Delhi District Court
Sc No.44761/2015: State vs Bijender @ Naushad Kobra @ Mulla & Ors.: ... on 20 September, 2021
SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE03:
(NORTHEAST): KARKARDOOMA DISTRICT COURTS: NEW DELHI
TEN YEARS' OLD CASE
44761/2015
Sessions Case No.
State V/s Bijender @ Naushad Kobra @ Mulla & Ors.
Under Section 365/302/201/34 IPC
PS Gokalpuri
FIR No. 142/2010
1. Bijender @ Naushad Kobra @ Mulla,
Aged about 42 years,
S/o Shri Banarasi Dass,
R/o Mohalla Subzi Mandi, Kotla, Kotla,
Behind Gurudwara Ghanta Ghar, PS Delhi Gate, Meerut,
Uttar Pradesh.
Present Address:
House No.921, Tarowali Gali No.2, Sangam Park, Mehrishi Garden,
BFG, Khoda Colony, Ghaziabad, Uttar Pradesh.
2. Pawan,
Aged about 45 years,
S/o Shri Kalyan Dutt,
R/o Village Aliyabad, PS Dilari, District Moradabad, Uttar Pradesh.
Present Address:
State V/s House of Sunil Chaudhary, Village Ghoroli, PS Ghazipur,
Uttar Pradesh.
3. Taslim Ahmed @ Akram @ Bhai,
Aged about 50 years,
S/o Mohd. Zaki,
R/o House No.958, Gali Patna Wali Gali, Punjab Phatak,
Ballimaran, Delhi.
4. Salim @ Santosh @ Akram,
Aged about 38 years,
S/o Mohd. Aslam,
R/o Village Sental, PS Hafizganj, Disrict Bareilly, Uttar Pradesh.
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SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri
5. Akil @ Don, Expired and proceedings
S/o Shri Shahid Mohd. Javed, against him stood abated vide
R/o C25/28, Gali No.3, order dated 08.11.2012.
Chouhan Bangar, Seelampur, Delhi.
Date of institution of case : 26.08.2011
Date of hearing of final arguments : 09.09.2021
Date of pronouncement of judgment : 20.09.2021
JUDGMENT
BRIEF FACTS OF THE CASE:
The facts of the case in brief, as borne out from the record are that on 06.05.2010, complainant Smt.Sakeena, W/o Shri Saeed, r/o House No.B900/75, Gali No.5, Kabir Nagar, Delhi went to police station Gokalpuri and got recorded her statement to ASI Devraj to the effect that about six years back her son Shakeel @ Aman had got married with a girl named Soni and was blessed with two children from the said wedlock. She further stated that about two years back, her son Shakeel @ Aman again solemonized marriage with another girl/lady namely Renu, without telling/informing anybody in the family. Said Renu is the stepdaughter of accused Bijender @ Naushad @ Mulla and she was already married with accused Salim @ Santosh @ Akram, who at the relevant time had been running in judicial custody in a case of murder. She/complainant further stated that said Renu was also on talking terms with her first husband/accused Salim @ Santosh @ Akram. She further stated that on 09.04.2010, her son Shakeel @ Aman received a telephonic call from accused Pawan (who is the brotherinlaw/(jeeja) of Smt.Renu and sonin Page 2 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri law/(daamad) of accused Bijender @ Naushad @ Mulla) and since thereafter her son had not returned home. She raised suspicion that her son Shakeel @ Aman had been kidnapped/abducted by accused persons namely Bijender @ Naushad Kobra @ Mulla, Salim @ Santosh @ Akram and Pawan. On the basis of her aforesaid statement case FIR under Section 365 IPC was registered in the matter at police station Gokalpuri on 06.05.2010 against the aforesaid three accused persons.
2. During the course of investigation, extensive search for son of complainant namely Shakeel @ Aman was carried out and in this process wireless messages were flashed, hue & cry notices were published and letters were sent to CBI (Central Bureau of Investigation) and NCRB (National Crimes Record Bureau). On 12.05.2010, complainant produced a newspaper clipping of "Dainik Jagran" to IO/ASI Devraj through which it came to fore that accused Salim @ Santosh @ Akram had been arrested in case FIR No.119/2010, PS Geeta Colony. Accordingly, after taking his PC remand, said accused was arrested in the case in hand on 20.05.2010 and his disclosure statement was recorded. The CDR details of son of complainant were analyzed, however, his whereabouts could not be traced. In the meantime, accused Salim @ Santosh @ Akram stood enlarged on bail vide order dated 15.01.2011.
3. (i) Thereafter, about lapse of one year, pursuant to receipt of specific secret information, two accused persons namely Bijender @ Naushad Kobra @ Mulla and Pawan were arrested by Special Cell of Delhi Police on 27.04.2011, in a Kalandra filed under Section 41.1(a) Cr.P.C ( DD No.23). Both the said accused persons vide their respective disclosure statements recorded in the said Kalandra, admitted their involvement in kidnapping/abduction and murder of son of Page 3 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri complainant . They also named accused persons namely Mohd. Akil @ Don, Salim @ Santosh @ Akram and Taslim Ahmed @ Akram @ Bhai as their accomplice in the said crime. Accused Bijender @ Naushad Kobra @ Mulla in his disclosure statement stated that he and his soninlaw, i.e accused Salim @ Santosh @ Akram were very upset with the son of complainant for having married Renu and as such they hatched a plan to eliminate him. Accordingly, on 09.04.2020, all the accused persons had gathered at his rented room at Khajuri Khas and called son of complainant there, who reached there on his motorcycle bearing Regn. No.DL7SY/5492. Accused Bijender @ Naushad Kobra @ Mulla further disclosed that as soon as the son of complainant entered his room, accused Akil @ Don caught hold of him and accused Taslim Ahmed @ Akram @ Bhai fired upon him from his pistol, while accused Salim @ Santosh @ Akram slit his throat with knife and thereafter they put his dead body in a plastic bag and threw it in a ganda nala near Tukmirpur puliya. He further stated that for disposing off the dead body of Shakeel @ Aman they had used two motorcycles, i.e his motorcycle and motorcycle of deceased bearing Regn. No.DL7SY/5492.
(ii) On the basis of aforesaid disclosure statements made by accused persons Bijender @ Naushad Kobra @ Mulla and Pawan, both were arrested in the matter on 28.04.2011 and sections 302/201/34 IPC were accordingly "added". During the course of investigation, at their instance, the motorcycle (bearing Regn.No.DL7SY5492) of Shakeel @ Aman (hereinafter referred to as "deceased") was also recovered. During the course of further investigation, site plans in the matter were prepared, statements of witnesses were recorded, extensive search for recovery of dead body of the deceased was carried out in the ganda nala by roping JCBs and divers, but in vain. Even the pistol/gun used in the commission of crime in the case in hand could not be recovered. Search for the remaining two Page 4 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri accused persons was also intensified.
4. (i) Thereafter, pursuant to receipt of another secret information, accused Taslim Ahmed @ Akram @ Bhai was arrested by Special Cell of Delhi Police on 02.05.2011, in a Kalandra filed under Section 41.1(a) Cr.P.C, in terms of DD No.25, wherein he also disclosed similar facts. Accordingly, arrest of accused Taslim Ahmed @ Akram @ Bhai was effected in the matter on 03.05.2011.
(ii) The whereabouts of fifth accused namely Akil @ Don could not be ascertained by that time, as he remained absconding and accordingly proceedings under Section 82 Cr.P.C were initiated against him. In the meantime, pursuant to secret information, accused Akil @ Don was arrested by Special Cell of Delhi Police on 19.10.2011 from Kardampuri puliya, Delhi, in a Kalandra filed under Section 41.1(a) Cr.P.C ( DD No.26), wherein he also disclosed about his involvement in the matter. Accordingly, his formal arrest was effected in the matter on 20.10.2011.
(iii) After completion of investigation, all the accused persons stood chargesheeted for offences punishable under Section(s) 365/302/201/34 IPC.
5. Since offence under Section 302 IPC is exclusively triable by the Court of Sessions, therefore, learned Metropolitan Magistrate (NorthEast) vide order dated 23.08.2011 committed the instant case to this Court. After hearing arguments on charge and finding prima facie material against the accused persons, my learned Predecessor vide order dated 01.03.2012 framed charge(s) under Sections 365/302/201/120B IPC against accused persons namely Bijender @ Naushad Kobra @ Mulla, Pawan and Salim @ Santosh @ Akram; while charge(s) under Section(s) 302/201/120B/34 IPC were framed against other two accused persons Page 5 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri namely Taslim Ahmed @ Akram @ Bhai and Akil @ Don, to which they pleaded not guilty and claimed trial.
6. (i) It is pertinent to mention here that during the course of recording of evidence of PW2, Smt.Sakeena (mother of deceased), accused Akil @ Don had expired. Accordingly, the proceedings against him stood abated vide order dated 08.11.2012.
(ii) In order to bring home the guilt of accused persons, prosecution examined as many as fifteen (15) witnesses, whereafter PE in the matter was closed vide order dated 13.12.2018 and statements of accused persons (except accused Akil @ Donsince expired) under Section 313 Cr.P.C were recorded; wherein they claimed themselves to be innocent and having been falsely implicated in the matter by the investigating agency. Accused Salim @ Santosh @ Akram categorically stated that he has been falsely implicated in the matter by police at the instance of complainant Smt.Sakina (mother of deceased). Only accused Pawan expressed his willingness to lead defence evidence in the matter. However, despite repeated opportunities he did not lead any defence evidence and instead on 30.01.2020, learned Amicus Curiae, Ms.Trilochana, Advocate got her statement recorded in Court on behalf of accused Pawan regarding not leading any evidence in defence and consequently seeking closure of DE. Accordingly, vide order dated 30.01.2020, DE in the matter was closed.
7. (i) I have heard arguments advanced at bar by Shri S.K Tripathi, learned Additional PP for the State; Mohd. Hassan, Advocate, learned Amicus Curiae for accused Bijender @ Naushad Kobra @ Mulla; Ms.Trilochna, Advocate, learned Page 6 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri Amicus Curiae for accused Pawan; Shri A.A Khan, Advocate, learned counsel for accused Taslim Ahmed @ Akram @ Bhai; and Shri Abdul Shamim Khan, Advocate, learned counsel for accused Salim @ Santosh @ Akram. I have also gone through the written synopsis/arguments filed on behalf of accused Salim @ Santosh @ Akram.
(ii) It is pertinent to mention here that after hearing extensive final arguments from both the sides for two consecutive dates, i.e on 08.09.2021 and 09.09.2021 and the matter being notified for judgment, an application under Section 311 Cr.P.C was preferred by the prosecution, inter alia seeking permission to examine wife of deceased namely Smt.Renu, who admittedly had never been cited as witness by the prosecution. Be that as it may, the said application was dismissed by this Court vide detailed order dated 09.09.2021.
(iii) Before adverting to adjudication upon the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter which is as under.
Evidence recorded in the matter
8. The evidence recorded in the matter/witnesses examined can be broadly classified under four categories, i.e:
(a) Public witnesses;
(b) Witnesses of investigation and;
(c) Formal witnesses.
Public witnesses
9. (i) PW1, Sukhpal, S/o Shri Asha Ram is the owner of house, situated in
Mandirwali Gali, Village Khajuri, Delhi. He in his evidence stated that in the year Page 7 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri 2010, he had rented out four rooms in his said house to accused Bijender @ Naushad Kobra at a monthly rent of Rs.1,000/. He further stated that the said accused had evicted his tenanted room in the second week of April' 2010 and he was a rickshaw puller by profession. He further stated that police officials had taken photographs of the floor and walls of that room, however, no person was brought by them in their custody to the said room.
(ii) Thereafter, this witness was declared "hostile" by the prosecution and thoroughly crossexamined by learned Addl. PP. In his crossexamination by learned Addl.PP, he stated that police had recorded his statement on 22.04.2010. He further stated that accused Bijender @ Naushad Kobra had evicted the tenanted room of his house on 10.04.2010, that too without informing him. He further stated that police officials of PS Gokalpuri had visited his said house with accused Bijender @ Naushad Kobra on 29.04.2011. He further stated that accused Pawan used to visit the tenanted room of accused Bijender @ Naushad Kobra.
(ii) In his crossexamination by the defence, he could not produce any documents of tenancy. He stated that at the time when police had visited his house with accused Bijender @ Naushad Kobra, no other public witness was present there.
10. (i) PW2, Smt.Sakeena, W/o Shri Sayeed, is the complainant and mother of deceased Shakeel @ Aman. She in her evidence stated that in the year 2010, she alongwith her family had been putting up at House No.B900/75, Gali No.5, Kabir Nagar, Delhi while her deceased son (Shakeel @ Aman) alongwith his first wife Smt.Soni was residing in Vijay Park, Delhi and his second wife Smt.Renu was residing at Chand Bagh, Delhi. She further stated that her deceased son had married Ms.Renu two years prior to the date of incident without her knowledge.
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(ii) She correctly identified accused persons namely Salim @ Santosh @ Akram, Bijender @ Naushad Kobra and Pawan as previous husband, stepfather and brotherinlaw (jeeja) respectively of Smt.Renu. She further stated that all the aforesaid three accused persons were known to her even prior to the date of incident, as they were on visiting terms with Smt.Renu and her deceased son.
(iii) She further stated that on 09.04.2020, at about 8.30 PM, her deceased son had received a telephonic call from accused Pawan and thereafter he went to meet accused Pawan on his silver colour Freedom motorcycle bearingRegn.No.5492. The RC of said motorcycle has been proved on record as Ex.PW2/A (OSR). She categorically stated that her deceased son (Shakeel @ Aman) went with accused Pawan and Bijender @ Naushad Kobra upon his motorcycle in her presence and thereafter he did not return either to her house or the houses of his wives. She made extensive search of her son and even called him on his mobile phone, however, the same was found switched off. She further stated that on 13.04.2010, she made call at number 100 and told that her son had been taken away by aforesaid three accused persons; the PCR officials advised her to approach police station Gokalpuri. Accordingly, she visited PS Gokalpuri several times, but to no avail. She further stated that pursuant to directions issued by the O/o DCP (NorthEast), on 06.05.2010 her statement (Ex.PW2/B) was recorded in the matter as PS Gokalpuri, wherein she categorically named the aforesaid three accused persons who had taken away/kidnapped her son. She further stated that after about one year of the incident, she came to know about arrest of accused Bijender and Pawan by the officials of Crime Branch and recovery of motorcycle of her deceased son at their instance. She further came to know that her son had been murdered/killed by the said accused persons with help of accused persons namely Page 9 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri Taslim Ahmed and Akil @ Don. She also identified accused persons namely Taslim Ahmed and Akil @ Don, as they were on visiting terms in her mohalla. She categorically stated that her son Shakeel @ Aman was killed/murdered by the accused persons as he had married Renu. She identified the motorcycle of her deceased son as Ex.P1.
(iv) This witness was thoroughly crossexamined by the defence. In her crossexamination by learned defence counsel(s), she admitted that she had not stated to the police in her statement (Ex.PW2/B) that accused Pawan and Bijender @ Naushad Kobra had taken her son on their motorcycle in her presence. In this regard, she clarified that accused Pawan had telephonically called her son and thereafter her son did not return. She further stated that accused persons had not taken her son on their motorcycle in my presence. She denied the suggestion that she had lodged a false complaint against the accused persons.
11. (i) PW7, Mohd. Sayeed, S/o Shri Munni is the father of deceased. He in his evidence stated that on 09.03.2010, at about 8.00/8.30 PM, his son Shakeel @ Aman had visited their house as his wife (PW2) was not feeling well. He further stated that at that time his son was residing separately with his wife Smt.Renu in a rented accommodation at Chand Bagh, Delhi. He further stated that in the meantime, his son received a phone call from accused Pawan and thereafter he immediately left their house. He further stated that three days thereafter, his wife/PW2 received a phone call from Renu regarding mobile phone of deceased not responding despite several calls made to it and accordingly he alongwith his wife Page 10 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri went to the rented accommodation of his son, where his room was found closed. Accused Bijender @ Naushad Kobra and Pawan were also found present there, but they feigned ignorance in the matter. Thereafter, he made a call at number 100 and PCR van came there, however, on seeing PCR accused Pawan and Bijender fled therefrom by jumping from the back side of the premises.
(ii) Thereafter, this witness was declared "hostile" and crossexamined by learned Addl. PP. In his crossexamination by learned Addl. PP, he denied the suggestion that on 09.04.2010, his daughterinlaw Renu had informed him about accused Bijender @ Naushad Kobra and Pawan making a telephonic call to deceased and thereafter taking him on motorcycle No.DL7SY/5492. In this regard, this witness was even confronted with his statement recorded under Section 161 Cr.P.C (Ex.PW7/A). He further denied the suggestion that he had pointed his suspicion towards accused persons namely Pawan, Bijender and Salim of being involved in the murder of his deceased son.
(iii) In his crossexamination by the defence, this witness admitted that two criminal cases were pending against his son; however, he denied the suggestion that his son was having inimical terms with anybody.
12. (i) PW10, Smt.Nagina, W/o Shri Afzal is the "Bhaanji" of deceased. In her examinationinchief, she has not stated a word about the incident in question. Accordingly, she was declared "hostile" and thoroughly crossexamined by the learned Addl. PP. In her crossexamination by learned Addl. PP, she denied the contents of her statement recorded under Section 161 Cr.P.C by the police (Ex.PW10/PA) in toto and accordingly she was thoroughly confronted with her said statement.
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(ii) Despite according due opportunity, this witness was not cross examined by the defence.
Witnesses of investigation
13. (i) PW6, Inspector Vinay Tyagi, who at the relevant time was lying posted in Special Cell, Lodhi Colony, in his evidence stated that on 27.04.2011, Inspector Vivek Tyagi received a secret information about the involvement of accused persons namely Pawan, Bijender @ Naushad Kobra @ Mulla in the present case and they coming to meet their associate near Kondli Pul between 2.304.00 PM. The said information was recorded vide DD No.15 and a raiding party comprising himself, Inpsector Vivek Tyagi, SI Yudhveer Singh, WSI Jai Shree, secret informer and other staff was constituted which stationed themselves at the designated spot. He further stated that 45 passers by were asked to join investigation, but none agreed and went away from the spot after citing genuine excuses. At about 3.10 PM, both the said accused persons were found coming from the side of Kondli, both of whom were apprehended at the instance of secret informer and brought to the O/o Special Cell, where they made disclosure statement(s) regarding their involvement in the present case. Their disclosure statements have been proved on record as Ex.PW6/A and Ex.PW6/B. Both the said accused persons were arrested under Section 41.1(a) Cr.p.C vide arrest memos Ex.PW6/C and Ex.PW6/D and their personal search conducted vide Ex.PW6/E and Ex.PW6/F. He further stated that thereafter, both the accused persons remanded to judicial custody by preparing Kalandra Ex.PW6/G.
(ii) In his crossexamination by the defence, he stated that both the said accused persons were arrested from a public place, however, no public witness was Page 12 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri joined while effecting their arrest. In this regard, this witness volunteered that he had tried to join public witnesses after apprehending the accused persons, but none agreed.
14. (i) PW8, Constable Jai Prakash in his evidence stated that on 29.04.2011, he had joined the investigation of present case with Inspector Karan Singh Rana/PW13. He further stated that two accused persons namely Bijender @ Naushad Kobra and Pawan were already under police custody and he has proved on record their disclosure statements as Ex.PW8/A and Ex.PW8/B. He further stated that thereafter both the said accused persons led them to Mandir Wali Gali, Khajuri Khas, where they had committed murder of deceased and they also pointed out the Ganda Nala, Tukmir puliya in which they had thrown his dead body. The pointing out memos in this regard have been proved on record as Ex.PW8/C and Ex.PW8/D.
(ii) He further stated that on 30.04.2011 he again joined the investigation of case and he alongwith Inspector Karan Singh Rana/PW13, Constable Kuldeep, ASI Devraj and both the accused persons went to ganda nala to search the dead body of deceased. Divers were also called, but the dead body of deceased could not be found/traced. Thereafter, the motorcycle belonging to deceased, bearing Regn. No.DL7SY5492 was recovered at the instance of accused Pawan and same was seized vide seizure memo Ex.PW8/E. The said motorcycle of deceased has been proved on record Ex.P1.
(iii) In his crossexamination by defence, he stated that no public witness was joined in the matter, despite Mandir Wali gali being thickly populated. He further stated that no site plan qua the ganda nala was prepared. He denied the suggestion that thumb impressions and signatures of both the said accused persons Page 13 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri were taken on blank papers and thereafter same were used for recording their disclosure statements. He further denied the suggestion that he did not join the investigation of case. He stated that the seizure memo of motorcycle was prepared in the police station.
15. (i) PW11, Inspector Yudhbir Singh was lying posted at Special Cell, New Delhi Range Office, Lodhi Colony at the relevant time. He in his evidence stated that on 02.05.2011, Inspector Vivek Tyagi received a secret information that accused Taslim Ahmed would come near Golcha Cinema, Daryaganj at about 5/5.30 PM. Accordingly, a raiding party consisting of himself, Inspector Vivek Tyagi, SI Vinay Tyagi, HC Pradeep and other staff members was constituted and the same reached Golcha Cinema at about 4.00 PM. He further stated that Inspector Vivek Tyagi asked 45 public persons to join investigation, but none agreed and left the spot after citing genuine excuses. At about 5.05 PM, accused Taslim Ahmed came near Golcha Cinema and he was apprehended at the instance of secret informer, who admitted about his involvement in the present case. He further stated that thereafter accused Taslim Ahmed was arrested, his disclosure statement recorded and personal search conducted. The relevant memos in this regard have been proved on record as Ex.PW11/A, Ex.PW11/B and Ex.PW11/C. He further stated that on the next day accused was produced before Court after preparing Kalandra Ex.PW11/D. DD Nos.15 and 25 regarding their departure and arrival have been proved on record as Ex.PW11/E and Ex.PW11/F.
(ii) In his crossexamination by defence, this witness stated that Inspector Vivek Tyagi did not serve any notice to the public persons who had refused to join investigation. Even no shopkeeper from the market or any employee of Golcha Page 14 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri Cinema was asked to join investigation.
16. (i) PW12, Inspector Jai Bhagwan in his evidence stated that on 04.05.2011, the investigation of present case was handed over to him by the directions of SHO/Inpsector Karan Singh Rana. He alongwith ASI Devraj, Constable Abdul and accused Taslim went to house of Sukhpal/PW1, where accused Taslim pointed out towards the room where he had committed murder of deceased. The pointing out memo in this regard has been proved on record as Ex.PW12/A. He further stated that accused also pointed out the place at Tukhmirpur puliya ganda nala, near PTC where they had thrown the dead body of deceased. The pointing out memo in this regard has been proved on record as Ex.PW12/B. He duly identified accused Taslim in Court.
(ii) In his crossexamination by defence, this witness stated that he did not collect any documents qua ownership and possession of said house from Sukhpal/PW1. He denied the suggestion that he did not visit the aforesaid two places with accused Taslim Ahmed.
17. (a) PW13, Inspector Karan Singh Rana in his evidence stated that on 29.04.2011, he was lying posted as SHO, PS Gokalpuri. He further stated that pursuant to disclosure statements made by accused persons namely Bijender @ Naushad Kobra and Pawan, section 302 IPC was added in the matter by ASI Devraj on 28.04.2011. He further stated about having interrogated the accused persons and recovery of motorcycle (bearing Regn.No.DL7SY/5492) at their instance. He has proved on record eight photographs, pertaining to the rented room of accused Bijender @ Naushad Kobra, which were taken by him from his mobile phone as Page 15 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri Ex.PW13/A1 to Ex.PW13/A8; site plan of the place of murder, i.e tenanted room of accused Bijender as Ex.PW13/B; pointing out memo as already Ex.PW8/C and site plan of the ganda nala as Ex.PW13/C. He further stated that he tried his best to recover the dead body of deceased and pressed into service JCB machine and divers, however, the same could not be recovered. In his further deposition, he has stated about the arrest of remaining accused persons and investigation aspect of the case. The investigation carried out by him on various dates and details of documents proved on record is enumerated as under.
(i) Ten photographs depicting the diver, JCB machine at the Ex.PW13/D1 to nala in search of dead body of deceased Ex.PW13/D10
(ii) CD of videography containing proceedings carried out for Ex.PW13/E recovery of dead body of deceased
(iii) Site plan of the place from where motorcycle of deceased Ex.PW13/F was seized
(iv) Seizure memo of motorcycle of deceased Already Ex.PW8/E
(v) Copy of DD No.13B, dated 03.05.2011 recorded at PS Ex.PW13/G Gokalpuri, regarding information of arrest of accused Taslim Ahmed @ Akram @ Bhai by Special Cell
(vi) Arrest memo and disclosure statement of accused Taslim Ex.PW13/H and Ahmed @ Akram @ Bhai Ex.PW13/I
(vii) Statement of complainant Smt.Sakeena, dated Ex.PW13/J1 20.05.2010, recorded by ASI Devraj (since expired)
(viii) Certificate, dated 22.06.2011, issued under Section 65B Ex.PW13/J2 of Indian Evidence Act by him
(ix) Rukka, dated 06.05.2010, prepared by ASI Devraj Ex.PW13/J3
(x) Copy of DD No.24B, dated 28.04.2011 Ex.PW13/J4
(xi) Copy of DD No.13B, dated 03.05.2011 Ex,PW13/J5
(xii) Hue and Cry notice prepared by ASI Devraj Ex.PW13/J6
(xiii) Disclosure statement of accused Salim @ Santosh @ Ex.PW13/J7 Page 16 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri Akram, dated 20.05.2010, recorded by ASI Devraj
(xiv) CDRs of three mobile phone numbers (collected by ASI Ex.PW13/J8 Devraj)
(xv) Photograph of deceased with Smt.Renu (collected by Ex.PW13/J9 ASI Devraj) (xvi) Arrest memos of accused persons namely Bijender @ Ex.PW13/J10 and Naushad Kobra and Pawan, dated 28.04.2011 (prepared by Ex.PW13/J11 ASI Devraj) (xvii) Photocopy of RC of motorcycle of deceased bearing Ex.PW13/J12 Regn. No.DL7SY5492 (xviii) Motorcyle of deceased bearing Regn. No.DL7SY Ex.P1 5492
(b) This witness was thoroughly crossexamined by the defence. In his crossexamination by learned defence counsel(s), this witness stated that a total of three disclosure statements of accused persons namely Bijender @ Naushad Kobra and Pawan were recorded in the matter, one by Special Cell, second by ASI Devraj (since expired) and the third one by him. He further stated that no weapon of offence could be recovered from accused Bijender and Pawan during their police custody remand. He further stated that he had not obtained the signature of landlord (PW1) on the site plan of tenanted room. He further stated that he had asked public persons near Ganda Nala Tukmirpur puliya about the dead body of deceased, however, since it was an old incident, so their statements were not recorded in the matter. He admitted that site plan Ex.PW13/C does not bear signature of any public witness. He denied the suggestion that motorcycle (Ex.P1) was planted upon the accused persons after its recovery from the house of deceased. He further denied the suggestion that pointing out memo, recovery memo, site plans Page 17 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri etc. were prepared while sitting in the police station.
18. (i) PW14, HC Abdul Ahad Khan in his evidence stated that on 04.05.2011, he had joined the investigation of case with SI Jai Bhagawan/PW12 and ASI Devraj and at that time accused Taslim Ahmed @ Akram @ Bhai was already in the custody of ASI Devraj. The said accused led them to the rented residence of coaccused Bijender @ Naushad Kobra located in Mandir Wali Gali, Khajuri, Delhi, and pointed out the room where he alongwith other accused persons had committed murder of deceased and thereafter thrown his dead body in the ganda nala near Tukmirpur pulia. He further stated that accused Taslim Ahmed also led them to the said ganda nala, near Tukmirpur pulia. The pointing out memos of both the aforesaid places have been proved on record as Ex.PW12/A and Ex.PW12/B.
(ii) In his crossexamination by defence, he stated that IO had not prepared site plans of the rented room of accused Bijender @ Naushad Kobra and Tukmirpur pulia in his presence. He denied the suggestion that accused Taslim Ahmed @ Akram had not pointed out the places aforesaid or that he had not disclosed about his involvement in the present case. He further denied the suggestion that accused Taslim Ahmed @ Akram had not made any disclosure statement in the matter or that he had not joined the investigation of the case. He, however, stated that no recovery was effected from accused Taslim Ahmed @ Akram in his presence. He further stated that he had not joined investigation qua accused Pawan.
19. (i) PW15, Inspector Surender Kumar in his evidence stated that on 28.04.2011, ASI Devraj informed him two accused persons namely Bijender @ Page 18 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri Naushad Kobra and Pawan had already been arrested in the matter, but not clue could be found regarding the dead body of deceased. He further stated that ASI Devraj had shown him the photocopy of complaint dated 17.04.2010, preferred by Smt.Renu, wife of deceased Ex.PW15/A (objected to by the defence on the mode of proof) and they had discussed the said complaint. He further stated that ASI Devraj had analyzed the CDRs of following mobile numbers:
(a) CDR of mobile phone 9958902260 (belonging to Ex.PW15/B1 to deceased Shakeel @ Aman) for the period from Ex.PW15/B1 (objected to 08.04.2010 to 14.06.2010 by the defence)
(b) CDR of mobile phone 9911294135 (belonging to Ex.PW15/C1 to deceased Shakeel @ Aman) for the period from Ex.PW15/C16 (objected 01.04.2010 to 25.05.2010 to by the defence)
(c) CDR of mobile phone 9310509537 (belonging to Ex.PW15/D1 to accused Pawan) for the period from 08.04.2011 to Ex.PW15/D11 (objected 14.06.2011 to by the defence)
(ii) He further stated that through the aforesaid CDR details, it came to fore that deceased and accused Pawan and other accused persons were in constant touch with each other. He further stated that ASI Dev Raj made efforts to trace out the body of deceased, but in vain. Thereafter, the investigation of the case was transferred to SHO/Inspector Karan Singh Rana.
(iii) In his crossexamination by defence, this witness stated that ASI Devraj had not prepared any document in the matter in his presence. He denied the suggestion that accused persons were not in touch with each other or with deceased at any point of time.
Page 19 of 46SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri Formal witnesses
20. (i) PW3, Dinesh @ Pappu, S/o Shri Maan Singh in his evidence stated that on 30.04.2011, he was called by SHO, PS Gokalpuri at Tukmirpur pulia with his JCB machine. He accordingly reached there at about 10.15 AM with his JCB machine bearing Regn. No.HR38J/4009 and searched for the dead body of deceased in ganda nala, but in vain. He further stated that his statement was recorded in the matter.
(ii) Despite according opportunity, this witness was not crossexamined by the defence.
21. (i) `PW4, Constable Rampal in his evidence stated that on 06.05.2010, on the directions of Duty Officer HC Shankar Lal, he had delivered rukka (Mark X) and copy of FIR (Mark Y) to ASI Devraj at Bhajanpura Chowk, Delhi. He further stated that he had joined the investigation of the case and ASI Devraj made efforts to search the abducted person, but no clue came forward on that day.
(ii) In his crossexamination, this witness stated that he went to the spot with copy of FIR on foot. The distance between PS and spot is about 1.5 KMs.
22. (i) PW5, Constable Munesh Kumar is the witness of arrest qua accused Salim @ Santosh @ Akram. He in his evidence stated that on 20.05.2010, he alongwith IO reached Court No.63, Karkardooma Courts, where accused Salim @ Santosh @ Akram was arrested by the IO vide memo Ex.PW5/A and his two days' police custody remand obtained. He further stated that after medical examination, accused was brought to PS Gokalpuri and sent to lockup.
Page 20 of 46SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri
(ii) In his crossexamination by defence, he denied the suggestion that IO did not make any enquiry from accused Salim @ Santosh @ Akram in his presence.
23. (i) PW9, Virender Kumar, Clerk from Transport Authority, Surajmal Vihar, East ZoneII, CBD Ground, Delhi has proved on record the authority letter issued by MLO (Motor Licensing Officer) Shri Rakesh Kumar, authorizing him to appear in Court as Ex.PW9/A. He further stated that as per record, motorcycle bearing Regn. No.DL7SY5492 (make LML Freedom) was lying registered in the name of Smt.Soni, wife of deceased, r/o House No.B14/77, BBlock, Kabir Nagar, Delhi94. Copy of vehicle particulars has been proved on record as Ex.PW9/B.
(ii) The defence did not crossexamine this witness despite according due opportunity.
24. This is all as far as prosecution evidence in the matter is concerned. As already stated in the opening paragraphs, since accused Akil @ Don stood expired during the course of recording of evidence in the matter, so only statements of remaining four accused persons were recorded in the matter under Section 313 Cr.P.C; wherein they claimed themselves to be innocent and having been falsely implicated in the matter by the investigating agency. Accused Salim @ Santosh @ Akram categorically stated that he has been falsely implicated in the matter by the police at the instance of complainant Smt.Sakina (mother of deceased). Only accused Pawan expressed his willingness to lead defence evidence in the matter. However, despite repeated opportunities he did not lead any defence evidence and instead on 30.01.2020, learned Amicus Curiae, Ms.Trilochana, Advocate got her statement recorded in Court on behalf of accused Pawan regarding not leading any evidence in defence and consequently seeking closure of DE. Accordingly, vide Page 21 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri order dated 30.01.2020, DE in the matter was closed.
Arguments advanced at bar
25. While opening the arguments, learned Additional PP for the State very vehemently argued that present case hinges entirely upon the "circumstantial evidence". It is submitted that though there is no direct evidence available against the accused persons qua kidnapping/abduction and consequent murder of deceased, however, from the material/evidence produced on record there are number of circumstances which are definite and of conclusive nature and tendency to prove the case of prosecution beyond reasonable shadow of doubt. The circumstances relied upon by the prosecution are as follows:
Page 22 of 46SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri Circumstance No.(i) PW2, Smt.Sakeena (mother of deceased) being a witness of "last seen alive" qua her deceased son, i.e the "last seen circumstance":
Elaborating the principle of "last seen theory", it is very strenuously emphasized that PW2, Smt.Sakeena (mother of deceased) is the witness to "last seen alive" qua her deceased son. In this regard, my attention has been drawn to her examinationinchief recorded in the Court on 21.05.2012, wherein she had categorically stated that pursuant to receipt of a telephonic call from accused Pawan on 09.04.2020, at about 8.30 PM, her deceased son had gone to meet him on his silver colour Freedom motorcycle bearing Regn.No.5492. She further stated that her deceased son (Shakeel @ Aman) had gone with accused Pawan and Bijender @ Naushad Kobra on his motorcycle from her house in her presence and thereafter he did not return either to her house or the houses of his wives. The relevant part of her examinationinchief, dated 21.05.2012 is reproduced hereunder, to quote:
xxxxx On 09.04.2010, at about 8.30 PM, my son Sakeel @ Aman had told me that he had received telephone call of accused Pawan. He told me that he is going to meet with accused Pawan. He took out his silver colour, Freedom motorcycle bearing reg.no.......5492.
xxxxx xxxxx My son Sakeel @ Aman was taken by accused Pawan Page 23 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri and Bijender by his motorcycle from my house in my presence. Thereafter, my son Sakeel @ Aman did not return to my house and houses of his wives.
xxxxx Circumstance No.(ii) Recovery of motorcycle of deceased pursuant to disclosure statement made by accused Bijender @ Naushad Kobra and Pawan:
It is very vehemently argued that motorcycle (make Freedom LML) bearing Regn. No.DL7SY5492, belonging to deceased had been recovered from the house of one Sunil Chaudhary, r/o village Dharoli, Ghazipur at the instance of accused persons namely Bijender @ Naushad Kobra and Pawan and same was seized vide seizure memo Ex.PW8/E, dated 30.04.2011. Seizure memo Ex.PW8/E duly bears the signature of accused Pawan Kumar.
Circumstance No.(iii) "Motive" for the commission of offence:
It is contended that deceased had married Renu, who is the stepdaughter of accused Bijender @ Naushad Kobra and wife of accused Salim @ Santosh @ Akram. When accused Salim @ Akram came out of jail, Renu refused to reside with him. On this account both the accused persons were very upset with the deceased and they accordingly hatched a plan to eliminate the deceased. As such, it is contended that both the said accused persons had a "strong motive" to commit murder of deceased and to fulfil said motive, they roped the other three accused Page 24 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri persons also.
Circumstance No.(iv) It is contended that when PW2 Smt.Sakeena and PW7 Mohd. Saeed (parents of deceased) visited the rented accommodation of deceased at Chand Bagh to enquire about his whereabouts, they found/noticed accused persons namely Bijender @ Naushad Kobra and Pawan present there, however, as soon as they made a call at number 100 and PCR van came at the spot, both the said accused persons fled from there by jumping over the back side of the premises.
Circumstance No.(v) The CDR detail of deceased and accused persons namely Pawan and Bijender @ Naushad Kobra reveals that they were in regular contact with each other at or around the relevant time. Reliance in this regard has been placed upon the evidence of PW15/Inspector Surender Kumar , whereby the CDR details of aforesaid three persons have been proved on record as Ex.PW15/B1 to Ex.PW15/B8; Ex.PW15/C1 to Ex.PW15/C16 and Ex.PW15/D1 to Ex.PW15/D11.
26. On the other hand, the arguments put forth by learned defence counsel(s) are summarized as under.
(a) Arguments advanced by Shri A.A Khan, Advocate learned counsel for accused Taslim Ahmed @ Akram @ Bhai:
(i) It is very vehemently argued that there are apparent contradictions in the evidence of PW2/Smt.Sakeena (mother of deceased) and PW7/Mohd.Page 25 of 46
SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri Sayeed (father of deceased) with regard to "last seen" and "taking away of deceased by accused persons namely Pawan and Bijender @ Nausahd Kobra on his motorcycle". It is submitted that PW2 in her examinationin chief recorded in Court on 21.05.2012 stated that her son (deceased) went with accused Pawan and Bijender @ Naushad Kobra on his motorcycle in her presence; however, in the same breath during her crossexamination, she categorically stated that accused persons had not taken her son on their motorcycle in her presence. Even in her statement (Ex.PW2/B) recorded by ASI Devraj, PW2 did not state a word that her son was taken away by both the said accused persons on his motorcycle in her presence. While PW 7/Mohd. Sayeed (father of deceased) in his examinationinchief did not state a word regarding he having seen his son going with the said accused persons on his motorcycle on 09.04.2010. He merely stated that pursuant to receipt of a telephonic call from accused Pawan regarding his wife returning to her parental house, he/deceased immediately left for his house. PW7 was even confronted on this account by learned Addl. PP with his statement recorded under Section 161 Cr.P.C Ex.PW7/A. PW7 even denied the suggestion of prosecution that he had ever raised suspicion upon accused persons namely Pawan, Bijender @ Naushad Kobra and Salim @ Santosh @ Akram of they having murdered his son.
(ii) There is delay in registration of FIR in the matter. The deceased allegedly went missing in the night of 09.04.2010, however, the case FIR in the matter was registered on 06.05.2010, i.e almost after delay of about one month and no cogent explanation in this regard has come from the side of prosecution.
Page 26 of 46SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri
(iii) There is no direct evidence available against the accused persons of they having abducted/kidnapped the deceased and consequently murdering him. There is no eye witness to the alleged incident of murder of deceased by the accused persons.
(iv) The dead body of deceased has not been recovered in the matter.
(v) There is no scientific evidence of any kind available on record against the accused persons to prove their involvement in the matter.
(b) Arguments advanced by Mohd. Hassan, Advocate, learned Amicus Curiae for accused Bijender @ Naushad Kobra @ Mulla:
(i) No weapon of offence has been recovered from the rented room of accused Bijender @ Naushad Kobra @ Mulla, where the deceased was allegedly murdered by the accused persons.
(ii) The dead body of deceased has not been recovered in the matter.
(iii) No eye witness of the alleged incident is available on record.
(iv) Ms.Renu, who admittedly is the stepdaughter of accused Bijender @ Naushad @ Kobra and wife of accused Salim @ Santosh @ Akram has not been examined in the matter. It is argued that it was only Renu who could have deposed about her alleged marriage with the deceased. On account of Page 27 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri her nonexamination in the matter, prosecution has failed to prove that deceased and Renu had married with each other. As such, the alleged "motive" for committing murder of deceased by accused persons has fallen flat on account of prosecution having failed to prove the marriage of deceased with Renu.
(v) No forensic analysis of the motorcycle of deceased (which was recovered after about one year of the alleged incident on 30.04.2011 vide seizure memo Ex.PW8/E) has been got done by the investigating agency to prove that accused persons had carried the dead body of deceased on said motorcycle to ganda nala at Tukmirpur pulia.
(vi) It is submitted that accused persons namely Bijender @ Naushad @ Kobra and Pawan were arrested by PW6/Inspector Vinay Tyagi of Special Cell under Section 41.1(a) Cr.P.C on 27.04.2011, pursuant to receipt of a secret information, however, the said secret information was neither reduced into writing nor the same was brought to the notice of higher officers. Thus, questions have been raised on the mode of arrest of said accused persons in the matter.
(vii) Initially the case FIR in the matter was registered under Section 365 IPC, meaning thereby that PW2 and PW7 had not raised needle of suspicion against anybody regarding the deceased having been murdered.
(viii) It is very strenuously contended that deceased himself was involved criminal activities and the said fact has been duly admitted by PW2 and PW Page 28 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri 7 in their respective crossexamination and it is quite possible that deceased might have been abducted and consequently murdered by any of his rival/enemy.
(c) Ms.Trilochna, Advocate, learned Amicus Curiae for accused Pawan and Shri Abdul Shamim Khan, Advocate, learned counsel for accused Salim @ Santosh @ Akram have advanced arguments on the similar lines.
(d) I have also gone through the written arguments filed on behalf of accused Salim @ Santosh @ Akram.
Legal position and conclusion
27. I have given thoughtful consideration to the arguments advanced at bar and carefully gone through the entire material on record, including the evidence recorded in the matter.
28. It is noteworthy here that there is no direct evidence available in the matter and the case propounded by prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his evidence.
29. The principles of circumstantial evidence have been reiterated by Page 29 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri Hon'ble Supreme Court in a plethora of cases. In case titled as, "Bodhraj @ Bodha And Ors. vs. State of Jammu & Kashmir", reported as, "(2002) 8 SCC 45", the Hon'ble Supreme Court has been pleased to lay down as under:
xxxxx "10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99, Eradu v. State of Hyderabad AIR 1956 SC 316, Earabhadrappa v. State of Karnataka (1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985) Suppl. SCC 79, Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P., 1989 Suppl. (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
xxxxx Page 30 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri
30. Furthermore, in case titled as, "Trimukh Maroti Kirkan V/s State of Maharashtra", reported as, "(2006) 10 SCC 681", the Hon'ble Supreme Court has further been pleased to lay down as under:
xxxxx "12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
xxxxx
31. I may, however, notice here the oft quoted passage from the decision of the Hon'ble Supreme Court rendered in case of "Hanumant V/s State of Madhya Pradesh", 1953 Crl.J 129 that:-
xxxxx It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done Page 31 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri by the accused."
xxxxx
32. It would also be useful to note down the five golden principles constituting the "Panchsheel" on appreciation of a case based on circumstantial evidence as laid down by the Hon'ble Supreme Court in case reported as, "AIR 1984 SC 1622", titled as, "Sharad Birdichand Sarda V/s State of Maharashtra", as follows:
xxxxx
152. xxxxx......
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(ii) 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;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved, and;
(v) 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.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
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154. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus deliciti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry (1952) NZLR 111, thus:
Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt :
the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.
155. Lord Goddard slightly modified the expression 'morally certain' by 'such circumstances as render the commission of the crime certain'.
156. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry's case (supra) was approved by this Court in Anant Chintaman Lagu v. State of Bombay MANU/SC/0043/1959 : 1960CriLJ682. Lagu's case as also the principles enunciated by this Court in Hanumant's case (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases --Tufail's c a s e: (1969)3SCC198 (supra). Ramgopal's case MANU/SC/0168/1971 :
1972CriLJ473 (supra). Chandrakant Nyalchand Seth v. State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19- 2-1958), Dharambir Singh v. State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4-11-1958). There are a number of other cases where although Hanumant's case has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration MANU/SC/0138/1973 : 1974CriLJ617 , Mohan Lal Pangasa v. State of U. P. MANU/SC/0425/1974 :
1974CriLJ800 , Shankarlal Gyarasilal Dixit v. State of Maharashtra MANU/SC/0211/1980 : 1981CriLJ325 and M. Page 33 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri G. Agarwal v. State of Maharashtra MANU/SC/0117/1962 : [1963]2SCR405 a five-Judge Bench decision. xxxxx xxxxx
175. This now brings us to the fag end of our judgment. After a detailed discussion of the evidence, the circumstances of the case and interpretation of the decisions of this Court the legal and factual position may be summarised thus:
(1) That the five golden principles enunciated by this Court in Hanumant's decision MANU/SC/0037/1952 : 1953CriLJ129 have not been satisfied in the instant case. As a logical corollary, it follows that it cannot be held that the act of the accused cannot be explained on any other hypothesis except the guilt of the appellant nor can it be said that in all human probability, the accused had committed the murder of Manju.
In other words, the prosecution has not fulfilled the essential requirements of a criminal case which rests purely, on circumstantial evidence.
(2) That, at any rate, the evidence clearly shows that two views are possible - one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium cyanide) to "Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal.
(3) The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e., possession of poison with the accused (either, by direct or circumstantial evidence) and on this ground alone the prosecution must fail.
(4) That in appreciating the evidence, the High Court has clearly misdirected itself on many points, as pointed out by us, and has thus committed a gross error of law.
Page 34 of 46SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri (5) That the High Court has relied upon decisions of this Court which are either inapplicable or which, on closer examination, do not support the view of the High Court being clearly distinguishable.
(6) That the High Court has taken a completely wrong view of law in holding that even though the prosecution may suffer from serious infirmities it could be re-enforced by additional link in the nature of false defence in order to supply the lacuna and has thus committed a fundamental error of law.
(7) That the High Court has not only misappreciated the evidence but has completely overlooked the well established principles of law and in view of our findings it is absolutely clear that the High Court has merely tried to accept the prosecution case based on tenterhooks and slender tits and bits.
(8) We entirely agree with the High Court that it is wholly unsafe to rely on that part of the evidence of Dr. Banerjee (P. W. 33) which shows that poison was forcibly administered by the process of mechanical suffocation.
(9) We also agree with the High Court that there is no manifest defect in the investigation made by the police which appears to be honest and careful. A proof positive of this fact is that even though Rameshwar Birdichand and other members of his family who had practically no role to play had been arrayed as accused but they had to be acquitted by the High Court for lack of legal evidence.
(10) That in view of our finding that two views are clearly possible in the present case, the question of defence being false does not arise and the argument of the High Court that the defence is false does not survive.
xxxxx xxxxx
179. It must be recalled that the well established Page 35 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri rule of criminal justice is that 'fouler the crime higher the proof'. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made.
xxxxx
33. Furthermore, in Crl.Appeal No.1932/2010, titled as, "Malaichamy & Ors. V/s The State of Tamil Nadu", decided on 23.01.2019, the Hon'ble Supreme Court has been pleased to lay down as under:
xxxxx 7 . There are no eye witnesses to the incident in question and the case of the prosecution rests solely upon circumstantial evidence.
8. Before we proceed further, it would be worthwhile to recall that it has been settled through a catena of decisions that the Court should satisfy itself that the various circumstances in the chain of evidence must have been established clearly and that the completed chain is such as to Rule out a reasonable likelihood of the innocence of the Accused. (For example, see: Jaharlal Das v. State of Orissa, MANU/SC/0586/1991: (1991) 3 SCC 27;
Vijay Kumar Arora v. State Government of Delhi NCT, MANU/SC/0041/2010 : (2010) 2 SCC 353;Munish Mubar v. State of Haryana, MANU/SC/0811/2012 : (2012) 10 SCC 464;Dhan Raj v. State of Haryana, MANU/SC/0454/2014 :
(2014) 6 SCC 745;Nizam v. State of Rajasthan, MANU/SC/0964/2015 : (2016) 1 SCC 550). It is in light of this position of law that the circumstantial evidence in the instant case needs to be examined.
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14. Hence, considering the aforesaid facts and circumstances, the aspect of 'motive', as put forth by the prosecution, appears to be very weak, and the same cannot be believed as a reason to commit the murder of the victim.
xxxxx
34. Furthermore, in Crl.Appeal No.630/2009, titled as, "Ganpat Singh V/s The State of Madhya Pradesh", decided on 19.09.2017, the Hon'ble Supreme Court has further been pleased to hold as under:
xxxxx
9. There are no eye-witnesses to the crime. In a case which rests on circumstantial evidence, the law postulates a two-fold requirement. First, every link in the chain of circumstances necessary to establish the guilt of the Accused must be established by the prosecution beyond reasonable doubt. Second, all the circumstances must be consistent only with the guilt of the Accused. The principle has been consistently formulated thus:
The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; that 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 they should be incapable of explanation on any hypothesis other Page 37 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri than that of the guilt of the Accused and inconsistent with his innocence.
10. Evidence that the Accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the Accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows:
The last seen theory comes into play where the time gap between the point of time when the Accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the Accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.
xxxxx xxxxx
13. We must also place in balance the testimony of PW4 that when he enquired regarding whereabouts of his mother, the Appellant informed him that she had stayed back at the house of her sister. This, coupled with the fact Page 38 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri that the Appellant had absconded after the date of the incident is a pointer to a strong suspicion that the Appellant was responsible for the death of Shantabai. However, a strong suspicion in itself is not sufficient to lead to the conclusion that the guilt of the Appellant stands established beyond reasonable doubt. There are material contradictions in the case of the prosecution.
These have been noticed in the earlier part of its judgment and are sufficient in our view to entitle the Appellant to the benefit of doubt. The prosecution failed to establish a complete chain of circumstances and to exclude every hypothesis other than the guilt of the Appellant.
xxxxx
35. Now, reverting back to the facts of the case in hand. Following undisputed epochal facts emerge in the matter:
(i) There are no eye witnesses to the incident in question and the case of prosecution entirely hinges upon circumstantial evidence.
(ii) The weapon of offence allegedly used by the accused persons for murdering the deceased has not been recovered.
(iii) The dead body of deceased has also not been recovered in the matter.
(iv) No scientific evidence of any sort has been collected/brought on record by the investigating agency to substantiate its claim.
(v) There is a delay of about one month in recording of FIR in the matter and no cogent explanation in this regard has come from the side of prosecution.
(vi) The deceased was also involved in various criminal cases/activities and the said fact has been duly admitted by PW-2 and PW-7 in their respective cross-examinations. The submissions put forth by learned defence counsel(s) that deceased might have been kidnapped/abducted Page 39 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri and consequently murdered by his rivals seems probable on this count.
36. Now, let us see whether the circumstances pointed out by the learned Additional PP duly satisfy the "golden principles" laid down by the Hon'ble Supreme Court of India in the case of Sharad Birdichand Sarda (supra).
37. Circumstance No.(i): PW2, Smt.Sakeena (mother of deceased) being a witness of "last seen alive" qua her deceased son, i.e the "last seen circumstance":
(i) In this regard, firstly it is noted that PW2/Smt.Sakeena during the course of recording of her statement (Ex.PW2/B) did not specifically state that she had seen her deceased son going with accused persons namely Bijender @ Naushad @ Kobra @ Mulla and Pawan on his motorcycle on 09.04.2010. Be that as it may, on the other hand, I find substance in the submissions of learned defence counsel(s) that there are "apparent contradictions" in the evidence of PW2 and PW7 with regard to "last seen" and "taking away of deceased by accused persons namely Pawan and Bijender @ Nausahd Kobra on his motorcycle". It is evident from the record that PW2 in her examinationinchief recorded in Court on 21.05.2012 stated that her son (deceased) went with accused Pawan and Bijender @ Naushad Kobra on his motorcycle in her presence; however, in the same breath during her crossexamination, she categorically stated that accused persons had not taken her son on their motorcycle in her presence. While PW7/Mohd. Sayeed (father of deceased) in his examinationinchief did not state a word regarding he having seen his son going with the said accused persons on his motorcycle on 09.04.2010. He Page 40 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri merely stated that pursuant to receipt of a telephonic call from accused Pawan regarding his wife returning to her parental house, he/deceased immediately left for his house. It was on account of his aforesaid deposition that PW7 was even confronted by learned Addl. PP with his statement recorded under Section 161 Cr.P.C Ex.PW7/A and this witness even categorically denied the suggestion of prosecution that he had ever raised suspicion upon accused persons namely Pawan, Bijender @ Naushad Kobra and Salim @ Santosh @ Akram of they having murdered his son.
(ii) Elaborating the principle of "last seen alive" in case of "State of Rajasthan V/s Kashi Ram", (2006) 12 SCC 254, the Hon'ble Supreme Court has been pleased to hold as under:
xxxxx "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible Page 41 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218)".
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(iii) In view of the above, I am of the considered opinion that "last seen theory" is not of any help to the prosecution in the instant case on account of there being apparent and serious contradictions in the evidence of PW2 and PW7 on this account. The "last seen evidence" propounded by prosecution in the matter is not authentic.
38. Circumstance No.(ii): Recovery of motorcycle of deceased pursuant to disclosure statement made by accused Bijender @ Naushad Kobra and Pawan:
In this regard, it is worth noticing that no forensic analysis/scientific evidence has been collected by the investigating agency which could have atleast proved that the dead body of deceased was carried by the accused persons on the said motorcycle for dumping in the ganda nala. No such scientific evidence is available on record. Even the motorcycle of deceased was recovered after a lapse of about one year from the date of incident. As such, this circumstantial evidence is also not of much help to the prosecution.
39. Circumstance No.(iii): "Motive" for the commission of offence.
(i) In my opinion, this is the most important amongst all the circumstantial Page 42 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri evidence propounded by the prosecution. Right from day one, it has been the case of prosecution that since deceased had married with Smt.Renu (who is the step daughter of accused Bijender @ Naushad Kobra and wife of accused Salim @ Santosh @ Akram), so both the said accused persons as well as accused Pawan (who is brotherinlaw/jeeja of Renu) were very upset with the deceased on this account and they accordingly hatched a plan to abduct/kidnap the deceased and consequently murder him, in which they ultimately succeeded. But, ironically, said Renu has not been examined in the matter by the prosecution. What to talk of her nonexamination in Court, she was not even cited as a witness either in the main chargesheet or in the supplementary chargesheet filed in the matter. I find substance in the submissions of learned defence counsel(s) that it was only Smt.Renu, who could have deposed about her marriage with the deceased. Failure of prosecution to examine Smt.Renu has severely jolted its case in as much as it has not been established/proved on record that deceased had got married with said Renu. Once the factum of marriage between deceased and Smt.Renu has not been established on record, the "motive" attached to the accused persons for committing murder of deceased bites the dust.
(ii) Moresoever, while going through the record, I found that Smt.Renu had also preferred a written complaint (addressed to Commissioner of Delhi Police) against her father and jeeja (accused Bijender @ Naushad Kobra and Pawan respectively), which was received in the O/o ACP Gokalpuri on 20.04.2010 vide Diary No.168R. Thereafter, the said complaint was received at PS Gokalpuri on 11.06.2010 vide Diary No.87R. Smt.Renu in her said complaint had levelled categorical allegations of kidnapping/abduction of deceased by the aforesaid accused persons. The said complaint is part of record as same has been proved on record by the prosecution as Ex.PW15/A. Despite that, the prosecution did not take Page 43 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri any step to cite and examine her as a witness in the matter. However, as a forlorn attempt and at the eleventh hour, when the case had been notified for pronouncement of judgment after hearing final arguments from both the sides, an application under section 311 Cr.P.C was moved/filed by the prosecution on 09.09.2021, inter alia seeking permission of the Court to examine Smt.Renu. The same was a clear attempt on part of prosecution/investigating agency of shutting the barn door when the horse had already bolted. Accordingly, finding no merit therein, same was dismissed by this Court vide detailed order dated 09.09.2021.
(iii) Since, the marriage of deceased with Smt.Renu has not been established/proved on record, accordingly, I do not find any evidence of a clear motive on the part of accused persons to kill/murder the deceased.
40. Circumstance No.(iv): CDRs of deceased and accused persons namely Pawan and Bijender @ Naushad Kobra establishes that they were in regular contact with each other:
It is an admitted fact that deceased and both the aforesaid accused persons were relatives and known to each other. On this account, it was natural for them to be in regular contact with each other and the same is not a big issue. However, the point which is to be taken note of is that there is no CDR available on record which could show/prove that accused persons had been in contact with each other after 09.04.2010 onwards, i.e the day when the deceased went missing.
41. From a review of the circumstances discussed above, I am of the considered opinion that the circumstances which could be culled out from the material produced on record are not of definite character and do not point towards guilt of accused persons. The composite chain of evidence is not complete as Page 44 of 46 SC No.44761/2015: State V/s Bijender @ Naushad Kobra @ Mulla & Ors.: FIR No.142/2010: PS Gokalpuri various links in the chain of evidence led by prosecution have not been satisfactorily proved. The five golden principles enunciated by Hon'ble Supreme Court of India in case of Sharad Birdichand Sarda (supra) are not getting satisfied in the instant case. As a logical corollary, it follows that it cannot be held that the act of the accused persons cannot be explained on any other hypothesis except their guilt nor can it be said that in all human probability, the accused persons had kidnaped/abducted the deceased and consequently committed his murder. As such, I have no hesitation in holding that the prosecution has miserably failed to bring home the guilt of accused persons in respect of offences charged beyond reasonable shadow of doubt.
42. Accordingly, all the four accused persons namely (i) Bijender @ Naushad Kobra @ Mulla, S/o Shri Banarasi Dass; (ii) Pawan, S/o Shri Kalyan Dutt; (iii) Taslim Ahmed @ Akram @ Bhai, S/o Mohd. Zaki; and (iv) Salim @ Santosh @ Akram are acquitted of the offences charged in the case by giving them benefit of doubt. Their bail bonds stand cancelled. Sureties stand discharged. Endorsement, if any, either on the documents of aforesaid accused persons or their sureties be cancelled forthwith. Original documents, if any, either of the aforesaid accused persons or of their sureties be returned to the rightful owner after retaining a photocopy thereof on record. Accused persons namely Bijender @ Naushad Kobra @ Mulla, Salim @ Santosh @ Akram and Taslim Ahmed @ Akram @ Bhai are in judicial custody. They be released from jail forthwith, if not required to be detained in some other case(s).
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43. File be consigned to Record Room after compliance of the provisions of Section 437A Cr.P.C.
Announced in the Open Court on 20.09.2021 (Vinod Yadav) Addl. Sessions Judge03 (NorthEast):
Karkardooma District Courts: New Delhi Page 46 of 46