Delhi District Court
State vs Mohd. Faizan & Another on 21 July, 2014
State Vs Mohd. Faizan & another
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 69/12
ID No. 02401R0433292012
FIR No. : 90/12
Police Station : Chandni Mahal
Under Section : 302/364/365/392/
397/411/34 IPC
State
Versus
Mohd. Faizan
S/o Mohd. Irfan
R/o H. No. 1132, Bazar Matia Mahal,
Jama Masjid,
Delhi-110006
.............Accused No. 1
Mohd. Yasir
S/o Mohd. Sadiq
R/o H. No. 3206, Gali Pahari Wali,
Fatak Teliyan, Turkman Gate,
Delhi.
.............Accused No. 2
Date of Institution : 13.09.2012
Date of Committal : 16.10.2012
Date of judgment pronounced on : 17.07.2014
AND
SC No. 69/12 & 94/13 Page 1 of 103
State Vs Mohd. Faizan & another
SC No. 94/13
ID No. 02401R0224592013
FIR No. : 90/12
Police Station : Chandni Mahal
Under Section : 365/392/397/302/
411/34 IPC
State
Versus
Mohd. Faizan
S/o Mohd. Irfan
R/o H. No. 1132, Bazar Matia Mahal,
Jama Masjid,
Delhi-110006.
.............Accused No. 1
Mohd. Yasir
S/o Mohd. Sadiq
R/o H. No. 3206, Gali Pahari Wali,
Fatak Teliyan, Turkman Gate,
Delhi.
.............Accused No. 2
Date of Institution : 22.04.2013
Date of Committal : 07.05.2013
Date of judgment pronounced on : 17.07.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the state
Sh. Habib Ahmed, Advocate, counsel for both the accused
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State Vs Mohd. Faizan & another
J U D G M E N T :-
1. Briefly stated facts of prosecution case are that on June 15, 2012 complainant Ikhtikar Ahmed (PW8) came to police post Turkman Gate at about 9.50 AM and got recorded his statement Ex.PW8/A to SI Mohit Yadav (PW32).
(i) In his statement, complainant alleged that on June 14, 2012 at about 3.30 PM, he was present at his shop located at 1969-70, Chandni Mahal, Delhi when his nephew Mohd. Zuber (since deceased) came to his shop along with his friend Mohd. Yasir. His nephew, Mohd. Zuber asked for a sum of ` 5.50 lac to buy mobile phones as he used to deal in sale and purchase of mobile phones. It was alleged that Mohd. Zuber told him that he had already given a sum of ` 5 lac to a dealer as the deal had been fixed at ` 10.50 lac and if he failed to pay the balance amount of ` 5.50 lac, his advance amount to the tune of ` 5 lac would be forfeited.
Accordingly, he had given a sum of ` 5.50 lac to Mohd. Zuber, after fetching it from his house. The amount was in the denomination of 10 packets of currency notes of ` 100/- each and 8 packets of currency notes of ` 500/- each. Each packet was containing 100 currency notes and 50 currency notes of ` 1000/- each. It was alleged that at about 5 PM, his nephew Mohd. Zuber along with his friend Mohd. Yasir left from his shop along with the said amount. It was alleged that complainant had talked several times with deceased Mohd. Zuber at his mobile phone No. 9268634480, who told him that he would return home after execution of the deal but his phone went switched off since 11.30 PM. It was alleged that since then his nephew had not returned to home and he had suspicion that Mohd. Yasir had kidnapped his nephew Mohd. Zuber in the greed of said amount.
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(ii). On his statement, PW32 made an endorsement (Ex.PW32/A) and got registered an FIR for the offence punishable under Section 365 of Indian Penal Code (in short IPC).
2. Thereafter, PW32 interrogated the mother of Mohd. Zuber named Mumtaz Begum (PW4) and during interrogation it was revealed that accused Mohd. Yasir had visited her house between 7 PM to 8 PM and thereafter Mohd. Zuber and Mohd. Yasir left from the house together along with the amount of ` 5.50 lac. Accordingly, PW32 went to the house of Mohd. Yasir but he was not found there. Accordingly, PW32 returned to the police post.
3. It was alleged that a secret information was received on phone that Mohd. Yasir along with his friend was present near Delight Cinema and he was looking scared, accordingly, PW32 constituted a raiding party comprising of HC Raj Kumar, Ikhtikar Ahmed (PW8), Ansar Ahmed (PW9) and Nasir and left for Delight Cinema. When they reached near Delight Cinema, secret informer pointed out towards the accused Mohd. Yasir, who was standing along with his friend. Accordingly, Mohd. Yasir and his friend i.e. Mohd. Faizan were apprehended and they were brought to Police Post, Turkman Gate. It was alleged that after reaching Police Post, both the accused persons were interrogated and during interrogation, it was revealed that they had murdered Mohd. Zuber and his dead body was lying in a Santro Car bearing registration No. DL-4C-J- 4773, which was borrowed from Mohd. Maviya (PW7). It was further revealed that they had also looted the amount of ` 5.50 lac. Out of the said amount, ` 75,000/- was given by accused Mohd. Yasir to Mohd. Wasim (PW5) as he had taken a loan of ` 50,000/- from him and he also asked him to hand over the amount of ` 25,000/- to Mohd. Abul Basit (PW6) from SC No. 69/12 & 94/13 Page 4 of 103 State Vs Mohd. Faizan & another whom he had also taken a loan of ` 25,000/-. They further disclosed that they could point out the car and dead body. It was alleged that thereafter police party along with PW8, PW9 and Mohd. Nasir left for Gandhi Market, Mata Sundari Road, New Delhi where both the accused persons pointed out towards Santro Car bearing registration No. DL-4C-J-4773. Both the accused persons pointed out the car and dead body one by one. Accordingly, separate pointing out memo was prepared. Crime team was summoned, which inspected the car and it was got photographed. On checking, dead body of Mohd. Zuber was found between the rear seat and front seats, which was covered with a polythene. One surgical blade was also recovered and as per the disclosure statement of accused persons, deceased was killed by the said surgical blade. Finger prints were lifted from the said car. Exhibits were also lifted from the car. It was alleged that key of the car was recovered on cursory search of the accused Mohd. Yasir. At the pointing out of both the accused persons, car and dead body were recovered. It was alleged that after completing form 25.35 (1) (b), dead body was got sent to mortuary of MAMC with a request to preserve the same.
(i) It was alleged that thereafter both the accused persons were arrested and during personal search of accused Mohd. Yasir, one mobile make Nokia having Vodafone connection No. 9899367446 and ` 1000/- were recovered from his possession whereas a mobile phone make Nokia having connection No. 9718321626 and a cash amount of ` 600/- were recovered from accused Mohd. Faizan, thereafter, their disclosure statements were recorded.
(ii). It was alleged that in their disclosure statements, both the accused persons disclosed that they had concealed their blood stained SC No. 69/12 & 94/13 Page 5 of 103 State Vs Mohd. Faizan & another clothes and looted amount in their respective house and accused Mohd. Faizan also disclosed that he had concealed the mobile phone of deceased at his house. Both the accused persons disclosed that they could get recovered the same from their respective house.
(iii). It was further alleged that thereafter accused Mohd. Yasir led the police party to his house i.e. 3206 , Gali Pahari Wali, Fatak Teliyan, Delhi and produced blood stained blue colour jeans pant and brown colour shirt having checks and blood stained black and white colour Reebok shoes from the Almirah lying in the courtyard. The same were seized after sealing in separate pullanda with the seal of MY. Thereafter, accused Mohd. Yasir produced ` 2.23 lac from the locker of said Almirah. The said amount was comprising of 50 currency notes of ` 1000 each, 246 currency notes of ` 500 each and 500 currency notes of ` 100/-each. The recovered amount was seized and sealed with the seal of MY.
(iv). It was alleged that thereafter accused Mohd. Faizan led the police party to his house at 1132, Bazar Matia Mahal, Jama Masjid, Delhi and produced his blood stained clothes i.e. one blackish and grey colour jeans pant and one shirt having blue and white colour strips from the wooden Almirah. The same were sealed with the seal of MY. Thereafter, accused Mohd. Faizan produced the mobile phone make Samsung black colour stating that the same belonged to the deceased. Same was also seized and sealed with the seal of MY. Thereafter, accused Mohd. Faizan had produced ` 2,45,900/- from the bed (Diwan). The said amount was comprising of 400 currency notes of ` 500/- each, 459 currency notes of ` 100/- each. He further disclosed that he had already spent ` 4100/-, the said amount was also seized and sealed.
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(v). It was alleged that thereafter police party returned to the police station Chandni Mahal and further investigation was handed over to Inspector Satish Malik (PW33).
(vi). It was alleged that on receipt of further investigation, PW33 along with Const. Brahmjeet reached mortuary of MAMC. After conducting inquest, dead body was sent to the mortuary for post-mortem and after post-mortem, dead body was handed over to the relatives of the deceased. After post-mortem, doctor handed over the exhibits including viscera, blood etcetera, same were seized by the investigating officer.
(vii). During investigation, PW33 interrogated Mohd. Wasim (PW5) and Mohd. Abul Basit (PW6) and seized the amount of ` 50,000/- and ` 25,000/- respectively from them and recorded their statement. During interrogation, it was revealed that on the intervening night of June 14, 2012 and June 15, 2012 at about 2 AM, accused Mohd. Yasir had given a sum of ` 75,000/- to PW5 and stated that ` 50,000/- was against the loan which accused had taken from him and ` 25,000/- towards the loan amount, which accused had taken from Mohd. Abul Basit (PW6) and asked him to give the same to PW6. Accordingly, PW5 had handed over the said amount to PW6 at 2.30 AM.
(viii). Both the accused persons were taken on police remand for one day and on June 17, 2012 they were produced before the doctor at JPN hospital and their blood sample was taken. Thereafter, they were got sent to judicial custody.
(ix). It was alleged that on June 18, 2012, a team of Forensic Experts was called at police station to inspect the car. At the direction of SC No. 69/12 & 94/13 Page 7 of 103 State Vs Mohd. Faizan & another experts, some hairs found on the floor of the car were seized after sealing in a pullanda with the seal of SM. During investigation, all the exhibits were sent for analysis. Found chance prints were also sent to Finger Print Bureau, Kamla Market for the purpose of comparison. Copy of Calls Detail Report (CDR) and Customer Application Form (CAF) of the mobile phones of both the accused persons and deceased were collected and analysed.
(x). After completing investigation, challan was filed against both the accused persons for the offences punishable under Section 364/365/392/397/302/411/34 IPC.
4. After complying with the provisions of Section 207 of Criminal Code of Procedure (in short Cr. P.C.), case was committed to the Court of Sessions on October 9, 2012. Thereafter, case was assigned to this Court on October 16, 2012. Accordingly, case was registered as Sessions Case No. 69/12.
(i). On receipt of the finger prints report, supplementary challan was filed before the concerned Court of learned Metropolitan Magistrate.
(ii). After complying with the provisions of Section 207 Cr. P.C., the said supplementary challan was committed to the Court of Sessions on April 30, 2013, which was assigned to this court on May 07, 2013. Accordingly case was registered as Sessions Case No. 94/13. Supplementary challan was clubbed with the main challan with direction that all the proceedings shall be recorded in the main file i.e. Sessions Case No. 69/12.
5. Vide order date November 23, 2012, a charge was framed SC No. 69/12 & 94/13 Page 8 of 103 State Vs Mohd. Faizan & another against both the accused persons for the offence punishable under Section 302/34 IPC to which they pleaded not guilty and claimed trial. A separate charge was also framed against the accused Mohd. Yasir for the offence punishable under Section 392/307 IPC and under Section 411 IPC to which he pleaded not guilty and claimed trial. A separate charge was also framed against accused Mohd. Faizan for the offence punishable under Section 411 IPC to which he pleaded not guilty and claimed trial.
6. In order to bring home the guilt of accused persons, prosecution has examined as many as 34 witnesses. For the purpose of discussion, said witnesses are being classified in the following categories:-
Last Scene Evidence:-
PW4 Mumtaz Begum, mother of the deceased
PW7 Mohd. Maviya, friend of accused Mohd. Yasir
PW8 Ikhtikar Ahmed, uncle of deceased
Member of Crime Team:-
PW1 Const. Dinesh, photographer
PW3 ASI Pawan Kumar, Finger Prints Expert
PW16 SI Pankaj Kumar, In-charge of Crime Team
Medical and Scientific Evidence:-
PW20 Dr. Yusuf Azad, proved the blood samples of
accused persons
PW21 Dr. Jatin Bodwal, proved the autopsy report.
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PW22 Mr. Ravinder Kumar Kain, proved the finger prints
reports.
PW23 Mr. Inderesh Kumar Mishra, SSO (Biology), proved
FSL report
PW26 Dr. Lingaraj Sahoo, SSO (Chemistry), proved FSL
report
PW31 Ms. Shashi Bala Pahuja, SSO (Biology), proved
FSL report
Witnesses relating to the CDR of the mobile phones:-
PW13 Sh. Pawan Singh, Nodal Officer from Idea Cellular Limited PW14 Mohd. Sadam Hussain, turned hostile PW29 Mr. Rajeev Ranjan, Nodal Officer, TATA Tele Services PW30 Mr. Deepak, Nodal Officer from Vodafone Mobile Services Connecting witnesses:-
PW5 Mohd. Wasim, proved the fact that Mohd. Yasir had handed over ` 75,000/- to him PW6 Mohd. Abul Basit, proved the fact that PW5 had given ` 25,000/- to him PW10 Mr. Alakh Narain Sharma, registered owner of Santro Car PW12 Mr. Dina Nath, sold the car to PW7 PW15 HC Satish, MHC (M) SC No. 69/12 & 94/13 Page 10 of 103 State Vs Mohd. Faizan & another PW24 Const. Mahavir, produced the accused for finger print at CRO, Kamla Market PW25 HC Sanjay, MHC (M) PW27 SI Balwant Singh, produced the accused persons in Court for taking their palm prints PW34 HC Kishan Chand, MHC (M) Formal witnesses:-
PW2 HC Bhoop Singh, duty officer
PW11 Const. Shaqid Hussain, deposited the exhibits at
FSL, Rohini
PW17 Insp. Mahesh Kumar, Draftsman, proved the scaled
site plan.
PW18 HC Naveen
PW19 Const. Jai Singh, produced both the accused persons
for medical examination
PW28 Const. Sandeep Moun, delivered the exhibits at FSL,
Rohini
Members of Police party:-
PW9 Ansar Ahmed, relative of deceased
PW32 SI Mohit Yadav, first investigating officer PW33 Insp. Satish Malik, investigating officer
7. It is pertinent to state that PW8 also joined the entire investigation with PW32.
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8. On culmination of prosecution evidence, both the accused persons were examined under Section 313 Cr. P.C. In his statement under Section 313 Cr. P.C. accused Mohd. Yasir admitted that deceased is the son of PW4 and nephew of PW8 and also admitted that before sending jail, he and his co-accused were taken to CRO for the purpose of finger prints and their finger prints were also taken and also admitted that they were taken on police remand and further admitted that their blood samples were also taken. Except the above, accused Mohd. Yasir denied each and every incriminating evidence led by prosecution and submitted that on June 15, 2012 at about 5 AM, PW4 and PW8 along with others came to his house and at that time he was sleeping and they created a scene at his house and asked for mobile phone number of Mohd. Maviya, Mohd. Wasim and Mohd. Abul Basit and he told them that he did not have their numbers as his mobile had already been disconnected due to non payment of bill. Thereafter, all of them started misbehaving with him and his mother and consequently he had given a push to PW8, thus a quarrel had taken place between them. Public persons also gathered there. Thereafter, PW8 and other persons of the locality took him forcibly to police post on the pretext that he would be sent back to home after sometime but thereafter he was falsely implicated in this case. It was stated that neither cash amount was recovered from him, nor from his house and further stated that no blood stained clothes were ever recovered from his house.
9. In order prove his innocence, accused Mohd. Yasir examined Zain-ul-Din as DW1 and Mohd. Sawlin as DW2.
10. Similarly, accused Mohd. Faizan also denied all the incriminating evidence led by prosecution except the facts that he was taken to hospital for medical examination; he was also taken to CRO for SC No. 69/12 & 94/13 Page 12 of 103 State Vs Mohd. Faizan & another finger prints; he was also taken on police remand and his blood sample was taken in the hospital and thereafter he was got sent to judicial custody. He also admitted that his palm prints were taken in the Court. He submitted that he has been falsely implicated in this case. He further submitted that on June 15, 2012 between 3 PM to 4 PM, a call was received from Police Post, Turkman Gate and police officer asked his uncle to produce him (Mohd. Faizan) in the police chowki, accordingly, his family members took him to the Police Post, Turkman Gate where he has been falsely implicated in this case. It was stated that when call was received from Police Post, he was at the shop where he was working. In order to prove his innocence, he examined two witnesses i.e. DW3 Shahanamaz Hasan and DW4 Mohd. Aslam.
11. It is pertinent to state that PW34 was examined after recording of the statement of both the accused persons under Section 313 Cr. P.C. as prosecution had moved an application under Section 311 Cr. P.C., which was allowed vide order dated March 29, 2014.
12. Learned counsel appearing for both the accused persons raised contentions on following points:-
(i) that prosecution has failed to prove the theory of last scene evidence beyond reasonable doubts. There was huge gap between the time when accused Mohd. Yasir and deceased were seen together and the time when the dead body was found. It was also contended that the theory of last scene evidence is not corroborated by the autopsy report;SC No. 69/12 & 94/13 Page 13 of 103
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(ii) that prosecution has failed to prove that the dead body was recovered at the pointing out of accused persons as there are substantial contradictions between the testimony of PW32 SI Mohit Yadav on the one hand and PW8 & PW9 on the other hand;
(iii) that prosecution has also failed to adduce cogent evidence to establish that any finger print of either of the accused persons was found in the car in question. It was argued that since no finger print was found on the steering wheel of the car, it means that the accused Mohd. Yasir was not in the car at the relevant time;
(iv) that no reliance can be placed on the testimony of PW7 Mohd. Maviya as prosecution failed to establish that the car in question belonged to him;
(v) that no reliance can be placed on the testimony of PW5 Mohd. Wasim and PW6 Mohd. Abul Basit as there is no evidence that Mohd. Yasir had taken any loan from them;
(vi) that no reliance can be placed on the CDR as prosecution failed to establish that the mobile phone having connection number 97183267446 belonged to accused Mohd. Yasir;
(vii) that no reliance can be placed on the recovery affected from accused persons as there are material contradictions between the testimony of witnesses examined by the prosecution;
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(viii) that there is no evidence on record that blood stained clothes allegedly recovered from the house of accused persons were belonged to them as none of the independent witnesses identified the same. Similarly, the mobile phone of deceased allegedly recovered from the house of Mohd. Faizan has not been identified by any of the witnesses, thus no reliance can be placed.
13. Needless to say that learned Additional Public Prosecutor refuted all the contentions advanced by counsel for both the accused. Their contentions shall be dealt with in detail while discussing the each contention separately.
14. I have heard rival submissions advanced by counsel for both the parties at length, perused the written submissions filed by the learned defence counsel carefully and gave my thoughtful considerations to their contentions.
15. Admittedly, prosecution case is based on circumstantial evidence and in order to prove the guilt of accused Mohd. Yasir, prosecution has relied upon the following circumstances:-
(i) Last scene evidence;
(ii) Car and Dead body were recovered at the
pointing out of accused Mohd. Yasir. Key of the
car was also recovered from him;
(iii) Finger prints of accused Mohd. Yasir were found
in the car;
(iv) CDR of his mobile phone shows that he was in
the contact of deceased, PW7 Mohd. Maviya and
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his co-accused Mohd. Faizan;
(v) PW5 claims that a sum of ` 75,000/- was given
to him by accused Mohd. Yasir on the said fateful night;
(vi) PW7 claims that accused Mohd. Yasir made a request to him to give his Santro car and he had given his car to him. Thereafter, he and deceased left together in the said car;
(vii) Pursuant to his disclosure statement, blood stained clothes and his shoes which he was wearing at the time of murder were recovered from his house;
(viii) Pursuant to his disclosure statement robbed amount of ` 2.23 lac was also recovered at his pointing out from his house.
(ix) Chance prints lifted from the car were tallied with the fingers prints of Mohd Yasir;
16. In order to bring home the guilt of accused Mohd. Faizan, prosecution has placed reliance on the following circumstances:-
(i) CDR of his mobile phone connected him with
accused Mohd. Yasir;
(ii) that dead body was recovered at his pointing out;
(iii) that pursuant to his disclosure statement a sum of `
2,45,900/- was recovered at his point out from his house;
(iv) that his blood stained clothes were recovered from his house at his pointing out;
(v) that mobile phone of deceased was recovered from his house;
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17. Now, I proceed to examine the each circumstance individually.
Last Scene Evidence:-
18. Learned counsel appearing for the accused persons vehemently contended that no reliance can be placed on the testimony of witnesses relating to last scene theory as there is a huge gap between the last scene and the recovery of dead body. It was contended that as per the testimony of PW8 Ikhtikar Ahmed, he had seen the accused Mohd. Yasir and deceased together at about 5 PM. Similarly, mother of the deceased namely Mumtaz Begum (PW4) saw them together between 7 PM to 8 PM whereas PW7 Mohd. Maviya had seen them together at about 9 PM. It was submitted that lastly PW7 had seen the accused Mohd. Yasir and deceased together on June 14, 2012 at about 9 PM whereas the dead body was recovered on the next day i.e June 15, 2012 after 3 PM. It was further contended that as per post-mortem report, death had taken place about one day prior to conducting the post-mortem which means that the death had been taken place some times at about 10.40 AM on June 15, 2012. It was, thus, contended that there was a gap of about more than 12 hours between the last scene evidence and the time of death, hence there was every possibility of intrusion of any other person during the said period. In support of his contention, learned defence counsel relied upon numerous following judgments:-
(i) Surender Prasad vs. State (Delhi), 2014 (1) JCC 569;
(ii) Amrinder Kumar & Another vs. State of Punjab 2011 (1) (RCR) (Crl.) 690; (iii) Sahadevan vs. State of Tamil Naidu (SC) 2012 SC No. 69/12 & 94/13 Page 17 of 103 State Vs Mohd. Faizan & another (2) RCR (Crl.) 899; (iv) Pawan Mandal & another vs. State of Punjab 2010 (I1) RCR (Crl.) 273; (v) Roopsena Khatun vs. State of Bengal (SC) 2011 2 RCR (Crl.) 894; (vi) Rahisa vs. State of NCT of Delhi 2011 (5) RCR (Crl.) 849; (vii) S.K. Yusuf vs. West of Bengal 2011 (5) RCR (Crl) 762; (viii) Tippa Ram Prabhakar vs. State of Andhra Pradesh 2010 (5) RCR (Crl.) 574; (ix) Shiv Pandey Nipun Gola @ Nikhil vs. State Crl. Appeal No. 7/2014 decided by Hon`ble High Court of Delhi on April 3, 2014.
19. Per contra, learned Additional Public Prosecutor for the State refuted the said contentions by contending that from the testimony of PW4, PW7 and PW8, it is established beyond all reasonable doubts that accused Mohd. Yasir was in the company of deceased Zuber Alam since 3 PM onwards on June 14, 2012 and as per the testimony of PW7 Mohd.
Maviya, they left together in a Santro car at about 9/9.30 PM and since then the deceased was not traceable. Even accused Mohd. Yasir was also found missing from his house. It was contended that in the morning of June 15, 2012, PW8 Ikhtikar Ahmed had lodged an FIR raising suspicion that deceased had been kidnapped by accused Mohd. Yasir. Thereafter, accused Mohd. Yasir and his co-accused were apprehended on June 15, 2012 itself at about 3/3.30 PM and at their pointing out, dead body of the deceased Zuber Alam was recovered from the said Santro car. It was further contended that finger prints of accused Mohd. Yasir were also found in the said car and from the CDR of the mobile phone of accused Mohd.
SC No. 69/12 & 94/13 Page 18 of 103State Vs Mohd. Faizan & another Yasir, it is established that he was in touch with his co-accused Mohd. Faizan and deceased and he (Mohd Yasir) was also in touch with PW7 Mohd. Maviya. It was contended that in these circumstances, the onus was upon the accused to explain what had happened when they left together in the car of PW7 Mohd. Maviya. But during trial, PW7 failed to adduce any evidence in this regard. It was argued that the circumstances of last scene evidence coupled with recovery of dead body and finger prints establishes the complicity of accused Mohd. Yasir as well as accused Mohd. Faizan.
20. It is pertinent to state that in support of his contentions learned Additional Public Prosecutor did not cite any judgment.
21. In order to prove the theory of last scene, prosecution has relied upon the testimony of PW4 Mumtaz Begum, mother of deceased, PW8 Ikhtikar Ahmed, uncle of deceased and PW7 Mohd. Maviya, owner of Santro car.
22. PW8 Ikhtikar Ahmed, in his examination-in-chief deposed that on June 14, 2012 at about 3.30 PM, deceased Zuber Alam along with his friend i.e. accused Mohd. Yasir came to his shop and deceased asked for ` 5.50 lac to purchase mobile phones as he (deceased) used to deal in sale/purchase of mobile phones. On asking, deceased told him that he had already settled a deal in the sum of ` 10.50 lac and he had already paid a sum of ` 5 lac to a dealer in advance and if the balance amount was not paid, the advance amount would be forfeited. PW8 further testified that thereafter, he went to his house to fetch the said amount and thereafter, he had given the same to the deceased (Zuber Alam) after putting it in a black colour polythene. The said amount was in the denomination of as under:-
SC No. 69/12 & 94/13 Page 19 of 103State Vs Mohd. Faizan & another 50 currency notes of ` ` 50,000 1000/- each 8 packets (each packet of `4,00,000 100 currency notes of ` 500/-each) 10 packet (each packet of ` 1,00,000 100 currency notes of `100/-each) Total = ` 5,50,000
(i) PW8 Ikhtikar Ahmed further deposed that he had given the said amount to the deceased at about 5/5.30 PM. Though in his examination-in-chief PW8 deposed that he had given the said amount to the deceased at about 5 AM but in his cross-examination pursuant to the Court Question, he clarified that the said amount was given between between 5 PM to 5.50 PM.
(ii) During his cross-examination, an attempt was made on behalf of accused persons to demolish his testimony on the ground that PW8 had not reflected the said amount in his books of account. No doubt, PW8 admitted in his cross-examination that he had not reflected the said amount in his books of account but to my mind, the said lapse on the part of PW8 is not sufficient to discard his testimony, if his testimony is otherwise trustworthy. It is also common fact that in India, most of businessmen do not maintain books of account in accordance with law. Further, PW8 deposed that he had received the said amount on June 12, 2012/ June 13, 2012. No doubt, non-disclosure of the said amount may be a violation of provisions of Income Tax Act but the said violation is not relevant to discard SC No. 69/12 & 94/13 Page 20 of 103 State Vs Mohd. Faizan & another the testimony of PW8 particularly when the investigating officer had recovered ` 5.43 lac during the investigation. Further, the accused persons did not dispute the fact that police did not recover the said amount, they only dispute that the said amount was not recovered from their possession. It is also pertinent to state that the said amount had been released to PW8 on superdari on furnishing an undertaking of ` 6 lac vide order dated April 23, 2013 and at that time counsel appearing for the accused persons made a submission that he had no objection, if the amount be released to the complainant. Besides that in his cross-examination, PW8 categorically deposed that he had received the said amount on June 12/13, 2014. In the absence of any contrary evidence on record, I am of the opinion that the testimony of PW8 Ikhtikar Ahmed cannot be discarded mere on the ground that he had not shown the said amount in his books of account.
(iii) Similarly, another attempt was made to cause a dent in the testimony of PW8 Ikhtikar Ahmed as he failed to make any enquiry from the deceased about the name of person to whom he had given the amount of ` 5 lac. PW8 in his examination-in-chief testified that deceased used to deal in sale and purchase of mobile phones and in his cross-examination, he explained that deceased did not have any shop and he used to run his business from his house only. He further deposed that deceased used to purchase mobile phones from different places such as Laxmi Nagar, Alipur, Karol Bagh etc but he expressed his inability to tell the name of persons from whom deceased used to purchase mobile phones but he deposed that deceased used to sell mobile phones to small shopkeepers. He further deposed that neither he asked from the deceased nor deceased told him to whom he had given the advance payment of ` 5 lac. From the testimony of PW8, it is established that deceased was dealing in the sale and purchase of mobile phones and he had already made the advanced payment of ` 5 SC No. 69/12 & 94/13 Page 21 of 103 State Vs Mohd. Faizan & another lac to one dealer and he represented before PW8 that if balance amount was not paid to the dealer, the advance payment would be forfeited. Mere fact that PW8 did not make any effort to know the name of dealer to whom the advance payment of ` 5 was made is not sufficient to disbelieve his testimony to the extent that he had not given the amount of ` 5.50 lac to the deceased. Assuming for the sake of arguments that deceased had not made any advance payment to the dealer, it only proves that deceased had misrepresented before PW8 but it does not prove that PW8 had not given the amount of ` 5.50 lac to the deceased.
(iv). Learned counsel appearing for the accused also tried to raise suspicion over the testimony of PW8 on the ground that police did not examine the wife of PW8 Ikhtikar Ahmed despite the fact that PW8 deposed in his cross-examination that he told his wife that the said amount was required by the deceased. I am unable to understand how the said lapse on the part of investigating agency, if any, is relevant to discard the testimony of PW8.
(v) Though a suggestion was given to PW8 Ikhtikar Ahmed that accused Mohd. Yasir did not visit his shop on June 14, 2012 along with the deceased but the said suggestion was denied by the accused categorically. Further, this suggestion shows that the accused did not dispute the factum of visit of Zuber Alam to the shop of PW8. In other words, accused did not dispute the fact that the said amount was not given to the deceased by PW8.
23. PW4 Mumtaz Begum, mother of the deceased corroborated the testimony of PW8 by deposing that on June 14, 2012 her son (Zuber Alam) brought a sum of ` 5.50 lac and he reached the house at about ` SC No. 69/12 & 94/13 Page 22 of 103 State Vs Mohd. Faizan & another 5.45 PM. She further deposed that after seeing the huge amount, she asked the deceased from where he had brought the said amount. Thereupon deceased told her that he had brought the same from his uncle (PW8) to buy mobile phones. She further testified that between 7 PM to 8 PM, accused Mohd. Yasir, to whom she knew previously as he was residing in the same locality and was the friend of her son, came to her house to meet with the deceased. She further testified that thereafter, deceased left from the house along with accused Mohd. Yasir and at that time he was carrying the amount of ` 5.50 lac. She further deposed that thereafter, deceased did not return to home. She further deposed that at that time deceased was wearing blue colour jeans pant and red colour shirt having lines. In her cross-examination, she explained that at the time of leaving from the house, deceased told her that he was going to Karol Bagh to buy mobile phones and also clarified that she had seen the amount as the same was shown to her by the deceased. Though a suggestion was given to the witness that accused Mohd. Yasir did not visit her house or that deceased did not leave the house along with the accused but the said suggestion was categorically denied by the witness. Thus, the said suggestion has no evidentiary value.
(i) Thus, from the testimony of PW4, it is established beyond all reasonable doubts that accused Mohd. Yasir and deceased left together from her house between 7 PM to 8 PM along with the amount of ` 5.50 lac stating that they were going to Karol Bagh to buy mobile phones.
24. PW7 Mohd. Maviya in his examination-in-chief deposed that on June 14, 2012 accused Mohd. Yasir to whom he knew previously made a call to him at his mobile phone no. 9210099689 from his mobile phone bearing no. 958277---727 and made a request for his car. He further SC No. 69/12 & 94/13 Page 23 of 103 State Vs Mohd. Faizan & another deposed that he did not remember the mobile number of Mohd. Yasir but he had stored the same in his mobile phone. In his cross-examination, he clarified that Mohd. Yasir was making calls to him since 6 PM. PW7 further deposed that at about 9.30 PM accused Mohd. Yasir along with Mohd. Zuber came to him near Faize Illahi Masjid and accused Mohd. Yasir asked for his car for about 1 to 1 ½ hours on the pretext that he had to go to Gurgaon toll Plaza. Initially, he refused to give his car but when accused Mohd. Yasir made repeated requests persistently, he agreed to give his car and further deposed that thereafter, accused Mohd. Yasir and Zuber Alam left from there in his Santro car bearing registration No. DL-4C-J-4773.
(i). He further deposed that when accused did not return after 1½ hours, he made a call at the mobile phone of accused Mohd. Yasir but he did not respond. He further deposed that he also went to the house of Mohd. Yasir but no clue was found about him.
(ii). In his cross-examination, he clarified that when he had given the car to accused Mohd. Yasir, no other public person was present there except Mohd. Zuber. He admitted that Mohd. Zuber was his friend but deposed that he did not have any talk with Mohd. Zuber at that time. He also admitted that when accused Mohd. Yasir did not return, he did not make any call at the mobile phone of Mohd. Zuber and he explained the reason for the same by deposing that since car was not given to him, he did not make any call to Mohd. Zuber.
(iii). It was contended that no reliance can be placed on the testimony of PW7 as he had made a substantial improvement in his deposition by deposing that accused came to him at about 9.30 PM whereas time of 9.30 PM was not disclosed by him in his previous SC No. 69/12 & 94/13 Page 24 of 103 State Vs Mohd. Faizan & another statement under Section 161 Cr. P.C and his testimony to that extent has been got duly confronted. No doubt, PW7 in his statement under Section 161 Cr.P.C (Ex. PW7/DA) did not disclose the time of 9.30 PM, but to my mind, this is not a substantial improvement which may affect the core of prosecution case in any manner. Disclosing of the time in his examination- in-chief is mere an explanation to his previous statement that accused came to him at near Faize Illahi Masjid. Admittedly, in his statement under Section 161 Cr.P.C, PW7 disclosed that accused came to him at near Faize Illahi Masjid.
(iv). Though suggestions were given to PW7 that accused Mohd. Yasir had not made any request for his car or that PW7 did not give his car to the accused, but both the suggestions were categorically denied by the witness. In the absence of any cogent evidence, the said suggestions have no evidential value.
(v). From the ongoing discussion, it can safely be culled out that during the cross-examination of PW7 nothing is came out which may cause any dent in his deposition.
25. Since, it is established beyond all reasonable doubts that accused Mohd. Yasir and deceased left together in the Santro car of PW7 after 9.30 P.M, onus under Section 106 of Indian Evidence Act was shifted upon the accused Mohd. Yasir to explain what had happened when they left together in the said car. But during trial, accused Mohd. Yasir failed to furnish any explanation whatsoever. In his statement under Section 313 Cr.P.C, he simpliciter preferred to deny the prosecution case without furnishing any explanation. Moreover, during his statement under Section 313 Cr.P.C, accused Mohd. Yasir also failed to furnish any explanation SC No. 69/12 & 94/13 Page 25 of 103 State Vs Mohd. Faizan & another where was he between 3.30 P.M. to 9.30 P.M. Since, he failed to adduce any evidence to rebut the prosecution case that he was not with the deceased during the said period, I am of the view that there is no reason to disbelieve the prosecution case to the extent that accused Mohd. Yasir was with the deceased as deposed by PW4, PW7 and PW8.
26. Now question arises as to whether there is any corroborative evidence to the testimony of PW7 that accused Mohd. Yasir was making calls to him since 6 PM onwards and he had also made a call to the accused when accused failed to return as promised by him.
(i) In this regard, the CDR of mobile phone bearing No. 9899367446 (Ex.PW30/A), which as per prosecution version was being used by accused Mohd. Yasir, is quite relevant.
(ii) From the said CDR, it is explicit that the holder of mobile phone bearing No. 9899367446 i.e. accused Mohd. Yasir had made seven calls between 18:07:07 hours to 21:19:40 hours to the holder of mobile number 9210099689 i.e. PW7. Similarly, from the said CDR, it is also clear that the holder of mobile phone bearing number 9210099689 i.e. PW7 had made two calls at the mobile phone bearing number 9899367446 on June 15, 2012 at 01:54:22 hours to 01:54:24 hours and both the calls were for one second. This indicates that the holder of mobile phone bearing number 9899367446 did not respond the said calls. From the said CDR, it is also lucid that PW7 had made four calls between 8:20:42 hours to 08:47:27 hours. All the said calls were of one second only, which further indicates that the said calls were not responded. Thereafter, PW7 made another call at 08:59:21 hours and at that time talk had taken place for 32 seconds. Thus, the CDR (Ex. PW30/A) fully corroborates the testimony of PW7 that SC No. 69/12 & 94/13 Page 26 of 103 State Vs Mohd. Faizan & another accused Mohd. Yasir had made several calls to him since 6 PM on June 14, 2012 asking him to give his Santro car and when accused failed to return the said Santro car, PW7 had made several calls to the accused at his mobile phone. In view of the CDR Ex. PW30/A, I do not find any reason to disbelieve the testimony of PW7.
(iii) No doubt there is a discrepancy in the testimony of PW7 as in his examination-in-chief, PW7 deposed that accused Mohd. Yasir had made a call to him from his mobile phone bearing no. 958277--727 but simultaneously, he also deposed that he did not remember the mobile number of accused Mohd. Yasir but he had saved his mobile number in his mobile phone. During cross-examination of PW7, no effort was made to seek clarification from the witness what was the exact mobile number of the accused Mohd. Yasir. Admittedly, the prosecution version is that mobile phone bearing no. 9899367446 was being used by accused Mohd. Yasir and PW7 categorically deposed that accused Mohd. Yasir had made several calls from his mobile phone at his mobile phone, thus I do not find any reason to disbelieve the testimony of PW7. It is pertinent to state that though during his statement under Section 313 Cr. P.C, accused denied the prosecution version that he was using the aforesaid number and stated that he was using another number, but surprisingly, he did not disclose the alleged another mobile number. This indicates that accused had denied the said piece of evidence deliberately. Had he not been using the said number and that he was using another number, he would have disclosed the same. But he failed to do so. In view of the above discussion, I do not find any reason to disbelieve the prosecution case that accused Mohd. Yasir had made several calls to PW7 from the mobile phone bearing number 9899367446 and when accused failed to return, PW7 also made calls at the said mobile number.
SC No. 69/12 & 94/13 Page 27 of 103State Vs Mohd. Faizan & another
27. From the testimony of PW4, PW7 and PW8, following facts are proved beyond all reasonable doubts:-
(i). that accused Mohd. Yasir visited the shop of PW8 along with deceased on June 14, 2012 at about 3.30 PM;
(ii) that in the presence of accused Mohd.
Yasir, deceased had demanded a sum of ` 5.50 lac
from his uncle PW8;
(iii) that PW8 had given the amount of `
5.50 lac to the deceased in the presence of accused Mohd. Yasir;
(iv) that accused Mohd. Yasir and deceased together left from the shop of PW8 at about between 5 PM to 5.30 PM;
(v) that between 7 PM to 8 PM accused Mohd. Yasir visited the house of deceased and they left together from the house of deceased along with the said amount stating to PW4 that they were going to Karol Bagh to bring mobile phones;
(vi) that accused Mohd. Yasir made several calls to PW7 since 6 PM requesting him to give his Santro car;
(vii) that at about 9.30 PM accused Mohd.
SC No. 69/12 & 94/13 Page 28 of 103State Vs Mohd. Faizan & another Yasir along with deceased met with PW7 near Faize Illahi Masjid and on the persistent requests of Mohd. Yasir, PW7 had given his Santro car bearing registration No. DL-4C-J-4773 to the accused Mohd Yasir;
(viii) that accused Mohd. Yasir borrowed the said car on the pretext that the car was required for 1½ hours to go to Gurgaon Toll Plaza. After taking car, accused Mohd. Yasir and deceased left together from Faize Illahi Masjid;
(ix) that when accused Mohd. Yasir did not return within 1 to 1 ½ hours as promised, PW7 made a call to him in night at the mobile phone of accused Mohd. Yasir but accused did not give any response to his call;
(x) that since then neither deceased returned to his house nor the accused Mohd. Yasir.
Inconsistency between last scene evidence and time since death as per autopsy report:-
28. As per prosecution version, post-mortem was conducted on the dead body on June 16, 2012 at about 10.40 AM and in the autopsy report Ex. PW21/B, it was opined that death had taken place about 24 hours prior to post-mortem. In other words, as per autopsy report, death had taken place some times on June 15, 2012 around 10.40 AM, which is contrary to the prosecution case. In other words, prima-facie autopsy report SC No. 69/12 & 94/13 Page 29 of 103 State Vs Mohd. Faizan & another does not support the prosecution case that death had taken place in the morning hours of June 15, 2012. Since, the autopsy report is contrary to the prosecution version, it was the paramount duty of the investigating officer to seek clarification from the autopsy surgeon (PW21), but no such effort was made by the investigating officer. This shows insensitivity on the part of investigating officer.
29. Now question crops up as to whether the opinion given by PW21 about the approximate time of death is conclusive or not. In this regard the lecture notes of Post-mortem changes and time of death issued by Department of Forensic Medicine, University of Dundee, (http://www.dundee.ac.uk/forensicmedicine/notes/timedeath.pdf) are relevant and relevant portion thereof is reproduced as under:-
POSTMORTEM CHANGES AND TIME OF DEATH Quotations "The time of death is sometimes extremely important. It is a question almost invariably asked by police officers, sometimes with a touching faith in the accuracy of the estimate. Determining the time of death is extremely difficult, and accuracy is impossible". (Ref. Kuaqut, Legal Aspects of medical Practice, 4th Edition (1987), Churchill, Livingstone, Edintinon p. 115) "No problem in forensic medicine has been investigated as thoroughly as that of determining the time of death on the basis of post mortem findings. Apart from its obvious legal importance, its solution has been so elusive as to provide a constant intellectual challenge to workers in many sciences. In spite of the great effort and ingenuity expended, the results have been meagre". (Ref. Jaffe, A Guide to Pathological Evidence : For Lawyers and Police Officers, 2nd edition, (1983), Carswell Criminal Law Series, Carswell Ltd., Toronto.at p. 33.) "Repeated experience teaches the investigator to be wary of relying on any single observation for estimating the time of death (or "duration of the post mortem SC No. 69/12 & 94/13 Page 30 of 103 State Vs Mohd. Faizan & another interval"), and he wisely avoids making dogmatic statements based on an isolated observation". (Ref. Adelson, The Pathology of Homicide, (1974), Thomas, Springfield, Illinois. at p. 151.) "Considering the variables which influence the rate of body heat loss, the best one can say about the reliability of algor mortis as a post mortem clock is that it permits a rough approximation of the time of death. Errors in over- estimating and under-estimating the post mortem interval based on body cooling are common, even in the face of considerable experience by those making the estimate. Body temperature as an indicator of the post mortem interval should be correlated with all other phenomenon and observations utilised in establishing the time of death". (Ref. Adelson, The Pathology of Homicide, (1974), Thomas, Springfield, Illinois.at p.
164.) ............
The intensity of rigor mortis depends upon the decedent's muscular development; consequently, the intensity of rigor should not be confused with its degree of development. In examining a body both the degree (complete, partial, or absent) and distribution of rigor should be assessed after establishing that no artefact has been introduced by previous manipulation of the body by other observers. Attempted flexion of the different joints will indicate the amount and location of rigor.
As a general rule when the onset of rigor is rapid, then its duration is relatively short. The two main factors which influence the onset and duration of rigor are (a) the environmental temperature, and (b) the degree of muscular activity before death. Onset of rigor is accelerated and its duration shortened when the environmental temperature is high. If the temperature is below 10oC it is said to be exceptional for rigor mortis to develop, but if the environmental temperature is then raised, rigor mortis is said to develop in a normal manner. (Ref. Gordon, Shapiro, Berson, Forensic Medicine: A Guide to Principles, 3rd edition, (1988), Churchill Livingstone, Edinburgh. at p. 31). Rigor mortis is rapid in onset and of short duration after prolonged muscular activity, e.g. after exhaustion in battle, and following convulsions. Conversely, a late onset of rigor SC No. 69/12 & 94/13 Page 31 of 103 State Vs Mohd. Faizan & another in many sudden deaths might be explained by the lack of muscular activity immediately prior to death.| ............
...........
If full rigor is present, then one might assume that this is about the second day following death, depending upon the environmental conditions". (Ref. Knight, Legal Aspects of Medical Practice, 4th edition, (1987), Churchill Livingstone, Edinburgh at p. 123).
Exposure of a body to intense heat results in heat stiffening due to coagulation of the muscle proteins. Unlike rigor mortis, heat stiffening is associated with muscle shortening resulting in the characteristic pugilistic posture of burned bodies. Heat stiffening obscures rigor mortis with which it should not be confused. Freezing of a body will cause stiffening of the muscles, postponing the development of rigor which is said to develop as soon as thawing of the body permits.
(emphasis supplied)
30. In the instant case the dead body remained in a closed car for about 9-10 hours and thereafter, remained in the mortuary where it must be in a Temperature Control Machine. From the post-mortem report it is not clear what process had been adopted by PW21 to arrive at the conclusion that death had taken place about one day ago. Even the temperature of body is not mentioned in the report. From the aforesaid article, it is explicit that it is not feasible to give exact time of death in the post mortem report and there is every chance of variation. Further, this is also apparent from the post-mortem report Ex. PW21/B as in the said report doctor had only given approximate time of death and had not given any exact time since death.
(i). As per the disclosure statement of accused Mohd. Yasir, deceased was killed after 6.25 AM on June 15, 2012 when co-accused SC No. 69/12 & 94/13 Page 32 of 103 State Vs Mohd. Faizan & another Mohd. Faizan met him at Darya Ganj. Thereafter, they went to Geeta Colony where they killed the deceased. Thus, as per the disclosure statement, deceased must have been killed between 7.00 AM to 8.00 AM. If we take variation of 3 to 5 hours in the assessment of PW21 about time since death, it will be clear that the opinion of PW21 regarding time since death is not fatal to the prosecution case.
31 Now coming to the judgments relied upon by the counsel for accused persons in this regard.
32. I have perused all the judgments cited by learned counsel for the accused and I am of the view that all the judgments are based on the proposition of law laid down by the Apex Court in State of UP versus Satish, 2005 (3) SCC 114, Sahadevan versus State of Tamil Nadu (supra) and Mohibur Rehman and another versus State of Assam, 2002 (6) SCC 715. Thus, no purpose will be achieved to refer all the judgments cited by counsel for the accused persons. Indisputably, the facts of all the cases are totally different from the facts of the case in hand.
33. In case State of UP versus Satish (supra), it was held by the Apex Court:-
22. "The last theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any persons other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in SC No. 69/12 & 94/13 Page 33 of 103 State Vs Mohd. Faizan & another those cases. In this case there is positive evidence that the deceased and the accused were last seen together by witnesses PWs 3 and 5, in addition to the evidence of PW2".
(emphasis supplied)
(i). In case Mohibur Rehman and another versus State of Assam (supra), same view was reiterated by the Apex Court as under:-
16. This Court held that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. There may however be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstance the victim suffered the death or should own the liability for the homicide.
(emphasis supplied)
(ii) In case Sahadevan versus State of Tamil Nadu (supra), it was held :-
31. With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of this Court. The Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. In Arjun Marik versus State of Bihar, [1994 Supp. (2) SCC 372], this Court took the view that the where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it SC No. 69/12 & 94/13 Page 34 of 103 State Vs Mohd. Faizan & another was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased. The Court further observed that it is settled law that the only circumstances of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused and, therefore, no conviction, on that basis alone, can be founded.
34. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and / or could point to the guilt of the accused with some certainty. But this theory should be applied while taking into consideration the case of the prosecution in its entirely and keeping in mind the circumstances that precede and follow the point of being so last seen.
(emphasis supplied)
34. All the cases relied upon by the counsel for the accused persons were decided on the basis of principle laid down in the aforesaid cases. In case Surender Prashad versus State (Delhi): deceased child had gone at Jagran on January 19, 1997 at about 8.30 PM, he was seen in the company of accused, when the accused was holding his hand near a shop at the place of Jagran. As per post-mortem report, death of the child had taken place at 12.05 AM on January 22, 1999 and, therefore, there was a clear gap of 51 hours and 45 minutes between the time with which he was last seen in the company of accused at the time of his death. On the basis of said piece of evidence, it was held that this time gap was too wide and, therefore, no reliance can be placed on the said piece of evidence. Indisputably, the facts of the case in hand are totally different.
(i) In Sahadevan versus State of Tamil Nadu (supra):
Hon'ble Court found that the statement of PW5 did not indicate the time as SC No. 69/12 & 94/13 Page 35 of 103 State Vs Mohd. Faizan & another to when he had seen the deceased and with which of the accused persons. PW5 expressed his inability even to identify them. Though PW4 claimed to have seen them, but time given by him was itself doubtful. In these circumstances, Hon'ble Court held that even this could not be stated with certainty that at that particular time the deceased was alive or dead. Thus, it becomes clear that the facts of the said case were also totally different from the present case.
(ii) In Pawan Mandal versus State of Punjab (supra): FIR was lodged after delay of about 9 days. Though Trial Court believed the evidence of last seen that deceased was lastly seen in the company of accused and also slept in their company and on the next day, he was not found there, yet it was disbelieved by Hon'ble Court as it was not come in the statement of any of the witnesses as to on which day the deceased was last seen in the company of accused and upto which time they remained together. It was found that the dead body was found in a deserted well, which was accessible to everybody. Accused was neither seen by any of the prosecution witnesses; nor there is any evidence on record to prove that the dead body was thrown in the well by the accused only. In the light of the peculiar facts and evidence of the case, Hon'ble Court refused to place any reliance on the last seen evidence.
(iii) In Roopsena Khatun versus State of West Bengal (supra), on the basis of facts and circumstances of the case, Hon'ble Court held that there was no proximity between time when the deceased and the accused were last seen together at the time of death of the deceased. At least, prosecution has not been able to establish the same.
(iv) In Rahisa versus State of Delhi (supra) : dead body of the SC No. 69/12 & 94/13 Page 36 of 103 State Vs Mohd. Faizan & another deceased was recovered in the afternoon of September 27, 2005 whereas from the testimony of prosecution witnesses accused and deceased were last seen together on September 25, 2005. From the post mortem report the death had taken place either on 23.9.2005 or 24.9. 2005 In those peculiar facts, Hon`ble Court refused to place any reliance on the evidence of last scene. Admittedly, facts of the case in hand are totally different.
(v) In S.K. Yusuf versus State of West Bengal (Supra), from the statement of prosecution witnesses, it was observed by the Hon`ble Court that none of the witnesses stated either he had seen the deceased along with the accused near the place of occurrence in close proximity of time. All the witnesses only deposed that appellant was alone near the place of occurrence that spade as he had gone there for catching fishes.
On the basis of testimony of witnesses examined by the prosecution, it was held that there was no evidence to the extent that deceased and appellant were seen together at the place of occurrence or near by with the same plausibility of time.
35. From the above said referred judgments, it becomes crystal clear that the same are not helpful to the accused in any manner as the facts involved therein were totally different from the facts of the case in hand. Needless to say that in a criminal case one change in the facts of a case may bring sea change in outcome of the case. So far, the proposition of law laid down by the Hon`ble Apex Court is concerned, there cannot be any dispute about the same.
(i) Applying the settled proposition of law in the facts of present case, I am of the considered opinion that prosecution has succeeded to prove beyond all reasonable doubts that accused Mohd. Yasir was with the SC No. 69/12 & 94/13 Page 37 of 103 State Vs Mohd. Faizan & another deceased on June 14, 2012 since 3.00 PM and onwards and both were seen alive together by PW7 at about 9/9.30 PM when they left together in his Santro car. Thus, in view of Section 106 of Evidence Act, onus was upon the accused Mohd. Yasir to explain what had happened thereafter, but he failed to discharge the onus.
Testimony of PW5 & PW6:
36. Learned counsel appearing for the accused persons vigorously contended that no reliance can be placed on the testimony of PW5 Mohd. Wasim and PW6 Mohd. Abul Basit as they had not taken any acknowledgement from the accused while giving the alleged loan. Needless to say that the said contention was refuted by learned Additional Public Prosecutor.
(i) PW5 Mohd. Wasim and PW6 Mohd. Abul Basit in their deposition categorically deposed that they knew the accused Mohd. Yasir. PW5 deposed that Mohd. Yasir is his relative whereas PW6 deposed that he knew him as both are residing in the same locality. PW5 deposed that accused had borrowed a sum of ` 50,000 from him about 2 to 2½ months prior to the date of incident. Similarly, PW6 Mohd. Abul Basit deposed that accused had borrowed a sum of ` 25,000/- from him about two months prior to the date of incident. Both also deposed that accused was avoiding them despite asking repeatedly to return the said loan amount.
(ii) PW5 in his examination-in-chief deposed that on the intervening night of June 14, 2012 and June 15, 2012 at about between 1.30 AM to 2 AM accused Mohd. Yasir called him near his house. Accordingly, he went there where accused Mohd. Yasir had given a sum of SC No. 69/12 & 94/13 Page 38 of 103 State Vs Mohd. Faizan & another ` 75,000/- to him stating that the amount of ` 50,000/- was against the loan which PW5 had given to him and asked him to give ` 25,000/- to Abul Basit (PW6) from whom he had taken a loan of ` 25,000/-. PW5 further deposed that accordingly, he made a call to PW6 Abul Basit and handed over the amount of ` 25,000/- to him at his house stating that the said amount was given to him by the accused Mohd. Yasir. PW5 further deposed that he asked from the accused from where he had brought the said amount in the night, but accused avoided the question. The testimony of PW5 is fully corroborated by PW6.
(iii) PW5 and PW6 further deposed that on June 16, 2012 they were called at the police station where police told them about the incident. Thereafter, they handed over the amount to the police. The amount of ` 50,000/- was identified by PW5 and same is Ex. P-1. Similarly, the amount of ` 25,000/- was identified by PW6 and same is Ex. P-2. Both the witnesses deposed that the amount was sealed in separate parcels before it was seized by the police.
(iv) No doubt in the cross-examination, PW5 deposed that he had not taken any receipt from the accused when he had given a loan of ` 50,000/- to the accused. It is pertinent to state that PW5 is the relative of accused, thus he had no reason to make a false statement knowingly well that his statement may help the prosecution to prove his culpability. Similarly, PW6 also admitted that he had not taken any receipt from the accused at the time of giving loan.
(v) It is pertinent to state that PW5 & PW6 knew the accused previously and this fact is not disputed by the accused during their cross- examination. From their testimony, it is also clear that the said loan was not SC No. 69/12 & 94/13 Page 39 of 103 State Vs Mohd. Faizan & another given on any interest, thus it appears that they had given a friendly loan to the accused being his relative or known and due to that reason they might have not taken any acknowledgement. Further, there is no iota of evidence to show that they had any enmity with the accused; on the contrary, they were known to the accused and they had given loan being his well-wishers. In these circumstances, the testimony of PW5 & PW6 can not be discarded mere on the ground that they had not taken any acknowledgement from the accused at the time of giving loan to him.
(vi) No doubt in their cross-examination, a suggestion was given to both the witnesses that no such loan was ever given to the accused but the same was denied by both the witnesses. In the absence of any cogent evidence on record, the said suggestion has no evidentiary value.
(vii) PW5 in his cross-examination clarified that in their locality, market remains opened in night and it is their routine that they used to sleep late in night and get up late in the morning. Thus, there is nothing unbelievable if PW5 met with the accused in late night and even this fact is not disputed by the accused during trial that in their locality people did not remain available in the late night or that market did not remain open till late night.
(viii) As already stated that PW5 and PW6 had no enmity with the accused and they knew that accused is facing the charges of murder, thus, they knew that their testimony may help the prosecution to prove the culpability of accused Mohd. Yasir. Despite that they made a categorically statement against the accused and during trial no contrary evidence is produced. Thus, I do not find any reason to disbelieve their deposition.
SC No. 69/12 & 94/13 Page 40 of 103State Vs Mohd. Faizan & another 37 From the CDR of mobile phone bearing No. 9899367446 of accused Mohd. Yasir (Ex. PW30/A), it is clear that there is one outgoing call from the said phone at 01:50:29 hours at mobile phone bearing number 9811399542. It means that accused Mohd. Yasir had made a call to someone at the said point of time. No doubt, during the investigation, police failed to verify the identity of the said mobile holder but it indicates that probably that same may belong to PW5. No doubt that the said fact is not proved by the prosecution during trial but from the CDR of mobile phone of accused Mohd. Yasir, it is proved that he had made a call to someone at the said mobile phone and the circumstances indicate that the said person may be PW5 to whom he met in late night. However, even in the absence of said fact, there is no reason to disbelieve the testimony of PW5 & PW6 which appears quite trustworthy.
Recovery of dead body:
38. Prosecution has set up a case that after apprehending the accused persons, they were brought to the police post Turkman Gate, where they were interrogated separately. During their interrogation, they disclosed that they had killed Mohd. Zuber and hide his dead body in a Santro car, which they had parked at Gandhi market. As per prosecution version, thereafter, they led the police party to Gandhi Market and at the pointing out of accused persons, dead body of Mohd. Zuber was recovered from the said Santro car. In order to prove its case, prosecution has relied upon the testimony of PW8 Ikhtikar Ahmed, PW9 Ansar Ahmed and PW32 SI Mohit Yadav.
39. PW32 SI Mohit Yadav supported the prosecution version by SC No. 69/12 & 94/13 Page 41 of 103 State Vs Mohd. Faizan & another deposing that he interrogated both the accused persons and further testified that he had recorded the disclosure statement of Mohd. Yasir vide Ex. PW8/K and also recorded the disclosure statement of accused Mohd. Faizan vide Ex. PW8/L. According to the testimony of PW32 SI Mohit Yadav, their disclosure statement was recorded in the police post Turkman Gate. PW32 further deposed that thereafter, he (PW32), HC Raj Kumar and two public witnesses namely PW8 and PW9 left from the police post Turkman Gate along with both the accused persons and further testified that firstly accused Mohd. Yasir pointed out the Santro car and also pointed out the dead body lying in the said car. PW32 clarified that thereafter, accused Mohd. Faizan had pointed out the said car and dead body, thus, according to PW32, both the accused pointed out the car and dead body one by one and firstly, Mohd. Yasir had pointed out the car and dead body, thereafter it was pointed out by accused Mohd. Faizan. PW32 further deposed that thereafter, he prepared separate pointing out memo vide Ex. PW8/U and PW32/B.
(i) During the cross-examination of PW32, an attempt was made to assail his testimony on numerous points including that PW32 did not make any departure entry while they left for Meerdard Road for the recovery of Santro car and dead boy. Though PW32 admitted that the official gypsy was being driven by its driver, yet he was not asked to join the recovery proceedings nor Log book of the said official gypsy was produced during trial to corroborate his testimony that they left for Meerdard Road in the said official gypsy. But PW32 swiftly added that no such request was made as PW8 & PW9 had already joined the investigation but he also admitted that PW8 was close relative of the deceased, however, he showed his ignorance about PW9. It is pertinent to state that as per defence version, PW9 was maternal uncle of the deceased. Surprisingly, PW32 also SC No. 69/12 & 94/13 Page 42 of 103 State Vs Mohd. Faizan & another failed to disclose the approximate time when they reached Meerdard Road and also failed to disclose the approximate time for how long they stayed there. He deposed that he could not state whether they stayed there for two hours or four hours.
(ii) The testimony of PW32 that accused persons made their disclosure statements before pointing out the car and dead body also did not get any support from the disclosure statement of both the accused persons.
40. It is admitted case of prosecution that Ex. PW8/K and Ex. PW8/L are the disclosure statements of the accused Mohd. Yasir and Mohd. Faizan respectively. I have perused their disclosure statements carefully.
(i) In his disclosure statement Ex. PW8/A, accused Mohd. Yasir had disclosed "मैने और फैजान ने गाडी की िनशानदेही करके मुहमद जबेर की लाश बरामद करवा दी है।" Similarly, accused Mohd. Faizan in his disclosure statement Ex. PW8/L disclosed before the police "मैने और यासीर ने गाडी की िनशानदेही करके मुहमद जबेर की लाश बरामद करवा दी है।"
(emphasis supplied)
(ii) Thus, from their disclosure statements Ex. PW8/K and Ex.
PW8/L it becomes abundantly clear that the accused persons had got recovered the dead body of Mohd. Zuber before their disclosure was reduced into writing vide Ex. PW8/K and PW8/L. Thus, the testimony of PW32 to the extent that he had recorded their disclosure statement in the police post Turkman Gate and thereafter, they left for Meerdard Road for pointing out of dead body and Santro car is contrary to the documentary SC No. 69/12 & 94/13 Page 43 of 103 State Vs Mohd. Faizan & another evidence i.e. Ex. PW8/K and Ex. PW8/L, hence his oral testimony to that extent does not inspire any confidence.
(iii) Further, the testimony of PW32 to the above extent is also contrary to the testimony of PW8 & PW9. PW8 in his examination-in-chief categorically deposed that the disclosure statement of accused persons was recorded after the recovery of dead body. In his cross-examination, he (PW8) testified that police did not record the facts, which were disclosed by the accused persons during interrogation at police post Turkman Gate. He further deposed that police neither obtained his signature on any of the documents nor obtained the signature of accused persons on any document at the police post. He further clarified that they left for Gandhi Market, Meerdard Road at about 5 PM. Similarly, PW9 deposed that police had not reduced the facts into writing which were disclosed by the accused persons during interrogation at police post Turkman Gate and further deposed that statement of accused persons was recorded at Mata Sundari Road i.e Gandhi Market and further clarified that police started to record their statements at about 7.45 PM and firstly police recorded the statement of accused Mohd. Yasir.
(iv) From the testimony of PW8 & PW9 it is limpid that disclosure statement of accused persons was not recorded at police post Turkman Gate as deposed by PW32. Though both the accused persons were interrogated at police post Turkman Gate but the facts disclosed during interrogation were not reduced into writing in the form of disclosure statements. The testimony of PW8 & PW9 is fully corroborated by the disclosure statements Ex. PW8/K & PW8/L, which shows that their disclosure statement was recorded after the recovery of car and dead body. In these circumstances, the testimony of PW32 to the extent that police SC No. 69/12 & 94/13 Page 44 of 103 State Vs Mohd. Faizan & another party left from the police post Turkman Gate after recording their disclosure statements Ex. PW8/K and PW8/L does not inspire any confidence. Rather from the testimony of PW8 & PW9 and the disclosure statements Ex. PW8/K and PW8/L, it is established that their statement was recorded after the recovery of car and dead body.
41. PW8 in his examination-in-chief deposed that during interrogation at police post Turkman Gate, both the accused persons disclosed that they had killed Mohd. Zuber and they had hide his dead body in a Santro car, which was stationed at opposite Gandhi Market and further disclosed that they could point out the car and get recovered the dead body. PW8 further deposed that thereafter, both the accused persons led the police party to Gandhi Market. Police officials went there in the official gypsy whereas he followed the police gypsy on his motor cycle. He further deposed that police stopped the gypsy at Gandhi Market. Accordingly, they also stopped their vehicles. He further deposed that thereafter, accused Mohd. Yasir and Mr. Faizan pointed out towards a Santro car, which was stationed at opposite Gandhi market, consequently, they all reached near the car and it was revealed that the registration number of car was DL-4C- J-4773. PW8 further deposed that at the asking of police, accused Mohd. Yasir had taken out the key of said car from the pocket of his pant and handed over the same to the police. In his cross-examination, he deposed that firstly police interrogated the accused Mohd. Yasir for about half an hour and thereafter, Mohd. Faizan was interrogated. He clarified that both the accused persons were interrogated separately. He further deposed that Mohd. Yasir was interrogated in his presence and further deposed that he was alone inside the police post when police was interrogating the accused persons and other persons were outside the police post but in his next breath, he swiftly added that other persons may be inside the police post.
SC No. 69/12 & 94/13 Page 45 of 103State Vs Mohd. Faizan & another
(i) From the testimony of PW8 it is clear that both the accused persons were interrogated in the police post separately one by one and accused Mohd. Yasir was interrogated in his presence. After interrogation, police officials left for Meerdard Road in official gypsy along with accused persons whereas PW8 followed the gypsy on his motor cycle. After reaching Meerdard Road, both the accused persons pointed out towards the Santro car, which was stationed opposite to Gandhi Market, consequently all reached there wherein dead body of Mohd. Zuber was found. It is pertinent to state that as per the testimony of PW8 accused Mohd. Faizan was not interrogated in his presence.
(ii) PW9 in his examination-in-chief deposed that police had interrogated both the accused persons in a room at police post Turkman Gate and he was sitting outside the said room. However, in his cross- examination, he deposed that police had interrogated the accused persons in his presence and further deposed that even he also asked the accused Mohd. Yasir about Mohd. Zuber but he told that he did not know anything about Mohd. Zuber. He further deposed that the interrogation was continued for about 30-45 minutes. He further deposed that while interrogation was going on, he was sitting in another room whereas interrogation was going on in another room. But swiftly added that at one occasion he also went inside the interrogation room and remained there for about five minutes and clarified that he went inside the said room between 4.15 PM to 4.30 PM.
(iii) PW9 further deposed that after about 1½ hours police party left from police post Turkman Gate along with both the accused persons in a gypsy and he also followed the police party on two wheeler school and SC No. 69/12 & 94/13 Page 46 of 103 State Vs Mohd. Faizan & another clarified that public persons also followed the gypsy. In his cross- examination, he clarified that police did not ask him to follow them but he of his own followed the police vehicle. He further deposed that police gypsy was stopped at red light at Mata Sundari Road, consequently, he also stopped his scooter. He further deposed that at that time accused Mohd. Yasir had given the key of Santro car to PW32 and thereafter, both the accused pointed out towards the Santro car, which was stationed opposite to Gandhi Market. He further clarified that when accused Mohd. Yasir had given the key of car to the police, police did not prepare any memo.
(iv) Thus, from the testimony of PW9 it becomes clear that when interrogation was going on with the accused persons, he was sitting in another room. Hence, he was not in a position to depose what accused persons had disclosed to the police during the said interrogation. No doubt, PW9 also deposed that he went inside the interrogation room for about five minutes but he failed to depose who was being interrogated at that time and what information was disclosed by the accused persons. Thus, it becomes clear that PW9 is not a witness of the facts allegedly disclosed by the accused persons during their interrogation.
(v) From the testimony of PW9, it also becomes clear that police did not ask him to join the investigation; rather he of his own, probably being the relative of deceased, followed the police vehicle and witnessed the recovery of dead body.
(vi) There is a contradiction between the testimony of PW8 and PW9 on the one hand and PW32 on the other hand as from the deposition of PW8 and PW9 it appears that both the accused pointed out the Santro car together whereas PW32 deposed that firstly car was pointed out by SC No. 69/12 & 94/13 Page 47 of 103 State Vs Mohd. Faizan & another Mohd. Yasir and thereafter, by accused Mohd. Faizan.
(vii) No doubt there is a contradiction between the testimony of PW8 & PW9 on the one hand and PW32 on the other hand as stated above, but from their testimony it can safely be culled out that accused persons had pointed out the car and dead body. Since PW32 categorically deposed that firstly accused Mohd. Yasir had pointed out the car and dead body and his testimony is also corroborated by the testimony of PW8 and PW9 who deposed that both the accused pointed out the car and dead body. Thus, it can safely be culled out that the car was firstly pointed out by accused Mohd. Yasir and thereafter, it was pointed out by accused Mohd. Faizan.
42. From the above discussion, two things are clear; firstly that the disclosure statement of accused persons was recorded after the recovery of car and dead body. Secondly, that both the accused persons pointed the car and dead body one by one and accused Mohd. Yasir pointed the car and dead body first. In these circumstances, now two questions arise firstly whether the recovery of dead body is admissible in the absence of any disclosure statement in writing and secondly what is the effect of the second pointing out of the dead body/car?
(i) In Dharam Deo Yadav v. State of U.P. (2014) 5 SCC 509 it was held:-
19. PW14 has categorically stated that he had got information that the appellant would reach the Shivpur railway station and, hence, he rushed to the railway station with the informant and found out the accused at the platform. PW14 interrogated him and he disclosed his name and address. He admitted that he was the guide of Diana and since Diana wished to go to his village, he went along SC No. 69/12 & 94/13 Page 48 of 103 State Vs Mohd. Faizan & another with her on 10.08.1997. The accused had also confessed to have committed the murder of Diana and buried her dead body in his house. PW14 then, accompanied by PW15, took the accused to his village and the accused with the key in his possession, opened the lock of his house and pointed out the place where the dead body of Diana had been buried. Accused himself dug the place with a spade and the skeleton was recovered. PW14 then arrested the accused and, on his disclosure about the involvement of the other accused persons, they were also arrested. Inquest on the skeleton was made in the presence of SDM, PW16. Contention was raised that the statement/admission of the accused (annexure Exh. P-5) was inadmissible under Section 27 of the Evidence Act, since the accused was not in the custody of PW14. The evidence of PWs 14 and 15 would indicate that they could recover the skeleton of Diana only on the basis of the disclosure statement made by the accused that he had buried the dead body in his house.
Recovery of a dead body or incriminating material from the place pointed out by the accused, points out to three possibilities -(i) that the accused himself would have concealed; (ii) that he would have seen somebody else concealing it and (iii) he would have been told by another person that it was concealed there. Since the dead body was found in the house of the accused, it is for him to explain as to how the same was found concealed in his house.
20. Section 27 of the Evidence Act explains how much of information received from the accused may be proved. Section 27 reads as follows:
"27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
The expression "custody" which appears in Section 27 did not mean formal custody, which includes any kind of surveillance, restriction or restraint by the police. Even if the accused was not formally arrested at the time when the accused gave the information, the accused was, for all SC No. 69/12 & 94/13 Page 49 of 103 State Vs Mohd. Faizan & another practical purposes, in the custody of the police. This Court in State of Andhra Pradesh v. Gangula Satya Murthy (1997) 1 SCC 272 held that if the accused is within the ken of surveillance of the police during which his movements are restricted, then it can be regarded as custodial surveillance. Consequently, so much of information given by the accused in "custody", in consequence of which a fact is discovered, is admissible in evidence, whether such information amounts to a confession or not. Reference may also be made to the Judgment of this Court in A.N. Venkatesh v. State of Karnataka (2005) 7 SCC 714. In Sandeep v. State of Uttar Pradesh (2012) 6 SCC 107, this Court held that it is quite common that based on admissible portion of the statement of the accused, whenever and wherever recoveries are made, the same are admissible in evidence and it is for the accused in those situations to explain to the satisfaction of the Court as to nature of recoveries and as to how they came into the possession or for planting the same at the place from where they were recovered. Reference can also be made to the Judgment of this Court in State of Maharashtra v. Suresh (2000) 1 SCC 471, in support of the principle. Assuming that the recovery of skeleton was not in terms of Section 27 of the Evidence Act, on the premise that the accused was not in the custody of the police by the time he made the statement, the statement so made by him would be admissible as "conduct" under Section 8 of the Evidence Act. In the instant case, there is absolutely no explanation by the accused as to how the skeleton of Diana was concealed in his house, especially when the statement made by him to PW14 is admissible in evidence.
(emphasis supplied)
(ii) In view of the aforesaid discussion, it becomes clear that there was no need to arrest the accused to rely upon the information disclosed by the accused. The only requirement is that accused should be in the custody of police and from the testimony of PW8, PW9 and PW32, it is established that both the accused persons were in police custody when they disclosed the information about the car and dead body.
(iii) Further, bare perusal of Section 27 of Evidence Act makes it SC No. 69/12 & 94/13 Page 50 of 103 State Vs Mohd. Faizan & another clear that it does not say that the information disclosed by the accused must be reduced into writing. The only condition to place reliance on the disclosed information is that the information must relate to a distinct discovered fact. It is a question of fact how prosecution proves the fact that accused had disclosed any such information. But the divulged information can not be rejected mere on the ground that it was not reduced into writing prior to recovery of the incriminating articles. Thus, the information disclosed by the accused persons during interrogation is admissible for the purpose of recovery in term of Section 27 of Indian Evidence Act.
(iv) On the point of joint disclosure statements, Apex Court in case State (NCT) of Delhi vs. Navjot Sandhu, (2005) 11 SCC 600 held as under:-
Joint disclosures
145. Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs 10 lakhs from the truck in which they were found at Srinagar is in issue.
Learned Senior Counsel Mr Shanti Bhushan and Mr Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the ken of Section 27, whereas it is the contention of Mr Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the accused informants. Some of the High Courts have taken the view that the wording "a person"
excludes the applicability of the section to more than one person. But, that is too narrow a view to be taken. Joint disclosures, to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section
27. "A person accused" need not necessarily be a single SC No. 69/12 & 94/13 Page 51 of 103 State Vs Mohd. Faizan & another person, but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the standpoint of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence.
(emphasis supplied)
(v) In case Lachhman Singh vs. State, 1952 SCR 939, AIR, it was held that :
"10. According to the prosecution, all the three accused, namely, Katha Singh, Massa Singh and Swaran Singh, SC No. 69/12 & 94/13 Page 52 of 103 State Vs Mohd. Faizan & another were interrogated by the police on the morning of 19th December, 1948, and they made certain statements which were duly recorded by the police. In these statements, it was disclosed that the dead bodies were thrown in the Sakinala. Thereafter, the police party with the three accused went to Sakinala where each of them pointed out a place where different parts of the dead bodies were discovered.
11. The learned Counsel for the appellants cited a number of rulings in which Section 27 has been construed to mean that it is only the information which is first given that is admissible and once a fact has been discovered in consequence of information received from a person accused of an offence, it cannot be said to be rediscovered in consequence of information received from another accused person. It was urged before us that the prosecution was bound to adduce evidence to prove as to which of the three accused gave the information first. The head constable, who recorded the statements of the three accused has not stated which of them gave the information first to him, but Bahadur Singh, one of the witnesses who attested the recovery memos, was specifically asked in cross-examination about it and stated: "I cannot say from whom information was got first."
In the circumstances, it was contended that since it cannot be ascertained which of the accused first gave the information, the alleged discoveries cannot be proved against any of the accused persons. It seems to us that if the evidence adduced by the prosecution is found to be open to suspicion and it appears that the police have deliberately attributed similar confessional statements relating to facts discovered to different accused persons, in order to create evidence against all of them, the case undoubtedly demands a most cautious approach. But as to what should be the rule when there is clear and unimpeachable evidence as to independent and authentic statements of the nature referred to in Section 27 of the Evidence Act, having been made by several accused persons, either simultaneously or otherwise, all that we wish to say is that as at present advised we are inclined to think that some of the cases relied upon by the learned Counsel for the appellants have perhaps gone farther than is warranted by the language of Section 27, and it may be that on a suitable occasion in future those cases may have to be reviewed. For the purpose of this appeal, however, it is sufficient to state that even if the argument SC No. 69/12 & 94/13 Page 53 of 103 State Vs Mohd. Faizan & another put forward on behalf of the appellants, which apparently found favour with the High Court, is correct, the discoveries made at the instance of Swaran Singh cannot be ruled out of consideration. It may be that several of the accused gave information to the police that the dead bodies could be recovered in the Sakinala, which is a stream running over several miles, but such an indefinite information could not lead to any discovery unless the accused followed it up by conducting the police to the actual spot where parts of the two bodies were recovered. From the evidence of the head constable as well as that of Bahadur Singh, it is quite clear that Swaran Singh led the police via Salimpura to a particular spot on Sakinala, and it was at his instance that bloodstained earth was recovered from a place outside the village, and he also pointed out the trunk of the body of Darshan Singh. The learned Judges of the High Court were satisfied, as appears from their judgment, that his was "the initial pointing out" and therefore the case was covered even by the rule which, according to the counsel for the appellants, is the rule to be applied in the present case.
(emphasis supplied)
43. Applying the said principle, I am of the considered opinion that the prosecution has succeeded to prove the recovery of car and dead body at the pointing out of accused Mohd. Yasir beyond all reasonable doubts as he not only disclosed about the said car and dead body first but also pointed out the same to the police first. However, the evidence led by prosecution qua Mohd. Faizan is insufficient to establish beyond all reasonable doubts that the car and dead body were recovered at his pointing out also.
Contentions relating to finger prints of accused Mohd. Yasir from the Santro car bearing registration No. DL-4C-J-47773:-
44. Prosecution case is that on the inspection of car certain finger prints were found by the crime team and on analysis some of the SC No. 69/12 & 94/13 Page 54 of 103 State Vs Mohd. Faizan & another chance prints were tallied with the finger prints of accused Mohd. Yasir. In order to prove its case prosecution has relied upon the testimony of PW3 ASI Pawan Kumar, Finger Print Expert; PW16 SI Pankaj Kumar, Incharge of Crime Team; PW22 Sh. Ravinder Kumar Kain, Finger Prints Expert; PW27 SI Balwant Singh and PW33 Inspector Satish Malik.
(i) PW3 in his deposition categorically deposed that ten finger prints i.e. Q1 to Q10 were lifted from the Santro car. During the cross- examination of PW3 nothing came out which may cause any dent in his testimony. Though a suggestion was given that no such chance prints were found from the car, but the same was denied by the witness categorically. The testimony of PW3 is fully corroborated by the in-charge of crime team i.e. PW16. PW16 was not even cross-examined on the point of lifting of chance prints. Thus, the testimony of PW16 to the extent that finger prints were lifted from the said car remained unrebutted. Further, the testimony of PW3 and PW16 is also corroborated by PW8, PW9 and PW32 who deposed that the car was inspected by the crime team. PW8 and PW32 deposed that the crime team had lifted finger prints from the car. Thus, it is proved beyond reasonable doubts that during the inspection of Santro car by the crime team, PW3 lifted ten chance prints and same were given Mark Q1 to Q10. The report of crime team is Ex. PW16/1.
(ii) PW33 in his examination-in-chief deposed that during investigation both the accused persons were taken to CRO Kamla Market for the purpose of search slip i.e. finger prints. This fact was admitted by accused Mohd. Yasir in his statement recorded under Section 313 Cr.P.C ( in question no. 46) that finger prints were taken at CRO.
(iii) PW33 also deposed that on receipt of first report from Finger SC No. 69/12 & 94/13 Page 55 of 103 State Vs Mohd. Faizan & another Prints Bureau, he moved an application Ex. PW33/D for seeking permission to take palm prints of both the accused persons. PW27 SI Balwant Singh deposed that he produced both the accused persons before the Court of Metropolitan Magistrate with the said application for taking their palm prints. He also deposed that Ex. PW27/A are the palm prints of accused Mohd. Faizan whereas Ex. PW22A and PW27/B are the palm prints of accused Mohd. Yasir. The testimony of PW27 remained unchallenged during the cross-examination. Thus, there is no reason to disbelieve the testimony of PW27. Moreover, this fact was not disputed by the accused persons in their statement recorded under Section 313 Cr. P. C.
(iv) As per Ex. PW16/A, ten chance prints were lifted from the car and the same were given Mark Q1 to Q10. Q6, Q8 and Q10 were lifted from the rear view glass installed in the car. As per report Ex. PW22/A, rest of the chance prints were either faint, partial smudged and they did not disclose sufficient number of ridge detail in their relative positions for comparison, they were unfit for comparison/search.
(v) As per the Finger Prints Bureau report Ex. PW22/A, chance prints Q6 and Q8 were found identical with the specimen prints i.e. S1 and S2. S1 is the left thumb impression of accused Mohd. Yasir whereas S2 is the right thumb impression of accused Mohd. Yasir. It is pertinent to state that the said specimen were not disputed by accused in his statement under Section 313 Cr.P.C as he candidly admitted that his finger prints were taken at CRO Kamla Market. Thus, it is established beyond reasonable doubts that LTI and RTI of accused Mohd. Yasir were found on the rear view glass of the said car.
(vi) Q10 is the palm print of the suspect but since no palm print SC No. 69/12 & 94/13 Page 56 of 103 State Vs Mohd. Faizan & another of either of the accused was sent, it could not be tallied. As per Ex. PW16/A, Q10 was also lifted from the rear view glass installed inside the car. The report was sent to the police under the signature of Director of Finger Prints Bureau vide Ex. PW22/C. The description of the finger prints is Ex. PW22/B.
(vii) On receipt of the said report, PW33 moved an application Ex. PW33/D for the palm prints of both the accused persons, accordingly PW27 produced both the accused persons before the Court and their palm prints were taken in the presence of Court, thereafter PW33 sent the palm prints vide letter Ex. PW22/G to the Finger Prints Bureau with a request to compare the same with Q10.
(viii) On receipt of the request, PW22 also examined Q10 and found that it was identical with S3. S3 is a specimen left palm portion below the left index finger of accused Mohd. Yasir. It is pertinent to state that the deposition of PW22 remained unrebutted during trial as learned defence counsel did not deem it appropriate to ask any question from the witness. Thus, the report of PW22 i.e. PW22/A and PW22/H remained unchallenged during trial. Hence, it is proved beyond all reasonable doubts that Q6, Q8 and Q10 were found identical with the specimen finger prints/palm prints of accused Mohd. Yasir i.e. S1, S2 and S3.
(ix) The presence of the finger prints of accused Mohd. Yasir establishes beyond all reasonable doubts that he was travelling in the said car and probably he was driving the car as PW7 deposed that he had given his car to accused Mohd. Yasir. It is a common fact that before driving a car of another person, driver adjusts the position of rear view glass as per his convenience. Thus, the finger prints i.e Q6, Q8 and Q10 appeared on SC No. 69/12 & 94/13 Page 57 of 103 State Vs Mohd. Faizan & another the rear view glass when accused Mohd. Yasir sat in the driving seat and adjusted the rear view glass as per his own convenience.
(x) No doubt, no chance print was found on the steering of the said car. Similarly, no chance prints were also found on the gear of the said car but the same is not sufficient to disbelieve the prosecution case as there is every possibility that accused might have removed/cleaned the finger prints from steering or gear of the car before leaving it at Gandhi Market but might have forgotten to clear the chance prints from the rear view glass. Moreover, there is no contrary evidence on record to disbelieve the evidence led by prosecution.
(xi) From the ongoing discussion, it is established beyond all reasonable doubts that finger prints of accused Mohd. Yasir were found in the car and accused (Mohd Yasir) failed to furnish any explanation whatsoever during the trial. The presence of finger prints of accused Mohd. Yasir establishes that he was travelling in the said car, thus onus was upon him to explain under which circumstances Mohd. Zuber had been killed but he failed to furnish any explanation in this regard.
Calls Detail Record:
45. As per prosecution version mobile connection bearing number 9268634480 belonged to deceased Zuber Alam whereas mobile connection bearing number 9899367446 was issued in the name of Mohd. Sadam Hussain (PW14) but was being used by accused Mohd. Yasir. Similarly, the mobile connection number 9718321626 was in the name of Rizwan but same was being used by accused Mohd. Faizan. As per prosecution version, the above mobile phones were recovered from the SC No. 69/12 & 94/13 Page 58 of 103 State Vs Mohd. Faizan & another accused persons at the time of their arrest and thereafter pursuant to the disclosure statement of accused Mohd. Faizan, mobile phone of deceased was recovered from his house.
(i) Though there is no dispute qua mobile phone number of deceased Mohd. Zuber, yet this fact is also proved from the deposition of PW29 Rajiv Ranjan, Nodal officer of Tata Tele Service, who categorically deposed that the said connection was issued in the name of Zuber Alam s/o Zuflikar i.e deceased. Thus, it is established that the mobile connection no. 9268634480 was belonged to the deceased.
(ii) However, there is a dispute qua mobile phones of both the accused persons. In order to establish that the mobile phone number 9899367446 was being used by accused Mohd. Yasir, prosecution has examined PW14 Mohd. Sadam Hussain in whose name the said connection was issued by the service provider but he turned hostile completely by deposing that he did not know the accused Mohd. Yasir and also denied that he had given his mobile SIM card to the accused at any point of time. He even denied that he had ever applied for the said connection. Though he admitted that copy of Voter I. Card, which was used at the time of taking said connection belonged to him but deposed that his Voter I. Card had already been destroyed about 1½ years ago and deposed that he did not give the copy of his voter I. Card to anyone to take the said connection. Thus, PW14 did not support the prosecution case that the said connection was issued in his name or that he had given his SIM card to the accused at any point of time.
(iii) As per prosecution version, the mobile connection number 9718321626 was issued in the name of Rizwan, a close relative of accused SC No. 69/12 & 94/13 Page 59 of 103 State Vs Mohd. Faizan & another Mohd. Faizan but prosecution did not examine him despite the fact that he was present in the Court and on the request of learned Additional Public Prosecutor, his name was dropped from the list of witnesses on August 26, 2013, probably prosecution had apprehension that he would not support its case.
(iv) In other words, prosecution has failed to establish that the said connections were either belonged to the accused persons or the same were being used by the accused persons at the relevant time. So far, the recovery of said mobile phones from the possession of accused persons is concerned, same will be discussed in the later part of the judgement.
46. Now question arises as to whether there is any other evidence on record to establish that the said connections were being used by the accused persons.
(i) In this regard the testimony of PW7 is quite relevant. As already discussed, PW7 deposed that accused Mohd. Yasir had made several calls to him from his mobile phone at his (PW7) mobile phone connection number 9210099689 and he was making calls since 6 PM on June 14, 2012 and he had also made calls to the accused when he failed to return the car.
(ii) On perusal of the CDR of mobile phone number 9899367446 (Ex. PW30/A), it is pellucid that holder of said mobile phone had made seven calls to PW7 between 18:07:07 hours to 21:19:40 hours. The detail of the same are as under:-
SC No. 69/12 & 94/13 Page 60 of 103State Vs Mohd. Faizan & another DATE TIME DURATION (i) 14:06:12 18:07:07 16 (ii) - do - 19:19:06 127 (iii) - do - 20:18:32 1 (iv) - do - 20:19:35 87 (v) - do - 20:50:47 1 (vi) -do - 21:06:33 7 (vii) - do - 21:19:40 9
(iii) Similarly, PW7 also made calls to the holder of mobile phone no. 9899367446 during the period 01:54:22 hours to 08:59:21 hours on June 15, 2012, the detail of the same is as under:-
DATE TIME DURATION (i) 15:06:12 01:54:22 1 (ii) - do - 01:54:24 1 (iii) - do - 08:20:42 1 (iv) - do - 08:26:27 1 (v) - do - 08:35:52 1 (vi) -do - 08:47:27 1 (vii) - do - 08:59:21 32 (iv) The said calls detail corroborates the testimony of PW7
that not only accused Mohd. Yasir had made several calls to him at his mobile phone while making repeated requests to give his Santro car but PW7 also made several calls to him when accused failed to return the car within 1½ hours as promised by him. This indicates that accused Mohd.
Yasir was using the aforesaid mobile phone on June 14, 2012 and June 15, 2012.
SC No. 69/12 & 94/13 Page 61 of 103State Vs Mohd. Faizan & another
(v) No doubt accused Mohd. Yasir in his statement under Section 313 Cr. P.C took a plea that he was not using the said mobile phone on that day and stated that he was using another phone but surprisingly, he failed to disclose the number, which was being used by him on that day. In the absence of any cogent evidence led by the accused in support of his plea, I do not find any reason to disbelieve the testimony of PW7 and Ex. PW30/A.
(vi) Though PW7 was cross-examined at length but during his cross-examination nothing can be extracted which may cast any dent in his testimony to the extent that accused Mohd. Yasir had not made any call to him from the said number or that PW7 had not made any call to Mohd. Yasir at the said number.
(vii) No doubt there is a discrepancy in the testimony of PW7 as PW7 failed to disclose the correct mobile number of accused Mohd. Yasir but simultaneously he also deposed that he did not remember his (Mohd . Yasir) mobile number but he had saved the same in his mobile phone. During cross-examination no attempt was made to seek clarification from PW7 what was the exact mobile number of Mohd. Yasir. It is common fact that generally persons do not remember the mobile number of their known as the same are being saved in their mobile phones and as and when they have to make a call to their known, they search the number by name stored in their mobile phones. Thus, mere fact that PW7 failed to disclose the correct mobile number of Mohd. Yasir in his examination-in-chief is not sufficient to discard the prosecution case particularly when the fact deposed by PW7 is fully corroborated by the CDR Ex. PW30/A. SC No. 69/12 & 94/13 Page 62 of 103 State Vs Mohd. Faizan & another
(viii) Thus, from the testimony of PW7 it is established that accused Mohd. Yasir was using the mobile phone bearing number 9899367446 at the relevant time.
(ix) However, during trial, prosecution has failed to adduce any cogent evidence to establish that accused Mohd. Faizan was using the mobile connection number number 9718321626. The testimony of PW13 is not sufficient to prove the fact that the said phone was being used by accused Mohd. Faizan as the said number was not issued in the name of accused Mohd. Faizan.
(x) Since, the mobile phones were not registered in the name of accused persons, it was the duty of investigating officer to take extra precaution at the time of investigation. He should have collected some more cogent evidence to establish the fact that the said phones were being used by accused persons but he preferred to rely upon the statement of close relatives of the accused persons, who either turned hostile in the Court or who was not examined due to apprehension that he would also turn hostile.
(xi) From the CDR of mobile phone of accused Mohd. Faizan, it is limpid that 11 calls were made at mobile phone bearing number 9811469325; two calls were made at mobile number 9213605881; one call each was made at mobile numbers 9891030955, 9266597648 and 9891600602. The holders of said mobile phones numbers could render immense help to the investigating officer to ascertain as to whether the mobile connection number 9718321626 belonged to Mohd. Faizan or not. But investigating officer did not deem it appropriate to interrogate them. Rather, he preferred to rely upon the statement of close relative of accused SC No. 69/12 & 94/13 Page 63 of 103 State Vs Mohd. Faizan & another Mohd. Faizan who was likely to be turned hostile, thus prosecution did not examine him despite the fact that he was present in the Court. In the absence of any other cogent evidence, I am of the opinion that prosecution has failed to establish that the said phone was being used by Mohd. Faizan.
(xii) Further, as per Cell I.D. Chart, location of holder of mobile number allegedly used by accused Mohd. Faizan, during the period June 14, 2012 at about 0:21:20AM to June 15, 2012 at 01:33:23 PM, was at cell I. D No. 404-136-15102 i.e at Jama Masjid except on June 14, 2012 at 07:02:02 PM when his location was at cell I. D number 40404-215-18361 i.e. at Lajpat Rai market-II. Thus, it is established that even from the CDR of mobile phone allegedly used by Mohd. Faizan (Ex. PW13/C) his location was in the area of Jama Masjid for the whole day of June 14, 2012 and June 15, 2012 till 1:33:23 PM except at one occasion. Thus, the said CDR does not support the prosecution version that accused Mohd. Faizan had accompanied the accused Mohd. Yasir.
(xiii) No doubt as per the CDR Ex. PW13/C there is a gap of about five hours when accused Mohd. Faizan had allegedly received the last call from Mohd. Yasir, which was allegedly made from the mobile phone of deceased at 05:48:54 AM and the next call which was made by accused Mohd. Faizan at 10:47:10 AM. During the said period no call was either made or received at the said mobile phone, which was allegedly used by accused Mohd. Faizan. On the basis of said gap, prosecution attempted to set up a case that during the said fiver hours, accused Mohd. Faizan was with Mohd. Yasir and during the said period they had committed the murder of Mohd. Zuber. But careful examination of the CDR of both the accused persons and deceased also rules out the said possibility or at least raises SC No. 69/12 & 94/13 Page 64 of 103 State Vs Mohd. Faizan & another reasonable doubt.
(xiv) As per the CDR of mobile phone of deceased (Ex. PW29/C) location of Mohd. Yasir at 05:48:54 was at Patodi House 3831 Darya Ganj. It means that at 5.49 AM accused Mohd. Yasir was at Darya Ganj Patodi House.
(xv) As per the disclosure statement of accused Mohd. Yasir, Mohd. Faizan had reached Darya Ganj at 6.20/6.25 AM. It means that during the said 30-35 minutes Mohd. Yasir remained at Darya Ganj with Mohd. Zuber who was in injured condition and none had noticed him despite the fact that the alleged incident had taken place in the month of June. It is a common fact that normal life starts in early hours in the peak summer season. We can see road users/morning walkers on the road even at the early hours. Thus, in a such a situation, it is highly unbelievable that no one would notice the accused Mohd. Yasir and Mohd. Zuber who was in injured condition, thus must be groaning due to injuries caused to him.
(xvi) Further, if we believe that no one had noticed to Mohd. Yasir and Mohd. Zuber during the said period, but it is quite unnatural and unbelievable that during the said 30-35 minutes, Mohd. Faizan and Mohd. Yasir would not talk to each other to ascertain their exact location etc. It is pertinent to state that in such a situation due to curiosity, persons used to make call to each other repeatedly to ascertain their location but admittedly, no such call was made during the said period.
(xvii) Further, as per disclosure statement of Mohd. Yasir, he had made only one call to Mohd. Faizan and when he disclosed him about SC No. 69/12 & 94/13 Page 65 of 103 State Vs Mohd. Faizan & another the huge amount, Mohd. Faizan immediately agreed to come there but this fact is not corroborated from the CDR of mobile phone of accused Mohd. Faizan. As per the CDR Ex. PW13/C, between 05:34:19 hours to 05:48:54 hours, four calls were made from the mobile phone of deceased and first time the duration of call was of 55 second. Second call was for 33 seconds, third call was for 8 second and 4 th call was for 23 seconds. This also falsifies the prosecution case that only one call was made. These repeated calls indicate that either Mohd. Faizan did not agree to join Mohd Yasir or he agreed to join him with repeated request of Mohd Yasir. As already stated that the second option also appears not possible as no call was made between 05:49:00 AM to 06:25:00 AM when Mohd. Faizan had allegedly joined the accused Mohd. Yasir at Darya Ganj.
47. To prove the complicity of accused Mohd. Faizan, shopkeeper from whom water bottle was allegedly purchased by Mohd. Yasir could be a substantial witness but unfortunately investigating officer did not deem it appropriate to identify the said shopkeeper. There is no other evidence to establish that Mohd. Faizan had joined the accused.
48. In the absence of any cogent evidence on record, I am of the considered opinion that the CDR of mobile phone of Mohd. Faizan and deceased are not sufficient even to prove that accused Mohd. Faizan met with Mohd. Yasir either at Iron Bridge, Darya Ganj or at any other place or that he accompanied with him at Geeta Colony where Mohd. Zuber was allegedly killed.
49. From the CDR of mobile phone of Mohd. Yasir it is explicit that he had used his mobile phone lastly on June 15, 2012 at about 13:09:01 hours. Similarly, as per CDR of mobile phone allegedly used by SC No. 69/12 & 94/13 Page 66 of 103 State Vs Mohd. Faizan & another Mohd. Faizan, he had made the last call on June 15, 2012 at about 01:33:23 hours. However, prosecution case is that both were apprehended on June 15, 2012 between 3 PM to 3.10 PM. From their CDRs it is clear that no phone call was made between 01:33:00 PM to 3:00 PM. If they had been arrested in a manner as projected by investigating agency, it is highly improbable that both would not have made any call for about two hours.
Contentions relating to the recovery of incriminating articles at the pointing out of accused persons:-
50. Prosecution has set up a case that when accused persons pointed out the car and dead body, they made separate disclosure statement Ex. PW8/K and PW8/L before PW32 and thereafter, they led the police party to their respective house and got recovered incriminating articles such as their blood stained clothes, cash amount, blood stained shoes and mobile phone of deceased. In order to prove the said recovery, the prosecution has relied upon the testimony of PW8, PW9 and PW32.
(i) PW32 in his examination-in-chief deposed that he did remember for how long he stayed at Meerdard Road; whether they stayed there for about two hours or four hours. He further deposed that he did not remember at what time he reached the house of Mohd. Yasir. He further deposed that the house of Mohd. Yasir was found locked and no one met at his house but swiftly added that one relative of Mohd. Yasir met there and he produced the key of the house but he failed to disclose the name of said relative. He further deposed that the said relative opened the lock but admitted that he did not supply the copy of seizure memo to him and also admitted that he did not record the statement of said person and also admitted that he did not join any neighbour at the time of recovery. He further deposed that he did not remember for how long he stayed at the SC No. 69/12 & 94/13 Page 67 of 103 State Vs Mohd. Faizan & another house of Mohd. Yasir. He further deposed that he also did not remember when he reached the house of Mohd. Faizan but swiftly added that they reached his house between 10-15 minutes from the house of Mohd. Yasir and in his cross-examination he clarified that he reached his house between 10 PM to 12 mid night. He further deposed that family members of Mohd. Faizan were present in the house but he did not ask them to join the proceedings and further admitted that he did not call any public person to join the proceedings despite the fact that in the said colony public persons used to be available for 24 hours. He further deposed that from the house of Mohd Faizan, they went to police station Chandni Mahal but admitted that no arrival entry was made.
(ii) PW8 in his cross-examination deposed that police had recorded his statement in this matter twice. Firstly on June 15, 2012 when he went to the police post Turkman Gate to lodge the complaint and thereafter at Gandhi Market and further testified that police took about 5-10 minutes in recording his statement. Thus, as per the testimony of PW8 his statement was recorded even prior to the recovery effected from the house of accused persons. PW8 further deposed that he did not visit the police station Chandni Mahal in connection with investigation of this matter whereas prosecution case is that his statement was recorded by PW32 after midnight after reaching police station.
(iii) PW8 in his deposition clarified that they reached the house of accused Mohd. Yasir between 9:10 PM to 9:20 PM and mother of accused met there and they remained there for about 20-30 minutes and further testified that they left from the house of Mohd. Yasir between 9:30 PM to 9:45 PM.
SC No. 69/12 & 94/13 Page 68 of 103State Vs Mohd. Faizan & another
(iv) PW9 in his deposition deposed that they reached the house of accused Mohd. Yasir between 9 PM to 9:15 PM and the uncle of Mohd. Yasir named Shakir met there and public persons told the police that key of the house was with Shakir, consequently, police asked Shakir to open the lock, accordingly, he opened the lock. He further deposed that police did not ask Shakir to sign the memo nor copy of memo was supplied to him. He further deposed that police did not ask any neighbour to join the proceedings and further stated that police remained there for about 10-15 minutes. He further deposed that police reached the house of Mohd. Faizan between 9:45 PM to 10 PM and his family members were met there but deposed that he did not know whether police asked his family members to join the recovery proceedings or not but admitted that the public persons were present there and further deposed that generally in the said locality public persons used to be available till 1:30 AM, but police did not ask them to join the proceedings. He further deposed that they remained there for about 10-15 minutes. He further deposed that from the house of Mohd. Faizan he left for his house and he did not know where police officials had gone from there?
51. From the testimony of PW8, PW9 and PW32 following facts are emerged:-
(i) that it is not clear who met at the house of Mohd. Yasir whether his mother met as deposed by PW8, his unknown uncle as deposed by PW32 or Mr. Shakir as deposed by PW9;
(ii) however, it is proved that the said person was not asked to join the recovery proceedings; nor the copy of seizure memo was given to the said person;SC No. 69/12 & 94/13 Page 69 of 103
State Vs Mohd. Faizan & another
(iii) it is clear that PW8 and PW9 did not accompany PW32 to the police station or that their statement was not recorded by PW32 at police station Chandni Mahal as set up by prosecution as PW8 categorically deposed that his last statement was recorded at Meerdard Road i.e. prior to the recovery and PW8 also deposed that he did not visit PS Chandni Mahal in connection with the investigation of the case. PW9 deposed that he left for his house from the house of Mohd. Faizan and he did not go to police station Chandni Mahal;
(iv) it is proved from their statements that neighbours and public persons were present at the house of Mohd. Yasir and Mohd. Faizan but they were not asked to join the recovery proceedings. It is pertinent to state that public persons did not join the proceedings as they refused to join the proceedings; rather from the testimony of above witnesses, it is established that no request was made to such public persons/neighbours. In other words no sincere effort was made to join any independent witness at the time of alleged recovery;
(v) copy of seizure memo was not given either to the alleged relative of accused Mohd. Yasir or the family members of Mohd. Faizan;
(vi) there is a discrepancy even about the time of recovery. Surprisingly, PW32 even failed to disclose the time of reaching the house of accused persons. Being the investigating officer, such type of testimony was not expected from him;
SC No. 69/12 & 94/13 Page 70 of 103State Vs Mohd. Faizan & another
(vii) that departure and arrival entry could be a documentary evidence to corroborate the version of PW32 that the alleged recovery was affected in the night as deposed by the said witnesses but surprisingly PW32 neither made any departure entry nor any arrival entry at police station Chandni Mahal. In such a heinous crime which is based on circumstantial evidence, such type of lapses are not appreciable in any manner.
(i) Assuming for the sake of arguments that the alleged recovery was affected in the night as deposed by the said witnesses but their version is completely demolished by PW34 HC Kishan Chand, MHCM who deposed that PW32 SI Mohit Yadav had deposited the alleged recovered case properties with him on June 15, 2012 in day time. Thus, as per PW34, SI Mohit Yadav had deposited the case property i.e. blood stained clothes, shoes and recovered cash amount on June 15, 2012 in day time. Since the testimony of PW34 was contrary to the testimony of PW8, PW9 and PW32, Court question was asked from the witness to seek clarification on what basis he deposed so. Witness clarified that he deposed so on the basis of his memory and he did not record this fact anywhere and further clarified that SI Mohit Yadav had deposited the said pullanda in the evening but prior to sunset and stated that he remembered this fact and he did not record the same anywhere in the register.
(ii) Admittedly, PW32 also failed to record the departure and arrival entry and the witnesses namely PW8, PW9 and PW32 also made their deposition on the basis of their memory only and not on the basis of any document. Thus, there are two versions before this Court. According to one version, the recovery was affected in the late night whereas as per another version said recovery was affected before sunset. As already SC No. 69/12 & 94/13 Page 71 of 103 State Vs Mohd. Faizan & another stated that departure and arrival entry could be a documentary evidence to prove the approximate time of the said recovery but PW32 failed to make the same without any reasonable explanation. It is pertinent to state that making of departure and arrival entry was the duty of PW32 which he failed to perform without any reasonable explanation. In these circumstances a reasonable doubt is raised over the fact that the recovery was not effected in the manner in which it was projected by the prosecution.
52. Moreover, to place reliance on the said recovery prosecution was also duty bound to produce some evidence to show that both the accused persons were seen in the area prior to the alleged recovery. Unless there is any such evidence to show that accused persons visited their house after committing the murder of Mohd. Zuber, it will not be safe to rely upon the alleged recovery.
(i). As per the CDR of mobile phone of accused Mohd. Yasir, his location between 08:54:35 AM to 08:59:21 AM was in the area of Turkman Gate. Since the house of accused Mohd. Yasir is located in the said area, it means that he must have returned to his house by 9 AM. It is also admitted case of prosecution that accused Mohd. Yasir and deceased belonged to the same biradari and their houses are also located in the same locality as the house number of deceased is 3188 Fatak Teliyan, Turkman Gate whereas house number of accused Mohd. Yasir is 3206 of the same locality. It means that their houses are located nearby to each other.
(ii) PW7 in his cross-examination categorically deposed that when he visited the house of accused Mohd. Yasir at about 6 AM to make enquiry about Mohd. Yasir, he saw that mother of deceased, his uncle and SC No. 69/12 & 94/13 Page 72 of 103 State Vs Mohd. Faizan & another his mausa were sitting in the house of Mohd. Yasir and they were making enquiry about Zuber. He further deposed that he stayed there for about 1½ hours and also testified that accused was not present at home. He further deposed that when he left from the house of Mohd. Yasir his relatives were sitting there. It means that the relatives of deceased were present in the house of Mohd. Yasir even after 8 AM. The testimony of PW7 is also corroborated by the defence witness i.e. DW2 who deposed that the family members of the deceased came to the house of Mohd. Yasir to make enquiry. Though DW2 deposed that at that time Mohd. Yasir was at home but this fact was not corroborated by PW7. Since during trial accused failed to produce any cogent evidence to establish that at that time he was present at home, thus defence version to the extent that Mohd. Yasir was present at home does not inspire any confidence.
(iii) From the above, it becomes clear that by 8 AM there must be hue and cry in the area about the missing of Mohd. Zuber, thus relatives of deceased and other neighbours of the locality must knew about the fact that deceased was missing from the last night and Mohd. Yasir was also not traceable. In these circumstances, it is highly improbable that none would have noticed the accused Mohd. Yasir if he returned to his house particularly having blood stained clothes. During investigation, police failed to find out any such person.
(iv) As per the testimony of PW32 when complainant had lodged a complaint at police post Turkman Gate, he along with police party and complainant visited the house of accused Mohd. Yasir but at that time Mohd. Yasir did not meet there. It means that by that time Mohd. Yasir did not return home. As per prosecution version, the complainant had lodged a complaint with the police at abut 9.50 AM and the rukka was sent at about SC No. 69/12 & 94/13 Page 73 of 103 State Vs Mohd. Faizan & another 10.45 AM. It means that neither police nor any person had seen the accused Mohd. Yasir to return home till the time when PW32 went to his house to make inquiry. In the absence of any such evidence, it raises a reasonable suspicion over the alleged recovery from the house of accused Mohd. Yasir.
(v) Since the last call was made from the mobile phone allegedly used by accused persons between 1 PM to 1.30 PM. Thus, the possibility that both the accused might have been apprehended during the said period cannot be ruled out and this possibility further gets strength from the testimony of PW34 who deposed that the case property was deposited in day time before sun set.
(vi) Further from the evidence led by the prosecution, it is established that the family members of Mohd. Yasir were aware that police was in the search of Mohd. Yasir. In these circumstances it is highly unbelievable that accused would conceal the incriminating articles in his house.
(vii) Further, the said recovery was neither got photographed nor video-graphed.
(viii) No doubt, one individual lapse is not sufficient to cause any dent on the recovery of incriminating articles, but the cumulative effect of the said lapses/discrepancies is sufficient to raise a reasonable doubt over the recovery of incriminating articles.
Contradictions between the testimony of PW7, PW10 and PW12:-
SC No. 69/12 & 94/13 Page 74 of 103State Vs Mohd. Faizan & another
53. Prosecution has set up a case that the Santro car in question belonged to PW10 Mr. Alakh Narain Sharma, who sold the same to PW12 Mr. Dina Nath, who further sold the same to PW7 Mohd. Maviya, from whom accused Mohd. Yasir had borrowed the said car. However, on perusal of their testimony it reveals that there are some variations in their depositions regarding the ownership of the said car.
(i). PW7 deposed that he had purchased the Santro car from Mr. A.N. Sharma (PW10) in the sum of ` 58,000/- about 3-4 months prior to the incident but PW10 deposed that he had sold the said car to Mr. Dina Nath (PW12). Testimony of PW10 is fully corroborated by PW12 who deposed that he had purchased the car from Mr. A.N. Sharma and sold the same to PW7. Thus, from the testimony of PW10 and PW12, the car in question was sold by PW10 to PW12, who further sold the same to PW7.
However, the document Ex.PW10/D1 is contrary to the testimony of PW10. As per the said document, Mr. A.N. Sharma (PW10) had taken the delivery of the said car from Mr. Dina Nath (PW12). Thus, as per said document, Mr. Dina Nath had sold the car to Mr. A.N. Sharma. However, from the document Ex.PW12/D1, the said car was purchased by PW7 jointly from PW10 and PW12. But this is not the prosecution case.
(ii). In this regard, the testimony of PW33, Inspector Satish Malik is quite unsatisfactory as initially he deposed that he had confirmed the ownership of the said car on phone from Transport Authority but later on testified that he had confirmed the ownership of Mr. A.N. Sharma from the Traffic Police but he did not clarify what record is being maintained by Traffic Police about the ownership of vehicles. He also admitted in his cross-examination that he had not seized the documents Ex.PW10/D1 and Ex.PW12/D1 on the pretext that the same were not produced by the SC No. 69/12 & 94/13 Page 75 of 103 State Vs Mohd. Faizan & another witnesses at the time of interrogation but the explanation furnished by PW33 is not convincing as it is admitted case of prosecution that PW7 was not the registered owner of the said car, thus, it was the paramount duty of the investigating officer (PW33) to ask PW7 to produce documents in support of his claim about the sale and purchase of the said car. But he failed to do so.
(iii). There is also discrepancy between the testimony of PW7 and PW33 as PW33 set up a case that he met with PW7 first time on June 17, 2012 at his house but PW7 did not support his claim by deposing that PW33 interrogated him for about 30 minutes on June 15, 2012 in the police post and he remained at Police Post, Turkman Gate till 8 PM but his statement was not recorded on June 15, 2012; rather it was recorded on June 17, 2012.
(iv). It is highly unbelievable that police would not be able to trace out the owner of the said car for two days particularly when PW7 categorically deposed that he had visited the Police Post, Turkman Gate on June 15, 2012 himself and remained there till 8 PM. Thus, the testimony of PW33 to the extent that he met with PW7 first time on June 17, 2012 does not inspire any confidence.
(v). No doubt, there is a discrepancy on the point of ownership of the said car as PW7 deposed that he had purchased the car from Mr. A.N. Sharma (PW10) whereas Mr. A.N. Sharma deposed that he had sold the car to Mr. Dina Nath (PW12). Though the said discrepancy may be relevant to determine the question of ownership of the said car, but fortunately the fact in issue before this Court is not who is the registered owner of the said car; rather fact in issue before this Court is whether SC No. 69/12 & 94/13 Page 76 of 103 State Vs Mohd. Faizan & another accused Mohd. Yasir had borrowed the said car from PW7 or not? The fact that accused Mohd. Yasir had borrowed the said car from PW7 has already been proved by prosecution case beyond reasonable doubt, thus, I am of the considered opinion that the said variation is not fatal to the prosecution case in any manner.
Salient points of the disclosure statement Ex.PW8/K of accused Mohd. Yasir:-
54. On perusal of Ex.PW8/K, following salient points are emerged:-
(i). That accused Mohd. Yasir was indulged in cricket satta and he had suffered heavy loss therein; he was in debt to the tune of ` 9-10 lac and the debtors were pressurising him and chasing him.
(ii). That Mohd. Zuber sometimes used to take tablets for intoxication and he also used to take medicine for Khansi.
(iii). That he was perplexed with the debt/liability and was trying to get rid of the same by making some arrangement of the amount.
(iv). That he came to know that Mohd. Zuber had booked a deal in the sum of ` 10.5 lac to buy mobile phones, consequently, he became greedy and thought that if he could snatch the said amount from Mohd. Zuber, he would get rid of from his debt.
(v). That he accompanied the deceased Mohd. Zuber when deceased had demanded and taken the amount of ` 5.50 lac from his uncle (PW8).SC No. 69/12 & 94/13 Page 77 of 103
State Vs Mohd. Faizan & another
(vi). That when he left from his house, he kept one old surgical blade in his pocket.
(vii). That he expressed his willingness to Mohd. Zuber to accompany him, consequently, Mohd. Zuber asked him to make arrangement for car, thereafter he made a call to his friend Mohd. Maviya (PW7) and asked for his Santro car.
(viii). That Mohd. Zuber agreed to go to buy mobile phones at 10 PM and they left together in the car that was borrowed from Mohd. Maviya.
(ix). That at Connaught Place, Mohd. Zuber had consumed some tablets for Nasha and he (Mohd. Yasir) instigated him to consume more tablets, consequently, deceased had consumed tablets in excess, consequently, he became semi-conscious.
(x). That thereafter he put the deceased in the rear seat of the car.
(xi). That at about 1.30 AM, he stopped the car at Hamdard Crossing and he had taken out ` 75,000/- from the amount, which deceased was carrying and he gave the same to Mohd. Wasim (PW5).
(xii). That at 2 AM, he drove the car to the Dhaula Kuan along with deceased and thereafter came to Karol Bagh where he stopped the car and gave blow of surgical blade at the neck of Mohd. Zuber. Consequently, Mohd. Zuber tried to prevent him by his left arm but he had SC No. 69/12 & 94/13 Page 78 of 103 State Vs Mohd. Faizan & another given another blow with the said surgical blade.
(xiii). Since Mohd. Zuber was under the influence of intoxicant tablets, he could not get up when he gave the blow by the said surgical blade and when Mohd. Zuber asked him why he had given the said blow, he told that some patti had struck to him inadvertently and he would take him to the doctor.
(xiv). That thereafter accused drove the car here and there and took the car to Dhaula Kuan.
(xv). That in the morning Mohd. Yasir made a call to Mohd. Faizan on his mobile phone No. 9718321626 from the mobile phone of deceased i.e. mobile No. 9268634480 and asked him to reach Iron Bridge along with one pair of clothes from his house and stated that he would meet him there.
(xvi). That Mohd. Yasir also told him that he had already given the blow of surgical blade at the neck of Mohd. Zuber and also told him that Mohd. Zuber had lot of money in lacs. After hearing the same, Mohd. Faizan immediately agreed to reach there.
(xvii). That between 6.20 AM to 6.25 AM, Mohd. Faizan meet him at Iron Bridge, Darya Ganj, thereafter they left together in the said car and he changed his clothes at Geeta Colony.
(xviii). That thereafter they killed Mohd. Zuber at Geeta Colony after stopping the car. At that time, Mohd. Faizan had overpowered Mohd. Zuber and he had given the blow of surgical blade at his neck.
SC No. 69/12 & 94/13 Page 79 of 103State Vs Mohd. Faizan & another (xix). That he had purchased the water bottle to wash his hand.
(xx). That thereafter they parked the car at Gandhi Market and folded the back seat to cover the dead body.
(xxi). That they lifted one polythene lying on the road and used the same to cover the dead body.
(xxii). That they decided that they would dispose of the dead body in night.
(xxiii). That Mohd. Yasir had lifted his blood stained clothes from the car; locked the car and went away.
55. Unfortunately, no substantial investigation was conducted on certain crucial points, which were allegedly disclosed by the accused Mohd. Yasir during his interrogation. As per disclosure statement, accused Mohd. Yasir had committed the offence of murder because he had suffered huge loss to the tune of ` 9-10 lacs in the cricket satta but during investigation no effort was made to collect any evidence to show that either accused Mohd. Yasir was indulging in the satta activities or he was in debt to the tune of ` 9-10 lacs.
(i). As per disclosure statement, accused Mohd. Yasir had purchased water bottle to wash his blood stained hands but no effort was made to identify the said shopkeeper. The said shopkeeper could render immense help to the prosecution to prove the guilt of both the accused persons more effectively but unfortunately investigating officer did not deem SC No. 69/12 & 94/13 Page 80 of 103 State Vs Mohd. Faizan & another it appropriate to locate the said shopkeeper.
(ii). Similarly, no effort was made to collect any evidence to show that deceased used to do Nasha by consuming tablets. Admittedly, no tablet was recovered either from the car or from the possession of deceased. Even, no intoxicant was found in the blood of the deceased. As per FSL report Ex.PW26/A, no poisoning Ethyl, Methyl, Cyanide, Phosphate, Alkaloid, Barbiturates, Tranquilliser, Pesticides was detected in the blood of the deceased which rules out the claim of prosecution that the deceased had consumed intoxicant tablets as disclosed by accused Mohd. Yasir in his disclosure statement.
(iii). Since, as per disclosure statement of accused Mohd. Yasir, he had changed his clothes before committing the murder of Mohd. Zuber, thus, it means that blood stains must also appeared on his clothes after committing the murder of Mohd. Zuber as accused Mohd. Yasir also disclosed that after committing murder, he had washed his hands after purchasing water bottle.
(iv). It means that on two pair of clothes of accused Mohd. Yasir blood was appeared. Firstly, when he gave the blow of surgical blade before committing the murder, and secondly, when he gave final blow to kill him after changing his earlier clothes. But no investigation was made qua second pair of clothes. Admittedly, as per prosecution version only one pair of clothes was recovered at the pointing out of accused Mohd. Yasir.
(v). As per disclosure statement, accused roamed in the car along with Mohd. Zuber in injured condition at various places i.e. Karol Bagh, Connaught Place, Dhaula Kuan, Darya Ganj and Geeta Colony. It is SC No. 69/12 & 94/13 Page 81 of 103 State Vs Mohd. Faizan & another pertinent to state that CCTVs are installed at the main road/main crossing particularly in the area of Connaught Place, Karol Bagh highway leading to Gurgaon but no attempt was made to examine the said CCTV footage.
56. Needless to say that the purpose of investigation is to find out truth by collecting cogent and admissible evidence. Thus, it was the paramount duty of investigating officer to collect admissible evidence to support the facts disclosed by the accused in his disclosure statement. The information disclosed by accused can be used as a guiding path by the investigating officer to decide how he has to investigate the matter and it was his duty to make all endeavours to collect evidence to verify the facts disclosed by the accused, but investigating officer is not supposed to rely blindly upon the facts disclosed by the accused in his disclosure statement. As already stated in the instant case, investigating officer failed to conduct any investigation on some of the crucial points. Such type of laxity in the investigation in such a heinous crime, which mainly based on the circumstantial evidence, is not appreciable in any manner as such lapses may break the chain of circumstances, which may ultimately prove fatal in bringing home the guilt of accused beyond all reasonable doubts.
57. Besides the above, there are certain other lapses in the investigation and a few are as under:-
(i). That prosecution has set up a case that deceased had finalised a deal in the sum of ` 10.5 lacs and he had made the advance payment to the tune of ` 5 lacs and if he could not pay the balance amount of ` 5.50 lacs, his advance money would be forfeited. But surprisingly, no effort was made to identify the dealer to whom the deceased had made the payment of ` 5 lacs in advance. Admittedly, neither PW4 nor PW8 knew SC No. 69/12 & 94/13 Page 82 of 103 State Vs Mohd. Faizan & another anything about the said dealer. If we believe the prosecution version, it means that the amount of ` 5 lacs could not be recovered from the said dealer as none knew anything about the said dealer.
(ii). If the deceased had made the payment of ` 5 lacs to the dealer, it means that deceased must have talked with the said dealer on phone but surprisingly no effort was made to analyse the CDR of Mohd.
Zuber in this regard.
Non- making of departure or arrival entry in the register:-
(iii). Prosecution has set up a case that accused persons were apprehended on receipt of a secret information and after apprehending both the accused persons, they were brought to the Police Post, Turkman Gate where they were interrogated, then police team left for the recovery of dead body and car and ultimately reached the Police Station Chandni Mahal after recovery of the all the incriminating articles. The entire investigation in this regard was conducted by PW32. But PW32 in his cross-examination candidly admitted that he did not record the secret information in any register when it was received; he also candidly admitted that he did not make any departure entry when they left for Delight Cinema to apprehend the accused persons pursuant to the alleged secret information. Though he deposed that they reached Police Post, Turkman Gate at 3.30 PM along with both the accused persons but candidly admitted that even at that time, no arrival entry was made in the register. Similarly, no arrival entry was made when he finally reached the police station after the recovery of incriminating articles. Needless to say that as per Punjab Police Rules, it was the paramount duty of PW32 not only to record the secret information in the register but also to make departure and arrival SC No. 69/12 & 94/13 Page 83 of 103 State Vs Mohd. Faizan & another entry in the register but he failed to do so without any reasonable explanation whatsoever. Thus, there is no documentary evidence on record to corroborate the prosecution version that secret information was received or police team under the supervision of PW32 left from the police post to apprehend the accused persons or that both the accused persons were apprehended from the Delight Cinema.
No immediate search of accused persons:-
(iv). Prosecution has set up a case that when the search of both the accused persons was taken, mobile phones which they used on that day were recovered from their possession. Besides that some cash amount was also recovered from their possession and as per prosecution version the key of Santro car was also recovered from the possession of accused Mohd. Yasir.
(v). It is admitted case of prosecution that both the accused persons were apprehended on June 15, 2012 at about 3/3.10 PM near Delight Cinema. But surprisingly at that time PW32 did not deem it appropriate to take search either of the accused persons. During trial, prosecution failed to furnish any reasonable explanation why even cursory search of accused persons was not taken at that time. Needless to say that one of the purposes of taking search is to rule out the possibility whether the suspect is having any weapon or contraband.
(vi). As per prosecution version, their search was taken after arrest. In other words, their search was taken between 8 PM to 8.30 PM when both the accused persons persons were formally arrested. It means that PW32 intends to convey that no search of accused persons was taken SC No. 69/12 & 94/13 Page 84 of 103 State Vs Mohd. Faizan & another during five hours despite the fact that in the police post, both the accused disclosed that they had committed the murder of Mohd. Zuber. To my mind, the said version is totally unbelievable. And if there is any substance in the version of PW32, it raises a big question on the capability and credibility of the investigating officer.
Non collection of CDR of PW5, PW7 and PW8:-
(vii). Prosecution has set up a case that initially accused had made a call at the mobile phone of PW7 asking him to give his Santro car and when accused failed to return within an hour and half as promised, PW7 made several calls at his mobile phone but investigating officer did not deem it appropriate to analyse the CDR of PW7 to support his version.
(viii). Similarly, prosecution version is that accused had given a sum of ` 75,000/- to PW5 and thereafter PW5 handed over ` 25,000/- to PW6 but no attempt was made to analyse their CDR to seek corroborative evidence.
(ix). Similarly, PW8 claimed that he had made several calls to deceased but his CDR was not analysed to corroborate his version.
Needless to say that the said CDRs would render immense help to prosecution to prove its case more effectively.
Conduct of PW32 and PW33:-
(x). If we believe PW32, he had not informed the SHO about the murder of Mohd. Zuber till he reached the Police Station Chandni Mahal. Needless to say that murder case is required to be investigated by SC No. 69/12 & 94/13 Page 85 of 103 State Vs Mohd. Faizan & another police officer not below the rank of inspector, thus, it was the duty of PW32 to inform the SHO as soon as he came to know that Mohd. Zuber had been killed or at the most when he recovered the dead body at the pointing out of accused persons but he failed to do so without any reasonable explanation.
(xi). According to the prosecution case, PW33 came into picture when the entire recovery had been effected but the said plea is not supported by the prosecution witnesses particularly by PW7 who categorically deposed that he was interrogated by PW33 in the Police Post, Turkman Gate for about 30 minutes but at that time PW33 did not record his statement, rather he recorded his statement on June 17, 2012. It is pertinent to state that this Court has observed in several other matters that SHOs are not inclined to take the charge of investigation of heinous crime immediately; rather they preferred to get the matter investigated by their junior officer and when they conducted substantial investigation, they take the charge of investigation. In the instant case also, it appears that PW33 had adopted the same practice otherwise it is unbelievable that he would not come to know about the murder of deceased prior to mid night. To my mind the said practice is not good for the administration of criminal justice.
(xii). Moreover, the claim of PW33 that he had taken over the charge of investigation after the recovery of blood stained clothes and cash amount is contrary to the charge-sheet itself. As per the charge-sheet, dead body was got sent to mortuary of MAMC after completion of form 25.35 (1)
(b) of Punjab Police Rules, which is Ex.PW33/A. Admittedly, the said document was prepared by PW33. Purportedly, the said document was prepared on June 16, 2012 but as per the charge-sheet, the same was prepared at the spot.
(xii). Though as per charge-sheet, the inquest form was filled SC No. 69/12 & 94/13 Page 86 of 103 State Vs Mohd. Faizan & another up at the spot but from the form Ex.PW33/A, it appears that same was prepared on the next day. Needless to say that there should be no unnecessary delay in the inquest proceeding and all efforts should be made to avoid unnecessary delay. In the instant case, delay could be avoided by PW32 by intimating the SHO about the recovery of dead body but he failed to do so.
(xiv). As per photograph Ex.PW1/6, both the legs of deceased were in folded position but this fact is not mentioned in the inquest proceeding. In such a case, doctor should be called at the spot because the position of dead body may help him to ascertain the time of death more accurately.
(xv). Even in such type of matter, the temperature of car should also be noted down as the same may help the doctor to ascertain the approximate time of death because it is undisputed fact that temperature also affects the process of rigor mortis.
(xvi). During entire investigation, PW33 prepared only one important document i.e. Ex.PW21/A, which is application form of post-
mortem of the dead body. But there are numerous lapses in the said document as PW33 did not deem it appropriate to mention even the name of accused persons in the said document. It is pertinent to state that missing the name of accused persons in the said document may indicate that till the preparation of said document, investigating officer was not aware about the name of the persons, who were involved in the said incident. Had there been no last seen evidence or finger print in the matter, the said lapse could be proved fatal to the prosecution. (Relied on Balwant Singh vs State 1976 CLR (Delhi) 41 and Balkar Singh & SC No. 69/12 & 94/13 Page 87 of 103 State Vs Mohd. Faizan & another Others vs State of Punjab, AIR 1975 SC 1962).
(xvii). Even the facts mentioned in Ex.PW21/A are contrary to prosecution case because as per Ex.PW21/A, deceased was lastly seen with his friend on June 15, 2012 whereas prosecution case is not so. Rather prosecution case is that accused Mohd. Yasir was lastly seen with deceased by PW7 at about 9 PM on June 14, 2012. Such type of lapses are not expected from the inspector of responsible and dedicated agency.
(xviii). It is admitted case of prosecution that on June 17, 2012, both the accused persons were produced in JPN hospital for their blood sample. But when the samples were examined at FSL, same were found degraded, consequently, DNA could not be isolated from the said samples. This shows that our system is so defective that investigating agency cannot generate DNA from the blood of living human being. Needless to say that at the time of taking blood sample, necessary precautions should be taken at the end of doctors and police officials to ensure that the sample could not be putrefied or degraded but it appears that in the instant case no such precaution was taken. Needless to say that some scientific instruments are available in the market which preserve the blood sample for longer period such as FTA Card but our investigators are still using traditional way to preserve the blood sample which ultimately putrefied or degraded, thus does not provide requisite help to detect crime or to connect the culprit with the offence. As per information available on internet, samples on FTA card can be preserved for much longer period even upto 11 years in room temperature.
(xix). In the instant case, no request was made by the investigating officer to generate DNA from the recovered clothes/shoes of SC No. 69/12 & 94/13 Page 88 of 103 State Vs Mohd. Faizan & another the accused persons. During trial the said clothes were not identified by any of the witnesses to prove the fact that the said clothes belonged to the accused persons. No doubt that police official identified the clothes, but it only establishes the fact that the same were recovered at the pointing out of accused persons. On the basis of the said lapse, it was argued that the recovered clothes did not belong to the accused persons.
(xx). Needless to say that DNA can also be generated from the clothes of a person. Had the DNA been generated from the clothes of accused persons and if the same were tallied with DNA generated from the biological samples of accused persons, prosecution would be in a better position to prove the fact that the said clothes were belonged to the accused persons.
(xxi). It is admitted case of prosecution that no footwear of the deceased was found in the said car. It is also not the case of prosecution that deceased left from his house with bare foot. Moreover, it is not plausible. Thus, question arises where his footwear had gone? If Mohd. Zuber is killed in the car, then his footwear should be in the car. But unfortunately, PW33 did not conduct any investigation in this regard.
Contentions relating to the lapses in the positive photographs:-
(xii). On the basis of positive photographs, counsel for accused has taken a plea that PW8 and PW9 did not participate in the investigation and they are planted witnesses being the relative of deceased. The main reason for taking the said plea is that the said witnesses are not visible in any of the photographs despite the fact that other public persons are visible in the said photographs. Admittedly, in the photographs neither PW8 nor SC No. 69/12 & 94/13 Page 89 of 103 State Vs Mohd. Faizan & another PW9 is visible. Since, the prosecution case is that the said photographs were taken in the presence of both the witnesses, to avoid any doubt over their presence, investigating officer should have asked the photographer to take some photographs in landscape/long shot showing the presence not only of both the witnesses but also showing the presence of accused persons. Needless to say that such type of photographs always help the prosecution to prove its case more effectively and efficiently.
(xxiii). That three photographs i.e. Ex.PW1/16, Ex.PW1/20 and Ex.PW1/21 are in landscape/long shot mode but in these photographs neither witnesses nor accused persons are visible.
(xxiv). No doubt, there should be no such lapse. But to my mind the said lapse is not fatal to the prosecution case in any manner as in the instant case, no question was put to the photographer, PW1 Ct. Dinesh that the witnesses/accused are not visible in the photos as they were not present. Further, from the testimony of PW1, it appears that his main aim was to take the shots of car from different angles, thus, the possibility that witnesses/accused were standing at some distance at that time cannot be ruled out. Rather, it is more plausible as PW8 in his deposition categorically deposed that police directed everyone to stand at some distance from the car. Further, it is also quite possible that the said witnesses and accused persons were standing towards the side of the photographer and if it was so, they would not be visible in the photographs. Thus, the said lapse is not fatal to the prosecution case in any manner.
Post-Mortem Report and FSL Report:-
58. From the testimony of PW21 Dr. Jatin, it is established that SC No. 69/12 & 94/13 Page 90 of 103 State Vs Mohd. Faizan & another the injuries caused to the deceased could be caused by the recovered surgical blade. From the FSL report Ex.PW23/B, it is also established that human blood was detected on the said surgical blade and from the DNA report Ex.PW31/B, it is established beyond doubt that DNA generated from the said blood was matched with the DNA of the deceased, which proves beyond doubt that the death was caused by the said surgical blade. No doubt that no finger print was found from the said surgical blade but the absence of finger print is not sufficient to disprove the fact that the death was not caused by the said blade.
59. Learned defence counsel argued that since PW21 also deposed that the death could be caused by any other similar weapon, thus, the possibility that the death was caused by any other sharp edge weapon cannot be ruled out. But to my mind, the said contention is devoid of any merit because DNA generated from the said surgical blade tallies with the DNA of the deceased which establishes beyond doubt that the death was caused by the said surgical blade.
60. From the testimony of PW21, it is also established that cause of death was haemorrhagic shock consequent upon injury to neck vessels via injury No. 1, which was sufficient to cause death in ordinary course of nature.
Case law on circumstantial evidence:-
61. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the Apex Court as far back as in1952 in Hanumant Govind Nargundkar and Another. v. State of SC No. 69/12 & 94/13 Page 91 of 103 State Vs Mohd. Faizan & another Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed:-
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
(emphasis supplied)
62. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622. Therein, while dealing with circumstantial evidence, Apex Court held that onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of Apex Court, before conviction could be based on circumstantial evidence, must be fully established and the same are :-
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;SC No. 69/12 & 94/13 Page 92 of 103
State Vs Mohd. Faizan & another (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
63. These aspects were highlighted and reiterated in State of Rajasthan v. Raja Ram 2003 (8) SCC 180, State of Haryana v. Jagbir Singh and Anr. 2003 (11) SCC 261.
64. It is also pertinent to refer the observations of Hon'ble Apex Court in Sharad Birdhichand Sarda (supra) wherein it was held that:-
"163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
65. In the light of above settled proposition of law, circumstances as discussed above shall be analysed to ascertain whether prosecution has succeeded to complete the chain of evidence without leaving any reasonable ground for the conclusion consistent with the innocence of the accused and the completed chain shows that in all human probability the act must have been done by the accused persons or not.
66. Taking into account the ongoing discussion, I am of the considered opinion that prosecution has succeeded to prove the following facts/circumstances against accused Mohd. Yasir beyond all reasonable SC No. 69/12 & 94/13 Page 93 of 103 State Vs Mohd. Faizan & another doubts:-
(i) that he accompanied the deceased to the shop of PW8 on June 14, 2012 and the deceased in his presence demanded a sum of ` 5.50 lac from PW8 for mobile phones;
(ii) that the sum of ` 5.50 lac was given to the deceased by PW8 in the presence of accused and they (accused and deceased) left together from the said shop at about 5/5.30 PM;
(iii) that he visited the house of deceased between 7 PM to 8 PM and from his house, accused and deceased left together along with the said amount and at that deceased told his mother PW4 that he was going to Karol Bagh to buy mobile phones;
(iv) that accused had made several calls to PW7 during 6 PM to 9:20 PM to borrow his Santro car and thereafter accused and deceased met with deceased at about 9/9:30 PM near Faize Illahi Masjid;
(v) that accused asked for the Santro car on the pretext that he had to go to Gurgaon Toll Plaza and he would return within 1 ½ hours, accordingly, PW7 gave his car to the accused and both (accused and deceased) left together in the said car;
(vi) that when accused failed to return within 1 ½ hours, PW7 made calls at the mobile phone of accused but accused did not respond the calls;
(vii) that in the night between 1:30 AM to 2:00 AM, accused met SC No. 69/12 & 94/13 Page 94 of 103 State Vs Mohd. Faizan & another with PW5 and gave ` 75,000/- to him stating that ` 50,000/- was towards the loan that was taken from him and ` 25,000/- was towards the loan that was taken from PW6;
(viii) that PW5 had delivered the amount of ` 25,000/- to PW6 in the night at about 2:30 AM stating that the said amount was given by accused towards the loan, which accused had taken from him (PW6);
(ix) that when accused did not return the car, PW7 visited the house of accused in the morning but accused was not found there;
(x) that deceased also did not return to home in the night;
(xi) that when PW7 reached the house of accused, he saw that family members and relative of deceased were also present there and they were also making inquiry about the accused and deceased;
(xii) that accused along with his co-accused was apprehended and brought to the police post Turkman Gate;
(xiii) that accused disclosed before the police in the presence of PW8 that Mohd. Zuber had been killed and his dead body was lying in the Santro car, which was parked by them opposite to Gandhi Market, Meerdard Road, Delhi;
(xiv) that accused pointed the car and dead body and same were recovered at the pointing out of the accused;
(xv) that crime team was summoned and car was got SC No. 69/12 & 94/13 Page 95 of 103 State Vs Mohd. Faizan & another photographed;
(xvi) that chance prints were lifted from the car;
(xvii) that surgical blade was also recovered from the said car and from the DNA report it is established that blood found on the blade was of the deceased and PW21 proved that the injuries could be caused by the recovered surgical blade;
(xviii) that during investigation fingers prints of the accused were taken at CRO Kamla Market and thereafter his palm prints were taken in the court (xix) that the specimen finger prints and palm prints of accused were found identical with the three chance prints found on the rear view glass of the car;
(xx) that though in his statement under Section 313 Cr. P.C accused took the plea that he was not using the mobile phone in question on that day; rather he was using another number but he did not disclose the said number. Since, accused deliberately withheld the said another number without any reasonable explanation, presumption shall be drawn against the accused;
(xxi) that accused failed to controvert the last seen evidence led by prosecution, thus onus was upon the accused to explain what had happened when he along with deceased left together in the car of PW7 and to explain under which circumstances Mohd Zuber had died;
SC No. 69/12 & 94/13 Page 96 of 103State Vs Mohd. Faizan & another (xxii) that accused failed to discharge the said onus.
67. The circumstances which prosecution failed to prove against accused Mohd. Yasir beyond reasonable doubt are:-
(i) that blood-stained clothes and shoes were recovered from the house of accused;
(ii) that cash amount to the tune of ` 2.23 lac was recovered from the house of accused;
68. From the above, it becomes crystal clear that prosecution has succeeded to prove twenty two circumstances against accused Mohd Yasir beyond the shadow of all reasonable doubts from the total twenty four circumstances. To my mind, proof of twenty two circumstances makes a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and it shows that in all human probability the act i.e. murder of Mohd. Zuber must have been done by the accused Mohd. Yasir.
69. However, qua Mohd. Faizan, I am of the considered opinion that prosecution has failed to prove following circumstances beyond reasonable doubts:-
(i) that mobile phone bearing number 9718321626 was being used by the accused at the relevant time;
(a) that even the CDR of said mobile phone did not support the prosecution version that accused had met with the accused Mohd Yasir at SC No. 69/12 & 94/13 Page 97 of 103 State Vs Mohd. Faizan & another Darya Ganj;
(b) that as per the CDR of said phone calls, location of its holder i.e. accused was at Jama Masjid area and the CDR does not corroborate the prosecution version that accused had ever visited Darya Ganj, Geeta Colony and Meerdard Road etc;
(ii) that accused made any disclosure statement in the presence PW8 and PW9 as both the said witnesses did not corroborate the prosecution case in this regard;
(iii) that the car and dead body were pointed by the accused, and the said pointing out, if any, is not proved beyond doubt;
(iv) that chance prints lifted from the car were belonged to accused. Rather fingers and palm prints of accused did not tally with the chance prints lifted from the car;
(v) that the blood-stained clothes, cash amount of ` 2,45,900/- and mobile phone of deceased were recovered from the house of accused at his pointing out.
70. In view of the above, I am of the considered opinion that prosecution has failed to bring home the guilt of accused Mohd Faizan beyond the shadow of all reasonable doubts, thus, I hereby acquit the accused Mohd. Faizan from all the charges.
71. However, pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to bring home the guilt SC No. 69/12 & 94/13 Page 98 of 103 State Vs Mohd. Faizan & another of accused Mohd. Yasir beyond the shadow of all reasonable doubts for the offence punishable under Section 302 IPC, thus, I hereby hold him guilty thereunder.
72. As already established that deceased was carrying a sum of ` 5.50 lac when he and accused Mohd. Yasir left together in the car of PW7 but the said amount was not recovered from the car. No doubt, prosecution has failed to prove the recovery of robbed amount beyond the shadow of all reasonable doubts, but to prove the guilt of accused for the offence of robbery, recovery of robbed amount is not essential, thus, I also hold the accused Mohd. Yasir guilty for the offence punishable under Section 392 read with 397 IPC. Admittedly, accused was not charged for the offence punishable under Section 397 IPC, but with the aid of Section 222 Code of Criminal Procedure, accused can be held guilty thereunder since the offence punishable under Section 397 IPC is lesser than the offence of murder.
73. Qua offences punishable under Section 307/411 IPC, I am of the opinion that prosecution has failed to bring home the guilt of accused beyond the shadow of all reasonable doubts, thus, I hereby acquit the accused Mohd Yasir thereunder.
Conclusion:-
74. Pondering over the ongoing discussion, I am of the view that prosecution has succeeded to bring home the guilt of accused Mohd. Yasir beyond the shadow of all reasonable doubts for the offences punishable under Section 302 IPC and under Section 392 read with Section 397 IPC, thus, I hereby hold him guilty thereunder.
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(i) However, I am of the opinion that prosecution has failed to prove the guilt of accused Mohd. Yasir beyond the shadow of all reasonable doubts for the offence punishable under Section 307/411 IPC, thus, I hereby acquit him thereunder.
(ii) I am also of the considered opinion that prosecution has also failed to bring home the guilt of accused Mohd. Faizan beyond the shadow of all reasonable doubts, thus, I hereby acquit him from all the charges. He be set at liberty forthwith if not required in any other case on furnishing a personal bond in the sum of ` 10,000/- with one surety in the like amount for a period of six months from today in terms of Section 437A Cr. P.C. with condition that he shall appear before the higher Court if he receives any summons or notice during the said period.
75. Considering the lapses found in the investigation as highlighted in the judgment, copy of judgment be sent to the Commissioner of Police to enable him to take remedial steps as he deems fit with a hope that in future no such lapse would be found during investigation.
Announced in the open Court on this 17th day of July, 2014 (PAWAN KUMAR JAIN) Additional Sessions Judge-01 Central district, Tis Hazari, Delhi SC No. 69/12 & 94/13 Page 100 of 103 State Vs Mohd. Faizan & another IN THE COURT OF SH. PAWAN KUMAR JAIN ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI SC No. 69/12 ID No. 02401R0433292012 & SC No. 94/13 ID No. 02401R0224592013 FIR No. : 90/12 Police Station : Chandni Mahal Under Section : 302/364/365/392/ 397/411/34 IPC State Versus Mohd. Yasir S/o Mohd. Sadiq R/o H. No. 3206, Gali Pahari Wali, Fatak Teliyan, Turkman Gate, Delhi. .............Convict Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the state Sh. Habib Ahmed, Advocate, counsel for the convict ORDER ON THE POINT OF SENTENCE :-
1. Vide separate judgment dated July 17, 2014, accused Mohd. Yasir had been held guilty for the offences punishable under Section 302/392/397 IPC.SC No. 69/12 & 94/13 Page 101 of 103
State Vs Mohd. Faizan & another
2. Learned counsel appearing for the convict submits that since the committed offence does not fall within the category of rarest of rare cases, convict deserves the minimum sentence as provided under law.
3. Learned Additional Public Prosecutor also candidly concedes that case in hand does not fall within the category of rarest of rare cases.
4. I have heard submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. After going through the record, I also agree with the counsel for both the parties, that case in hand does not fall within the purview of rarest of rare cases, thus, convict deserves the minimum sentence as provided under Section 302 IPC.
6. It is also explicit from the record that the main reason to commit the murder of deceased was to rob the amount of ` 5.50 lac, which he was carrying. Though deceased was friend of the convict, yet he killed him in the greed of said amount. Thus, at the time of imposing sentence, efforts should also be made to realise the convict that crime never pays and if guilt is proved, he shall not have only to undergo the sentence of imprisonment but also to bear the financial burden in the form of fine or compensation. In the instant case, deceased was one of the earning members of the family, thus, family of the deceased not only sustained loss of deceased but also sustained financial loss. Hence, I am of the view that family members of the deceased are also entitled for compensation in terms of the provisions of Section 357 Cr. P. C. SC No. 69/12 & 94/13 Page 102 of 103 State Vs Mohd. Faizan & another
7. In the light of foregoing discussion, I hereby sentence the convict Mohd. Yasir rigorous imprisonment for life and a fine of ` 5 lac in default further simple imprisonment for the period of four years for the offence punishable under Section 302 IPC. In view of the above sentence, no separate sentence is being passed for the offence punishable under Section 392/397 IPC. Benefit of Section 428 Cr. P. C. be given to the convict.
8. I also award a compensation of ` 5 lac to the family of deceased under Section 357 Cr. P. C. from the above fine amount, if paid, otherwise the amount of compensation shall be paid by the State from the Victim Compensation Fund. In that eventuality fine amount, if paid later on, shall be diverted to the Victim Compensation Fund. Secretary, Delhi Legal Aid Service Authority, Central District, Delhi shall provide all assistance to the family of deceased in getting the amount of compensation. However, it is clarified that the amount of compensation shall not be released before the expiry of period of appeal and if any, appeal is filed then till the decision of such appeal or as per the direction of the appellate court.
9. Copy of judgment along with order on the point of sentence be given to the convict free of cost. Copy of this order be also sent to the Secretary Delhi Legal Aid Service Authority, Central District, Delhi.
10. File be consigned to record room.
Announced in the open Court on this 21st day of July, 2014 (PAWAN KUMAR JAIN) Additional Sessions Judge-01 Central district, Tis Hazari, Delhi SC No. 69/12 & 94/13 Page 103 of 103