Delhi District Court
State vs 1. Sheikh Mahmood Ali @ Po on 24 May, 2010
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 111/07
FIR No. 12/07
P.S. Jahangir Puri
U/s 302/120B/34 IPC
State Versus 1. Sheikh Mahmood Ali @ PO
S/o Sheikh Roja Ali
R/o Jhuggie Lakhi Park,
Bhalaswa Village,
Jahangir Puri, Delhi.
2. Sheikh Sanu
S/o Sheikh Abu Musa,
R/o Jhuggie Lakhi Park,
Bhalaswa Village,
Jahangir Puri, Delhi.
3. Sheikh Shahjan
S/o Sheikh Hassan
R/o Jhuggie Lakhi Park,
Bhalaswa Village,
Jahangir Puri, Delhi.
Date of Receipt : 18.05.2007
Date of Conclusion of arguments : 18.05.2010
Date of Decision : 24.05.2010
FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 1/16
JUDGMENT :
1. The accused persons Sheikh Mehmood Ali, Sheikh Sanu and Sheikh Shahjan have been chargesheeted by PS Jahangir Puri for commission of offence under Section 302/120B/34 IPC.
2. Story of prosecution in brief is that on 05.01.2007 at about 1.02 am, an information was received at Police Station Jahangir Puri that in house no. 725 in the street in front of J1200, Bhalsava Village, Jahangir Puri, a person has been murdered and his dead body is lying. On this information, SI Vijay Singh along with Ct. Ravinder reached there. They found a large gathering outside the jhuggie and in the jhuggie, a dead body was lying. On inquiry, it revealed that dead body was of Sheikh Rafique. No eye witness was fond there. Dead body was removed to the mortuary. During investigation, the mother and sister of the deceased also reached there. Khairoon Bibimother of the deceased told the police that he had seen his son in the jhuggie along with the accused persons namely Sheikh Mehmood Ali, Sheikh Sanu and Sheikh Shahjan. It was also revealed that they used to gamble in the jhuggie, regarding which, a complaint was made by the deceased to his mother, who informed the owner Suresh. Suresh scolded the accused persons and asked them not to gamble there, due to which, they were keeping a grudge against the deceased and FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 2/16 they murdered him. All the accused were arrested. After completion of the investigation, the charge sheet against the accused persons was filed.
3. Ld. Metropolitan Magistrate, after complying the provisions of Section 207 Cr.P.C, committed the case to the court of Sessions as the offence punishable u/s 302 IPC is exclusively triable by the Sessions Court.
4. All the accused persons were charged for the offence punishable U/s 120B IPC and 302 read with Section 120B IPC by my learned Predecessor. The charge was read over and explained to the accused persons, to which they pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
5. Prosecution in order to bring home the guilt of the accused persons, examined 16 witnesses and thereafter, prosecution evidence was closed.
6. Statement of accused persons were recorded u/s 313 Cr.P.C, wherein they denied the entire evidence and stated that they are innocent and have been falsely implicated in this case. They did not FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 3/16 wish to lead evidence in their defence. Thereafter the case was fixed for final arguments.
7. I have heard arguments from the learned Additional Public Prosecutor for the State, learned Defence counsel for the accused persons and perused the record.
8. Ld. Addl. PP submitted that in the present case there is no ocular evidence. The case is based on circumstances. For proving all the circumstances, the prosecution has examined 16 witnesses. The circumstances on which the prosecution is relying are : (i) The circumstances of last seen ; (ii) pointing out the place of occurrence by the accused persons ; (iii) motive . Ld. Addl. PP submitted that for proving the case on the basis of circumstantial, the following tests must be satisfied :
(i) The circumstances from which an inference of guilty is sought to be drawn must be cogently and firmly established :
(ii) Those circumstances should be of a definite tendency un erroringly pointing towards the guilt of the accused
(iii) 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 FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 4/16 accused and none else, and
(iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence.
9. Ld. Addl. PP submitted that in the present case, the prosecution has proved all the circumstances, which it intended to prove. The circumstances proved and established form a complete chain and pointed towards the guilt of the accused. I take up the circumstances one by one.
CIRCUMSTANCE OF LAST SEEN :
10. Ld. Addl. PP submitted that in the present case, the deceased used to sleep in that jhuggie, accused persons also used to come to that jhuggie. There was some dispute as the accused persons used to gamble there, which was not liked by the deceased and he complained about this to his mother. On that fateful night, deceased after taking his meal went to that jhuggie for sleeping and when PW1 went there, she found all the three accused persons sitting along with her son.
FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 5/16
11. Ld. Addl. PP submitted that this testimony of PW1 clearly shows that deceased was seen in the company of the accused persons at 10.00 pm and on the next day, at about 8.00 am, he was found dead. According to the postmortem report, which is proved on record as Ex. PW4/A, one stab injury was found on the dead body and the time since death was approximately 36 hours. Postmortem was conducted on 06.01.2007 at about 11.00 am and time since death come around about 11.00 pm on the intervening night of 4/5th January 2007 i.e in close proximity with the time, when PW1 had lastly seen the deceased alive in the company of the accused persons. Learned Addl. PP submitted that keeping in view of all these facts and also the proximity of time, it is clear that accused persons committed the offence. Ld. Addl. PP in support of his arguments relied upon the judgment cited as Babu son of Ravindran Vs. Babu son of Bahuleyan and Anr. (2003) 7 SCC 37. Ld. Addl. PP has also relied upon the judgments cited as Raju Vs. State of Haryana (2001) 9 SCC 50 and Amit Vs. State of Maharashtra (2003) 8 SCC 93. Ld. Addl. PP has also submitted that as the proximity of time is there and time gap is only one hour, when the deceased was seen alive with the accused persons and when he was noticed by PW1. It was for the accused persons to explain as to what were the circumstances leading to the death of the deceased. Ld. Addl. PP relied upon the FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 6/16 judgment cited as State of Goa vs. Sanjay Thakran, 2007 (5) JT
146. Ld. Addl. PP submitted that there is no explanation coming forward from the accused persons in this regard. Prosecution has fully established and proved the circumstance that deceased was lastly seen alive in the company of accused persons and died in close proximity of time. This circumstance clearly points towards the guilt of accused and is also inconsistent with any hypothesis of innocence of accused persons.
12. Learned defence counsel submitted that onus was upon the prosecution to prove that deceased was lastly seen in the company of the accused persons, which has not been proved. PW1 has stated that : "........ On the said night after having his meal my son went to jhuggie for sleeping. At about 10.00 p.m. I went to jhuggie to see my son and I found he was sleeping there and light was on that time. "
Learned defence counsel submitted that she nowhere stated that accused persons were there, when she reached the jhuggie. She was crossexamined by the Ld. Addl. PP and during cross examination, she stated that : "........ It is correct that at about 10.00 p.m my son and all the FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 7/16 three accused persons were together. Voluntarily at about 11.00 p.m. I again visited the same jhuggie but but my son was sleeping alone at that time......"
13. Ld. Defence counsel submitted that there is no other eyewitness to prove the evidence of last seen and PW1 has specifically stated that accused persons were not there and deceased was sleeping alone during night. PW2 Reshmasister of the deceased has also supported the statement of PW1 and she stated that : "........ In the night of 04.01.2007, my brother Rafiq after having his meals, went to sleep in the jhuggie of Suresh @ Lalaji at about 9/10 pm. My brother had gone to sleep in the said jhuggie as Suresh @ Lalaji had insisted him and took all the responsibility of any consequences. My mother had gone to see my brother after sometime and she found that my brother was sleeping there alone. Nobody else was there in the jhuggie....."
14. Learned defence counsel submitted that in the light of testimonies of PW1 and PW2, it is correct that they had not seen the deceased in the company of the accused persons on the intervening night of 04/05.01.2007. Onus was upon the prosecution to prove the same. FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 8/16
There is no other witness, who deposed that he had seen the deceased in the company of the accused persons at the relevant time. Learned defence counsel submitted that prosecution has miserably failed to prove and establish this circumstance, benefit of the same be given to the accused and they be acquitted.
15. After hearing the arguments and going through the record, I found that there was only one witness i.e. PW1, who according tothe prosecution story stated that deceased was lastly seen in the company of the accused persons, but she has not supported the prosecution case, rather she stated that her son was alone in the jhuggie, when she had gone there to see her son and the accused persons were not there. This statement is also corroborated by PW2 and there is no reason as to why PW1 and PW2 would depose falsely on this aspect. There is no other evidence brought on record by the prosecution to prove that deceased was lastly seen in the company of the accused persons. Learned defence counsel has rightly pointed out the statements of PW1 and PW2, wherein it has specifically come that deceased was sleeping alone in the jhuggie. From the above discussion, I am of the opinion that prosecution has miserably failed to establish the circumstance that deceased was lastly seen in the company of the accused persons. I am, therefore, of FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 9/16 the opinion that this circumstance has not been proved and established by the prosecution.
POINTING OUT BY THE ACCUSED :
16. Learned Addl. PP submitted that in the present case, accused persons were apprehended on 06.01.2007 and they all three made disclosure statements, which have been proved on record as Ex. PW 12/G, Ex. PW12/H and Ex. PW12/I. Accused Sheikh Mehmood also disclosed that he can get the knife recovered, which was used in the commission of offence, but that knife could not be recovered despite best efforts. Learned Addl. PP submitted that law is well settled that it was not only the recovery in pursuance of the disclosure statement, but also discovery of fact, which can be relied upon and is relevant. Ld. Addl. PP submitted that all the three accused persons pointed out the place of occurrence. Accused Sheikh Shahjan pointed out the place of occurrence vide memo Ex.PW12/K, Accused Sheikh Mehmood Ali pointed out the place of occurrence vide memo Ex.PW 12/L and Accused Sheikh Sanu pointed out the place of occurrence vide memo Ex.PW12/M. Learned Addl. PP submitted that they pointed out the place of occurrence, because they were having the knowledge of the same, which also shows that they were involved in the commission of crime. Ld. Addl. PP submitted that pointing out by FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 10/16 the accused persons is admissible under law under Section 8 of Indian Evidence Act and prayed that this being the another circumstance, be read against the accused and they be held guilty.
17. On the other hand, learned defence counsel submitted that so far as the pointing out of the place of occurrence is concerned, that is not admissible under law, particularly when, place of occurrence was already known to the accused persons. Place of occurrence was already in the knowledge of the police and no new fact has been disclosed or have come to the knowledge of the police from the disclosure statement. Even otherwise, the accused persons were already there on the spot. It has come in the testimony of PW1, who stated that : ".... When I came back and found all the three accused present in front of gate of jhuggie and saying that who had killed the Rafiq, he was a very good person..."
18. Learned defence counsel submitted that if the prosecution case is to be believed, then PW1 had told the police that the accused persons were there during night and they could be apprehended from there itself, but the police has not done. Accused persons were arrested only on 06.01.2007 and by that time, the police was already knowing FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 11/16 the place of occurrence, therefore, pointing out memo looses its importance and it does not lead us anywhere. Even if, it is presumed for the sake of arguments that accused persons pointed out the place of occurrence, this by itself does not point out towards the guilt of the accused as according to PW1, they reached there later on as has come in the crossexamination of PW1. It is prayed that prosecution has failed to prove this fact also and benefit of the same be given to the accused and they be acquitted.
19. After hearing the arguments and going through the record, I found that conduct of the accused persons may be relevant, but here the police was already knowing the place of occurrence. According to PW1, accused persons also reached there, when she was there and they also asked as to who killed Rafiq. Even otherwise, merely pointing out the place of occurrence, which was already known to the police does not amount to discovery of a fact as the fact was already in the knowledge of the police. I am also of the opinion, this fact or circumstance does not prove the guilt of the accused and is also not inconsistent with any hypothesis of innocence of the accused. MOTIVE :
20. Ld. Addl. PP submitted that there was a great motive for the accused FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 12/16 persons to kill the deceased as the deceased complained against them to his mother and she in turn reported the matter to Sh. Suresh Chand, who scolded and warned the accused persons not to gamble in his jhuggie, due to which they were having grudge against the deceased and they also threatened him. PW2 has also stated that accused told her in so many words that they wanted to eliminate her brother. She stated that : ".... On 04.01.2007, when I went for my work in the factory, all the three accused persons threatened me to make my brother understand, otherwise 'Hum Uska Kaam Tamaam Kar Denge". When I was going to take tea from the tea stall, the accused persons started commenting on seeing me that 'Phir Is Gali Mein Kisi Ek Ka Khoon Hoga.' ...."
21. Ld. Addl. PP submitted that from this statement of PW2, it is clear that accused persons were not happy with the deceased as he made a complaint to his mother and also to the owner and they were scolded by PW5 on this aspect, that is why, they killed the deceased on the intervening night of 04/05 January 2007.
22. Ld. Addl. PP submitted that it is important that it was during day time of 04.01.2007 itself, when the accused persons told PW2 to make her FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 13/16 brother understand, otherwise they would kill him and they executed the threat extended by them. It is prayed that keeping in view the strong motive and the other circumstances, the accused persons be held guilty.
23. Learned defence counsel submitted that there was no such motive. They never gambled there. It is a story concocted by them. Even otherwise, there was no such threat extended. PW1 and PW2 have contradicted each other on this aspect. PW1 stated that : "......... My daughter who was working in that godown herself heard that all the three accused present in the court today, saying each other that they will beat my son so mercilessly that even he would not be recognized by his mother."
24. PW2 stated totally different words, meaning thereby that either PW1 is deposing falsely or PW2 is deposing falsely. Even PW5 has also stated that accused persons extended the threat to Rafiq, but it was hearsay and similarly, statement of PW1 is also hearsay. PW2 has nowhere stated these words in her statement u/s 161 Cr.P.C. Learned counsel further submitted that even otherwise, the prosecution has not established or proved the other circumstance and merely proving the motive, does not serve the purpose. It is prayed FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 14/16 that benefit of the same be given to the accused persons and they be acquitted.
25. After hearing the arguments and going through the record, I found that PW2 has specifically stated that accused persons asked her to make her brother understand or they would kill him. Record also shows that there was some enmity between the accused persons and the deceased as deceased had made a complaint to his mother about their gambling in the jhuggie. She told this fact to PW5 Sh. Suresh Chandowner of the jhuggie and he scolded the accused persons and asked them not to gamble there. This shows that they were having a grudge against the accused and may be sufficient motive also, but in the present case as pointed out earlier, the circumstance on which the prosecution relied was the evidence of last seen, but the prosecution has miserably failed to prove and establish that circumstance. The other circumstance on which, the prosecution has place reliance is pointing out the place of occurrence and the third is the motive. In my opinion for convicting the accused persons on the basis of circumstantial evidence, all the circumstances must be established and proved and chain must be complete. The circumstances must be inconsistent with any hypothesis of innocence. In the present case, the chain is not complete, the first circumstance itself has not been FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 15/16 proved and established. Pointing out of the place of occurrence is of no consequences. Now, we are left only with the motive, which in my opinion, on the basis of that, a person cannot be held guilty as having a motive does not mean that he has committed the offence. It was for the prosecution to establish that accused persons committed murder of Rafiq, which in my opinion, the prosecution has miserably failed. I, therefore, acquit the accused persons giving them benefit of doubt. All the accused persons are in Judicial custody. They be released forthwith, if not required to be detained in any other case or proceedings.
26. File be consigned to Record Room.
Announced in open Court
on today i.e. 24.05.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE
ROHINI : DELHI
FIR no. 12/07 PS Jahangir Puri : State Vs. Sheikh Mehmood Ali etc. Page 16/16