Delhi District Court
Of The Apex Court Made In Mani vs State Of Tamil Nadu, J.T. on 24 December, 2011
State v. Mohd. Rashid @ Kala
State v. Chaman Parvez
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 (CENTRAL)
TIS HAZARI COURTS DELHI
SC No. 86 of 2009
ID No. 02401R0412252009
FIR No. : 63/2009
PS : Kamla Market
U/S : 302/34 IPC
Date of institution : 20.08.2009
Date of committal to Sessions Court : 07.09.2009
IN THE MATTER OF:
STATE
versus
1. MOHD. RASHID @ KALA @ KALU
S/o Mohd. Rafiq
R/o H. No. 2609, Mohalla Nihariyan
G. B. Road, Delhi
.......Accused no1.
2. CHAMAN PARVEZ
S/o Mohd. Illyash
R/o H. No. 2577,
Mohalla Nihariyan, Delhi
SC No. 86/09 & 32/10 1 of 57
State v. Mohd. Rashid @ Kala
State v. Chaman Parvez
.......Accused no2.
AND
SC No. 32 of 2010
ID No. 02401R0261202010
FIR No. : 63/2009
PS : Kamla Market
U/S : 302/394/34 IPC & 201
IPC r/w 25 Arms Act
Date of institution : 10.06.2010
Date of committal to Sessions Court : 01.07.2010
IN THE MATTER OF:
STATE
versus
CHAMAN PARVEZ
S/o Mohd. Illyash
R/o H. No. 2577,
Mohlla Nihariyan,
G.B.Road, Katra Gafoor Baksh,
Delhi
.......Accused
Date of judgment reserved on : 16.12.2011
Date of pronouncement of judgment : 24.12.2011
SC No. 86/09 & 32/10 2 of 57
State v. Mohd. Rashid @ Kala
State v. Chaman Parvez
Present : Sh. R.K. Tanwar, Additional Public Prosecutor for the
State
Sh. Ashutosh Bhardwaj, Advocate, Counsel for accused
Rashid @ Kala
Sh. Raman Aggarwal, Advocate, Amicus Curiae for
accused Chaman Parvez
J U D G M E N T:-
1. Sessions Case No. 86 of 2009 and 32 of 2010 are the subject matter of this judgment. It is pertinent to point out that both the above cases arose from the incident occurred in FIR No. 63 of 2009 under Section 302/34 IPC PS Kamla Market.
2. Briefly stated facts of prosecution case are that on May 15, 2009 at about 11.10 PM an information was received in the police station Kamla Market that police control room had received an information from mobile phone bearing no. 9871320896 that one person had been stabbed at near room no. 64, G.B. Road, Kamla Market. Said information was recorded as DD No. 37A, which was assigned to SI Brijesh Mishra and intimation was also given to SHO Kamla Market and inspector ATO on their mobile phone as well as physically. Said DD has been exhibited as Ex. PW4/C during the trial.
SC No. 86/09 & 32/10 3 of 57
State v. Mohd. Rashid @ Kala
State v. Chaman Parvez
3. On receipt of DD No. 37A, SHO along with staff reached the place of occurrence and found lot of blood in the corridor near shop no. 60, G.B. Road. S.I. Brijesh, HC Narender and const. Ramesh were also met there. During inquiry, it was revealed that PCR Van had taken two injured persons to JPN Hospital (hospital in short). After leaving const. Ramesh at the spot, SHO along with SI Brijesh and HC Narender Singh left for the hospital. On reaching there, investigating officer i.e. SHO PS Kamla Market collected the MLC No. 61005 and 61006 of two unknown persons, who had already been declared brought dead. Since, HC Narender Singh stated that he had witnessed the incident, he got recorded his statement to the investigating officer, which has been exhibited as PW2/A during the trial.
4. In his statement, HC Narender Singh alleged that on May 15, 2009, he was on patrolling duty in the area of G.B. Road. During patrolling at about 11.00 p.m., when he reached in the corridor opposite shop no. 61 G.B. Road, he saw that 2-3 boys were beating two persons who were looking Military personnel in appearance and they were grappling with each other. It was alleged that Chaman was one of them and he knew him previously. It was alleged that Chaman had taken out a knife from his pant and asked his companions to catch hold them, consequently his companions had caught hold one of them and accused Chaman had given 5-6 blows of knife. It was alleged that when second military type SC No. 86/09 & 32/10 4 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez personnel came to rescue his colleague, Chaman had stabbed him twice. It was stated that he dispersed the crowd and when he raised an alarm pakro-pakro all three assailants fled away from the spot. It was stated that though he tried to apprehend them with the help of public, yet they succeeded in escape. In the meantime, someone had informed the police, consequently, PCR Van reached there and took both the injured to the hospital. It was alleged that both the persons had died due to the injuries inflicted by accused Chaman by the means of knife as well as beatings given by the companions of accused Chaman. It was stated that he could identify his companions as he had seen them in the light of electric bulb. On the basis of his statement, investigating officer had prepared a rukka, which has been exhibited as Ex. PW24/A during trial, and sent SI Brijesh Mishra to the police station to lodge an FIR. Accordingly, an FIR for the offence punishable under Section 302/34 IPC was registered.
5. It was alleged, thereafter, investigating officer along with staff reached the spot and also summoned crime team. Blood control, earth control and blood samples were taken from the spot and sealed in separate pullandas and sealed with the seal of B.S. Dead body of both unknown deceased were sent to Mortuary of MAMC, Delhi. During investigation, it was revealed that one of the deceased was const. J.C. Solanki whereas another was const. C. Punraj and both belonged to 5th Bn. Tirchannapalli Tamil Nadu, RPSF. After post- mortem, their dead body was handed over to their Company SC No. 86/09 & 32/10 5 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez Commander, Inspector Mohd. Arif Jaan. After post-mortem, doctor had given the clothes of deceased and exhibits to the investigating officer, which were seized.
6. As per prosecution version, accused Rashid @ Kala was arrested on May 19, 2009 on receipt of a secret information. On his search, one gold chain having blood stain marks was found from his possession. During interrogation, accused Rashid @ Kala disclosed that the said chain belonged to one of the deceased as he had snatched the same from the deceased. During investigation, it was also revealed that the weapon of offence was with accused Chaman Parvez, who was absconded. Proceedings under Section 82 Cr.P.C. were initiated against him. In the meantime, a challan for the offence punishable under Section 302/34 IPC was filed against the accused Rashid @ Kala.
7. As per prosecution version, on March 11, 2010 an intimation was received vide DD No. 20A that accused Chaman Parvez had been arrested in case FIR No. 14/10 under Section 186/353/307 IPC read with Section 25 of the Arms Act by the police of PS Special Cell. Accordingly, an application for production of the accused was moved in the concerned court, thereafter on March 18, 2010 accused Chaman Parvez was arrested after obtaining necessary permission from the Court. Accused was taken on police remand. During interrogation, accused made a disclosure statement and SC No. 86/09 & 32/10 6 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez pursuant to his disclosure statement led the police party to his house and produced one tin lying in his house. One knife having blood stains and one blue colour jeans pant and one white shirt cut into three pieces having blood stains and partly burnt were found from the said tin. It was stated that the recovered pant and shirt were worn by the accused at the time of commission of offence. Accordingly, Section 201 IPC for disappearance of evidence and Section 25 of the Arms Act were also added in the charge sheet against accused Chaman Parvez. All exhibits were sent to FSL for analysis.
8. Accordingly, supplementary challan was filed against the accused Chaman Parvez.
9. Challan qua accused Rashid @ Kala was committed to the Court of Sessions on September 3, 2009, which was assigned to the predecessor of this Court and registered as Sessions Case No. 86 of 2009. Challan qua accused Chaman Parvez was committed to the Court of Sessions on June 29, 2010 and was assigned to the predecessor of this Court on July 1, 2010. Accordingly, case was registered as Sessions Case No. 32 of 2010.
10. Vide order dated July 14, 2010 Sessions Case No. 32 of 2010 was clubbed with Sessions Case No. 86 of 2009.
11. Initially vide order dated January 27, 2010 a charge for the offence punishable under Section 302/34 IPC read with Section SC No. 86/09 & 32/10 7 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez 103 Delhi Police Act was framed against accused Rashid @ Kala. After the arrest of accused Chaman Parvez, vide order dated August 19, 2010 a fresh charge for the offence punishable under Section 302/34 IPC read with Sections 394/397/398 IPC was framed against both the accused to which they pleaded not guilty and claimed trial. A separate charge for the offence punishable under Section 201 IPC read with Section 25 Arms Act was framed against the accused Chaman Parvez to which he pleaded not guilty and claimed trial.
12. In order to bring home the guilt of accused persons, prosecution has examined as many as 24 witnesses. For the purpose of discussion, all the witnesses have been classified in the following six categories:
(A) EYE WITNESSES: (i) PW1 ASI Narender Singh, sole eyewitness (B) MATERIAL WITNESSES: (i) PW5 HC Man Singh, witness of recovery of chain, his
testimony remained incomplete due to his death.
(C) CONNECTING WITNESSES:
(i) PW6 SI Dhan Singh, in-charge of mobile crime team,
proved the crime report.
(ii) PW10 HC Kanta Prasad, proved the PCR Form
SC No. 86/09 & 32/10 8 of 57
State v. Mohd. Rashid @ Kala
State v. Chaman Parvez
Ex. PW10/A
(iii) PW16 ASI Jagdish Parsad, in-charge of PCR van, removed
the injured to the hospital
(iv) PW19 ASI Senser Pal, proved the arrest of accused
Chaman Parvez in case FIR No. 14/2010.
(v) PW20 HC Ajay Kumar, MHC (M)
(vi) PW22 Const. Dinesh, photographer, proved the
photographs of the spot
(D) MEDICAL & SCIENTIFIC WITNESSES:
(i) PW11 Dr. Amit Sharma, Assistant Professor, proved the
autopsy report of deceased persons.
(ii) PW13 Dr. Sreenivas, Associate Professor, proved his
report regarding weapon of offence.
(iii) PW14 Dr. Pummy, Medical Officer, proved the MLC of
deceased persons
(iv) PW23 Mr. Indresh Kumar Mishra, Sr. Scientific Officer,
Biology
(E) FORMAL WITNESSES:
(i) PW1 Inspector Mohd. Arif Jan, Company Commander
of deceased persons, identified their dead body and recovered chain.
(ii) PW3 Const. Prajul V.C., collegue of deceased, identified their dead body and identified the SC No. 86/09 & 32/10 9 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez recovered chain.
(iii) PW4 ASI Mahender Singh, duty officer, proved the FIR, DD No. 37A and DD No. 38.
(iv) PW7 SI Mahesh Kumar, draftsman, proved the scaled
site plan Ex. PW7/A.
(v) PW12 Const. Ramesh, preserved the spot
(vi) PW15 HC Darshan Lal, delivered the copy of FIR at the
residence of learned Metropolitan Magistrate and DCP, Central
(vii) PW17 Sita Ram, intimation of incident was given to the police from his mobile phone
(viii) PW18 Sh. Sanjay Chhana Bhai Solanki, brother of deceased J.C. Solanki, identified the recovered chain
(ix) PW21 HC Devender Kumar, proved DD No. 20A (F) MEMBERS OF INVESTIGATING TEAM:
(i) PW8 Inspector Brijesh Mishra,
(ii) PW24 Inspector Bala Sharma, investigating officer
(iii) PW25 Inspector Vikramjeet Singh, investigating officer
qua accused Chaman Parvez.
13. It is pertinent to point out that inadvertently no witness is examined as PW9.
SC No. 86/09 & 32/10 10 of 57
State v. Mohd. Rashid @ Kala
State v. Chaman Parvez
14. Thereafter, both the accused were examined under Section 313 Code of Criminal Procedure wherein both the accused denied all the evidence led by the prosecution. Accused Rashid @ Kala took the plea that he was picked up from his house and no chain was recovered from his possession. It was stated that PW2 had not uttered even a single word against him in his statement Ex. PW2/A, and in his supplementary statement Ex. PWDX-1, he had not stated that Rashid was present at the spot or committed any offence. It was stated that police had falsely implicated him to solve the blind double murder case. However, he preferred not to lead any evidence in his defence.
15. Accused Chaman Parvez took the plea that since he had already been held guilty in NDPS case, police had falsely implicated him in this case to solve the blind double murder case. It was stated that he had never indulged in body assault matter in his entire life. It was stated that he had never resided at Katra Gafur Baksh at any point of time. However, stated that at the time of incident, daughter of his sister was residing there as he had handed over the said house to her. It was stated that at the time of incident, he was residing at Subhash Mohalla, Gali No.20 Noori Ilahi, behind Yamuna Vihar, Delhi. He also preferred not to lead any evidence in his defence.
16. I have Sh. R.K. Tanwar, learned Additional Public Prosecutor for the State, Sh. Ashutosh Bhardwaj Advocate, learned SC No. 86/09 & 32/10 11 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez counsel for accused Rashid @ Kala and Sh. Raman Aggarwal Advocate, Amicus Curiae for accused Chaman Parvez and perused the record carefully.
17. Sh. Ashutosh Bhardwaj learned counsel appearing for accused Rashid @ Kala vehemently contended that there is no iota of admissible evidence against the accused to establish that accused had played any role in the commission of alleged murder. It was strenuously contended that entire prosecution case is based on the testimony of PW2 but he in his statement Ex. PW2/A had not uttered even a single word against the accused. It was submitted that in his entire deposition, PW2 had not attributed any role of Rashid @ Kala in the commission of alleged murder. It was vigorously argued that no reliance can be placed on the alleged recovery of chain as there was no public witness; it was not identified by any of the witnesses during the identification parade. Even in the charge-sheet it was not mentioned to whom it was belonged to. It was contended that identification of chain first time in the court by the witnesses has no value. It was contended that there is no evidence to prove the involvement of accused for the offence punishable under Section 394/397/398 IPC. It was further contended that even as per the disclosure statement of accused no offence is proved under Section 302 IPC. On the contrary from the disclosure statement it is established that accused had no common intention in committing the murder of deceased persons. It was stated that from the testimony of SC No. 86/09 & 32/10 12 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez PW24 it becomes clear that she had not conducted the investigation with sincerity and diligently and left several inherent defects in the investigation.
18. Sh. Raman Aggarwal learned counsel appearing for accused Chaman Parvez vigorously contended that PW2 was not present at the time of alleged incident and due to that reason he had neither informed the police control room or the local police station. It was further submitted that PW2 had made no effort to apprehend the culprits. It was urged that PW2 was not even sure about the number of assailants as he started his deposition from one and ended with four assailants. It was argued that it was just impossible for a single accused to kill two armed force personnel in the presence of police official. It was contended that to solve a blind double murder case, investigating officer had planted PW2 as an eyewitness. It was urged that even there is no evidence that PW2 was on patrolling duty in the area at that time. It was further contended that the alleged recovery from the accused Chaman Parvez is planted as it was not affected in the presence of any independent witness and blood found on the alleged clothes was not tallied with the blood of deceased. It was argued that the jeans pant allegedly recovered at the instance of the accused was planted and due to that reason it was not damped whereas other clothes were found damped in the tin. It was further submitted that from the postmortem report of both the deceased it is established that two weapons were used in the commission of crime, SC No. 86/09 & 32/10 13 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez which falsifies the version of PW2. It was further contended that autopsy reports prove that both the deceased had died much prior to 11.00 PM as alleged by the prosecution. It was contended that accused has been falsely implicated in this case.
19. Per contra, learned Additional Public Prosecutor contended that PW2 was a chance witness as he was on patrolling duty at that time and he had witnessed the entire incident with his own eyes and vividly described the incident in the court. It was argued that mere fact that there are certain lapses in his deposition is not sufficient to discard his testimony. It was contended that though PW2 had not disclosed the name of accused Rashid @ Kala in Ex. PW2/A, but he categorically stated that he could identify him and subsequently at his instance police had not only nabbed the accused Rashid @ Kala, but also one broken gold chain, which was belonged to deceased J.C. Solanki was recovered from his possession, which established that accused Rashid @ Kala was one of the assailants. He further contended that PW2 had categorically deposed that accused Chaman Parvez was the person who had stabbed both the deceased and he (PW2) knew him prior to the incident, thus there is no reason to disbelieve the testimony of PW2 qua accused Chaman Parvez. It was further contended that blood-stained clothes and weapon of offence were recovered at the instance of accused Chaman Parvez and it cannot be discarded solely on the ground that it was not affected in the presence of public witnesses. It was SC No. 86/09 & 32/10 14 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez contended that since there is ocular evidence to prove the guilt of accused, the medical evidence which is inconsistent to ocular evidence should be ignored. It was argued that from the opinion of expert it is established that all the injuries were caused by the recovered knife only, which ruled out the theory of two weapons. However, he fairly conceded that there are certain inherent defects in the investigation and in such a heinous crime it was not expected of such tardy investigation, but swiftly added that benefit of defective investigation should not be given to the accused, who had killed two armed force personnel mercilessly.
20. Admittedly, PW2 ASI Narender Singh is the sole star witness of the prosecution. Prosecution has built up its fort on the foundation of deposition of PW2. If defence demolishes the foundation stone, prosecution case would fall like a card-home. Considering the significance of the deposition of PW2, I deem it appropriate to examine the testimony of PW2 to ascertain the fact whether he had witnessed the incident or not?
21. Before examining the above question, it is pertinent to point out that it is admitted case of the prosecution that PW2 was posted as Head Constable in the police station of Kamla Market at the time of alleged incident.
22. PW2 in his examination-in-chief deposed that on May SC No. 86/09 & 32/10 15 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez 15, 2009 he was on patrolling duty in the area of G.B. Road and at about 11.00 PM, he had witnessed the alleged incident. But during the investigation, investigating officer failed to collect any document to establish this fact. Investigating officer did not deem it appropriate to file relevant DD to prove that PW2 was deputed on patrolling duty in the said area at that time. Even during the trial, prosecution has also failed to produce any such document on record. No doubt Ex. PW10/A i.e. police control room form II proves that PW2 was found at the spot when PCR Van reached there as it is mentioned therein that JAB HUM MOKA PAR PAHUCHE TO PS KE HC NARENDER 28/C AUR CT. KULDEEP NO. 1243/C AND CT. RAMESH 842/C NE DO TSR NO. UK MEIN MARNE WALO KO LETA RAKHA THA. It only means Ex. PW10/A only proves that when PCR Van reached the spot at about 11.17 PM, PCR official found three police officials including PW2. It is admitted case of the prosecution that constable Ramesh and constable Kuldeep were not the eyewitnesses. It means that they had reached the spot after the incident. Thus, the possibility that PW2 had also reached the spot after the incident along with other two constables cannot be ruled out. Before relying upon his testimony, prosecution has to establish beyond the shadow of doubt that PW2 was not only present at the spot but also had witnessed the incident.
23. Being the police officer, it was the paramount duty of PW2 to intimate the police control room and local police about the SC No. 86/09 & 32/10 16 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez incident. But astonishingly, he neither informed the police control room nor the police station wherein he was posted. In his examination-in-chief he deposed that somebody had informed the police. He even did not state that he had asked any public person to inform the police. In his cross-examination, he admitted that he did not know who had informed the police control room and further admitted that he himself did not inform the police control or the local police station. Thus, the conduct of PW2 in this regard is quite unnatural, which supplies ammunition to the defence to raise a doubt over his presence at the time of alleged incident and I do not find the said suspicion is without any basis.
24. It is admitted case of the prosecution that intimation of the incident was given to the police control room from mobile phone bearing no. 9871320196, which belonged to PW17 Sita Ram. As per record, his statement under Section 161 Cr.P.C was recorded on July 18, 2009. It means that PW2 did not make any effort to detain PW Sita Ram at the spot till the arrival of local police. If PW2 was actually present at the time of incident, it was his duty to detain PW Sita Ram till the arrival of local police as he was the person whose mobile phone was used in informing the police control room. Similarly, PW2 should have also detained the person, till the arrival of local police, who had informed the police control room from the mobile phone of PW17 because these persons were among the persons who had either witnessed the incident or part of it or reached SC No. 86/09 & 32/10 17 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez the spot first. But again, PW2 failed to perform this duty also.
25. It is admitted case of the prosecution that police had received the intimation of the incident at about 11.10 PM vide DD Ex. PW4/C. According to the said DD, intimation was received that one person had been stabbed near room no. 64 G.B. Road, Kamla Market, Delhi whereas two persons were stabbed there. According to the prosecution the alleged incident had occurred in the presence of PW2 despite that PW2 did not make any effort either to inform the local police station or the police control room. This conduct of PW2 is quite unnatural and in the absence of any plausible explanation, it casts a doubt over prosecution version.
26. Being the police official, it was the paramount duty of PW2 to intervene in the quarrel to rescue the injured persons from further assault. But in this regard also PW2 had not taken any steps. In his deposition, PW2 deposed that when he reached the spot, quarrel was going on and it continued for 2-3 minutes and further deposed that when he raised the alarm, all assailants fled away from the spot. It means that as soon as assailants had seen the police official, they fled away from the spot. PW2 further deposed that accused Chaman Parvez had given 4-5 blows to one deceased and two blows to another deceased. It means that accused had given 6-7 blows to the deceased in his presence. According to the autopsy report, one deceased had sustained 8 stab and incised wounds SC No. 86/09 & 32/10 18 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez whereas another deceased had sustained 2 stab and incised wounds. Thus, as per autopsy report, both the deceased had sustained total 10 stab and incised wounds. It is just implausible that PW2 could not get an opportunity to intervene to rescue the injured persons whereas the accused had got an opportunity to inflict multiple blows to the deceased persons. During his cross-examination, he deposed that he tried to intervene in order to rescue the injured persons but accused Chaman Parvez had succeeded inflicting injuries to the deceased. However, he failed to depose in what manner he had intervened to rescue the injured persons. On the one hand, he deposed that when he raised the alarm, assailants had fled away from the spot, on the other hand deposed that despite his intervention, accused Chaman Parvez had succeeded in inflicting injuries to the deceased. It means that he raised the alarm subsequent to intervention, which is against the human behaviour. It is pertinent to mention here that it is not the prosecution case that when PW2 reached the spot assailants had already inflicted some blows of knife and rest of the blows were given in the presence of PW2. On the contrary as per Ex. PW2/A, prosecution case is that when PW2 reached the spot he saw 2-3 persons were quarrelling with two military type personnel and accused Chaman asked his companions to catch hold them and thereafter he had taken out a knife from his pant and stabbed them. It means that PW2 had seen all ten stabbing blows just like a bystander and did not get an opportunity to intervene in the matter. Thus, his testimony that he tried to intervene and despite his intervention, SC No. 86/09 & 32/10 19 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez accused Chaman Parvez had succeeded in inflicting injuries is nothing but a futile attempt to justify his presence.
27. It was also one of the paramount duties of the PW2 to make sincere efforts to apprehend at least one of the assailants. In his examination-in-chief, PW2 deposed that he had raised an alarm calling for help to catch the assailants, who were 3-4 in number but they fled away. He even he did not depose that he had chased them, if yes for how long. Had PW2 been at the spot at the time of incident, he would certainly make some sincere efforts except to raise an alarm to apprehend any of the assailants.
28. PW2 even did not try to make any efforts to talk with the injured persons to know about the cause of incident or to know the identity of assailants or to provide them medical assistance. He did not make any effort to take them to the hospital. In his cross- examination, PW2 deposed that he had no talk with the injured persons. He also denied the suggestion that when PCR Van reached the spot, injured persons had already been put in a TSR. In other words that when PCR Van reached the spot, injured persons were not in TSR which is contrary to Ex. PW10/A wherein it is specifically mentioned that when PCR Van reached the spot both the injured were in TSR and they were shifted from TSR to PCR Van.
29. Though PW2 deposed that he had helped the public SC No. 86/09 & 32/10 20 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez persons when injured were put in the PCR Van, yet he did not recollect whether his clothes got blood stained in that process or not. One injured had sustained 8 knife injuries whereas another sustained 2 knife injuries, it means both the injured must be in the pool of blood, thus it is highly improbable that no blood-stain would come on his clothes if he had lifted the injured from ground to PCR or from TSR to PCR.
30. Though prosecution claimed that PW2 had seen the entire incident, yet PW2 even failed to depose the exact number of assailants. In his examination-in-chief, PW2 deposed that three persons were quarreling. Since, two were deceased; it means that assailant was only one. After few lines, he deposed that two had caught hold the military type personnel and accused Chaman Parvez had stabbed them. It means that the assailants were three persons. Two caught hold the injured and third one i.e. accused Chaman Parvez had stabbed them. At end of his examination-in-chief, he deposed that assailants were 3-4 and they fled away from the spot. Though from his testimony, it is not clear whether the assailants were three or four, yet it is quite clear that the assailants were more than two. In this regard the testimony of PW24, investigating officer is relevant. In her cross-examination, PW24 admitted that PW2 had not disclosed the name of accused Rashid @ Kala in his statement Ex. PW2/A and the fact that he knew the accused Rashid @ Kala prior to the incident. Despite this admission, she deposed that PW2 SC No. 86/09 & 32/10 21 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez had disclosed her the name of accused Rashid @ Kala. Upon this, Court put a question to the witness to enquire why she had not mentioned the name of Rashid @ Kala in Ex. PW2/A when PW2 had told her. Pursuant to this question, PW24 responded "since there was confusion over the number of assailants, thus the name of Rashid @ Kala was not mentioned in Ex. PW2/A, however, the involvement of Chaman Parvez was confirmed." This answer is more than sufficient to show how PW24 had doctored the statement Ex. PW2/A. In the entire charge-sheet, it is no where mentioned about the number of assailants. If assailants were more than two as stated by PW2 in his statement Ex. PW2/A and deposed in the Court, question arises who were they? What efforts investigating officer had made to ascertain their identity? If the assailants were only two, then question arises over the credibility of PW2.
31. From the above inherent lapses on the part of PW2, it can be safely culled out that such lapses are sufficient to cast a doubt over the prosecution claim that PW2 was present at the spot and witnessed the incident. On the converse, the possibility of his arrival at the spot along with two other constables after the incident appears more plausible.
Approximate time of death:
32. Prosecution case is that both the deceased had died SC No. 86/09 & 32/10 22 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez after 11.00 PM, when the alleged incident had taken place. But unfortunately, documents relied upon by the prosecution are contrary to this version. Ex. PW10/A is a PCR form, which was prepared by PW10 on the basis of information received in the police control room from time to time. As per Ex. PW10/A the death of both the deceased had caused about 2-3 hours prior to their admission in the hospital. The relevant portion of Ex. PW10/A is reproduced here "EK MAJROOB KO LEKAR HOSPITAL JA RAHE HAI 15/05/2009 23:17:00 DO LADKE HAI JINKO CHAKU LAGE HAI LEKER HOSPITAL JA RAHE HAI. 16/05/2009 00:01:53 MOKA PAR HUM PAHUCHE TO DO CT. NE THREE WHEELER MEIN DONO KO LETA RAKHA THA JINKO HUM HOSPITAL LE GAI JAHA PAR JPN HOSPITAL MEIN DOCTOR NE BATAYA INKI DEATH 2-3 GHANTE PAHLE HI HO CHUKI HAI."If this document is true, it means that both the deceased had died much prior to 11.00 PM, when the alleged incident had taken place in the presence of PW2. It is pertinent to mention here that neither during investigation nor trial, any efforts was made either by the investigating agency or prosecution as the case may be to prove that the above contents were not correct or recorded inadvertently or mischievously by unscrupulous person. It means that prosecution has not disputed the contents of said document during the trial.
33. On the converse, Ex. PW10/A gets strength from the autopsy report of both the deceased persons. Postmortem on the dead SC No. 86/09 & 32/10 23 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez bodies was conducted on May 16, 2009 vide reports Ex. PW11/A and Ex/PW11/B. Postmortem on the dead body of deceased constable C. Punraj was conducted on May 16, 2009 at about 12.45 PM whereas it was conducted on the dead of J.C. Solanki at about 1.30 PM. On examination following post mortem changes were found on the dead bodies:
Hypostasis: Present over back of body except over pressure area.
Rigor Mortis: Present all over the body.
Decomposition: Not present.
Probable time since death was recorded in the autopsy reports as 26 hours in case of J.C. Solanki and one day in case of Constable C. Punraj.
34. Since, post mortem on the dead body of J.C. Solanki was conducted on May 16, 2009 at about 1.30 pm and as per Ex.
PW11/B probable time since death was 26 hours, it means as per his autopsy report, he had died on May 15, 2009 at about 11.30 am. Similarly, as per autopsy report of deceased constable C. Punraj, his death was caused at about 12.45 pm on May 15, 2009. It means that as per medical evidence, both the deceased were killed about 9-10 hours prior to 11.00 PM. Thus, the autopsy report of both the deceased is contrary to the prosecution case that both the deceased were killed on May 15, 2009 at about 11.00 pm. It is pertinent to mention here that neither during investigation nor trial any effort was SC No. 86/09 & 32/10 24 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez made to fill up this chasm by furnishing any plausible explanation. Since, the autopsy reports remained unchallenged on the part of prosecution, in the absence of any cogent evidence; I have no reason to disbelieve the same. The autopsy reports also cause a serious dent in the prosecution case.
Possibility of two kinds of Weapons:
35. As per prosecution version all injuries were caused to the deceased persons by wielding a single weapon i.e. double edge knife. However, autopsy report Ex. PW11/A is contrary to the prosecution version as it suggests that two types of weapons were used in commission of crime one was single edge weapon whereas another was double edge weapon.
36. Deceased J.C. Solanki had sustained as many as nine injuries and after examination doctor opined that:
"Death is due to hemorrhage and shock consequent to stab injuries via injury No. 6 and 7, sufficient to cause death individually and collectively in ordinary course of nature. All injuries are ante mortem, fresh before death. Injuries No. 1,3,8 and 9 are caused by sharp weapon. Injuries No. 4,5 and 7 are caused by double edged sharp weapons. Injury No. 6 caused by single edged sharp weapon and injury no. 2 is caused by blunt force/surface impact. However, viscera has been preserved to rule out coincidental common poisoning."
37. PW11 Dr. Amit Sharma who conducted autopsy in his cross-examination categorically deposed that injury No. 4, 5 and 7 SC No. 86/09 & 32/10 25 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez stated in Ex. PW11/A were caused by double edged sharp weapon and injury No. 6 was caused by single edged sharp weapon. Injury No. 1,3,8 and 9 were possible by double as well as single edged sharp weapon. He categorically deposed that injury No. 4,5 and 7 could not be inflicted by a weapon used in injury No.6 and further admitted that injury No. 6 cannot be inflicted by a weapon used in injury No. 4,5 and 7. Thus, from his testimony it becomes abundantly clear that two weapons were used in the commission of crime one was double edged weapon and another was single edged weapon. In other words, two assailants had inflicted injuries by two separate knives; one was of single edged knife whereas another was of double edged knife. Thus, testimony of PW11 is contrary to the deposition of PW2 who deposed that only one accused i.e. Chaman Parvez had inflicted all injuries by wielding the knife.
38. Learned Additional Public Prosecutor has strongly relied upon the testimony of PW13 to support his contention that all injuries were caused by the knife which was recovered in this case. As per prosecution version, after the recovery of knife, it was sent to MAMC, Delhi for seeking expert opinion on the following question:
Q. Whether the injuries caused to the deceased could be caused by weapon of offence in question?
Ans. The injuries which have been mentioned in PM Reports 324/09 and 325/09 as stab and incised wounds are possible by the weapon examined and by any weapon SC No. 86/09 & 32/10 26 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez similar to it.
PW13 Dr. Sreenivas when appeared in the witness box justified his opinion on the ground that the weapon examined by him has double sharp edged at the tip and single sharp edged at the lower part of knife. During examination, he had also prepared the sketch of knife, which is exhibited as Ex. PW13/B. Perusal of the sketch proves that the knife examined by him has double sharp edged from tip of the blade to the lower side of blade i.e. towards handle side. I have measured the length of said portion from Ex. PW13/A and it is 6.3 cm. The remaining portion of the blade is having single sharp edged. It is pertinent to mention here that injury No. 4,5,6 and 7 in Ex. PW11/A are stab injuries. Since, the knife in question has double sharp edged from the tip of blade towards its lower side i.e. towards handle side. Thus, whenever stab injury will be caused by such a knife, the nature of injury will be similar because the double sharp edged shall cause some injury/cut on both side of the wound.
Probably due to that reason, PW11 categorically deposed that the injuries No. 4,5 and 7 could not be caused by the weapon used in inflicting injury No.6 and similarly weapon used in inflicting injury No.6 could not be used in inflicting injuries No. 4,5 and 7. Whereas PW13 had not given any such specific opinion. Under these circumstances, I am of the opinion that the report Ex. PW13/A is not sufficient to hold that all the injuries were inflicted by using only one SC No. 86/09 & 32/10 27 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez weapon i.e. the recovered knife.
Recovery of gold chain from accused Rashid @ Kala:
39. As per prosecution version, on May 19, 2009 a secret information was received to PW24 that accused Rashid @ Kala would come at Gali Niharian behind G.B. Road to sell the gold chain, which belonged to one of the deceased. On this information, a raid was conducted and accused Rashid @ Kala was arrested in the presence of PW2 and PW5. On his search one chain appearing of gold having blood-stains was recovered from his possession. The said chain was seized vide memo Ex. PW5/B and during investigation it was sent to FSL to ascertain whether the blood-stain on the chain belonged to deceased or not.
40. First question arises how the chain came in the possession of accused Rashid @ Kala. Whether he had snatched the chain at the time of incident or picked up after the incident?
41. PW2 is the sole star witness of the prosecution, in his statement Ex. PW2/A he neither stated that any of the assailants had snatched the chain from the deceased nor that any of the assailants had picked up from the spot. Even in his deposition, he did not state that he had seen the accused Rashid @ Kala either to snatch the chain or picking up from the spot. Thus, there is no iota of evidence SC No. 86/09 & 32/10 28 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez to establish that accused Rashid @ Kala had snatched the said chain from the neck of either of deceased or he picked up from the spot.
42. In this regard the testimony of PW24 is relevant. In her cross-examination, she deposed that after lodging an FIR, during further interrogation PW2 HC Narender Singh and chowkidar Sita Ram (PW17) told her that the incident of murder had taken place on snatching of chain from the deceased. Astonishingly, she deposed that she had not recorded their statement in this regard. She further admitted that she had not recorded the statement of Sita Ram prior to July 18, 2009, which is Ex. PW24/DC. She also admitted that she had not mentioned the factum of robbery of chain in the said statement. I am unable to understand when PW2 and PW17 had told her that the cause of murder was robbery of chain, why PW24 had not recorded their statement on that day and why she had not mentioned in their statement. This itself shows the casualness approach on the part of investigating officer.
43. During investigation, PW24 had examined PW1 inspector Mohd. Arif Jan, Company Commander of deceased persons and PW3 Const. Prajul V.C. Both the witnesses identified the dead bodies of deceased and stated before the investigating officer that they had seen deceased J.C. Solanki to wear a gold chain in his neck but same was missing, when they had seen the dead body. From their statement, investigating officer came to know that SC No. 86/09 & 32/10 29 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez gold chain of J.C. Solanki was missing. Both the said witnesses identified the said chain in the Court. During their cross- examination, they admitted that they had not identified the said chain in any test identification parade.
44. Prosecution has also relied upon the testimony of PW18, brother of deceased J.C. Solanki. PW18 not only identified the recovered chain in the Court but also produced the purchase order and invoice of the said chain and the same are exhibited as Ex. PW18/A and PW18/B respectively. However, he also admitted that he had not identified the said chain in any test identification parade. As per invoice Ex. PW18/B the weight of chain was 26.830 gram. During the investigation, investigating officer did not deem it appropriate to get weight of the recovered chain. In the absence of weight, it is difficult to say that the recovered chain is the same which is mentioned in Ex. PW18/A.
45. PW24 has given some explanation for not holding the test identification parade of the recovered chain, thus before discussing the evidential value of the above witnesses; I deem it appropriate to discuss the explanation given by PW24.
46. In her cross-examination, PW24 deposed that no step was taken to conduct TIP of the recovered chain as the brother of the deceased had identified the chain in her presence during SC No. 86/09 & 32/10 30 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez investigation. However in the next breath deposed that his brother had identified the chain in the Court and not before her during investigation. After few lines, she further deposed that some relatives of deceased J.C. Solanki including his wife and brother told her that the recovered chain was belonged to J.C. Solanki. She further deposed that she had recorded their statement in this regard. She further deposed that colleagues of deceased J.C. Solanki had identified gold chain in her presence and she had recorded their statement in this regard. She further deposed that during investigation, she had taken some unofficial photographs of the recovered chain and after seeing the said photograph, brother of the deceased had identified the recovered chain. Admittedly, said unofficial photographs were not filed along with the challan. I am unable to understand how the investigating officer can take the unofficial photograph of the case property. If investigating officer thinks that the photographs of a particular case property are necessary for the purpose of investigation, he or she can take it; there is no bar in this regard. When the statement of inspector Arif Jan, which is Ex. PW24/DA, is shown to PW24, she admitted that Arif Jan had not identified the gold chain during investigation. But she quickly added that Arif Jan had identified the gold chain after the arrest of accused Rashid @ Kala. But in the next breath deposed that Arif Jan had not identified the gold chain during investigation at any point of time. However, she admitted that in Ex. PW24/DA, Arif Jan had stated that he could identify the chain if shown to him. She SC No. 86/09 & 32/10 31 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez further deposed that after the recovery of the chain, she interrogated Arif Jan regarding the identification of chain, but he told her that he could not identify the chain as number of constables was posted under him. But deposed that she had not recorded his statement in this regard. From her testimony, it becomes crystal clear that she was changing her version just to conceal her lapses in the investigation as per her convenience. No reliance can be placed on such type of evidence.
47. From the testimony of PW24 two things emerge, first that no step was taken to conduct a TIP of the recovered chain and second that the possibility of showing the chain to the witnesses during investigation cannot be ruled out.
48. It is well settled principle of law that identification test do not constitute substantive evidence. They are primarily meant for purpose of helping investigating agency. Whole idea of a test identification parade is that witnesses who claim to have seen the culprit or case property at the time of occurrence are to identify them from midst of other persons or properties without any aid or any other source. Test is done to check upon their veracity. PW1 was the superior officer of the deceased; though he may have seen the deceased to wear chain around his neck does not mean that he had seen the chain so minutely that he could identify him. Even PW24 deposed that when the chain was recovered, she interrogated PW1 SC No. 86/09 & 32/10 32 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez regarding identification of the chain, but PW1 expressed his inability to identity the chain on the ground that number of constables were working under him and it was not possible for him to identify the recovered chain. Thus, the identification of chain by PW1 first time in the court has no evidentiary value. Similarly, PW3 constable Prajul V.C. who was also one of the colleagues of deceased J.C. Solanki did not state about any peculiarity of the chain, which J.C. Solanki used to wear. Incident had occurred on May 15, 2009 whereas he identified the chain in the court first time on October 28, 2010. Admittedly, he had not identified the chain in any previous identification parade. In these circumstances, I am of the view no reliance can be placed on his testimony. No doubt PW18 is the brother of deceased and had an opportunity to see the chain minutely when it was purchased. But PW24 admitted in her cross-examination that she had shown the unofficial photograph of chain to the relative of deceased including his brother (PW18) and from the photograph, PW18 had identified the said chain. Considering the fact that PW18 had not identified the chain in any previous identification parade and photograph of the chain was unofficial shown to him, impel this court not to accept the testimony of PW18 to the extent that the chain belonged to deceased J.C. Solanki.
49. Prosecution case was that both the deceased were wearing gold chain when left from Nizamuddin Railway Station. In order to prove this fact, PW24 had recorded the statement of SC No. 86/09 & 32/10 33 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez inspector Arif Jan and const. Prajul V.C. under Section 161 CR.P.C. wherein Arif Jan had stated that J.C. Solanki was wearing gold chain whereas const. Prajul V.C. stated that const. C. Punraj was wearing gold chain. PW24 in her cross-examination deposed that during investigation it was surfaced that the chain of J.C. Solanki was snatched in the incident and no chain of C. Punraj was snatched. She further deposed that no chain was found on the dead body of C. Punraj. She further deposed that she called const. Prajul V.C. to verify on what basis he had stated that const. Punraj was wearing chain and he told her that const. Punraj used to wear the chain but she had not recorded his supplementary statement. Thus, it appears that PW24 tried to give impression that const. Prajul V.C. had made a wrong statement before her that const. Punraj was wearing any gold chain and only J.C. Solanki was wearing the gold chain. But surprisingly, in the entire charge-sheet it is no where mentioned to whom the chain belonged to, which was allegedly recovered from the accused Rashid @ Kala. Unless investigating officer satisfied to whom the recovered chain belonged, I am of the opinion no purpose would be achieved even if it is identified by any witness in the court first time.
50. Now coming on the other aspects of the recovery of chain. It is admitted case of the prosecution that the alleged chain was recovered in the presence of PW2 and PW5 vide memo Ex.
PW5/B.
SC No. 86/09 & 32/10 34 of 57
State v. Mohd. Rashid @ Kala
State v. Chaman Parvez
51. Prosecution case is that the alleged gold chain was recovered in the presence of PW2 and PW5. However, perusal of Ex. PW5/B reveals that it does not bears the signature of PW5 HC Man Singh despite the fact that his name is mentioned therein as a witness. If memo was prepared in the presence of PW5 HC Man Singh, why investigating officer had not obtained his signature on the memo. Such type of lapse was not expected in such a heinous crime. PW24 in her cross-examination deposed that said lapse occurred inadvertently. But this is no justifiable explanation. Though prosecution had examined HC Man Singh as PW5, yet his testimony could not be completed as on that day learned defence counsel requested to defer the cross-examination as they wanted to cross- examination him along with PW2 because both were the witnesses of recovery of chain. But unfortunately thereafter PW5 fell sick and ultimately passed away, hence his testimony remained incomplete. Since, his testimony could not be tested on the edge of cross examination; same cannot be read in evidence.
52. There is material contradiction between the testimony of PW2 and PW24 on the point of arrest of accused Rashid @ Kala. PW2 deposed in his examination-in-chief that at the pointing out of secret informer he and HC Man Singh had apprehended the accused whereas PW24 deposed that at the pointing of PW2, accused Rashid @ Kala was apprehended. Thus, it is not clear whether accused was SC No. 86/09 & 32/10 35 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez apprehended at the pointing out of secret informer or HC Narender Singh. This also casts a doubt over the manner in which accused was arrested.
53. Neither PW2 nor PW24 in their examination-in-chief deposed that at the time of alleged recovery any effort was made to join any public witness. On the contrary, PW2 in his cross- examination admitted that no public person was asked to join investigation at the time of recovery. He also admitted that public persons were present at the time of recovery of chain. He further deposed that no notice was given by the investigating officer to any public person. In other words, no effort was made to join any independent witness at the time of alleged recovery. Since no effort was made to join independent witness despite they were present, it also casts a doubt over the manner in which recovery has been shown.
54. Prosecution case is that recovered chain had blood- stains. To prove the fact that blood was of deceased, recovered chain was sent to FSL Rohini for analysis. FSL result is exhibited as Ex. PW23/A which shows that the recovered chain had human blood but the said report failed to establish that the blood found on the chain was of either of the deceased. As per report, no reaction was found in the blood, thus blood group could not be ascertained. In other words, there is no evidence on record to establish that the blood found on SC No. 86/09 & 32/10 36 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez the chain was of either of the deceased. No doubt FSL result proves that there was human blood on the chain and it creates a grave suspicious that the blood could be of either of deceased, but suspicious remains suspicious whosoever it may be strong, it can not take the place of proof.
Ocular Evidence Against Accused Rashid @ Kala:
55. Though the presence of PW2 at the spot is doubt, yet I deem it appropriate to discuss his testimony relating to the presence of accused Rashid @ Kala at the spot. Admittedly, PW2 had not uttered even a single word against the accused Rashid @ Kala in his statement Ex. PW2/A. However, PW2 deposed that he knew the accused by face and not by name but he knew him prior to the date of incident. On further cross-examination, he admitted that he had not disclosed in his statement Ex. PW2/A that he knew any of the assailants by face. Even his testimony is paradox as he himself deposed that on May 19, 2009 accused Rashid @ Kala was apprehended at the pointing out of secret informer. If PW2 knew the accused by face where was the occasion for him to get him identified from the secret informer?
56. PW2 in his deposition categorically deposed that he did not know the accused Rashid @ Kala by name prior to the date of incident. But PW24 in her cross-examination deposed that HC SC No. 86/09 & 32/10 37 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez Narender (PW2) told her that he knew both the culprits by name and by face. However admitted that name of accused Rashid @ Kala is not mentioned in Ex. PW2/A. Nor it is mentioned that he knew him prior to the date of incident. I am unable to understand if HC Narender had told the name of Rashid @ Kala to the I.O. why she had not mentioned the same in his statement Ex.PW24/A. This shows that she had not recorded his statement correctly but recorded it as per her wishes.
57. At last PW24 admitted in her cross-examination that during investigation it was not revealed that Rashid @ Kala had given any blow of knife to either of the deceased persons. She further admitted that it was also not revealed that Rashid @ Kala had instigated any one to cause injury to the deceased persons. She also admitted that HC Narender Singh had not attributed any role to Rashid @ Kala in the commission of alleged offence. This itself is sufficient to prove the innocence of accused Rashid @ Kala.
Recovery of Knife and Blood Stain Clothes of Chaman Parvez:
58. Prosecution case is that on March 19, 2010 accused Chaman Parvez had made a disclosure to PW25 that he had put his blood-stain clothes i.e. jeans pant and shirt in a tin along with the knife used in the commission of crime. He further disclosed that initially he wanted to destroy the evidence by tearing the clothes. But SC No. 86/09 & 32/10 38 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez when he torn the shirt, he felt nauseated, thus he decided to burn the clothes. Accordingly, he sat the clothes on fire after putting into tin and ran away after locking the room. He stated that he could get recover the same from his room. As per prosecution version, accused got recovered his blood-stain clothes and knife, which were seized by the police vide memo Ex. PW8/D. PW25 also prepared the sketch of knife and same is Ex. PW8/C. Recovered articles were sealed in separate pullandas with the seal of BM.
59. To prove the recovery, prosecution has relied upon the testimony of PW8 inspector Brijesh Mishra and PW25 inspector Vikramjit Singh. Both the witnesses categorically deposed that pursuant to his disclosure statement accused Chaman Parvez led the police party to his house located at 2nd floor in property bearing no. 2577 Gali Katra, Gafoor Baksh, G.B. Road, Delhi. Room was found locked. Accused had taken out a key of his room from an almirah, which was built in the wall and opened the lock. Thereafter, accused produced one iron tin, which was found containing a blood-stain jeans pant and pieces of shirt having blood-stains. PW25 in his examination-in-chief categorically deposed that from the said tin it was appeared that accused had put the clothes on fire and thereafter kept in the tin and closed the lid of the tin. As soon as oxygen stopped, fire extinguished.
60. There are four points, which create doubt over the SC No. 86/09 & 32/10 39 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez manner in which recovery had been shown. First, that recovery was affected after about 9 months of the incident from the house of the accused. It is admitted case of the prosecution that accused was the B.C. of the area, thus his address must be available in the police station and PW2 knew the accused prior to the incident. Accused was wanted in the double murder case of two armed force personnel. In these circumstances, it appears quite implausible that police would not have searched the house of the accused after the incident. On the converse, first step on the part of an intelligent police officer should have been to search the house of accused thoroughly. Second, that as per the testimony of PW8 and PW25, when accused led the police party to his room, room was found locked and accused had taken out the key of the room from an almirah, which was inbuilt in the wall. It is admitted case of the prosecution that accused was residing there alone and after putting the clothes in the tin accused did not visit the said room and started living at factory, which was located at Ghonda. In other words, the room remained closed for a period of about 9 months as no person was residing there. But neither of the witnesses deposed that when the room was opened, it was giving an impression that it was locked for a long period. If nobody was residing there, why key, by which lock was opened, was not seized by the police. For whom the key was left there. Thirdly, no burn marks were found on the jeans pant. If clothes were put on fire and kept in the tin as deposed by the witnesses, it is seldom to believe that no burn mark would appear on the jeans pant. Fourthly, SC No. 86/09 & 32/10 40 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez no sincere efforts were made to join any independent witness at the time of alleged recovery. No doubt recovery cannot be discarded on the sole ground of absence of public independent witness but in such a heinous crime police officer is supposed to make some sincere efforts to join an independent witness. But from the deposition of PW8 and PW25 it appears that no sincere efforts were made to join any independent witness at the time of alleged recovery despite the fact that number of persons were residing in the said premises.
61. From the testimony of PW8 and PW25 it is evident that no effort was made to pick up chance prints from the knife. Admittedly, in his disclosure statement accused did not state that he had removed his finger prints from the knife. PW2 in his testimony nowhere deposed that accused Chaman Parvez was wearing gloves at the time of incident. In these circumstances, efforts should have been made to pick up finger prints from the recovered knife as that would help the investigating officer to ascertain whether the knife was actually used by the accused or by someone else as assailants were more than one. But surprisingly no effort was made to collect such important evidence from the recovered knife.
62. Recovery of knife is only one relevant factor and not conclusive proof to prove the guilt of accused. To prove the guilt of accused, prosecution has also to prove that blood found on the knife was of deceased. In order to prove that the blood found on the knife SC No. 86/09 & 32/10 41 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez was of the deceased persons, said knife was sent to FSL Rohini. On analysis, blood was found on the knife and report in this regard is exhibited as Ex. PW23/C. On biological analysis, it was found that the blood found on the knife was human blood. But it could not be ascertained what was the group of the blood which was found on the knife. Though matching of group of blood is only another crucial factor, but not the conclusive proof to hold a person guilt because same blood group can be found in number of persons. To prove the guilt of the accused, prosecution has to prove that the blood found on the knife was of either of the deceased and this could be established through DNA. But in this case no efforts were made to get DNA test on the articles allegedly recovered from the house of accused. But in the instant case even blood group could not be matched with the blood found on the knife and the deceased persons, thus it cannot be said with certainty that it was the same knife by which deceased were killed. Since, prosecution has strongly relied upon the testimony of PW13 to prove that murder was caused by the recovered knife; it is pertinent to state that PW13 has not deposed that the murder was caused by the recovered knife. He only deposed that the stab and incised injuries found on the body of deceased persons were possible by the weapon in question as well as any other similar weapon. Thus, his opinion does not rule out the possibility of another knife in the commission of crime.
63. Recovered jeans pant was also sent to FSL Rohini and SC No. 86/09 & 32/10 42 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez blood was found on the pant and report in this regard is exhibited as Ex. PW23/C. As per report Ex. PW23/D, blood found on the jeans pant was human and its group was "O". Since blood group found on the jeans pant matched with the blood group of deceased persons, it raises a grave suspicious that the blood found on the jeans pant was of either of deceased persons because blood of both the deceased was group "O". No doubt this is a grave suspicious but suspicious howsoever may be strong cannot take the place of proof. Even during investigation no efforts was made to find out what is the blood group of accused Chaman Parvez. Perusal of the testimony of PW25 reveals that even accused Chaman Parvez was not sent for medical examination, this is not merely a defect in the investigation but also violation of the direction of Hon'ble Supreme Court. It is mandatory duty of the investigating officer to get the medical examination of the accused at the time of his arrest and at the time of taking him on police remand. There is no evidence that what the blood group of accused Chaman Parvez is, thus the possibility that the blood found on the said jeans pant may be of accused cannot be ruled out. Moreover, since no burn marks were found on the jeans pant, it creates a doubt over the prosecution version that the said pant was recovered from the same tin, lid of which was closed after putting the clothes on fire.
64. Moreover, there is no scintilla of evidence to show that the alleged recovered jeans pant belonged to the accused Chaman SC No. 86/09 & 32/10 43 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez Parvez. As per prosecution story at the time of commission of offence, accused Chaman Parvez was wearing the said jeans pant. Admittedly, PW2 is the sole eye witness but in his entire deposition, he nowhere deposed that the recovered jeans pant was wearing by the accused Chaman Parvez at the time of commission of offence. Similarly during the investigation, investigating officer failed to collect any evidence to establish that the recovered jeans pant was belonged to accused Chaman Parvez. In this regard, the observation of the Apex Court made in Mani versus State of Tamil Nadu, J.T. 2008 (1) SC 191 are relevant and the relevant portion is reproduced as under:
".......There is one other very relevant factor ignored by both the Courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the Courts below have ignored this very important aspect."
In view of the above, I am of the opinion; no adverse inference can be drawn against accused Chaman Parvez even if we presumed that the alleged blood stained jeans pant was recovered at his pointing out. To my mind, the alleged recovery is not helpful to the prosecution in any manner in order to bring home the guilt of accused Chaman Parvez.
65. Since, blood found on the pieces of shirts could not be SC No. 86/09 & 32/10 44 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez ascertained, thus it cannot be said that the blood found on the said pieces was of either of the deceased persons.
66. Though prosecution has claimed that the house from where the above recoveries were affected was in the exclusive possession of accused Chaman Parvez, yet prosecution has failed to produce any cogent evidence. In his statement under Section 313 Cr.P.C., accused Chaman Parvez categorically stated that he was never resided at Katra Gafoor Baksh at the time of alleged incident and further stated that the daughter of his sister was residing there as he had handed over the said house to the daughter of his sister. During investigation, no evidence was collected to establish that accused was residing there. Nor any evidence was collected to the effect that the daughter of sister of accused was not residing there as stated by him in his statement under Section 313 Cr.P.C. On the contrary, prosecution has relied upon one electricity bill and copy of election card which are exhibited as Ex. PW2/D and PW2/E respectively in order to show that the said house was in the exclusive possession of accused Chaman Parvez. Ex. PW2/D is in the name of Suraiya Begum. It is not clear who is she? Ex. PW2/E is the identity card issued by Election Commission of India and same is in the name of Amina Begum, mother of accused Chaman Parvez. Since both the documents are not in the name of accused, thus to my mind are not sufficient to establish that the said house was in the exclusive possession of accused Chaman Parvez. Though PW25 SC No. 86/09 & 32/10 45 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez deposed in his testimony that number of relatives of accused Chaman Parvez were residing in the said building, yet he did not record the statement of any person to show that accused Chaman Parvez was residing there or the said house was exclusively in his possession. In this regard the observations of Hon`ble Supreme Court made in Mani versus State of Tamil Nadu (supra) are relevant and the same is as under:
"....The appellant had very clearly stated in his examination under Section 313 Cr.P.C that the house did not belong to his father and that it was lying vacant and nobody had occupied it. In our opinion, at least from the evidence on record, it cannot be concluded that the house belonged to the appellant. There is no evidence worth the name lead by the prosecution to suggest that the exclusive ownership or the possession of the house belonged to the appellant. Both the courts have proceeded on the presumption that the house was owned or possessed exclusively by the appellant. Much could have been done to establish its ownership by filing the revenue record of that house. No such documentary evidence was collected by the prosecution.
Same view was taken by High Court of Delhi in case Kali Ram versus State reported in 2010 (2) JCC 1578. Thus, I am of the view that it further casts a doubt over the prosecution case.
67 At last but not least accused Chaman Parvez was arrested by the police of PS Special Cell on March 10, 2010 in case FIR No. 14/2010 under Section 186/353/307 IPC read with Section 25 & 27 of the Arms Act. According to the prosecution, at the time SC No. 86/09 & 32/10 46 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez of his arrest, accused had confessed his involvement in the present case but admittedly accused had not disclosed about the alleged recovered items at that time. Thereafter, accused made another disclosure statement before PW25 on March 18, 2010. Even at that time, accused Chaman Parvez had not disclosed about the alleged recovered items. According to the prosecution, accused disclosed about the alleged items only on March 19, 2010. Since, there was inordinate delay on the part of accused in making the alleged disclosure statement on March 19, 2010, thus the possibility of foul play in recording the said disclosure statement cannot be ruled out. Moreover, there is no independent witness at the time of alleged recovery despite their availability, which further strengthens the said possibility.
68. In the light of above discussion, I am of the opinion that the alleged recovery is not only doubtful but also insufficient to connect the accused Chaman Parvez withthe commission of alleged offence.
Ocular Evidence Against accused Chaman Parvez:
69. The ocular evidence against accused Chaman Parvez is the deposition of PW2. As already discussed, his presence at the spot at time of incident is doubtful, thus no reliance can be placed on his testimony. Except PW2, there is no evidence to prove that accused SC No. 86/09 & 32/10 47 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez Chaman Parvez was involved in the alleged incident in any manner.
70. The testimony of PW24 will demonstrate how the name of Chaman Parvez was surfaced in this case. In her cross- examination, she deposed that when she reached the spot 10-15 persons were present there. She further deposed that she could not tell how many persons had told her the name of Chaman Parvez and Rashid but they were many in number. However, she admitted that she had not recorded the statement of any other person except HC Narender Singh (PW2) and HC Man Singh (PW5). Admittedly, PW5 was not the eyewitness. It is not clear when PW5 had not witnessed the occurrence, how he had told the name of assailants to her. She further deposed that since there was confusion over the number of assailants, thus the name of Rashid @ Kala was not mentioned in the statement Ex. PW2/A, however the involvement of Chaman Parvez was confirmed, his name was mentioned in the FIR. It is not clear how the name of Chaman Parvez was got confirmed by PW24 before mentioning his name in the FIR. So far the confusion over the number of assailants is concerned, the same had never been cleared by the investigating officer as in the charge-sheet it is no where mentioned that the assailants were only two and HC Narender could not give the exact figure due to some confusion etc. Case Law where recovery of incriminating articles was not found sufficient to connect the accused with the Crime:
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State v. Mohd. Rashid @ Kala
State v. Chaman Parvez
71. In this regard, the judgment Kalloo Passi versus State, 2009(2) JCC 1206 is relevant and the said question has been dealt by the Hon`ble Court in para 19 to 24. The same are reproduced as under:
Para 19 : In the decision reported as Narsinbhai Haribhai Prajapati v. Chhatrasinh & Ors. AIR 1977 SC 1753 the Supreme Court had held that in the absence of any other evidence the circumstances of seizure of blood stained shirt and dhoti from the person of an accused and dharias from the houses of accused are wholly insufficient to sustain the charge of murder against the accused.
Para 20: In the decision reported as Surjit Singh v. State of Punjab AIR 1994 SC 110 as watch belonging to the deceased and one dagger which was found to be stained with human blood were recovered at the instance of the accused. It was held by the Supreme Court that said recovery by itself, does not connect the accused person with the murder of the deceased. It was further held that said circumstance may create some suspicion but the same cannot take the place of proof.
Para21. In the decision reported as Deva Singh v State of Rajasthan 1999 CriL.J 265 Supreme Court had held that merely because a knife is alleged to have been recovered at the instance of the accused would not lead to a conclusion that the accused was the perpetrator of the crime of the murder.
Para22 In the decision reported as Prabhoo v State of U.P. AIR 1963 SC 1113 a kulhari, a shirt and a dhoti which were found to be stained with human blood were recovered from the house of the accused, at his instance. Holding that it is wells settled that circumstantial evidence must be such as to lead to a conclusive which on any reasonable hypothesis is consistent only with the guilt of the accused and not with his innocence and that from the mere production of the blood stained articles by the accused, one cannot SC No. 86/09 & 32/10 49 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez come to the conclusion that the accused committed the murder inasmuch as the fact of production cannot be said to be consistent only with guilt of accused and inconsistent with his innocence, for the reason it is quite possible that someone else committed the murder and kept the blood stained articles in the house of the accused and the accused might have produced the said articles when interrogated by the police, the Supreme Court acquitted the accused.
Para23: In the instant case, there is no evidence to show that a rehri was used by the appellant in committing the murder of the deceased or in the transportation of the body. The only evidence pertaining to the rehri is the deposition of Ramjiwan PW3 that he had seen the appellant with a rehri on the day the deceased had gone missing.
Para24 Therefore, in view of afore-noted judicial decisions, we hold that mere recoveries of the blood stained clothes; pieces of two daggers and a rehri at the instance of the appellant do not lead to a conclusion that the appellant is the perpetrator of the crime.
72. In view of the above, it becomes crystal clear that mere recovery of blood stained clothes, weapon of offence or other articles are not sufficient ipso facto to connect the accused with the crime in the absence of other connecting evidence. As already discussed that in the instant case prosecution has miserably failed to connect the accused persons with the commission of crime with the help of alleged incriminating items.
Inconsistency between prosecution case and disclosure statement of the accused persons:
73. As per the disclosure statement of the accused persons SC No. 86/09 & 32/10 50 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez recorded during the investigation, it emerges that the motive of the alleged crime was robbery as accused persons intended only to snatch the gold chain of the deceased persons. Whereas during investigation, investigating officer failed to collect any evidence. Consequently, there is no ioto of evidence to show that the alleged offence was committed while committing the robbery. Though prosecution case is entirely based on the testimony of PW2, yet in his whole testimony PW2 did not utter even a single word that accused persons had killed the deceased persons in order to commit robbery. It is well settled principle of law that disclosure statement before the police has no evidentiary value as it is hit by Section 25 of the Indian Evidence Act. But the disclosure statement may provide inputs to the investigating agency to find out truth in the allegations made against the accused persons. Admittedly in the instant case, investigating officers neither disbelieved the disclosure statement of the accused persons nor the statement of sole eye witness despite the fact that both are inconsistent to each other. Moreover, perusal of the disclosure statement of accused Rashid @ Kala reveals that he had neither any intention to kill the deceased persons or had any knowledge that accused Chaman Parvez was having knife. Thus, even as per his disclosure statement, accused Rashid @ Kala had no common intention with accused Chaman Parvez to kill the deceased persons. In this regard, the observation of Apex Court made in Harjit Singh & others versus State of Punjab, 2002 (3) JCC 1601 are relevant and reproduce as under:
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State v. Mohd. Rashid @ Kala
State v. Chaman Parvez
"Common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention therefore should be proved by objective test. It is only then one accused can be made vicariously liable for the acts and deeds of the other co-accused."
In view of above, I am of the opinion that even the disclosure statement of accused Rashid @ Kala is not sufficient to hold him guilty for the offence punishable under Section 302 IPC with the aid of Section 34 IPC.
Lapses in the investigation:
74. During the course of arguments, learned counsel appearing for accused persons pointed out numerous inherent defects in the investigation and even learned Additional Public Prosecutor fairly conceded that there are some inherent defects in the investigation, which were not expected in such a horrible crime. A few are as under:
(i) Though prosecution case was that PW2 was on patrolling duty in the area at the time of incident, yet no document was filed on record to prove this fact.
(ii) No site plan was prepared at the instance of HC Narender Singh. In the scaled site plan, which is exhibited PW7/A, SC No. 86/09 & 32/10 52 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez position of PW2 has not been shown. Resultant, Ex. PW7/A is not helpful to ascertain whether PW2 was in a position to witness the incident or not.
(iii) Mobile phone which was recovered by PCR official during the search of deceased and referred in Ex. PW10/A was not seized by the investigating officer. It is not clear where the said phone had gone.
(iv) Though PW2 in his statement Ex. PW2/A stated that the assailants were more than two yet no efforts were made to ascertain the identity of other assailants. Even no finding was given in the charge-sheet that the assailants were only these two accused and PW2 had inadvertently or oversight had stated in Ex.PW2/A that the assailants were more than two. Both the charge-sheets are totally silent about this.
(v) Though PW2 stated in his statement Ex. PW2/A that number of persons were present there at the time of incident yet no sincere efforts were made to record the statement of any public persons. Furnished reasons are not convincing, in such a heinous crime all efforts should be made to record the statement of genuine eyewitness.
(vi) In the whole charge-sheet, it is no where mentioned to whom the recovered chain belonged.
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State v. Chaman Parvez
(vii) No step was taken to get hold the identification parade
of the recovered chain.
(viii) There is inconsistency in the statement of PW Mohd.
Arif Jan and Prajul V.C. recorded under Section 161 Cr.P.C. as PW Arif Jan stated that constable J.C. Solanki was wearing gold chain whereas Prajul V.C. stated that constable C. Punraj was wearing gold chain. No step was taken to remove this controversy by recording their supplementary statement.
(ix) There is no signature of PW HC Man Singh on the seizure memo of recovered chain i.e. Ex. PW5/B despite the fact that his name is mentioned as one of the witnesses.
(x) That the key of the house was not seized when as per investigating officer no one was residing there. Recovery place was not got photographed.
(xi) No efforts were made to pick up finger prints from knife. No efforts were made to get DNA Test from the recovered articles.
(xii) Accused were not got medically examined. No efforts were made to ascertain the blood group of accused especially of accused Chaman Parvez.
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State v. Chaman Parvez
(xiii) Disclosure statement of both the accused persons are
contrary to the prosecution case. As per disclosure statement, they were only two whereas PW2 stated in his statement Ex. PW2/A that the assailants were more than two. Even there is no reference in the disclosure statement that any accused had caught hold any of the deceased as stated in Ex. PW2/A. No efforts were made to ascertain whose version is correct whether accused persons disclosed true facts in their disclosure statement or HC Narender in his statement Ex. PW2/A. Surprisingly, in the charge-sheet, it is no where mentioned that accused had disclosed incorrect facts in their disclosure statements.
(xiv) In the statement of constable Prajul recorded under Section 161 Cr. P.C. which are Ex. PW24/D-1 and PW24/D-2, his belt no. is not mentioned. Similarly, in the statement of ASI Jagdish Parsad, which is exhibited as Ex. PW24/D-6, his belt no. is not mentioned.
(xv) In the statements of PWs Mahesh Kumar (Ex.
PW24/D-3) SI Dhan Singh (Ex. PW24/D-4), Const. Dinesh Kumar (Ex.PW24/D-5), their name and belt number were inserted subsequently. Even the name of MHC (M) is not mentioned in his undated statement. All these only reflect that their statements were recorded by the investigating officer without their knowledge.
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State v. Chaman Parvez
(xvi) No efforts were made to clear the inconsistency between
the prosecution case and autopsy reports.
75. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of both the accused persons namely Rashid @ Kala and Chaman Parvez beyond the shadow of reasonable doubts for the offences punishable under Section 302/34 IPC and under Section 394 read with 397 and 398 IPC. Similarly, prosecution has also failed to prove the guilt of accused Chaman Parvez for the offence punishable under Section 201 IPC read with Section 25 of the Arms Act. Thus, I hereby acquit both the accused persons from all the above charges.
76. Before parting with the matter, I deem it appropriate to bring the anguish of Court on record keeping in view serious lapses in the investigation as well as the manner in which PW24 had made deposition in the Court. It is pertinent to mention here that under our criminal system, a duty has been cast upon the State to prosecute the offenders for offences committed by them. One of the reasons to cast duty upon the State is that State is capable not only to prosecute the offenders for commission of crime but also competent to protect the rights of the offenders. Thus, State has to play a dual role at the time of prosecuting the offenders. Victims of crime as SC No. 86/09 & 32/10 56 of 57 State v. Mohd. Rashid @ Kala State v. Chaman Parvez well as offenders repose faith in the State that State will discharge its duty in accordance with law. Diligent investigation plays a significant role in assisting the Court to arrive at a right conclusion. In such a heinous crime, society expects better quality of investigation from the investigating agency so that the offenders could be punished in accordance with law. On the converse, in the instant case, investigating officer had not only conducted the investigation in most causal manner but also deposed in the Court causally and deposed certain facts with were totally contrary to the record. As and when lapses are pointed out by the Court, it is the duty of the competent authority to take appropriate action against such erring police official not only to restore faith of the public at large in the system but also to set the house in order for future. With the trust and faith that Commissioner of Police shall take appropriate action against the erring investigating officer for conducting sub- standardized investigation, a copy of judgment be sent to him for taking necessary action as well as issuing directions as he deems fit to all the concerns that in future the investigating officers shall make sincere efforts to collect scientific evidence such as DNA Test, especially in such type of heinous crimes.
Announced in the open Court
On this 24th day of December 2011,
(Pawan Kumar Jain)
Additional Sessions Judge-01,
Central, THC/Delhi `
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