were recorded in the police custody which cannot be proved against them and placed his reliance on a decided case cited as "KAMAL KISHORE VS THE STATE ( THROUGH DELHI ADMINISTRATION) 1997 II AD, DELHI 355" wherein it is observed as under:
"Thus it is clear that the disclosure statement of the accused is not at all admissible in evidence where it has not led to discovery of any fact which was not known to the police. Further under Section 27 of the Evidence Act which is in the nature of a proviso to Sections 25 and 26 of the Evidence Act. From the above discussion, it also becomes clear that the confession made while in custody is not to be proved against the accused as the proviso to section 25 and 26 of the said Act does not permit it unless it is made before a Magistrate and also that the statement of accused leading to discovery cannot be used against co-accused. In the present case the prosecution has tried to make a case against the petitioner only on the basis of the confessional disclosure statement made by him while in custody and statement of the co-accused leading to discovery. The latter statement cannot be used against co- accused under section 30 of the Indian Evidence Act. Thus both are not permissible under law."54/118 55
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
33. It is further pleaded that recovery of dead body, blood stained clothes and the screw driver allegedly used while killing Rahil at the instance of the accused persons pursuant to their disclosure statement were also not recovered in presence of any independent witness despite of the fact that place of recovery was a crowded area and the said recovery in the absence of any public witness cannot be tempted as discovery of facts pursuant to the disclosure statement of the accused and also placed his reliance on a decided case cited as "SATISH KUMAR VS STATE 1996 CRL. L. J 265".
In this case IO/Police official admitted that no efforts were made by the police to join any independent witness before recording the disclosure statement of accused and before effecting the recovery. It is not understood how this basic principle of investigation has been lost sight of by the investigating officer that at the time of interrogating the accused and for making the recoveries which are admissible u/sec. 27 of the Evidence Act, a sincere efforts must be made by the Investigating Officer to join independent public witnesses."
It is further observed that:
"It is not the case no such public witness was available or sincere efforts was made in joining 55/118 56 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS the public witnesses but without success. Merely having the brother of deceased with them for this purpose does not remove the suspicion about the genuineness of disclosure statement and the recoveries allegedly effected on the basis of such disclosure statement."
34. It is further pleaded that recovery of dead body, polythene bag containing pant of accused Hamid, shoes of deceased and one pechcuss was also not conducted in the presence of public witnesses despite of the fact that all these were recovered from the public place i.e from ganda nala and in such circumstances, investigation with regard to recovery of these articles and dead body of deceased by the police officials does not inspire confidence and possibility of manipulation in the investigation cannot be ruled out and placed his reliance on a decided case cited as Dinesh Kumar Vs. State 1998 (1) JCC (Delhi) 173 wherein it is observed as under :
"It need hardly be said that in order to lend assurance that the investigation has been proceeding in fair and honest manner, it would be necessary for the Investigating Agency to take independent witnesses to the discovery under section 27 of the Indian Evidence Act and not taking independent witnesses and taking 56/118 57 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS subordinate police person as the witnesses to the disclosure/ recovery/ discovery would in a given case render the discovery at least not free from doubt. The object of Sub section (4) of Section 100 of the Code is to ensure an honest and genuine search and to prevent trickery by "planting" the things to be "found" in searches."
reliance is also placed on a decided case cited as Abdul Sattar Vs. Union Territory, Chandigarh AIR 1986 Supreme Court 1438 wherein it is observed as under :
"As per prosecution version the pant and shirt had been removed from the body and hidden there. Recovery is said to have been made more than three weeks after the occurrence. Admittedly, the place from where these two things are said to have been recovered are a public place and appears to have been very much accessible to people of the locality. It is difficult to believe that these two have been so concealed that they were not noticed and were available to be collected from the very place such a long time after."
35. It is further pleaded that instances of conspiracy and association of the co-accused in the process of killing the deceased is also not proved and only on the basis of uncorroborated testimony 57/118 58 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS of all the co-accused persons no conviction can be based as has been observed in a decided case cited as Abdul Sattar Vs. Union Territory (supra) as under :
"If there is no conspiracy, association of co- accused with the process of murdering the deceased, is difficult to believe. The approver is a competent witness but the position in law is fairly well settled that on the uncorroborated testimony of the approver it would be risky to base the conviction, particularly in respect of a serious charge like murder."
36. It is further pleaded that no ingredients to attract the provisions of section 364 A IPC i.e kidnapping for ransom is proved against any of the accused persons. PW4 is the owner of STD from where as per prosecution version a ransom call was made by co- accused Sabir to the father of deceased but when he was examined in the court he specifically denied that accused Sabir had made any call on the day of incident from his STD booth to phone no. 65821196 and thereby no motive to commit the crime is established and to prove a criminal case, motive as a circumstance when put forward, it must be fully established like any other incriminating circumstance 58/118 59 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS and placed his reliance on a decided case cited as Ramgopal Vs. State of Maharashtra AIR 1972 Supreme Court 656 wherein it is observed as under :
"It is not possible to hold having regard to the probabilities of the case that the motive alleged by the prosecution is fully established." reliance is also placed on a decided case cited as A.K. Jaison Vs. State 2009 (110) DRJ 148 (DB).
37. In view of the aforesaid inconsistencies in the testimony of the prosecution witnesses, irregularities committed by the IO in recording the disclosure statement of accused, factum of recovery of dead body of deceased pursuant to the disclosure statement and keeping in view the confrontations in the testimonies of other prosecution witnesses/police officials, it is established that prosecution totally failed to prove its case beyond reasonable doubt against all the accused persons and requested for their acquittal.
38. Ld. counsel on behalf of co-accused Sabir Specifically stated that co-accused Sabir was arrested on 26.3.07 i.e after about 59/118 60 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS 16-17 days of recording the disclosure statement of all the other co- accused, therefore, disclosure statement of accused Sabir allegedly recorded by the IO cannot be proved against him as the recoveries has already been effected prior to recording his statement.
39. It is further pleaded that initially name of co-accused Sabir was disclosed by Rizwan (PW3) in his statement u/s 161 Cr.P.C but during his examination in chief and even in his cross examination by Ld. Addl. PP for state he no where stated that co-accused Sabir was also seen with the deceased and co-accused Hamid on 2.3.07. Another instance against co accused Sabir which was brought by the police official during investigation of this case is the statement of PW4 who was the owner of STD booth from where a ransom call was allegedly made by co-accused Sabir on a phone no. 65821196 belonging to father of deceased but PW4 during his cross examination by Ld. Addl. PP for state specifically stated that the person who had made a call to phone no. 65821196 from his STD booth was produced by the police officials at his STD booth after 2/3 days (during the election of MCD) and on that day he was not aware 60/118 61 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS about the name of that boy as Sabir Ali s/o Immamuddin and even during cross examination by Ld. counsel for accused he denied the suggestion that accused Sabir had made a call on 9.3.07 or that on 26.3.07 or that he had identified the person who had made a call from his STD booth on 9.3.07 when he was in police custody and except these two instances there is no evidence against the accused Sabir Ali except the disclosure statement of other co-accused. It is further pleaded that disclosure statement of co-accused Hamid was recorded on 9.3.07, disclosure statement of accused Rashid was recorded on 11.3.07 and accused Sabir Ali was arrested on 26.3.07 and only on that day his disclosure statement was recorded and at the time of recording disclosure statement of accused Sabir Ali, all these facts were already known to the police officials as these facts were already disclosed by co-accused Hamid and Rashid, therefore, disclosure statement which were already in the knowledge of police official and also recorded in the police custody cannot be proved against accused Sabir Ali and placed his reliance on a decided case cited as Kamal Kishore Vs. The State (through Delhi Administration) 1997 II AD, Delhi 355 which has already been 61/118 62 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS discussed during the course of arguments on behalf of Ld. counsel for remaining accused persons and also placed his reliance on a decided case cited as Kalpnath Rai Vs. State through CBI AIR 1998 SC 201 wherein it is observed as under :
"Under Section 25 and 26 of the Evidence Act no confession made by an accused to a police officer, or to any person while he was in police custody could be admitted in evidence, and under section 162 of Cr.P.C no statement made by any person during investigation to a police officer could be used in a trial except for the purpose of contraction. In view of the aforesaid ban imposed by the legislature section 15 of the TADA provides an exception to the ban. But it is well to remember that other confession which are admissible even under the Evidence Act could be used as against a co-accused only upon satisfaction of certain conditions. Such conditions are stipulated in section 30 of the Evidence Act. The first condition is that there should be a confession i.e inculpatory statement. Any exculpatory admission is not usable for any purpose whatsoever as against co-accused. The second condition is that the maker of confession and the co-accused should necessarily have been tried jointly for the same offence. In other words, if the co accused is tried for some other offence, though in the same trial, the confession made by one is not usable against the co-accused. Third condition is that the confession made by one accused should affect himself as well as the co accused. In other words, if the confessor absolves himself from 62/118 63 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS the offence but only involves the co accused in the crime, while making the confession, such a confession cannot be used against the co- accused. Even if no conditions are satisfied the use of a confession as against a co accused is only for a very limited purpose i.e the same can be taken into consideration as against such other person. It is now well settled that under section 30 of the Evidence Act the confession made by one accused is not substantive evidence against a co-accused. It has only a corroborative value. A confession made admissible under section 15 of TADA can be used as against a co-accused only in the same manner and subject to the same conditions as stipulated in section 30 of the Evidence Act. Therefore, the confession made by the accused cannot be used against co accused even as for corroborative purposes because the accused were not tried for the offence under section 3(4) of TADA. So the first condition set forth in section 30 of the Evidence Act is non-existent."
40. Ld. counsel on behalf of co-accused Sabir further pleaded that presence of accused Sabir with deceased and accused Hamid is not proved by PW3 during his cross examination. PW4 also no where stated that accused Sabir had made a call on 9.3.07 from his STD booth and he only stated that he identified that person on the date when police official produced before him during the course of investigation of this case, however, police officials in their testimony 63/118 64 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS disclosed that accused Sabir was arrested and he was shown to PW4 for the purpose of identifying him whether Sabir had made a call from his STD booth on 9.3.07 to the phone of father of deceased. Only inference which can be drawn adversely against accused Sabir is that he refused to join the TIP proceedings but said adverse inference alone is not sufficient to bring the guilt of accused at home. It is further pleaded that when two reasonable views are possible on the basis of evidence on record, only one favourable to the accused is to be taken by the trial court and also placed his reliance on a decided case cited as State of Maharashtra Vs. Ahmed Shaikh Babajan & Ors. (SC) 2009(1) RCR (Criminal) wherein it is observed as under :
"If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court."
41. Ld. counsel on behalf of accused further pleaded that present case is totally based on the disclosure statement of co- accused and circumstantial evidence and in such type of cases onus 64/118 65 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS lies upon the prosecution to prove its case beyond reasonable doubt and in the present case no chain of circumstances is proved against co-accused Sabir and also placed his reliance on a decided case cited as State of UP Vs. Ram Balak and another 2008 (4) RCR (Criminal) wherein it is observed as under :
Indian Penal Code, Sections 376 and 302 - Criminal Offence - No eye witness-Case based on circumstantial evidence-Onus is an prosecution to prove that chain is complete- Circumstantial evidence must satisfy the following tests :
1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
3. the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and one else; and
4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
5. If the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted.65/118 66
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS It is further held that :
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a
conclusive nature and tendency;
(4) they should exclude every possible
hypothesis except the one to be proved; and
(5) 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. 1990(2) RCR (Crl.) 26 relied."
42. It is further pleaded that after excluding the testimony of PW3 and PW4 there is no incriminating fact are brought on record against co-accused Sabir except the disclosure statement of co- accused persons which is a very weak evidence which alone is not sufficient to convict the accused in the absence of any other corroborative evidence and placed his reliance on a decided case cited Sri Indra Das Vs. State of Assam 2011 (2) RCR (Criminal) 66/118 67 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS wherein it observed as under :
"That confession is a very weak type of evidence, particularly when alleged to have been made to the police, and it is not safe to convict on its basis unless there is adequate corroborative material."
43. In view of the aforesaid discussion and the observations given by their lordships in the aforesaid decided cases considering the inconsistencies in the evidence of PW3, PW4 and police officials it is established that prosecution totally failed to prove its case against accused Sabir and requested for his acquittal.
44. On the contrary Ld. Addl. PP for state submitted that prosecution examined 21 witnesses in the present case and on over all appreciation of testimonies of the witnesses prosecution has succeeded in making an unbreakable chain of circumstances and also proving its case beyond reasonable doubt against all the accused persons. In support of his contentions it is stated as under:
(i) Initially case u/s 363/365 IPC was registered at PS New Usmanpur vide FIR no.76/07 on the basis of statement of Kadir Alam 67/118 68 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS father of deceased against unknown person, thereby it is established that had it been a case of false implication against the accused persons, Kadir Alam (father of deceased) would have disclosed their names at the initial stage of registration of this case but it has not been so disclosed by him.
(ii) During the course of investigation, it was revealed that Kasim Alam @ Rahil was seen with accused Hamid and one another boy on 2.3.07 at about 3:30 p.m and only on revealing the aforesaid fact co-accused Hamid was arrested on 9.3.07 and during interrogation he made a disclosure statement that :
"On 2.3.07 pursuant to conspiracy hatched between himself, Rashid, Sabir, his mother Firdaus and sister in law Vakila (Bhabhi) he and Sabir kidnapped Kasim Alam @ Rahil with the intention to receive Rs.5,00,000/- as ransom and took him to his jhugee and when Rahil (child) started crying, due to fear they both killed him. He further disclosed that dead body of Kasim Alam @ Rahil was kept in a gunny bag and thrown in Gokul Puri nala by his sister in law Vakila, his brother Rashid and his mother Firdos."
Pursuant to the aforesaid facts disclosed by co-accused Hamid, 68/118 69 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS accused Rashid and Firdaus were arrested on 10.3.07 from Pooja Colony, Loni, UP, their disclosure statements were also recorded and they also disclosed the same facts as disclosed by Hamid. Pursuant to their disclosure statement and at the instance of Rashid, Firdaus and Hamid dead body of deceased Rahil was recovered from the bank of ganda nala existing between Bhagirathi Vihar and Ganga Vihar. They also disclosed in their statement that they had thrown the dead body by using a rickshaw rehree and said rickshaw rehree was also recovered at the instance of co-accused Rashid and factum of taking rickshaw rehree by co-accused Firdaus and her son Hamid is proved by PW1 Rahisuddin. During his examination at first instance before this court he has specifically stated that in the year 2007, one or two days before Holi festival at about 8/8:30 p.m co-accused Firdos and her son Hamid had come to his dairy/house and demanded his rickshaw rehree for throwing some malba. In the intervening night at about 1:30/2 a.m Hamid and his brother Rashid both (correctly identified) had come to his dairy and informed him that they had parked his rehree. He further deposed that after 4/5 days of the said incident accused Hamid was brought before him by police 69/118 70 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS officials and seized his rehree. He also identified his rehree Ex. P.1 and also identified two photographs of his rehree rickshaw when shown to him which are Ex.PW1/A and PW1/B.
(iii) PW2 is the employee of Kadir Alam (father of deceased) in whose presence accused Hamid made a extra judicial confession, therefore, during his examination in chief he specifically stated that in the year 2007 it was the 8th day of the month accused Hamid met him in a gali no.20 at about 10 a.m and disclosed before him that he had kidnapped Kasim Alam @ Rahil s/o Kadir Alam and killed him by strangulation and thereafter PW2 Nadeem disclosed all these facts to Kadir Alam (father of deceased). Kadir Alam took him to PS Usman Pur and got his statement recorded by the police official. During his cross examination by Ld. counsel on behalf of all the accused except accused Sabir he also reproduced the exact words used by Hamid which are as follows :
"HAMID NE MUJHE BULAYA, MAINE POOCHA KYA BAAT HAI, HAMID GABRAYA HUA THA, PHIR KEHENE LAGA, MAINE RAHIL KI GALA GHOT KAR HATYA KAR DI, PAISO KE LALACH MEIN, 70/118 71 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS YEH KEH KAR HAMID CHALA GAYA, MAIN KADIR ALAM KE PAAS CHALA GAYA, ISKE ALAVA USNE KUCH NAHI KAHA. PHIR KAHA KI, KHALA KA LADKA SAATH THA" but during his cross examination he retracted from his statement made by him during examination in chief. Such conduct of accused does not inspire confidence and no reliance can be placed on his retracted statement and also placed his reliance on a decided case cited as Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh AIR 1991 SC 1853 wherein it is observed as under :
"The testimony of witnesses cannot be treated as effaced from the record merely because the prosecution chose to treat them as hostile on the limited question of identity of assailants. Their evidence as to the occurrence and number of persons involved in the commission of the crime can be relied upon alongwith that of PW1 as he was neither a chance witness nor he was faking his presence at the scene of occurrence at the material time.
It is further held that :
"Evidence of the witness regarding identity of assailants is equally acceptable and his subsequent statement made in cross examination after a time gap of almost one month was rightly brushed aside by the High 71/118 72 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS Court, whatever be the reason for his change of heart."
(iv) PW3 is the last seen witness who has specifically stated that on 2.3.07 at about 4/4:30 p.m he had seen accused Hamid present in the court taking away Rahil s/o Kadir Alam towards pulia and on 4.3.07 he got his statement recorded at PS Usmanpur. Mere suppressing the facts that PW3 during his examination in chief had not stated that he had seen one another person aged about 20/21 years old having fair complexion with Hamid and Rahil is alone not sufficient to demolish the case of the prosecution whereas :
he voluntarily stated that accused Hamid told to the police in his presence that he and son of his maternal aunt namely Sabir hatched a conspiracy for kidnapping Rahil for ransom and accordingly, kidnapped him in pursuant to such conspiracy which clearly suggests that disclosure statement of accused Hamid was recorded in the presence of PW3 who is a public witness and not a police official and can be accepted as extra judicial confession.
(v) It is further pleaded that factum of making call for ransom is further proved by PW4 as he has specifically stated that on the day of 72/118 73 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS incident at about 10:30 p.m a boy reached there at his STD booth and made a call from his STD number on a phone bearing no.
65821196 belonging to father of deceased. The person who had made a call was of fair complexion and had talk for about 60/90 seconds. This fact is further corroborated by DD no.21A recorded at PS New Usman Pur on 9.3.07 on the basis of receipt of an information from PCR which is further corroborated when PW4 specifically stated that on the next day morning on receipt of a call he had gone to PS Usmanpur. Police official shown him a boy who had made a call from STD booth and also obtained his signature on the disclosure statement made by that boy who had made call from his STD booth. He also admitted that the person who had made a call from his telephone bearing no. 22823986 to phone number 65821196 was duly identified by him on the day the police official produced that boy before him and the other police officials proved the fact that they had produced Sabir Ali before PW4 to identify whether he had made a call on that day or not and mere saying that he was not aware if the name of that boy was Sabir Ali s/o Immamuddin is not sufficient to rebut the testimony of PW3 and PW4. PW3 specifically stated that 73/118 74 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS person who had made a call from his STD booth on 9.3.07 was fully identified by him while he was in police custody and this fact is also corroborated by the accused himself that he refused to join the TIP proceedings despite warning given to him by Ld. MM. In such circumstances, it is established that not identifying the person after the lapse of time is very much natural and not a mistake of fact. In such circumstances the confrontations as alleged by Ld. counsel for accused is not reliable and cannot be looked into.
(vi) PW4A identified the dead body of Kasim @ Rahil.
(vii) PW5 proved the date of birth of deceased.
(viii) PW6 proved the TIP proceedings wherein it is mentioned that accused Sabir Ali was brought before him in muffled face and he refused to join the TIP proceedings despite warning given to him that his refusal may be read against him during the course of trial. TIP proceedings is Ex. PW6/B.
(ix) PW7 is the witness of taking photographs of the dead body at Bhagirath Vihar Nala which are Ex. PW7/1 to 4 and negatives are 74/118 75 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS Ex.PW7/5 to 8. On perusal of the photographs it is established that the gunny bag containing dead body was lying in the ganda nala and cannot be easily noticed by the passersby and only at the instance of disclosure statement of co-accused it has become possible to recover the dead body of the deceased.
(x) PW8 is the police official who had joined the investigation with SI Pramod and proved the factum of arrest/personal search and recording of disclosure statement of co-accused Vakila vide memo Ex.PW8/A, Ex. PW8/B, Ex. PW8/C and Ex.PW8/D respectively. She took the police team to ganda nala and pointed out the place where she alongwith other co-accused had thrown the dead body of deceased and also pointed out towards her jhugee at Seelam Pur where Kasim Alam was killed and both the pointing out memos are Ex. PW8/D and Ex.PW8/E. Her testimony is further corroborated by PW18 SI Pramod.
(xi) PW9 is the father of deceased and proved the factum of lodging a missing report vide DD no.21 A and lodging a FIR. He also 75/118 76 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS proved the factum of recording statement of Rizwan on 4.3.07 by the police official. He also stated that on 08.03.07 at about 11 p.m his karigar Nadim told him that Hamid had disclosed before him that on 2.3.07 Hamid and Sabir Ali kidnapped his son with the intention to get ransom, took Kasim Alam @ Rahil to the house of Hamid, he started crying, thereafter, Hamid and Sabir Ali killed him. Nadim(PW2) further told him that Hamid disclosed in his presence that after killing dead body of Kasim Alam was thrown in a ganda nala by his brother Rashid, his mother Firdaus and his Bhabhi Vakila and accordingly, statement of PW2 Nadim was recorded by the police. He also proved the factum of arrest of accused Hamid by SI Pramod (PW18). He was interrogated and his disclosure statement was also recorded wherein he disclosed that dead body of Rahil was thrown in a nala near Mustafabad by his brother Rashid, mother Firdaus and Bhabhi Vakila. He further stated that pursuant to his disclosure statement of co-accused Hamid, police officials took him near ganda nala but on that day due to night time dead body could not be recovered and on next day i.e 10.3.07 in his presence and at the instance of accused Hamid, Rashid and Firdaus dead body of his son was recovered from 76/118 77 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS a gunny bag lying in ganda nala. He also identified the dead body of his son. Pointing out memo and identification memo both bearing his signature. He further proved that on 12.3.07 in his presence and at the instance of accused Firdaus, Vakila and Rashid one polythene bag containing one pair shoes, one screw driver and one jeans pant were also recovered from near nala. He also identified the socks belonging to his son, jeans pant and red colour T shirt recovered in his presence at the instance of accused persons Ex.3, Ex.4 and Ex.5. He also identified the pair of shoes of his son Ex.P6 which were got recovered at the instance of accused persons. He also corroborated the fact that Rizwan (PW3) told him that he had seen his son with his Karigar Hamid and one another person and statement of Rizwan was recorded in his presence. Nadim disclosed before PW9 that accused Hamid killed his son by pressing his throat in the presence of Sabir. It is further pleaded that testimony of PW9 and factum of recovery of dead body and clothes of deceased alone are sufficient to prove the case of prosecution.
(xi) PW10 is a formal witness who had deposited the exhibits in 77/118 78 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS the office of CFSL Calcutta.
(xii) PW11 had proved the factum of depositing one rickshaw rehree and four sealed parcels in the malkhana on 11.3.07 and also proved the factum of depositing of six parcels on 12.3.07. The descriptions of exhibits are as follows :
Ex.1 was a sealed wooden box sent to Toxicology division.
Ex.2 was a sealed parcel containing the following exhibits :
a) One sealed parcel b) Ex. 2A One full pant c) Ex. 2B One sleeveless T shirt d) Ex.2C One sandow baniyan e) Ex.2D One pair of socks f) Ex.3 was blood gauge g) Ex.5 gunny bag with straw h) Ex.6 full pant i) Ex.7 Screw driver j) Ex.8 stone k) Ex.9 one wooden piece taken in possession after cutting the bed lying l) Ex.10 mattresses and sealed wooden box was found to
contain viscera which was preserved by the doctor at the time of 78/118 79 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS conducting postmortem of dead body.
All these exhibits were sent to the office of CFSL Calcutta through SI Ram Kishore (PW10) and on analysis blood could be detected on Ex.2A, 2B, 2C,2D,3,5,8,9 and 10 however human blood could only be detected on EX. 2A, 2B, 3 and 9 which clearly suggests that the stone which was taken in possession by breaking the floor of the house of accused, wooden piece taken in possession after cutting the same from the bed lying in the house of accused and pant of accused Hamid allegedly thrown by the accused persons, blood was detected and no other explanation with regard to presence of blood on the exhibits which were taken in possession from the house of accused person is put forth by the accused persons as to how blood stains were noticed on Ex.8 and Ex.9 i.e stone and wooden piece which were taken in possession from their house.
(xiii) PW12 joined the investigation of this case with SI Pramod (PW18) and Inspector Kishan Lal (PW11) and they proved the factum of arrest of accused Sabir Ali, factum of recording his disclosure 79/118 80 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS statement vide Ex. PW12/C. He further proved that one Riaz (PW4) also reached at the spot and had identified a person as Sabir who had made a call from his PCO at about 10:30 p.m. He further deposed that IO of this case directed accused Sabir Ali to cover his face as his TIP was to be conducted. He also corroborated the fact that pursuant to the disclosure statement of accused Sabir he took the police team at jhugee at E-16B/147 New Seelam Pur and pointed out the place where he alongwith his other associates had committed the murder of Kasim Alam @ Rahil. Pointing out memo is Ex.
PW12/D bearing his signature.
(xiv) PW13 is the draftsman who prepared rough notes and measurements of the place of incident i.e a house/jhugee bearing no. E- 16B/147 New Seelam Pur and also prepared rough sketch of drain/nala near Iron Bridge pullia, opposite house no. C-169 Bhagirathi vihar, Gokul Puri, Delhi, scaled site plan is Ex. PW13/A is clearly suggests that both the places were visited by the IO at the instance of accused persons.
80/118 81
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
(xv) PW 14 recorded the FIR.
(xvi) PW15 proved the fact that on 12.3.07 on receipt of Wireless message he along with SI Dinesh Kumar (PW17) Const. Sushil Kumar (PW7) and other staff went to spot I.e jhuggi No. E-168 New Usman Pur and as per direction of IO and I/C Crime Team he took thirteen photographs of the spot from different angles which are Ex.PW 15/P-1 to P-13 and negatives are Ex.PW 15/P-14 to P-26 which clearly suggests that spot was properly investigated by the IO pursuant to the disclosure statement of co-accused persons. (xvii) PW16 proved that on 10/3/07 he joined the investigation of this case with IO/SI Parmod Kumar. Accused Hamid was also with the IO and on that day they went to Pooja colony Pavi village and as per pointing out of accused Hamid, accused Rashid was apprehended, he was arrested, interrogated and his disclosure statement was recorded. Pursuant to disclosure statement accused persons took the police team to the drain in between E block Bhagirath Vihar and G block Ganga Vihar and pointed out to the place where a Gunny bag in which dead body of Kasim Alam was 81/118 82 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS thrown by them. He further corroborated the fact that complainant Kadir Alam identified the dead body of his son Kasim Alam. He also corroborated the fact that crime team along with photographer reached at the spot and photographer took the photographs of the spot. Thereafter dead body of child with gunny bag were taken to GTB Hospital for postmortem.
(xviii) PW17 proved that on 10/3/07 he took photographs of the spot i.e Ganda Nala Bhagirathi Vihar near Brij puri Pullia and on 12/3/07 he took the photographs of the spot i.e jhuggi no. E-168 Usman Pur in the presence of IO and other staff. (xix) PW18 proved the factum of receipt of DD No. 21A and registration of the case on the basis of statement of Kadir Alam. He also proved the fact that he made endorsement on the statement of Kadir Alam and got the case registered. He also proved that on 09/3/07 accused Hamid was apprehended from near Shashtri Park hospital. He was interrogated and his disclosure statement Ex.PW 9/E was also recorded. He also pointed out the place i.e jhuee where he alongwith other co-associates committed the murder of child. He 82/118 83 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS also prepared the site plan, Ex.PW 18/B, pointing out memo Ex.PW 18/C and on the basis of discovery of facts other sections of IPC were also added by him and thereafter investigation of this case was assigned to Inspector K.L Sharmam (PW19).
(xx) PW19 corroborated the testimony of PW8, PW16 and PW18. He also proved the factum of sending exhibits to the office of CFSL and also placing on record the CFSL report. He also corroborated the testimony of other police officials who had joined the investigation with him who have already been discussed. (xxi) PW20 is the formal witness who had handed over original rukka and copy of FIR for onward transmission to SI Pramod. He also joined the investigation with SI Pramod Kumar and thereby corroborated the testimony of PW9 which has already been discussed.
(xxii) PW21 is the doctor who identified the hand writing and signature of Dr. Barkha Gupta on the postmortem report of deceased 83/118 84 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS Kasim Alam. Cause of death is also proved as follows :
"Time since death was about one week and cause of death was shock due to ante mortem head injury caused by penetrating blunt edge weapon. Injuries no. 1 to 4 were caused by penetrating blunt edge weapon and independently sufficient to cause death in ordinary course of nature and all the injuries were ante mortem and of recent origin."
(xxiii) On perusal of report of viscera no instance of any poisoning were detected which clearly goes to show that deceased was killed by using penetrating blunt object weapon as opined by doctor and not due to any other reason.
45. In view of the testimonies of the witnesses discussed above and the material collected by the IO pursuant to the disclosure statement of all the accused persons it is established that prosecution succeeded in proving its case beyond reasonable doubt against the accused persons.
46. In rebuttal to the plea taken by Ld. counsel for accused that 84/118 85 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS disclosure statement of accused persons recorded while they were in the police custody cannot be read against them it is submitted that the fact discovered pursuant to disclosure statement can be proved against accused persons and in the present case dead body of deceased Kasim, his shoes, socks and one pechcus allegedly used in killing the deceased is recovered at the instance of accused persons pursuant to their disclosure statement and this fact is proved against them which alone are sufficient to prove the case of the prosecution and also placed his reliance on a decided case cited as State of Himachal Pradesh Vs. Jeet Singh AIR 1999 Supreme Court 1293 wherein it is observed as under :
"There is nothing in Section 27 of Indian Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others." It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence u/s 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main road side or if it is concealed, beneath dry leaves lying on public places 85/118 86 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
47. Ld. Addl. PP for state further placed his reliance on a decided case cited as cited as Karamjeet Vs. State of Delhi AIR 2003 SC 1311 wherein it is observed as under :
"The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down."86/118 87
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
48. On the point of absence of motive Ld. Addl. PP for state submitted that in their disclosure statements all the co-accused specifically stated that co accused Hamid and Sabir took away Kasim Alam @ Rahil from the gali in front of his house with the intention to get ransom and killed him. The dead body of deceased was also recovered at their instance pursuant to their disclosure statement which itself establish the motive to commit the crime and also placed his reliance on a decided case cited as State of Himachal Pradesh (Supra) wherein it is observed as under :
"It is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the 87/118 88 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS person whom he offended."
49. The plea taken by Ld. counsel for accused that there is no evidence against accused Sabir except the disclosure statement of co-accused is not tenable in law, however PW3, PW4 and other police officials as well as co-accused in their disclosure statement brought on record sufficient corroborative evidence with regard to the presence of the accused Sabir at the time of taking away the deceased with co-accused Hamid and also to commit his murder with other associates. The recovery of the dead body of deceased, blood stained pant of Hamid, presence of blood on these clothes, on the wooden piece, on the mattress lying on the bed and also on the piece of stone removed from the floor of the house of accused amounts to discovery of facts pursuant to the disclosure statement which is admissible in evidence and can be proved against the accused persons. All the accused persons are being tried jointly therefore, the disclosure statement of one of the co-accused implicating himself and others can be proved against himself as well as others. In such circumstances it cannot be said that in the present case there is no corroboration of incriminating facts except the disclosure statement of 88/118 89 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS accused.
50. In view of the aforesaid discussion it is established that prosecution succeeded in proving its case against the accused persons beyond reasonable doubt as well as in making a complete chain of circumstances against all the accused persons and requested for their conviction.
50. After hearing arguments and before passing any order I would like to go through the relevant provisions of section 30, illustration(b) of section 114 and section 133 of Indian Evidence Act which reads thus :
Section 30 Consideration of proved confession affecting person making it and others jointly under trial for same offence - When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession."
"114 (b) :89/118 90
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS that an accomplice is unworthy of credit, unless he is corroborated in material particulars;"
Section 133 Accomplice - An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."
52. In view of the evidence adduced by the prosecution and the relevant provisions of the Indian Evidence Act discussed above following facts are established against accused Hamid, Rashid, Firdaus and Vakila :
a) It is established that on 2.3.07 deceased Kasim Alam @ Rahil was found missing and on that day co accused Hamid was seen with the deceased.
b) Pursuant to the aforesaid established fact accused Hamid was arrested on 09.03.07, he was interrogated and during interrogation he disclosed that pursuant to a conspiracy hatched between Rashid, Sabir his mother Firdaus and himself he and 90/118 91 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS Sabir kidnapped Kasim Alam @ Rahil with the intention to receive ransom of Rs.5 lac took him to his jhugee and when he started crying they both killed him and dead body of Rahil was kept in a bag and thrown in a Gokul Puri ganda nala by co-
accused Rashid, Vakila and Firdaus. Pursuant to his disclosure statement Rashid and Firdaus both were arrested on 10.3.07 at the instance of accused Hamid. They both were interrogated and made the disclosure statement in the same manner and pursuant to statement of all the above named co accused dead body of deceased Kasim Alam was recovered from the place disclosed by them which was found kept in a gunny bag. Dead body was identified by PW Kadir Alam at the spot. On 11.3.07 blood stained pant of accused Hamid, socks of deceased Rahil and one pechcus allegedly used for causing death of Rahil were also recovered at the instance of all the accused persons from the ganda nala near Braham Puri Pulia, thereby it is established that the factum of causing death and recovery of dead body, socks belonging to deceased, one pant worn by the accused Hamid at the time of commission of offence and one pechcus 91/118 92 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS used for killing Kasim Alam @ Rahil pursuant to the disclosure statement of accused and all these facts are admissible against the accused persons by virtue of provisions of section 27 r/w section 30 of the Indian Evidence Act.
(c ) All the accused disclosed the place of commission of offence i.e a jhugee bearing no. E-16B/147 Seelam Pur and pointed out the place where the offence was committed and on their pointing out a blood stained stone after digging from the floor, a wooden piece after cutting from the bed and a mattress/bed sheet bearing blood stains were also taken in possession and during chemical analysis in the office of CFSL all these exhibits were found to contain human blood/blood and this fact is also discovered pursuant to the disclosure statement of accused and is again admissible in evidence by virtue of provisions of section 27 and 30 of Indian Evidence Act. (d ) Accused Rashid and Firdaus were arrested on 10.3.07, they both were interrogated wherein they disclosed that in the 92/118 93 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS intervening night of 2/3.3.07 after committing the murder of Rahil and for the purpose of removing his dead body from their house they took a rickshaw rehree of his relative Rahisuddin, packed the dead body in gunny bags with some bhussa sealed the same, kept in rickshaw rehree and thrown the gunny bag containing dead body near the Bhagirathi Vihar Pulia at the bank of ganda nala and thereafter they parked the said rehree at about 1:30/2:00 a.m at the house of Rahisuddin. Rahisuddin was examined as PW1 and he testified the fact to the extent that on 2.3.07 the accused persons Firdaus and Hamid came to his house and took their rehree and thereafter at about 1:30/2 a.m after midnight co accused Hamid and Rashid informed him that they had parked his rehree in front of his house. Accordingly, this fact is also discovered pursuant to disclosure statement of co accused persons and can be proved against them as per provisions of section 27 and 30 of Indian Evidence Act. On perusal of case diary it is further revealed that on 10.3.07 Rashid was arrested at 4 p.m.Firdaus was arrested at 5 p.m and their disclosure statement was recorded at 5:30 p.m and dead body 93/118 94 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS was recovered at about 6:30 p.m.
(e) Accused Hamid, Rashid and Firdaus were further interrogated by the police officials and during their subsequent disclosure statement all the accused disclosed that on 2.3.07 at about 3:30 p.m Sabir and Hamid took Rahil with them on the pretext of playing with him. Rashid, Firdaus and Vakila were also present at their house. Rahil "GHAR JANE KE JID KARNE LAGA" then they all five persons intended to kill him and thereafter would raise the demand of ransom. Co-accused Firdaus was directed to keep vigil and to stand on the roof of the house and co accused Vakila was directed to guard while standing at the door of the house. Rashid caught hold the legs of Rahil, Sabir caught hold the hands of Rahil and Hamid pushed his throat while putting cloth in the mouth of Rahil due to that Rahil became unconscious, thereafter Sabir suspected Rahil alive and landed three four pechcus blow on his head and they all kept the dead body under the bed lying in the room. It is further disclosed that Firdaus, Rashid and Vakila would remove 94/118 95 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS the dead body from their room and also removed the pechcus blood stained clothes of Hamid and shoes of deceased Rahil from the room while throwing in a nala near Brahampuri and accordingly till 2 a.m the accused did their job. Pursuant to their disclosure statement a pechcus used in killing Rahil, blood stained pant worn by co accused Hamid and the shoes belonging to deceased were recovered. The factum of causing injury by using pechcus is further corroborated by the doctor who had conducted the postmortem report of the deceased. Since the facts are discovered pursuant to the disclosure statement of accused therefore, this part of evidence is admissible against the accused persons by virtue of provisions of section 27 and 30 of Indian Evidence Act.
(f) Pursuant to disclosure statement of accused Rashid, Firdaus and Hamid other co accused Sabir Ali was arrested on 26.3.07. He was interrogated and his disclosure statement was also recorded wherein he stated all the facts which were stated by other co accused. He also disclosed that on 9.3.07 he made a 95/118 96 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS call from a PCO at Kabutar Market Welcome to Kadir Alam to the mobile no. 65821196 belonging to Kadir Alam (father of deceased) thereby gave a false information to him that his son Rahil was present in a Maruti car bearing no. DL-6CE-9947 parked at B block Indra Vihar. This fact is also revealed on perusal of the case diary maintained by IO wherein it is recorded that on 9.3.07 an information vide DD no.21A was received to the fact that Rahil was present in the aforesaid Maruti car at Indra Vihar which was assigned to ASI Dall Chand and statement of Kadir Alam to this effect u/s 161 Cr.P.C is also recorded and is available in the file which again amounts to the discovery of facts with regard to making call to the father of deceased by co accused Sabir and can be proved against him by virtue of provisions of section 27 and 30 of Indian Evidence Act.
(g) Pursuant to disclosure statement of other accused persons Co-accused Vakila was arrested on 26.4.07 and in her disclosure statement Ex. PW8/C she disclosed all the facts 96/118 97 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS which were disclosed by the other accused and her presence at the time of commission of offence is duly disclosed by other co- accused persons which is admissible by virtue of provisions of section 30 of Indian Evidence Act.
(h) The identification of dead body is not disputed rather identified by his father Kadir Alam. Cause of death is proved by the doctor i.e :
"shock due to antimortem head injury caused by penetrating blunt edge weapon and all the injuries mentioned on the postmortem i.e from sl. no.1 to 4 were opined as caused by penetrating blunt edge weapon and independently sufficient to cause the death in ordinary course of nature."
(i) All these injuries were opined as antimortem injuries of recent origin. No evidence in rebuttal to the testimony of all the prosecution witnesses is brought on record by the accused persons. In such circumstances, it is established that there is no reason to disbelieve the testimony of PW9 father of deceased, 97/118 98 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS PW3 and PW4 both public witnesses as well as of police officials and the circumstances proved against the accused persons pursuant to the discoveries made on the basis of disclosure statement of accused persons.
(j) The place of recovery of dead body was not visible to the passersby as the maximum area of the gunny bag was hidden in the semi solid mud and water. On perusal of the photographs brought on record it is also proved that the gunny bag was taken out from the ganda nala while dragging, thereby it is established that place of recovery of dead body cannot be ascertained by any other person except the accused persons.
(k) The conduct of the accused is also a relevant fact that during investigation they attempted to mislead the investigating officer while making disclosure statement in different manner.
53. The facts established against co accused Sabir are as follows :
98/118 99
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
i) PW3 Rizwan Ul Haq initially in his statement u/s 161 Cr.P.C disclosed the name of Hamid and another person aged about 20/21 years and of fair complexion were seen with the Rahil on 2.3.07 but during his examination before the court he confronted from his said statement but during cross examination by Ld. counsel for accused he specifically stated that:
"accused Hamid told to the police in his presence that he and son of his Khalla (maternal aunt) namely Sabir had hatched a conspiracy for kidnapping Rahil for ransom and kidnapped him."
and he identified accused Sabir in the court was the same who had made a disclosure statement to the police official in his presence. This fact is further corroborated by PW3 Rizwan during cross examination by his counsel wherein he stated that "Hamid had told to the police when he was arrested that Sabir was with him in commission of crime and he also denied the suggestion that no such statement was made by Hamid to the police on 09.03.07".
99/118 100 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
ii) The presence of co-accused Sabir at the time of commission of crime is further proved by other co-accused as they have specifically stated that co accused Sabir landed three four pechcus blows on the head of Rahil and it is proved that only due to the antimortem injuries caused by using blunt edge weapon Rahil died and the disclosure statement of co accused is admissible against accused Sabir by virtue of provisions of section 30 of Indian Evidence Act.
Iii) The factum of making call on 9.3.07 by accused Sabir from a PCO booth being run by PW4 Riaz to a phone no. 65821196 belonging to Kadir Alam father of deceased is proved while keeping in view the whole evidence allegedly brought on record by the prosecution. Admittedly, PW4 Riaz failed to identify the accused in the court was the same who had made a call from his PCO booth but during his cross examination he specifically stated that he had identified the person who had made the call from his PCO booth when he was shown by the police officials and on perusal of testimony of police officials it is established that 100/118 101 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS they had produced co accused Sabir before him for the purpose of identification. It is also established that accused Sabir refused to join the TIP proceedings despite warning given to him and such conduct of co accused Sabir further corroborates the fact that he had made a call on 9.3.07 on the phone of Kadir Alam.
54. In view of the established facts discussed above and on following the observations given by their lordships in the decided cases upon which Ld. counsel for both the parties placed their reliance I am of the considered view that prosecution succeeded in making an unbreakable chain of circumstances and to prove its case beyond reasonable doubt against accused Hamid, Sabir and Rashid for the offence u/s 302/363/201/34 IPC and for the offence u/s 201/34 IPC against accused Firdaus and Vakila however, prosecution failed to prove the case for the offence u/s 364A IPC against all the accused. Accordingly, accused Hamid, Sabir and Rashid are held guilty for the offence u/s 302/363/201/34 IPC and accused Firdaus and Vakila held guilty for the offence u/s 201/34 IPC. Let they be heard on the point of 101/118 102 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS sentence on 06.09.2011.
ANNOUNCED IN OPEN COURT (B.S. CHUMBAK)
DATED 3rd SEPTEMBER 2011 ASJ-3 (NORTH-EAST)
KKD/DELHI
FIR NO.:76/07
PS NEW USMANPUR
03.09.2011
Present: Sh. S.K. Dash Ld. Addl. PP for state.
Accused Hamid and Rashid are in JC.
102/118
103
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS Accused Firdaus, Vakila and Sabir are present on bail. Sh. Abdul Sattar amicus curiae on behalf of accused Hamid, Vakila, Rashid and Firdaus.
Sh. Sanjay Gupta Advocate on behalf of accused Sabir. Vide separate detailed judgment accused Hamid, Sabir and Rashid are held guilty for the offence u/s 302/363/201/34 IPC and accused Firdaus and Vakila held guilty for the offence u/s 201/34 IPC. Accused Firdaus and Vakila be taken into custody. Let they be heard on the point of sentence on 06.09.2011.
(B.S. CHUMBAK) ASJ-3 (NORTH-EAST) KKD/DELHI/03.09.2011 103/118 104 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS IN THE COURT OF SH. B.S. CHUMBAK: ADDL. SESSIONS JUDGE-3 (North East): KARKARDOOMA : DELHI SC No. 91/08 FIR NO. 76/07 PS New Usman Pur U/S 302/363/201/120B/34 IPC STATE VS HAMID ETC.
Present: Sh. S.K. Dass Ld. Addl. PP for state.
Convicts Hamid, Vakila, Rashid, Firdos and Sabir produced from in JC.
Sh. Sanjay Gupta Advocate on behalf of convict Sabir Sh. Abdul Sattar Adv./Amicus Curiae on behalf of convicts Hamid, Vakila, Rashid and Firdos.
ORDER ON SENTENCE
1. I have heard the arguments on behalf of Ld. Addl. P.P for State as well as ld. Counsels on behalf of the convicts on the point of quantum of sentence.
2. Ld. counsel on behalf of convict Hamid, Rashid, Vakila and Firdos 104/118 105 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS pleaded that convict Firdos is the mother of convicts Hamid and Rashid , convict Vakila is the wife of convict Rashid and daughter in law of convict Firdos and all the convict Hamid, Rashid, Vakila and Firdos are aged about 21 years, 42 years, 40 years, 70 years respectively. They all belongs to the same family. Convict Rashid and Vakila both are husband and wife having three minor children and these are the only person in the family to look after the interest of their minor children and requested for taking lenient view on the point of sentence.
3. It is further pleaded that all the convicts namely convicts Hamid, Rashid, and Vakila are of young age and convict Firdos is an old aged lady and after their sentence to imprisonment , there will be no person in the family to look after their minor children as well as their family affairs and requested for giving them the benefit of section 360 Cr.P.C r/w section 3 & 4 of Probation of Offenders Act.
4. Ld. counsel on behalf of accused Sabir pleaded that he is young person aged about 25 years old and has to support his old aged 105/118 106 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS mother and one unmarried sister. Convict Sabir is the sole bread earner in his family and requested for taking lenient view on the point of accordingly.
5. It is further pleaded that during whole trial convicts Hamid and Rashid remained in jail, convict Firdos remained in jail till January 2008, Wakila remained in jail till February 2008 and Sabir also remained in jail till March 2008 with effect from their date of arrest, and requested for awarding the benefit u/s 428 of Cr.P.C as well as to sentence them for the term of imprisonment for which they had already undergone.
6. It is further pleaded that none of the convicts are the habitual offender and have suffered a lot while appearing before the court from the jail. During the period they appeared before the court their conduct remained unblemished and no proof of any previous involvement of any of the convict in any criminal case is brought on record during the trial before this court and requested for taking lenient view on the point of sentence while granting the benefit of section 360 Cr.P.C r/w 106/118 107 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS section 3 & 4 of Probation of Offenders Act.
7. Ld. counsel on behalf of convicts further pleaded that the present case is solely based on the disclosure statement of accused persons and there is no direct evidence of committing the murder of deceased Kasim Alam @ Rahil is placed on record. It is further pleaded that the present case is also based on the circumstantial evidence and does not fall within category of rarest of rare cases and placed his reliance on a decided cases reported as "ASHOK KUMAR PANDEY VS STATE OF DELHI 2002 (1) JCC 526" AND BABU S/O RAVEENDRAN VS BABU S/O BAHULEYAN AND ANOTHERS 2003(3) JCC 1290" and requested for taking lenient view on point of sentence.
8. Ld. counsel on behalf of convict Vakila and Sabir further pleaded that there is no evidence against the convicts except the disclosure statements of other co-accused persons and requested for releasing both the convicts on probation of Good Conduct only on this sole ground.
107/118 108
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS
9. Ld. counsel on behalf of convicts Firdos and Vakila pleaded that as per prosecution version they both have not taken part in killing the innocent child however, the role attributed to convict Firdos is that she was directed to stand on the roof of the house and role attributed to convict Vakila is that she was directed to watch while standing at the door of the house where the innocent child was killed. Further the role as per prosecution were attributed to both these convicts is causing disappearance/removal of the dead body of the deceased while keeping in gunny bag, therefore, requested for taking lenient view against them on point of sentence.
10.On the contrary Ld. Addl. PP for state argued that the deceased was innocent child of about ten years old. He was taken away by the convicts Hamid and Sabir at the house of convicts on the pretext of playing with him. When he/child resisted for going to his house, co- accused Hamid put cloths in the mouth of the deceased so that he could not raise alarm at the time of killing him and the other convicts Sabir landed four screw driver/Pachcus blows in a forceful manner on 108/118 109 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS the head of innocent child and each of the said blow is sufficient to cause the death of child individually as opined by the doctors who conducted the postmortem on the dead body of the deceased child. The aforesaid act of the convicts on the face of it appears to be cruel, barbaric thereby it is established that the murder committed is an extremely brutal and dastardly manner and is well covered within the category of rarest of rare case. It is further pleaded that on perusal of the four external antimortem injuries described by the doctor out of those three injuries are on parital region and one injury is on right temporal region I.e on the vital part of the body. All injuries were opined as irregular in shape and caused by penetrating blunt edged weapon and each injury is independently sufficient to cause the death in the ordinary course of nature. It was also opined that there was found depressed fracture on underline bone due to each injuries. In view of the nature of injuries, the acts of the convicts is covered within the category of rarest of rare cases for the purpose of awarding sentence and also placed his reliance on a decided on a decided case cited as 'Bachan Singh Vs. State of Punjab (1980) 2 SCC 684 and Machhi Singh and Ors. Vs. State of Punjab (1983) 109/118 110 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS 3 SCC 470' wherein the following illustrations of murders which fall within the category of rarest of rare cases and deserves death penalty were given which are as follows:
i) When the murder is committed in an
extremely brutal, grotesque, diabolical,
revolting or dastardly manner so as to
arouse intense and extreme indignation of
the community.
ii) When the murder is committed for a motive which evinces total depravity and meanness;
e.g murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course of betrayal of the motherland.
iii)When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of bride-burning "or dowry deaths"
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FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS or when murder is committed in order to remarry for the sake of extracting dowry once again to marry another woman on account of infatuation.
iv)When the crime is enormous in proportion.
For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
v) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."
11.In Bachan Singh's case the Constitution bench observed that the death penalty contemplated by Section 302 IPC is not unreasonable and is not against the public interest and it does not violate Articles 19 or 21 of the IPC. In the same decision it was also observed that judicial discretion cannot be fettered by attempting to make an 111/118 112 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS exhaustive enumeration by one way or the other. Hence, it follows that five principles referred to in Aloke Nath Dutta's case justifying award of death penalty can only be treated as illustrative and not exhaustive.
12.In Holiram Bordoloi Vs. State of Assam 2005 (3) SCC 793 it is held as under:
"that pre-planned, calculated, cold-
blooded murder has always been regarded as one of an aggravated kind. A murder diabolically conceived and cruelty executed would justify the imposition of the death penalty on the murderer."
13.Ld. Addl. PP for the state further pleaded that at the time of granting sentence the conduct and motive to commit the crime is to be seen and in the present case during the course of investigation all the convicts attempted to mislead the investigating agency on the mode of procedure followed by them to kill the innocent child. It is also brought on record that the innocent child was killed in the intervening 112/118 113 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS night of 2/3-3-2007 and a call was made by the convict on 9/3/2007 on the telephone of father of deceased and on that day also the convicts gave false information with regard to the presence of innocent child in a Maruti Van at Indra Vihar, thereby it is established that it is not a fit case to take lenient view on point of sentence.
14.In view of the contentions of Ld. Counsel for both the parties I also have gone through the observations given by their lordships in the aforesaid decided cases and analyzed the established circumstances in this case wherein it transpires that admittedly all the convicts were of young age at the time of commission of offence, except convict Firdos, however she was an old lady. It is also established that no eye witness was produced by the prosecution and the case is solely based on the disclosure statement of the co-accused /accused, last seen witness and the discoveries of the facts pursuant to the disclosure statements, therefore, in view of the aforesaid circumstances I am of the considered view that this case does not fall within the category of rarest of rare cases. But on the contrary the manner and the circumstances under which the innocent child was 113/118 114 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS killed I am also of the considered view that it is not a fit case to release the convicts on Probation of Good Conduct.
15.Before awarding sentence to convict Firdos and Vakila I carefully perused the provisions of Section 201 IPC which reads as under:
"Causing disappearance of evidence of offence, or giving false information to the screen offender -
Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment or with that intention gives any information respecting the offence which he knows or believes to be false.
If a capital offence- shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;114/118 115
FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS If Punishable with Imprisonment for life-
and if the offence is punishable with imprisonment for life or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
If Punishable with less than ten year's imprisonment- and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both."
16.In view of the aforesaid discussion I hereby sentenced the convicts namely Hamid, Rashid and Sabir for a term of RI for life and to pay a fine of Rs.5000/- each in default of payment of fine they shall further undergo SI for six months for the offence punishable u/sec. 302/34 115/118 116 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS IPC. They are further sentenced for a term of RI for three years and to pay a fine of Rs.3000/- each and also in default of payment of fine they all shall undergo SI for three months for the offence u/s 363/34 IPC . They all are further sentenced for a term of RI for three years and to pay fine of Rs.3000/- each in default of payment of fine they shall further undergo SI for three month for the offence u/s 201/34 IPC. All the sentences shall run concurrently. Convict Firdos and Vakila are hereby separately sentenced for a term of RI for three years and to pay a fine of Rs.3000/ each in default of payment of fine further SI for three month for the offence u/s 201/34 IPC. Fine not paid.
17.Benefit of Section 428 Cr.P.C shall be given to the convict as per law. Copy of the judgment and this order be given to the convicts free of cost. File be consigned to Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 6th Day of September 2011 116/118 117 FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS FIR NO. 76/07 PS New Usman Pur U/S 302/363/201/120B/34 IPC STATE VS HAMID ETC 06.09.2011 PRESENT : Sh. S.K Dash, Ld. Addl.PP for the state.
All the five convicts produced from J/C. Sh. Sanjay Gupta Advocate on behalf of convict Sabir. Sh. Abdul Sattar Adv./Amicus Curiae on behalf of convicts Hamid, Vakila, Rashid and Firdos.
Arguments on the quantum of sentence heard.
Vide separate order convicts namely Hamid, Rashid and Sabir are hereby sentenced for a term of RI for life and to pay a fine of Rs.5000/- each in default of payment of fine they shall further undergo SI for six months for the offence punishable u/sec. 302/34 IPC. They are further sentenced for a term of RI for three years and to pay a fine of Rs.3000/- each and also in default of payment of fine they all shall undergo SI for three months for the offence u/s 363/34 IPC . They all are further sentenced for a term of RI for three years and to pay fine of Rs.3000/- each in default of payment of fine they shall further undergo SI for three month for the offence u/s 201/34 IPC. All the sentences shall run concurrently. Convict Firdos and Vakila are hereby separately sentenced for a term of RI for three years and to pay a fine of Rs.3000/ each in default of payment of fine further SI for three month for the offence u/s 201/34 IPC. Fine not paid.
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FIR NO. 76/07, P.S NEW USMANPUR, ST. VS HAMID & ORS Benefit of Section 428 Cr.P.C shall be given to the convict as per law. Copy of the judgment and this order be given to the convicts free of cost. File be consigned to Record Room.
ASJ-3 NE DISTT. KKD/DELHI 06.09.2011 118/118