Delhi District Court
State vs (1) Mohd. Khairul @ Arman on 20 October, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 124/2012
Unique Case ID No. 02404R0305212012
State Vs (1) Mohd. Khairul @ Arman
S/o Mohd. Abdul
Vegabond Jakhira, Delhi
Also at: Vill. Chandni Mahal,
PS Digoli, Distt. Khulna,
Bangladesh
(Convicted)
(2) Ms. Parveen
W/o Mohd. Khairul
R/o Vill. Chandni Mahal,
PS Digoli, Distt. Khulna,
Bangladesh
(Absconding)
FIR No.: 214/2011
Police Station: Bharat Nagar
Under Sections: 302/34 Indian Penal Code
Date of committal to Session Court: 27.11.2012
Date on which orders were reserved: 1.10.2014
Date on which judgment pronounced:9.10.2014
JUDGMENT:
(1) As per the allegations, twothree days before 19.10.2011 at E70, Second Floor Room, JJ Colony, Wazirpur, Delhi the accused Mohd. Khairul St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 1 @ Arman along with Praveen and Joshim (both not arrested) in furtherance of their common intention committed murder of Abdul Sattar. Further, it has been alleged that on 1.8.2012 at Delhi the accused Mohd. Khairul being the Bangladeshi National was found in India without any valid documents. BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 20.10.2011 at about 4:47 PM an information was received at Police Station Bharat Nagar that a dead body was lying at E70, Wazirpur, JJ Colony, Delhi pursuant to which DD No. 22A was lodged and SI Sandeep Kumar along with Ct. Dharmender reached the spot where they met the complainant Radha wife of Bhupati who informed him that dead body was lying on the second floor. The police then reached the second floor and found that one dead body of male aged about 2527 years lying on the floor on a blanket with blood oozing out from the head and injuries marks on head and back. The body was in a putrefying condition with skin pealing off and foul smell was emanating from the same whereas the articles in the room were found scattered. SI Sandeep preserved the scene of crime and informed the Crime Team after which the SHO and the Crime Team came and inspected the spot. SI Sandeep then recorded the statement of Radha W/o Bhupati who had identified the dead body as that of the tenant Abdul Sattar who had been residing in the premises for the last four to five months and was residing there along with two other males and one lady with a female child. On the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 2 basis of the statement of Smt. Radha the present case was registered and the investigations were handed over to Inspector Brij Pal Singh. From the spot two two empty bottles of beer (Hayward's 5000) which were lying in the NorthEast side of the room were taken into possession. The Investigating Officer also took into possession the lock broken by Smt. Radha. On 21.10.2011 the inquest proceedings were completed and the postmortem examination of the deceased was conducted.
(3) During investigations on 02.08.2012 the subsequent Investigating Officer Inspector Rajender Prashad received information from SI Ravinder of AATS North District, Daya Basti regarding the arrest of Mohd. Khairul pursuant to which he along with ASI Dev Raj, Ct. Kuldeep reached the office of the AATS Daya Basti and collected the copies of the arrest memo, personal search, disclosure statement, DD entry and Kalandara. Thereafter the accused Mohd. Khairul was arrested in the present case, his disclosure statement was recorded and his two day's Police Custody Remand was obtained. Pursuant to his disclosure statement the accused led the police team to the spot of the incident and then to the slip/tand on the staircase above the second floor where a large quantity of junk was lying and he then got one darati recovered from under the junk which was in the shape of a sickle. The said darati was then taken into possession. During investigations efforts were made to trace the other accused namely Ms. Praveen and Hashim but they could not be arrested and are absconding. After completion of investigations charge sheet was filed against the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 3 accused Mohd. Khairul @ Arman.
CHARGES:
(4) Charges under Sections 302/34 Indian Penal Code and Section 14 of Foreigners Act were settled against the accused Mohd. Khairul @ Arman to which he pleaded not guilty and claimed trial.
(5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of Prosecution Witnesses:
Sr. PW Name of the witness Details of the witness No. No.
1. PW1 Ct. Om Prakash Police Witness - Special Messenger
2. PW2 Ct. Deepak Police Witness who got the FIR registered
3. PW3 Ct. Dharemder Police Witness who reached the spot with SI Sandeep
4. PW4 HC Suman Prasad Police Witness - Duty Officer
5. PW5 SI MD Meena Police Witness - Crime Team Incharge
6. PW6 Ct. Subhash Police Witness - Crime Team Photographer
7. PW7 HC Mahfooz Khan Police Witness - MHCM
8. PW8 SI Manohar Lal Police Witness - Draftsman
9. PW9 Mohd. Moshin Public Witness - Father of the deceased
10. PW10 Savila Khatoon Public Witness - Mother of the deceased
11. PW11 Dr. Bhim Singh Autopsy Surgeon
12. PW12 Sh. Indersh Kumar FSL Expert
13. PW13 Smt. Radha Public Witness - Grand daughter of the landlady Smt. Devki St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 4 Sr. PW Name of the witness Details of the witness No. No.
14. PW14 Smt. Maya Public Witness - Daughter of the landlady Smt. Devki
15. PW15 Smt. Sarthi Gore Public Witness - Tenant in the same building
16. PW16 Ramesh Gore Public Witness - Tenant in the same building
17. PW17 Mohd. Aqueel Public Witness - Brother in law (Jija) of the deceased
18. PW18 Ct. Gurjit Singh Police Witness who had collected the FSL Report
19. PW19 Ct. Kuldeep Police Witness who had joined investigations with Inspector Rajender Prashad
20. PW20 HC Mukesh Kumar Police Witness who had visited the spot of incident with Inspector Brij Pal
21. PW21 SI Ravinder Singh Police Witness (AATS) who had proved the arrest of accused Mohd. Khairul
22. PW22 SI Dev Raj Police Witness who had visited the spot of incident
23. PW23 Insp. Sandeep Kumar Police Witness who was the first who visited the spot of incident
24. PW24 Inspector Brij pal Initial Investigating Officer
25. PW25 Inspector Rajender Subsequent Investigating Officer Prashad List of documents exhibited:
Sr. Exhibit No. Details of documents Proved by
No.
1. PW1/1 Affidavit of evidence of Ct. Om Prakash Ct. Om Prakash
2. PW2/1 Affidavit of of evidence of Ct. Deepak Ct. Deepak
3. PW3/1 Affidavit of of evidence of Ct. Ct. Dharmender
Dharmender
4. PW3/A Seizure memo of Exhibits
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 5
Sr. Exhibit No. Details of documents Proved by
No.
5. PW4/1 Affidavit of of evidence of HC Suman HC Suman Prasad
Prasad
6. PW4/A DD No. 22A
7. PW4/B FIR
8. PW4/C Endorsement on Rukka
9. PW5/1 Affidavit of of evidence of SI M.D. SI MD Meena
Meena
10. PW5/A Crime Team Report
11. PW6/1 Affidavit of of evidence of Ct. Subhash Ct. Subhash
12. PW6/A1 to Photographs of the spot of incident A12
13. PW6/B Negatives of the photographs
14. PW7/1 Affidavit of of evidence of HC Mafooz HC Mafooz Khan Khan 15. PW7/A Copy of Reg No. 19 Sr. No. 389 16. PW7/B Copy of Reg No. 19 Sr. No. 390 17. PW7/C Copy of Reg No. 19 Sr. No. 731
18. PW7/D Copy of RC No. 79/21/12
19. PW7/E FSL Receipt
20. PW8/1 Affidavit of of evidence of SI Manohar SI Manohar Lal Lal
21. PW8/A Scaled site plan
22. PW11/A Postmortem Report Dr. Bhim Singh
23. PW11/B Opinion on weapon of offence
24. PW12/A Biological Report Sh. Indresh kUmar
25. PW12/B Serological Report
26. PW13/A Statement of Radha Radha
27. PW13/B Seizure memo of Lock St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 6 Sr. Exhibit No. Details of documents Proved by No.
28. PW15/PX1 Statement of Smt. Sarthi Gore under Sarthi Gore Section 161 Cr.P.C.
29. PW17/A Statement of Mohd. Aqueel Mohd. Aqueel
30. PW17/B Dead body Receipt
31. PW19/A Disclosure statement of Mohd. Khairul Ct. Kuldeep
32. PW19/B Arrest memo
33. PW19/C Pointed out memo
34. PW19/D Sketch of Daranti
35. PW19/E Seizure memo of Daranti
36. PW20/A Seizure memo of Bottles HC Mukesh Kumar
37. PW20/B Seizure memo of Blood Sample
38. PW21/A DD No. 15 SI Ravinder Singh
39. PW21/B Articles taken into possession U/s 102 Cr.P.C.
40. PW21/C Arrest memo
41. PW21/D Personal search memo
42. PW21/E Disclosure statement
43. PW21/F DD No. 66B
44. PW21/G Kalandra U/s 41.1
45. PW23/A Rukka Insp Sandeep Kumar
46. PW24/A Site plan Insp. Brijpal Singh
47. PW24/B Form 25:35
48. PW24/C Brief Facts
49. PW24/D Statement of Mohd. Bashir
50. PW24/E Request to Incharge Mortuary for conducting Postmortem
51. PW25/A DD No. 3A Insp. Rajender Prasad
52. PW25/B Application for subsequent opinion St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 7 EVIDENCE:
(6) In order to prove its case the prosecution has examined as many as Twenty Five Witnesses as under:
Public Witnesses:
(7) PW9 Mohd. Mohsin is the father of the deceased who has deposed that deceased Abdul Sattar was his son who used to drive a car in Delhi and was residing with his friend Khairul at JJ Colony, Delhi.
According to the witness about 15 days before the death of Abdul Sattar, he i.e. deceased had come to their village and remained there for about two to three days when he (i.e. Abdul Sattar) disclosed to him that his friend Khairul had to return his Rs.53,000/. Witness has further deposed that Abdul Sattar also told him that he was going to Delhi and after taking back his money i.e. Rs.53,000/ from Khairul, he would send the same to them in their village. Hehas deposed that thereafter Abdul Sattar went to Delhi and was residing with his friend Khairul at Delhi. According to the witness, his brother in law Bashir informed him about the death of his son Abdul Sattar and on 27.10.2011 he along with his wife then came to Delhi. Thereafter he along with Bashir went to the Police Station and told all the facts to them. Witness has further deposed that his son Abdul Sattar also told him that his friend Khairul was not a good person.
(8) In his crossexamination by the Ld. Defence Counsel, the witness has deposed that he had come to Delhi during the life time of his son Abdul St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 8 Sattar who had taken him for treatment to the Doctor. Witness has admitted that he cannot tell about the rented room where his son was residing at the time of the incident and has voluntarily explained that he was not in Delhi at that time. He has also deposed that he had never met Khairul nor Mohd. Khairul is known to him. Witness has admitted that whatever he has deposed in the court is on the basis of what was told to him by his deceased son. He has also admitted that it is only his deceased son who had told him that Khairul had taken a loan and that is how he came to know of the same but he was not personally aware of it. According to the witness he is totally illiterate and cannot read or write anything nor can he write his name. Witness has also deposed that his son only orally told him about the loan but did not show him any document. The witness has testified that he was not sure about the period when his son Abdul Sattar had come to the village and has voluntarily explained that he was very sick at that time and not in his senses and that Abdul Sattar must come around one, two or even three weeks before his death but he cannot tell for sure. Witness has also admitted that he had told the police during interrogation that when they recorded his statement that he had come to the village about one month before his death and has voluntarily explained that he was not confirmed about the said time because when he came he i.e. witness was sick. Witness has denied the suggestion that his son did not inform him anything or that he has created the story of loan on the tutoring of the police officers. St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 9 (9) PW10 Smt. Savila Khatoon is the mother of the deceased who has deposed that the deceased Abdul Sattar was her son who was residing at Delhi along with his friend Khairul a person who was original resident of Bangladesh. According to the witness her son Abdul Sattar used to drive a car at Delhi and Ten to Fifteen day prior to his death Abdul Sattar came to their village and informed them that his friend Khairul had to pay his Rs. 53,000/. She has deposed that Abdul Sattar also informed him that Khairul was not a good person and had no intention to pay back his money. Witness has also deposed that his son Abdul Sattar told them while going to Delhi that he would send the money to them after taking his Rs.53,000/ from Khairul. She has testified that it was her brother Bashir who informed them that Abdul Sattar had been murdered and thereafter she along with her husband came to Delhi and told all the facts to the police. (10) In her cross examination by Ld. Defence counsel, witness has deposed that she had come to Delhi during the life time of Abdul Sattar and has voluntarily added that it was for getting the treatment of her husband done. Witness has further deposed that she never met Khairul nor Mohd. Khairul is known to her. Witness has admitted that whatever she has deposed in the Court is on the basis of what was told to her by her deceased son. He has also admitted that it is only her deceased son who had told her that Khairul had taken a loan and she came to know of the same but she was not personally aware of the same. Witness has further deposed that she is totally illiterate and cannot read or write anything including her name. St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 10 According to the witness her son only orally told her about the loan and did not show her any document. Witness has further deposed that her son Abdul Sattar had come to the village about 1015 days prior to his death. Witness has denied the suggestion that her son did not inform her anything and she had created the story of loan on the tutoring of the police officers. (11) PW13 Ms. Radha has deposed that she was residing with her mother namely Maya and her grand maternal mother namely Smt. Devki (who according to the witness is not in a position to move and her health is very critical) at E70, Ground Floor, Wazirpur JJ Colony, Delhi. According to the witness her husband was residing in Village Uragni, Distt. Tirnamalaya, Tamil Nadu and he is visiting them from time to time. Witness has further deposed that the house of her grand maternal mother was of three floors and on the third floor of the said premises deceased Abdul Sattar was residing as a tenant. According to the witness alongwith Abdul Sattar the accused Khairul whom the witness has correctly identified in the Court was also residing alongwith his wife and his brother in law and his child and one of his associates. Witness has further deposed that one of the relatives of Abdul Sattar was running in a Madarsa in Patharwala Bagh, Kanhayya Nagar. She has further deposed that on the third floor of the said premises, Ramesh Gore alongwith his wife Sarthi Gore was residing as a tenant. She has also deposed that on 20.10.2011 a foul smell was emanating since morning from the second floor in which Abdul Sattar was residing on which she informed this fact to her maternal St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 11 grand mother at about 4.304.45PM. The witness has testified that after disclosing this fact to her Nani and having informed her that she wanted to check the said room as to why the foul smell was emanating, she went to upstairs while she was going upstairs the foul smell was increasing as per steps of the stairs. According to the witness when she reached in front of the room of deceased Abdul Sattar, she found a large amount of foul smell emanating from the room and found the iron door of that room locked. Witness has further deposed that thereafter she came down and told this fact to her grandmother/ Nani and disclosed to her that a foul smell was emanating from the room which was rented out to deceased Abdul Sattar. Witness has also deposed that in order to know the reason for the foul smell, she took out a hammer and again went upstairs to the room of Abdul Sattar and broke open the lock and entered the room and saw that Abdul Sattar lying on the ground with his face towards ground and discovered that foul smell was emanating from his body on which she got extremely scared and rushed out from the room and went to the ground floor and told her grandmother/ Nani about what she had seen and then she called the police. According to the witness, after the police came to the spot, she took them to the room where she had seen the body of Abdul Sattar and after conducting the proceeding the police took the body of Abdul Sattar. She has also deposed that she was called in the Police Station and her statement was recorded vide Ex.PW13/A. Witness has further deposed that on 20.10.2011 when she first felt the smell emanating from the room of deceased Abdul St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 12 Sattar, she did not notice accused Khairul, his wife, his child and his associate as they were found absent from 18.10.2011. (12) Leading questions were put to the witness by the Ld. Addl. PP for the State, she has admitted that the lock which she had broken from the room of deceased was taken by the police in their possession after converting the same into a pullanda and seized vide memo Ex.PW13/B. Witness has admitted that when police came at the spot, they inspected the spot from all the angles. She has correctly identified a lock of white colour make Fighter having some marks of breaking by some object as the same which is Ex.P1.
(13) In her cross examination by the Ld. Defence counsel, witness has deposed that her Nani is in possession of two rooms at the ground floor and her father is residing in Chennai and her mother is also residing with him. According to the witness at that time she was having only one daughter aged 5 years who was residing with her and Abdul Sattar met her grandmother/ Nani four to five months prior to the incident in order to take the room on rent. Witness has further deposed that at that time she was not present with her grandmother/ Nani. She has testified that no rent agreement was executed between her grandmother/ Nani and the deceased Abdul Sattar. According to her two rooms were given on rent to Abdul Sattar but she is unable to tell the monthly rent of the room which were rented out to deceased Abdul Sattar. Witness has further deposed that her grandmother/ Nani never informed her whether any other person was St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 13 residing with Abdul Sattar. She has also stated that her grandmother/ Nani never used to go upstairs and has voluntarily explained that she was not in a position to move. According to the witness she is not aware if any of the relatives of Abdul Sattar nor can he tell the name of the relative who was running a Madarsa. Witness has further deposed that she has no idea when she first saw Mohd. Khairul after letting out of the room to Abdul Sattar and has voluntarily explained that it was when he had come down to switch on the water motor. She is unable to tell the date or the day when Khairul come down to switch on the water motor. Witness has denied the suggestion that Khairul was not even present in the house about fourfive days prior to the incident as claimed by her as he was never residing in the building or that the question of his being present does not arise. Witness has denied the suggestion that she had never seen accused Khairul with his family in the house of her grandmother/ Nani in the rented room which was let out to the deceased Abdul Sattar as deposed by her. She has also denied the suggestion that she had been tutored by the police on naming the accused in the present case or that Abdul Sattar used to reside in the tenanted room alone or that he was not having interaction with anybody. (14) PW14 Smt. Maya has deposed that she was residing with her mother namely Devki alongwith her daughter Radha on the ground floor of H.No. E70, JJ Colony Wazirpur, Delhi. According to the witness the said premises is built upto four stories and on the third floor deceased Abdul Sattar who used to drive a vehicle was residing together alongwith Mohd. St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 14 Khairul his wife and one of his associate and used to live together on the third floor. Witness has further deposed that on 17.10.2011 at about 8.00PM she noticed that accused Mohd. Khairul and one of his associates were going upstairs to the room with beer bottles, which had been rented to Abdul Sattar and in which they were living. According to her, on the very same day at about 12.00 midnight due to uneasiness, she came out from the room and sat in front of the staircase when at that time she noticed that the wife of accused Mohd. Khairul alongwith his child came downstairs and thereafter the associate of Khairul also came out after which accused Mohd. Khairul came down and they were having small type bags in their hands after which they all left the premises. She has deposed that she did not inquire from those person as to why they were going. She has testified that in the next morning she left for her work in Ashok Vihar where she used to work as a maid servant. The witness has further deposed that on 20.10.2011 at about 3.00PM when she returned from her job, she felt that a foul smell was emanating from the said building on which initially she and her daughter Radha checked the ground floor and staircase on the ground floor. According to the witness she and her daughter again checked the first floor and second floor but nothing was found after which she and her daughter Radha went on the third floor to the rooms which were facing each other and were rented to the deceased. She has also deposed that one of the room was found open whereas the door of St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 15 one of the room was locked and when they checked, she and her daughter noticed that a foul smell was emanating from the room of the third floor which had been rented out to deceased Abdul Sattar. According to the witness, her daughter took out a hammer and broke open the lock of the room which had been locked and when they broke open the lock and entered inside the room, Abdul Sattar was found lying facing to the floor with his neck slit. She has testified that Abdul Sattar was lying on the blanket which was soaked with blood and after seeing the body they were scared and her daughter made a call at 100 number. The witness has also deposed that police came and took the body with them and inspected the room properly in which the body was lying. Witness has further deposed that on the fourth floor one Ramesh Sarthi alongwith his family members was residing. She has also deposed that she was interrogated by the police and she informed to them all the facts which she had deposed in the court. (15) In her cross examination by the Ld. Defence counsel, witness has deposed that she had seen the accused Khairul residing in the said premises earlier, prior to 17.10.2011 and when Abdul Sattar came to the house of her mother to take the room on rent, the accused Khairul was with him and at that time she had seen him for the first time. Witness has further deposed that this was about four months earlier to the date of incident. She has claimed that she was residing with her mother since the time Late Mrs. Indira Gandhi was alive. According to her, when deceased Abdul Sattar and accused Khairul came to the house of her mother for St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 16 taking the room on rent it was around 1.00PM. She has also deposed that she left for her work at about 7.00AM and used to return from her work at about 3.00PM. The witness has further deposed that she used to see the accused when he used to come downstairs to switch on the water motor. The witness has testified that she usually did not interact with the deceased Abdul Sattar when he left for his job daily. She is unable to tell as to at what time the deceased Abdul Sattar returned to the house after completion of his professional work. She has further stated that she used to see accused Khairul only when she came out from her room. Witness has further deposed that wife of accused Khairul was a housewife. She is unable to tell the day of the week of 17.10.2011 nor she can tell the name of child of accused Khairul and the name of wife of accused Khairul. She has testified that there was a street light in their locality where they are residing and when she saw the accused and his associate coming downstairs, she was sitting at a distance of hardly four to five feet away from them. According to the witness the beer bottle was in a bag and the cap of the bottle was visible from the bag and has explained that there were four - five bottles in the bag. Witness has denied the suggestion that she did not see the accused with the beer bottles or thereafter with his bag as claimed by her. Witness has also denied the suggestion that Khairul was not even present in the house alongwith his associates about 45 days prior to the incident as claimed by her as he was never residing in the building or that the question of his being present does not arise. Witness has further denied the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 17 suggestion that she had never seen accused Khairul with his family in the rented room which was let out to deceased Abdul Sattar as deposed by her or that she has been tutored by the police for naming the accused. Witness has denied the suggestion that Abdul Sattar used to reside in the tenanted room alone or that he was not having interaction with anybody. (16) PW15 Smt. Sarthi Gore has deposed that she is residing at E70, Wazirpur, JJ Colony, Delhi alongwith her husband on the fourth floor for the last 12/13 years. According to the witness the deceased Abdul Sattar and accused Khairul, whom the witness has correctly identified in the Court were residing on the third floor of the house alongwith the wife of Mohd. Khairul, his child and his brother in law. Witness has further deposed that on the ground floor of the said premises landlady, her daughter and her granddaughter (Dhevti) were residing. According to the witness, on 17.10.2011 she had seen the accused, his brother in law (Sala) and his wife in their room on the third floor. She has testified that on 18.10.2011 when she came downstairs to ease herself (for latrine) and she noticed the lock on the room in which the accused and deceased were residing and thereafter she did not see them in their room. Witness has further deposed that after twothree days from 17.10.2011 they felt a foul smelling was emanating from the third floor and thereafter she came down and told to the landlady about the foul smell after which the grand daughter of landlady namely Devki came upstairs and broke open the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 18 lock of the room when they noticed the body of Abdul Sattar lying there. According to the witness thereafter police came at the spot and they carried out the proceedings and they were also taken to the Police Station for interrogation.
(17) Leading questions were put to the witness by Ld. Addl. PP for the State wherein the witness has admitted that whenever she used to go upstairs many a times she had noticed the deceased and the wife of accused in obscene condition/ objectionable position (galat harkat karte huye). Witness has admitted that accused Khairul was an addict and that the deceased Abdul Sattar used to be in obscene condition with the wife of accused while the accused Khairul remained in the other room in intoxicating condition. Witness has admitted that she had informed the said facts to the daughter of Devki. She has also admitted that on 18.10.2011 her husband was not at home as he had gone to meet the husband of one Maina in Fatehpur Jail, alongwith this Maina who was living with them.
(18) In her cross examination by Ld. Defence counsel, witness has deposed that she was interrogated by the police and her statement was recorded and she had not stated to the police in her statement that she had came downstairs to ease herself (for latrine). Witness has further deposed that she had told the police in her statement that Khairul and Abdul Sattar were under addiction. It has been observed by this Court that the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 19 above fact finds a mentioned in her statement Ex.PW15/PX1. Witness has explained that she had noticed many of times the deceased and the wife of accused in obscene condition as the door used to remained opened when she used to come down from the fourth floor for domestic purposes. According to the witness she used to work as domestic maid servant and she generally left for the job at 7.00AM and returned at about 9.009.30AM and has voluntarily explained that she used to return as soon as she finished her work after which she remained in the house for whole the day whereas sometimes she used to go here and there. She is unable to tell about the work of accused Khairul. Witness has further deposed that after about twothree days after taking the room on rent in the said premises, she saw the accused Khairul and she was told by the landlady that the room was taken on rent by accused Khairul. According to the witness for the last time on 17.10.2011 she had seen the accused Khairul in the premises at about 7.00/7.30PM. Witness has denied the suggestion that Khairul was not the tenant in the premises or that she has not seen the accused and his family on 17.10.2011 or that the wife of the accused did not have any illicit relations with the deceased. Witness has denied the suggestion that she have never seen them in obscene condition or that the accused and deceased were not addicted of any drug or alcohol. (19) PW16 Sh. Ramesh Gore has deposed that he is residing at E70, Wazirpur, JJ Colony, Delhi since last more than 12/13 years as tenant St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 20 and deceased Abdul Sattar and accused Khairul were residing on the third floor of the house alongwith his wife, his child and his brother in law. According to the witness on the ground floor of the said premises, landlady, her daughter and her grand daughter (Dhevti) were residing. He has further deposed that on 17.10.2011 at about 10.30PM when he came downstairs to ease himself in the toilet on the second floor the accused Khairul, met him in the staircase going upstairs stating that he had won a bet from the deceased of 12 bottles of beers which he had brought. According to the witness, accused Khairul invited him to consume beer but he refused and after easing himself when he was going upstairs, when he saw the deceased Abdul Sattar coming downstairs who also invited him to take the meat which the accused, deceased and his brother in law brought but he again refused and thereafter went upstairs to his room. The witness has further deposed that on next day i.e. on 18.10.2011 when he woke up and came down to the second floor toilet, he noticed that there was a lock in the room in which deceased Abdul Sattar and accused Khairul was residing. According to the witness accused Khairul, his brother in laws and his wife were not present at that time. On the same day in the evening he took the train for Fatehpur at about 11.40PM alongwith Ms. Maina who was living with them, to meet her husband who was in Fatehpur Jail and also to attend engagement ceremony of his brother in law in Fatehpur (UP). The witness has further deposed that on the day of Small Diwali he came back to his rented house at the above premises and his wife was taken to the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 21 Police Station, on which he immediately went to the Police Station Bharat Nagar where he disclosed all these facts to the SHO and also showed all the gifts which were gifted to him in the engagement of his brother in law (Dharam ka sala). Witness has further deposed that he also produced the railway ticket before the SHO and thereafter he alongwith his wife returned to his room and celebrated Diwali.
(20) Leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has admitted that whenever he used to go upstairs many a times he had noticed the deceased and the wife of accused in a jolly mood who used to make jokes with each other. Witness has admitted that on 17.10.2011 when deceased Abdul Sattar, accused Khairul and his brother in law were consuming beer, he heard that they were talking in a hot manner and were talking about some money transactions (len den ki baat kar rahe thay). Witness has admitted that after hearing their hot talks he directly went to his room. He has also admitted that when he went to Fatehpur alongwith Ms. Maina, his son was also with him and that when he came back from Fatehpur and reached his house and did not find his wife, from the public persons who were present at the spot, came to know that the dead body of Abdul Sattar was found in his room in a semi decomposed condition and at that time accused, his brother and his wife were not present as they were already found absent from morning of 18.10.2011. Witness has admitted that he was interrogated by the police and his statement was recorded.
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 22 (21) In his cross examination by Ld. Defence counsel, witness has deposed that he returned back from Fatehpur on Chhoti Diwali which fall on 26/27.10.2011 and on that day his wife was not present at the room and has voluntarily explained that he came to know that she was in the Police Station. Witness has further deposed that he immediately along with his gifts, went to the Police Station but he is not aware if the statement of his wife was recorded in the Police Station on that day or not. Witness has further deposed that after the day of Diwali he went to the Police Station virtually everyday for above five days and his wife did not accompany him during those days to the Police Station. According to the witness, his statement was recorded after the day of Diwali but he cannot tell the day. He has also stated that the statement of his wife was not recorded in his presence in the Police Station. He has also deposed that he met accused Mohd. Khairul first time when he started living as a tenant in the said premises. According to him, the accused was residing as a tenant 5 to 6 months prior to the incident and to his knowledge he used to drive a car of red colour. He has testified that he did not meet the accused Khairul regularly on day to day basis and has voluntarily explained that it was only when they came across each per chance that they met. Witness has further deposed that sometimes when he used to go to the fourth floor while passing through the third floor, he used to find his door open and also as there were windows on both the side in both the room in which deceased and accused were living. Witness has also deposed that the windows were St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 23 covered by curtains and his room inside was not visible but voices from the room of Khairul could not be heard from the fourth floor and has voluntarily explained that, however if they were on the staircase moving to and fro, from the fourth floor they could hear the voices from the room even if the door is closed. Witness has further deposed that at the time of the incident he used to work with caterers as Waiter and most of the time the duties were of night time and has voluntarily explained that it was only during the marriage season. According to the witness during the off season he used to go to son's place of work which is Roshnara Club. He has further deposed that he was not having friendly relations with deceased Abdul Sattar and accused Khairul. Witness has also deposed that deceased Abdul Sattar and accused Khairul used to tell that they are having the car and they drive the same. He has testified that before 17.10.2011 neither the accused nor the deceased had offered him beer. He is unable to tell the day of the week which fell on 17.10.2011. Witness has denied the suggestion that accused Khairul was a tenant in the premises or that he resided with the deceased Abdul Sattar along with his family or that he had seen the deceased and the accused on 17.10.2011 with beer bottle. Witness has also denied the suggestion that accused has disclosed that he has won ten bottles of beer in a bet or that he was deposing falsely at the instance and pressure from the police officials.
(22) PW17 Mohd. Aqueel has deposed that deceased Abdul Sattar was the cousin of his wife and was residing at E70, JJ Colony Wazirpur, St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 24 Delhi for the last eight to ten months from the date of incident and accused Khairul, his wife and his brother in law were residing in the said premises. Witness has further deposed that the deceased Abdul Sattar generally used to visit him and he generally told him that he had fallen in love with the wife of accused Khairul and he wanted to meet her. According to the witness, he used to made him (Khairul) understand that wife of Khairul was already married and they could arrange a pretty girl for him. According to the witness he made him understand so many times but Abdul Sattar was adamant and also told him that wife of Khairul also cannot live without him and that Khairul was aware about their intimacy i.e. between him (Abdul Sattar) and the wife of Mohd. Khairul. Witness has testified that Abdul Sattar also told him that Khairul had taken Rs.50,000/ or Rs.53,000/from him which he had to take back from Khairul but Khairul was not returning the said amount. Witness has further deposed that on 17.10.2011 it was Monday, deceased Abdul Sattar and accused Khairul had come to his Madarsa in Patharwala Bagh at about 11.00AM and Abdul Sattar told him to make a Taveez for Khairul so that he can return his above said amount. According to the witness he told them that he can prepare the Taveez for them but they should take the same from him in the evening time of the same day after which during the evening time of the same day at about 6.00PM again both came to his Madarsa and took the Taveez from him. He has also deposed that on 20.10.2011 he got free from Isha Ki Namaaz and he came to know that some murder had taken place at E70 JJ Colony St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 25 Wazirpur, Delhi and at about 9.30/10.00PM he reached there. According to the witness it was a Jummerat (Thursday), a crowd was there and some police officials were also there and SHO was also present and he informed the police that in the said premises, his brother in law Abdul Sattar was residing. He has deposed that at that time the body of Abdul Sattar had already been shifted to hospital and thereafter on 20.10.2011 his statement was got recorded by he SHO through one police official. According to him, on 21.10.2011 he identified the dead body of Abdul Sattar his brother in law in the mortuary of BJRM Hospital vide his statement Ex.PW17/A and after postmortem he received the dead body of Abdul Sattar vide receipt Ex.PW17/B and thereafter the last rites of Abdul Sattar was performed. According to him, Abdul Sattar was having his own car and was very intelligent and Abdul Sattar was murdered as he was having relations with the wife of the accused Mohd. Khairul.
(23) In his cross examination by Ld. Defence counsel, witness has deposed that police interrogated him and recorded his statement at the spot in almost about one hour and has voluntarily explained that thereafter he went to the Police Station and remained there for whole night. According to the witness, it was about 1½ months prior to 17.10.2011 that Abdul Sattar also told to him that he was having illicit relations with the wife of accused and has voluntarily added that on one occasion he had came alongwith the wife of accused Khairul to his Madarsa for Nikah on St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 26 which he got angry and sent them back. Witness has admitted that accused Khairul was also aware about such relations but is unable to tell whether there were good or strained relations between Abdul Sattar and Mohd. Khairul. Witness has further deposed that he did not sense about strained relations when Abdul Sattar and states that the accused Khairul came to him and has voluntarily explained that Abdul Sattar jokingly said to him that he apprehended threat to life from accused Khairul. Witness has also deposed that Abdul Sattar and Mohd. Khairul remained with him for about half and hour and went back together. He is unable to tell whether he had specifically stated to the Investigating officer in his statement that Abdul Sattar was to made a Taveez for Khairul. Witness has admitted that he has not seen Khairul and his family residing in the house of Adbul Sattar. Witness has further deposed that he knew this fact because Abdul Sattar had told him about the same but he had seen tenanted house. He has also deposed that Abdul Sattar had never shown him any document pertaining to Rs.50,000/ loan taken from him by Khairul and this fact was disclosed to him by Abdul Sattar about one month back and also on 17.10.2011. He is not aware if Abdul Sattar used to consume liquor. Witness has further deposed that both Abdul Sattar and Khairul came together at 6:00 PM and collected Taveez and went away together. He has denied the suggestion that the wife of accused Khairul was not having any illicit relations with the deceased Sattar or that Sattar had never disclosed him regarding such relation or that Khairul and his family was living / residing Abdul Sattar at St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 27 his rented accommodation or that there were no financial transaction (Rs. 50,000/) between the accused and the deceased. Witness has also denied the suggestion that deceased and the accused had not visited him on 17.10.2011 or on any other date whatsoever or that he was deposing falsely at the instance, tutoring and pressure from the police in order to solve the present case.
Witnesses of Medical Record:
(24) PW11 Dr. Bhim Singh has deposed that on 21.10.2011 at about 12.30PM he conducted postmortem on the dead body of Abdul Sattar S/o Mohd. Mohsin aged about 2425 years, male on the request of Inspector Brij Pal Singh, SHO Police Station Bharat Nagar, Delhi with alleged history that dead body was found on 20.10.2011 at about 5.00PM in decomposed state. According to the witness on examination he found following External Injuries:
1. Incised wound 9cm x 4cm x 4cm front of neck at the level of thyroid, underline tissue shows sharp cut, tailing of wound on right side.
2. Incised stab wound 1cm x 1cm x 1.5cm, outer aspect lateral side of right eye.
3. Lacerated wound 1.5cm x 1cm x bone deep middle of forehead.
4. Lacerated wound 1.5cm x 1cm x bone deep right side of forehead.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 28
5. Lacerated wound 1.8cm x 1cm x bone deep over right parital region.
6. Lacerated wound 2.5cm x 1.5cm x bone deep right occipito parital region.
(25) The witness has proved that on internal examination of Head and Neck there was extravassation of blood in scalp layer below injury no. 3 to 6; signature fracture (depressed fracture) was present blow injury in No.6 i.e. 2cm x 2cm, brain matter liquefied coming out from fractured site; neck shows sharp cut in thyroid, trachea, esophagus and vessels and muscles of the neck. He has proved having opined that the death was due to comma and shock consequent upon head and neck injury, all injuries were antimortem, fresh in duration and Injury No.1 could be caused by sharp edged weapon and sufficient to cause death in ordinary course of nature; Injury No.2 could be caused by sharp edged weapon and Injury no. 3 to 6 could be caused by heavy blunt hard object like hammer. Witness has further deposed that time since death was about 3 ½ days. According to the witness, after postmortem he handed over the clothes and blood in gauze piece of the deceased in sealed condition to the police alongwith the sample seal. He has proved the detailed Postmortem Report vide PM No. 995/11 which is Ex.PW11/A. (26) Witness has further deposed that on 15.09.2012 he received an application from Inspector Rajender Prasad alongwith abovesaid Postmortem Report, inquest papers and one sealed weapon of offence sealed with the seal of RP, five in number in intact position for subsequent St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 29 opinion. According to the witness on opening the aforesaid pullanda one Daranti i.e. sickle type weapon was found as mentioned in his diagram figure 1 having iron based handle with single edged blade, curved shaped. He has proved having opined that Injuries no. 1 to 5 mentioned in postmortem report No. 995/11 could be possible by the above examined weapon and his detailed subsequent opinion with diagram of the weapon of offence is Ex.PW11/B. The witness has correctly identified one Daranti (weapon of offence) as the said Daranti examined by him which Daranti is Ex.P1.
(27) In his cross examination by Ld. Defence counsel witness has denied the suggestion that he has prepared the above said reports at the instance of the Investigating Officer.
FSL Expert:
(28) PW12 Sh. Indresh Kumar Mishra, SSO (Biology) has deposed that on 18.9.2012 seven sealed parcels were received in their office and the same were assigned to her for examination. According to the witness, on opening Parcel No.1 one weapon of offence i.e. Daranti having rusty brown stains was found which was marked as Ex.1; on opening parcel No.2 cemented material having light brown stains was found which was marked as Ex.2; on opening parcel No.3 cemented material was found which was marked as Ex.3; on opening parcel No.4 dark brown cotton St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 30 wool swab was found which was marked as Ex.4; on opening parcel No.5 one empty beer bottle having brown stains was found which was marked as Ex.5a, one empty beer bottle having brown stains was found which was marked as Ex.5b; on opening parcel No.6 one damp foul smelling pant was found which was marked as Ex.6a, one damp foul smelling underwear was found which was marked as Ex.6b, one damp foul smelling blanket was found which was marked as Ex6c, one damp foul smelling dari was found which was marked as Ex.6d and on opening parcel No.7 yellowish brown gauze cloth piece was found which was marked as Ex.7. He has proved that on examination blood was detected on Ex.1, 2, 4, 5a, 5b, 6a, 6b, 6c, 6d and 7 whereas Blood could not be detected on Ex.3. The witness has proved the detailed Biological Report in this regard which is Ex.PW12/A. He has also proved that on Serological Examination Human Blood was detected on Ex.2, 4, 5a, 5b and 7 but blood group could not be ascertained on the same. The Serological Report in this regard is Ex.PW12/B. The witness has testified that after examination remnants of the exhibits were sealed with the seal of IKM FSL DELHI.
(29) In his crossexamination by the Ld. Defence Counsel the witness has denied the suggestion that he has not adopted the standard procedures and practices while examining the exhibits. He has also denied that the reports were given by him on the asking of police officers.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 31
Police/ Official Witnesses:
(30) PW1 Ct. Om Parkash is a formal witness being the Special Messenger who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein the witness has proved having delivered the special reports to the Senior Officers. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted in this regard.
(31) PW2 Ct. Deepak is also a formal witness who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein the witness has proved that on 20.10.2011 on receipt of the information he along with Inspector Brijpal Singh reached the spot i.e. House No. E70, Wazirpur, JJ Colony, Delhi where at about 7:55 PM, he was handed over the rukka for getting the case registered and accordingly he took the rukka to the Police Station and got the case registered.
(32) In his cross examination by Ld. Defence counsel, witness has deposed that he reached at the spot along with SHO at about 5:30 PM and he left for the Police Station at about 7:55 PM with rukka and the statement of Radha was recorded in his presence but he is unable to tell at what time it was recorded.
(33) PW3 Ct. Dharmender is a formal witness who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein the witness has proved that on 20.10.2011 he St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 32 reached the spot of incident along with SI Sandeep Kumar and preserved the scene of crime and on 21.10.2011 the postmortem examination of deceased Abdul Sattar was conducted by Dr. Bhim Singh who handed over two sealed pullandas to him along with sample seals which he in turn handed over to Inspector Brijpal Singh and the same was seized vide Ex.PW3/A. (34) In his cross examination by Ld. Defence counsel, witness has deposed that he reached at the spot at about 5 PM, at that time PCR was there.
(35) PW4 HC Suman Prasad is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein the witness has proved DD No. 22A copy of which is Ex.PW4/A, FIR No.214/11 copy of which is Ex.PW4/B and his endorsement on rukka which is Ex.PW4/C. This witness was not cross examined by Ld. Defence counsel, despite an opportunity being granted in this regard.
(36) PW5 SI MD Meena is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein the witness has proved having visited the spot of incident and having prepared the Crime Team Report which is Ex.PW5/A. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 33
(37) PW6 Ct. Subhash is a formal witness being the Crime Team Photographer who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein the witness has proved having visited the spot of incident and having taken the photographs which are Ex.PW6/A1 to Ex.PW6/A12, negatives of which are collectively Ex.PW6/B. He has not been crossexamined by the Ld. Defence Counsel despite being granted an opportunity in this regard.
(38) PW7 HC Mehfooz Khan is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein the witness has proved Entry in register No. 19 vide S. No. 389 copy of which is Ex.PW7/A, entry at Sr. No. 390 copy of which is Ex.PW7/B, entry at S.No. 731 copy of which is Ex.PW7/C (two pages); Entry in register no.21 vide RC No. 79/21/12 copy of which is Ex.PW7/D and receipt issued by the FSL copy of which is Ex.PW7/E. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.
(39) PW8 SI Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein the witness has proved having prepared the scaled site plan which is Ex.PW8/A. This witness was not cross examined by Ld. Defence counsel despite being granted an opportunity granted.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 34
(40) PW18 Ct. Gurjit Singh has deposed that on 4.12.2012 he was posted at Police Station Bharat Nagar and on that day on the directions of the Investigating Officer, he went to FSL Rohini and collected the FSL report and seven pullandas in sealed condition. According to the witness after collecting the same, he handed over the report and pullandas to MHCR and so long as the pullandas remained in his custody the same were not tampered with and his statement was recorded by the Investigating Officer.
This witness was not cross examined by Ld. Defence counsel despite being granted an opportunity in this regard.
(41) PW19 Ct. Kuldeep has deposed that on 02.08.2012 he along with Inspector Rajender Prasad and ASI Dev Raj had gone to ATS North, Daya Basti in the investigation of this case and the accused Mohd. Khairul was in the custody of ATS (North) staff in some other case. According to the witness Inspector Rajender Prasad collected the documents of the case in which the accused was arrested by the ATS Staff from SI Ravinder and accused was brought to Rohini Courts and was produced before the Ld. Illaqua Magistrate. He has also deposed that thereafter with the permission of the Court accused Khairul was interrogated who made his disclosure statement in this case which is Ex.PW19/A and the accused was arrested vide memo Ex.PW19/B. Witness has further deposed that thereafter accused was produced before the Court concerned and he was taken on two days Police Custody Remand after which the police party along with accused went to the place of incident i.e. H.No. E70, Wazirpur J J Colony, St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 35 Delhi, Second floor and pointed the place of incident vide memo Ex.PW19/C. Witness has further deposed that there was a space over the staircase from where the accused took out a "darati" and the Investigating Officer prepared the sketch of the said darati vide Ex.PW19/D. According to the witness the Investigating Officer took measurement of darati, length of handle was 21cm, length of blade was of 21cm and thereafter Investigating Officer converted the darati into a pullanda and sealed the same with the seal of RP and seized the same vide memo Ex.PW19/E including pointing out memo. Witness has further deposed that the seal after use was handed over to ASI Dev Raj and thereafter they returned to the Police Station where the Investigating Officer deposited the case property in the Malkhana and recorded his statement. (42) The witness has further deposed that on 18.09.2012 he collected seven sealed parcels from the MHC(M) along with two sample seals vide RC No. 79/21/12 and deposited the same in the FSL and after depositing the same he handed over the copy of acknowledgment to the MHC(M). According to the witness so long the exhibits remained in his custody, the same were not tampered in any manner.
(43) The witness has correctly identified the accused Mohd. Khairul in the Court and also the case property i.e. darati which was recovered by the accused which darati is Ex.P1.
(44) In his cross examination by Ld. Defence counsel, witness has deposed that it took about 1 1 ½ hours in the interrogation of the accused St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 36 and the accused was produced before the court concerned at about 11.00AM by ATS Staff. He is unable to tell the time when accused was produced before the Ld. MM by them after interrogation. Witness has further deposed that Inspector Rajender himself recorded the disclosure statement of accused and the same was recorded in the Court Complex. According to the witness the accused was taken into Police Custody Remand after 4.00PM and thereafter they proceeded for the place of incident and it took around 30 minutes to reach the spot. Witness has admitted that many people were present at the place of occurrence but none were joined in the investigation. Witness has further deposed that the room from where the recovery of darati was affected, was not found closed and it was totally open. He has stated that the accused was in his custody and it was the accused accused who took them upstairs. Witness has further deposed that first of all accused showed them the place where daranti was lying and thereafter he took out the darati from "Kabar". He has further deposed that it took around two to five minutes in taking out the darati. Witness has further deposed that the Kabar consisted of wastage of like domestic material. Witness has denied the suggestion that no disclosure statement was made by the accused or that no darati was recovered at the instance of the accused. He has also denied the suggestion that the darati was planted upon the accused by the police or that the accused was forced to signed the alleged disclosure statement and more signatures of accused were taken by the on blank papers.
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 37 (45) PW20 HC Mukesh Kumar has deposed that on 22.10.2011 he was posted at Police Station Bharat Nagar and on that day he along with Inspector Brij Pal on receiving DD No.22A regarding lying of a dead body at E70, Wazirpur JJ Colony, Delhi, reached the spot. According to the witness ASI Dev Raj, Ct. Deepak and Ct. Anuj were also with them and at the spot SI Sandeep and Ct. Dharmender were already found present. Witness has further deposed that at the second floor of H.No. E70, Wazirpur J J Colony in a room, a dead body of a male aged about 24 to 25 years was lying in decomposed condition which was lying facing to ground on a blanket of orange colour and from the cursory look it was found that there was an injury mark on the head of the body. Witness has further deposed that articles in the house were lying scattered and at the spot there was a foul smell and thereafter they came down to the stairs. According to the witness one Radha was also there who had broken the lock who had informed them about the dead body and thereafter SI Sandeep recorded statement of Radha and prepared the rukka and handed over the same to Ct. Deepak for registration of the case. Witness has further deposed that Ct. Deepak went to the Police Station for registration of the case and after sometime he returned to the spot and handed over the copy of the FIR and the original rukka to Inspector Brij Pal who then send the dead body to the mortuary of the BJRM Hospital, Jahangir Puri. Witness has further deposed that thereafter Inspector Brij Pal lifted two empty bottles of beer (Hayward's 5000) which were lying in the NorthEast side of the room St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 38 where the body was lying and converted those bottles into a pullanda and sealed the same with the seal of BPS and then seized the same vide memo Ex.PW20/A. Witness has further deposed that thereafter Radha handed over the said broken lock on which '566506' and 'Dharma Fighter' was mentioned and Investigating Officer Inspector Brij Pal converted the said lock into the pullanda and sealed the same with the seal of BPS and seized the same vide memo Ex.PW13/B. He has also deposed that thereafter Inspector Brij Pal lifted the blood sample with the help of a cotton, from the floor and blood control sample and earth control and kept the same into three plastic dibbies and separately sealed with the seal of BPS and were taken into possession vide seizure memo Ex.PW20/B. Witness has further deposed that Inspector Brij Pal called the Crime Team at the spot and Incharge of the Crime Team inspected the spot and the photographer took the photographs of the scene of crime and thereafter the Investigating Officer recorded his statement and he was relieved. (46) The witness has correctly identified one lock of white colour make fighter having some marks of breaking of some object which lock is Ex.P2 and two bottles of beer as the same lifted by the Investigating Officer in his presence which beer bottles are Ex.P3 and Ex.P4; one plastic transparent dibbi containing dry blood in cotton which was lifted by the Investigating Officer in his presence which is Ex.P5; one plastic transparent dibbi which found to contain blood control which was lifted by St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 39 the Investigating Officer in his presence which is Ex.P6 and one plastic transparent dibbi containing earth control which was lifted by the Investigating Officer in his presence which is Ex.P7. (47) In his cross examination by the Ld. Defence counsel, the witness has deposed that he remained at the spot from 5.15PM till about 12.00 midnight and the Crime Team reached at the spot in his presence and remained there for about 45 minutes to one hour and inspected the spot. He is unable to tell whether the thorough search was conducted by the Investigating Officer and states that only the Investigating Officer can tell about the same. He has testified that when he left the spot at 12.00 midnight, the Investigating Officer was still conducting the investigations. He is unable to tell as to when the Investigating Officer left the spot. Witness has denied the suggestion that he was deposing falsely. (48) PW21 SI Ravinder Singh has deposed that on 01.08.2012 he was posted in AATS, North District and on that day at about 3.30PM he was present in his office with Ct. Ansar. According to the witness at that time one secret informer came in office and informed him that a person by the name of Mohd. Khairul, who is habitual in committing theft in the area and is also wanted in a case registered at Police Station Rohini, might be available at a liquor shop in Gupta Market, Inderlok. Witness has further deposed that he shared this information with his senior officers of AATS and the secret informer was produced before the senior officers after which constituted a raiding team including ASI Rajender, HC Mahesh, HC Satish, St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 40 HC Rajesh, Ct. Ansar, Ct. Praveen and Ct. Amit vide DD No.15 which is Ex.PW21/A and proceeded for further proceedings. He has also deposed that thereafter they reached in Gupta Market where he requested fourfive public persons to join the proceedings but none were ready for the same and at the instance of the secret informer accused Mohd. Khairul was apprehended at 6.10PM. Witness has further deposed that the accused Mohd. Khairul was interrogated and his formal search was carried out during which an Iphone, Rs.12,000/, one purse and a TITAN watch was recovered. Witness has testified that the above said articles were found to be stolen from Tri Nagar which was within the jurisdiction of Police Station Keshav Puram on which he inquired from Police Station Keshav Puram and found that a case FIR No. 212/12 U/s 380 IPC had been registered in respect of the said stolen articles. According to the witness, thereafter he converted those articles into a pullanda and sealed with the seal of RS and taken into possession under Section 102 Cr.P.C. vide memo Ex.PW21/B. He has also deposed that thereafter he made further interrogation from the accused and at about 7.10PM accused Mohd. Khairul was arrested U/s 41.1(c)(d) Cr.P.C vide memo Ex.PW21/C. Witness has further deposed that his personal search was carried out vide memo Ex.PW21/D and his disclosure statement was recorded vide Ex.PW21/E. According to the witness during the investigation it revealed that accused was also wanted in case FIR No. 214/11 of Police Station Bharat Nagar and thereafter he along with police St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 41 party and accused person and case property returned to AATS office and the accused was kept in lock up and case property was deposited in the malkhana of Police Station Sarai Rohilla as AATS does not have its own Malkhana. He has proved that he made DD No.66B dated 01.08.2012 U/s 41.1 (c)(d) Cr.P.C. in Police Station Sarai Rohilla regarding their arrival and kept the accused in lock and also of depositing of the case property which DD No.66B is Ex.PW21/F. Witness has also deposed that thereafter he prepared Kalandara U/s 41.1 (c) and (d) Cr.P.C. which is Ex.PW21/G and accused was produced before the court concerned and gave the information to the concerned Investigating officers.
(49) In his cross examination by Ld. Defence counsel, witness has deposed that he interrogated the accused for about one hour. Witness has denied the suggestion that accused did not make any disclosure statement or that he was not aware as to whether he was wanted in the present case. Witness has denied the suggestion that he was deposing falsely at the instance of the Investigating officer.
(50) PW22 SI Dev Raj has deposed that on 22.10.2011 he was posted at Police Station Bharat Nagar and on that day on receipt of DD No. 22A regarding a dead body lying at E70, Wazirpur JJ Colony, Delhi he along with Inspector Brij Pal Singh, Ct. Deepak, Ct. Anuj and HC Mukesh reached the spot where SI Sandeep and Ct. Dharmender were already found present and at the second floor of H. No. E70, Wazirpur J J Colony in a room, a dead body of a male aged about 24/25 years was lying in St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 42 decomposed condition which was lying facing towards the ground on a blanket of orange colour. Witness has further deposed that from the cursory look it was found that there was an injury mark on the head of the body and the articles in the house were lying scattered. According to the witness at the spot there was a foul smell and thereafter they came down to the stairs and one Radha was also there who had broken the lock, had informed them about the dead body. Witness has testified that thereafter SI Sandeep recorded the statement of Radha and prepared the rukka and handed over the same to Ct. Deepak for registration of the case. According to the witness Ct. Deepak went to the Police Station for registration of the case and after sometime he returned to the spot and handed over the copy of FIR and original rukka to Inspector Brij Pal who sent the dead body to the mortuary of BJRM Hospital, Jahangir Puri. Witness has further deposed that thereafter Inspector Brij Pal lifted two empty bottles of beer (Hayward's 5000) which were lying in the NorthEast side in the room where the body was lying. He has testified that the Investigating Officer converted those bottles into a pullanda, sealed the same with the seal of BPS and then seized the same vide memo Ex.PW20/A. Witness has further deposed that thereafter Radha handed over the said broken lock on which '566506' and 'Dharma Fighter' was mentioned after which Investigating Officer Inspector Brij Pal converted the said lock into the pullanda and sealed the same wit the seal of BPS and seized the same vide memo Ex.PW13/B. According to the witness thereafter Inspector Brij Pal lifted the blood sample with the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 43 help of the cotton, from the floor and blood control sample and earth control and kept the same into three plastic dibbies and separately sealed with the seal of BPS and were taken into possession vide seizure memo Ex.PW20/B. Witness has further deposed that Inspector Brij Pal called the Crime Team at the spot and Incharge of the Crime Team inspected the spot and the Photographer took the photographs of the scene of crime. He has also deposed that on 21.10.2011 he along with Inspector Brij Pal Singh went to the mortuary of the BJRM Hospital where Inspector Brij Pal Singh filled the 25.35 (1) (b) Form and prepared the brief facts and completed the inquest proceedings and recorded statement of witness who identified the dead body and after the postmortem the dead body was handed over to its relatives. According to the witness after the postmortem the concerned doctor handed over two sealed pullandas and one sample seal to Ct. Dharmender and Ct. Dharmender handed over the same to the Investigating Officer which the Investigating Officer took into possession vide memo Ex.PW3/A. (51) He has further deposed that on 02.08.2012 he along with Inspector Rajender Prasad and Ct. Kuldeep Singh had gone to AATS North, Daya Basti in the investigation of this case and accused Mohd. Khairul was in the custody of AATS (North) staff in some other case. According to the witness Inspector Rajender Prasad collected the documents of the case in which accused was arrested by the AATS staff from SI Ravinder after which the accused was brought to Rohini Courts and was produced before St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 44 the Ld. Illaqua Magistrate by AATS staff and thereafter with the permission of the court accused Khairul was interrogated who made his disclosure statement in this case which is Ex.PW19/A. Witness has further deposed that thereafter the accused was arrested vide memo Ex.PW19/B and after the accused was produced before the Court concerned and he was taken on two days Police Custody Remand. According to the witness thereafter police party along with accused went to the place of incident i.e. H. No. E70, Wazirpur J J Colony, Delhi, Second floor and pointed the place of incident vide memo Ex.PW19/C. Witness has further deposed that there was a space over the staircase and accused took out a "darati" from that space after which the Investigating Officer prepared the sketch of the said darati vide Ex.PW19/D. According to the witness the Investigating Officer took measurement of darati, length of handle was 21cm, length of blade was of 21cm and thereafter Investigating Officer converted the darati into a pullanda and sealed the same with the seal of RP and seized the same vide memo Ex.PW19/E including pointing out memo. Witness has further deposed that the seal after use was handed over to him and thereafter they returned to the police statement and Investigating Officer deposited the case property in the Malkhana and recorded his statement. (52) The witness has correctly identified the accused in the Court and the case property i.e. the daranti which was got recovered by the accused which is Ex.P1; one lock of white colour make fighter having St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 45 some marks of breaking of some object which lock is Ex.P2 and two bottles of beer as the same lifted by the Investigating Officer in his presence which beer bottles are Ex.P3 and Ex.P4; one plastic transparent dibbi containing dry blood in cotton which was lifted by the Investigating Officer in his presence which is Ex.P5; one plastic transparent dibbi which found to contain blood control which was lifted by the Investigating Officer in his presence which is Ex.P6 and one plastic transparent dibbi containing earth control which was lifted by the Investigating Officer in his presence which is Ex.P7.
(53) In his cross examination by the Ld. Defence counsel, witness has deposed that he reached the spot at about 5.25PM and remained there till 12.00 midnight. According to the witness the room was already opened and the complainant Radha informed that she had broken the lock of the room as foul smell was emanating from the room. Witness has further deposed that both the bottles which were recovered form the room, were empty and no chance prints were found on the bottles by the crime team and therefore they were lifted by naked hands. According to the witness Crime Team reached the spot at about 6.20PM and remained there till 7.10PM. Witness has further deposed that Investigating Officer and other police personnel thoroughly search the place of occurrence and the exhibits including the blood stains were lifted by Inspector Brij Pal Singh after the crime team left the spot. He has also deposed that he left the spot at about 12.00 midnight along with Investigating Officer and the place of occurrence St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 46 was locked by the Investigating Officer before leaving the spot. The witness has testified that on 02.08.2012 he along with Investigating Officer Inspector Rajender Prasad went to the office of the AATS at about 1.30PM where accused was present. According to the witness the accused was interrogated outside the Court after taking permission from the Ld. MM and the accused was produced in the court at about 2.30PM. Thereafter the accused was interrogated after permission of the court. Witness has further deposed that the interrogation continued till 20 minutes and no public persons including court staff, lawyer, litigants etc. were joined during the interrogation of the accused. According to the witness the Investigating Officer took about 3540 minutes in recording the disclosure statement which is in the handwriting of the Investigating Officer. Witness has denied the suggestion that the accused did not make any disclosure statements or that accused was compelled to sign on some blank papers. Witness has admitted that he was already aware about the spot of the incident and that on the day of the incident, the other tenants were also residing in the building and has voluntarily explained that on 02.08.2012 i.e. the day of recovery, there were no tenants in the building. Witness has admitted that there is no door on the staircase leading to the roof from where the darati was got recovered. Witness has admitted that anybody can have a free access to the roof without the knowledge of the other residents. Witness has admitted that the place of recovery of Darati i.e. roof/taand is an open area and has voluntarily added that there was other Kabar present on the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 47 roof. He has also admitted that other Kabar belongs to the landlord. Witness has further deposed that the Darati had been recovered by the accused and therefore there was no occasion for the Investigating Officer to use any gloves. Witness has denied the suggestion that there were no blood stains or brown stains on the Darati Ex.P1. It has been observed by this Court that only rust is seen on the darati. He has denied the suggestion that that there was no recovery of darati by the accused or at the instance of the accused or that the same has been planted upon the accused. Witness has denied the suggestion that he was deposing falsely at the instance of his senior officers.
(54) PW23 Inspector Sandeep Kumar has deposed that on 20.10.2011 he was posted at Police Station Bharat Nagar as Sub Inspector and on that day he received DD No. 22A, copy of which is Ex.PW4/A after which he along with Ct. Dharmender reached at E70, Wazirpur JJ colony where he met the complainant Radha wife of Bhupati who informed him that dead body was lying on the second floor. Witness has further deposed that thereafter he reached the second floor and found that one dead body of male aged about 2527 years was lying on the floor on a blanket with blood oozing out from the head and he noticed that the deceased was only wearing a white colored pant and there were injuries marks on head and back. According to the witness the body was in a putrefying condition with skin pealing off and foul smell was emanating from the same and the articles in the room was found scattered. Witness has further deposed that he St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 48 immediately preserved the scene of crime and informed the crime team after which the SHO and Crime Team came and inspected the same and the photography of the spot of the scene was got done. He has also deposed that he then recorded the statement of complainant i.e. Radha W/o Bhupati who had identified the dead body as that of the tenant Abdul Sattar who had been residing in the premises for the last four to five months and was residing there along with two other males and one lady with a female child. Witness has further deposed that the statement of Radha is Ex.PW13/A on which he made his endorsement on the same which is Ex.PW23/A after which he send the same to Police Station through Ct. Deepak for registering the FIR. Witness has further deposed that on the directions of the Investigating Officer he remained at the spot for preserving the scene of crime and after registration of the FIR the investigations were handed over to the SHO who recorded his statement and relieved him. (55) In his cross examination by the Ld. Defence counsel, witness has deposed that when he reached the spot, there were around 50100 persons present there and he was the first person from the local police to reach there along with Ct. Dharmender. According to the witness he did not notice any PCR official near the spot but he cannot tell if they were also present at the spot or not and states that at that time there was no body from the family of the deceased. Witness has further deposed that the body was putrefied and it was difficult even to identify from the face and has voluntarily explained that the landlady had identified the dead body perhaps St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 49 having seen him previously. He has admitted that when he reached the spot, the room was already opened. He has further deposed that there was nobody inside the room on the second floor when he reached there and Radha had informed him that she had opened the door by breaking the lock with a hammer herself and he did not record the statement of any other person.
(56) PW24 Inspector Brijpal Singh is the initial Investigating Officer of the present case who has deposed that on 20.10.2011 he was posted at Police Station Bharat Nagar and on that day on receiving DD No. 22A regarding a dead body lying at E70, Wazirpur J J Colony, Delhi he along with ASI Dev Raj, Ct. Deepak, Ct. Anuj and HC Mukesh reached the spot. According to the witness SI Sandeep and Ct. Dharmender were already found present at the spot and at the second floor of H.No. E70, Wazirpur JJ Colony in a room, a dead body of a male aged about 24/25 years was lying in decomposed condition which was lying facing towards the ground on a blanket of orange color. The witness has further deposed that from the cursory look it was found that there was an injury mark on the head of the body and the articles in the house were lying scattered. He has further deposed that at the spot there was a foul smell and one Radha was also there who had broken the lock and had informed about the dead body. According to the witness the Crime Team was called at the spot and Incharge of the Crime Team inspected the spot and the photographer took the photographs of the scene of crime after which SI Sandeep recorded St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 50 statement of Radha and prepared the rukka and handed over the same to Ct. Deepak for registration of the case. According to the witness Ct. Deepak went to the Police Station for registration of the case and after sometime he returned to the spot and handed over the copy of the FIR and the original rukka to him and he sent the dead body to the mortuary of BJRM Hospital, Jahangir Puri through Ct. Dharmender. Witness has further deposed that thereafter he taken into possession, two empty bottles of beer (Hayward's 5000) which were lying in the NorthEast side of the room where the body was lying. According to the witness he converted those bottles into pullanda and sealed the same with the seal of BPS and then seized the same vide memo Ex.PW20/A. Witness has further deposed that thereafter Radha handed over the said broken lock on which '566506' and 'Dharma Fighter' was mentioned after which he converted the said lock into the pullanda and sealed the same wit the seal of BPS and seized the same vide memo Ex.PW13/B. Witness has further deposed that thereafter he lifted the blood sample with the help of the cotton, from the floor and blood control sample and earth control and kept the same into three plastic dibbies and separately sealed with the seal of BPS and were taken into possession vide seizure memo Ex.PW20/B. He has proved having prepared the rough site plan which is Ex.PW24/A and thereafter they returned to the Police Station where the case property were deposited in the Malkhana. He has also deposed that on 21.10.2011 he along with ASI Dev Raj went to the mortuary of the BJRM Hospital where he filled the Form 25.35 (1) (b) which is St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 51 Ex.PW24/B, prepared the brief facts which is Ex.PW24/C and completed the inquest proceedings and recorded statement of Mohd. Akil who identified the dead body which are Ex.PW17/A and statement of Mohd. Bashir which is Ex.PW24/D. Witness has further deposed that thereafter he made the request to the Incharge Mortuary vide request Ex.PW24/E for conducting the postmortem on the dead body and after the postmortem the dead body was handed over to its relatives vide memo Ex.PW17/B. He has testified that after the postmortem on 21.10.2011 the concerned doctor handed over two sealed pullandas and one sample seal to Ct. Dharmender and Ct. Dharmender handed over the same to him which he took into possession vide memo Ex.PW3/A. According to him, during his tenure of investigations he recorded the statements of witnesses and thereafter on 03.11.2011 he was transferred and handed over the case file to MHC(R). (57) The witness has correctly identified the case property i.e. one lock of white colour make fighter having some marks of breaking of some object which lock is Ex.P2 and two bottles of beer as the same lifted by him which beer bottles are Ex.P3 and Ex.P4; one plastic transparent dibbi containing dry blood in cotton which was lifted by him which is Ex.P5; one plastic transparent dibbi which found to contain blood control which was lifted by him and is Ex.P6 and one plastic transparent dibbi containing earth control which was lifted by him which is Ex.P7. St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 52 (58) In his cross examination by the Ld. Defence counsel, witness has deposed that he reached the spot at about 5:25 PM and left the spot at about 12:20 AM (midnight) and conducted the casual search in the room where the body was lying and another room adjacent to that room. According to the witness the Crime Team reached at around 6:20 PM and inspected the body and the area adjoining the spot of incident and lifted exhibits. Witness has further deposed that as long as the investigations remained with him he had not sent the exhibits to FSL and he remained as Investigating Officer till 03.11.2011. He has also deposed that he recorded the statement of witnesses at the spot except the statement of Ct. Om Parkash on 20.10.2011. According to the witness, he had not used any preservative for preserving blood and has voluntarily explained that it is not required as he had taken a necessary precautions. Witness has admitted that before recording the statement he made formal inquiries from the residents of E70. He has further deposed that during examination of witnesses it revealed that Khairul, deceased Abdul Sattar, Khairul's wife namely Parveen and Khairul's brother in law namely Joshin were living together in the same premises and it has also came to his knowledge that Abdul Sattar was having illicit relations with Khairul's wife. The witness has also deposed that he did not make any efforts to inquire about the wife and children of deceased Abdul Sattar. He has further deposed that the identity of the deceased was established on identification of the landlady. According to him, he did not know him previously nor there was any family St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 53 member who could identify him. He has deposed that the DNA examination of the deceased was not got conducted to match the same with his family for conclusively establishing his identity. Witness has further deposed that he could not trace out the wife, children, parents or brother and sisters of deceased for purpose of establishing his identity on the basis of DNA examination and has voluntarily explained that the dead body was identified by his Mama and Jija on the next day. The witness has also deposed that he did not make any inquiries regarding wife and children of the deceased and has voluntarily explained that he was transferred from the Police Station on 03.11.2011. Witness has denied the suggestion that he did all documentations while sitting in the Police Station of his own or that he also recorded the statements of witnesses of his own. Witness has denied the suggestion that the accused was falsely implicated in the present case as he was having friendly relations with the deceased or that accused has been falsely implicated only to work out a blind case in view of his previous criminal antecedents. The witness has denied the suggestion that witnesses were accordingly pressurize to give statement as directed by the police. (59) PW25 Inspector Rajender Prasad is the subsequent Investigating Officer of the present case who has deposed that on 08.01.2012 he was posted as SHO at Police Station Bharat Nagar and on that day he received the case file in the present case from the MHC(R) for further investigations. According to the witness on receipt of case file he visited the place of incident i.e. E70, JJ colony, Wazirpur, Delhi and St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 54 conducted local inquiry from the local residents and made attempt to trace accused Mohd. Khairul who was absconding after vacating the premises where he was staying. Witness has further deposed that he also analyzed the CDs written by the previous Investigating Officer and thereafter on 05.06.2012 he got prepared the scaled site plan from Draftsman SI Manohar Lal at the instance of ASI Dev Raj at the scene of crime i.e. E70, JJ Colony, Wazirpur which site plan is Ex.PW8/A. He has testified that on 02.08.2012 he received information from SI Ravinder of AATS North District, Daya Basti regarding the arrest of Mohd. Khairul vide DD No. 3A which is Ex.PW25/A. According to the witness on receipt of this information he along with ASI Dev Raj, Ct. Kuldeep reached the office of the AATS Daya Basti in the official gypsy and collected the copies of the arrest memo, personal search, disclosure statement, DD entry and Kalandara. Witness has proved the copy of the arrest memo which is Ex.PW21/C, copy of personal search is Ex.PW21/D, copy of disclosure statement is Ex.PW21/E and the original Kalandara is Ex.PW21/G. He has further deposed that thereafter he along with the staff came to the Rohini Court and filed the application before the Duty Magistrate before whom the accused Mohd. Khairul was produced and sought permission for interrogation for half an hour. According to the witness after the permission was granted to him and he interrogated the accused outside the court and thereafter formally arrested him vide memo Ex.PW19/B and recorded his disclosure statement vide Ex.PW19/A. He has also deposed St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 55 that he then produced the accused before the Ld. Duty MM with the request for two days Police Custody Remand as the weapon of offence was to be searched and coaccused were to be apprehended. According to the witness the Ld. Duty MM granted two days Custody Remand after which he along with ASI Dev Raj, Ct. Kuldeep and the accused went to the Police Station where he interrogated the accused at length. Witness has further deposed that thereafter he along with the accused ASI Dev Raj, Ct. Kuldeep went to scene of crime i.e. E70, JJ Colony, Wazirpur where the accused pointed out the room on the second floor as the room where he had been staying as tenant along with his wife and brother in law/sala and thereafter he prepared the pointing out memo vide Ex.PW19/C. Witness has also deposed that thereafter the accused took them to the slip/tand on the staircase above the second floor where a large quantity of junk was lying and he then got one darati recovered from under the junk which was in the shape of a sickle. He has proved having prepared the sketch of the same which is Ex.PW19/D. Witness has further deposed that he thereafter measured the same diagonally from the two ends and found the total length of the darati as 31cm with the handle of 21 cm and blade was of 21 cm and the width was 3.4 cm. He has proved having converted the same into pullanda with the help of a cloth and sealed with the seal of RP after which the seal was handed over to ASI Dev Raj and then prepared the seizure memo Ex.PW19/E. He has testified that they then returned to the Police Station where accused was put in the lock up of Police Station Ashok Vihar St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 56 and the case property was deposited in the Police Station Bharat Nagar. Witness has further deposed that since on interrogation it was found that the accused was an original resident of Bangladesh and hence the charges U/s 14 of Foreigners Act was also invoked against him. He has also deposed that on 03.08.2012 accused was taken out from the lock up and handed over to the custody of Ct. Kuldeep and was further interrogated regarding whereabouts of his wife namely Parveen and brother in law/ sala namely Joshim after which at the instance of the accused efforts were made to trace the said accused in the jhuggie cluster at Rampura near Zakhira as the accused Mohd. Khairul had disclosed that they could be present there but both of them could not be traced. He has further deposed that he then returned back to the Police Station and called Maya and Devki to the Police Station where they identified the accused Mohd. Khairul as their tenant on the second floor and who had left the spot on 17.10.2011 after locking the door of the tenanted room. he recorded their statements and relieved them. Witness has further deposed that on 04.08.2012 he produced the accused Mohd. Khairul to the court from where he was remanded to Judicial Custody. According to the witness, on 15.09.2012 he obtained the subsequent opinion from the Autopsy Surgeon regarding cause of death after producing the weapon of offence i.e. darati recovered at the instance of the accused before the autopsy surgeon which subsequent opinion is Ex.PW11/B on his application which is Ex.PW25/B. He has further deposed that on 18.09.2012 he got deposited the exhibits in the FSL Rohini St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 57 through Ct. Kuldeep and he recorded the statements of Ct. Kuldeep and MHC(M) CP. He has also deposed that he then prepared the charge sheet and filed the same in the Court and after obtaining the result of the FSL he also prepared the supplementary charge sheet and filed the same in the court. The witness has correctly identified the accused Mohd. Khairul in the Court and also identified the case property i.e. darati which was recovered at the instance of the accused which darati is Ex.P1. (60) In his cross examination by the Ld. Defence counsel, witness has deposed that he did not visit the site on the very day the investigations were handed over to him and has voluntarily explained that he first went to the spot on 22.01.2012. According to the witness on the said day i.e. 22.01.2012 he did not search the scene of crime and has voluntarily explained that he had only gone there to have a look at the scene of crime which he had not seen previously. Witness has further deposed that he had reached the Rohini Court on 02.08.2012 at around 2:30 PM and when he interrogated the accused on 02.08.2012 he did not join any Court Staff, litigant or any other public person in the interrogation and has voluntarily explained that the relative of the accused namely Naushad was present during the interrogation and the information of arrest was given to him. Witness has admitted that the disclosure statement of the accused does not bear the signatures of Naushad. He has denied the suggestion that the accused Mohd. Khairul did not make any disclosure statement to him regarding the weapon of offence or that he recorded the statement of his St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 58 own in the Police Station and compelled the accused to sign the same or that it is for this reason it does not bear the signatures of Naushad. Witness has further deposed that when he went to E70, JJ colony, Wazirpur large number of neighbors were present but they refused to join the proceedings. According to the witness, he did not prepare the refusal memo and also did not give any notice to the persons who had refused to join the proceedings carried out at E70, JJ Colony. Witness has further deposed that the landlord is residing on the ground and on the first floor but he did not join her in the proceedings and has voluntarily explained that she is totally bed ridden and is unable to move. According to the witness he had requested family members of the landlady i.e. Radha and Devki to join the proceedings but she also refused. He does not recollect if he has mentioned about this refusal in the case diaries.
(61) The witness has admitted that the darati similar to Ex.P1 is easily available in the market and has voluntarily explained that the darati Ex.P1 was appeared to be rusted and blood stained which fact he has mentioned in the seizure memo. Witness has admitted that the tand is easily accessible to anybody as there is no separate door to prevent access to the top floor through the stair case. He has denied the suggestion that darati EX P1 was planted on the accused only to connect him to show the recovery and work out the present case. The witness has also denied the suggestion that he had prepared all documents while sitting in the Police Station which were signed by his junior officers on his directions. He has St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 59 also denied the suggestion that he had prepared the charge sheet without application of mind or that the accused Mohd. Khairul was not a tenant in the premises No. E70, JJ Colony but witness has has admitted that there are no documents of tenancy.
(62) Witness has further deposed that he came to know that the accused was a Bangladeshi National because he gave his address of District Khulna, Bangladesh. According to the witness, he did not get the same verified and has voluntarily explained that his wife and family is still residing at Bangladesh and even previously he has been deported to Bangladesh but he keeps returning for purposes of committing offences and every time he comes he stays on a new address. Witness has denied the suggestion that the accused Mohd. Khairul is an Indian National and he is wrongly showing him as a Bangladeshi. Witness has denied the suggestion that the proceedings conducted by him were motivated only to work out a blind case or that the accused has been falsely implicated. STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(63) After completion of prosecution evidence the statement of accused was recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to him which he has denied. The accused Mohd. Khairul has stated that he is innocent and has been falsely implicated by the police only to work out the blind murder case. According to the witness, he has not committed any offence and prior to 3035 days of the date of alleged St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 60 incident he had gone to the village of his wife at District Khulna, Bangladesh as his wife was pregnant at that time. The accused has further stated that when he came back to India the police falsely implicated him in this case and the alleged recovery has been planted upon him by the police. According to the accused, he did not make any disclosure statement as alleged and he has nothing to do with the alleged incident. He has further stated that he can produce his Election ID Card issued by the Election Commission of Indian if opportunity is given to him.
(64) Initially the accused stated that he wanted to lead evidence in his defence, however, after he was granted an opportunity in this regard no witness was examined by him in his defence.
FINDINGS:
(65) I have heard the arguments advanced before me by the Ld. Addl. Public Prosecutor for the State and the Ld. Defence Counsels. I have also gone through the memorandum of arguments filed on behalf of the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
Public witnesses:
1. Mohd. Moshin He is the father of the deceased who has deposed on the
(PW9) following aspects:
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 61
1. That deceased Abdul Sattar was his son who used to drive a car in Delhi and was residing with his friend Khairul at JJ Colony, Delhi.
2. That about 15 days before the death of Abdul Sattar, he i.e. deceased had come to their village and remained there for about two to three days when he (i.e. Abdul Sattar) disclosed to him that his friend Khairul had to return his Rs.53,000/.
3. That Abdul Sattar also told him that he was going to Delhi and after taking back his money i.e. Rs.
53,000/ from Khairul, he would send the same to them in their village.
4. That thereafter Abdul Sattar went to Delhi and was residing with his friend Khairul at Delhi. According to the witness, his brother in law Bashir informed him about the death of his son Abdul Sattar and on 27.10.2011 he along with his wife then came to Delhi.
5. That he along with Bashir went to the Police Station and told all the facts to them.
6. Witness has further deposed that his son Abdul Sattar also told him that his friend Khairul was not a good person.
2. Smt. Savila She is the mother of the deceased who has deposed as Khatoon (PW10) under:
1. That the deceased Abdul Sattar was her son who was residing at Delhi along with his friend Khairul a person who was original resident of Bangladesh.
2. That her son Abdul Sattar used to drive a car at Delhi and Ten to Fifteen day prior to his death Abdul Sattar came to their village and informed them that his friend Khairul had to pay his Rs.53,000/.
3. That Abdul Sattar also informed him that Khairul was not a good person and had no intention to pay back his money.
4. That his son Abdul Sattar told them while going to Delhi that he would send the money to them after taking his Rs.53,000/ from Khairul.
5. That it was her brother Bashir who informed them St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 62 that Abdul Sattar had been murdered and thereafter she along with her husband came to Delhi and told all the facts to the police.
3. Ms. Radha This witness has deposed on the following aspects:
(PW13) 1. That she was residing with her mother namely Maya and her grand maternal mother namely Smt. Devki (who according to the witness is not in a position to move and her health is very critical) at E70, Ground Floor, Wazirpur JJ Colony, Delhi.
2. That her husband was residing in Village Uragni, Distt. Tirnamalaya, Tamil Nadu and he is visiting them from time to time.
3. That the house of her grand maternal mother was of three floors and on the third floor of the said premises deceased Abdul Sattar was residing as a tenant.
4. That alongwith Abdul Sattar the accused Khairul whom the witness has correctly identified in the Court was also residing alongwith his wife and his brother in law and his child and one of his associates.
5. That one of the relatives of Abdul Sattar was running in a Madarsa in Patharwala Bagh, Kanhayya Nagar.
6. That on the third floor of the said premises, Ramesh Gore alongwith his wife Sarthi Gore was residing as a tenant.
7. That on 20.10.2011 a foul smell was emanating since morning from the second floor in which Abdul Sattar was residing on which she informed this fact to her maternal grand mother at about 4.304.45PM.
8. That after disclosing this fact to her Nani and having informed her that she wanted to check the said room as to why the foul smell was emanating, she went to upstairs while she was going upstairs the foul smell was increasing as per steps of the stairs.
9. That when she reached in front of the room of deceased Abdul Sattar, she found a large amount of foul smell emanating from the room and found the iron door of that room locked.
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 63
10. That thereafter she came down and told this fact to her grandmother/ Nani and disclosed to her that a foul smell was emanating from the room which was rented out to deceased Abdul Sattar.
11. That in order to know the reason for the foul smell, she took out a hammer and again went upstairs to the room of Abdul Sattar and broke open the lock and entered the room and saw that Abdul Sattar lying on the ground with his face towards ground and discovered that foul smell was emanating from his body on which she got extremely scared and rushed out from the room.
12. That she then went to the ground floor and told her grandmother/ Nani about what she had seen and then she called the police.
13. That after the police came to the spot, she took them to the room where she had seen the body of Abdul Sattar and after conducting the proceeding the police took the body of Abdul Sattar.
14. That she was called in the Police Station and her statement was recorded vide Ex.PW13/A.
15. That on 20.10.2011 when she first felt the smell emanating from the room of deceased Abdul Sattar, she did not notice accused Khairul, his wife, his child and his associate as they were found absent from 18.10.2011.
16. That the lock (Ex.P1) which she had broken from the room of deceased was taken by the police in their possession after converting the same into a pullanda and seized vide memo Ex.PW13/B.
17. That when police came at the spot, they inspected the spot from all the angles.
4. Smt. Maya She is the landlady of the premises where the accused and (PW14) the deceased were residing. She has deposed on the following aspects:
1. That she was residing with her mother namely Devki alongwith her daughter Radha on the ground floor of H.No. E70, JJ Colony Wazirpur, Delhi.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 64
2. That the said premises is built upto four stories and on the third floor deceased Abdul Sattar who used to drive a vehicle was residing together alongwith Mohd. Khairul his wife and one of his associate and used to live together on the third floor.
3. That on 17.10.2011 at about 8.00PM she noticed that accused Mohd. Khairul and one of his associates were going upstairs to the room with beer bottles, which had been rented to Abdul Sattar and in which they were living.
4. That on the very same day at about 12.00 midnight due to uneasiness, she came out from the room and sat in front of the staircase when at that time she noticed that the wife of accused Mohd. Khairul alongwith his child came downstairs and thereafter the associate of Khairul also came out after which accused Mohd. Khairul came down and they were having small type bags in their hands after which they all left the premises.
5. That she did not inquire from those person as to why they were going.
6. That in the next morning she left for her work in Ashok Vihar where she used to work as a maid servant.
7. That on 20.10.2011 at about 3.00PM when she returned from her job, she felt that a foul smell was emanating from the said building on which initially she and her daughter Radha checked the ground floor and staircase on the ground floor.
8. That she and her daughter again checked the first floor and second floor but nothing was found after which she and her daughter Radha went on the third floor to the rooms which were facing each other and were rented to the deceased.
9. That one of the room was found open whereas the door of one of the room was locked and when they checked, she and her daughter noticed that a foul smell was emanating from the room of the third floor St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 65 which had been rented out to deceased Abdul Sattar.
10. That her daughter took out a hammer and broke open the lock of the room which had been locked and when they broke open the lock and entered inside the room, Abdul Sattar was found lying facing to the floor with his neck slit.
11. That Abdul Sattar was lying on the blanket which was soaked with blood and after seeing the body they were scared and her daughter made a call at 100 number.
12. That police came and took the body with them and inspected the room properly in which the body was lying.
13. That on the fourth floor one Ramesh Sarthi alongwith his family members was residing.
14. That she was interrogated by the police and she informed to them all the facts which she had deposed in the court.
5 Smt. Sarthi Gore This witness was also a tenant in the same building where (PW15) the deceased and accused were residing on rent. She has deposed as under:
1. That she is residing at E70, Wazirpur, JJ Colony, Delhi alongwith her husband on the fourth floor for the last 12/13 years.
2. That the deceased Abdul Sattar and accused Khairul, whom the witness has correctly identified in the Court were residing on the third floor of the house alongwith the wife of Mohd. Khairul, his child and his brother in law.
3. That on the ground floor of the said premises landlady, her daughter and her granddaughter (Dhevti) were residing.
4. That whenever she used to go upstairs many a times she had noticed the deceased and the wife of accused in obscene condition/ objectionable position (galat harkat karte huye).
5. That accused Khairul was an addict and that the deceased Abdul Sattar used to be in obscene St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 66 condition with the wife of accused while the accused Khairul remained in the other room in intoxicating condition.
6. That she had informed the said facts to the daughter of Devki.
7. That on 17.10.2011 she had seen the accused, his brother in law (Sala) and his wife in their room on the third floor.
8. That on 18.10.2011 when she came downstairs to ease herself (for latrine) and she noticed the lock on the room in which the accused and deceased were residing and thereafter she did not see them in their room.
9. That after twothree days from 17.10.2011 they felt a foul smelling was emanating from the third floor and thereafter she came down and told to the landlady about the foul smell.
10. That the grand daughter of landlady namely Devki came upstairs and broke open the lock of the room when they noticed the body of Abdul Sattar lying there.
11. That thereafter police came at the spot and they carried out the proceedings and they were also taken to the Police Station for interrogation.
12. That on 18.10.2011 her husband was not at home as he had gone to meet the husband of one Maina in Fatehpur Jail, alongwith this Maina who was living with them.
6 Sh. Ramesh Gore He is the husband of Smt. Sarthi Gore (PW15) and has (PW16) deposed on the following aspects:
1. That he is residing at E70, Wazirpur, JJ Colony, Delhi since last more than 12 to 13 years as tenant and deceased Abdul Sattar and accused Khairul were residing on the third floor of the house alongwith his wife, his child and his brother in law.
2. That on the ground floor of the said premises, landlady, her daughter and her grand daughter (Dhevti) were residing.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 67
3. That whenever he used to go upstairs many a times he had noticed the deceased and the wife of accused in a jolly mood who used to make jokes with each other.
4. That on 17.10.2011 at about 10.30PM when he came downstairs to ease himself in the toilet on the second floor the accused Khairul, met him in the staircase going upstairs stating that he had won a bet from the deceased of 12 bottles of beers which he had brought.
5. That accused Khairul invited him to consume beer but he refused and after easing himself when he was going upstairs, when he saw the deceased Abdul Sattar coming downstairs who also invited him to take the meat which the accused, deceased and his brother in law brought but he again refused and thereafter went upstairs to his room.
6. That on 17.10.2011 when deceased Abdul Sattar, accused Khairul and his brother in law were consuming beer, he heard that they were talking in a hot manner and were talking about some money transactions (len den ki baat kar rahe thay).
7. That on next day i.e. on 18.10.2011 when he woke up and came down to the second floor toilet, he noticed that there was a lock in the room in which deceased Abdul Sattar and accused Khairul was residing.
8. That accused Khairul, his brother in laws and his wife were not present at that time.
9. That on the same day in the evening he took the train for Fatehpur at about 11.40PM alongwith Ms. Maina who was living with them, to meet her husband who was in Fatehpur Jail and also to attend engagement ceremony of his brother in law in Fatehpur (UP).
10. That on the day of Small Diwali he came back to his rented house at the above premises and his wife was taken to the Police Station.
11. That he immediately went to the Police Station Bharat Nagar where he disclosed all these facts to the SHO and also showed all the gifts which were St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 68 gifted to him in the engagement of his brother in law (Dharam ka sala).
12. That he also produced the railway ticket before the SHO and thereafter he alongwith his wife returned to his room and celebrated Diwali.
13. That when he went to Fatehpur alongwith Ms. Maina, his son was also with him and that when he came back from Fatehpur and reached his house and did not find his wife, from the public persons who were present at the spot, came to know that the dead body of Abdul Sattar was found in his room in a semidecomposed condition and at that time accused, his brother and his wife were not present as they were already found absent from morning of 18.10.2011.
7. Mohd. Aqueel He is the brother in law (Jija) of the deceased in relation.
(PW17) He has deposed on the following aspects:
1. That deceased Abdul Sattar was the cousin of his wife and was residing at E70, JJ Colony Wazirpur, Delhi for the last eight to ten months from the date of incident and accused Khairul, his wife and his brother in law were residing in the said premises.
2. That the deceased Abdul Sattar generally used to visit him and he generally told him that he had fallen in love with the wife of accused Khairul and he wanted to meet her.
3. That he used to made him (Khairul) understand that wife of Khairul was already married and they could arrange a pretty girl for him.
4. That he made him understand so many times but Abdul Sattar was adamant and also told him that wife of Khairul also cannot live without him and that Khairul was aware about their intimacy i.e. between him (Abdul Sattar) and the wife of Mohd. Khairul.
5. That Abdul Sattar also told him that Khairul had taken Rs.50,000/ or Rs.53,000/from him which he had to take back from Khairul but Khairul was not returning the said amount.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 69
6. That on 17.10.2011 it was Monday, deceased Abdul Sattar and accused Khairul had come to his Madarsa in Patharwala Bagh at about 11.00AM and Abdul Sattar told him to make a Taveez for Khairul so that he can return his above said amount.
7. That he told them that he can prepare the Taveez for them but they should take the same from him in the evening time of the same day after which during the evening time of the same day at about 6.00PM again both came to his Madarsa and took the Taveez from him.
8. That on 20.10.2011 he got free from Isha Ki Namaaz and he came to know that some murder had taken place at E70 JJ Colony Wazirpur, Delhi and at about 9.30/10.00PM he reached there.
9. That it was a Jummerat (Thursday), a crowd was there and some police officials were also there and SHO was also present and he informed the police that in the said premises, his brother in law Abdul Sattar was residing.
10. That at that time the body of Abdul Sattar had already been shifted to hospital and thereafter on 20.10.2011 his statement was got recorded by he SHO through one police official.
11. That on 21.10.2011 he identified the dead body of Abdul Sattar his brother in law in the mortuary of BJRM Hospital vide his statement Ex.PW17/A and after postmortem he received the dead body of Abdul Sattar vide receipt Ex.PW17/B and thereafter the last rites of Abdul Sattar was performed.
12. That Abdul Sattar was having his own car and was very intelligent and Abdul Sattar was murdered as he was having relations with the wife of the accused Mohd. Khairul.
In his crossexamination the witness on suggestion made to him by the Ld. Defence Counsel also specifically narrated an incident when both the deceased Abdul Sattar and wife of the deceased had come to him asking him to perform marriage/ St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 70 Nikah on which he not only refused but also scolded both of them.
Medical Evidence:
8. Dr. Bhim Singh He is the Autopsy Surgeon who has proved having conducted (PW11) the Postmortem examination on the dead body of the deceased Abdul Sattar S/o Mohd. Mohsin vide report Ex.PW11/A according to which there were following injuries on the body of the deceased:
1. Incised wound 9cm x 4cm x 4cm front of neck at the level of thyroid, underline tissue shows sharp cut, tailing of wound on right side.
2. Incised stab wound 1cm x 1cm x 1.5cm, outer aspect lateral side of right eye.
3. Lacerated wound 1.5cm x 1cm x bone deep middle of forehead.
4. Lacerated wound 1.5cm x 1cm x bone deep right side of forehead.
5. Lacerated wound 1.8cm x 1cm x bone deep over right parital region.
6. Lacerated wound 2.5cm x 1.5cm x bone deep right occipito parital region.
He has also proved the following aspects:
1. That on internal examination of Head and Neck there was extravassation of blood in scalp layer below injury no. 3 to 6; signature fracture (depressed fracture) was present blow injury in No.6 i.e. 2cm x 2cm, brain matter liquefied coming out from fractured site; neck shows sharp cut in thyroid, trachea, esophagus and vessels and muscles of the neck.
2. That the death was due to comma and shock consequent upon head and neck injury, all injuries were antimortem, fresh in duration and Injury No.1 could be caused by sharp edged weapon and sufficient to cause death in ordinary course of nature; Injury No.2 could be caused by sharp edged weapon and Injury no. 3 to 6 could be caused by St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 71 heavy blunt hard object like hammer and time since death was about 3 ½ days.
3. That after postmortem he handed over the clothes and blood in gauze piece of the deceased in sealed condition to the police alongwith the sample seal.
4. That on 15.09.2012 he received an application from Inspector Rajender Prasad alongwith abovesaid Postmortem Report, inquest papers and one sealed weapon of offence sealed with the seal of RP, five in number in intact position for subsequent opinion.
5. That on opening the aforesaid pullanda one Daranti i.e. sickle type weapon was found as mentioned in his diagram figure1 having iron based handle with single edged blade, curved shaped.
6. That Injuries no. 1 to 5 mentioned in postmortem report No. 995/11 could be possible by the above examined weapon and his detailed subsequent opinion with diagram of the weapon of offence is Ex.PW11/B. The witness has correctly identified one Daranti (weapon of offence) as the said Daranti examined by him which Daranti is Ex.P1.
Forensic Evidence:
9. Indresh Kumar He is the Senior Scientific Officer (Biology) who has proved Mishra (PW12) the following aspects:
1. That on 18.9.2012 seven sealed parcels were received in their office and the same were assigned to her for examination.
2. That on opening Parcel No.1 one weapon of offence i.e. Daranti having rusty brown stains was found which was marked as Ex.1; on opening parcel No.2 cemented material having light brown stains was found which was marked as Ex.2; on opening parcel No.3 cemented material was found which was marked as Ex.3; on opening parcel No.4 dark brown cotton wool swab was found which was marked as Ex.4; on opening parcel No.5 one empty beer bottle having brown stains was found which was marked as Ex.5a, St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 72 one empty beer bottle having brown stains was found which was marked as Ex.5b; on opening parcel No.6 one damp foul smelling pant was found which was marked as Ex.6a, one damp foul smelling underwear was found which was marked as Ex.6b, one damp foul smelling blanket was found which was marked as Ex6c, one damp foul smelling dari was found which was marked as Ex.6d and on opening parcel No.7 yellowish brown gauze cloth piece was found which was marked as Ex.7.
3. That on on examination blood was detected on Ex.1, 2, 4, 5a, 5b, 6a, 6b, 6c, 6d and 7 whereas Blood could not be detected on Ex.3 and the detailed Biological Report in this regard is Ex.PW12/A.
4. That on Serological Examination Human Blood was detected on Ex.2, 4, 5a, 5b and 7 but blood group could not be ascertained on the same and the Serological Report in this regard is Ex.PW12/B.
5. That after examination remnants of the exhibits were sealed with the seal of IKM FSL DELHI.
Police/ official witnesses:
10. Ct. Om Prakash He is a formal witness being the Special Messenger has (PW1) proved having delivered the special reports to the Senior Officers.
11. Ct. Deepak (PW2) He is also a formal witness who has proved that on 20.10.2011 on receipt of the information he along with Inspector Brijpal Singh reached the spot i.e. House No. E70, Wazirpur, JJ Colony, Delhi where at about 7:55 PM, he was handed over the rukka for getting the case registered and accordingly he took the rukka to the Police Station and got the case registered.
12. Ct. Dharmender He is a formal witness who has proved that on 20.10.2011 he (PW3) reached the spot of incident along with SI Sandeep Kumar and preserved the scene of crime and on 21.10.2011 the postmortem examination of deceased Abdul Sattar was conducted by Dr. Bhim Singh who handed over two sealed pullandas to him along with sample seals which he in turn St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 73 handed over to Inspector Brijpal Singh and the same was seized vide Ex.PW3/A.
13. HC Suman He is a formal witness being the Duty Officer who has Prasad (PW4) proved DD No. 22A copy of which is Ex.PW4/A, FIR No. 214/11 copy of which is Ex.PW4/B and his endorsement on rukka which is Ex.PW4/C.
14. SI M.D. Meena He is a formal witness being the Crime Team Incharge who (PW5) has proved having visited the spot of incident and having prepared the Crime Team Report which is Ex.PW5/A.
15. Ct. Subhash He is a formal witness being the Crime Team Photographer (PW6) who has proved having visited the spot of incident and having taken the photographs which are Ex.PW6/A1 to Ex.PW6/A12, negatives of which are collectively Ex.PW6/B.
16. HC Mehfooz khan He is a formal witness being the MHCM who has proved (PW7) Entry in register No. 19 vide S. No. 389 copy of which is Ex.PW7/A, entry at Sr. No. 390 copy of which is Ex.PW7/B, entry at S.No. 731 copy of which is Ex.PW7/C (two pages); Entry in register no.21 vide RC No. 79/21/12 copy of which is Ex.PW7/D and receipt issued by the FSL copy of which is Ex.PW7/E.
17. SI Manohar Lal He is a formal witness being the Draftsman who has proved (PW8) having prepared the scaled site plan which is Ex.PW8/A.
18. Ct. Gurjit Singh He is a formal witness who has proved having collected the (PW18) FSL report and seven pullandas in sealed condition which he handed over to MHCR.
19. Ct. Kuldeep This witness has joined investigations with Inspector (PW19) Rajender Prashad and has deposed on the following aspects:
1. That on 02.08.2012 he along with Inspector Rajender Prasad and ASI Dev Raj had gone to ATS North, Daya Basti in the investigation of this case and the accused Mohd. Khairul was in the custody of ATS (North) staff in some other case.
2. That Inspector Rajender Prasad collected the documents of the case in which the accused was arrested by the ATS Staff from SI Ravinder and St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 74 accused was brought to Rohini Courts and was produced before the Ld. Illaqua Magistrate.
3. That thereafter with the permission of the Court accused Khairul was interrogated who made his disclosure statement in this case which is Ex.PW19/A and the accused was arrested vide memo Ex.PW19/B.
4. That thereafter accused was produced before the Court concerned and he was taken on two days Police Custody Remand after which the police party along with accused went to the place of incident i.e. H.No. E70, Wazirpur J J Colony, Delhi, Second floor and pointed the place of incident vide memo Ex.PW19/C.
5. That there was a space over the staircase from where the accused took out a "darati" and the Investigating Officer prepared the sketch of the said darati vide Ex.PW19/D.
6. That the Investigating Officer took measurement of darati, length of handle was 21cm, length of blade was of 21cm and thereafter Investigating Officer converted the darati into a pullanda and sealed the same with the seal of RP and seized the same vide memo Ex.PW19/E including pointing out memo.
7. That the seal after use was handed over to ASI Dev Raj and thereafter they returned to the Police Station where the Investigating Officer deposited the case property in the Malkhana and recorded his statement.
8. That on 18.09.2012 he collected seven sealed parcels from the MHC(M) along with two sample seals vide RC No. 79/21/12 and deposited the same in the FSL and after depositing the same he handed over the copy of acknowledgment to the MHC(M).
9. That so long the exhibits remained in his custody, the same were not tampered in any manner.
20. HC Mukesh This witness had visited the spot of incident with Inspector Kumar (PW20) Brij Pal and has deposed on the following aspects: St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 75
1. That on 22.10.2011 he was posted at Police Station Bharat Nagar and on that day he along with Inspector Brij Pal on receiving DD No.22A regarding lying of a dead body at E70, Wazirpur JJ Colony, Delhi, reached the spot.
2. That ASI Dev Raj, Ct. Deepak and Ct. Anuj were also with them and at the spot SI Sandeep and Ct.
Dharmender were already found present.
3. That at the second floor of H.No. E70, Wazirpur J J Colony in a room, a dead body of a male aged about 24 to 25 years was lying in decomposed condition which was lying facing to ground on a blanket of orange colour and from the cursory look it was found that there was an injury mark on the head of the body.
4. That articles in the house were lying scattered and at the spot there was a foul smell and thereafter they came down to the stairs.
5. That one Radha was also there who had broken the lock who had informed them about the dead body and thereafter SI Sandeep recorded statement of Radha and prepared the rukka and handed over the same to Ct. Deepak for registration of the case.
6. That Ct. Deepak went to the Police Station for registration of the case and after sometime he returned to the spot and handed over the copy of the FIR and the original rukka to Inspector Brij Pal who then send the dead body to the mortuary of the BJRM Hospital, Jahangir Puri.
7. That thereafter Inspector Brij Pal lifted two empty bottles of beer (Hayward's 5000) which were lying in the NorthEast side of the room where the body was lying and converted those bottles into a pullanda and sealed the same with the seal of BPS and then seized the same vide memo Ex.PW20/A.
8. That thereafter Radha handed over the said broken lock on which '566506' and 'Dharma Fighter' was mentioned and Investigating Officer Inspector Brij Pal converted the said lock into the pullanda and St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 76 sealed the same with the seal of BPS and seized the same vide memo Ex.PW13/B.
9. That thereafter Inspector Brij Pal lifted the blood sample with the help of a cotton, from the floor and blood control sample and earth control and kept the same into three plastic dibbies and separately sealed with the seal of BPS and were taken into possession vide seizure memo Ex.PW20/B.
10. That Inspector Brij Pal called the Crime Team at the spot and Incharge of the Crime Team inspected the spot and the photographer took the photographs of the scene of crime and thereafter the Investigating Officer recorded his statement and he was relieved.
21. SI Ravinder Singh This witness has deposed on the following lines:
(PW21) 1. That on 01.08.2012 he was posted in AATS, North District and on that day at about 3.30PM he was present in his office with Ct. Ansar.
2. That one secret informer came in office and informed him that a person by the name of Mohd. Khairul, who is habitual in committing theft in the area and is also wanted in a case registered at Police Station Rohini, might be available at a liquor shop in Gupta Market, Inderlok.
3. That he shared this information with his senior officers of AATS and the secret informer was produced before the senior officers after which constituted a raiding team including ASI Rajender, HC Mahesh, HC Satish, HC Rajesh, Ct. Ansar, Ct.
Praveen and Ct. Amit vide DD No.15 which is Ex.PW21/A and proceeded for further proceedings.
4. That they reached in Gupta Market where he requested fourfive public persons to join the proceedings but none were ready for the same and at the instance of the secret informer accused Mohd.
Khairul was apprehended at 6.10PM.
5. That the accused Mohd. Khairul was interrogated and his formal search was carried out during which an Iphone, Rs.12,000/, one purse and a TITAN St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 77 watch was recovered.
6. That the above said articles were found to be stolen from Tri Nagar which was within the jurisdiction of Police Station Keshav Puram on which he inquired from Police Station Keshav Puram and found that a case FIR No. 212/12 U/s 380 IPC had been registered in respect of the said stolen articles.
7. That thereafter he converted those articles into a pullanda and sealed with the seal of RS and taken into possession under Section 102 Cr.P.C. vide memo Ex.PW21/B.
8. That thereafter he made further interrogation from the accused and at about 7.10PM accused Mohd.
Khairul was arrested U/s 41.1(c)(d) Cr.P.C vide memo Ex.PW21/C.
9. That his personal search was carried out vide memo Ex.PW21/D and his disclosure statement was recorded vide Ex.PW21/E.
10. That during the investigation it revealed that accused was also wanted in case FIR No.214/11 of Police Station Bharat Nagar and thereafter he along with police party and accused person and case property returned to AATS office.
11. That the accused was kept in lock up and case property was deposited in the malkhana of Police Station Sarai Rohilla as AATS does not have its own Malkhana.
12. That he made DD No.66B dated 01.08.2012 U/s 41.1
(c)(d) Cr.P.C. in Police Station Sarai Rohilla regarding their arrival and kept the accused in lock and also of depositing of the case property which DD No.66B is Ex.PW21/F.
13. That that thereafter he prepared Kalandara U/s 41.1
(c) and (d) Cr.P.C. which is Ex.PW21/G and accused was produced before the court concerned and gave the information to the concerned Investigating officers.
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 78
22. SI Dev Raj This witness had visited the place of occurrence and has (PW22) deposed on the following aspects:
1. That on 22.10.2011 he was posted at Police Station Bharat Nagar and on that day on receipt of DD No. 22A regarding a dead body lying at E70, Wazirpur JJ Colony, Delhi he along with Inspector Brij Pal Singh, Ct. Deepak, Ct. Anuj and HC Mukesh reached the spot where SI Sandeep and Ct. Dharmender were already found present.
2. That at the second floor of H. No. E70, Wazirpur J J Colony in a room, a dead body of a male aged about 24/25 years was lying in decomposed condition which was lying facing towards the ground on a blanket of orange colour.
3. That from the cursory notice it was found that there was an injury mark on the head of the body and the articles in the house were lying scattered.
4. That at the spot there was a foul smell and thereafter they came down to the stairs and one Radha was also there who had broken the lock, had informed them about the dead body.
5. That thereafter SI Sandeep recorded the statement of Radha and prepared the rukka and handed over the same to Ct. Deepak for registration of the case.
6. That Ct. Deepak went to the Police Station for registration of the case and after sometime he returned to the spot and handed over the copy of FIR and original rukka to Inspector Brij Pal who sent the dead body to the mortuary of BJRM Hospital, Jahangir Puri.
7. That thereafter Inspector Brij Pal lifted two empty bottles of beer (Hayward's 5000) which were lying in the NorthEast side in the room where the body was lying.
8. That the Investigating Officer converted those bottles into a pullanda, sealed the same with the seal of BPS and then seized the same vide memo Ex.PW20/A.
9. That thereafter Radha handed over the said broken lock on which '566506' and 'Dharma Fighter' was St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 79 mentioned after which Investigating Officer Inspector Brij Pal converted the said lock into the pullanda and sealed the same wit the seal of BPS and seized the same vide memo Ex.PW13/B.
10. That thereafter Inspector Brij Pal lifted the blood sample with the help of the cotton, from the floor and blood control sample and earth control and kept the same into three plastic dibbies and separately sealed with the seal of BPS and were taken into possession vide seizure memo Ex.PW20/B.
11. That Inspector Brij Pal called the Crime Team at the spot and Incharge of the Crime Team inspected the spot and the Photographer took the photographs of the scene of crime.
12. That on 21.10.2011 he along with Inspector Brij Pal Singh went to the mortuary of the BJRM Hospital where Inspector Brij Pal Singh filled the 25.35 (1) (b) Form and prepared the brief facts and completed the inquest proceedings and recorded statement of witness who identified the dead body and after the postmortem the dead body was handed over to its relatives.
13. That after the postmortem the concerned doctor handed over two sealed pullandas and one sample seal to Ct. Dharmender and Ct. Dharmender handed over the same to the Investigating Officer which the Investigating Officer took into possession vide memo Ex.PW3/A.
14. That on 02.08.2012 he along with Inspector Rajender Prasad and Ct. Kuldeep Singh had gone to AATS North, Daya Basti in the investigation of this case and accused Mohd. Khairul was in the custody of AATS (North) staff in some other case.
15. That Inspector Rajender Prasad collected the documents of the case in which accused was arrested by the AATS staff from SI Ravinder after which the accused was brought to Rohini Courts and was produced before the Ld. Illaqua Magistrate by AATS staff and thereafter with the permission of the court St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 80 accused Khairul was interrogated who made his disclosure statement in this case which is Ex.PW19/A.
16. That thereafter the accused was arrested vide memo Ex.PW19/B and after the accused was produced before the Court concerned and he was taken on two days Police Custody Remand.
17. That thereafter the police party along with accused went to the place of incident i.e. H. No. E70, Wazirpur J J Colony, Delhi, Second floor and pointed the place of incident vide memo Ex.PW19/C.
18. That there was a space over the staircase and accused took out a "darati" from that space after which the Investigating Officer prepared the sketch of the said darati vide Ex.PW19/D.
19. That the Investigating Officer took measurement of darati, length of handle was 21cm, length of blade was of 21cm and thereafter Investigating Officer converted the darati into a pullanda and sealed the same with the seal of RP and seized the same vide memo Ex.PW19/E including pointing out memo.
20. That the seal after use was handed over to him and thereafter they returned to the police statement and Investigating Officer deposited the case property in the Malkhana and recorded his statement.
23. Inspector Sandeep This witness has proved the following aspects:
Kumar (PW23) 1. That on 20.10.2011 he was posted at Police Station Bharat Nagar as Sub Inspector and on that day he received DD No. 22A, copy of which is Ex.PW4/A after which he along with Ct. Dharmender reached at E70, Wazirpur JJ Colony, Delhi.
2. That he met the complainant Radha wife of Bhupati who informed him that dead body was lying on the second floor (which is actually 3rd floor if ground floor is read as first floor).
3. That thereafter he reached the second floor and found that one dead body of male aged about 2527 years was lying on the floor on a blanket with blood St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 81 oozing out from the head and he noticed that the deceased was only wearing a white colored pant and there were injuries marks on head and back.
4. That the body was in a putrefying condition with skin pealing off and foul smell was emanating from the same and the articles in the room was found scattered.
5. That he immediately preserved the scene of crime and informed the crime team after which the SHO and Crime Team came and inspected the same and the photography of the spot of the scene was got done.
6. That he then recorded the statement of complainant i.e. Radha W/o Bhupati who had identified the dead body as that of the tenant Abdul Sattar who had been residing in the premises for the last four to five months and was residing there along with two other males and one lady with a female child.
7. That the statement of Radha is Ex.PW13/A on which he made his endorsement on the same which is Ex.PW23/A after which he send the same to Police Station through Ct. Deepak for registering the FIR.
8. That on the directions of the Investigating Officer he remained at the spot for preserving the scene of crime and after registration of the FIR the investigations were handed over to the SHO who recorded his statement and relieved him.
24. Inspector Brij Pal He is the initial Investigating Officer of the present case who Singh (PW24) has deposed as under:
1. That on 20.10.2011 on receiving DD No.22A regarding a dead body lying at E70, Wazirpur J J Colony, Delhi he along with ASI Dev Raj, Ct. Deepak, Ct. Anuj and HC Mukesh reached the spot.
2. That SI Sandeep and Ct. Dharmender were already found present at the spot and at the second floor of H.No. E70, Wazirpur JJ Colony in a room, a dead body of a male aged about 24/25 years was lying in decomposed condition which was lying facing towards the ground on a blanket of orange color.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 82
3. That from the cursory look it was found that there was an injury mark on the head of the body and the articles in the house were lying scattered.
4. That at the spot there was a foul smell and one Radha was also there who had broken the lock and had informed about the dead body.
5. That the Crime Team was called at the spot and Incharge of the Crime Team inspected the spot and the photographer took the photographs of the scene of crime.
6. That SI Sandeep recorded statement of Radha and prepared the rukka and handed over the same to Ct. Deepak for registration of the case.
7. That Ct. Deepak went to the Police Station for registration of the case and after sometime he returned to the spot and handed over the copy of the FIR and the original rukka to him.
8. That he sent the dead body to the mortuary of BJRM Hospital, Jahangir Puri through Ct. Dharmender.
9. That thereafter he took into possession, two empty bottles of beer (Hayward's 5000) which were lying in the NorthEast side of the room where the body was lying.
10. That he converted those bottles into pullanda and sealed the same with the seal of BPS and then seized the same vide memo Ex.PW20/A.
11. That Radha handed over the said broken lock on which '566506' and 'Dharma Fighter' was mentioned after which he converted the said lock into the pullanda and sealed the same wit the seal of BPS and seized the same vide memo Ex.PW13/B.
12. That he lifted the blood sample with the help of the cotton, from the floor and blood control sample and earth control and kept the same into three plastic dibbies and separately sealed with the seal of BPS and were taken into possession vide seizure memo Ex.PW20/B.
13. That he prepared the rough site plan which is Ex.PW24/A and thereafter they returned to the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 83 Police Station where the case property were deposited in the Malkhana.
14. That on 21.10.2011 he along with ASI Dev Raj went to the mortuary of the BJRM Hospital where he filled the Form 25.35 (1)(b) which is Ex.PW24/B, prepared the brief facts which is Ex.PW24/C and completed the inquest proceedings.
15. That he recorded statement of Mohd. Akil who identified the dead body which are Ex.PW17/A and statement of Mohd. Bashir which is Ex.PW24/D.
16. That thereafter he made the request to the Incharge Mortuary vide request Ex.PW24/E for conducting the postmortem on the dead body and after the postmortem the dead body was handed over to its relatives vide memo Ex.PW17/B.
17. That after the postmortem on 21.10.2011 the concerned doctor handed over two sealed pullandas and one sample seal to Ct. Dharmender and Ct.
Dharmender handed over the same to him which he took into possession vide memo Ex.PW3/A.
18. That during his tenure of investigations he recorded the statements of witnesses and thereafter on 03.11.2011 he was transferred and handed over the case file to MHC(R).
25. Inspector He is the subsequent Investigating Officer of the present case Rajender Prashad who has proved the following aspects:
(PW25) 1. That on 08.01.2012 he received the case file in the present case from the MHC(R) for further investigations.
2. That he visited the place of incident i.e. E70, JJ colony, Wazirpur, Delhi and conducted local inquiry from the local residents and made attempt to trace accused Mohd. Khairul who was absconding after vacating the premises where he was staying.
3. That he also analyzed the CDs written by the previous Investigating Officer and thereafter on 05.06.2012 he got prepared the scaled site plan from Draftsman SI Manohar Lal at the instance of ASI St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 84 Dev Raj at the scene of crime i.e. E70, JJ Colony, Wazirpur which site plan is Ex.PW8/A.
4. That on 02.08.2012 he received information from SI Ravinder of AATS North District, Daya Basti regarding the arrest of Mohd. Khairul vide DD No. 3A which is Ex.PW25/A.
5. That on receipt of this information he along with ASI Dev Raj, Ct. Kuldeep reached the office of the AATS Daya Basti in the official gypsy and collected the copies of the arrest memo, personal search, disclosure statement, DD entry and Kalandara.
6. That the copy of the arrest memo is Ex.PW21/C, copy of personal search is Ex.PW21/D, copy of disclosure statement is Ex.PW21/E and the original Kalandara is Ex.PW21/G.
7. That thereafter he along with the staff came to the Rohini Court and filed the application before the Duty Magistrate before whom the accused Mohd.
Khairul was produced and sought permission for interrogation for half an hour.
8. That after the permission was granted to him and he interrogated the accused outside the court and thereafter formally arrested him vide memo Ex.PW19/B and recorded his disclosure statement vide Ex.PW19/A.
9. That he then produced the accused before the Ld. Duty MM with the request for two days Police Custody Remand as the weapon of offence was to be searched and coaccused were to be apprehended.
10. That the Ld. Duty MM granted two days Custody Remand after which he along with ASI Dev Raj, Ct.
Kuldeep and the accused went to the Police Station where he interrogated the accused at length.
11. That thereafter he along with the accused ASI Dev Raj, Ct. Kuldeep went to scene of crime i.e. E70, JJ Colony, Wazirpur where the accused pointed out the room on the second floor as the room where he had been staying as tenant along with his wife and brother in law/sala and thereafter he prepared the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 85 pointing out memo vide Ex.PW19/C.
12. That the accused took them to the slip/tand on the staircase above the second floor where a large quantity of junk was lying and he then got one darati recovered from under the junk which was in the shape of a sickle.
13. That he prepared the sketch of the same which is Ex.PW19/D.
14. That he measured the same diagonally from the two ends and found the total length of the darati as 31cm with the handle of 21 cm and blade was of 21 cm and the width was 3.4 cm.
15. That he converted the same into pullanda with the help of a cloth and sealed with the seal of RP after which the seal was handed over to ASI Dev Raj and then prepared the seizure memo Ex.PW19/E.
16. That they then returned to the Police Station where accused was put in the lock up of Police Station Ashok Vihar and the case property was deposited in the Police Station Bharat Nagar.
17. That since on interrogation it was found that the accused was an original resident of Bangladesh and hence the charges U/s 14 of Foreigners Act was also invoked against him.
18. That on 03.08.2012 accused was taken out from the lock up and handed over to the custody of Ct.
Kuldeep and was further interrogated regarding whereabouts of his wife namely Parveen and brother in law/ sala namely Joshim after which at the instance of the accused efforts were made to trace the said accused in the jhuggie cluster at Rampura near Zakhira as the accused Mohd. Khairul had disclosed that they could be present there but both of them could not be traced.
19. That he then returned back to the Police Station and called Maya and Devki to the Police Station where they identified the accused Mohd. Khairul as their tenant on the second floor and who had left the spot on 17.10.2011 after locking the door of the tenanted St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 86 room.
20. That on 04.08.2012 he produced the accused Mohd. Khairul to the court from where he was remanded to Judicial Custody.
21. That on 15.09.2012 he obtained the subsequent opinion from the Autopsy Surgeon regarding cause of death after producing the weapon of offence i.e. darati recovered at the instance of the accused before the autopsy surgeon which subsequent opinion is Ex.PW11/B on his application which is Ex.PW25/B.
22. That on 18.09.2012 he got deposited the exhibits in the FSL Rohini through Ct. Kuldeep and he recorded the statements of Ct. Kuldeep and MHC(M) CP.
23. That he then prepared the charge sheet and filed the same in the Court and after obtaining the result of the FSL he also prepared the supplementary charge sheet and filed the same in the court.
(66) Now coming to the microscopic evaluation of evidence against the accused Mohd. Khairul.
Medical Evidence:
(67) The case of the prosecution that the accused Mohd. Khairul along with his wife Ms. Praveen and Joshim (both not arrested) in furtherance of their common intention committed murder of Abdul Sattar by slitting his neck and by giving blows on his head. In this regard the prosecution has placed its reliance on the testimony of Dr. Bhim Singh (PW11).
(68) Dr. Bhim Singh has proved that on 21.10.2011 at about 12.30 PM he conducted postmortem on the dead body of Abdul Sattar S/o St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 87 Mohd. Mohsin aged about 2425 years, vide postmortem report Ex.PW11/A according to which there were following External Injuries on the body of the deceased:
1. Incised wound 9cm x 4cm x 4cm front of neck at the level of thyroid, underline tissue shows sharp cut, tailing of wound on right side.
2. Incised stab wound 1cm x 1cm x 1.5cm, outer aspect lateral side of right eye.
3. Lacerated wound 1.5cm x 1cm x bone deep middle of forehead.
4. Lacerated wound 1.5cm x 1cm x bone deep right side of forehead.
5. Lacerated wound 1.8cm x 1cm x bone deep over right parital region.
6. Lacerated wound 2.5cm x 1.5cm x bone deep right occipito parital region.
(69) The witness has proved that on internal examination of Head and Neck there was extravassation of blood in scalp layer below injury no. 3 to 6; signature fracture (depressed fracture) was present blow injury in No.6 i.e. 2cm x 2cm, brain matter liquefied coming out from fractured site; neck shows sharp cut in thyroid, trachea, esophagus and vessels and muscles of the neck. He has proved having opined that the death was due to comma and shock consequent upon head and neck injury, all injuries were antimortem, fresh in duration and Injury No.1 could be caused by sharp edged weapon and sufficient to cause death in ordinary course of St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 88 nature; Injury No.2 could be caused by sharp edged weapon and Injury no. 3 to 6 could be caused by heavy blunt hard object like hammer and time since death was about 3½ days.
(70) Dr. Bhim Singh has also proved that on 15.09.2012 he received an application from Inspector Rajender Prasad alongwith abovesaid Postmortem Report, inquest papers and one sealed weapon of offence sealed with the seal of RP, five in number in intact position for subsequent opinion. According to the witness on opening the aforesaid pullanda one Daranti i.e. sickle type weapon was found as mentioned in his diagram figure 1 having iron based handle with single edged blade, curved shaped. He has proved having opined that Injuries no. 1 to 5 mentioned in postmortem report No. 995/11 could be possible by the above examined weapon and his detailed subsequent opinion with diagram of the weapon of offence is Ex.PW11/B. (71) Here, I may observe that the Postmortem Examination was conducted by the Autopsy Surgeon on 21.10.2011 at 12:30 PM and the time since death had been opined to be three and a half days meaning thereby that the death of the deceased had taken place on the intervening night of 1718.10.2011 which is compatible to the Last Seen Evidence on record in the form of testimonies of Smt. Maya (PW14), Smt. Sarthi Gore (PW15) and Ramesh Gore (PW16). Further, it is evident that there were as many as six injuries on the body of the deceased thereby establishing that it is not St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 89 the work of a single person. The medical evidence on record is also compatible to the prosecution case to the effect that the death of the deceased Abdul Sattar was due to Coma and Shock consequent upon head and neck injury which is sufficient to cause death in ordinary course of nature.
Forensic Evidence:
(72) The case of the prosecution is that after the information was sent to the Police Station, the local police reached the spot and lifted the various exhibits from the spot including the beer bottles, blood stained earth and earth control. After the postmortem the Autopsy Surgeon had taken into possession the clothes of the deceased which he was wearing at the time of the incident. Further, pursuant to the arrest of the accused Mohd.
Khairul he got recovered the weapon of offence i.e. Daranti which was also taken into possession. All these exhibits were then sent to the FSL Rohini for expert opinion. Sh. Indresh Kumar Mishra (PW12) Senior Scientific Officer (Biology) has proved that on 18.9.2012 seven sealed parcels were received in their office and the same were assigned to her for examination. He has also proved that on opening Parcel No.1 one weapon of offence i.e. Daranti having rusty brown stains was found which was marked as Ex.1; on opening parcel No.2 cemented material having light brown stains was found which was marked as Ex.2; on opening parcel No.3 cemented material was found which was marked as Ex.3; on opening parcel No.4 dark brown St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 90 cotton wool swab was found which was marked as Ex.4; on opening parcel No.5 one empty beer bottle having brown stains was found which was marked as Ex.5a, one empty beer bottle having brown stains was found which was marked as Ex.5b; on opening parcel No.6 one damp foul smelling pant was found which was marked as Ex.6a, one damp foul smelling underwear was found which was marked as Ex.6b, one damp foul smelling blanket was found which was marked as Ex6c, one damp foul smelling dari was found which was marked as Ex.6d and on opening parcel No.7 yellowish brown gauze cloth piece was found which was marked as Ex.7. He has further proved that on examination Blood was detected on Ex. 1 (Daranti having rusty brown stains), Ex.2 (cemented material having light brown stains), Ex.4 (cotton wool swab), Ex.5a (empty beer bottle having brown stains), Ex.5b (empty beer bottle having brown stains), Ex.6a (pants of the deceased), Ex.6b (underwear of the deceased), Ex.6c (blanket), Ex.6d (dari) and Ex.7 (Blood gauze cloth piece). He has proved the detailed Biological Report in this regard which is Ex.PW12/A. Sh. Indresh Kumar Mishra has also proved that on Serological Examination Human Blood was detected on Ex.2 (cemented material having light brown stains), Ex.4 (cotton wool swab), Ex.5a (empty beer bottle having brown stains), Ex.5b (empty beer bottle having brown stains) and Ex.7(Blood gauze cloth piece). The detail Serological Report in this regard is Ex.PW12/B. (73) It is writ large from the aforesaid that in so far as the Forensic Evidence is concerned, though the Blood Group could not be ascertained St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 91 yet it confirms the spot of incident since Human Blood was found on the empty beer bottles lying at the spot. Further, Blood was detected on the weapon of offence i.e. Darati Ex.P1 which is compatible to the prosecution case that the said Daranti was used by the accused in committing the murder of the deceased.
Motive and Intention:
(74) The case of the prosecution is that the deceased Abdul Sattar had been residing with the accused Mohd. Kahirul and his wife including his wife Ms. Praveen and his bother in law in the same tenanted premises belonging to one Devki and was being managed by her daughter Radha and granddaughter Maya which had been taken on rent. Two motives have been alleged by the prosecution, First that the accused Mohd. Khairul had borrowed a sum of Rs.53,000/ from the deceased Abdul Sattar which he was not returning despite the repeated demands made by deceased and Second that the deceased Abdul Sattar was into an illicit relationship with the wife of accused Mohd. Khairul who was residing in the same tenanted premises which fact came to the knowledge of the accused and it is for this reason that the accused Mohd. Khairul had killed the deceased Abdul Sattar. The prosecution has placed its reliance on the testimonies of Mohd.
Mohsin (PW9) the father of the deceased; Savila Khatoon (PW10) the mother of the deceased; Smt. Sarthi Gore (PW15) & Ramesh Gore (PW16) the other tenants residing in the same building and Mohd. Aqueel (PW17) St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 92 the brother in law (Jija) of deceased Abdul Sattar. (75) In so far as the Motive is concerned, I may observe that the Motive has to be gathered from the surrounding circumstances and such evidence should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive. (76) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 93 (77) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.: IV (2012) SLT 257].
(78) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(79) Applying the settled principles of law to the facts of the present case I may observe that in so far as the aspect regarding the accused having borrowed a sum of Rs.53,000/ from the deceased and not having returned the same is concerned, the parents of the deceased namely Mohd. Mohsin (PW9) and Savila Khatoon (PW10) and so also the brother in law (Jija) of the deceased i.e. Mohd. Aqueel (PW16) have specifically deposed that the deceased Abdul Sattar had told them that Mohd. Khairul had borrowed a sum of Rs.53,000/ from him which he was not returning despite his St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 94 demands. In this regard the witness Ramesh Gore (PW16) who was residing in the same building on top floor has in his examination in chief stated that when he was going to his room he could hear the voices of Khairul and deceased Abdul Sattar and he could make out that there was some hot talks on money matters. I repeat the relevant portion as under:
"...... It is correct that on 17.10.2011 when deceased Abdul Sattar, accused Khairul and his brother in law were consuming the beer, I heard that they were talking in a hot manner and were talking about some transactions (len den ki baat kar rahe thay). It is correct that after hearing their hot talks I directly went to my room....."
(80) The accused has not been able to effectively controvert the above and even otherwise there is no reason to disbelieve the above allegations. Both the accused and the deceased belong to financially marginalized section of the society and have not been shown to be educated or literate. Keeping in view the close affinity between them as reflected from the fact that they were sharing the accommodation, it is not uncommon that the entire transaction was oral. Apparently this was the reason why the deceased Abdul Sattar was in a dominating position to exploit and had been openly maintaining relationship with the wife of the accused Mohd. Khairul.
(81) Further, in so far as the question of the deceased Abdul Sattar having developed illicit relations with the wife of accused Mohd, Khairul is concerned the testimonies of the independent witnesses namely Smt. Sarthi St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 95 Gore (PW15) and Mohd. Aqueel (PW17) are most important. Smt. Sarthi Gore (PW15) is a tenant in the same premises on the top floor and hence her presence in the same building is only natural and probable and the fact that in order to reach her portion she had to cross the floor on which the deceased was residing along with the family of the accused, makes her version natural and trustworthy. According to her, the accused Mohd. Khairul was an addict and often remained in this condition while he used to be in a statement of addiction in a different room, the deceased Abdul Sattar had developed illicit relations with the wife of Mohd. Khairul. She has stated that she had personally noticed the deceased and the wife of the accused in objectionable/ obscene position. The relevant portion of her testimony is as under:
"..... It is correct that whenever I used to go upstairs many of a times I had noticed the deceased and the wife of accused in obscene condition (galat harkat karte huye). It is correct that accused Khairul was an addict.
It is correct that deceased Abdul Sattar used to be in obscene condition with the wife of accused and at that time accused used to remain in another room in intoxicated condition......."
(82) Smt. Sarthi Gore has been exhaustively crossexamined on this aspect wherein she has explained that she had noticed the deceased Abdul Sattar and wife of accused Mohd. Khairul in an objectionable position (i.e. obscene position) while the accused Mohd, Khaiirual was lying intoxicated in a different room which fact she had even disclosed to the landlady Maya. St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 96 I may observe that Smt. Sarthi Gore (PW15) is an independent witnesses i.e. a tenant residing in the room on the top floor and has explained that she noticed this when she used to pass these rooms while going to her portion on the top floor and there is no reason why she would tell a lie. There is no history of any animosity between her and the accused nor she entertained any kind of special liking for the deceased Abdul Sattar or disliking for accused Mohd. Khairul. She is a housewife who usually remains at home and has deposed on the basis of what she had herself seen. Her testimony finds due confirmation and corroboration from the testimony of Mohd. Aqueel (PW17) the brother in law (Jija) of deceased Abdul Sattar and is residing in a Madarsa who has stated that Abdul Sattar frequently visited him and told him that he had fallen in love with the wife of accused Khairul. In fact Mohd. Aqueel (PW17) has stated that the deceased had told to him that Mohd. Khairul had taken Rs.53,000/ from him which he was not returning and told to him (witness) to prepare a Taveez for him so that he can return his above said amount. In his crossexamination by the Ld. Defence Counsel he has voluntarily informed that on one occasion Abdul Sattar had come to him alongwith the wife of accused Khairul to his Madarsa for getting married i.e. Nikah on which he got angry and sent both them back. The relevant portion of his testimony is as under:
"........ About 1½ months prior to 17.10.2011 Abdul Sattar also told to me that he is having illicit relations with the wife of accused Vol. on one occasion he had came alongwith the wife of accused Khairul to my St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 97 Madarsa for Nikah and I got angry and sent them back. It is correct that accused Khairul was also aware about such relations....."
(83) The accused has not been able to successfully controvert the evidence which has come on record.
(84) In view of my above discussion, I hereby hold that the prosecution has been able to successfully establish the aspect of the accused having borrowed some amount from the deceased which the deceased Abdul Sattar wanted back and was not being returned. It has also been established that the deceased was having an illicit relationship with the wife of the accused Mohd. Khairul which motive appears to be convincing particularly keeping in view the manner in which the deceased had been brutally killed by giving repeated stab injuries on vital organs which injuries are so reflected in the Postmortem Report and indicate the extreme sense of hatred which the assailant i.e. accused had entertained for the deceased and the confirm the intention of the accused to kill the deceased. This being the background, I hereby hold that the prosecution has been able to prove and establish that the crime was motivated by the extreme sense of hatred which the accused had entertained for the deceased due to the illicit relations between the deceased Abdul Sattar and his wife and also because he himself had borrowed some amount from the deceased and was not returning the same to him. The nature of assault and injuries caused also confirm the intent of the accused Mohd. Khairul which was to kill Abdul St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 98 Sattar.
Ocular/ Last Seen Evidence:
(85) Ocular evidence/eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. The eye witness account requires a careful independent assessment and evaluation for its credibility, it should not be adversely prejudged on the basis of other evidence. The ocular evidence has to be tested for its inherent consistency and inherent probability of the story, consistency of the account given by one witness with that given by the other witness held to be creditworthy, consistency with the undisputed facts, the 'credit' of the witnesses who performed in the witnessbox, their power of observation and it is only then that the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
(86) Unfortunately in the present case there is no direct eye witness account and the entire case of the prosecution is based upon last seen/ circumstantial evidence. The case of the prosecution is that the deceased Abdul Sattar had been residing with the accused Mohd. Kahirul and his wife including his wife Ms. Praveen and his bother in law in the same tenanted premises which had been taken on record belonging to one Devki and was being managed by her daughter Radha and granddaughter Maya.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 99
The accused Mohd. Khairul is a habitual addict and used to remain addicted. The deceased Abdul Sattar developed illicit relations with the wife of accused Mohd. Khairul which fact the accused came to know. The case of the prosecution is that on the intervening night of 1718.10.2011 the deceased Abdul Sattar was last seen alive in the company of the accused at about 8:00 PM and at about 12:00 Midnight the accused Mohd. Khairul was seen coming out of the tenanted premises while they were having bags after which they left the premises. In order to prove its case the prosecution has placed its reliance on the testimonies of Smt. Radha (PW13), Smt. Maya (PW14), Smt. Sarthi Gore (PW15) and Ramesh Gore (PW17). (87) However, before coming to the merits of the evidence on record, I may observe that The 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
(88) It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 100 accused or the guilt of other person. [Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992]. (89) Further, in the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has observed that : "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may 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 circumstances the victim suffered the death or should own he liability for the homicide....."
(90) A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as under: "....... It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 101 upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218. ..."
(91) Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of accused depends, which are as under:
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 102 murder of the deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place of last seen.
(v) Reasonableness of the explanation offered by the accused.
(92) Now applying the settled principles of law to the facts of the present case it is required to be seen whether the evidence of the prosecution witnesses to establish that the deceased was last seen alive in the company of the accused Mohd. Khairul is trustworthy or not. If yes, the effect thereto.
(93) Coming first to the testimony of Smt. Radha (PW13), in so far as she is concerned she has proved that her maternal grandmother Smt. Devki is the actual owner of the premises in question but on account of her age and medical problems, she has not been produced in the Court. She has proved that a portion of the said premises i.e. two rooms on the floor before the top floor had been rented out to Abdul Sattar who was residing in the same with accused Mohd. Khairual, his wife and his brother in law and his child and one of his associate was also residing with him and on 20.10.2011 foul smell was emanating from the portion which was rented out to Abdul Sattar which fact she told to her grandmother/ Nani Smt. Maya. She has proved that it was she who had broken the lock of the door of the room of Abdul Sattar and found his dead body. I repeat the relevant portion as under:
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 103
"........ I was residing with my mother namely Maya and my grand maternal mother namely Smt. Devki ( now who is not in a position to move and her health is very critical) at E70, Ground Floor, Wazirpur JJ Colony, Delhi. My husband was residing in Village Uragni, Distt. Tirnamalaya, Tamil Nadu and he used to visit time to time.
The house of my grand maternal mother was of three floors, on the third floor of the said premises deceased Abdul Sattar was residing as a tenant. Alongwith Abdul Sattar one Khairul i.e. accused present in the court today (correctly identified) alongwith his wife and his brother in law and his child and one of his associate was residing with him. One of the relatives of Abdul Sattar was running in a Madarsa in Patharwala Bagh, Kanhayya Nagar. On the third floor of the said premises, Ramesh Gore alognwith his wife Sarthi Gore was residing as tenant.
On 20.10.2011 foul smell was emanating from the second floor since morning in which Abdul Sattar was residing. I informed this fact to my maternal grand mother at about 4.304.45PM. After disclosing this fact to my Nani and told her that I want to check the said room as to why the foul smell was emanating. As soon as I was going upstairs the foul smell was increasing as per steps of the stairs. When I reached in front of the room of deceased Abdul Sattar, it was found a very huge foul smell emanating from the room. The iron door of that room was locked. Thereafter I came down and told this fact to my Nani and disclosed to my Nani that a foul smell was emanating from the room which was rented out to deceased Abdul Sattar. To know the reason of foul smell, I took out a hammer and again went upstairs to the room St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 104 of Abdul Sattar. After I broke open the lock and entered the room and saw that Abdul Sattar was lying on the ground which was faced towards ground. foul smell was emanating from his body, I got extremely scared and rushed out from the room on the ground floor and told my Nani about what I had seen. Then I called the police. After the police came to the spot, I took them to the room where I had seen the body of Abdul Sattar after conducting the proceeding police took the body of Abdul Sattar. I was called in the police station and my statement was recorded. The same is Ex.PW13/A bearing my signatures at point A. When first of the time i.e. on 20.10.2011 I feel the smell emanating from the room of deceased Abdul Sattar, I did not notice accused Khairul, his wife, his child and one of his associate as they found absenting from 18.10.2011.
At this stage Ld. Addl. PP seeks permission to put leading question to the witness.
Heard. Permission is granted.
It is correct that the lock which I had broken from the room of deceased, when police came there, the said lock was taken by the police in his possession after converting the same into a pullanda and seized vide memo Ex.PW13/B bearing my signatures at point A. It is also correct that when police came at the spot, police inspected the spot from all the angels.
At this stage a sealed parcel sealed with the seal of BPS is produced by the MHC(M), the same is opened by breaking of the seal and a lock of white colour make Fighter having some marks of breaking by some object is taken out and shown to the witness who identified the same as Ex.P1........"St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 105
(94) The witness Smt. Raha has been exhaustively crossexamined and the accused has not been able to effectively controvert the same. (95) Coming next to the testimony of Smt. Maya (PW14) who is the mother of Radha (PW13) and was residing on the ground floor portion. She has not only proved that the accused Mohd. Khairul was residing on the third floor portion of the building (which according to the police is the second floor but perhaps the witness is taking the Ground Floor as first floor) but has also proved that on the night of 17.10.2011 at 8:00 PM she saw Mohd. Khairul and his associate going to the portion rented out to Abdul Sattar with beer bottles. She has also stated that in the intervening night of 1718.10.2011 initially she saw the wife of accused Mohd. Khairul alongwith his child coming downstairs and then the associates of Khairul also came out after which accused Mohd. Khairul came down who were having small type bags in their hands and they all left the premises. The relevant portion of her testimony is as under:
"........ I was residing with my mother namely Devki alongwith my daughter namely Radha on the ground floor of H.No. E70, JJ Colony Wazirpur, Delhi. The said premises is built upto four stories. On the third floor deceased Abdul Sattar was residing. Alongwith Abdul Sattar, accused present in the court today alongwith his wife and one of his associate were residing and they used to live together on the third floor. Deceased Abdul Sattar used to drive a vehicle.
On 17.10.2011 at about 8.00PM I noticed that the accused present in the court today and one of his St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 106 associates were going upstairs to the room with beer bottles, which was rented to Abdul Sattar and in which they were living.
On the very day at about 12.00 midnight due to uneasiness, I came out from the room and sit infront of the stair case, at that time I noticed that the wife of accused alongwith his child came downstairs, thereafter the associates of Khairul also came out and then accused present in the court today came down who were having small type bags in their hands and they left the premises. I did not inquire from those person as to why they were going.
In the next morning I left for my work in Ashok Vihar where I used to work as maid servant.
On 20.10.2011 at about 3.00PM when I returned from my job, I felt that a foul smell was eminating from the said building. Initially I and my daughter Radha checked the ground floor and stair case on the ground floor. I and my daughter again checked the first floor and second floor and nothing found. Thereafter I and my daughter namely Radha went on the third floor and the rooms on the third floor which were facing each other and were rented to the deceased, found one of the room was opened and the door of one of the room was locked. When we checked, I and my daughter noticed that a found smell was emanating from the room of the third floor which had been rented out to deceased Abdul Sattar.
My daughter took out a hammer and broke open the lock of the room which was locked and when we broke open the lock and entered inside the room, Abdul Sattar was lying facing to the floor and his neck was silt. Abdul Sattar was lying on the blanket which was soaked with St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 107 blood. After seeing the body we were scared and my daughter made a call at 100 number, police came and took the body with them and inspected the room properly in which the body was lying.
On the fourth floor one Ramesh Sarthi alongwith his family members were residing. I was interrogated by the police and I told all the facts which I had told today in the court....."
(96) In her crossexamination she has stated that she had seen the accused Mohd. Khairul residing in the premises earlier. She has explained that when Abdul Sattar had come to the house of her mother for taking the room on rent, the accused Mohd. Khairul was with him and at that time she had seen him for the first time. She has also explained that she used to see the accused when he usually came downstairs to switch on the water motor. She has further explained that there was a street light in their locality where they are residing and when she saw the accused and his associate coming downstairs, she was sitting at a distance of hardly four to five feet away from them. On the aspect of the accused carrying beer bottles the witness has explained that there appeared to be fourfive bottles which were in a bag and the caps of the bottles was visible from the bag due to which reason she could see the same.
(97) Coming next to the testimony of Smt. Sarthi Gore (PW15), she is the other tenant residing in the same premises and has confirmed that the accused and his wife, child and brother in law were residing along with the deceased in the same portion. She has further confirmed that the last she St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 108 saw the accused and his family was on 17.10.2011 and on 18.10.2011 there was a lock on their portion. She is also a very important witness of the prosecution as she has proved the motive so attributed to the accused and confirmed the illicit relations between the deceased and wife of accused. The relevant portion of her testimony is as under:
"........ I am residing alongwith my husband in the H.No. E70, Wazirpur, JJ Colony, Delhi on the fourth floor for the last 12/13 years. Deceased Abdul Sattar and accused Khairul present in the court today (correctly identified) were residing on the third floor of the house alongwith his wife, his child and his brother in law. On the ground floor of the said premises, landlady, her daughter and her grand daughter (Dhevti) were residing.
On 17.10.2011 I had seen the accused present in the court today, his brother in law (Sala) and his wife in their room on the third floor.
On 18.10.2011 when I came downstairs to ease myself (for latrine) and I noticed the lock on the room in which the accused and deceased were residing. Thereafter I did not saw them in their room.
After twothree days from 17.10.2011 we felt a foul smelling was emanating from the third floor. Thereafter I came down and told to the landlady and told her about the foul smell. Thereafter the grand daughter of landlady namely Devki came upstairs and then she broke open the lock of the room and we noticed the body of Abdul Sattar was lying. Thereafter police came at the spot and they carried out the proceedings. We were also taken to the police station for interrogation.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 109
At this stage Ld. Addl. PP seeks permission to put leading question to the witness.
Heard. Permission is granted.
It is correct that whenever I used to go upstairs many of a times I had noticed the deceased and the wife of accused in obscene condition (galat harkat karte huye). It is correct that accused Khairul was an addict.
It is correct that deceased Abdul Satta used to be in obscene condition with the wife of accused and at that time accused used to remain in another room in intoxicated condition. It is correct that I had told the said facts to the daughter of Devki.
It is correct that on 18.10.2011 my husband was not at home as he had gone to meet the husband of Maina in Fatehpur Jail, alongwith Maina. Maina was living with me......"
(98) In her crossexamination Smt. Sarthi Gore has stated that she had not stated to the police in her statement that she had came downstairs to ease herself (for latrine). She has also stated that she had told the police in her statement that Khairul and Abdul Sattar were under addiction. It has been observed by this Court that the above fact does find a mention in her statement Ex.PW15/PX1. She has explained that she had many times seen the deceased and the wife of accused in obscene condition i.e. objectionable position while the accused used to be in the other room in a state of addiction as the door of the room used to remain open. She has also explained that she used to work as domestic maid servant and generally left for the job at 7.00AM and returned at about 9.009.30AM and she used to St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 110 return as soon as she finished her work after which she remained in the house for whole the day. According to her, the last time on 17.10.2011 she had seen the accused Khairul in the premises was at about 7.00/7.30PM. (99) It stands established from the testimony of Smt. Sarthi Gore that the accused Mohd. Khairul and his family were sharing the accommodation with deceased and Abdul Sattar and the accused Mohd. Khairul was an addict and therefore taking advantage of this fact the deceased was into an intimate relationship with wife of the accused of which the accused was aware but unable to do anything being under a debt as he owed some money to deceased Abdul Sattar.
(100) Now coming to the testimony of Ramesh Gore (PW16) who is the husband of Smt. Sarthi Gore and has independently confirmed the version of Smt. Maya (PW14), the relevant portion of his testimony is as under:
"....... I am residing at the aforesaid address since last more than 12/13 years as tenant. Deceased Abdul Sattar and accused Khairul present in the court today (correctly identified) were residing on the third floor of the house alongwith his wife, his child and his brother in law. On the ground floor of the said premises, landlady, her daughter and her grand daughter (Dhevti) were residing.
On 17.10.2011 at about 10.30PM when I came downstairs to ease myself in the toilet at second floor accused Khairul is present in the court today(correctly identified) met me in the stairs case coming upstairs that he had win a bet from the deceased of 12 bottles of beers St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 111 which he had brought. Accused Khairul invited me to consume the beer but I did not consumed the same. After easing myself when I was going upstairs, deceased found coming downstairs and he also invited me to take the meat which accused, deceased and his brother in law brought but I again refused. Thereafter I went upstairs in my room.
On next day i.e. on 18.10.2011 when I woke up and came down to the second floor toilet, I noticed that there was a lock in the room in which deceased Abdul Sattar and accused Khairul was residing. Accused Khairul, his brother in laws and his wife were not present at that time. In the evening I took the train for Fatehpur at about 11.40PM alongwith Ms. Maina who was living with us, to meet her husband who was in Fatehpur Jail and also to attend engagement ceremony of my brother in law in Fatehpur (UP) .
On the day of Small Diwali I came back to my rented house at the above premises and my wife was taken to the police station, I immediately went to the police station, ie. PS Bharat Nagar and I disclosed all the facts to the SHO and also showed all the gifts which were gifted to me in the engagement of my brother in law (Dharam ka sala). I also produced the railway ticket before the SHO. Thereafter I alongwith my wife returned to my wife and celebrated Diwali.
At this stage Ld. Addl. PP seeks permission to put leading question to the witness.
Heard. Permission is granted.
It is correct that whenever I used to go upstairs many a times I had noticed the deceased and the wife of accused in a jolly mood and used to make jokes with each other.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 112
It is correct that on 17.10.2011 when deceased Abdul Sattar, accused Khairul and his brother in law were consuming the beer, I heard that they were talking in a hot manner and were talking about some transactions (len den ki baat kar rahe thay). It is correct that after hearing their hot talks I directly went to my room.
It is correct that when I went to Fatehpur alongwith Ms. Maina, my son was also with me. It is correct that when I came back from Fatehpur and reached my house and did not find my wife, from the public persons who were present at the spot, came to know that the dead body of Abdul Sattar was found in his room in a semidecomposed condition and at that time accused, his brother and his wife were not present as they were already found absent from morning of 18.10.2011. It is correct that I was interrogated by the police and my statement was recorded......"
(101) The witness Ramesh Gore has been crossexamined by the Ld. Defence Counsel wherein he has explained that he met the accused Mohd. Khairul first time when he started living as a tenant in the said premises. He has also explained that he did not meet the accused Khairul regularly on day to day basis and it was only when they came across each other per chance that they met. He has further explained that sometimes when he used to go to the fourth floor while passing through the third floor, he used to find his door open. He has explained that there were a window on both the sides in both the rooms in which deceased and accused were living. The witness has states that the windows were covered by curtains and the room from St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 113 inside was not visible and also that voices from the room of Khairul could not be heard from the fourth floor and has voluntarily explained that if they were on the staircase from the fourth floor they could hear the voices from the room even if the door was closed. He has further deposed that he was not having friendly relations either with the deceased Abdul Sattar or with accused Khairul. He has also stated that before 17.10.2011 neither the accused nor the deceased had offered him beer.
(102) The presence of Ramesh Gore at the spot is natural and probable being a resident of the same building on the top floor who frequently cross the portion occupied by the accused and the deceased. Further, the fact that on the day of the incident the accused had carried beer bottles to the portion under his occupation finds corroboration from the circumstantial evidence which has come on record in the form of beer bottles being found at the scene of crime which lends credence to his version and testimony.
(103) A combined reading of the testimonies of Smt. Maya (PW14), Smt. Sarthi Gore (PW15) and Ramesh Gore (PW15) establishes the following aspects:
➢ That Abdul Sattar was a tenant of Smt. Radha and Smt. Maya and was residing in one room in the premises on third floor (which is also referred to as second floor by some witnesses if the Ground Floor is not treated as First Floor) whereas Smt. Sarthi Gore and Ramesh Gore were residing on the fourth i.e. top floor.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 114
➢ That Abdul Sattar used to reside in the same portion having two rooms facing each other with the accused Mohd. Khairul, wife of Mohd. Khairul, child of Mohd. Khairul and his brother in law.
➢ That the accused Mohd. Khairul was a habitual drinker and an addict and used to remain intoxicated and addicted.
➢ That while the deceased Abdul Sattar developed intimate relationship with the wife of the accused Mohd. Khairul which was even noticed by the other residents of the building i.e. Smt. Sarthi Gore and brought this to the notice of the family of landlady.
➢ That on 17.10.2011 at about 10:30 PM the accused Mohd. Khairul had come to the tenanted room carrying beer bottles with him when Ramesh Gore met him on the way and Mohd. Khairul invited Ramesh Gore for drinking stating that he had won 12 bottles of beer in a bet with Abdul Sattar (deceased) to which Ramesh Gore refused after which Mohd. Khairul and his brother in law went to their room.
➢ That Ramesh Gore while going to the washroom and while crossing the portion where the accused and deceased resided, he noticed some hot arguments and talks from the said rooms relating to money matter (LenDen).
➢ That around 12:00 AM (Midnight) Smt. Maya who is residing on the ground floor noticed that initially the wife of accused Mohd. Khairul alongwith her child came downstairs, then the brother in law of Mohd. Khairul also came out and thereafter the accused Mohd.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 115
Khairul came down having small type of bags in their hands and then they all left the premises after which they were never seen till the arrest of the accused.
➢ That on 18.10.2011 Smt. Sarthi Gore saw a lock on the portion of the deceased Abdul Sattar with whom accused Mohd. Khairul and his family were also residing.
➢ That on 20.10.2011 a foul smell was found emanating from the room of Abdul Sattar on which Smt. Sarthi Gore went to the landlady and they decided to go out and check the room on which they all went to the room of Abdul Sattar which was found locked.
➢ That Smt. Radha and Maya reached the portion and Smt. Smt. Radha had brought a hammer and broke open the lock of the room of Abdul Sattar and entered inside the room when they all noticed the dead body of Abdul Sattar lying facing towards the floor with his neck slit.
➢ That the dead body of Abdul Sattar was lying on the blanket which was soaked with blood and after seeing the body Smt. Radha made a call at 100 number.
(104) It is writ large from the above that the tenanted room of Abdul Sattar was found locked from 18.11.2011 and nobody else had entered the room thereafter and was never opened till its lock was broken by Smt. Radha with the help of a hammer. It therefore stands established that in the instant case there is a proximity between the last seen and the time of death of the deceased. The Postmortem on the dead body of the deceased was St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 116 conducted by the Autopsy Surgeon on 21.10.2011 at 12:30 PM and the time since dead has been opined to be three and a half days meaning thereby that the death of the deceased had taken place on the intervening night of 1718.10.2011. This is compatible to the Last Seen Evidence on record in the form of testimonies of Smt. Maya (PW14), Smt. Sarthi Gore (PW15) and Ramesh Gore (PW16) establishing that the accused Mohd. Khairul resided along with his family in the same portion with deceased and on 17.10.2011 they had last seen the deceased Abdul Sattar alive in the company of the accused Mohd. Khairul along with his brother in law who at about 10:30 PM were carrying beer bottles to their portion i.e. rooms let out to Abdul Sattar and Mohd. Khairul claimed to Ramesh Gore that he had won a bet with the deceased (which beer bottles were found at the scene of crime and also visible in photograph Ex.PW6/A8).
(105) The accused is the best person who could have offered an explanation as to when he parted with the company of the deceased without any difficulty and the onus under these circumstances would not shift upon the prosecution. Since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in Section 106 of the Evidence Act to meet exceptional cases in which not only it would be impossible to disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 117 without difficulty or inconvenience.
(106) When this incriminating material was put to the accused Mohd. Khairul he failed to explain when he parted company with the deceased and where and in response to the same has simply denied the incriminating material as incorrect. The relevant question is reproduced as under:
Q24: It is in evidence against you that according to PW16 Ramesh Gore that deceased Abdul Sattar and you accused Khairul were residing on the third floor of the house alongwith your wife, child and your brother in law, on the the ground floor of the said premises, landlady, her daughter and her grand daughter (Dhevti) were residing, on 17.10.2011 at about 10.30PM when he came downstairs to ease himself in the toilet at second floor you accused Khairul met him in the stairs case coming upstairs that he had win a bet from the deceased Abdul Sattar of 12 bottles of beers which he had brought, you accused Khairul invited him to consume the beer but he refused for the same and after easing himself when he was going upstairs, deceased found coming downstairs and he also invited him to take the meat which you accused, deceased Abdul Sattar and his brother in law brought but he (witness) again refused. What have you to say about it?
Ans: It is incorrect.
(107) Rather in his statement he has gone to plead Alibi as defence stating that at relevant point of time he was at the native village of his wife i.e. at District Khulna at Bangladesh which reply I reproduce as under:St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 118
Ans: I am innocent. I have been falsely implicated by the police only to work out the blind murder case. I have not committed any offence. Prior to 30 to 35 days of the date of alleged incident, I had gone to the village of my wife at District Khulna, Bangladesh as my wife was pregnant at that time. When I came back to India, the police falsely implicated me in this case. The alleged recovery has been planted upon me by the police. I did not make any disclosure statement as alleged. I have nothing to do with the alleged incident. I can produce my election ID card issued by Election Commission of India if opportunity provided.
(108) The above response is highly unsatisfactory and not only reflects that he is a Bangladeshi but also that he frequently crosses borders at his convenience. When did he go to Bangladesh? How did he go? When did he return back? Are all questions of which there are no answers forthcoming. The explanation offered by the accused on the face of it is unbelievable. There is no reason why independent witnesses (Smt. Maya, Smt. Sarthi Gore, Ramesh Gore and Mohd. Aqueel), would falsely implicate him. Rather, on the other hand the explanation given by him supports the version of the prosecution that soon after the incident he had escaped to Bangladesh along with his wife, child and brother in law and after leaving them there, he himself crossedback to India as usual to make an earning (which earnings he makes by committing crimes as confirmed by his previous criminal record when he has been apprehended).St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 119
(109) In view of the above, I hereby hold that the fact that the deceased Abdul Sattar was last seen alive in the company of the accused Mohd. Khairul in the same room where they were residing and where the dead body of Abdul Sattar was found in a deposed condition, is highly determinative of his guilt.
Subsequent Conduct of the Accused:
(110) The case of the prosecution is that after committing the murder of the deceased Abdul Sattar, the accused Mohd. Khairul along with his associates i.e. his wife Ms. Praveen and brother in law Joshim had left the tenanted premises of deceased Abdul Sattar which he was sharing with the deceased, which subsequent conduct of the accused is a strong pointer towards his guilty.
(111) In this regard, I may observe that as per the provisions of Section 8 of the Indian Evidence Act, 1872 any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 120 (112) It is hardly said that there any action without a motive. Conduct of a person to proceedings in reference to any fact in issue or relevant fact is relevant. As per the provisions of Section 8 the conduct whether previous or subsequent an offence against whom is the subject of inquiry is relevant if the conduct influences or influenced by any fact in issue or a relevant fact as it throws light upon a person's motive, intention, goodfaith etc. Subsequent act of a person which is indicative of desire to avoid or stifle judicial inquiry into an offence of which the party doing the act is accused or suspected is relevant. The conduct of a person immediately after the offence is relevant under these circumstances and in the absence of any explanation for such act the presumption would be against such person.
(113) Applying the settled principles of law to the facts of the present case it is writ large from the testimony of Smt. Maya (PW14) that she had seen the accused Mohd. Khairul, his wife and child and his brother in law leaving the premises at around 12:00 Midnight of 17.10.2011 after which they were never seen in the premises. According to Smt. Sarthi Gore (PW15) after 17.10.2011 the room of Abdul Sattar was found locked. I may observe that the dead body of the deceased Abdul Sattar was found in a highly decomposed condition in the said room which was being shared by the deceased and also the accused and his family. The accused Mohd. Khairul is a Bangladeshi National and a habitual offender who is involved in other criminal cases of of theft etc. SI Ravinder Singh (PW12) has proved St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 121 that the accused Mohd. Khairul is a previous offender when he was apprehended he was found in possession of an Iphone, Rs.12,000/, one purse and a TITAN watch which was the stolen property of case bearing FIR No. 212/12, under Section 380 IPC, Police Station Keshav Puram and it was then that the accused Mohd. Khairul disclosed about his involvement in the present case and then information was sent to Police Station Bharat Nagar in this regard.
(114) This being the background, I hereby hold that the subsequent conduct of the accused Mohd. Khairul in suddenly leaving the tenanted premises along with his family on the intervening night i.e. Midnight of 1718.10.2011 after picking up their bags and belongings, locking the said room (which was never opened till the locks were broken by the landlady's family to check out the offensive smell coming from the said room on 20.10.2011) and thereafter in not returning is a strong pointer towards his guilt.
Apprehension/ Arrest of accused and Recovery of Weapon of Offence:
(115) The case of the prosecution is that soon after committing the murder of Abdul Sattar the accused escaped to Bangladesh along with his wife and brother in law and child being a frequent visitor. Being a habitual offender his movement was directed to be monitored and after about six months i.e. on 1.8.2012 at about 6:10 PM pursuant to a secret information the accused Mohd. Khairul was apprehended by the AATS from near Gupta St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 122 Market, Inderlok. From the possession of accused an Iphone, Rs.12,000/, one purse and a TITAN watch was recovered and on inquiry it was revealed that it was the stolen property of case bearing FIR No. 212/12, under Section 380 IPC, Police Station Keshav Puram. The accused Mohd.
Khairul was then interrogated at length wherein he disclosed about his involvement in the present case and then information was sent to Police Station Bharat Nagar in this regard.
(116) Pursuant to the same Inspector Rajender Prashad (PW25) along with ASI Dev Raj, Ct. Kuldeep reached the office of the AATS Daya Basti and collected the copies of the arrest memo, personal search, disclosure statement, DD entry and Kalandara. Thereafter an application was filed before the Ld. Duty MM at Rohini Court before whom the accused Mohd. Khairul was produced and permission for interrogation for half an hour was sought. The accused was then interrogated by Inspector Rajender Prashad outside the court and thereafter formally arrested him vide memo Ex.PW19/B and recorded his disclosure statement vide Ex.PW19/A. Two days Police Custody Remand of the accused was obtained during which the the accused led the police team i.e. Inspector Rajender Prashad, ASI Dev Raj (PW22) and Ct. Kuldeep (PW19) to scene of crime i.e. E70, JJ Colony, Wazirpur where the accused pointed out the room on the second floor as the room where he had been staying as tenant along with his wife and brother in law/sala pursuant to which the pointing out memo was prepared vide Ex.PW19/C. The accused then took the police party to the slip/tand on the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 123 staircase above the second floor where a large quantity of junk was lying and he then got one darati recovered from under the junk which was in the shape of a sickle. The Investigating Officer then prepared the sketch of the same vide Ex.PW19/D and then seized the same vide memo Ex.PW19/E. In this regard the prosecution has placed its reliance on the testimonies of Ct. Kuldeep (PW19), SI Dev Raj (PW22) and Inspector Rajender Prashad (PW25).
(117) Ld. Defence Counsel has argued that the disclosure statement of the accused Mohd. Khairul is inadmissible in evidence being hit by the provisions of Section 25 of Evidence Act. On the other hand the Ld. Ld. Addl. PP for the State has vehemently argued that the disclosure statements so made by the accused is admissible in evidence since pursuant to his disclosure statement the accused got recovered the weapon of offence i.e. Daranti which is discovery of a relevant fact as per the provisions of Section 27 of Evidence Act.
(118) I have considered the rival contentions. Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, 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. Thus the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 124 requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer. (119) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
(120) It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact.
(121) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 125 between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles". (122) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: ".......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......"
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 126
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S.
27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 127 since they do not relate to the discovery of the knife in the house of the informant......"
(123) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 128 of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.
(124) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 129 applicability of the provisions of Section 27 of the Indian Evidence Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
(125) In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned.
However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 130 of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(126) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible. St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 131 (127) Applying the settled principles of law to the facts of the present case, it is evident that the place where the dead body was recovered was already within the knowledge of the police. It was also within the knowledge that the injuries were caused to the deceased with the help of a sharp object but it was not within their knowledge as to what was the nature of weapon used by the accused and where the accused had hidden the same. What turns on the fact is that it was the accused Mohd. Khairul led the police party to the place of occurrence i.e. E70, JJ Colony, Wazirpur, Dlehi and then took the police party to the slip/tand on the staircase above the second floor from where he got recovered a Daranti lying in the junk, which place was not in the knowledge of the police previously. The forensic evidence on record establishes the presence of blood on the said Daranti Ex.P1 thereby confirming that it was the same Daranti used by the accused in committing the murder of deceased Abdul Sattar. The fact that the accused Mohd. Khairul pointed out the said place and got recovered the weapon of offence i.e. Daranti Ex.P1 (confirmed to be having Blood as per the FSL Report) is a strong pointer towards the guilt of the accused Mohd. Khairul.
(128) In view of my aforesaid discussion I hereby hold that the disclosure made by the accused Mohd. Khairul @ Arman leading to the recovery of weapon of offence is incriminating qua the accused and the forensic report confirms the presence of blood on the same connect him to the crime.
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 132 Charges under Section 14 of Foreigners Act:
(129) The case of the prosecution is that the accused Mohd. Khairul is a Bangladeshi National and is a habitual offender and has been previously deported to Bangladesh but he keeps returning for purposes of committing crime in Delhi which is his source of livelihood.
(130) In so far as the charge framed against the accused Mohd.
Khairul under Section 14 of the Foreigners Act is concerned, I may observe that as per the provisions of Section 9 of Foreigners Act the onus of proof that the accused is not a foreigner of a particular class or description would lie upon such person that is the accused. The question whether the accused Mohd. Khairul is a foreigner is a question of fact which is not disputed by the accused and hence required no evidence. By reason of Section 9 of the Foreigners Act whenever a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner lies upon the accused. Hence, it is writ large that under Section 9 the burden of proving that he is an Indian citizen in the manner claimed by him and thus not a foreigner lies upon the accused and unless he discharges that burden, he cannot claim an exemption from the operation of Foreigners Act [Ref.: Fateh Mohd. Vs. The Delhi Administration reported in AIR 1963 SC 1035) and Masud Khan Vs. State of Uttar Pradesh reported in AIR 1974 SC 28 and Sarbananda Sonowall (II) Vs. Union of India reported in 2007 (1) SCC 174].
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 133 (131) The case of the prosecution is that when apprehended the accused Mohd. Khairul disclosed that he was a Bangladeshi National being a resident of Vill. Chandni Mahel, Police Station Digoli, Distt. Khulna, Bangladesh. It is also the case of the prosecution that accused Mohd. Khairul a Bangladeshi National had not been able to produce any document to explain and justify his stay in India. This being the background, the onus of proving that he is not a foreigner, now shifts upon the accused Mohd. Khairul (Section 9 of the Foreigners Act). In order to discharge the onus upon him, the has not placed on record any document to show that he is an Indian National rather on the contrary his own defence is of alibi i.e. he was in Bangladesh in District Khulna when the alleged crime took place. (132) It is writ large that the accused Mohd. Khairul had himself admitted his frequent visits to Bangladesh. In his statement under Section 313 Cr.P.C. the accused has himself claimed that prior to 3035 days of the date of alleged incident he had gone to the village of his wife at District Khulna, Bangladesh since according to him his wife was pregnant at that time. In fact Inspector Rajender Prashad (PW25) has explained that the wife and family of the accused is still residing at Bangladesh and even previously he i.e. Mohd. Khairul had been deported to Bangladesh but he keeps returning for purposes of committing offences and every time the accused comes he stays on a new address. Here, I may observe that as per the police records the accused was deported to Bangladesh vide proceedings connected in FIR No. 83/2003, under Section 399/402 IPC, St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 134 Police Station South Rohini.
(133) I may further observe that in his statement under Section 313 Cr.P.C. the accused Mohd. Khairul claimed that he can produce his Election ID Card issued by the Election Commission of Indian but thereafter failed to do so despite being granted an opportunity. Even otherwise, merely because a person is staying in India for a long time does not perse confer any right of citizenship upon him. The Division Bench of the Delhi High Court headed by the then Hon'ble Chief Justice in the case of Chetan Dutt Vs. Union of India & Ors. in CM No. 10683/2003 in CW No. 3170/2001 dated 24.9.2003 and 8.9.2004 had also wondered how these Ration Cards/ Election ID Cards were being issued to illegal migrants and had further observed that control price food grains were to be supplied to the needy citizens of this Country and not to the illegal migrants and had even gone ahead to bring to the notice of the Election Commission the fact that many of these illegal migrants had also been issued the election cards. (134) In this background, particularly keeping in view the admission of the accused it stands established that the accused Mohd. Khairul who is a foreigner being a Bangladeshi National entered India without any valid travel documents i.e. Passport or Visa and has been staying in India and frequently crossing the boarders illegally by taking advantage of the porous borders and strategic terrain of both countries at various places and indulged into crime when on this side of the border for personal gain. Any person who is not a citizen of India and a foreigner within the meaning of St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 135 Section 2 (a) (iii) of the Foreigners Act, has no right to remain in this territory and such a foreigner is required to leave India. The Foreigners (Proof of Identity) Order require every Foreigner to be in possession of Passport or any other travel document for purposes of entering into India which he should have in his possession and is liable to be produced to the demand of the police officer concerned. Further, the Registration of Foreigners (Bangladesh) Rules requiring any person who is a citizen of Bangladesh to be present in person to the Registering Authority. This Court can take a note that there are around three Crores Bangladeshi in India and as per the order of the Delhi High Court in the case of Chetan Dutt Vs. Union of India & Ors. in CM No. 10683/2003 in CW No. 3170/2001 decided on 24.9.2003, at least 100 Bangladeshi are required to be deported per month.
(135) The accused Mohd. Khairul a foreigner being a Bangladeshi National has not been able to produce any document with regard to his proof of identity in the form of passport or any other travel documents [Ref.: Foreigners (Proof of Identity) Order], had never appeared in person before the competent registering authority [Ref.: Foreigners (Bangladesh) Rules] and during his stay had committed offences under Indian Penal Code and other Acts (Foreigners Act) and had even previously been deported to Bangladesh. In this background, I hold the accused Mohd. Khairul @ Arman guilty of the offence under Section 14 of Foreigners Act and accordingly convict him for the same.
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 136 FINAL CONCLUSIONS:
(136) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
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 conclusive nature and tendency;
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.
(137) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. They have proved having gone to the spot of incident. The identity of the accused has been St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 137 established. On the basis of the testimonies of the various prosecution witnesses the following aspects stand established:
➢ That Abdul Sattar was a tenant of Smt. Radha and Smt. Maya and was residing in one room in the premises on third floor (which is also referred to as second floor by some witnesses if the Ground Floor is not treated as First Floor) whereas Smt. Sarthi Gore and Ramesh Gore were residing on the fourth i.e. top floor.
➢ That Abdul Sattar used to reside in the same portion having two rooms facing each other with the accused Mohd. Khairul, wife of Mohd. Khairul, child of Mohd. Khairul and his brother in law.
➢ That the accused Mohd. Khairul was a habitual drinker and an addict and used to remain intoxicated and addicted.
➢ That while the deceased Abdul Sattar developed intimate relationship with the wife of the accused Mohd. Khairul which was even noticed by the other residents of the building i.e. Smt. Sarthi Gore and brought this to the notice of the family of landlady.
➢ That on 17.10.2011 at about 10:30 PM the accused Mohd. Khairul had come to the tenanted room carrying beer bottles with him when Ramesh Gore met him on the way and Mohd. Khairul invited Ramesh Gore for drinking stating that he had won 12 bottles of beer in a bet with Abdul Sattar (deceased) to which Ramesh Gore refused after which Mohd. Khairul and his brother in law went to their room.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 138
➢ That Ramesh Gore while going to the washroom and while crossing the portion where the accused and deceased resided, he noticed some hot arguments and talks from the said rooms relating to money matter (LenDen).
➢ That around 12:00 AM (Midnight) Smt. Maya who is residing on the ground floor noticed that initially the wife of accused Mohd. Khairul alongwith her child came downstairs, then the brother in law of Mohd. Khairul also came out and thereafter the accused Mohd.
Khairul came down having small type of bags in their hands and then they all left the premises after which they were never seen till the arrest of the accused.
➢ That on 18.10.2011 Smt. Sarthi Gore saw a lock on the portion of the deceased Abdul Sattar with whom accused Mohd. Khairul and his family were also residing.
➢ That on 20.10.2011 a foul smell was found emanating from the room of Abdul Sattar on which Smt. Sarthi Gore went to the landlady and they decided to go out and check the room on which they all went to the room of Abdul Sattar which was found locked.
➢ That Smt. Radha and Maya reached the portion and Smt. Smt. Radha had brought a hammer and broke open the lock of the room of Abdul Sattar and entered inside the room when they all noticed the dead body of Abdul Sattar lying facing towards the floor with his neck slit.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 139
➢ That the dead body of Abdul Sattar was lying on the blanket which was soaked with blood and after seeing the body Smt. Radha made a call at 100 number.
➢ That pursuant to the information received at Police Station Bharat Nagar SI Sandeep Kumar and Ct. Dharmender reached the spot where they found the dead body of the deceased.
➢ That in the meantime SHO and the Crime Team also reached the spot and inspected the spot and the photography of the spot of the scene was got done.
➢ That SI Sandeep then recorded the statement of Radha W/o Bhupati who had identified the dead body as that of the tenant Abdul Sattar.
➢ That on the basis of statement of Smt. Radha the present case was registered.
➢ That on 1.8.2012 pursuant to a secret information the accused Mohd.
Khairul was appended from near Gupta Market, Inderlok by the members of AATS i.e. SI Ravinder Singh, ASI Rajender, HC Mahesh, HC Satish, HC Rajesh, Ct. Ansar, Ct. Praveen and Ct. Amit.
➢ That from the possession of accused Mohd. Khairul an Iphone, Rs.
12,000/, one purse and a TITAN watch was recovered which were found to be stolen from Tri Nagar and a case FIR No. 212/12, under Section 380 IPC was registered at Police Station Keshav Puram in respect of the said stolen articles.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 140
➢ That said articles were taken into possession under Section 102 Cr.P.C. after which the accused was interrogated in detail wherein he disclosed his involvement in the present case and hence information was sent to the Investigating Officer of this case.
➢ That on 02.08.2012 Inspector Rajender Prashad received information from SI Ravinder of AATS North District, Daya Basti regarding the arrest of Mohd. Khairul on which he along with ASI Dev Raj, Ct.
Kuldeep reached the office of the AATS Daya Basti and collected the copies of the arrest memo, personal search, disclosure statement, DD entry and Kalandara.
➢ That Inspector Rajender Prashad then came to the Rohini Court and filed the application before the Duty Magistrate before whom the accused Mohd. Khairul was produced and sought permission for interrogation for half an hour.
➢ That after the permission was granted, Inspector Rajender Prashad interrogated the accused outside the court and then formally arrested and recorded his disclosure statement vide Ex.PW19/A. ➢ That two days Police Custody Remand of the accused was obtained during which the accused led the police party to the scene of crime i.e. E70, JJ Colony, Wazirpur pursuant to which the pointing out memo was prepared.
➢ That the accused then took the police party to the slip/tand on the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 141 staircase above the second floor where a large quantity of junk was lying and then got one darati recovered from under the junk which was in the shape of a sickle.
➢ That Inspector Rajender Prashad prepared the sketch of the weapon of offence i.e. Daranti and took the same into possession.
(138) The prosecution has been able to successfully establish that the crime was motivated by the extreme sense of hatred which the accused Mohd. Khairul had entertained for the deceased due to the fact that the deceased Abdul Sattar was having illicit relations with his wife, while he himself had borrowed some amount from the deceased which he was unable to return to Abdul Sattar who was exploiting the situation. Further, the Last Seen Evidence on record strongly establishes that the deceased Abdul Sattar was last seen alive in the company of the accused Mohd. Khairul and the accused Mohd. Khairul failed to explain when he parted company with the deceased and where, which is highly determinative of the guilt of the accused and finds due corroboration and confirmation from the medical and circumstantial evidence on record. Further, the subsequent conduct of the accused Mohd. Khairul in immediately leaving the tenanted premises along with his family on the intervening night of 1718.10.2011 and thereafter in not returning incriminates him.
(139) Also, the Medical Evidence on record is found to be compatible to the prosecution case to the effect that the death of the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 142 deceased Abdul Sattar was due to Coma and Shock consequent upon head and neck injury which was sufficient to cause death in ordinary course of nature. It stands established that the death of the deceased had taken place on the intervening night of 1718.10.2011 which is compatible to the Last Seen Evidence on record in the form of testimonies of Smt. Maya, Smt. Sarthi Gore and Ramesh Gore. Further, it is evident that there were as many as six injuries on the body of the deceased thereby establishing that it is not the work of a single person.
(140) In so far as the Forensic Evidence is concerned, it confirms the spot of incident since Human Blood was found on the empty beer bottles lying at the spot. Further, Blood was detected on the weapon of offence i.e. Daranti which is compatible to the prosecution case that the said Daranti was used by the accused in committing the murder of the deceased.
(141) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence?
The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(142) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 143 the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. (143) This being the background, I hereby hold that the prosecution has been able to prove and establish the intent and knowledge of the accused Mohd. Khairul (as contemplated under Section 299 Indian Penal Code) to commit the murder of Abdul Sattar pursuant to which the accused committed the murder of deceased and hence he is hereby held guilty of the officer under Section 302 Indian Penal Code.
(144) Further, the accused Mohd. Khairul a foreigner being a Bangladeshi National has not been able to produce any document with regard to his proof of identity in the form of passport or any other travel documents, had never appeared in person before the competent registering authority and during his stay had committed offences under Indian Penal Code and other Acts (Foreigners Act) and had even previously been deported to Bangladesh. Therefore, I hold the accused Mohd. Khairul St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 144 guilty of the offence under Section 14 of Foreigners Act and accordingly convict him for the same.
(145) Be listed for arguments on sentence on 16.10.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 9.10.2014 ASJII(NW)/ ROHINI
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 145
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 124/2012 Unique Case ID No. 02404R0305212012 State Vs (1) Mohd. Khairul @ Arman S/o Mohd. Abdul Vegabond Jakhira, Delhi Also at: Vill. Chandni Mahal, PS Digoli, Distt. Khulna, Bangladesh (Convicted) (2) Ms. Parveen W/o Mohd. Khairul R/o Vill. Chandni Mahal, PS Digoli, Distt. Khulna, Bangladesh (Absconding) FIR No.: 214/2011 Police Station: Bharat Nagar Under Sections: 302/34 Indian Penal Code Date of conviction: 9.10.2014 Arguments heard on: 18.10.2014 Date of Sentence: 20.10.2014 APPEARANCE:
Present: Sh. Shiv Kumar, Ld. Addl. PP for the State.
Convict Mohd. Khairul @ Arman in Judicial Custody with Sh.
Rajat Srivastav Advocate.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 146
ORDER ON SENTENCE:
As per the allegations, on the intervening night of 1718.10.2011 at E70, Second Floor Room, JJ Colony, Wazirpur, Delhi the accused Mohd. Khairul @ Arman along with Praveen and Joshim (both not arrested) in furtherance of their common intention committed murder of Abdul Sattar. It is further alleged that on 1.8.2012 at Delhi the accused Mohd. Khairul being a Bangladeshi National was found in India without any valid documents.
On the basis of the testimonies of the various prosecution witnesses particularly the public witnesses i.e. Smt. Radha, Smt. Maya, Smt. Sarthi Gore, Ramesh Gore and Mohd. Aqueel and also on the basis of the medical, forensic and other circumstantial evidence which has come on record, this Court vide a detail judgment dated 9.1.2014 held the accused guilty of the offence under Section 302 Indian Penal Code and Section 14 of Foreigners Act.
Vide the detail judgment this Court has observed that the prosecution has been able to prove and establish that Abdul Sattar was a tenant of Smt. Radha and Smt. Maya and was residing in one room in the premises on third floor (which is also referred to as second floor by some witnesses if the Ground Floor is not treated as First Floor) whereas Smt. Sarthi Gore and Ramesh Gore were residing on the fourth i.e. top floor; that Abdul Sattar used to reside in the same portion having two rooms facing each other with the accused Mohd. Khairul, wife of Mohd. Khairul, child of St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 147 Mohd. Khairul and his brother in law; that the accused Mohd. Khairul was a habitual drinker and addict and used to remain intoxicated and addicted;
that while the deceased Abdul Sattar developed intimate relationship with the wife of the accused Mohd. Khairul which was even noticed by the other residents of the building i.e. Smt. Sarthi Gore and brought to the notice of the family of landlady; that on 17.10.2011 at about 10:30 PM the accused Mohd. Khairul had come to the tenanted room carrying beer bottles with him when Ramesh Gore met him on the way and Mohd. Khairul invited Ramesh Gore for drinking stating that he had won 12 bottles of beer in a bet with Abdul Sattar (deceased) to which Ramesh Gore refused after which Mohd. Khairul and his brother in law went to their room; that Ramesh Gore while going to the washroom and while crossing the portion where the accused and deceased resided, noticed some hot arguments and talks from the said rooms relating to money matter (LenDen); that around 12:00 AM (Midnight) Smt. Maya who is residing on the ground floor noticed that initially the wife of accused Mohd. Khairul alongwith her child came downstairs, then the brother in law of Mohd. Khairul also came out and thereafter the accused Mohd. Khairul came down having small type of bags in their hands and then they all left the premises after which they were never seen till arrest of the accused; that on 18.10.2011 Smt. Sarthi Gore saw a lock on the portion of the deceased Abdul Sattar with whom accused Mohd. Khairul and his family were also residing.
The prosecution has also been able to establish that on St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 148 20.10.2011 a foul smell was found emanating from the room of Abdul Sattar on which Smt. Sarthi Gore went to the landlady and they decided to go out and check the room on which they all went to the room of Abdul Sattar which was found locked; that Smt. Radha and Maya reached the portion and Smt. Smt. Radha had brought a hammer and broke open the lock of the room of Abdul Sattar and entered inside the room when they all noticed the dead body of Abdul Sattar lying facing towards the floor with his neck slit;
that the dead body of Abdul Sattar was lying on the blanket which was soaked with blood and after seeing the body Smt. Radha made a call at 100 number.
Further, the prosecution has been able to establish that pursuant to the information received at Police Station Bharat Nagar SI Sandeep Kumar and Ct. Dharmender reached the spot where they found the dead body of the deceased; that in the meantime SHO and the Crime Team also reached the spot and inspected the spot and the photography of the spot of the scene was got done; that SI Sandeep then recorded the statement of Radha W/o Bhupati who had identified the dead body as that of the tenant Abdul Sattar; that on the basis of statement of Smt. Radha the present case was registered.
It has also been established that on 1.8.2012 pursuant to a secret information the accused Mohd. Khairul was appendeded from near Gupta Market, Inderlok by the members of AATS i.e. SI Ravinder Singh, ASI Rajender, HC Mahesh, HC Satish, HC Rajesh, Ct. Ansar, Ct. Praveen St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 149 and Ct. Amit; that from the possession of accused Mohd. Khairul an I phone, Rs.12,000/, one purse and a TITAN watch was recovered which were found to be stolen from Tri Nagar and a case FIR No. 212/12, under Section 380 IPC was registered at Police Station Keshav Puram in respect of the said stolen articles; that said articles were taken into possession under Section 102 Cr.P.C. after which the accused was interrogated in detail wherein he disclosed his involvement in the present case and hence information was sent to the Investigating Officer of this case; that on 02.08.2012 Inspector Rajender Prashad received information from SI Ravinder of AATS North District, Daya Basti regarding the arrest of Mohd. Khairul on which he along with ASI Dev Raj, Ct. Kuldeep reached the office of the AATS Daya Basti and collected the copies of the arrest memo, personal search, disclosure statement, DD entry and Kalandra; that Inspector Rajender Prashad then came to the Rohini Court and filed the application before the Duty Magistrate before whom the accused Mohd. Khairul was produced and sought permission for interrogation for half an hour; that after the permission was granted, Inspector Rajender Prashad interrogated the accused outside the court and then formally arrested and recorded his disclosure statement; that two days Police Custody Remand of the accused was obtained during which the accused led the police party to the scene of crime i.e. E70, JJ Colony, Wazirpur pursuant to which the pointing out memo was prepared; that the accused then took the police party to the slip/tand on the staircase above the second floor where large St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 150 quantity of junk was lying and then got one darati recovered from under the junk which was in the shape of a sickle; that Inspector Rajender Prashad prepared the sketch of the weapon of offence i.e. Daranti and took the same into possession.
The prosecution has been able to successfully establish that the crime was motivated by the extreme sense of hatred which the accused Mohd. Khairul had entertained for the deceased due to the fact that the deceased Abdul Sattar was having illicit relations with his wife, while he himself had borrowed some amount from the deceased which he was unable to return to Abdul Sattar who was exploiting the situation. Further, the Last Seen Evidence on record strongly establishes that the deceased Abdul Sattar was last seen alive in the company of the accused Mohd. Khairul and the accused Mohd. Khairul failed to explain when he parted company with the deceased and where, which is highly determinative of the guilt of the accused and finds due corroboration and confirmation from the medical and circumstantial evidence on record. Further, the subsequent conduct of the accused Mohd. Khairul in immediately leaving the tenanted premises along with his family on the intervening night of 1718.10.2011 and thereafter in not returning incriminates him.
Aslo, the Medical Evidence on record is found to be compatible to the prosecution case to the effect that the death of the deceased Abdul Sattar was due to Coma and Shock consequent upon head and neck injury which was sufficient to cause death in ordinary course of St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 151 nature. It stands established that the death of the deceased had taken place on the intervening night of 1718.10.2011 which is compatible to the Last Seen Evidence on record in the form of testimonies of Smt. Maya, Smt. Sarthi Gore and Ramesh Gore. Further, it is evident that there were as many as six injuries on the body of the deceased thereby establishing that it is not the work of a single person.
In so far as the Forensic Evidence is concerned, it confirms the spot of incident since Human Blood was found on the empty beer bottles lying at the spot. Further, Blood was detected on the weapon of offence i.e. Daranti which is compatible to the prosecution case that the said Daranti was used by the accused in committing the murder of the deceased.
This being the background, this Court has held that the prosecution has been able to prove and establish the intent and knowledge of the accused Mohd. Khairul (as contemplated under Section 299 Indian Penal Code) to commit the murder of Abdul Sattar pursuant to which the accused committed the murder of deceased and hence he has been hereby held guilty of the officer under Section 302 Indian Penal Code.
Further, the accused Mohd. Khairul has been held to be a Bangladeshi National and has despite opportunity not been able to produce any document with regard to his proof of identity in the form of passport or any other travel documents, had never appeared in person before the competent registering authority and during his stay had committed offences under Indian Penal Code and other Acts (Foreigners Act) for which reason St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 152 he has been held guilty of the offence under Section 14 of Foreigners Act and accordingly convicted.
Heard arguments on the point of sentence. The convict Mohd, Khairul is aged about 33 years having a family comprising of his aged widow mother, wife (i.e. absconding accused Ms. Praveen) and four children i.e. three daughters and one son. He is 8th class pass and is a Kabari by profession.
Ld. Counsel appearing on behalf of the convict has vehemently argued that the convict belongs to a poor family and keeping in view his family background a lenient view be taken against him.
On the other hand the Ld. Addl. Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Mohd. Khairul @ Arman. It is also stated that the convict has not been able to show any mitigating circumstances in their favour which could make out a case for imposition of sentence of imprisonment for life. He has pointed out that the convict Mohd. Khairul @ Arman is involved in four cases details of which are as under:
1. FIR No. 212/12, under Section 380/411 IPC, Police Station Keshav Puram wherein he has been convicted.St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 153
2. FIR No. 434/2002, under Section 380/411/34 IPC, Police Station Keshav Puram wherein the accused was declared a Proclaimed Offender.
3. FIR No. 162/2007, under Section 27/61/85 of NDPS Act, Police Station Ashok Vihar wherein he has already been convicted.
4. FIR No. 83/2007, under Section 399/402 IPC, Police Station South Rohini wherein he has already been convicted after which he was deported to Bhangladesh.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 154 accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity. The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or
domination of another person; and
(g) That the condition of the accused showed that he
was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 155 The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
It was also observed by the Hon'ble Court that at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 156 crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is the desirability to keep the offender out of circulation.
Now, I would like to draw a balance sheet of aggravating and mitigating factors. The only mitigating factor in the present case is that the convict Mohd. Khairul a young man of 33 years belongs to a poor family. The aggravating factors are that the deceased Abdul Sattar too was a young boy of 2526 years and the convict had killed the deceased Abdul Sattar because the deceased was seeking return of the amount lend to him (convict) which he was not returning and while exploiting the situation was maintaining illicit/ intimate relations with his wife.
I have duly considered the rival contentions and the background of the convict. Lately a number of criminal cases have come to light where Bangladeshi Nationals have been found to be involved in heinous crimes such as Robberies, Dacoities, Murder, Rape etc. Bangladeshi influx is one of the major challenges being faced by our country in recent times and a matter of National concern. This serious issue requires urgent governmental intervention, political debate, honest deliberations and concerted action, before it becomes a little too late. As observed, these criminals of Bangladeshi origin regularly and periodically cross over to our Country in large numbers taking advantage of porous St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 157 borders and terrain and escape back with the loot and booty which they plunder from the law abiding citizens of our country and it pains me to observe that most of the time the Administration is helpless. It is the citizens of this Country who have the first right to its resources. In a Nation fragmenting under Economic, Religious, Caste, Ethnic and other Divides, these criminals find it very easy to make a place for themselves by conveniently integrating with the local population without the citizens having to suspect their intent. They come, plunder and go and this has become regular affair having a definite crime pattern. Our Country has become a Haven for all these criminal elements who are most ruthless and brutal with anybody who come in their way. While the genuine citizens of this Country continue to suffer in abject poverty, what is it that prevents a firm, resolute, intense government action against these three crores Bangladeshi Nationals (official figures as reported) illegally staying in India, enjoying all benefits which are otherwise the entitlements of citizens. It is this lack of concerted Governmental/ Administrative action which has compelled the Courts of Law to step in. The Division Bench of the Delhi High Court headed by the then Hon'ble Chief Justice had taken a notice of this glaring situation in the case of Chetan Dutt Vs. Union of India & Ors. in CM No. 10683/2003 in CW No. 3170/2001 dated 24.9.2003 and 8.9.2004 when it wondered how the Ration Cards were being issued to illegal migrants. The Hon'ble High Court had also observed that control price food grains were to be supplied to the needy citizens of this Country and not St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 158 to the illegal migrants. The Court further brought to the notice of the Election Commission the fact that many of these illegal migrants had also been issued the election cards. Despite these observations and recommended action, nothing much appears to have changed on the ground.
In the present case the convict before this Court is an original resident of Bangladesh who has managed to sneak into our Country. The convict Mohd. Khairul @ Arman has already been convicted in FIR No. 212/12, under Section 380/411 IPC, Police Station Keshav Puram; FIR No. 162/2007, under Section 27/61/85 of NDPS Act, Police Station Ashok Vihar and FIR No. 83/2007, under Section 399/402 IPC, Police Station South Rohini. It is evident from the aforesaid that the convict is a habitual offender having a history of previous criminal involvements. He had been previously deported to Bangladesh and has again returned and this time has committed the present crime of Murder. The record also reveals that he ruthlessly used dangerous weapon i.e. Daranti on the victim Abdul Sattar with whom he was sharing the accommodation and the medical evidence on record show that the deceased Abdul Sattar had received as many as six injuries which were caused by sharp object. The Courts of Law in India are under constitutional obligation to protect its citizens against such onslaughts and Undue Sympathy to these Ruthless Infiltrators who are having no emotional attachment to the citizens of our Country would be misplaced. Therefore, to impose inadequate sentence would do more harm St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 159 to the justice system so as to undermine the public confidence in the efficacy of law and society cannot long endure under such serious threats and hence, the convict does not deserve any leniency.
After having considered the submissions made before me and the various aggravating and mitigating factors, I hold that the case in hand certainly does not fall within the category of Rarest of Rare or least even in category of Rare Case. However, I may observe that the convict Mohd. Khairul a Bangladeshi National deserves no leniency not only because he is a Foreign National who was found in the territory of India but also because his frequent visits to India at various points of time are targeted at committing criminal activities (FIR No. 212/12, under Section 380/411 IPC, Police Station Keshav Puram; FIR No. 434/2002, under Section 380/411/34 IPC, Police Station Keshav Puram; FIR No. 162/2007, under Section 27/61/85 of NDPS Act, Police Station Ashok Vihar and FIR No. 83/2007, under Section 399/402 IPC, Police Station South Rohini). Under no circumstances can the Court permit the use of this land by non citizens and foreigners for illegal and criminal activities. Therefore I award the following sentences to the convict Mohd Khairul:
1. For the offence under Section 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.1,00,000/ (Rs. One Lac). In default of payment of fine the convicts shall undergo Simple Imprisonment for a period of Six St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 160 Months. The entire fine amount of Rs.1,00,000/ if recovered shall be given to the family of the deceased Abdul Sattar as compensation under Section 357 Cr.P.C.
2. For the offence under Section 14 Foreigners Act the convict is sentenced to Rigorous Imprisonment for a period of Four years and fine to the tune of Rs.2,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one week.
Both the sentence shall run concurrently.
Benefit of section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules. Immediately after the completion of the period of his sentence the competent authority is directed to deport the convict Mohd. Khairul @ Anwar to Bangladesh in accordance with law.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convict free of costs and one of order on sentence be attached with his St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 161 jail warrant.
File be consigned to Record Room to be taken up on arrest of coaccused Ms. Praveen and Hashim who are absconding.
Announced in the open court (Dr. KAMINI LAU)
Dated: 20.10.2014 ASJII(NW)/ ROHINI
St. Vs. Mohd. Khairul, FIR No. 214/11, PS Bharat Nagar Page No. 162