Delhi District Court
State vs Rehan @ Gaonwala on 10 January, 2017
1 IN THE COURT OF SH.NARINDER KUMAR:SPECIAL JUDGE2 NDPS ACT:(CENTRAL DISTRICT):TIS HAZARI COURT:DELHI Case No. 27231/16 SC No. 124/13 FIR No. 127/13 PS Chandni Mahal U/s. 302, 201 IPC & 120B IPC State v. Rehan @ Gaonwala & Ors. State versus 1. Rehan @ Gaonwala S/o Shafiquddin, R/o 1214, Rakab Ganj, Chandni Mahal, Delhi. 2. Kamran S/o Mohd. M.Safi, R/o 2086, Gali Zere Fasil, Turkman Gate, Chandni Mahal, Delhi. 3. Shahzada Wasim S/o Late Mohd. Rahish R/o 746, Gali Sauda Gran, Ballimaran, Delhi. State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 2 4. Ravi Kumar S/o Kali Pado Haldhar R/o Puja Colony, Som Bazar, Kachhi Colony, Loni, Ghaziabad, U.P. Date of Institution : 29.11.2013 Date of Decision : 10.01.2017 JUDGMENT
This is a case alleging commission of offences U/s.302, 201 IPC and 120B IPC. Accusation leveled against Rehan and Kamran accused is that on 17.08.2013, both of them alongwith two others namely Shahzada Wasim and Ravi Kumar (since acquitted), entered into a criminal conspiracy and in pursuance thereof, did commit murder of Fazil S/o Abdul, by firing shots at him and thereafter, caused disappearance of evidence of commission of the murder.
2. Case of the prosecution, as per statement made by Mohd. Kasif, brother of Shahzada Fazil, before the police on 18.08.2013, is that on 17.08.2013, at about 10:00 P.M. he and his brother Shahzada Fazil were returning from Golcha Cinema after having enjoyed night show. When they reached in front of State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 3 Delhi Jal Board Office, two boys riding on a motorcycle came from behind and started talking to Shahzada Fazil. Thereafter, the person riding the pillion asked his companion to open fire at Shahzada Fazil and the pillion rider complied. Both the offenders made good their escape by speeding away the motorcycle towards Delite Cinema. While fleeing away, the pillion rider proclaimed "Sikander Gemini". According to Mohd. Kasif, he could not note down the number of the motorcycle. Further according to him, he removed his brother to Lok Nayak Hospital on a Activa scooty, which came that side.
On reaching the hospital, the doctor declared Fazil brought dead.
In his statement Mohd. Kashif raised suspicion against four persons namely; Mohsharam, Musa, Shobi and Edris, who according to him, were involved in the murder of his brother, at the instance of Ashu. Said Ashu is alleged to have given beatings to Fazil on 12.07.2013, while he was confined at Tihar Jail. Fazil came out of jail, when released on bail and told his brother Mohd. Kashif and his mother regarding threat extended to his life by said Ashu, while he was coming out of jail.
At about 11.20 pm, HC Anil Kumar, duty officer, PS. Chandni Mahal received information from SI Praveen Kumar State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 4 and on its basis recorded DD No.2A. Inspector Vinod Kumar also received same information and thereupon reached Lok Nayak hospital in the company of Ct. Ravinder. At the hospital, he met SI Balwant and Ct. Sandeep from PS. Chandni Mahal. SI Praveen Kumar and Ct. Ram Krishan of PS Daryaganj were present there. SI Balwant produced before Inspector Vinod Kumar, MLC of Fazil. Inspector inspected the dead body of Fazil lying at the hospital. SI Praveen Kumar produced before Inspector Vinod Kumar, Md. Kasif - the alleged eye witness. Thereupon, the Inspector accompanied by SI Balwant, SI Praveen, Ct. Ram Krishan and complainant reached Fasil Road, in front of the office of Delhi Jal Board, as pointed out by the complainant. Neither any blood nor any empty cartridge could be recovered from there. Inspector Vinod Kumar requisitioned Crime Team. He recorded statement of the complainant, appended endorsement thereto and got this case registered.
Ct. Rajesh left the police station on 18.08.2013 at 1.45 AM and delivered report to the Ilaka Metropolitan Magistrate and senior police officials.
3. At the pointing out of the complainant, Inspector Vinod Kumar prepared rough site plan of the place of State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 5 occurrence. Thereafter, he accompanied by complainant, SI Balwant and Crime Team reached Lok Nayak Hospital. There members of the Crime Team clicked photographs of the dead body. SI Pankaj Incharge of Mobile Crime Team also inspected the spot and prepared report. SI Balwant collected from the hospital a sealed parcel containing blood stained clothes of the deceased and produced the same before Inspector Vinod, who seized the same.
4. The three suspects named by the complainant were interrogated by Inspector Vinod Kumar, but their involvement in the crime could not be established.
Dead body of Fazil was got identified from relatives and got subjected to autopsy and thereafter the dead body was delivered to the relatives. Belongings of the deceased were collected by Inspector Vinod Kumar and seized.
5. Case of prosecution is that on 19.08.2013 somehow the complainant told Inspector Vinod Kumar that the place of occurrence was actually H. no. 3491A, 3 rd Floor, Kucha Lal Man, Daryaganj, Delhi. Thereafter, SI Balwant and Inspector Vinod Kumar accompanied Md. Kasif to the said flat. It was State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 6 found lying closed. It was got opened with keys. On entering the room, blood was found lying on the right hand side of the house. One Pocha having stains of blood was also found lying there. Inspector Vinod Kumar seized the same. Crime team also inspected this spot i.e. Flat No. 3491A/3rd floor, Kucha Lal Man, Daryaganj. Ct. Vijay of Mobile Crime Team took photographs after visiting. After inspection of the spot by the crime team, the flat was got sealed. On 20.8.13, FSL team was called to the spot and the same inspected it. FSL team picked from the spot certain articles which included blood sample, cigarette stubs and empty cartridge, etc. Inspector Vinod Kumar turned them into parcel, sealed and seized the same vide a memo. A pair of shoes was also picked up, sealed and seized. On return, Inspector deposited these items with MHC(M).
6. Case of prosecution further is that on 22.08.2013, secret information was received that accused Rehan Gaonwala, Wasim and Ravi Kumar would come from the side of Delhi Gate to Kucha Lal Man, Daryaganj, Delhi. On the basis of this information, Inspector Vinod Kumar constituted a raiding party. At about 1:50 pm, these three accused came from the side of Delhi Gate towards Tiraha Bairam Khan. All of them were State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 7 apprehended at the pointing out of secret informer.
Rehan was found in possession of one pistol, which he had kept concealed in between his pant and waist, on the right hand side. The pistol was found containing three live cartridges. Sketches of the pistol and cartridges were prepared. The pistol and cartridges were turned into cloth parcel, then sealed and seized vide a memo.
All these three accused were arrested and subjected to personal search vide separate memos.
7. During investigation, accused Wasim is alleged to have made disclosure statement that he had parked at his house his scooty, used in removal of dead body of Fazil from the scene of crime i.e. Kucha Lal Man, Daryaganj, Delhi to Lok Nayak hospital. In pursuance of disclosure statement, Wasim led to his house and got recovered his scooty bearing No. DL1SV 4307. It was seized by police.
On return to the police station, Inspector Vinod Kumar deposited the aforesaid case property with MHC(M). The three accused were got medically examined and then lodged in the lock up. Blood sample of all three accused was obtained by the doctor of Lok Nayak hospital, and seized by Inspector Vinod State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 8 Kumar along with impression of the sample seal, vide a memo. On return to the police station, the Inspector deposited the same also with the MHC(M).
8. On 20.08.2013 Ms. L.Babyto Devi, Assistant Director (Biology), FSL, on receipt of request letter from police, reached PS Chandni Mahal to examine the scene of crime i.e. 3491/A, 3 rd floor, Kucha Lal Man, Daryaganj, Delhi, she accompanied by other experts and photographers from the FSL accompanied by Inspector Vinod Kumar reached the said scene of crime, inspected it and examined presence of blood or other biological clue material. Blood was detected on cloth pieces, nicker, floor and mattress. Some cigarette stubs were also found lying on the floor. All these were picked up by FSL team and delivered to Inspector Vinod Kumar.
9. On 08.10.2013 Ms. Monika Chakravarty, Sr. Scientific Assistant (Biology), FSL examined contents of 6 sealed parcels pertaining to this case and submitted report. The material objects were also examined serologically.
10. Investigation of the present case was transferred to State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 9 police station Daryaganj, under orders passed by DCP Sh. Alok Kumar.
11. On 04.09.2013, Inspector Ravinder Kumar took over investigation of this case. At that time, accused Kamran was yet to be arrested. On 05.09.2013 Kamran accused surrendered before the court. The Inspector arrested him and conducted his personal search. The Inspector also added offence U/s.201 IPC.
Postmortem report of Fazil was collected by Inspector Ravinder Kumar. During investigation, he got sent to FSL material exhibits for analysis.
On 06.09.2013 accused Kamran was taken to JPN Hospital. There, doctor collected his sample of blood for the purpose of DNA profile. Inspector Ravinder Kumar collected from the doctor the sealed parcel containing sample of blood of Kamran and impression of the seal of the hospital and seized the same, vide a memo.
On 14.10.2013 Mohd. Asim complainant was produced before Metropolitan Magistrate and his statement U/s.164 Cr.P.C. was recorded.
12. On completion of investigation, challan was put in State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 10 court. After compliance with provisions of Section 207 Cr.P.C., case came to be committed to the Court of Session. Thereupon, case was assigned to this court.
13. On 09.07.2014, my learned Predecessor framed charge for an offence U/s.120B & 302 and 201 IPC against accused Rehan, Kamran, Shahzada Wasim and Ravi Kumar and a separate charge for offences U/s.25 and 27 of the Arms Act against Rehan. Since the accused persons pleaded "not guilty"
and claimed trial, prosecution was called upon to lead evidence.
14. In order to prove its case, prosecution examined following 22 witnesses : PW1 HC Naresh PW2 Mohd. Anwar PW3 HC Anil Kumar PW4 Mohd. Kasif PW5 Mohd. Asim PW6 Ct. Vijay PW7 Smt. Mehtab Jahan PW8 Ct. Devi Sahai Meena PW9 Insp. Mahesh Kumar State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 11 PW10 Ct. Rajesh PW11 SI Madan Singh PW12 HC Sanjay PW13 HC Anurag Panwar PW14 SI Pankaj Kumar PW15 HC Anil Kumar PW16 Ms. Anita Chhari PW17 Ms. Monika Chakravarty PW18 Ms. L.Babyto Devi PW19 SI Balwant Singh PW20 Insp. Vinod Kumar PW21 ASI Jai Prakash PW22 ACP Ravinder Kumar
15. Ld. Addl. PP for State also tendered in evidence report Ex. PX received from FSL (Ballistic).
16. When examined U/s.313 Cr.P.C., accused Rehan and Kamran denied all the incriminating circumstances apparing in evidence against them and claimed false implication. However, despite opportunity, they did not lead any evidence in defence.
17. It may be mentioned here that there being no State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 12 incriminating material against coaccused Shahzada Wasim and Ravi to be put to them in their statements U/s.313 Cr.P.C., recording of their statements under this provision of law was dispensed with and both of them were acquitted.
18. As regards Rehan @ Gaonwala and Kamran accused, undisputedly, main stay of prosecution was on the statement of PW4 Kasif, brother of Fazil (since deceased), but he has not leveled any allegation against either of these two accused Rehan @ Gaonwala or Kamran.
19. As noticed above in the facts, Mohd. Kasif initially narrated one version of having witnessed the occurrence behind Delite Cinema and named 34 persons as the assailants, but that version, on investigation, was not found to be correct. Subsequently, Mohd. Kasif furnished another version that the occurrence had taken place at H.No.3491A, 3rd Floor, Kucha Lal Man, Daryaganj, Delhi. But, while appearing in court, he did not support the case of prosecution even regarding his second version. He was put leading questions by Ld. Addl. PP for State, but nothing useful to the prosecution could be elicited from him.
State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 13
20. Case of prosecution is that it was on the basis of secret information received by Insp. Vinod Kumar on 22.08.2013 that Rehan, Wasim and Ravi Kumar would come from the side of Delhi Gate to Kucha Lalman, Daryaganj, Delhi, and on the basis of this secret information these three accused were arrested by the Inspector. At that time, Rehan was found in possession of one countrymade pistol. The said pistol, when checked, was found loaded with three live cartridges. Insp. Vinod Kumar turned the firearm and the ammunition into parcels and seized the same. PW20 Insp. Vinod Kumar has narrated regarding arrest of Rehan and his two companions on the said date and also about the recovery of firearm and ammunition from Rehan. But, PW4 Mohd. Kasif has not supported the prosecution version regarding arrest of Rehan and his two companions or about the recovery of the pistol and the cartridges. He was confronted with his statement made before the police, but he denied to have made any such statement.
21. To connect the pistol with the commission of the crime, it was for the prosecution to prove that the same was used in firing shot at Fazil. Undisputedly, no evidence could be collected by the IO during investigation to connect the pistol State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 14 said to have been recovered by Insp. Vinod Kumar from accused Rehan. Even otherwise, as noticed above, when Mohd. Kasif has not supported the case of prosecution regarding arrest of Rehan or recovery of the firearm and the ammunition, the prosecution version narrated by only police officials, cannot be relied on.
22. As regards Kamran accused, the only evidence led by prosecution is that he was arrested by Insp. Ravinder Kumar (PW22) on 05.09.2013 after he surrendered before the court and that when his sample of blood was subjected to DNA profile, it tallied with the DNA available in the saliva available on one of the stubs recovered from H.No.3491A, 3rd Floor, Kucha Lal Man, Daryaganj, Delhi. In this regard, prosecution has relied on the statements of PW22 Insp. Ravinder Kumar and PW18 Ms. L.Babyto Devi, Asstt. Director (Biology).
According to PW18, on 20.08.2013, she alongwith other experts from the FSL firstly reached PS Chandni Mahal and thereafter accompanied by Insp. Vinod Kumar, reached the scene of crime i.e. H.No.3491A, 3rd Floor, Kucha Lal Man, Daryaganj, Delhi. According to this witness, blood was detected on cloth piece, nicker, floor and mattress. They also noticed some cigarette stubs lying on the floor. These were lifted and State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 15 produced by them before Insp. Vinod Kumar. According to PW20 Insp. Vinod Kumar, he turned these items into parcels, sealed them with seal bearing impression CHMHL1 and seized same vide memo Ex. PW4/M and handed over the seal after use to HC Balwant Singh.
However, SI Balwant Singh (PW19) nowhere stated that any such seal was delivered to him by Insp. Vinod Kumar on 20.08.2013 at the time H.No.3491A, 3 rd Floor, Kucha Lal Man, Daryaganj, Delhi was inspected by the FSL team. It is pertinent to mention here that before conducting search of H.No.3491A, 3rd Floor, Kucha Lal Man, Daryaganj, Delhi, police did not join any person from the public. There is no explanation as to why no person from the locality or from the public was associated before conducting search of the said house. So, this is a case of noncompliance with provisions of Section 100(4) Cr.P.C. when prosecution has failed to rule out possibility of tampering with the case property, before the material exhibits i.e. cigarette stubs reached FSL for DNA analysis, non compliance with provisions of Section 100(4) Cr.P.C. adversely affects case of prosecution.
23. No other evidence has been led by the prosecution to State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 16 connect Kamran with commission of the present crime.
24. In view of the above discussion, court finds that prosecution has failed to bring home charge for any of the offences U/s.120B, 302 and 201 IPC against any of the two accused.
25. As regards offence U/s.25 of the Arms Act alleged to have been committed by Rehan by keeping in possession one pistol and three live cartridges on 17.08.2013, as noticed above, prosecution has not been able to prove beyond doubt recovery of these items from Rehan, particularly, when the only independent witness Mohd. Kasif has not supported the case of prosecution.
Even otherwise, for the offence U/s.25 of the Arms Act, sanction U/s.39 Arms Act for prosecution of Rehan accused was required. Undisputedly, no sanction was obtained by the Investigating Officer for prosecution of Rehan accused for the said offence. Therefore, court has no option but to hold that prosecution has failed to prove commission of offence U/s.25 of Arms Act by Rehan accused.
State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017 17 Conclusion
26. As a result, accused Rehan @ Gaonwala and Kamran are acquitted in this case. Case property be destroyed on expiry of period of appeal/revision or subject to decision there. File be consigned to Record Room.
Announced in the open Court on this 10th day of January, 2017 (NARINDER KUMAR) SPECIAL JUDGE2 NDPS ACT:(CENTRAL DISTRICT) TIS HAZARI COURT:DELHI State v. Rehan @ Gaonwala & Ors. Case No.27231/16 Dated: 10.01.2017