Delhi District Court
State vs . on 30 August, 2011
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IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
1. Mohd. Jakir S/o Mohd. Hanif
R/o 10A/267, Bhagirathi Vihar,
33 Futa Road, Delhi.
2. Mohd. Salim S/o Mohd. Shakur
R/o 10A/267, Bhagirathi Vihar,
33 Futa Road, Delhi.
3. Mehmood @ Mulla Bihari S/o Idrish Khan
R/o Vill. Handia Sarpatha, P. S. Chanda,
District Sultanpur (U.P.)
FIR NO.: 114/2004
U/ ss 302/201/120B/34 IPC
Police Station : Gokal Puri
Sessions Case No. : 145/2008
Date of Institution of case : 27.11.2004
Date on which assigned to this court : 18.12.2008
Date on which reserved for Judgment : 12.08.2011
Date of Judgment : 30.08.2011
Sessions Case No. 145/08 Page 1 /35
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JUDGMENT:
In brief the facts of the case are that on 13.03.2004 at about 12.50 p.m a call was received in Police Station Gokal Puri through wireless from PCR that a dead body was lying in a drain near Brijpuri Puliya. On this information DD 9A was registered and was handed over to S.I. Jagbir Singh for investigation. On this information, SI Jagbir Singh along with Constable Satpal reached also at the spot. On receipt of information Insp. Satpal Singh also reached at the spot along with his staff. The dead body was inside the water of drain. One hand of the dead body was visible. One gunny bag was also lying near the dead body. The gunny bag and dead body was taken out from the water with the help of bamboo stick. On checking the dead body, it was found that the dead body was of boy aged about 2526 years. The dead body was having injury marks on its throat, stomach and the back. It was wearing a wrist watch make Hohawk. The dead body was wearing black colour pant and shirt of biscute colour. From the pocket of pant of the dead body, a brown colour purse was recovered which was having some papers. A plastic rope was tied on the gunny bag containing the dead body. SI Jagbir Singh called the Crime Team and Photographer at the spot. SHO and Sessions Case No. 145/08 Page 2 /35 3 other police staff also reached at the spot. Photographer had taken photographs. SI Jagbir Singh tried to find out the identity of the dead body. But the dead body could not be identified nor any eye witness was found. In view of the circumstances of the dead body, it was concluded that it was a case of murder. S.I. Jagbir Singh put his endorsement on the DD itself and got the the present case registered through Ct.Shyam Lal. After registration of the case, the investigation was handed over to Insp. Satpal Singh.
During investigation, Insp. Satpal Singh, prepared site plan, seized the articles, prepared inquest proceedings, got conducted the postmortem on the dead body after its identification by Jaffar and Mohd. Akbar. After the postmortem on the dead body of deceased Adil, it was handed over to the relatives of deceased.
During the further investigation all the four accused persons were arrested. After completion of investigation, challan was filed in the court against all the four accused persons for the offences punishable under sections 302/201/120B/34 IPC.
The Ld. Metropolitan Magistrate after compliance of the provisions of Section 207 Cr.P.C. committed the case to the court of Sessions.
Vide order dated 17.01.2005, my Ld. Predecessor Sessions Case No. 145/08 Page 3 /35 4 framed charge for offences punishable under section 302 IPC read with section 34 IPC & u/s 201 IPC read with section 34 IPC against the accused persons to which all the four accused pleaded not guilty and claimed trial.
During the trial, the accused Mohd. Shakir was declared juvenile vide order dated on 25.9.2009 and he was ordered to be tried by the Juvenile Court.
In support of its case, the prosecution examined as many as 23 witnesses.
PW1 Akbar is the brother of deceased Adil. He identified the dead body of deceased Adil and his statement Ex. PW1/A was recorded in this regard.
PW1 stated that he knew the accused Shakir, Jakir, Salim and Mehmood. Adil had friendship with Arif and one Munna. About 23 years prior to the incident, the second wife of Mohd. Salim who was the mausi of Arif was murdered. Some money of Adil was due towards Arif. Adil used to go to the house of Arif for demanding his money back. Mohd. Salim told him (PW1) that Adil had snatched the mobile phone and money from Shakir and he also told him that he should make his brother understand otherwise it Sessions Case No. 145/08 Page 4 /35 5 would cost them heavily. On this, he (PW1) perusaded his brother Adil and the mobile of Shakir was returned back to him. Even thereafter his brother Adil continuously visited to visit the house of Salim and used to take liquor with him. He had suspicion that his brother Adil had been murdered and thrown in the drain by Shakir, Jakair and Mohd. Salim.
PW2 is Ali Sher. He is a witness of last seen.
PW2 has stated that on 18.3.2004 at about 6.00 p.m. when he was selling milk in the street at 33 Futa Road, near the shop of Salim Kabari, he saw deceased Adil along with Shakir and Jakir. They were talking and they entered in the shop of Salim Kabari.
PW3 is Mohd. Jaffar. He stated that about one year ago at about 1.30 or 2.00 p.m. there was a crowd near Brijpuri Pulia, Ganda Nala and one dead body was taken out by the police from the drain. He also went near the drain and identified the dead body of his brother inlaw Adil. His statement regarding identification of the dead body is Ex.PW3/A. PW4 is Ida Khan. As per the prosecution case he is a witness of last seen.
PW4 has stated that he knew the deceased Adil and Sessions Case No. 145/08 Page 5 /35 6 Salim Kabari. He had not seen the deceased Adil with accused Salim Kabari, Jakir, Shakir and Mulla Bihari prior to the incident. This witness has not supported the case of the prosecution. This witness was cross examined by Ld.Addl. P.P. for the State. In his cross examination by Ld. Addl. P.P. for the State he has denied that on 18.3.2004 at about 6.00 p.m. he was sitting outside his house and he had seen Adil in the shop of Salim Kabari. He also denied that Jakir, Shakir and Mulla Bihari was conversing with him( Adil). He has further denied the suggestion of Ld. Addl. P.P .that he had seen the deceased Adil along with Jakir going inside the shop.
PW5 is Muzamil. He stated that on 19.3.2004 at about 2.30 p.m. he was going for some work. On Brijpuri Pulia, he found crowd and saw the dead body of a male. He identified the dead body of Adil as he was his neighbor.
PW 14 Mehmood Khan is the approver. He is an accused in this case. During the trial of the case he moved an application for becoming an approver. His statement u/s 164 Cr.P.C. was recorded by the Magistrate and he was granted pardon.
PW14 has stated that for the last about 78 years, he used to reside in the shop of accused Salim Kabari, which was Sessions Case No. 145/08 Page 6 /35 7 situated in Gali No.10, 33 Futa Road, Bhagirahi Vihar, Mustafabad, Delhi. He used to buy scrap from the locality and used to sell the same to accused Salim Kabari. He used to sleep in the shop of accused Salim. On 18.3.2004 at about 3.00 p.m. he came back to the shop and accused Salim Kabari came there. Accused Shakir son of accused Salim Kabari came there and told Salim that Adil had come and he was asking for Rs.400/ from him (Shakir) who told that he ( Shakir) had no money. Shakir told Salim that Adil had said to him that he (Adil) would come after some time and he (Adil) had requested him ( Shakir) that he should offer liquor to him. Salim asked his son '' iska tiya pancha kar dena''( he should be finished) and saying this, Salim went out of his shop.
PW14 further stated that at that time he was on the roof of the shop for washing his clothes. At that time accused Shakir came there and lifted him by catching hold his collar of his shirt saying that Adil had come and he would finish him. While he was being taken out from the roof of the shop accused Jakir was taking liquor inside the shop. Accused Shakir was standing at his back whereas he was made to stand outside the shop. In the meantime, one hawker came there along with junk. He (PW14) started weighing the scrap. Accused Shakir then went inside the shop and played the deck(Music Sessions Case No. 145/08 Page 7 /35 8 System) and increased its volume. He did not know what had happened inside the shop. It was about 6/6.30 p.m. Accused Shakir and Jakir came out from the shop and asked him to close the shop by keeping the scrap inside. At the time of closing the shop, accused Salim came there. He went inside the shop. Accused Salim told Shakir and Jakir that they had done a good job and it should be disposed off. Salim told that he was going home and he should be informed accordingly. After closing the shop, accused Shakir and Jakir took him along with them and they went around for a stroll. They returned back to the shop at about 12.00/1.00 night after stroll.
PW14 further stated that accused Shakir told him that in case he did not assist in disposing the dead body, then he ( PW14) would be killed. Under constraint, he agreed and accompanied them. He along with accused Shakir took the dead body in a bora to the Brijpuri Pulia Ganda Nala. They put the dead body in the Ganda Nala and went back to the shop. Thereafter they all slept in that shop. At about 77.30 a.m. one old pant, carton, plastic bag, blood stained soil were kept in his Rehri. Accused Shakir told him to throw away these items at such a place that nobody could see it. He threw these items in a plot near the Police Station Gokal Puri. After disposing the said Sessions Case No. 145/08 Page 8 /35 9 items, when he came back, accused Shakir gave him Rs.1000/ and warned him( PW14) that if he disclosed about this murder, then he (PW14) would be killed. Accused Jakir was leading them and he along with Shakir was taking the dead body of Adil for throwing the same.
PW21 Inspector Satpal Singh is the Investigating Officer of this case. He has stated that on 19.3.2004 he was posted as S.H.O. at Police Station Gokal Puri. On that day, Duty Officer informed him about the DD No.9A that a dead body was lying at Brijpuri Pulia. The call was attended by SI Jagbir Singh. On receiving the information, he along his staff also reached at Brijpuri Pulia where S,I, Jagbir Singh and Constable Satpal were present. The dead body was inside the water of drain. One hand of the dead body was visible. One gunny bag was lying near the dead body. The gunny bag and the dead body were taken out from the water with the help of bamboo stick. They checked the dead body and found that it was a dead body of boy aged about 2526 years. He was having injury marks on his throat, stomach and back. He was wearing wrist watch make Hohawk. The dead body was wearing black colour pant and shirt. Crime Team was called. Members of Crime Team inspected the Sessions Case No. 145/08 Page 9 /35 10 dead body. Photographs of the dead body were taken from different angles. S.I. Jagbir Singh prepared a rukka and got the case registered through Ct. Shyam Lal.
PW21 further stated that after the registration of the case, the investigation of the present case was handed over to him. During investigation, he prepared rough site plan Ex. PW21/A, seized the wrist watch and purse of the deceased, gunny bag which was lying with the dead body, vide memos Ex.PW15/A and Ex.PW15/B. He prepared inquest proceedings Ex.PW12/B. The dead body was sent to mortuary of GTB Hospital through S.I. Jagbir Singh and Ct. Satpal and got preserved the dead body in the mortuary through SI Jagbir Singh.
PW21 further stated that on 20.3.2004, he had moved an application Ex. PW21/C for postmortem, got conducted the postmortem of the dead body of Adil. The dead body was identified by Mohd. Jaffar and Mohd. Akbar the brother of Adil vide their statements Ex.PW3/A and Ex.PW1/A. After the postmortem the dead body was handed over to the legal heirs of deceased vide Ex. PW21/D. Constable Satpal handed over him one sealed envelope containing blood in gauze of the deceased, one sealed bottle containing blood of alcohol and a sample seal, which were seized by Sessions Case No. 145/08 Page 10 /35 11 him vide memo Ex. PW17/A. He came to know from the witnesses and information that murder might be committed by Jakir, Shakir and Saleem. He recorded statements of witnesses.
PW21 further stated that on 13.4.2004 PW Mohd. Ida told him that he had seen deceased Adil at the shop of Salim Kabari on 18.3.2004 at about 6.00 p.m. Accused Jakir Shakir and Mulla Bihari were present at the shop of Salim. He recorded the statement of Mohd. Ida on 14.4.2004. PW Ali Sher also told him that on 18.3.2004 he had seen deceased Adil at the shop of Salim Kabari along with Shakir and Jakir.
PW21 further stated that in the night of 14.4.2004 and 15.4.2004 he organized a raiding party consisting of SI Jagbir Singh, SI Sanjeev, Ct. Bhupender, Ct. Sompal and Constable Vinod. They had gone to the house of Salim at H.No.267, Gali No.10, Bhagirathi Vihar, PhaseII. Accused Jakir and Shakir met them at the house of Salim. They were interrogated and they confessed their guilt. The accused Jakir and Shakir were arrested vide arrest memos Ex. PW7/A and Ex. PW7/B. Their personal search was conducted vide memos Ex.PW7/C and Ex. PW7/D. The disclosure statements of both the accused Shakir and Jakir were also recorded as Ex. PW6/A and Ex. PW6/B. Both the accused took them to the shop of Salim Sessions Case No. 145/08 Page 11 /35 12 Kabari and pointed out the place of occurrence where they committed murder of Adil vide pointing out memo Ex.PW7/E. He also prepared the site plan of the place of occurrence which is Ex. PW12/E. Accused Jakir was wearing a shirt and he told that he was wearing the said shirt at the time of commission of crime and after the occurrence he had washed the shirt. He seized the said shirt vide memo Ex.PW12/B. Accused Shakir got recovered a pant from his house which he was wearing at the time of occurrence, which was seized by him vide memo Ex.PW12/A. PW21 further stated that from the place of occurrence i.e. shop of accused Salim, he lifted some blood stained earth with the help of wooden stick, one blood stained brick from the floor and it was broken into two pieces at the time of taking out. The said articles were seized vide memo Ex.PW12/F. Both the accused persons took the police party to Ganda Nala and pointed out the place where they had thrown the dead body of Adil in a gunny bag, vide pointing out memo Ex. PW17/F. He prepared the rough site plan of the place of dumping the dead body which is Ex. PW21/F. PW21 further stated that on 15.4.2004 as per the advice of Crime Team, he removed some blood which was lying on the wall of the shop. It was kept in a white paper and pullanda was made with Sessions Case No. 145/08 Page 12 /35 13 the seal of SPS. He also removed plain white wash from the wall with the help of blade, some blood stain earth and some earth control from the floor which were seized vide memo Ex. PW21/G. He deposited the pullandas in the malkahna.
PW21 further stated that on 15.4.2004 accused Mohd. Salim was arrested from his house vide arrest memo Ex. PW21/H and his personal search was conducted vide memo Ex. PW21/I. Accused Salim made his disclosure statement Ex. PW12/C. At the time of arrest, accused Salim was on his motor cycle and the said motor cycle was seized vide memo Ex. PW21/J. PW21 further stated that on 16.4.2004 accused Jakir took the police party at the shop of Salim Kabari and got recovered two churris from the scrap, which were used by him and accused Shakir in the murder of Adil. He prepared the sketch of the big churri as Ex. PW12/D and sketch of small churri as Ex.PW7/G. S.I. Jagbir Singh, Ct. Bhupender and other police staff were also with them at that time. Both the churris were sealed in separate pullandas with the seal of SPS and taken into possession vide memo Ex. PW12/E. PW21 further stated that on 19.4.2004 he along with SI Sanjeev Kumar,SI Jagbir Singh, ASI Gaffar and HC Satinder reached Sessions Case No. 145/08 Page 13 /35 14 at Budh Nagar Colony, Loni to arrest accused Mehmmod Khan @ Mulla Bihari. Accused Mehmmod Khan @ Mulla Bihari was apprehended at the pointing out of secret informer. He was interrogated and he confessed his guilt. Accused Mehmmod Khan @ Mulla Bihari was arrested vide arrest memo Ex. PW12/G and his personal search was conducted vide memo Ex. PW12/H. Accused Mehmmod Khan @ Mulla Bihari made a disclosure statement Ex. PW8/A. He pointed out the place of murder i.e. shop of Salim vide pointing out memo Ex. PW8/B. As per his disclosure statement, accused Mehmood @ Mulla Bihari, got recovered one gunny bag from the compound of Bhagirathi Water Treatment Plant which is near to Paper Godown, Waziarabad Road. He opened the bag and found one old pant having blood stains, blood stained mud, blood stained pieces of paper, one blood stained gunny bag and another white coloured plastic bag in which there were big pieces of cardboard and one big carton. All the articles were kept in the same gunny bag, sealed with seal of SPS and seized vide memo Ex. PW 8/C. He also prepared the site plan of the place of recovery which is Ex.PW 21/J. Thereafter they returned back to police station. He deposited the case property in the malkhana.
PW21 further stated that on 14.5.04 he directed SI Sessions Case No. 145/08 Page 14 /35 15 Jagbir Singh to take the pullandas of knife, to the doctor, who conducted the postmortem on the dead body of Adil. He also directed S.I. Jagbir Singh to bring the postmortem report along with opinion regarding weapon of offence. The postmortem report along with opinion was received by him on next day.
PW21 further stated that on 18.5.2004 he sent the case property to FSL Rohini. through Constable Som Pal. The FSL result is Ex. PX collectively.
PW21 further stated that on 27.5.2004 scaled site plan of the spot was got prepared through SI Mukesh Jain Draftsman at the pointing out of SI Jagbir Singh.
PW21 further stated that on 1.6.2004 the statement of the approver Mehmood was got recorded by the Ld. M.M. under section 164 Cr.P.C.
PW21 further stated that he recorded the statements of witnesses, collected the scaled site plan, photographs and after completion of investigation challan was prepared.
PW23 is S.I. Jagbir Singh. He has stated that on 19.3.2004 he was posted in P.S.Gokal Puri. On that day, on receipt of DD No.9A, (Mark PW23/A) regarding presence of dead body in Sessions Case No. 145/08 Page 15 /35 16 drain, he along with Constable Satpal went to Brij Puri Pulia Ganda Nala. He noticed that the hand of the dead body beneath the bridge over drain. The dead body was wrapped in a gunny bag. With the help of a bamboo stick, the dead body was taken out from the drain. After taking out the dead body from drain, he noticed that the throat of the dead body was cut and there were four injury marks on the right side ribs. The dead body was wearing biscute colour shirt, black pant, a vest, Lakhani make sport shoe, a wrist watch of Hohawk brand with steel chain. From the pocket of pant of the dead body, a brown colour purse was recovered which was having some papers. A plastic rope was tied around the gunny bag containing the dead body. The intimation of recovery of dead body was conveyed to SHO. Crime Team and Photographer were summoned. The SHO had also come and dead body was inspected. Photographs were also taken. He put his endorsement Ex. PW23/A on the DD No.9A and got the case registered through Constable Shyam Lal, who happened to come at the spot with SHO. After registration of the case constable came back at the spot and the investigation was taken up by the SHO. On the instructions of SHO, he along with Constable Satpal, took the dead body to GTB Hospital. After getting the dead body preserved at GTB Mortuary and leaving constable Satpal over Sessions Case No. 145/08 Page 16 /35 17 there, he came back at the spot.
PW23 has joined the investigation of this case with I.O. Inspector Satpal Singh. He has supported the case of the prosecution on all the material points. In his presence, I.O. Inspector Satpal seized the articles on the dead body viz. wrist watch and the purse vide memo Ex. PW15/A. The gunny bag was seized vide memo Ex. PW15/B. PW23 has further joined the investigation of the present case with I.O. on 14.4.2004 and 15.4.2004. He also joined the investigation of the present case with Inspector Satpal Singh, SI Sanjeev and other staff. He deposed on the similar lines of the I.O. Inspector Satpal Singh and supported the case of the prosecution regarding the arrest of the accused Shakir, Jakir, Salim and Mulla Bihari and also regarding the disclosure statements made by the accused persons. He has corroborated the testimony of I.O. on all the material points.
PW5 Head Constable Laxmi Narian was the Duty Officer. He recorded the FIR and proved the copy of the same as Ex.PW5/A. PW6 is Constable Vinod Kumar. He has joined the Sessions Case No. 145/08 Page 17 /35 18 investigation with I.O. Inspector Satpal Singh, SI Sanjeev, SI Jagbir Singh, Ct. Bhupender and Ct. Sohan Pal in the night intervening 14th /15th April 2004. He has supported the case of the prosecution on all the material points.
PW7 is Constable Bhupinder. He has joined the investigation with I.O. Inspector Satpal Singh, SI Sanjeev, SI Jagbir Singh, Ct. Vinod and Ct. Sompal in the night intervening 14th/15th April 2004 and on 16.4.2004. He has supported the case of the prosecution on all the material points.
PW8 is ASI Adul Gaffar. He has joined the investigation with I.O. Inspector Satpal Singh, SI Sanjeev, SI Jagbir Singh and HC Satender on 19.4.2004. In his presence, I.O. arrested accused Mehmood @ Mulla Bihari. He has supported the case of the prosecution on all the material points.
PW12 is SI Sanjeev Kumar. He has joined the investigation with I.O. Inspector Satpal Singh, SI Jagbir Singh, Ct. Bhupender and Ct. Sompal and Ct. Vinod on 15.4.2004, 16.4.2004 and on 19.4.2004. He has supported the prosecution case on all the material points.
PW13 is Constable Sompal. He has joined the Sessions Case No. 145/08 Page 18 /35 19 investigation with I.O. Inspector Satpal Singh, SI Sanjeev, SI Jagbir Singh, Ct. Bhupender and Ct. Vinod and supported the prosecution case regarding arrest of accused Shakir and Jakir.
PW15 is Constable Shyam Lal. He has joined the investigation with S.I. Jagbir Singh and Inspector Satpal SHO Police Station Gokal Puri. He took the rukka to the Police Station for registration of the FIR and after registration of the FIR he came to the spot and handed over the copy of the FIR and original rukka to SHO. In his presence, one purse from the pant and one wrist watch from the hand of the deceased were taken out which were seized vide memo Ex. PW15/A. The gunny bag from which the dead body was taken out was also taken out into possession vide memo Ex. PW15/B. PW17 is Constable Satyapal. He joined the investigation of this case with SI Jagbir Singh and Inspector Satpal Singh. He along with the SI Jagbir Singh went to the spot i.e. Brij Puri Pulia, Ganda Nala. There they found a dead body in the Ganda Nala. In his presence, the I.O.had taken into possession the purse, wrist watch of the deceased Adil.
PW19 is Head Constable Satender Singh. He joined the investigation with IO Inspector Satpal Singh, SI Sanjeev, SI Sessions Case No. 145/08 Page 19 /35 20 Jagbir Singh and ASI Abdul Gaffar on 19.4.2004. He has supported the case of the prosecution regarding arrest of accused Mehmood @ Mulla Bihari.
PW9 SI Mukesh Kumar is the Draftsman from North East Distt. Seelampur, Delhi, who prepared th scaled site plan on the pointing out of IO Inspector Satpal Singh, which is Ex.PW9/A. PW10 is Dr. Arvind Kumar, Senior Demonstrator, GTB Hospital. He has conducted postmortem on 20.3.2004 on the dead of Adil @ Raju 24 years old male.
He has stated that the cause of death was due to shock as a result of haemorrage due to multiple injuries to the chest and neck super added by asphyxia as a result of cutting of trakia. All the injuries were antemortem in nature and produced by single edged sharp cutting/stabbing weapon except injury No. 19 which was produced by blunt force impart. Injury No.1,2,3,10,12 and 13 were sufficient to cause death in ordinary course of nature collectively and independentally.
PW10 further stated that postmortem report is in his handwriting which is Ex.PW10/A. PW10 further stated that on 14.5.2004 SHO Gokal Puri Sessions Case No. 145/08 Page 20 /35 21 has moved an application Ex. PW10/B along with one sealed parcel containing two weapons of offence for obtaining the opinion on the basis of postmortem examination. After opining of the parcel, he found two knives. He prepared the sketch of the knives which are Ex. PW10/C and Ex. PW10/D. After examination of the weapons, he gave his subsequent opinion in this regard which is Ex.PW10/E. PW11 SI is Rakesh Khari. He along Ct.Vinod Photographer and other members of the Crime Team went to the spot where Ct. Vinod took the photographs of the dead body. No chance print could be gathered.
PW16 is Constable Vinod Kumar. He stated that he along with Crime Team went to the spot where there was a nala(drain).He took seven photographs of the dead body from different angles as per the direction of I.O. The photographs are Ex. PW16/1 to 7 and the negatives thereof are Ex. PW16/8 collectively.
PW18 is Constable Rattan Singh. He stated that on 15.5.2004 he was working as Photographer in Crime Team of North East District. On that day, he along with members of Crime Team had gone to Gali No.22, 33 Futa Road, New Mustafabad. He took nine photographs of the place of occurrence at the instance of I.O. which Sessions Case No. 145/08 Page 21 /35 22 are Ex. PW18/1 to 9. the negatives of the photographs are Ex. PW18/10.
PW20 Head Constable Devender was posted as MHC(M) at P.S. Gokal Puri with whom the case property of the present case was deposited by the I.O. He proved the relevant entries in Register No.19 regarding depositing of the case property which are Ex. PW20/A to Ex. PW20/E. On 18.5.2004, he had sent 15 pullandas and two sample seals duly sealed vide RC No.30/21 through Ct. Sompal to FSL, Rohini, Delhi.
The statements u/s 313Cr.P.C. of the accused were recorded in which he denied the case of the prosecution. He stated that they were innocent and falsely implicated in this case.
The accused have not led any evidence in defence. I have heard Sh.Mukul Kumar Addl.P.P for the State, Sh. S.D.Tiwari Counsel for accused Mehmood @ Mulla Bihari, Sh. Hans Raj Singh Counsel for accused Salim and Sh. R.P.S.Sirohi Counsel for accused Jakir. I have also gone through the case file.
It was submitted by Ld. Addl. P.P. for the State that the prosecution case stands proved as accused Mehmood @ Mulla Bihari who has become an approver in this case, has fully supported the Sessions Case No. 145/08 Page 22 /35 23 prosecution case. It was contended by Ld. Addl. P.P. for the State that the accused Mulla Bihari is an accomplice as he has taken part along with the coaccused in committing the murder of Adil. It was contended that later on accused Mehmood @ Mulla Bihari became an approver and he has been examined as PW14. It was contended that from the statement of PW14 Mehmood @ Mulla Bihari coupled with the postmortem report of the deceased Adil and other material on record, the prosecution case stands proved.
On the other hand, it was contended by the Ld. Counsels for accused Salim and Jakir that there is no evidence against the accused persons. It was contended that PW14 Mehmood @ Mulla Bihari is not an accomplice and therefore, he cannot be treated as an approver. It was contended that the role of accused Mehmood @ Mulla Bihari is limited only to the disposal of the dead body of Adil. It was contended that accused Mehmood @ Mulla Bihari has not participated in the murder of Adil and therefore, he is not an accomplice of accused Salim and Jakir. It was further contended that as accused Mehmood @ Mulla Bihari is not an accomplice therefore, he cannot become an approver.
It was further submitted by Ld. Counsels for accused Salim and Jakir that this case rests mainly on evidence of the Sessions Case No. 145/08 Page 23 /35 24 approver Mehmood @ Mulla Bihari and other evidence is of so called last seen evidence. It was contended that there was no evidence of last seen. It was contended that there is no circumstantial evidence against the accused persons.
It was contended by Sh. S.D.Tiwari Ld. Counsel for the accused Mehmood @ Mulla Bihari that he has become an approver and his confessional statement was recorded by the Ld. Magistrate and accused Mehmood @ Mulla Bihari was granted pardon.
It was further contended by Sh. Tiwari that as the approver Mehmood @ Mulla Bihari has disclosed every thing in pursuance of pardon given to him, so he is liable to be acquitted.
In this case the prosecution has examined 23 witnesses. The scrutiny of the prosecution evidence reveals that in this case there is one evidence of approver against against the accused Salim and Jakir. The other evidence against the accused persons is circumstantial evidence.
First, I take up circumstantial evidence.
The perusal of the prosecution evidence shows that the circumstantial evidence consists of (1) Last seen evidence, ( 2) Motive and (3) Recoveries from the accused persons. Sessions Case No. 145/08 Page 24 /35 25
Last Seen Evidence : In this case the prosecution has examined two witnesses of last seen. As per prosecution story the deceased Adil was seen in the evening of 18.3.2004 in the company of accused Shakir and Jakir. They all three were seen entering the shop of accused Salim by PW2 Ali Sher, who has stated that on 18.3.2004 at about 6.00 p.m. he had seen deceased Adil and Jakir. He had also seen entering them in the shop of accused Salim.
PW4 Ida Khan is also a witness of last seen as per the prosecution case. But he has not supported the prosecution case in any manner.
Thus, so far as the last seen evidence is concerned, the prosecution case rests entirely upon the testimony of PW2 Ali Sher. As per version of PW2 Ali Sher he has seen Adil in the company of Shakir and Jakir and had also seen them entering in the shop of accused Salim Kabari. It is important to note that on 19.3.2004 PW2 Ali Sher came to know that Adil has been murdered. PW2 Ali sher did not inform the family members of deceased Adil that he had seen Adil in the company of accused persons in evening of 18.3.2004. He had also admitted in his cross examination that nor he contacted the police to apprise the police regarding the fact that he had seen Adil Sessions Case No. 145/08 Page 25 /35 26 in the evening of 18.3.2004 in the company of accused persons.
Now the question is that whether the testimony of PW2 Ali Sher can be relied upon regarding the last seen evidence. It has come on record that despite being aware of the murder of Adil, he ( PW2) did not inform the fact of deceased Adil being seen by him in the company of accused persons in the evening of 18.3.2004 nor he apprised the police regarding this fact. In my considered opinion as PW2 Ali Sher has kept mum by not informing any one that he had seen the deceased Adil in the company of the accused persons in the evening of 18.3.2004, his testimony has to be disbelieved. In this regard, I am supported by a judgment of Hon'ble Delhi High Court which is reported as 2001(1) JCCDelhi115.
Therefore, in my view, the prosecution has failed to prove the theory of last seen evidence.
Motive : The other evidence against the accused persons is that accused Jakir and Salim had motive to kill Adil as the deceased Adil had snatched the mobile phone and money from Shakir son of accused Salim and accused Salim told Akbar( brother of deceased Adil ) that he should make his brother (Adil) understand otherwise it would cost them heavily.
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PW1 Akbar is brother of deceased Adil, who has supported the prosecution case regarding the motive of the accused persons to kill Adil. As per version of PW1 Akbar the accused persons had motive to kill Adil as Adil had snatched the money and mobile phone of accused Shakir. PW1 has also raised suspicion on the accused persons that they had killed his brother Adil.
PW1 Akbar has admitted in his cross examination that the money transaction between accused Salim and deceased Adil did not take place in his presence nor it was settled in his presence. He has stated that this was told to him by deceased Adil in the year 2001. It is important to note that this incident of murder of Adil took place in the year 2004. He has also admitted in his cross examination that he could not tell the date when Adil snatched the mobile phone from accused Shakir. He could not tell when accused Salim complained to him. He has also admitted in his cross examination that he was not aware as to how much money of Adil was due towards the accused persons.
Therefore, I am of the considered view from the statements of PW1 Akbar it is not proved that accused persons had the motive to kill the deceased Adil.
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Recoveries : As per prosecution case the accused Jakir handed over his shirt which he was wearing at the time of commission of crime, to the police which was seized by the Investigating Officer vide memo Ex.PW12/B. Further the accused Jakir got recovered two churris from the scrap, which were used by him and by his coaccused Shakir in the murder of Adil. It is important to note that the recoveries were not effected in the presence of any public person. None from the public was joined at the time of recovery.
So far as the recovery of the other articles from the spot, in my view, are also become doubtful as no public witness was joined at the time of recovery. Even otherwise the alleged recoveries cannot be made basis to convict the accused persons.
The Hon'ble Delhi High Court in a case reported as 2011 (3) JCC1814 (Delhi) has held that the recoveries of articles and weapon of offence does not prove the guilt of the accused.
In a case reported as State of U.P Vs. Ashok Kumar Srivstava (1992 Crl.L.J.1104 it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of Sessions Case No. 145/08 Page 28 /35 29 the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
The Hon'ble Supreme court in a case titled as State of Goa Vs. Sanjay Thakran and Anr 2007 (2) Crimes 294 (SC), held that, it is well settled proposition of law that when a prosecution case rests upon the circumstantial evidence, such evidence must satisfy following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firstly established.
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such Sessions Case No. 145/08 Page 29 /35 30 evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
In a judgment reported as 2010 (3) JCC2361, Naveen Chauhan @ Chussi Vs. State, the Hon'ble Delhi High Court observed that in a case based purely on circumstantial evidence the prosecution needs to establish all the circumstances cogently and firmly to the full satisfaction of the court before they can be acted upon. The circumstances proved by the prosecution ought to be wholly incompatible with the innocence of the accused and must necessarily and unerringly point towards him as perpetrator of the crime. The courts need to be satisfied that in all probability it was the accused and no one else who had committed the crime for which he was charged.
In a judgment reported as 2010 (3) JCC1648, Musheer Khan @ Badshah Khan & Anr Vs. State of Madhya Pradesh, the Hon'ble Supreme Court observed that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. The Hon'ble Supreme Court further held that when a murder charge is to be proved solely on circumstantial evidence, presumption of Sessions Case No. 145/08 Page 30 /35 31 innocence of accused must have a dominant role.
In a judgment reported as 2006 (1) JCC318, State through CBI Vs. Gurpal Singh, the Hon'ble Delhi High Court observed that in case of circumstantial evidence chain of circumstances should be unbroken. Circumstances proved must be consistent only with guilt of accused and same must be totally inconsistent with innocent of accused. Where major links between alleged offence and accused are entirely nonexistent, conviction on such evidence would not be sustainable.
The evidence led by the prosecution regarding circumstantial does not satisfies the test as laid down in the judgments referred above.
Now, I take up the evidence of approver Mehmood @ Mulla Bihari.
The first question which is to be decided is that whether PW14 Mehmood @ Mulla Bihari can be treated as an approver.
As per prosecution case PW14 Mehmood @ Mulla Bihari has participated in the commission of offence so he is an accomplice, therefore, he can become an approver. On the other hand the case of accused Salim and Jakir is that the accused Mehmood @ Sessions Case No. 145/08 Page 31 /35 32 Mulla Bihari cannot be an approver.
The statement of approver was recorded by Sh. Amit Kumar M.M. on 1.6.2004. The perusal of statement u/s 164 Cr.P.C.of approver Mehmood @ Mulla Bihari shows that he did not participate in the commission of murder of Adil. His statement further shows that he had seen the dead body of Adil lying in a carton. As per his statement his role began after Adil was murdered. As per his version he took the body of Adil along with other accused for disposing the same. As per his version he did not participate in the commission of murder of Adil. Nor he was privy to the commission of the offence. Thus from the statement of approver PW14 Mehmood @ Mulla Bihari, it is clear that PW14 Mehmood @ Mulla Bihari was not party to the commission of offence of murder of Adil. The perusal of his statement further reveals that his role was only in the disposal of the dead body.
It is further important to note that the perusal of bail application Ex. PW14/D1 of accused Mehmmod @ Mulla Bihari, it is clear that the accused Mehmood @ Mulla Bihari has taken the stand that he has been falsely implicated in this case and all the allegations leveled against him are totally false.
During the trial, when PW5 Muzamil and PW1 Akbar Sessions Case No. 145/08 Page 32 /35 33 were under cross examination, the stand of accused Mehmood @ Mulla Bihari was that he was innocent.
In a case reported as C.M.Sharma vs. State of A.P. AIR 2011 SC 608 the Hon'ble Supreme Court has held the word accomplice has not been defined under the Evidence Act and therefore, presumed to have been used in the ordinary sense. A person concerned in the commission of crime, a partner in crime and associate in guilt is an accomplice. He takes part in the crime and is privy to the criminal intent. It was further held in the said judgment that an evidence of an accomplice is admissible but to be acted upon ordinarily requires corroboration.
As per judgment of C.M.Sharma vs. State of A.P. AIR 2011 SC 608 (supra) as PW14 Mehmood @ Mulla Bihari has not participated in the commission of offence, he cannot be an approver.
In a case reported as Shankar Vs. State of Madhya Pradesh 1997 CR.L.J.3876 (Madhya Pradesh High Court) it was held by the Hon'ble High Court that accomplice not disclosing ghastly incident for seven days without reason and evidence not corroborated by other evidence, conviction of accused on the basis of such evidence not proper.
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In the present case the approver Mehmood @ Mulla Bihari kept mum for several months. Therefore, in view of the Shankar Vs. State of Madhya Pradesh 1997 CR.L.J.3876 (Madhya Pradesh High Court) ( supra), his testimony is not believable.
In another case reported as Rampal Pithwa Rahidass & Ors. Vs. State of Maharashtra II (1994) CCR421 (SC) the Hon'ble Supreme Court has held that for recording conviction, corroboration from direct or circumstantial evidence in material evidence is required.
In the present case, in view of the judgments referred above, neither the approver PW1 Mehmood @ Mulla Bihari was the accomplice nor his testimony is corroborated by any circumstantial evidence, hence the testimony of approver PW1 Mehmood @ Mulla Bihari is not believable and the conviction cannot be made on his statement.
It has been discussed above that the prosecution has failed to prove any circumstantial evidence against the accused persons.
In view of the above discussion and case law discussed Sessions Case No. 145/08 Page 34 /35 35 above, I am of the considered view that prosecution has failed to prove its case against the accused persons. Accordingly, all the accused persons are acquitted for the offences charged with.
The accused Jakir and Salim, who are in judicial custody be released from the custody forthwith if they are not wanted in any other case.
The bail bonds of accused Mehmood @ Mulla Bihari is cancelled. His surety is discharged. The file be consigned to Record Room.
Announced in Open Court on 30st August 2011 (Surinder Kumar Sharma ) Addl. Sessions Judge/North East KKD, Delhi.
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