Delhi District Court
State vs Salim Hussain-Sc 61/2012 1/56 on 30 October, 2013
ID No. 02403R0532142008
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-04 &
SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS: NEW DELHI
Sessions Case No. 61/2012
Unique ID No. 02403R0532142008
FIR No. 270/2007
U/s 302/120-B/201/203 IPC
PS : Greater Kailash
State
Versus
Salim Hussain,
S/o Sh. Sajjad Hussain,
R/o Bajaria Begraj, Kaim Ganj,
District Farrukhabad,
Uttar Pradesh.
Instituted on : 25th July, 2010
Argued on : 04th October,2013
Decided on : 30th October,2013
JUDGMENT
Facts
1. Accused in this case has been tried for commission of murder of his accountant Kailash Chand Sethi. Case of the prosecution, as set out in the charge sheet is that, on 06.10.2007 on receipt of DD no. 25-A, at 08:30pm, police officials namely, Inspector Ganga Singh alongwith SI R. D Pandey, ASI Ikramuddin, HC Devender, Constable Satpal, Constable Ram Gopal and Constable Brij Lal of Police Station Greater Kailash, New Delhi reached at the house of accused situated at N-115, IInd floor, GK-I, New Delhi. Police found place of occurrence i.e. house no. N-115, IInd floor, GK-I, locked from inside. Police broke open the door and found accused Salim Hussain in an injured condition and there seemed a gun shot wound on the right side of his chest. Another person namely, Kailash Chand Sethi was lying dead and his throat had a deep injury. Chance prints and other exhibits were lifted and photographs of the spot were taken. Videography was conducted and accused Salim Hussain, the injured was shifted to AIIMS hospital.
2. On 09.10.2007, injured Salim Hussain (accused herein) was declared fit for statement by the doctor but he chose not to make any statement to the police. He State vs Salim Hussain-SC 61/2012 1/56 ID No. 02403R0532142008 gave his statement after consultation with his counsel and in his presence only on 11.10.2007. Salim Hussain in his statement, stated, that on 06.10.2007 at about 06:45 pm, Ms.Nagma and some other persons namely, Liyakat Ali, Irshad Ahmed, Sadiq, Matloob Ahmed and Firasat came to his house. He had a dispute with Irshad and thereafter, he was hit by Irshad and then, started discussing business matter. When they were discussing the business transaction, his accountant-Kailash Chand Sethi was making call to his mobile from his mobile but he did not pick up his call as Kailash Chand Sethi was called in the morning and wanted to come to collect tax money but Sadiq saw at the screen of the phone that Kailash Chand Sethi was calling. Sadiq and other persons insisted to call Kailash Chand Sethi and one of three unknown persons took out gun and put it on his neck. On this threatening, he called his accountant Kailash Chand Sethi to come to his house. Thereafter, according to accused (who lodged the complaint) those persons ransacked his house. In the meantime, the door bell rang. When he got up to open the door thinking that Kailash Chand Sethi would have reached, those persons allegedly put him under threat of gun and came with him to the door. Accused Salim Hussain further stated that Kailash Chand Sethi was drunk. He went to the balcony of his flat overlooking the main street and called his wife Parul, who told him that she was near the flat. Accused asked her not to come as 8-9 persons had come to his house. He threw the keys after tying them in a handkerchief, which were picked up by his wife-Parul and she left. Salim Hussain further stated that when he was making call from balcony, he saw Matloob Ahmed, Aizaj Ahmed-his son in a black colour Qualis. There was another Santro car behind Qualis car and Usman came out of this car and walked to the stairs to his flat where Babboo was already standing. On seeing these persons, he immediately went inside and saw that Nagma was talking to Abbas Bhai. Thereafter, Nagma and her father left from his flat. According to the accused, on gun point, he was asked by Irshad to sign 15 cheques, which he signed. One of the three persons asked him to State vs Salim Hussain-SC 61/2012 2/56 ID No. 02403R0532142008 switch on the TV and then asked to increase it to full volume which he did. Then, third person brought a mutton chopper from kitchen and put it on Sethi's neck. Salim Hussain stated that he tried to hold the hand of third person, who tried to stab him in the stomach but as he tried to save himself, the knife was stabbed in his thigh. In the scuffle, knife dropped from the hand of third person, which was picked up by him. He tried to hit back the third person. On which, he fell down and became unconscious. He came to senses on hearing ring of his mobile phone and noticed that his accountant-Kailash Chand Sethi was lying over him and an almirah was lying over both of them. He called police at 100 number from his phone.
3. Accused Salim Hussain further stated that during incident, door bell was pressed by his aunty and when he opened the door a little, at that time, one person had placed knife on his back. Aunty asked him to slow done the volume. Case of the prosecution is that initially, police believed the story of Salim Hussain. During investigation, suspects named by accused were thoroughly questioned and their minute to minute movement was verified w.e.f 06.10.2007. Mobile call details and locations of mobile phone of Liyakat and Firasat were collected and it was established that all suspects named by accused were present at their native places i.e. out of Delhi in Bareilly at UP at the time of incident except suspect Irshad Ahmed.
4. During investigation, it was found that accused Salim Hussain named aforesaid persons falsely as he had to make payment of Rs. 60-70lacs to those persons and in order to avoid the said payment, he intentionally falsely named those persons in his statement to implicate them in the false case. During investigation, it was revealed that accused Salim Hussain had a business dealings with the persons against whom, he made allegations in his statement and accused Salim Hussain owed a substantial amount of money towards all these persons and also owed Rs. 70,000/- to Kailash Chand Sethi.
State vs Salim Hussain-SC 61/2012 3/56
ID No. 02403R0532142008
5. A medical board was constituted to opine about the nature of injuries sustained by accused Salim Hussain. Medical Board opined that injuries found on the body of accused Salim Hussain could be self-inflicted. Apart from this, FSL report confirmed that blood found on the clothes of Kailash Chand Sethi (deceased) also matched with with blood found on the clothes of accused Salim Hussain. AS per FSL report, injuries on the body of Kailash Chand Sethi (deceased) could be produced by the recovered knife.
6. It is alleged that initially, accused Salim Hussain tried to mislead the investigation and made efforts to falsely implicate some persons. It was revealed that at about 09:30 am on 06.10.2007, accused Salim Hussain called Kailash Chand Sethi (deceased) and asked him to come to his flat in the evening. This fact is corroborated by the statement of Smt. Kiran Sethi , wife of Kailash Chand Sethi. It is further the case of prosecution that the analysis of call details of accused Salim Hussain showed that he was using his mobile phone to make and receive calls, whereas, as per his version of incident, he was under threat of gun and many persons were present, some were waiting down stairs and at the same time, he was being allowed to use his mobile phone from his balcony. Version of Salim Hussain that Nagma was calling him on his mobile was not established. The version of accused Salim Hussain that he threw the key bunch to Parul Singh-his wife from the balcony was found not true. Cell ID chart showed that Parul Singh did not come to Greater Kailash.
7. Case of prosecution, is that accused Salim Hussain alongwith one Rashid planned and conspired to kill Kailash Chand Sethi. They cut the throat of Kailash Chand Sethi and then accused Salim Hussain managed the knife and gun shot injuries on his body. He implicated Nagma and other persons with whom he had enmity and owed them money. The fact that he planned to kill Kailash Chand Sethi is proved by his conduct on 06.10.2007 as he called SI Santosh Kumar, Investigation State vs Salim Hussain-SC 61/2012 4/56 ID No. 02403R0532142008 officer of Police Station Anand Parbat during the day and tried to create evidence in his favour by telling him that Nagma was calling him and wanted to come to his house to settle the case. Accused Salim Hussain called his lawyer, so that he could also become a witness that Nagma was planning to come to his clients house. It is the case of prosecution that all the persons against whom accused Salim Hussain made allegations in his statement, had no opportunity to be present at the scene of crime at the time of commission of murder of Kailash Chand Sethi and it was he, who committed murder of Kailash Chand Sethi. Presence of Salim Hussain at House no. N-115, IInd Floor, Greater Kailash-I on 06.10.2007 alongwith his accomplice Rashid was proved. It is stated that accused Salim Hussain alongwith his accomplices Rashid and Irshad Ahmed conspired to kill Kailash Chand Sethi (deceased).
8. On conclusion of investigation, charge sheet was filed in the Court of Metropolitan Magistrate on 07.06.2008. Case was committed to the Court of sessions by Learned Metropolitan Magistrate on 25.07.2008. On 08.10.2009, charges u/s 120- B IPC, 302 r/w 120-B IPC and 301/203 IPC were framed against accused to which he pleaded not guilty and claimed trial.
Points for determination
9. Points which emerge for determination in this case are:
(i) Whether accused Salim Hussain hatched a conspiracy to commit murder of Kailash Chand Sethi alongwith Rashid (absconding)?
(ii) Whether on 06.10.2007 at about 08:20pm, at H. No. 115, N-Block, second floor, Greater kailash-I, New Delhi accused Salim Hussain committed murder of Kailash Chand Sethi?
(iii) Whether accused Salim Hussain caused disappearance of evidence by causing self inflicted injuries and furnished false information to the police with intent to screen himself from legal punishment?
Prosecution Witnesses
10. To establish charges against accused, prosecution examined sixty five witnesses. Brief outline of the testimony of prosecution witnesses is as under : State vs Salim Hussain-SC 61/2012 5/56
ID No. 02403R0532142008 Relatives of deceased 10.1 Smt. Kiran Sethi (PW-2) wife of Kailash Chand Sethi (deceased). 10.2 Jeevan Sethi (PW-23) son of deceased. He identified the dead body of his deceased father Sh. Kailash Chand Sethi in the mortuary, AIIMS vide statement (Ex. PW23/A).
10.3 Jalaj Sethi (PW-18) son of deceased. Jalaj Sethi (PW-18) deposed that on his inquiries, his father told him that he gave Rs. 70,000/- to accused Salim Hussain after withdrawing Rs. 20,000/- from his bank account through his ATM card and Rs. 50,000/-
from his own account.
Public witnesses 10.4 Naseem Ahmed (PW-1) husband of Smt. Nagma, who had business dealing with accused and had to recover dues from him due to which relations between them got strained. At his instance a case FIR No. 141/07 u/s 307 IPC PS Anand Parbat was registered against the accused and others. Naseem Ahmad (PW-1) husband of Nagma deposed that he was in business of doing stitching of cushions etc. in the name and style ofM/s G. R. Zari Art and he worked for the accused till the end of 2006. There was a pending bill of Rs. 14 lacs, which accused had to pay him. Accused gave him a cheque of Rs. Five lacs, which was dishonoured. He demanded money from the accused, who did not pay. He placed copies of the bill of amount (Ex. PW1/A to Ex. PW1/G) due to him on account of stitching of cushions and embroidery work for accused. 10.5 Raj Kumar Bhatia (PW-3) previous landlord of accused and owner of house no. 64, Vinoba Puri, Lajpat Nagar, which he rented out to the accused. 10.6 Liyakat (PW-4) used to run a zari factory at Bareilly. He knew accused and used to do Zari work for him. He deposed that on 06.10.2007 (i.e. day of incident) he was present at Bareilly.
10.7 Mohd. Sadiq (PW-5) deposed that he was present in Bareilly on 06.10.2007 (i.e. day of incident).
10.8 Naeem (PW-6), Irshad Ali (PW-7), Shamshad (PW-8), Usman (PW-9), Babbu (PW-10), Nawab Ali (PW-11), Mohd. Nafees(PW-12), Nawab Mia (PW-13), Parvez Khan (PW-14) and Qumar (PW-15 ) all these witnesses have deposed that the persons named by the accused were present in Bareilly on 06.10.2007.
10.9 Mohd. Sami (PW-20) brother-in-law (saala) of Irshad. He deposed regarding relation between Irshad and accused Salim. He deposed that there was some dispute between Irshad and accused over the account. In the month of March 2008, accused took him and kept him in confinement at Kayamganj, UP for six days. PW-20 was left off by accused only after assurance from him that he would help him in apprehending Irshad. PW-20 placed on record a complaint (Ex. PW20/A) to SP, Faridabad . State vs Salim Hussain-SC 61/2012 6/56
ID No. 02403R0532142008 10.10 Nagma (PW-22) wife of Naseem Ahmad (PW-1) . She deposed on the lines of PW-1 and stated that on 06.10.2007, she had not visited the place of occurrence at any point of time.
10.11 Firasat (PW-25) is the brother of PW-4 Liyakat.
10.12 Madhushri Sen Gupta (PW-27) neighbour of accused.
10.13 Ranjan Dass (PW-28) was domestic servant in house adjoining to that of accused. 10.14 Badrul Islam (PW-31) Imam at Raja Jama Masjid, Bareilly. According to him Liyakat was present in the masjid from 05.00 p.m. to 09.00 p.m. on 06.10.2007 10.15 Abiduddin (PW-32) stated that on 06.10.2007 Firast and Liyakat were present in the masjid at Bareilly and they had invited all the namazees for roja iftar. 10.16 Yamin Beg (PW-33) deposed that on 06.10.2007 Liyakat had invited all the namazees or iftar-cum-dinner and on the said date PW Liyakat and PW Firasat were present in the mosque upto 09.00 p.m. Medical witnesses 10.17 Dr. Raghvender Kumar (PW-29) Senior resident, Department of Forensic Medicine, AIIMS. He deposed that Dr. Bharat Verma autopsy surgeon, who prepared the post-mortem report (Ex.PW-29/A), had expired. He identified his handwriting and signatures having worked with him and seen him signing and writing with course of duties. He identified signatures of Dr. Bharat Verma on the postmortem no. 131/-07 dated 07.10.2007 pertaining to Kailash Chand Sethi s/o late Sh. Soba Ram Sethi aged 57 years, male. Injuries noted in the postmortem report (Ex. PW29/A) are discussed in the later part. 10.18 Dr. Imtiakum (PW-30) proved MLC No. 127359/07 (Ex.PW-30/A) pertaining to the accused prepared by Dr. Avinash, CMO and Dr. Rishikant Sharma, showing following external injuries:
1. tattooed dirty in injury 1cm x 1 cm x 1 cm at the sixth inter costal space between mid clavicular line and anterior axillary line;
2. small injury 1cm x 1cm x 1cm at th seventh inter costal space at anterior axilliary line;
3. incised wound at inner right thigh 2 cm x 2 cm x 2cm .
10.19 Dr. N.K. Aggarwal (PW-34) Chairman of the Medical Board and Dr. Gulshan Jeet Singh (PW-41) and Dr. Sone Lal (PW-53) members of Medical Board proved expert opinion of the Board (Ex.PW-34/A).
10.20 Dr. Amit Gupta (PW-52) assistant Professor, surgery, Trauma Center, AIIIMS proved endorsement (Ex. PW52/A).
10.21 Dr. Sone Lal (PW-53) member of Medical Board constituted to examine and report State vs Salim Hussain-SC 61/2012 7/56 ID No. 02403R0532142008 (Ex.PW-34/A) about the injuries sustained by accused Salim Hussain. 10.22 Dr. Sudhir Gupta (PW-58) gave opinion about the possible use of the knife seized from the spot in causing the injuries to the deceased which resulted in death. His report in this regard is (Ex.PW-58/C).
10.23 Dr. Dhruv Sharma (PW-61) Assistant Director, Biology, FSL placed on record the FSL reports (Ex.PW-61/A & B).
Other Witnesses 10.24 Israr Babu (PW-39) alternate Nodal Officer from Vodafone placed on record documents pertaining to telephone no. 9953078251 in the name of Salim Hussain i.e. Photocopy of customer application form and photocopy of the passport (Ex. PW39/A); call detail records for a period 20.09.2007 to 10.10.2007 (Ex. PW39/B and Ex. PW39/E) and certificates u/s 65-B of Evidence Act (Ex. PW39/D and Ex. PW39/F). 10.25 Sh. Hussain (PW-44) Nodal Officer of IDEA Cellular Limited, placed on record call details record of PW-4 Liyakat as well as the application form and documents submitted by him.
10.26 A. K. Sharma (PW-46) Nodal officer, BSNL placed on record copy of CDR (Ex. PW46/A) pertaining to telephone number 9410213822 issued in the name of Firasat from 04.10.2007 to 07.10.2007 and certificate (Ex. PW46/B) u/s 65-B of Evidence Act 10.27 Rakesh Soni (PW-57) JTO/Assistant Manager, mobile service, Tis Hazari Exchange placed on record call detail record of telephone no. 9868051636 of MTNL company pertaining to Kailash Chand Sethi (deceased) for the period 01.10.2007 to 06.10.2007 (Ex. PW57/A) . he deposed that CDR bore his stamp and signatures which was computer generated and authenticated. He tendered a certificate (Ex. PW57/B) u/s 65-B Evidence Act.
10.28 Mayank Aggarwal (PW-38) deputy manager from Axis Bank is the witness to statement of current account no. 126010200012786 (Ex. PW38/A) in the name of J.
Brothers, Zari Exports for the period from 05.10.2005 to 26.04.2012 ; account opening form (Ex. PW38/B); copy of agreement executed between the bank and accused (Ex. PW38/C) and certified record of cheque leaf status inquiry (Ex. PW38/D). 10.29 Desh Deepak (PW-47) official of Nainital Bank Ltd. proved the account statement of A/c No.2007236 of Shri Kailash Chand Sethi (Ex. PW47/A).
10.30 Joseph John (PW-56) conducted videography of the scene of crime on 06.10.2007 depicted in CD (Ex. PW56/A). he further visited the scene of occurrence in November 2007 and conducted Videography again which (Ex. PW56/B).
10.31 Vicky Juneja (PW-59) photographer, placed on record photographs (Ex. PW59/A-1 to Ex. PW59/A-5) and negatives (Ex. PW59/B-1 to Ex. PW59/B-5) of the spot at house no. State vs Salim Hussain-SC 61/2012 8/56
ID No. 02403R0532142008 N-115, 2nd floor, GK-I, New Delhi .
Police witnesses 10.32 Ct. Anand (PW-16) member of crime team took 32 photographs of the scene of spot from different angles. He placed on record photographs (Ex. PW16/A-1 to Ex. PW16/A-32) and negatives (Ex. PW16/B-1 to Ex. PW16/B-32).
10.33 ASI Deepak Pawar (PW-24) inspected the scene of crime and lifted eight chance prints form the spot. He prepared report (Ex. PW24/A) of lifting of chance prints. 10.34 SI Mahesh Kumar (PW-17) draftsman took measurement of the spot at the instance of IO/Inspector Ganga Singh and prepared rough notes and prepared scaled site plan (Ex. PW17/A).
10.35 HC Sukhpal Singh (PW-19) special messenger , who delivered the copy of FIR to the residence of Ilaka Magistrate and to the Senior Police officers . 10.36 ASI Veer Sain (PW-21). On receipt of DD no. 24-A he alongwith Ct. Dharmi lal reached at the place of occurrence N-115, Second Floor, Greater Kailash, New Delhi. He placed on record sealed pullanda sealed with the seal of CMO, AIIMS seized vide seizure memo (Ex. PW21/A).
10.37 HC Suresh Kumar (PW-26) duty officer. He recorded FIR (Ex.PW26/A) and made an endorsement (Ex.PW26/B) on the rukka.
10.38 SI Ikramuddin (PW-35) went to Gurshahai, Gannauj (U.P.) to make inquiry from Ejaz Matloob.
10.39 SI Azam Khan (PW-36) went to Mainpuri (U.P.) to verify the presence of Sabbir Abbasi and his three sons.
10.40 SI Santosh (PW-37) IO of case FIR No.141 of 2007, P.S. Anand Parbat u/s 307 IPC who deposed that accused had called him on 06.10.2007 and informed him that PW Nagma was demanding money from him and she would be visiting his house on 06.10.2007.
10.41 SI Rajesh Kumar (PW-40) visited Bareilly, UP to find out whereabouts of Liyakat, Firasat and Sadiq. On an inquiry, it was found that these persons were present at their houses on 06.10.2007.
10.42 Ct. Ram Gopal (PW-42) joined investigation with SI R. D. Pandey, SI Ikramuddin, HC Devender, HC Dinesh, Ct. Satpal, Ct. Babu Lal, Ct. Brij lal and reached at the spot . 10.43 HC Babu Lal (PW-43) joined investigation with HC Devender, SI R. K. Pandey, ASI Ikramuddin, Ct. Satpal, Ct. Ram Gopal and Ct. Brij Lal.
10.44 HC Devender (PW-45) joined investigation on 06.10.2007. He placed on record seizure memo of knife (Ex. PW45/A), sketch of knife (Ex. PW45/B), seizure memo in respect of seizure of exhibits lifted from scene of crime (Ex. PW45/C), seizure memo of State vs Salim Hussain-SC 61/2012 9/56 ID No. 02403R0532142008 spectacles and bunch of keys (Ex. PW45/D), sketch of lead (Ex. PW45/E) and its seizure memo (Ex. PW45/F), seizure memo of blood stained pieces of plaster from the floor of flat (Ex. PW46/G), two tumblers (one each of steel and glass) (Ex. PW47/H),piece of plaster detest from the wall lying near the lead (Ex. PW45/J), seizure memo (Ex. PW45/K) of copy of complaints, letters, two cheque books and two memo of fees issued by some lawyers and documents (Ex. PW45/L), one black colour Nokia mobile phone (Ex. PW45/M). PW-45 is witness to the exhibits (Ex. PW45/N) collected by doctor after postmortem of Kailash Chand Sethi (deceased).
10.45 HC Ravinder Singh (PW-48) reached at the spot on 08.10.2007. PW-48 placed on record seizure memos of bills, challans, currency notes vide (Ex. PW48/A, Ex. PW48/B, Ex. PW48/C and Ex. PW48/D). PW-48 is witness to the seizure memos of photographs (Ex. PW48/E and Ex. PW48/F) given to the IO by the photographer. He is witness to memo (Ex. PW48/G) regarding handing over PCR form to the IO as well as memo (Ex. PW48/H) regarding seizure of CD given to Inspector Dharambir Joshi. 10.46 SI Gyanender Singh (PW-49) fingerprint expert, finger print bureau. PW-9 prepared report (Ex.PW19/A) after examining the chance prints and the specimen prints/palm impressions of 12 persons received by him from the SHO, PS GK-I alongwith letter dated 25.10.2007.
10.47 Ct. Harish Chand (PW-50) collected PCR Form regarding call dated 06.10.2007 in respect of incident occurred at premises N-115, second floor, GK-I, New Delhi on 09.10.2007, seized by IO/Inspector Ganga Singh vide seizure memo (Ex. PW48/G) . 10.48 HC Sita Ram (PW-51) incharge PCR van Eagle-41, who alongwith Ct. Satbir and driver Surender reached at the spot i.e. N-115, second floor, GK -I, New Delhi around 08.26 p.m. on receipt of a call at 08:23pm from PCR to the effect that "8/9 ladke mujhe goli mar ke bhaag gaye". Door of the flat was found locked and SHO got it forcibly opened with the help of staff wherein two injured persons were found . He took injured Salim Hussain to the AIIMS hospital. Wife of injured also accompanied them to the AIIMS hospital. 10.49 Inspector P. D. Singhal (PW-54) joined the investigation with Inspector Rohtash Singh, HC Dinesh Tyagi and other staff. They searched accused, who was spotted at Tis Hazari Courts. He was followed and apprehended near High Court of Delhi and arrested on 14.03.2008. PW-54 is witness to the arrest memo (Ex.PW54/A), personal search (Ex.PW54/B) and disclosure statement (Ex.PW54/C) of accused. On 15.03.2008, police custody remand of accused was obtained on 17.03.2008, his disclosure statement (Ex.PW54/D) was recorded given by accused at the PS. On 10.04.2008, he alongwith Ct. Shiv Kumar deposited exhibits to the FSL vide RC no. 13/21 and handed over a receipt to the malkhana moharar.
State vs Salim Hussain-SC 61/2012 10/56
ID No. 02403R0532142008 10.50 Inspector Pramod Joshi (PW-60) received two sealed envelopes from Inspector Rohtash Kumar for collecting mobile Call Details records from Nodal Officers of IDEA and Vodafone pertaining to mobile numbers 9911062668 (IDEA) pertaining to and 9953078521 & 9999768888 (Vodafone) pertaining to for the period w.e.f 20.09.2007 to 16.10.2007. 10.51 Inspector R. D Pandey (PW-61) investigated the case. He placed on record several documents prepared by him.
10.52 Retired Inspector Ganga Singh (PW-63) initially conducted investigation of this case. Inspector Ganga Singh (PW-63) deposed that on 06.10.2007 , pursuant to DD no. 25-A containing the direction to make the investigation in respect of DD no. 24-A (Ex. PW63/A) reached at N-115, second floor, GK-I. ASI Vir Sen alongwith a constable was found there. The gate of second floor was found closed. It appeared that the door was locked from inside. The loud or high volume voice like TV or somewhat similar object was being heard from inside the second floor. They broke open the door of second floor and entered into the house. Two persons were lying in an injured condition on the floor in front of a sofa. One person was lying with downwards the face and the other person was lying over him PW-63 picked up the person, who was lying over the other one and his name was revealed as Salim lateron. He admitted that an almirah was lying upon the injured/accused when he entered into the flat of the accused after breaking upon the door. He denied the suggestion that deceased was lying upon accused. He prepared and proved other documents i.e. rukka (Ex. PW63/B), DD no. 18/A (Ex. PW63/C) 10.53 Inspector Rohtash Kumar (PW-64) conducted investigation and prepared several documents during investigation. He placed on record details of account number 126010200012786 (Axis Bank) pertaining to M/s J. Brother Jari Export belonged to accused Salim Hussain vide memo (Ex. PW64/A) duly stamped and attested by the bank vide seizure memo (Ex. PW64/B). The details of account no. 2007236 duly stamped by Nanital Bank Limited (Ex. PW64/C) pertaining to Kailash Chand Sethi (deceased). PW-64 prepared seizure memo (Ex. PW64/D) of documents pertaining to mobile number 9999768611 in the name of Parul Singh w/o Salim Hussain and mobile number 9953078251 in the name of Salim Hussain and Cell ID chart and seized call details of above phone numbers vide seizure memo (Ex. PW64/D-1). PW-64 collected details of mobile phone number 9911062668 pertaining to Sh. Raj Kumar r/o 2nd O 44, Lajpat Nagar, New Delhi from the office office of IDEA cellular Ltd. (Ex. PW64/E) vide seizure memo (Ex. PW64/E-1). PW-64 placed on record application (Ex. PW64/F) moved by accused in the Court of ACMM u/s 156 (3) Cr.P.C. ; details of mobile phone number 9211303008 (Tata) (Ex. PW64/G) pertaining to Nagma r/oD-21/03, Okhla, New Delhi alongwith call details from 20.09.2007 to 10.10.2007 and parcel of AIIMS hospital containing blood in gauze of accused Salim Hussain vide seizure memo (Ex. PW64/H). After completion of investigation, State vs Salim Hussain-SC 61/2012 11/56 ID No. 02403R0532142008 he prepared charge sheet and filed the same.
10.54 Inspector Praveen Kumar (PW-65) SHO , who had visited the spot, after the occurrence.
Statement of accused
11. On conclusion of prosecution evidence, statement of accused Salim Hussain u/s 313 Cr.P.C. was recorded. Accused pleaded innocence and false implication. He stated that on 06.10.2007 at around 06.30-06.45 pm, he was alone at his home, at N-115, Second Floor, Greater Kailash-I, New Delhi and was taking rest, the doorbell rang and when he opened the door, he found Nagma, who appeared as PW-20 along with a man having beard, whom Nagma introduced as her father. He was surprised to see her at his residence and told her that he was alone at house and she should come some other day, as he was avoiding to meet her alone. Nagma insisted to come inside the house. Thereafter, both came inside his house. He took them to the guest room. After about 2-3 minutes, three more persons entered into his house. When he asked them who they were, Nagma replied that they were with her. Thereafter, Liaqat and Firasat entered inside room and they were followed by Sadiq and Irshad, Irshad (his manager, who had stolen his money, cheques and goods etc. in his absence). During this period, his driver Rinkoo called him. He told him that Nagma wife of Naseem Ahmed had come with 5-6 people and he was settling account with them and would speak to him later on.
11.1 In the meantime, his accountant (Kailash Chand Sethi-the deceased) called him on his mobile, but he did not attend to his call and rejected the same. However, Irshad and Sadiq had seen the name of his accountant on his mobile and instructed him to call him. He told them that there was no need as when he would come to his office after Eid, then he would settle the accounts. At this Nagma told him that now what was left with him and whatever he was having Irshad Bhai had taken. Liaqat told him that only paper work was to be done and money transaction was not to be done that day. In the meanwhile, one of their accomplices put the gun on his State vs Salim Hussain-SC 61/2012 12/56 ID No. 02403R0532142008 head and the other caught his genitals. He threatened him that within a minute, the same could be separated from his body. Due to fear, he called his accountant and told him to come to his house. He thought that he would not allow him to come inside, when he comes.
11.2 In his statement u/s 313 Cr. P.C accused further stated that all of sudden, he recalled that at about 07:30/07:45pm, it was the time of his wife to return home and he started feeling uneasy, thinking what he should do now. At that time, those two persons slapped him and directed to show everything in the house. They took out a pair of gloves lying in the drawer of the dressing table. In the meantime, the door bell rang and he realized that Sethi (deceased) might have come. When he got up for opening the door, the said person followed him and kept his gun at his back. He opened the door and pressed the hand of the Sethi to give him a signal not to come but he was drunk and as usual come inside and straight away sat on the sofa, said person took him to the room by keeping gun at his back. In the meanwhile, those persons ransacked the almirah. He recollected that his wife would be coming back from office, then he told to Irshad that 'Yaar Ammi (your Mumani) had told him to call, so could he make a call. He moved towards balcony then he told him to make call from here. He told him that he did not have faith in him. He gave signal to another person and went outside the room and placed gun at the back of Sethi and said that only see downwards, he told Irshad to not to do this. Immediately, he called his wife from the balcony and said that he was settling the accounts with 8-9 persons and when she would come, he would drop the key tying with handkerchief from the balcony. She said that she was reaching there within a minute. Accused saw her auto. He tied key with handkerchief and dropped it down. He said that do not ask questions and go from there quietly by taking key.
11.3 Accused further stated that he saw that one black Qualis and two Santro cars were parked near Gate No.3 in which Matloob Ahmd and Ijaz Ahmed State vs Salim Hussain-SC 61/2012 13/56 ID No. 02403R0532142008 were there and Shamshad, was standing near the Santro car. Babbo and Usman were near gate. He came inside and saw Nagma leaving with her father. He tried to enquire about the matter, then one person out of these three caught his neck. He asked from Irshad that what he wanted and he was ready to give him whatever he want and if he wanted these accounts and files, which he was having, take it. He told him that what would he do of these papers. Sadiq told him and gave him 15 cheques. He told him to take it and immediately he signed cheques. In the meanwhile, second person out of these three persons took a mutton chopper from the kitchen, those two persons were wearing the gloves, Mutton chopper was put at the neck of Sethi and he told him to put the TV on in full volume. Accused put the TV on. After TV put up on, door bell rang, he opened door slightly and saw his neighbour aunty. She asked him that "Beta please put TV on low volume". Accused said alright, he would do it and closed the door. That person then, again put the chopper on the neck of Sethi. He tried to hold his hand, he attacked on his stomach, then he put his hand below and the chopper fell down after hitting his thigh. Then when accused tried to attack them, the third person out of three persons shot him by taking gun from Liaqat. Then darkness spread in front of his eyes and he fell down and became unconscious. He gained consciousness when his mobile got vibrated due to an incoming call on mobile, which was in the pocket of the shirt. He found Sethi and almirah over him. First of all, accused tried to remove almirah when he failed, then he made a call at 100 number 3-4 times and then, he called his wife, but her phone was found busy. Then he called Raju Bhai but he was too far away. Accused apprised him that he was shot. Then, call of a constable came on his mobile, who was asking his address and stated that he was standing at 115, where was he. Accused told him to come towards road. Then his wife's phone came and he told her to come immediately and he was shot. He again become unconscious and regained consciousness in PCR, in which he was taken to Hospital.
State vs Salim Hussain-SC 61/2012 14/56
ID No. 02403R0532142008 11.4 Accused further stated that he was acquitted by the Court on 24.11.2011 in case FIR No. 141/2007, PS Anand Parvat. He placed on record certified copy of said ordered dated 24.11.2011(Ex.D-1). He stated that he was also acquitted by the Court of Learned Metropolitan Magistrate, Saket in the cheque bouncing case filed by Sh. Nasim Ahmed (PW-1). On 28.12.2006, accused lodged complaint with SHO, PS Lajpat Nagar. On the same day, he lodged another complaint with PS Lajpat Nagar against Irshad Ahmed and Ijaz Ahmed and also lodged a complaint against Irshad Ahmed, Ijaz Ahmed, Nasim Ahmed and Firasat in PS Lajpat Nagar. They were all part of (Ex.PW45/L). Accused stated that in respect of the incident dated 06.10.2007, he had reported true facts to the police, but the police collided with the offenders and made them witnesses and falsely implicated him in the present case. He had filed a private complaint in the Court of Metropolitan Magistrate concerned, but he could not pursue the same because he was falsely implicated in the present case and was confined to jail.
11.5 Accused stated that he had remained in the AIIMS Trauma Center for 29 days w.e.f 06.10.2007. His wife at that time was in the family way. She regularly attended him in the Hospital and he regularly joined the investigation, whenever police or SHO Mr. Joshi called him after his discharge from the Hospital. Accused stated that his wife was blessed with a child on 10.12.2007 and she was discharged from the Hospital on 14.12.2007. He alongwith his wife had gone to his native place Farukhabad on 16.12.2007 after informing SHO. He sated that Police harassed him. He used to come back to Delhi from Farukhabad, whenever Police called him. Police arrested him on 14.03.2008 in this case, when he was present in the Court, where he had come in connection with his complaint u/s 156 (3) Cr.P.C. (already Ex.PW64/F) in the Court of Sh. J. P. Nahar, the then MM, Patiala House Courts. His brother Mohd. Haseem also made a complaint in respect of said incident (Ex.D-2). He gave a statement to the police (Ex.D-3) and had not given any disclosure statement of the State vs Salim Hussain-SC 61/2012 15/56 ID No. 02403R0532142008 police. He was made to sign blank papers, while in custody and was threatened by the police officials that his wife would be falsely implicated in this case and that his infant child would also remained in custody with his wife.
Defence Witness
12. In his defence, accused appeared in the witness box and examined himself as (DW-1). It is significant to note his testimony.
12.1 Accused deposed that he was having an Export - Import Business in the name of M/s. J Brothers Zari Exports, which was a proprietorship firm, having office at 64, Ground Floor, Vinoba Puri, Lajpat Nagar, Part-II. He was residing at N-115, Second Floor, Greater Kailash-I, New Delhi. Many supplier used to supply him garments and home furnishing products, which he used to export in the middle East Countries. He used to supply fabrics to the suppliers and make payment to the suppliers for the job works and sometime, he used to even buy manufactured garments from several suppliers. In connection with his business, he had monetary dispute with some suppliers namely Liyakat and his brother Firasat, one Nasim Ahmed, Babbu and his partners Usman and Sadiq as these supplier had done over billing in connivance with Irshad Ahmed, his Manager as well as his cousins. Kailash Chand Sethi (deceased) was employed by him as a Accountant of his firm. 12.2 On 06.10.2007 at about 06:45 pm, when at his home, i.e., N-115, Second Floor, Greater Kailash-I, New Delhi and was taking rest, the doorbell rang and when he opened the door, he found Nagma (PW-20), wife of Nasim Ahmed alongwith another person (with the beard, who appeared like a Maulana) who was represented by by Nagma as her father. They came inside. Accused told her that he was alone at house and that she should come some other day. Nagma, however insisted on coming inside the house in order to talk to him regarding case, which Nasim Ahmed her husband had filed against him and his brothers u/s 307 IPC. Thereafter, both these persons came inside his house. They were made to sit in the State vs Salim Hussain-SC 61/2012 16/56 ID No. 02403R0532142008 guest room.
12.3 When he was talking to them, in the meantime, after few minutes, three more persons entered into his house as the main gate was open at that time. When he asked them who they were, Nagma replied that those persons had come with her. Thereafter, two more persons namely Liaqat and Firasat also entered inside the guest room and then two more persons namely Sadiq and Irshad came inside the room. In the year 2006, he had already lodged a complaint (DD No. 33-B dated 28.12.2006, PS Lajpat Nagar) against Irshad, his manager for theft of his signed cheques, garments and cash etc. from his office and had also lodged a complaint u/s 156 (3) Cr.P.C. in the Court Learned MM.
12.4 During this period, his driver Rinkoo called him telephonically and told him that wife of Naseem Ahmed i.e Nagma had come with 6-7 people and he was settling the account with them and told him that he would speak to him later on. 12.5 He inquired from Nagma as what was happening and why so many people had come to his house. She told him that soon he would come to know about it. In the meantime, his accountant Sh. Kailash Chandra Sethi called him on his mobile, but he did not attend his call and rejected the same as he was not willing to talk to him at that point. However, Irshad and Sadiq had seen the name of his accountant on his mobile and instructed him that he should call him as well as he was accountant. He told them that there was no need as when he would open his office after Eid, then he would settle the accounts with them. On this, Nagma told him that now whatever they had to receive was received by them and now Irshad Bhai would deal with him. Liaqat told him that only paper work was to be done and money transaction was not to be done on that day, no accounts could be settled. In the meantime, three unknown persons, who had come inside the room and were not known to accused started abusing and beating him. One of them, placed gun on his head and other one manhandled him. They threatened to kill him and told him to State vs Salim Hussain-SC 61/2012 17/56 ID No. 02403R0532142008 telephonically call Sh. Kailash Chand Sethi-his accountant. Due to the fear, he called his accountant and told him to come to his house. Within 10-15 minutes Kailash Chand Sethi (deceased) reached there and door bell rang.
12.6 Accused deposed that when he got up for opening the door, one person followed him and kept his gun at his back. He opened door and pressed the hand of the Sethi to give him a signal not to come but he was under the influence of liquor. He used to drink in the evening time. He as usual, came inside and straight away sat on the sofa lying in the drawing room, whereas the other persons were sitting in the guest room. Said person took him to the room by keeping gun at his back. At that time, it was about 07:30/07:45 pm and he was expecting his wife Smt. Parul Singh to return back from her Office.
12.7 Accused stated that he told Irshad that 'Yaar Ammi (your Mami) had told him to call so could he make a call to her. He moved towards balcony then, he told him to make call from here. He gave signal to another person and went outside the room and placed gun at the back of Sethi. He told Irshad not to do this and that if they wanted to talk they could talk. Immediately, he called his wife from the balcony and said that he was settling accounts with 8-9 persons and when she would come, he would drop the keys tied with handkerchief from the balcony, who told him that she was reaching there within a minute. He saw that his wife had reached in the gali in a TSR. He tied keys (of the other house cum godown at Lajpat Nagar, Part-II, where sometime they used to reside) with handkerchief and dropped it down and told her not to ask questions and go from there quietly by taking key. He was afraid that she should not come upstairs otherwise those persons would misbehave with her. 12.8 When he was standing in the balcony, he saw that one black Qualis and two Santro cars were parked near Gate No.3 in which Matloob Ahmd (father of Irshad Ahmed), Ijaz Ahmed and Shamshad (brothers of Irshad Ahmed) were standing near the Santro Car. Babboo and Usman, both of whom were suppliers were also standing State vs Salim Hussain-SC 61/2012 18/56 ID No. 02403R0532142008 near the gate. He came inside and saw Nagma was going out of the guest room with her father. He asked Irshad as to what he wanted. He tried to enquire about the matter then, one person out of three unknown persons caught his neck. He told them that he was ready to give them whatever they want. He told that if they want these accounts and files, which he was having, then they could take it. He told him that what they will do of those papers and files. Those persons took out some cash from the almirah, which was about Rs. 7-8 lacs. Sadiq told to give him 10-15 signed cheques. He told him take it and immediately, he signed those cheques and gave those cheques to him. Since, those three persons were misbehaving with him and with Kailash Chand Sethi, so he had a quarrel with them. In the meanwhile, one person out of those brought a chopper from the kitchen and placed the chopper on the neck of Sh. Kailash Chand Sethi and during the quarrel, chopper hit him on his right thigh, which was bleeding. He was asked to start the TV and thereafter, one of those person had started TV on high volume. Then, when he tried to attack the persons, who had hit him on his thigh with the chopper, then third person out of those three unknown person shot him by taking gun from Liaqat, which hit on his chest on the right side. Then darkness spread in front of his eyes and he fell down and become unconscious.
12.9 Accused further deposed that thereafter, his mobile phone, which was lying in pocket of his shirt, which was on vibration mode got vibrated due an incoming call on mobile due to which his eyes were opened and he gained some consciousness. He found Sh. Kailash Chand Sethi was lying over him and almirah was lying over both of them. Firstly, he tried to remove almirah as he could move his right hand, when he failed to do so, then he made call on 100 number 3-4 times and then he called his wife, but her phone was found busy. Then, he called his wife as well as Raju Bhai (his friend), he apprised them that he had been shot. Raju Bahi told him that he was far away and his wife told me that she was reaching there at the State vs Salim Hussain-SC 61/2012 19/56 ID No. 02403R0532142008 earliest. Then, he received the call of Constable on his mobile, who inquired about his address and told him that they were standing at 115. He told them about his location. He again become unconscious and regained consciousness after he was being taken in the PCR Van to the Hospital. He was admitted in the Hospital and gained consciousness on the next day in the Hospital. He narrated about the incident to the Police. He joined the investigation even after discharge from the Hospital after 29 days.
12.10 Accused stated that he had not given any disclosure statement of the police. Initially, he had refused to sign the disclosure statement, but later on he was made to sign blank papers, while in custody and he was threatened by the police officials that his wife would be falsely implicated in this case and that his infant child would also remained in custody with his wife. Since, he had a infant child and therefore, under pressure of the police, he had signed blank papers. 12.11 He stated that in respect of the incident dated 06.10.2007 narrated by him, he had reported true facts to the police, but the police colluded with Nasim Ahmed, his father-in-law, Liyaqt and Firasat etc. and Irshad against whom, he had filed complaint and made them witnesses and falsely implicated him in the present case. He had also filed a private complaint against police officials of Police Station Greater Kailash, Part-I in the Court of Metropolitan Magistrate concerned as no progress was being made in the case arising out of the complaint filed by me, but he could not pursue the same because he was falsely implicated in the present case and he was confined to jail, therefore the said case was adjourned as sine-die on 02.02.2011 by the Court of Ms. Mona Tardi Kerketta.
12.12 Accused further stated that on 24.11.2011, he was already acquitted by the Court in case FIR No. 141/2007, PS Anand Parvat. He placed on record certified copy of said ordered dated 24.11.2011, (Ex.D-1). He stated that he was also acquitted by the Court of Sh. Vikrant Vaid, Learned Metropolitan Magistrate, Saket in the State vs Salim Hussain-SC 61/2012 20/56 ID No. 02403R0532142008 cheque bouncing case u/s 138 NI Act filed by Sh. Nasim Ahmed (PW-1) on 17.03.2012. Copy of the same is (Ex.D-2). On 28.12.2006, he had lodged the complaint with SHO, PS Lajpat Nagar. On the same day, he lodged another complaint with PS Lajpat Nagar against Irshad Ahmed and Ijaz Ahmed. He also lodged a complaint against Irshad Ahmed, Ijaz Ahmed, Nasim Ahmed and Firasat in PS Lajpat Nagar. They are all part of Ex.PW45/L. 12.13 In cross examination, accused deposed that there were many suppliers, who used to supply him embroidered furnishings and he had financial dispute with Liyakat, Firasat, Naseem Ahmed, Babbu, Usman and Sadiq . Voln. They had done over-billing. Azmat was one of the supplier. He denied that he owed money to the aforesaid suppliers. He denied that Rs.7.5 lacs were payable to Naseem Ahmad or he gave a cheque of Rs. 5lacs to Naseem Ahmad. Accused stated that his signed cheques were stolen which were misused by Naseem Ahmad in connivance with Irshad Ahmad his Ex-Manager.
12.14 Accused admitted that he had given Rs. 8 lacs by way of cash and a cheque of Rs.3 lacs to Liyakat and Firasat. Accused stated that he gave Rs. 3 lacs in cash later against the said cheuqe on their assurance that they would return the said cheque of Rs. 3 lacs to me, however, they did not return the same later on and misused the same by presenting the said cheque in the bank. Accused admitted that Liyakat and Firasat had filed a civil suit against him for recovery of Rs.3lacs against the said cheque. He stated that they wanted to extort money from him therefore, they filed a false case against him and his family members. Accused admitted that he had given a cheque of Rs.3lacs to Naseem Ahmad. He stated that he had given Rs. 3 lacs in cash later against the said cheuqe on their assurance that they would return the said cheque of Rs. 3 lacs to him , however, they did not return the same later on and misused the same by presenting the said cheque in the bank.
State vs Salim Hussain-SC 61/2012 21/56
ID No. 02403R0532142008 12.15 He stated that it was a matter of record that FIR no. 141/07 PS Anand Parbat was registered against him. Accused denied that he had to pay a sum of Rs. 60-70lacs to several suppliers referred, who were demanding money from him, and they were approaching him or were sending legal notices to him and were filing cases against him. Filing of cases by them was stated to be a matter of record regarding which he stated that they were filed to extort money. Accused denied the suggestion that he was disturbed or was feeling harassed because of the acts of the suppliers. Accused denied the suggestion that in order to get rid of the suppliers, who were demanding money from him and to teach them a lesson and in order to implicate them in a murder case, he hatched a conspiracy to kill his accountant Kailash Chand Sethi (deceased). Accused denied the suggestion that in pursuance to the said conspiracy on 06.10.2007, he called his accountant Kailash Chand Sethi in the evening and served him liquor and when he was under the influence of liquor, he killed him with the help of Irshad and in-laws of his brother Hashim with a knife. Accused denied the suggestion that thereafter, he shot himself with the help of Irshad by pulling his skin below the right side of his chest in order to show like that some other person had shot at him. Accused denied the suggestion that Irshad and in- laws of Hashim had run away from the spot after locking the door outside in order to portray that the offenders had fled away after committing the offence after locking the main door.
12.16 Accused admitted that he remained admitted in the hospital for about 29 days form 06.10.2007 onwards, but denied that he intentionally remained admitted in the AIIMS hospital for 29 days in order to avoid joining the investigation of this case or due to fear that truth might be revealed , in case he joined the investigation. He denied that he deliberately raised the volume of TV while committing or making preparation for the alleged offence. Accused admitted that when the volume of TV was high, his neighbourer came to his house and requested him to reduce the State vs Salim Hussain-SC 61/2012 22/56 ID No. 02403R0532142008 volume. Accused deposed that he had not made any complaint after his arrest in the present case either to the senior police official or in the Court that he was falsely implicated in this case. He stated that prior to his arrest, he had filed a complaint case u/s 156 Cr. P. C. in respect of the incident.
13. I have heard submissions advanced by Sh. Wasi Ur Rahman, Learned Addl. PP for the State and Sh. Sanjay Gupta , Learned Counsel for accused and have perused the record carefully.
Legal position
14. Before embarking on the discussion of the evidence, the crux of relevant legal position may be noted. Cardinal principle which is always kept in view in our system of administration of justice in a criminal case is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relives itself of that burden, the Courts cannot record a finding of the guilty of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is, not positively proved to be true, the accused would be entitled to acquittal. The criminal trial concern itself with the question, as to whether accused arraigned at the trial are guilty of the crime with which, they are charged and the Court has to test the evidence for its inherent consistency and the inherent probability of the story. Court has to scrutinize the evidence when there are testimonies of a large number of witnesses testifying before the Court, as in this case. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst the witnesses.
State vs Salim Hussain-SC 61/2012 23/56
ID No. 02403R0532142008
15. In "R. Shaji vs State of Kerala", 1 while reiterating the settled position of law, it was observed that, "the prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weaknesses in the defence put up by the accused. However, a false defence may be brought to notice, only to lend assurance to the Court as regards the various links in the chain of circumstantial evidence, which are in themselves complete. The circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established. The same must be of a conclusive nature, and must exclude all possible hypotehsis, except the one to be proved. Facts so established must be consistent with the hypotehsis of the guilt of the accused, and the chain of evidence must be complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must further show, that in all probability, the said offence must have been committed by the accused. Court convicting a person on the basis of the circumstantial evidence must apply the aforesaid principles".
16. In "Naseem Ahmed vs Delhi Administration2 ", it was observed that, in a case of circumstantial evidence, it is necessary to find whether the circumstances on which prosecution relies are capable of supporting the sole inference that the appellant is guilty of the crime of which he is charged. The circumstances, in the first place, have to be established by the prosecution by clear and cogent evidence and those circumstances must not be consistent with the innocence of the accused. For determining whether the circumstances established on the evidence raise but one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstances considered in isolation and divorced from the context of the over-all picture emerging from a consideration of the diverse circumstances and their conjoint effect may by themselves appear innocuous. It is 1 AIR 2013 SC 651 2 (1974) 3 SCC 668 State vs Salim Hussain-SC 61/2012 24/56 ID No. 02403R0532142008 only when the various circumstances are considered conjointly that it becomes possible to understand and appreciate their true effect."
17. In "Sharad Birdhichand Sarda Vs. State of Maharashtra's"3 it was noted that it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. Facts 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; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that 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.
18. Court has to consider the manner of giving evidence, surrounding circumstances, probabilities, motive for giving true or false evidence, intrinsic merit of the evidence, how it stands with other evidence adduced. Reliability of witnesses depends upon the accuracy of the witnesses, original observations of the evidence which he described; correctness and extent of what he remembers and his veracity. Court has to consider whether, in the circumstances of the case, it is possible to believe his presence at the scene and whether there is anything inherently improbable or unreliable in his evidence. His conduct during occurrence and subsequently also could be examined. Discrepancies which relate to material points, should not be lightly glossed over but must be assessed seriously. Trifling discrepancies must be ignored as natural discrepancies among honest witnesses. The broad facts of the case and not minor details have to be considered in weighing the evidence. Sometimes contradictions, embellishments, discrepancies can lend 3 AIR 1984 SC 1622 State vs Salim Hussain-SC 61/2012 25/56 ID No. 02403R0532142008 assurance to the credibility of prosecution case. Court has to weigh the evidence carefully in measuring its worth or worthlessness.
19. In "Appabhai vs State of Gujarat"4 it was observed that "the court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments of their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.''
20. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take place of legal proof. Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof. Whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. Discussion of evidence
21. On the anvil of the tests noticed above, now I shall advert to incriminating circumstances relied upon by the prosecution one by one to establish 4 1988(Supp) SCC 241 State vs Salim Hussain-SC 61/2012 26/56 ID No. 02403R0532142008 guilt of the accused.
Cause of death
2. First of all, I shall take up cause of death of deceased. Sh. Jeevan Sethi (PW-23) son of deceased identified dead body of his father Sh. Kailash Chand Sethi. Dr.Raghvender Kumar (PW-29) noted following injuries in postmortem report (Ex. PW29/A).
Injury no. 1 "cut throat wound present over the neck in front measuring 13 cm in length, 2 cm in breadth, organ deep, 10 cm below chin and 4 cm above the sternal angle; clotted blood present around the wound.
Injury No. 2 "incised wound measuring 2.5 cm x 0.4 cm x skin deep present over right side of neck, 1 cm above injury no.1. PW-29 opined that the cause of death as "shock as a result of hemorrhage" and opined that injury no. 1 was "sufficient to cause death in ordinary course of nature". All injuries were ante mortem in nature. Time since death mentioned was found 18 hours. Postmortem took place at AIIMS Hospital. There is nothing in the cross examination of the doctor Raghvendner Kumar (PW-29) who appeared to prove the post mortem report (Ex.PW29/A). Postmortem report (Ex.PW29/A) stands proved. Injuries noted above and the opinion establishes that death of Kailash Chand Sethi was homicidal and injury no. 1 was sufficient to cause death in the ordinary course of nature. Therefore, it stands established that the murder of Kailash Chand Sethi (deceased) took place inside the house of accused Salim Hussain i.e. N-115, second floor, GK-I, New Delhi.
23. Now, the next point to be addressed is whether it is the accused Salim Hussain who was responsible for causing the murder of his accountant Kailash Chand Sethi. Ld. Addl. PP for the State submitted that accused was the only person ,who could have narrated and explained as to how and under what circumstances, the incident took place because the incident took place inside his house. Accused has not given any plausible and probable explanation as to how the State vs Salim Hussain-SC 61/2012 27/56 ID No. 02403R0532142008 incident took place and rather he gave a false explanation in order to cover his complicity in the commission of offence.
Admittedly, deceased was in the company of accused, alive just before the incident, in the house of accused
24. Evidence on record shows that On receipt of DD no. 24-A at 08:30pm, Inspector Ganga singh (PW-63) alongwith other police official reached at the place of occurrence at House no. N-115, Second Floor, G. K. -I, New Delhi. Main door which was found locked, was broke opened and accused Salim Hussain was found inside alongwith Kailash Chand Sethi, who was found dead. There was a deep wound on the neck of deceased and a blood stained knife was lying there. It is an admitted case of accused that Kailash Chand Sethi, who was employed as accountant with accused was found murdered in the house of accused at N-115, IInd Floor, GK-1, New Delhi. Learned counsel for the accused has not disputed the fact that deceased was with the accused just before his death. Material on record establishes the fact beyond doubt that the deceased and accused were together alive at the time of alleged incident and deceased was found dead in the house of accused alongwith accused in an injured condition.
Onus shifts upon accused to explain circumstances in which murder took place.
25. In the context of the case, it is pertinent to note the observations made in Trimukh Maroti Kirkan vs State of Maharashta5 "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 the should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit 5 2006 (10) SCC 681 State vs Salim Hussain-SC 61/2012 28/56 ID No. 02403R0532142008 the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does preside over a criminal trial merely to see that no innocent man is punished. A Judge presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here, it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and its read: (b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no no duty at all on an accused to offer any explanation. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence to be considered - to use the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 63 at p.65 "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted." Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. The principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution, the initial presumption of innocent in favour of that person, and in the result prove him guilty. State vs Salim Hussain-SC 61/2012 29/56
ID No. 02403R0532142008 The presumption of innocence is, no doubt , presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property" though the latter is only a presumption of fact. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar & Ors. (2000) 8 SCC 382. Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in para 31 to 34 of the reports: The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. One the other hand, if the traditional rule relating to burden of proof if the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
It was further noted by the Hon'ble Supreme Court that when it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody." The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they have murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the State vs Salim Hussain-SC 61/2012 30/56 ID No. 02403R0532142008 prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. In a case based on circumstantial evidence where no eye- witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)]. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. There is an obligation to give a plausible explanation for the cause of death in his statement u/s 313 Cr. P. C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused."
26. This Court is in agreement with the submission of Learned Addl. PP for the State that in the factual matrix of the case, onus shifted upon the accused to explain the circumstances in which the incident of the murder of Sh. Kailash Chand Sethi (deceased)-his accountant took place at his house. The version put forth by the accused in his statement u/s 313 Cr. P. C as well as in his deposition on oath as DW-1, is that eight nine persons namely, Nagma, Liyakat Ali (PW-4), Irshad Ahmad (PW-7), Sadiq (PW-5), Firasat (PW-25, Matloob Ahmad, Ijaz Ahmad and three unknown persons had come to his house. He admittedly had called his accountant to State vs Salim Hussain-SC 61/2012 31/56 ID No. 02403R0532142008 come to his house. According to version of accused, he was insisted and threatened by Sadiq and other persons to call Kailash Chand Sethi after Sadiq saw on the screen of the mobile phone of accused that Kailash Chand Sethi was calling him and a gun was put on his neck and on threatening, he called his accountant. According to accused, he had seen Maltloob Ahmad and Ijaz Ahmad from the balcony of his house when he was making call to his wife . His wife had called him that she was near the flat but he asked her not to come as 8-9 persons came to his house and he had thrown the keys after tying them in a handkerchief which were picked up by his wife and when left . According to the accused, Nagma and her father, who had come, left his flat and on gun point, he signed 15 cheques at the instance of Irshad. He switched on the TV and increased the volume at the instance of one of the unknown person and one of the three unknown person had placed chopper after bringing it from the kitchen and placed it on Kailash Chand Sethi's neck. He tried to hold the hand of third person, who tried to stab him in his stomach. Accused tried to save himself and knife was stabbed in his right thigh and during scuffle knife was dropped from the hand of said unknown person which was picked up by him and he tried to hit the said person. Accused fell down and became unconscious. He came to his senses on hearing the mobile phone ring and noticed that Kailash Chand Sethi was lying over him and almirah was lying over both of them. He informed the Police at 100 number. Accused gave false explanation and persons named by him in his statement, were not present in Delhi on 06.10.2007.
27. Learned Addl. PP submits that the suspect persons named by accused in his statement were not present in Delhi on 06.10.2007 except PW Nagma, who was the resident of Delhi and it has been established during trial that the persons , most of whom appeared as prosecution witnesses and named by accused were found present at Bareilly in UP on the time and date of incident. State vs Salim Hussain-SC 61/2012 32/56
ID No. 02403R0532142008
28. Learned defence counsel submitted that the prosecution has tried to prove that the aforesaid persons were not in Delhi except PW Nagma, on the basis of the statement given by those persons and the other residents of the area in which the aforesaid persons were residing as well as from the call detail record of PWs Liyakat and Firasat, which according to the prosecution proved that they were in Bareilly on 06.10.2007.
29. It is argued that first of all, as per Nagma (PW-22), who was the resident of Delhi, she as well as her husband were using only one phone and her husband had no mobile phone. PW-22 stated that her husband during those days was bed ridden due to spinal injury. He urged that therefore, from the call detail records of Nagma (PW-22), it is proved beyond reasonable doubts that she had not gone to the house of the deceased on 06.10.2007, just because her cellphone location was showing the area of Jamia Nagar. It could be possible that her husband who was bed ridden had kept the phone with him, when Nagma had gone to the house of the accused.
30. It is submitted that as per Liyakat (PW-4) on 06.10.2007 at about 05:00 pm, he went PS Izzat Nagar and from there, he went to his house at 06:00pm at roza iftar and thereafter, he performed prayer in masjid with his brother and remained there till 09:30pm. As per Firasat (PW-25), on 06.10.2007, at about 06:00pm, he was present in the shop of Panditji, where he opened his roja and thereafter, he straightaway went to his house at around 08:00-08:30pm. He did not say that he went to masjid with his brother. Further, prosecution witnesses - Badrul Islam (PW-31), Abiduddin (PW-32) and Yamin Beg (PW-33) had stated that Liyakat (PW-4) had invited all the namazees for biryani on 06.10.2007 as it was the first death anniversary of his grandfather and he had made arrangement for iftar on that day and he had broken his fast at masjid. His brother Firasat was also present in the masjid at that time. Learned Defence counsel argued that the version given by Badrul State vs Salim Hussain-SC 61/2012 33/56 ID No. 02403R0532142008 Islam (PW-31), Abiduddin (PW-32) and Yamin Beg (PW-33) is contrary to the version given by Liyakat (PW-4) and Firasat (PW-25) and therefore, it is not proved beyond reasonable doubt that PW-4 and Firasat (PW-25) were in Bareilly on 06.10.2007. He submits that as call detail records of Liyakat (PW-4) and Firasat (PW-25), have not been proved in accordance with law as at the time of handing over of the said call details records no certificate under section 65-B had been given by the person who had downloaded the CDR from the sever. It is submitted that Liyakat (PW-4) and Firasat (PW-25) have not stated that they were the actual user of the two mobile phones in respect of which the CDR has been seized by the police. It is urged that simply because the SIM card had been subscribed in their name, it does not mean that they had been using the same as in the case of the Nagma (PW-22) , the same mobile phone was being used by her husband also. Thus, he argued that from the CDR, it cannot be conclusively proved that the Liyakat (PW-4) and Firasat (PW-25) were in Bareilly on 06.10.2007 specially in view of the fact that there is major contradiction in the testimony of Liyakat (PW-4) and Firasat (PW-25) Badrul Islam (PW-31), Abiduddin (PW-32) and Yamin Beg (PW-33) regarding the place of presence of Liyakat (PW-4) and Firasat (PW-25). Learned counsel submitted that for the reason best known to the IO, the call details records of other PWs were not taken by the IO, which also creates doubts in the story of the prosecution.
31. In order to appreciate the submissions, I shall now refer to the relevant evidence. Proseuction witnesses namely Mohd. Sadiq (PW-5), Naeem (PW-6), Irshad Ali (PW-7), Shamshad (PW-8), Usman (PW-9), Babbu (PW-10), Nawab Ali (PW-11), Mohd. Nafees(PW-12), Nawab Mia (PW-13), Parvez Khan (PW-14) and Qumar (PW-15 ) have categorically deposed that the persons named by the accused were present in Bareilly on 06.10.2007.
32. Mohd. Sadiq (PW-5) deposed that he was called in Police Station Izzat Nagar on 07.10.2007 at about 10/11:00pm through Liyaqat Ali. PW-5 deposed that State vs Salim Hussain-SC 61/2012 34/56 ID No. 02403R0532142008 Delhi police asked him to give in writing to show that he was in Bareilly on the date of incident, therefore, he gave affidavits of Qamar, Parvez, Afsar and Nawab to Delhi Police to this effect. PW-5 stated that Qamar, Parvez, Afsar and Nawab known to him and were residents of same locality of Bareilly. PW-5 denied that on 06.10.2007 in the evening, he was not present in Bareilly alongwith Qamar, Parvez,Sahib, Afsar, Liyaqat and Firsat etc. PW-5 denied that on 06.10.2007 he was with Babbu and Ushman at the house of accused Salim in Delhi. According to the version of accused, Matloob and Ijaz Ahmad were seen by him in the Santro car outside whereas, according to testimony of Naeem @ Pappu. (PW-6), he alongwith Matloob, Ijaz Ahmed offered Magrid namaz in the masjid in the evening of 06.10.2007. An affidavit (Ex. PW6/A) in this regard was also given to the police, during investigation.
33. Irshad Ali (PW-7) deposed that on 06.10.2007, Babbu, Usman, Nawab Ali and Shamshad were with them. It was month of ramzan and prayed namaz at 04:00 pm;04:30 pm and 08:00 pm and they had not left Bareilly. Shamshad (PW-8) deposed on the same lines that he, Babbu, Usman, Nawab Ali and Irshad Ali prayed namaz at Bareilly and they remained in the masjid after praying namaz at 08:20pm. At 09:30pm, t they took tea at the hotel of Ishakat situated in front of masjid. Usman (PW-9) deposed that on 06.10.2007, he alongwith Babbu, Shamshad, Irshad, Nawab Ali and Mohin Khan and other persons offered namaz in Shahnoor masjid from morning to evening as it was month of ramza. He stated that on 07.10.2007, police officials of PS Izzat Nagar called him and Babbu in police station for their payment. When they reached in police station, Liyakat, his brother met them there. Police officials of Delhi police also met them in police station, who told them that they were involved in incident committed Greater Kailash, New Delhi. Police officials brought Liyakat and his brother to Delhi. They also came to Delhi. PW-9 deposed that he was not involved in any incident at Greater Kailash as on the day of incident, he and Babbu were present in Bareilly.
State vs Salim Hussain-SC 61/2012 35/56
ID No. 02403R0532142008
34. Babbu (PW-10) deposed on the same lines as deposed by PW-9. He deposed that they informed Delhi Police that they had not gone to Delhi and they remained in Bareilly on06.10.2007. Badrul Islam (PW-31) deposed that on 06.10.2007, Liyakat invited all the namazees for biryani after Maghrib Namaz as it was the first death anniversary of his grand father. Liyakat also made an arrangement for iftar on that day as it was the month of ramzan. He deposed that about 100 people including Liyakat broke their fast at Iftar at the Masjid and thereafter, they all had dinner after namazMaghrib. PW-31 did not remember the exact time of namaz Maghrib but stated it was 06:00pm. PW-31 stated that Liyakat remained present alongwith them in the masjid from 05:00pm to 09:00pm. He stated that the time for Asar prayer was about 05:00pm. Liyakat left the masjid after offering Taravih Namaz/Ishah Namaz which was concluded at about 09:00pm
35. While appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution cannot prompt the court to reject the evidence in its entirety. Therefore, irrelevant details which do not in any way corrode the credibility of a witness can ignored. Court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness. The testimony of aforesaid witnesses has remained unimpeached in material particulars and no merit is found in the contentions of Learned counsel for accused. On scrutiny of evidence, it stands established that aforesaid persons were not present in Delhi and had not come at the residence of accused on 06.10.2007, at the time of incident, in the evening hours. This Court finds that the possibility of persons named by the accused being the author of crime has not been established by the accused and rather State vs Salim Hussain-SC 61/2012 36/56 ID No. 02403R0532142008 prosecution has proved that those persons were present at Bareilly, UP and were not present at the relevant time at Delhi. Evidence on record also establishes that accused Salim Hussain had made a false statement to the police about the incident. Injuries could be self-inflicted. Accused extended his stay in the hospital. He was fit to make statement but did not make statement at the earliest on 09.10.2007.
36. Learned Addl. PP submits that despite the fact that accused was fit for statement, he refused to make his statement to IO/Inspector Ganga Singh (PW 63), on 09.10.2007, i.e.after occurrence of such a heinous offence and rather, he stated to the police that he would give statement after consulting with his counsel. A Daily Diary no. 18/A (Ex.PW63/C) dated 19.10.2007 recorded in this regard has been proved. Accused did join the investigation and extended his stay in the hospital in order to avoid joining the investigation and to mislead the police. Learned counsel for accused submitted that the accused was admitted in AIIMS Hospital by the police and AIIMS is a reputed Govt. hospital and by no stretch of imagination it can be presumed that the accused could get his stay extended there. It is urged that Doctors constituting the Medical Board had not examined the accused personally and therefore their opinion, based on the examination of the treatment paper of the accused, could be wrong. Doctor after examining the injuries of the accused reported that the injuries being self- inflicted cannot be ruled out. It is argued that Doctor did not say that injuries were definitely self-inflicted and even it is not the case of prosecution that the accused had caused himself injured and injuries were self-inflicted. Learned Defence counsel submits that accused, who had suffered a serious gunshot injury, was under the influence of sedatives/pain killer and was not in a position to give statement to the police at that time. Neither the treatment record from the hospital had been collected by the Police nor the doctor who declared the accused fit for giving statement has been examined in this case to disprove it. It is submitted that IO did not know when the statement of the accused was later on recorded by him or at that time, his State vs Salim Hussain-SC 61/2012 37/56 ID No. 02403R0532142008 Advocate was present or not. In these circumstances, he argued that, statement of Retired Inspector Ganga Singh (PW-63) could not be treated as gospel truth, especially when Inspector R.D.Pandey (PW-62), who according to Inspector Ganga Singh (PW63) was accompanying him, has not stated about the alleged refusal to make statement by the accused in his testimony. He argued that even assuming for the sake of arguments, that accused refused to give statement in the absence of his lawyer, though not admitted, this by itself will not be an adverse circumstance against the accused.
37. Learned defence counsel urged that In the present case, the accused had himself filed a case under section 156(3) Cr.P.C. for seeking directions from the court as the police were making no progress in the police investigation, which complaint was adjourned sine-die by the court of Learned Metropolitan Magistrate, Saket, New Delhi on 02.02.2011 since the accused could not produce the documents, being confined to jail, thus, it cannot be held that the accused avoided joining the investigation and, in fact, police was acting in collusion with aforesaid witnesses and the accused was never asked to join the investigation. Inspector Rohtash Kumar (PW-64) has stated that no application was moved by him for issuance of any coercive measures against the accused, who further stated that he even did not know that the accused was attending different courts in various matter pending in the court. Therefore, Learned counsel argued that the inference that the accused was evading joining of investigation is without any basis and the prosecution has failed to prove it.
38. In rebuttal regarding refusal of accused to give his statement in the hospital, Learned Addl. PP submitted that contentions of defence counsel that he was under influence of sedatives or pain killers and was not in a position to give statement, is not tenable in the light of circumstances obtaining on record. DD No. 18/A (Ex.PW63/C) was recorded regarding refusal by accused to make statement on 09.10.2007. As a matter of fact, he knew that he was culprit and wanted to give his State vs Salim Hussain-SC 61/2012 38/56 ID No. 02403R0532142008 statement after consulting with a legal person in order to manipulate his statement in order to save himself. Learned Addl. PP argued that story put forward by the accused is neither not convincing nor probable and the circumstances proved by the prosecution complete the chain of circumstances, which point only toward guilt of accused and completely incompatible with the innocence of accused and circumstance on record, exclude every reasonable hypothesis consistent with his innocence. Therefore, accused is liable to be convicted for the offence charged.
39. Dr. Imtiakum (PW-30) proved MLC No. 127359/07 (Ex.PW-30/A) pertaining to the accused prepared by Dr. Avinash, CMO and Dr. Rishikant Sharma, showing external injuries i.e. tattooed dirty in injury 1cm x 1 cm x 1 cm at the sixth inter costal space between mid clavicular line and anterior axillary line; small injury 1cm x 1cm x 1cm at th seventh inter costal space at anterior axilliary line and incised wound at inner right thigh 2 cm x 2 cm x 2 cm. Amit Gupta (PW-52) declared accused Salim Hussain 'unfit for making statement' on 08.10.2007. He proved his endorsement (Ex.PW-52/A) on the application moved by IO for recording statement of the accused. According to PW-52, condition of accused was again reviewed on 09.10.2007 at 04:45pm by Dr. Gyan, the then SR, Surgery, Trauma Center, AIIIMS, who declared patient "fit for making statement". PW-52 identified signatures of Dr. Gyan on the application, as he had left the hospital and his present whereabouts were not known. PW-2 deposed that he had seen him signing and writing during the course of duties.
40. Dr. N. K. Aggarwal (PW-34) members of the Medical Board opined that the patient was admitted on 06.10.2007 and Inter Costal Drainage Tube (ICD) was inserted on the same day and ICD was removed on 11.10.2007 at 04:00pm. X-ray chest done post ICD, removal was not showing haemo-pneumothorax. So the patient's stay in hospital, with effect from 12.10.2007 to 30.10.2007 was not justified. On admission, ICD tube was inserted without any X-ray Chest done. IT was opined State vs Salim Hussain-SC 61/2012 39/56 ID No. 02403R0532142008 that the reason for putting an ICD tube without an X ray chest and normal vital signs was not justified. Thus, no definite opinion regarding nature of injuries no. 1 and 2 could be given. Injury no. 3 was simple in nature. In cross examination, PW-34 deposed that being a specialized case, member of Board thought that a Senior Specialist/Consultant (Surgery) should be included as a member to arrive at final conclusion. It was the decision of Delhi government to include Dr. Gulshan Jit Singh. PW-32 deposed that injuries could be self inflicted and there were only two superficial wounds over the right side of the chest. Wound no. 1 was stated to be having totteing but it was nowhere mentioned that whether these wounds entered the chest cavity or not. Injury no. 3 was over right side of the thigh. Dr. Gulshan Jeet Singh (PW-41) and Dr. Sone Lal (PW-53) other members of Medical Board corroborated testimony of PW-34. Retired Inspector Ganga Singh (PW63) deposed that on 09.10.2007, he went to AIIMS hospital for recording the statement of injured as the doctor declared him to be fit for statement. He deposed that, thereafter, he asked injured to give his statement regarding the incident of murder but injured did not give his statement and stated that unless and until his counsel would come, he shall not give his statement and shall give his statement in the presence of his counsel. PW-63 waited for his counsel in the hospital but the counsel for the injured did not come. PW-63 again asked injured to give his statement but he refused. Thereafter, PW-63 went to police station and got recorded DD no. 18/A (Ex. PW63/C) in this regard. Medical evidence on record shows that injuries on the person of accused were superficial in nature and could be self inflicted and his extended stay with effect from 12.10.2007 to 30.10.2007 was not justified. There is no merit in the argument advanced by learned Defence counsel that opinion is not definite, so it is of use.
41. Expert opinion cannot be always certain. Court has to consider and weigh it in conjunction with other pieces of incriminating evidence on record. It also stands established that extended stay of the accused in the hospital was not justified. State vs Salim Hussain-SC 61/2012 40/56
ID No. 02403R0532142008 Testimony of doctors, PW-34, Chairman of Medical Board as well as members (PW-41 and PW-53) proves the circumstance that accused did not make his statement on 09.10.2007 despite being fit stands. The reason assigned by accused that he was under the influence of sedatives or pain killers is not indicated from the record but it is established that accused wanted to make statement after consultation with his lawyer. It is true that this fact that accused wanted to consult his lawyer will itself not make it incriminating but when the circumstances are considered in its entirety, this delay in making statement on 09.10.2007 assumes importance and indicates that facts were being manipulated otherwise narrating incident to the police in the manner as it occurred, would not normally require any consultation with lawyer. PW-27 and PW-28 did not see anybody coming or going into the house. Unnatural conduct of accused, who had an opportunity to come out in the balcony and talk to his wife but he did not inform police or raised any alarm
42. Other incriminating circumstances relied upon by prosecution is that Smt. Madhushree Sen Gupta (PW-27) did not see any outsider coming or going to the flat of accused or passing through the staircase and accused did not sought her help or came out or raised noise or alarm, when he opened the gate at the time PW-27 had come and requested him to reduce th volume of TV. In reply, Learned defence counsel submits that PW-27 stated in her cross-examination that she remained outside the flat of the accused for few seconds only and she was going for an evening walk with her husband and she further admitted that her family and accused family were not on visiting terms inside each other houses. It is submitted that in these circumstances, it is possible that due to the said reason she had not noticed anybody coming or going to the house of the accused and for the said reason it was not possible for the accused to seek help of PW-27, when she knocked the door of his house specially when the accused was under the threat as there were many persons present in his house having pistol and chopper and the chopper was State vs Salim Hussain-SC 61/2012 41/56 ID No. 02403R0532142008 kept by them on the neck of the deceased. Therefore, Learned defence counsel argued that it cannot be a circumstantial evidence against the accused in the present case.
43. Ranjan Das (PW-28), servant at the Ground Floor in the said building, in his testimony deposed that twice the wife of the accused called him and requested him to see whether somebody is beating her husband and that he did not saw anybody coming of going to the Second Floor of the said building. In cross examination, he deposed that a party was going on at the Ground Floor which started at 06.30 p.m. Since, the witness is a servant and as per his own admission the party was going on 06.10.2007 from 06.00-06.30 p.m. onwards at the Ground Floor of the said house therefore, Learned Defence counsel argued that being servant his entire concentration must be to serve the guest and therefore it is possible that due to the said reason he could not have noticed anybody going up and down and PW-28 had not given his mobile number and therefore from the call detail record (Ex.PW39/E) of Ms. Parul Singh-wife of accused, it cannot be ascertained as to when PW-28 was called. Accused himself has stated that he made telephonic call to his wife. During the course of argument, Ms. Parul-wife of accused, who was present in the Court disclosed that the mobile number of Ranjan Das was 9871913752 to whom she had called at 08.25 pm and 08.27 - 08.30 pm on 06.10.2007 and by that time her husband had already sustained the injuries and she had called said PW after receiving a call from accused at 08.21 pm on the said date.
44. Smt. Madhurshri Sen Gupta (PW-27) deposed that on 06.10.2007 at about 07.45 p.m. she went to the house of the accused, her neighbourer and knocked the door and requested him to stop the noise of music of TV. Accused Salim, to whom she knew as Hussain opened the door, who agreed to stop the music but closed the door of flat immediately. She deposed that music was not stopped and after 10-15 minutes, police came knocking at her door and said 'idhar khoon hua hai'. PW-27 State vs Salim Hussain-SC 61/2012 42/56 ID No. 02403R0532142008 clearly deposed that she had not seen any outsider coming or going to the opposite flat or passing through the staircase. Ranjan Dass (PW-28) who was present at the ground floor at N-115, GK-I, New Delhi deposed that on 06.10.2007 at about 07.30-08.00 p.m, he received a telephone call from the wife of the accused that somebody was beating her husband and twice he went to the Second Floor from Ground Floor. He did not see anyone going or coming out from the said flat and he also heard the loud sound of TV.
45. Ranjan Dass (PW-28) as well as Smt. Madhushri Sen Gupta (PW-27) have categorically deposed that they had not seen any other person coming on going out of the house. 8-9 persons had allegedly according to accused, came to his house and it is not possible that neighbours will not see or notice any ingress or egress or noise in the premises in question in that case. Their evidence is cogent and convincing. There is nothing in the cross examination of these witnesses to impeach their veracity in this regard. Testimony of these witnesses establish these facts and corroborate other circumstances that the person named by accused were not in Delhi and had not come at the place of occurrence. These witnesses cogently prove that no outsider was seen by the neighbours. It does not appeals to the common sense that 8-9 persons would come in the neighbourhood flats and this fact would not come to their notice. It also stands established that TV was on and its volume was high. PW-27 had come to the flat of accused, she met accused at the gate and asked him to slow down the volume of TV/music, which was not stopped.
Unnatural conduct of accused and his wife.
46. As per statement of accused u/s 313 Cr. P. C., initially Nagma and her father had come to the house of accused thereafter, three unknown persons had come and Liyakat and Firasat had come. They were followed by Sadiq and Irshad-his manager. Three persons namely, Matloob, Ijaz and Shamshad were in car, near gate no.3 and Shamshad was standing near the Santro car. Accused further stated that State vs Salim Hussain-SC 61/2012 43/56 ID No. 02403R0532142008 Babbu and Usman were also standing near the car. According to the accused, he was settling with 8-9 persons, who had come to his house. According to the accused, he had gone to the balcony, where he had a telelphonic call to his wife and thereafter, his wife had came. He had dropped the keys tied with handkerchief from the balcony. He asked her not to ask question and to go away from there quietly. Smt. Madhushri Sen Gupta - his aunty (PW-27) had come at the gate of his house and accused had an opportunity to open the gate and asked her to reduce the volume of TV. Admittedly, accused did not raise any alarm and make hue and cry on both the occasions. Learned Addl. PP submits that this is a very important circumstance which shows the explanation given by accused to be improbable and false. It is submitted that the persons named by the accused in the complaint who according to him committed the offence, had permitted the accused to make telephone call to his wife and he raised no alarm or informed police or his wife despite having opportunity, is unnatural and highly improbable conduct. As a matter of fact, admittedly, according to accused alleged suspected persons were present inside the room with lethal weapons and life of accused was at stake. At that moment, as per the version of accused, he came out from the room in the balcony and talked to Smt. Parul-his wife in very easy and free manner and did not inform her about the incident and trauma being faced by him and what was being transpired inside the room. Accused did not seek any assistance from his wife. He had not asked her to make a call to the police. In that situation, it was natural that a person who was allegedly in grave trouble, found time and opportunity to raise alarm but accused did not do this which is against natural conduct.
47. Learned counsel submitted that the persons named by the accused as the culprit had come to the house of the accused to extract money and their intention was not to kill anyone and all these persons except three were known to the accused, as they were having business dealing with the accused. Therefore they permitted the accused to talk to his wife. It is argued that the murder was committed by them at the State vs Salim Hussain-SC 61/2012 44/56 ID No. 02403R0532142008 spur of the moment, when they started misbehaving and quarreling with the accused and deceased and committed the murder of the deceased with a chopper lying in the house of the accused. Prior to the quarrel which took place between the accused and those three unknown persons, their intention was only to extract money as they had not come to the house of the accused to commit murder and in these circumstances, Learned counsel desired the Court, to believe that there is nothing unusual to allow the accused to talk to his wife over phone before the incident. Story of accused is not at all convincing. This Court is in agreement with the submissions made by learned Addl. PP for State and finds that conduct of accused was not probable and natural.
48. This fact that assailants would have allowed the accused, to go to balcony and make telephonic calls from the balcony to his wife in the situation described by the accused is not acceptable. As per accused, incident occurred in a spur of moment as before making the said call, no such apprehension of criminal assault was there, whereas, as per the statement of the accused u/s 313 Cr.P.C. he had made a telephonic call to his wife informing her that he was threatened and gun was put on his head and he was under full fear and wife of accused had also made a telephonic call to PW-28 stating that someone was beating her husband. Telephonic call made by wife of accused to PW-28 before the incident, which clearly shows that wife of accused was aware about quarrel and that somebody was beating her husband but it is against her natural conduct that she neither informed the police nor took any action. Furthermore, explanation of the accused of happening of the incident in a spur of moment is neither factually correct nor plausible. Therefore, contention raised by Learned Defence counsel is rejected.
Motive
49. The motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to the accused themselves and it is not possible for the prosecution to explain what actually prompted or excited them State vs Salim Hussain-SC 61/2012 45/56 ID No. 02403R0532142008 to commit the particular crime. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. In the same way, even if there may not be an apparent motive but if the evidence of the witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.
50. Admittedly, Kailash Chand Sethi (deceased) was in the company of accused Salim Hussain before his death. Learned Addl. PP submits that accused had a motive to kill Kailash Chand Sethi-his accountant and to put blame on the persons, who appeared in witness box as PW-4, PW-5, PW-9, PW-10, PW-22 and PW-25, named by accused as assailants, as he had to obtain dues of lacs of rupees towards the work done by them at the instance of accused, which the accused was unable to return and in order to get rid of these persons, accused not only killed deceased but also named the aforesaid witnesses, as the persons who committed the offence. It is submitted that there is no material brought on record, which shows any kind of malafide intention of investigation agency to implicate accused falsely in this case and exonerate the suspected persons.
51. Learned defence counsel submitted that none of the witness with whom the accused was having business dealing i.e. Naseem Ahmad (PW-1), PW-4, Mohd. Sadiq (PW-5), Usman (PW-9),Babbu (PW-10)PW-25 were able to produce any statement of account which shows that the accused had to pay any amount to them. Mr. Gupta, Learned counsel argued that in fact, Naseem Ahmad (PW-1) , husband of Nagma had earlier lodged a false case against accused bearing no. 145/2007 P. S. Anand Parbat under section 307 IPC and in the said case, accused has already been acquitted vide Judgment dated 24.11.2011 (Ex. D-1). It is submitted that case under section 138 N. I. Act filed by him has also been dismissed by the trial Court on 17.03.2012, copy of which is (Ex. D-2). It is argued that in order to prove that accused State vs Salim Hussain-SC 61/2012 46/56 ID No. 02403R0532142008 owed them the money, these witnesses were required to produce their account statements, which these witnesses had failed to produce and there is only oral assertion of these facts by them. Naseem Ahmad (PW-1) and Liyakat (PW-4) in their cross examination stated that, they do not keep any account of their business dealings and in these circumstances, it cannot be believed that the accused owned them money and Sadiq (PW-5) stated that cheques of Rs. 4,00,000/- which was the accused had given to him, has been returned by him to the accused. Learned counsel appearing for accused argued that in these circumstances, it is not proved beyond doubt that the aforesaid witnesses were to take lakhs of rupees from the accused and that there was any motive for accused to implicate them in this false case. Learned Defence counsel further submits that as per the case of prosecution deceased had advanced a loan of Rs.70,000/- to the accused. Learned defence counsel argued that Jalaj Sethi (PW-18) who is son of deceased stated that his father had given Rs.70,000/- to the accused after withdrawing Rs.20,000/- from his account through ATM card and Rs.50,000/- from his own account. It as not the case of the wife of the deceased Smt. Kiran Sethi (PW-2 ) that her husband had given a loan of Rs.70,000/- to the accused. It is argued by Learned counsel appearing for accused that the motive put forward by the prosecution that the deceased was killed by the accused, as he was unable to pay loan amount of Rs.70,000/- was not proved by the prosecution. It is submitted that Jalaj Sethi (PW-18 ) in his cross-examination deposed that he could not produce the statement of his bank account from where the alleged amount of Rs.20,000/- was withdrawn. PW-18 further stated that he could not produce the statement of account of his father from where the alleged amount of Rs. 50,000/- was withdrawn by his father. It is pertinent to note the relevant evidence.
52. Raj Kumar Bhatia (PW-3) deposed that he knew Firasat, Babbu, Sadique and Liyakat and he had seen them in the office of accused where they used to come to demand their money from accused. (PW-3) deposed in clear terms that on State vs Salim Hussain-SC 61/2012 47/56 ID No. 02403R0532142008 06.10.2007, he visited Khanna Market, Lodhi Colony alongwith accused and left the accused at his residence at N-115, GK at about 05:00/06:00pm and saw co-accused Rashid servant of Salim (accused) at the residence. PW-3 deposed that his servant Rashid opened the door and they sat on the sofa. Rashid brought the juice. Rashid used to come at Vinobha Puri to meet accused Salim Hussain and he met him there. He remained with Salim at his house for about 5-7 minutes and then came downstairs and came back to his home. Liyakat (PW-4) deposed that he was running a Zari factory at Bareilly and used to do Zari work for accused Salim Hussain who used to look export work at Lajpat Nagar and used to pay amount for Zari work after some time when the work was completed and handed over to them. PW-4 deposed that they worked for Rs. 22 lacs for the accused and accused gave Rs. Eight lacs to them and remaining amount was not given by him to them. After about more than one year, accused handed over to them cheques for Rs. 3 lacs which were bounced. When accused did not pay their payment, they stopped to do work for the accused. They used to come to Delhi to raise their demand. They used to work for accused from since 2005. PW-4 deposed that accused did not pay the amount to Usman, Babbu, Mohd. Sadiq, Moinuddin.
53. Mohd. Sadiq (PW-5) deposed that he completed Zari work for about Rs. 26.5 lacs and accused made payment of Rs. 11.5 lacs to him. When PW-5 demanded money, accused Salim Hussain handed over to him three cheques for Rs. Four lacs , which were bounced. He lodged a report against accused Salim Hussain u/s 406/506 IPC and Section 138 NI Act in Police Station Baradari. PW-5 used to raise demand for his money but accused did not pay his amount on the one pretext or the other. PW-5 deposed that the payment was being made by accused Salim Hussain after completion of order after some days. The payments were being received by them in part against order and after receiving the part payments, accused Salim Hussain again used to issue fresh order for more amount. As per statement (Ex. PW5/DA), he State vs Salim Hussain-SC 61/2012 48/56 ID No. 02403R0532142008 received sum of Rs. 9,40,000/- including cheques and the cost of clothes was Rs. 2,18,646/- which was calculated for 8098 meter cloth @ Rs. 27 per meter. PW-5 admitted that rate of clothes was never written on the orders being given to them. PW-5 proved twenty vouchers (Ex. PW5/DB) produced by accused for payment received by them. PW-5 deposed that in the office of accused, the account work was being maintained by Kailash Chand Sethi (deceased). The vouchers of payment were being got signed sometime by the manager, sometime by the accountant and sometime by accused. PW-5 knew Liyakat, Firasat, Babbu,Usman and Naseem, who were resident of Bareilly. PW-5 placed on record purchase orders (Ex. PW5/DC-1 to Ex. PW5/DC-2) and purchase order no. 103 (Ex. PW5/DC-3) dated 19.04.2006, bore signatures of accused. The complaint was made on the basis of photocopies of three cheques (Ex. PW5/DD-2 to Ex. PW5/DD-4) for payment issued by the accused. PW-5 deposed that the cheques were presented for encashment, but were dishonoured. These cheques on the assurance and the would make the payment in cash and left away. PW-5 denied that he had already received payments against three cheques (Ex. PW5/DD-2 to Ex. PW5/DD-4) to the accused.
54. Usman (PW-9) deposed that he used to do the work of embroidery with his partner Babbu and name of firm was M/s Abda Hand Embroidery. He knew accused Salim as he used to do work of export of embroidery at 64, Lajpat Nagar, New Delhi. In the year 2006, they took the order from accused for embroidery work and after doing the work, they handed over the embroidery articles to accused. They had done the embroidery work of Rs. 18 lacs for accused. Accused had given about Rs. 70,000/- cash and Rs. 35,000/- on different dates in cash. PW-9 deposed that accused also handed over a cheque of Rs. 3.3 lacs but the said cheque was bounced. They used to ask for the payment from accused Salim. PW-9 had a talk with accused on telephone and demanded about Rs. 17 lacs from him for the work done by them for him. He deposed that his partner Babbu also used to come to Delhi for State vs Salim Hussain-SC 61/2012 49/56 ID No. 02403R0532142008 demand of money but accused did not pay any money. Accused asked him on telephone that he would not pay the amount. Babbu (PW-10) deposed on the same lines of Usman (PW-9). He deposed that PW-9 handed over photocopy of bills and photocopy of cheque to police. He placed on record copy of cash memo no. 154 to 160 (Ex. PW 10/A-1 to A-7) and original cheque number 086966 dated 30.08.2006 in the name of M/s Abda Bi Hand Embroidery issued by accused for J. Brothers Zari Export. Copy of said cheque is (Ex. PW10/B). PW-10 deposed that cheque was handed over to him by accused Salim.
55. Evidence on record establishes that the accused Salim Hussain had business dealings with the Liyakat, Firasat, Sadiq, Usman, Babbu, Shamshad and Nagma against whom he made allegations. Accused owed money to these persons namely, Naseem Ahmad, husband of Nagma, Liyakat, Firasat, Sadiq, Babbu and Usman. Accused Salim Hussain issued cheques to Liyakat and Firasat and the cheuqes were dishonoured for which, a separate criminal case was filed by them and also a criminal case FIR no. 141/2007 u/s 307/34 IPC was initiated at the instance of Nagma and Irshad Ali. The fact that accused after trial was acquitted in the cases, will not wipe out and erase all the facts as, the factum of business dealing and issuance of cheques is not disputed by the accused himself after trial of the case. It also appears from the record that accused owed money to the deceased Kailash Chand Sethi. It is neither necessary nor relevant that sons of deceased should have proved source of that money or his statement of account, as argued by Learned counsel. Court has to consider evidence as a whole and has to find out the broad probabilities witnesses are not expected to possess photographic memory of each and every detail. It is cogently established by the prosecution that accused named several persons who were not in Delhi and at his house, at the time of incident and that accused had liability to pay huge amount to those persons, whose accounts were not settled, whereas deceased, who was accountant of accused, was called at the State vs Salim Hussain-SC 61/2012 50/56 ID No. 02403R0532142008 place of occurrence by the accused.
Conspiracy
56. Accused Salim Hussain has been charged for agreeing with Rashid and Irshad (both of whom are absconding) for hatching conspiracy to commit murder of Sh. Kailash Chand Sethi and was specifically charged for committing murder of Sh. Kailash Chand Sethi in pursuance to the aforesaid conspiracy. Learned Counsel for the accused submitted that the police is unable to explain as to why Irshad is hiding himself if he was not involved in commission of offence and police made no efforts to trace him despite having his mobile number 9868915098 which appeared in the complaint dated 03.01.2007 relied upon by the prosecution in the charge-sheet, whereas in the present case the police is heavily relying upon the CDR of various mobile numbers and it will be not out of place to mention here that the accused in December, 2006 had made a complaint against said Irshad regarding stealing of his cheque book and other papers by him from the office of the accused. It is argued that in fact, the PWs had used the said cheques illegally in collusion with Irshad and it is strange that Irshad on 03.01.2007 lodged a complaint to the police regarding the alleged threats given by the accused, had not come forward till date to prove himself innocent. Police in collusion with the witnesses had without any basis given the clean chit to said Shri Irshad, who in fact was the main conspirators with above named PWs in the murder of the deceased Kailash Chand Sethi. It is submitted that it is needless to say that police had not fairly investigated the case and had given clean chit to Irshad despite the fact he is absconding, for which there is no explanation or any reason given by Mohd. Sami (PW-20), who is Jija of Irshad. PW-20 deposed in his cross-examination that Irshad even did not come to his home on death of his wife and is not available since 06.10.2007.
57. Learned defence counsel submitted that the entire case of the prosecution is based on assumption and on surmises and conjectures and police is State vs Salim Hussain-SC 61/2012 51/56 ID No. 02403R0532142008 not able to recover the gun with which the accused had been shot and there is no explanation given by the police for non-recovery of the same and testimony of PW-3, is not corroborated by any other witnesses, therefore, it cannot be conclusively held that Rashid was present in the house of the accused and police has not examined any relative of Rashid in this case to prove that Rashid is missing or hiding himself.
58. As far as Irshad is concerned, charge sheet itself notes that his presence and involvement in the murder of Sh. Kailash Chand Sethi has not been substantiated and no evidence about his presence at the scene of crime has come on record. Incriminating circumstances noted above, clearly proves the complicity of accused Salim Hussain in the commission of murder of Sh. Kailash Chand Sethi- deceased but since, a charge u/s 120-B IPC is framed, therefore, this point has also to be addressed whether from the facts and circumstances established on record, can it be inferred that Rashid s/o Nawab, conspired with accused Salim Hussain in committing murder of Sh. Kailash Chand Sethi. This Court is of the considered opinion that answer to this question has to be in the affirmative.
59. Testimony of Raj Kumar Bhatia (PW-3) makes it clear that when he came at the house of accused at 05:00/06:00pm, on 06.10.2007, Rashid - the servant of accused was present there and it was he who had opened the door of the flat and he served juice to Raj Kumar Bhatia (PW-3). Admittedly, Rashid could not be apprehended and is absconding since the day of incident. It is established that Rashid servant of accused was present at the house of accused, who has not uttered and has not explained as to at what time Rashid had gone or disappeared. Medical evidence shows that injuries sustained by accused, could be self-inflicted. As per the deposition of Inspector R.D. Pandey (PW-62) when they entered into the house after breaking upon the entrance door of the house of the accused, he found the deceased was lying over the injured and above them an almirah was lying upon. Inspector Ganga Singh (PW-63) admitted that an almirah was lying upon the injured/accused State vs Salim Hussain-SC 61/2012 52/56 ID No. 02403R0532142008 when he entered into the flat of the accused after breaking upon the door. A person, first of all cannot shot himself and thereafter place an almirah over his body, specially when he is lying in an injured condition. There has to be someone else and evidence so indicate that Rashid was present. Admittedly, gun has not been recovered. Version of the accused,that the persons named by him as the perpetrator of the crime has been 'disproved' by the prosecution and it has been established that the persons who had been named by accused were not present in Delhi at the place and time in question, therefore, the only inference which can be drawn from all circumstances commutatively is that the gun was used by the accused for causing self-inflicting injuries was taken away by none else but by Rashid.
60. Accused was examined as DW-1 in the witness box and gave a detailed statement. This Court finds no merit in the contention of Learned defence counsel that during cross examination by Learned Addl. PP for the State of DW-1-the accused, a suggestion was given to him that he hatched a conspiracy with Irshad and in-laws of his brother Hashim to kill the deceased in order to get rid of the deceased and the suppliers who were demanding money and therefore, prosecution itself is not clear as to with whom the accused had allegedly hatched the conspiracy and whether it was with Irshad or Rashid or with in-laws of his brother Hashim. This contention of Learned counsel for accused is against the record that no one had seen Rashid, accused and deceased present at the spot at the same time. Raj Kumar Bhatia (PW-3) had seen that Rashid was present in the house of the accused when he went there to the house of the accused drop him there. Rashid had opened the door and had brought juice for him. PW-3 clearly identified Rashid and deposed that he knew Rashid as he used to come at Vinoba Puri to meet accused Salim and he met him there. He remained with Salim for about 5-7 minutes and then came down and went back to his house. He again received a phone call from Salim Hussain after one hour. His voice was not clear. PW-3 stated that after 5-7 minutes , he again received call State vs Salim Hussain-SC 61/2012 53/56 ID No. 02403R0532142008 from Salim Hussain , who was saying sethi ko maar diya, sethi ko maar diya. PW-3 has not stated that accused Salim named any other person who killed Sethi.
61. Privacy and secrecy are characteristics of conspiracy. It is not possible for the prosecution to give an affirmative evidence about the details of the formation of the criminal conspiracy. It is well known that conspiracies are secretly planned and can be proved only by circumstantial evidence and by drawing inferences from the surrounding circumstances. Lack of direct evidence relating to conspiracy has no consequence . It is not necessary that each conspirator must know all the details of the scheme or should be a participant at every stage. In the present case, trust worthy evidence establishing all links of circumstantial evidence noted above against the accused Salim Hussain is available. All circumstances coupled with the presence of co accused Rashid at the time of visit of Raj Kumar Bhatia (PW3) which has remained unshattered in the cross examination and the factum of disappearance of Rashid and also the fact that the gun with which a shot was fired and used in causing self-inflicting injuries to the accused is not recoverable establishes the existence of reasonable grounds to believe that Rashid, who was present with accused Salim Hussain soon before the incident had conspired with him. Therefore, contention of the Learned defence counsel that the charge-sheet is totally silent as to what was the role allegedly played by Rashid in the commission of the alleged offence is liable to be rejected and this Court holds that accused Salim Hussain conspired with Rashid in committing murder of Kailash Chand Sethi.
62. This Court finds that the possibility of persons named by the accused being the author of crime has not been established by the accused rather prosecution has proved that those persons were present at Bareilly, UP and were not present at the relevant time at Delhi. This fact coupled with other proved circumstances narrated above complete the chain and lead to the inevitable conclusion that it was accused , who was the perpetrator of the crime of committing murder of Kailash Chand Sethi-his State vs Salim Hussain-SC 61/2012 54/56 ID No. 02403R0532142008 accountant and he thereafter, caused self-inflicted injuries and made a false statement for misleading the police , managed his unwarranted stay in the hospital and delayed in making statement in order to screen himself from the punishment.
63. It will not be out of place to note that the role of Investigating Officer/Inspector Rohtash Kumar (PW-64) in ascertaining the facts and collecting several pieces of evidence is commendable.
Conclusion
64. On appreciation of evidence on record as a whole, this Court finds that prosecution has established following facts and circumstances :
(i) Homicidal death of Kailash Chand Sethi toook place in the house of accused.
(ii) Sh. Kailash Chand Sethi (deceased) was in the company of the accused just before his death. (iii) persons named by accused in his complaint as assailants including PW-4, PW-9,
PW-10 and PW-25 were not present in Delhi at the time and place of occurrence.
(iv) Accused furnished false information to the police. (v) Smt. Madhushree Sen Gupta (PW-27) and Ranjan Das (PW-28) did not see any
outsider coming or going to the house of the accused or passing through the staircase.
(vi) Accused made a telephonic call to his wife from balcony and according to accused persons named by the accused in his complaint permitted accused to make and receive telephone calls to his wife and other persons at the relevant time, which is highly improbable.
(vii) Unnatural conduct of accused in not raising any alarm or informing his wife or police about the incident despite there being sufficient opportunity to do so.
(viii) Volume of TV/music was high at the time of incident, which was not slowed down despite request of PW-27.
(ix) As per Medical Evidence it could not be ruled out that the injury sustained by the accused were self-inflicted.
(x) Unnatural conduct of accused in not seeking help of Smt. Madhushree Sen Gupta (PW-27), who had come at the gate of accused's house.
(xi) Despite being declared fit, accused Salim Hussain refused to give his statement and detail of incident to Inspector Ganga Singh (PW-63) on 09.10.2007 and made statement on 11.10.2007.State vs Salim Hussain-SC 61/2012 55/56
ID No. 02403R0532142008
(xii) Accused extended his stay in the hospital w.e.f 12.10.2007 to 30.10.2007, in order to avoid joining the investigation and misleading the police.
(xiii) Rashid-servant of accused was seen in the house of accused soon before the incident by PW-3. Rashid was party with the accused in the conspiracy to commit murder of Kailash Chand Sethi.
(xiv) Motive of the accused was, to kill the deceased and to put the blame and to get rid of PW-4, PW-5, PW-9, PW-10, PW-22 and PW-25, with whom accused had business dispute and had to pay them lakhs of rupees.
65. To conclude, in view of the aforesaid discussion, this Court finds that the chain of circumstances is complete and cumulative effect of the established facts noted above, leads to a singular hypothesis that accused is the perpetrator of the crime in question and there is no ambiguity, doubt or possibility of a third person committing the said crime. Therefore, this Court holds that prosecution has proved the charges beyond reasonable doubt. In view of aforesaid reasons, accused Salim Hussain is hereby convicted for the offences punishable u/s 302 IPC r/w 120-B as well as U/s 203 IPC.
announced in the
open Court
on 30th October 2013 (Vinay Kumar Khanna)
Additional Sessions Judge-04 & Special Judge
(NDPS) South East, Saket Court/New Delhi
State vs Salim Hussain-SC 61/2012 56/56