Delhi District Court
State vs 1. Mohd. Zaki on 15 January, 2019
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE:
SC No.2058/2016
FIR No.253/10
PS : Hazrat Nizamuddin
State Versus 1. Mohd. Zaki
S/o Shri Razi Ullaha
R/o Kothi No.1, Izzat Nagar,
Prem Nagar,
Bareilly, U.P.
2. Aisha Mumtaz
D/o Shri Rashid Hasmi
R/o Shop No.2, 2nd Floor,
Main Market West,
H.N. Din, New Delhi
____________________________________________________
Date of Institution : 04.07.2011
Date of transfer of the case
to this court : 06.11.2017
Date of arguments : 13.12.2018
Date of judgment : 15.01.2019
JUDGMENT
1. As per case of prosecution, on 24.11.2010, both accused conspired with each other to kill Abdul Rehman on the ground that the latter was threatening and extorting money from accused Aisha Mumtaz. Both the accused with their common intention killed Abdul SC No.2058/16 Page 1 of 42 Rehman by hitting the same on his head with the cricket bat. After killing Abdul Rehman, threw the dead body on footpath alongwith boundary wall of Bharat Scout and Guide on Humayan Tomb and Gurudwara Damdama Sahib. The accused persons, however, were apprehended by the police team and the present case was registered.
2. On completion of the investigation and other formalities, the chargesheet was finally filed against the accused namely Mohammad Zaki and Aisha Mumtaz in the court of learned Metropolitan Magistrate (in short "MM"). Learned MM after complying with the provisions of Section 207 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C") committed the case to the Court of Sessions for trial.
3. After committal proceedings, the trial of this case was assigned to my Learned Predecessor, who framed charges against the accused Zaki and Aisha Mumtaz on 07.02.2012 for the offences punishable under Section 120B/302/201/34 IPC to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 36 witnesses in all. The details of which are given as under :
(a) PW1 Md. Eisa is the real brother of the deceased.
SC No.2058/16 Page 2 of 42He deposed that on 23.11.2010, deceased had gone somewhere and when he did not return till 24.11.2010, he lodged a complaint i.e. Ex. PW1/A in PS Bada Hindra about his missing. About two months back, accused Md. Zaki threatened his brother on phone stating that he will not spare him i.e. Md. Zaki as Abdul Rahim had some affairs with co accused Aisha Mumtaz. Deceased made him to hear that phone call by putting the 9213464269 belonging to deceased about two months before the incident. About same time accused Aisha Mumtaz lodged a false complaint against Abdul Rahim in PS Bada Hindra about having unauthorized weapons. The deceased had received aforementioned call from mobile phone no. 9911....... (complete number he did not remember). This number he came to know from call details collected by the police during investigation of this case.
He further deposed that on 24.11.2010, he handed over a chit having written mobile phone of Aisha Mumtaz to SI Bhism Singh. On that day i.e. 24.11.2010 he identified the dead body of Abdul Rahim on mortuary of AIIMS. IO recorded his statement in this regard which is Ex. PW1/B
(b) PW2 Smt. Firdosh is independent witness of the prosecution. She has deposed that she knows accused Aisha Mumtaz who had joined a committee alongwith her and they were members in 11 committees jointly and accused Aisha had SC No.2058/16 Page 3 of 42 invested Rs.11 Lacs. She had also given her Rs.30 Lacs on interest and she has brought her diary maintained by her and the copy of the relevant page is Ex. PW2/A which was seized by the police. She has not supported the case of the prosecution. She was cross examined by learned Additional Public Prosecutor for State, but despite crossexamination, she has not supported the case of the prosecution.
(c) PW3 W HC Sobha, duty officer, is a formal witness of the prosecution. She has proved on record the FIR Ex. PW 3/A.
(d) PW4 Ahmad Farhan is another independent witness of the prosecution. He has deposed that Abdul Rahim was his friend since his childhood and he was residing in their gali. He had a shop in Gupta Market, where they had also a shop. He further deposed that Abdul Rahim used to disclose him about his relationship with accused Aisha Mumtaz and he used to go to meet said Aisha Mumtaz at a house in Nizamuddin alongwith him. He used to drop him at Nizamuddin Masjid (Dargah) and then used to go Aisha Mumtaz's house alone. He further deposed that on 23.10.2010, in the morning, Abdul Rahim asked him to accompany him at Nizamuddin, but he could not accompany him having some work at his shop and he went alone in an auto rikshaw.
SC No.2058/16 Page 4 of 42(e) PW5 Naveen Gandhi, is another independent witness of the prosecution. He deposed that he is the owner of shop No.2, Main Market, Nizamuddin West situated on ground floor. There are two flats and second floor over said shop. Second floor was given on rent to one Mr. Rashid Hashmi who is a lawyer. Said Rashid Hashmi was residing in the said flat alongwith his wife and children. He used to collect rent from Rashid Hashmi, firstly on behalf of his father and after his death, as landlord.
(f) PW6 Md. Kasim Ansari, is another independent witness of the prosecution. He has deposed that he is running a shop at 49/2, Gali No.22, Zakir Nagar, New Delhi under the name and style of Ikrar Communication. He deals in mobile phone connections from that shop. He further deposed that one day in April, 2011, date he does not remember, police came to him and joined investigation in this case. He has not supported the case of the prosecution. He was cross examined by learned Additional Public Prosecutor for State, but despite cross examination, he has not supported the case of the prosecution.
(g) PW7 Shakil Ahmed, is another independent witness of the prosecution. He has deposed that accused Mohd. Zaki is his brother. On 02.03.2011, police brought Md. Zaki to his SC No.2058/16 Page 5 of 42 house. Police searched their house, but nothing was recovered. He has also not supported the case of the prosecution. He was cross examined by learned Additional Public Prosecutor for State, but despite crossexamination, he has not supported the case of the prosecution.
(h) PW8 Abdul Asif is another independent witness of the prosecution. He has deposed that he runs a stationery shop in Nizamuddin Market. About 56 months back from now, date and month, he does not remember, police came to his shop. Police demanded adhesive tape from him which I handed over to them. He has also not supported the case of the prosecution. He was cross examined by learned Additional Public Prosecutor for State, but despite crossexamination, he has not supported the case of the prosecution.
(i) PW9 W HC Rakesh Sharma has joined the investigation with the IO on 04.03.2011. He has proved on record the disclosure statement of accused Mumtaz vide Ex. PW9/A and her personal search memo vide Ex. PW9/B, seizure memo of cricket bat vide Ex. PW9/C and seizure memo of Wagon R car bearing No. DL2CV1162 vide Ex. PW 9/D. He has also proved on record the cricket bat Ex. P1.
(j) PW10 HC Udai Veer Singh was a member of the SC No.2058/16 Page 6 of 42 Mobile Crime Team and has proved on record the photographs vide Ex. PW10/1 to Ex. PW10/12 and negatives are vide Ex. PW10/1A to vide Ex. PW10/12A respectively.
(k) PW11 SI Vijay Pal Kasana was InCharge of the Mobile Crime Team and has proved on record his report vide Ex. PW11/A.
(l) PW12 Shri Pawan Singh, Nodal Officer, Idea Cellular Ltd., is a formal witness of the prosecution. He has proved on record the Customer Application Form and other documents of mobile phone No.9911235810 in the name of Suresh Kumar vide Ex. PW12/A and Ex. PW12/B. He has also proved on record the Customer Application Form and other documents of mobile phone No.9911235810 in the name of Munan Ali vide Ex. PW12/C and Ex. PW12/D. He has also proved on record the Customer Application Form and other documents of mobile phone No.9891169467 in the name of accused Aisha Mumtaz vide Ex. PW12/E and Ex. PW12/F. He has also proved on record the Customer Application Form and other documents of mobile phone No.9911500509 in the name of Nelson Joseph vide Ex. PW SC No.2058/16 Page 7 of 42 12/G and Ex. PW12/H. He has also proved on record the Customer Application Form and other documents of mobile phone No.9911495066 in the name of Mohd. Zaki vide Ex. PW12/I and Ex. PW12/J. He has also proved on record the Customer Application Form and other documents of mobile phone No.9911488544 in the name of accused Mohd. Zaki vide Ex. PW12/K and Ex. PW12/L. He has also proved on record the Customer Application Form and other documents of mobile phone No.9891643018 in the name of Uzma Mumtaz vide Ex. PW 12/M and Ex. PW12/N. He has also proved on record call details of different mobile numbers and periods vide Ex. PW12/O and Ex. PW 12/T respectively. He has also proved on record the Certificate under Section 65B of Indian Evidence Act and call ID card vide Ex. PW12/V.
(m) PW13 Shri M.N. Vijayan, Nodal Officer, TATA Teleservices Ltd. He has proved on record the Customer Application Form and other documents of mobile phone No.9213464269 in the name of Sunder Lal vide Ex. PW13/A and Ex. PW13/B. He has also proved on record the Customer SC No.2058/16 Page 8 of 42 Application Form and other documents of mobile phone No.9213149980 in the name of Sonu vide Ex. PW13/C and Ex. PW13/D. He has also proved on record the Certificate under Section 65B of Indian Evidence Act and call ID card vide Ex. PW13/H and Ex. PW13/I respectively.
(n) PW14 HC B.D. Srinivas, duty officer, is a formal witness of the prosecution. He has proved on record the DD No.2A and 4A vide Ex. PW14/A & Ex. PW14/B respectively.
(o) PW15 Dr. Hari Prasad, Senior Resident, Department of Forensic Medicine, AIIMS, New Delhi. He has proved on record the postmortem report of deceased Abdul Rahim vide Ex. PW15/A. He has also proved on record the subsequent opinion vide Ex. PW15/B.
(p) PW16 Dr. Mohd. Faizal is another independent witness of the prosecution. He has deposed that he is running a gift shop in the name and style of Hello Point at Zakir Nagar, New Delhi. Apart from gift articles, he used to sell SIM cards at mobile phones at his shop. About two years back, date and month he does not remember, police came to him and inquired about a sim card of Idea company in the name of Mohd. Zaki was purchased from his shop or not. Police did not seize his register maintained in this regard.
SC No.2058/16 Page 9 of 42(q) PW17 Shri Rashid Hashmi is the husband of the accused Aisha Mumtaz. He is a material witness of the prosecution. He has proved on record seizure memo of mobile phones vide Ex. PW17/A and Ex. PW17/B. He has also proved on record the seizure memo of Wagon R car bearing No. DL2CV1162 and its RC vide Ex. PW17/C and Ex. PW17/D, seizure memo of recent receipts Ex. PW17/E, driving license of accused Aisha Mumtaz vide Ex. PW17/F, seizure memo of carpet and dari vide Ex. PW17/F1, prescription of doctor vide Ex. PW17/G. He has also identified the mobile phone Ex. P1, carpet and dari as Ex. P 2 and Ex. P3 respectively.
(r) PW18 Ct. Raj Kumar is a formal witness of the prosecution. He has deposed that on 14.02.2011, on the direction of the Io, he took one sealed pulanda sealed by the seal of AIIMS containing viscera of deceased from Malkhana and deposited the same in FSL, Rohini and receipt was handed over to MHC (M).
(s) PW19 Mohd. Shabbar Azam Faizi, is another independent witness of the prosecution. He is a formal witness of the prosecution. He has proved on record the mobile bill vide Ex. PW19/A as the same issued from his SC No.2058/16 Page 10 of 42 shop.
(t) PW20 SI Mahesh Kumar has joined the investigation and has proved on record the scaled site plan Ex. PW20/A and Ex. PW20/B respectively.
(u) PW21 Ct. Jaswant, is a formal witness of the prosecution. He deposed that after postmortem on the dead body of deceased, doctor handed him over a box containing viscera, blood sample of deceased containing two sealed jars. He handed over the same to SHO which were seized by the IO vide Ex. PW21/A.
(v) PW22 W/SI Kamini Gupta has joined the investigation with the IO Inspector Ram Kumar (PW33).
(w) PW23 HC Jitender Kumar is the formal witness of the prosecution. He has deposed that he took the sealed pullanda on the instructions of IO and deposited the same in FSL, Rohini and gave receipt to MHC (M) as well as to the IO.
(x) PW24 HC Ram Babu, duty officer, is a formal witness of the prosecution. He has proved on record the DD No.62B vide already Ex. PW24/A. SC No.2058/16 Page 11 of 42 (y) PW25 HC Ram Chander, MHC (M) is a formal witness of the prosecution. He has proved on record the deposition of pulandas and case property in the Malkhana vide relevant entries vide Ex. PW25/A to Ex. PW25/I. (z) PW26 Ct. Arun, is a formal witness of the prosecution. He has deposed that he was posted in Kite99, PCR Van, SouthEast and they were informed by 34 rag pickers about a person appearing dead was lying near boundary wall of Bharat Scout and Guide Building on the road of Gurdwara Damdama Saheb, Humayun Tomb. They informed accordingly to the police control room by filling up a form in this regard.
(aa) PW27 Shri R.K. Singh, Nodal Officer, Bharti Airtel Ltd., is a formal witness of the prosecution. He has proved on record the call details of mobile phone No.9810052681 in the name of Rashid Hashmi and has proved on record the certified copy vide Ex. PW27/A and Certificate under Section 65B of Indian Evidence Act. He has also proved on record Customer Application Form and other documents of above said mobile phone No.9911235810 vide Ex. PW27/B to Ex.
PW27/E.
(ab) PW28 SI Yogeshwar Singh has joined the
SC No.2058/16 Page 12 of 42
investigation with the IO Inspector Ram Kumar on
05.03.2011. He has deposed on the same lines as deposed by PW22 W /SI Kamini Gupta.
(ac) PW29 ASI Satibir Singh has joined the investigation alongwith other police officails on 03.03.2011 and has proved on record the seizure memo of mobile phone at the instance of accused Mohd. Zaki already Ex. PW7/A and has identified the same vide Ex. PW29/1 and Ex. PW29/2.
(ad) PW30 SI Ajeet Kumar has joined the investigation of this case with Ct. Abodh Kumar. He has proved on record DD No.2A vide Ex. PW30/A, seizure memo of Chaddars, polythene and clothes vide Ex. PW30/B and Ex. PW30/C, seizure memo of blood sample in gauze, earth control and blood smeared earth vide Ex. PW30/D, personal search memo of dead body videEx. PW30/E. He also proved on record application for preservation of dead body Ex. PW30/F and hue and cry notice regarding identification of dead body vide Ex. PW30/G, receipt regarding handing over the dead body to brother of deceased vide Ex. PW30/H. (ae) PW31 Ct. Abodh Kumar has joined the investigation with SI Ajeet Kumar (PW30). He has deposed on the same lines as deposed by SI Ajeet Kumar (PW30).
SC No.2058/16 Page 13 of 42(af) PW32 Dr. Subhra Kumar Paul, Scientific Officer (Chemistry), FSL, Delhi has deposed that on 02.08.2011, he received one pulanda sealed by the seal of Department of Forensic Medicine, AIIMS for examination. He opened the same and found viscera of a person. After examination of same, he prepared his report vide Ex. PW32/A. (ag) PW33 Retired ACP Ram Kumar is the IO of the case who carried out investigation of this case at various states and recorded the statement of witnesses. He has proved on record endorsement on DD No.21 Ex. PW33/A, site plan Ex. PW33/B, statement of PW Hussain Ahmad Ex. PW33/C, inquest papers vide Ex. PW33/D, application for postmortem Ex. PW33/E, his application given to service providers of mobile phones Ex. PW33/F to Ex. PW33/J, police custody remand application of accused Mohammad Zaki Ex. PW33/K, application for collecting FSL result vide Ex. PW33/L. (ah) PW34 Dr. Seema Nain, Senior Scientific Officer (Biology / DNA), FSL, Rohini. She has proved on record biological and serological vide Ex. PW34/A. (ai) PW35 HC Sobha who is a formal witness of the SC No.2058/16 Page 14 of 42 prosecution. She has proved on record the copy of FIR No.450/09 vide Ex. PW35/A. (aj) PW36 Shri Indresh Kumar Mishra, Assistant Director (Biology), FSL, Rohini. He has proved on record the request letter of SHO for inspection of spot of crime and car i.e. Maruti Wagon R No. DL2CV1162 vide Ex. PW36/A and his report Ex. PW36/B. Thereafter, prosecution evidence was closed.
5. On conclusion of prosecution evidence, statement of accused persons under section 313 Cr.P.C. was recorded, wherein all incriminating material/circumstances appearing against accused persons was put to them, to which they claimed innocence and alleged false implication.
6. The accused persons chose to lead evidence in their defence.
They have examined three defence witnesses in support of their case. The details of which are given as under :
(a) DW1 Ms. Uzma has deposed that accused Aisha is her younger sister. She was residing alongwith her husband Rashid Hashmi and their son as a tenant in her house on first floor at A15, Nizamuddin West rear portion, Delhi. They were paying rent of Rs.12,000/ to her. He had given a portion of her house on rent to SC No.2058/16 Page 15 of 42 Rashid Hashmi for which a Lease Agreement was executed in 2007 which was for 11 months vide Ex. DW1/A. She further deposed that her sister Aisha had injured her thigh as portion of the railing had hit her and she used to go for dressing to Bansal Hospital daily. She further deposed that on 23.11.10 also, she had visited Bansal Hospital for dressing.
(b) DW2 Shri Shiv Kumar, HR (Manager), Bansal Hospital has deposed that as per record of the hospital, no such patient with the Bill No.1011CA/46251 dated 23.09.2010 was attended or treated in the hospital on the date mentioned in the bill.
(c) DW3 Shri Yashpal Sharma, Public Relation Officer, Delhi High Court Bar Association, Delhi. He has deposed that he could locate only the membership form of Shri Rashid Hashmi in the record of office. However, he has brought the original vide Ex. DW 3/1.
Thereafter, defence evidence was closed.
7. I have heard and considered the submissions advanced by Shri Mayank Tripathi, learned Additional Public Prosecutor for State, Shri Jitender Sethi and Shri Rajesh Kaushik, learned defence counsel for accused persons, Shri Nitender Sharma, learned counsel for complainant and carefully perused the entire material on record including the testimony of prosecution witnesses and the documents proved by them during their deposition.
SC No.2058/16 Page 16 of 428. In brief, the prosecution case is that:
(a) On 24.11.2010 vide DD No. 2A at 8.20 AM, an information was received that a dead body had been recovered near Humayun Tomb, Damdama Sahib Gurudwara and on that basis PW30 SI Ajeet Kumar had reached at the spot and after sometime SHO Ram Kumar also reached at the spot and found that one dead body was wrapped in two bed sheets along with a polythene and there was a lot of blood near the head and there was a polythene bag just below the head of the dead body and the hands and feet of the dead body were tied with the help of the tape. On the basis of this, the present FIR was registered under Section 302/201 IPC.
(b) On 26.11.2010, PW1, Mohd. Isa, the brother of Abdul Rahim had identified the body of his brother on the basis of hue and cry notice and he mentioned that he lodged a DD No. 62 dated 24.11.2010 at 6.30 PM at P.S. BH Rao wherein it was mentioned that the deceased Abdul Rahim had run away from house without disclosing anything to anybody at about 9.00 AM on 23.11.2010.
(c) The call details of Mobile Phone No. 9213464269 were taken out by the I.O. and it was revealed that he was in contact with one Mobile No. 9891169467 and as per the CDRs it was in the name of accused Aisha and two other mobile phones numbers were also searched as 9911488544 and 9911495066 which were in the name SC No.2058/16 Page 17 of 42 of Mohd. Zaki and as per PW33 Inspector Ram Kumar, the mobile phone of accused Aisha was in contact with deceased Abdul Rahim on 23.11.2010.
(d) On 08.12.2010, accused Aisha was interrogated by PW 33/IO and one paper slip which is a medical prescription mentioning two mobile phones along with word "Dushman" in between was alleged to have been recovered from her purse and the same was seized along with Samsung Mobile Phone of accused Aisha.
(e) On 28.02.2011, accused Mohd. Zaki was arrested as being produced from a jail from Bareilly wherein he was confined in another case and he was arrested in the present case; his disclosure statement was recorded on 02.03.2011 and on the said date, he got recovered two Sim cards from House No. A15, Hazrat Nizammudin, New Delhi and thereafter on 03.03.2011 he took the police party at his house at Bareilly and got recovered two mobile phones from there.
(f) On 04.03.2011, PW33 then arrested accused Aisha from premises bearing Shop No. 2, Main Market Nizammudin, New Delhi and after taking her to the police station, her disclosure statement was recorded and thereafter she got recovered one small cricket bat from her house, which was seized by the police.
SC No.2058/16 Page 18 of 42(g) On 05.03.2011, PW33 called the FSL Team at the above said premises and on the advice of the said team, he seized one carpet and Dari from the said house and WagonR car belonging to PW17 Rashid Hashmi was also seized.
(h) DW1, Ms Uzma, was examined to the effect that the accused Aisha along with her sister was running a boutique shop while it is admitted case of the prosecution that Mohd. Zaki was running a workshop of fabrication of clothes and was having a shop in Zakir Nagar.
9. Learned defence counsel for accused persons has argued that the prosecution has miserably failed to bring home any of the offences under Section 302/201 read with Section 34 IPC against any of the accused persons.
10. Learned Additional Public Prosecutor for State as well as learned counsel for complainant have submitted that there are minor contradictions in the testimony of the prosecution witnesses and the same are not fatal to the case of prosecution.
11. There is no eye witness in the case. Entire case of prosecution is based on circumstantial evidence. It is a wellsettled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests:(1) The circumstances from SC No.2058/16 Page 19 of 42 which an inference of guilt is sought to be drawn, must be cogently and firmly established;(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. State of U.P. v. Satish, (2005) 3 SCC 114, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.
12. The prosecution has relied on call details of mobile phone which is stated to be used by deceased. It is noticed that in his examination in chief, IO/PW33, stated that the phone number of the mobile of the deceased was 92134464269 and from analysis of call details, he came to know that it was active on 23.11.2010 and used in the area of Nizamuddin till the last. He also also deposed that there were several calls continuously from and to a number 9891169467 which was belonging to accused Aisha. PW33, IO/Retd. ACP Ram Kumar.also deposed that location of both of these phones belonging to accused was in the area of Nizamuddin. PW1 has also deposed the mobile number of deceased to be SC No.2058/16 Page 20 of 42 9213464269.
13. However it is noticed that the prosecution has not examined any witness to prove the CDRs of the deceased but the witness from service provider proved CDRs of Mobile bearing No. 9213464269. PW13, Shri M.N. Vijayan, Nodal Officer, TATA Teleservices Ltd. proved on record the Customer Application Form and other documents of mobile phone No.9213464269 in the name of Sunder Lal vide Ex. PW13/A and Ex. PW13/B. The said number was not in the name of deceased Abdul Rahim but was in the name of one Sunder Lal as per PW13 who had stated that the documents submitted along with CAF were in fact counterchecked by the company on the said address and the customer to whom the sim cards were issued by the dealers of the company. PW33, IO/Retd. ACP Ram Kumar has also admitted in his cross examination that he had interrogated the said Sunder Lal at the said address but he had denied of having any such mobile connection in his name. He stated that he did not record statement of Sunder Lal in this regard nor has he been cited as a witness to prove this.
14. It is further noticed that the IMEI number of the mobile phone recovered from accused Aisha and that of Mobile bearing No. 9213464269 are different in the CDR and in the seizure memos. This causes dent on the story of prosecution as it shows that the CDRs filed by the prosecution are not of the mobile phone recovered SC No.2058/16 Page 21 of 42 from Aisha. No mobile phone pertaining to Mobile No. 9213464269 or its SIM Card has been recovered, in absence of that no reliance can be placed on the CDRs. This the prosecution has been unable to show that the mobile phone in fact belonged to deceased Abdul Rahim. In the matter of Naveen Kumar Verma Versus State, Govt. of NCT of Delhi, Crl. Appeal No. 249/2018 and Rohit Dhingra & Anr. Versus State, reported in 2012(2) JCC 820, Hon'ble High Court of Delhi held that in such like situation it cannot be said that the mobile phone bearing No. 9213464269 belonged to the deceased. Thus mobile phone of the deceased bearing such number has not been recovered in the present case nor has any investigation by PW30 SI Ajeet Kumar or PW33 Inspector Ram Kumar been conducted. There is no mention about this aspect in the charge sheet as to where the mobile phone of the deceased had gone.
15. All this casts doubt upon the story of prosecution that the mobile phone No.9213464269 belonged to deceased Abdul Rahim because PW33, IO Inspector Ram Kumar has admitted that the application Ex.PW33/K1 was moved by him and the same mentions the mobile number of deceased as 9213424669 and not 9213464269. Thus prosecution has miserably failed to establish the mobile phone number of deceased Abdul Rahim particularly when the mobile phone 9213424669 admittedly belongs to one Sunder Lal.
SC No.2058/16 Page 22 of 4216. During the course of arguments, learned defence counsel for accused persons invited attention of the court to the material on record and it was noticed that there are two DD entries of 62B with different contents on record. DD No. 62B which was alleged to have been a missing report lodged on 24.11.2010 by PW1, the brother of deceased. Learned defence counsel for accused persons has rightly argued that investigation since very inception was shrouded in mystery, biased and tainted because the authenticity of DD No. 62B has also fallen in doubt because there are two DD entries of 62B with different contents on record. In one of the DD entries it is not mentioned that the deceased has run away from the house but only mentions that he has gone away from the house, while one DD entry mentions that he was of a stout body (Hatta katta sharer), but in the other DD entry it is mentioned that the deceased was of slim body (Sharir charhara patla), therefore, DD entries bearing same number i.e. 62B having different contents on material aspects shows contradictions and thus no reliance can be placed on DD entry No. 62B.
17. During his crossexamination, PW1 Mohd. Isa, who is the brother of deceased, stated that he was staying away from his brother (since deceased) after his marriage i.e. for the last two years since the date of incident at Moti Nagar. He further stated that the address of deceased is address of his parents and PW1 resided with them four days in a week. Learned defence counsel for SC No.2058/16 Page 23 of 42 accused persons argued that it is not acceptable as it is against the normal prudence of a person that he would stay with his wife for three days in a week and four days with his parents. He also argued that it cannot be said that PW1 Mohd. Isa was having any intimate information about the deceased particularly when his other three brothers who were residing with deceased Abdul Rahim had not come forward to lodge any report in this regard nor had given any statement to the police.
18. PW33, IO has stated that CDRs of mobile Phone No. 9213464269 were taken out by him and it was revealed that deceased was in contact with one Mobile No. 9891169467 on 23.11.2010 and as per the CDRs it was in the name of accused Aisha 23.11.2010. However it is noticed that there is no corelation between the location chart proved on record and the location mentioned in the CDR and therefore, it is not established on record conclusively that the location of the mobile phone bearing 92134464269 was in the area of Hazrat Nizammudin, New Delhi.
19. PW33 has also deposed that mobile phone of accused Aisha and mobile phones of Mohd. Zaki bearing No. 9911488544 and 9911495066 were in contact with each other on the date of incident and were in the area of Nizamuddin and Zakir Nagar during the period 23.11.2010. The same has been proved by CDRs also proved by PW12 Shri Pawan Singh, Nodal Officer, Idea Cellular SC No.2058/16 Page 24 of 42 Ltd. however this circumstance in itself does not connect either of the accused persons to the death of Abdul Rahim because it is admitted case of the prosecution that both Aisha and Mohd. Zaki were residing in the area of Hazrat Nizammudin and accused Mohd. Zaki was having his workshop of fabrication of clothes in the area of Zakir Nagar.
20. PW33 Inspector Ram Kumar has admitted that he was having call details of the above said four mobiles i.e. Mobile No. 9213464269, Mobile No. 9891169467, Mobile No. 9911488544 and Mobile No. 9911495066 by 26.11.2010 and he has admitted in his cross examination dated 10.12.2014 "since there was no other evidence against the accused Aisha except the call details, as such I had not arrested accused Aisha on that day" i.e. 08.12.2010. He had also admitted that "though he has arrested Mohd. Zaki on 28.02.2011 but his disclosure statement could be only recorded on 02.03.2011 i.e. after 3 days" and he has admitted at page 5 of cross examination that "accused had not made any disclosure statement for two days as he was denying his involvement in the present case". To the same effect, he has also admitted that "he has interrogated accused Aisha on 04.03.2011 at her residence but has not recorded her disclosure statement because she has denied her involvement in the present case" and it was only after she was taken to police station Nizammudin, her disclosure statement was recorded there. This admission on the part of the PW33, IO casts SC No.2058/16 Page 25 of 42 doubts on the disclosure statements of accused persons to have been made voluntarily and therefore no reliance can be placed upon them. Similar what the observations of Hon'ble High Court of Delhi in the matter of Bhagat Bahadur vs. State, 1996 JCC 460.
21. Learned defence counsel for accused persons has argued that though it is stated by PW33 Inspector Ram Kumar that they had gone to the house of accused Aisha on 08.12.2010 as she was a suspect in the present case, still no house search was taken by the police at that time and he only seized one paper slip which is a medical prescription of Dr. Anil Sabharwal mentioning two mobile phones Nos. 9911235810 and 9289776479 with a word "dushman" in between. The paper slip is Ex.PW17/G. He also argued that as per PW12, mobile phone bearing No. 9911235810 belongs to one Suresh Kumar S/o Subhash Singh R/o 168, Gali No. 8, Zakir Nagar, New Delhi and also in the name of one Munnan Ali R/o 151 A, Zafrabad, Seelampur, Delhi. No investigations by the I.O. have been conducted in this regard and there is no mention in the charge sheet as to whom phone no. 9289776479 belongs. No statement of accused Aisha or her husband PW17 was recorded on 08.12.2010 about the said recovery of paper slip from her possession. I concur with learned defence counsel that there have been lapses on the part of investigating agency. Thus prosecution has failed to connect even this circumstance in connecting either of the accused Aisha or Mohd. Zaki to the commission of offence.
SC No.2058/16 Page 26 of 4222. Further it cannot be lost sight of that in the seizure memo Ex.PW17/A it is mentioned that Aisha told that these numbers and word `dushman' was written by deceased Abdul Rahim as he received threatening calls from these mobile numbers, inter alia, meaning thereby that the deceased was receiving threatening calls from the above said two mobile numbers, but PW33 Inspector Ram Kumar, I.O. has not conducted any investigation in respect of these two numbers. Thus it cannot be said that the deceased was not having any threat other than accused Aisha. Further he himself told her that he is receiving threatening calls from these two numbers; casting doubts on the motive alleged by the prosecution that accused Aisha wanted to eliminate deceased Abdul Rahim.
23. I also find force in the submissions of learned defence counsel that though it is stated in the statement of PW9 W/HC Rakesh Kumari and PW33 Inspector Ram Kumar that there are number of shops on the ground floor including bank and an office of publishing house namely "Nai Duniya", but it is surprising that a body being stuffed in clothes was not seen by anybody being taken from second floor of the said premises transported in a Wagon Car and then was taken for its disposal near Gurudwara Damdama Sahib. Further the Wagon Car which was seized in the present case was not got inspected from the FSL Team to find out whether there was any trace of blood or any other incriminating evidence which further SC No.2058/16 Page 27 of 42 causes dent on the prosecution case.
24. I also concur with learned defence counsel that tampering of the case property cannot be ruled out. It is admitted by PW33 Inspector Ram Kumar in his statement that he has sent the sample parcels to FSL only on 29.04.2011 though the seizure of bed sheets, plastic bag, etc. was affected on 24.11.2010 and seizure of carpet and dari was affected on 05.03.2011.
25. As per the FSL report, no blood group could be detected on the clothes worn by the deceased, while there was a blood stain on bed sheet(s), polythene bag and carpet and dari as "O" group. This sending of the sample parcels after about five months of its seizure and sending of carpet & dari after more than 1½ months of its seizure particularly when the seal after use was kept by the I.O. with himself and not deposited in the malkhana shows that tampering of the case property cannot be ruled out. Similar were the observations of Hon'ble Supreme Court in the matter titled Balbir Singh Vs. State of Punjab, AIR 1991 SC page 31, para 11. Besides this, it is admitted by PW34 that the "sample parcels should have been kept properly with air dried, should be kept under shade (not under sun), it should be kept in aerated and it should be kept at freezing condition on 4oC. It should not be packed in air tight container to properly give the blood group of a sample". Admittedly, none of these conditions were existing in the malkhana nor the sample SC No.2058/16 Page 28 of 42 parcels were taken with these precautions, hence, it is also not tenable that the blood group could be detected on the articles / clothes parcels including the carpet and dari after about five months of seizure / occurrence. Such kind of recoveries have been held to be extremely weak evidence as per the decision's reported in Surjit Singh vs. State of Punjab, AIR 1977 SC 1753, para 2. It has also been mentioned in Lyon's Medical Jurisprudence & Toxicology at page 657 as under:
"In majority of the cases, the material is received in the laboratory after several days of the incidence. The delay results in deterioration of the quality of blood on the exhibits and makes the serologist's job difficult. A number of factors may affect the quality of blood on the exhibits. There are prolonged exposure to sunlight, high temperature, humidity, bacterial contamination, rust, washing, chemicals, detergents and aging. There is greater likelihood of bacterial contaminations and false results on examination if the exhibit had been kept and stored damp than if it had been dried by short exposure to sunline".
26. Learned defence counsel for accused persons has argued that though it is stated by PW33 Inspector Ram Kumar that he had visited the house of Mohd. Zaki at A15, Nizammudin, New Delhi before 28.02.2011 for his arrest, but he could not find him out there SC No.2058/16 Page 29 of 42 and he was told about this fact that Mohd. Zaki has gone to Barelli, by one chowkidar in the building, while it is admitted case of the prosecution based on the statement of PW30 SI Ajeet Kumar and PW33 Insp. Ram Kumar that the real brother of Mohd. Zaki was also residing at A15, Nizammudin and even on 02.03.2011, the wife of his elder brother Naseem was though present but was not joined in the investigation. No statement of the said chowkidar was recorded nor even his name was known to the I.O. PW33, therefore, his entire story of visiting the said house two - three times in search of accused Mohd. Zaki becomes doubtful. I concur with the said submission of learned defence counsel for accused persons.
27. Similarly the deposition of PW33 that he had also visited the house at Barelli for the search of accused Mohd. Zaki is not supported by any evidence nor in this regard prosecutio had produced any document on record that any team of Delhi police from Delhi had visited at which place at Barelli on which day and at which time. Even otherwise, mere absconding in itself is not an evidence of guilty mind in absence of any other incriminating evidence as the person absconds for various reasons; one of them could be to remain away from the police when he comes to know that the police was seeking him and a suspicion has been there of him as observed in the matter of Bhagat Bahadur vs. State, 1996 JCC 460 by Hon'ble High Court of Delhi.
SC No.2058/16 Page 30 of 4228. It is further noticed that Mohd. Zaki was arrested on 28.02.2011, but only on 02.03.2011 two sim cards alleged to have been recovered from a room at House No. A15, Nizammudin. However, admittedly no public witness has been associated at that time and it is stated that one lady who was present in the house being the wife of the brother of the accused Mohd. Zaki and she refused to join the proceedings but no such mention is there on the seizure memo, nor any notice was served under Section 187 Cr.P.C., even the name of the said lady has not been recorded or mentioned in the charge sheet, hence, the said recovery of two sim cards at the instance of Mohd. Zaki becomes as has been held by the Hon'ble High Court of Delhi in case titled Zafar @ Raju Vs. State, 2013 (2) JCC 1175.
29. Further with regard to the recovery of two mobile phones at the instance of accused Mohd. Zaki from his house at Bareli, the seizure memo Ex.PW7/A which was alleged to be with regard to seizing of two mobile phones of Nokia Model 2690 and Nokia Model 1600 is highly doubtful as PW7 Shakil Ahmed has not supported the prosecution case with regard to alleged recovery of mobile phones and also it is apparently clear that portion `X to X' on Ex.PW7/A is written later on where it is mentioned that "two mobile phones were seized and then sealed with the seal of AK", inter alia, meaning thereby that two mobile phones alleged to have been recovered on 03.03.2011 were not sealed at that time but later on they were sealed and hence, tampering of the case property cannot SC No.2058/16 Page 31 of 42 be ruled out. Learned defence counsel for accused persons has rightly argued that the requirement of Section 100 and Section 165 Cr.P.C. has not been complied with in this case and therefore, reliance cannot be placed on recovery of the above said two mobile phones to show as if these were the mobile phones which were got recovered from his house at Bareli as held in the matter of Zafar @ Raju Vs. State, 2013 (2) JCC 1175 on similar facts.
30. Even otherwise, seizure memo of the two mobile phones alleged to have been recovered from Barelli at the instance of Mohd. Zaki shows that mobile Make Nokia 2690 bears IMEI No. 353754047559930 and another Mobile make Nokia 1600 bears IMEI No. 356977019714673, however, the CDR of these two mobile phone numbers i.e. 9911495066 shows the IMEI No. as 353740020077840 and 352308040547030, while another IMEI No. is shows as 356977019714670, hence the IMEIs so mentioned in the CDRs produced by the prosecution are quite different from the IMEI numbers mentioned in the seizure memo Ex.PW17/A. Similarly the IMEI No. of the mobile phone of accused Aisha which is mentioned in the seizure memo Ex.PW17/B as 352308040547037, while as per the CDR the IMEI No. 352308040547030 which is different from the IMEI shown in the seizure memo Ex.PW17/B. These discrepancies create a serious doubt about the use of mobile phone so recovered from both the accused persons and no investigation in this regard has been SC No.2058/16 Page 32 of 42 conducted by PW30 SI Ajeet Kumar or PW33 Inspector Ram Kumar.
31. It is also noticed that though in the disclosure statement recorded of accused Mohd. Zaki, it is mentioned that he can get those clothes recovered which he was wearing at the time of incident, but no such clothes have been seized in the present case which further falsifies the case of the prosecution, nor any such clothes were seized from accused Aisha and therefore, no investigation was conducted by PW33 in this regard and this clearly shows that the lapses on the part of investigation rendered by PW 33 Inspector Ram Kumar.
32. As per the prosecution case, on 08.12.2010, accused Aisha was interrogated by I.O. PW33 Insp. Ram Kumar along with PW30 SI Ajeet Kumar and it is stated by PW33 that she was interrogated about the murder of Abdul Rahim but "she has denied her involvement in the murder of Abdul Rahim and I have believed the version of accused Aisha at that time". He has also admitted that "he had not searched the said premises i.e. Shop No. 2, Main Market, Hazrat Nizammudin, New Delhi on that day". PW33 has also stated that he was suspecting the involvement of accused Aisha in the murder of Abdul Rahim. As per section 114 (b) of Indain Evidence Act, it would not be the conduct of a prudent person to keep small cricket bat at the said alleged place of incident SC No.2058/16 Page 33 of 42 knowing the fact that the police is suspecting the involvement of the accused in that case and the recovery of the alleged cricket bat was stated to be on 04.03.2011 i.e. after about more than four months of the occurrence. Reference in this regard is made to Devi Prasad Sharma Vs. State, 1996 (61) Delhi Law Times 678.
33. PW33, IO, has admitted that he had not joined any independent witness from the shop situated on the ground floor of the said building including the bank which was also functioning on the ground floor and the occupants of grocery shop and there was an office of one publishing house in the name of Nai Duniya in the said premises. The I.O. has also admitted that he has not joined any witness in the seizure proceedings. On the contrary, woman HC Rakesh Kumari who was alleged to have been present on 04.03.2011 had stated that the sister of accused Aisha was called at the time of seizure proceedings and all the proceedings were done before her but she was not made to sign on any of the documents in her presence nor her statement was recorded though interrogated by the I.O. Except PW17, Rashid Hashmi, husband of the accused Aisha was joined but even the seizure memo Ex.PW9/C does not bear his signatures and it is admitted by PW33 that the words written from point `X' to `X' is in different ink and with different pen, inter alia, meaning thereby that the allegedly recovery of cricket bat is totally doubtful and manipulation cannot be ruled out with regard to the sealing of the said bat with the seal of RK, meaning thereby SC No.2058/16 Page 34 of 42 that the said bat allegedly recovered on 04.03.2011 was never sealed at the spot and therefore, tampering of the case property in this case cannot be ruled out as the Ex.PW9/C is later on fabricated to show as if the alleged cricket bat was sealed at the spot.
34. It is admitted by PW33 that no site plan was prepared on 04.03.2011 of the place from where the alleged cricket bat was recovered. PW9 had stated that the accused Aisha was arrested from her house itself and she has not disclosed about the said cricket bat when she was arrested and interrogated at her house. This fact is contrary to what has been stated by PW33 Inspector Ram Kumar and PW30 SI Ajeet Kumar who stated that the accused Aisha was arrested later in the police station where she made a disclosure statement then they again came back to the premises bearing Shop No. 2, Main Market, Nizammudin, New Delhi and the alleged cricket bat was recovered. A bare perusal of Ex.PW9/C also does not show that it contains any blood stain(s) on it. No description about the size or identification mark is mentioned in the seizure memo Ex.PW9/C nor is there any sketch of the said cricket bat alleged to have been prepared by the I.O. PW33. All these factors taken cumulative together cast doubts about recovery of the cricket bat from accused Aisha in the alleged manner.
35. As per the story of prosecution, a disclosure of Mohd. Zaki was SC No.2058/16 Page 35 of 42 recorded on 02.03.2011 wherein he had mentioned about the use of weapon of offence as cricket bat which was lying in the house of accused Aisha, but both PW30 and PW33 have admitted that they had not recovered any cricket bat on 04.03.2011 at the first instance and it was only recovered after accused Aisha was taken to police station, her disclosure was recorded and after again coming to the said premises, the bat was recovered. Thus, this story of recovery of cricket bat is totally shrouded of mystery and doubtful.
36. Even assuming the case of the prosecution to be gospel truth for recovery of cricket bat on 04.03.2011 and recovery of carpet and dari on 05.03.2011, however, the same could not be attributed to the present applicant Aisha as it is admitted case of the prosecution as also admitted by PW17, Rashid Hashmi, that the said premises was in joint possession and was not in exclusive possession of accused Aisha, hence, the above said recovery(ies) therefore, otherwise cannot be sufficient evidence to link the applicant with the commission of offence. (Bhagat Bahadur vs. State, 1996 JCC
460).
37. Further, no investigation was carried out as to whom the two bed sheets, the plastic cover in which the dead body was wrapped and the tapes with which the hands were tied belonged to or purchased. PW33, IO/Inspector Ram Kumar has not got the said bed sheets, plastic covers and other articles recovered with the body from PW SC No.2058/16 Page 36 of 42 17 Rashid Hashmi to prove on record that it was belonging to the family of Rashid Hashmi. PW8 Abdul Asif was examined who had denied that any adhesive tape was purchased by Mohd. Zaki from his shop,. In absence of these and particularly the fact that nobody had seen in the entire building of having taken the dead body from second floor to ground floor and then was transported body to Wagon Car shows that prosecution failed to establish its case beyond reasonable doubt. PW33 has also recorded statement of PW4 Ahmed Farhan to show that he was told by deceased Abdul Rahim that he was going to the area of Nizammudin but this witness has largely improved his statement in the court to his earlier statement which was recorded under Section 161 Cr.P.C. for which he has been duly confronted and and hence, no reliance can be placed on it. Yudhister Vs. State of M.P., 1971, CAR (SC), page
247.
38. As per the prosecution case, on 05.03.2011, PW30 SI Ajeet Kumar along with PW33, I.O. Inspector Ram Kumar, PW28 SI Yogeshwar Singh and FSL Team went to the shop No. 2, Main Market, Nizammudin and it was found locked and later on the lock was opened by PW17 Rashid Hashmi after he was called there. It is admitted case of the prosecution that none of the accused persons was present at the time of the alleged recovery of carpet and Dari which was affected vide Memo Ex.PW17/1. It is admitted by all these witnesses that they had not found any blood stain in the SC No.2058/16 Page 37 of 42 house on 04.03.2011 when the accused Aisha was arrested and even on the said seizure memo, there is no such mention that even the carpet or dari were found to be having blood stain(s). The said seizure memo also does not bear any signatures of any FSL team who was alleged to have visited the spot on 05.03.2011 nor PW33 had recorded any statement of any witness of FSL Team.
39. The mere fact that the memo is signed by PW17 and PW17 deposed that there was recovery of carpet and dari on 05.03.2011 from his house, the conduct of PW17 is highly doubtful and he is not a trustworthy witness as it is apparent from his statement that he wanted to get rid of his wife i.e. accused Aisha and even had divorced her by sending a notice Ex.PW17/DA. He has even improved his statement by deposing false facts for which he has been duly confronted with his statement under Section 161 Cr.P.C. He has also falsely stated in his statement that on 05.03.2011, both the accused accompanied the police at the time of seizure of carpet and dari which is totally contrary to the facts on record and also against the statements of PW30 SI Ajeet Kumar and PW33 Inspector Ram Kumar. Moreover, a bare perusal of the request letter Ex.PW36/A shows that the letter which was dispatched by the I.O. PW33 on 05.03.2011 was received in the office of FSL on 07.03.2011 vide Diary. No. 2165 dated 07.03.2011 and even the spot was inspected as mentioned in the said letter on the top of it as FSL2011/SOC021 which is dated 07.03.2011. Hence, the version SC No.2058/16 Page 38 of 42 of PW33 and PW36 that they inspected the spot on 05.03.2011 and thereafter the Dari and Carpet were seized from the house cannot be relied upon as the same are contrary to Ex.PW36/A.
40. Further on 05.03.2011 vide Ex.PW17/C, Rashid Hashmi, PW 17, had handed over a driving license of Aisha along with RC of the Car in the name of Rashid Hashmi and three rent receipts to I.O. PW33 Inspector Ram Kumar in the presence of two witnesses namely PW30 SI Ajeet Kumar and PW28 SI Yogeshwar Singh. All these witnesses when examined in the court had categorically stated that PW17 Rashid Hashmi had handed over the documents mentioned in Ex.PW17/C at his shop No. 2, 2nd Floor, Main Market, Nizammudin, New Delhi on 05.03.2011. However, a bare perusal of the Memo Ex.PW17/C categorically shows that Rashid Hashmi had gone himself to the police station on 05.03.2011 and handed over these documents there in the police station, though this fact is denied by PW17 and PW28 and PW30 which clearly shows that it cannot be ruled out that all the documents were later on manipulated and fabricated to involve the accused persons in the present case. It is also noticed that the date of 05.03.2011 on Ex.PW17/C is later on altered / changed.
41. PW17 Rashid Hashmi had stated that the car was being used to be driven by his wife i.e. accused Aisha and he used to go to his place of work including his chamber either by going with his brother SC No.2058/16 Page 39 of 42 or through bus to the court though the said vehicle is in the name of PW17 Rashid Hashmi. Though he has stated that he was not driving the vehicle as he was not knowing the driving, but this fact was not disclosed by him in his statement recorded under Section 161 Cr.P.C. He has also admitted (page 2) in the court in his examination in chief that "I have brought the aforesaid car which is on superdari with me", inter alia, meaning thereby that he himself has brought the said car in the court and therefore, he has given a blatant lie that he was not driving the above said car. Cumulative reading the statements of all these witnesses i.e PW17 Rashid Hashmi, PW28 Yogeshwar Singh and PW30 SI Ajeet Kumar, shows that the conduct of PW17 is suspicious, dubious and not free from doubts.
42. Further PW22 W/Ct. Kamini Gupta who has gone there on 08.12.2010 has admitted in her cross examination "aforesaid premises was a shop and not a residential house". No rent agreement has been produced in the present case to show that it was a rented premises given for residential purposes. Only few rent receipts were produced by PW5, Naveen Gandhi. It is admitted by PW17 Rashid Hashmi that earlier the said shop No.2, Main Market, Nizammudin was used by his uncle as his office. He has also admitted that as per ICard of Delhi High Court Bar Council Association, his office address was Shop No.2, Second Floor, Nizammudin West, Main Market, Nizammudin, New Delhi and his I SC No.2058/16 Page 40 of 42 card shows his residential address as 2158, Ahta Kale Sahim, Bali Maran, Delhi. It is also admitted by PW33 Inspector Ram Kumar that the said building was primarily for use of commercial premises and there are number of shops on the ground floor and except this shop No.2, there was no other residential house. Therefore, it does not seem unbelievable that this premises was an office which was being used by PW17 Rashid Hashmi, but he has falsely stated that it was used as a residential premises by PW17 alongwith his wife Aisha.
43. It is a cardinal principle of the criminal jurisprudence that if the investigation is found to be lop sided, biased and tainted, the benefit goes to the accused as held in the matter of 1976, Chandigarh Law Reporter, Balwant Singh Vs. Sate of Delhi; 1994, SCC (Crl.), State of A.P. Vs. Punati Ramulu and Ors. and Crl. Appeal No. 1068/06 decided on 15.12.2011.
44. In view of the doubtful features and other infirmities in the prosecution evidence as discussed above, the prosecution has miserably failed to establish that the two accused persons or any of them caused death of Abdul Rahim and thus accused persons namely Mohd. Zaki and Aisha Mumtaz are acquitted of the charges framed against them under sections 302 IPC.
45. Prosecution has not brought on record any evidence to prove SC No.2058/16 Page 41 of 42 beyond reasonable doubt that the two accused persons indulged in any conspiracy much less criminal conspiracy to cause the death of Abdul Rahim and thus both the accused persons namely Mohd. Zaki and Aisha Mumtaz are acquitted of the charge framed under section 120B IPC framed against them.
46. Prosecution has also not brought on record any evidence to prove beyond reasonable doubt that the two accused persons or any of them caused disappearance of evidence of offence, or giving false information to screen offender and thus both the accused persons namely Mohd. Zaki and Aisha Mumtaz are acquitted of the charge framed under section 201 IPC framed against them.
47. File be consigned to Record Room.
Announced in the open (DR.NEERA BHARIHOKE)
court today i.e.15.01.19 Addl. Sessions Judge06
SouthEast, Saket Courts, New Delhi
Digitally
signed by
NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
2019.01.16
11:13:43
+0530
SC No.2058/16 Page 42 of 42