Delhi District Court
Fir No:484/07; Ps Gokul Puri; U/S ... vs . Javed & Others on 26 April, 2011
1 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS IN THE COURT OF SH. B.S. CHUMBAK:ADDL. SESSIONS JUDGE DELHI Case ID Number 02402R0273602008 Session Case No. 70/08 Assigned to Sessions 14/05/08 Arguments heard on 28/03/11 Date of order 20/04/11 FIR NO. 484/07 Police Station GOKUL PURI Under Section 364/302/201/120B IPC Out come of the judgment ACCUSED MOHD.ASHFAQ CONVI- CTED U/S 411 IPC ONLY & ACCUSED MOHD. JAVED, SHAKIR AND MEHFOOZ ARE CONVICTED U/S 364/302/201/120B IPC STATE VS 1. MOHD. JAVED S/O LAL MOHD. R/O H.NO. 101, GALI NO.21, BHARAM PURI, DELHI 2. MOHD. SHAKIR S/O MOHD. SULEMAN R/O H.NO 48/2, GALI NO.21, BRAHAM PURI, DELHI 3. MEHFOOZ S/O MAINUDDIN R/O VILLAGE DINGOACH, PS ROTA DISTT. PURNIA, BIHAR 4. MOHD. ASHFAQ S/O MOHD. NAZMUEL R/O VILLAGE DINGOACH, PS ROTA DISTT. PURNIA, BIHAR Present: Sh. S.K. Dass Ld. Addl. PP for state. Sh. R.K. Sharma Advocate on behalf of accused Javed and Shakir. Page 1/98 2 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS Sh. Ravi Soni Advocate on behalf of accused Mehfooz. Sh. Khalil Zamal Advocate on behalf of accused Ashfaq. JUDGMENT
1. On 30.06.07 a case u/s 365 IPC was registered at PS Gokul Puri vide FIR no. 484/07 on the basis of statement of Mohd. Iqbal s/o Gafur Ahmed.
2. Brief facts arising out of this case are that on 26.06.07 at about 8 p.m a missing report of Mohd. Idrish was lodged at PS Gokul Puri vide DD no. 27A wherein it is stated as under :
"On 24.06.07 at about 4:00 p.m his brother Mohd. Idrish had gone to see a movie at about 4 p.m and had not returned. It is also stated that he was wearing grey colour T-Shirt, Jeans Pant and leather shoes, despite repeated efforts he could not be traced. He had also not raised doubt on any person and on the basis of aforesaid information case u/s 365 IPC was registered on 30.6.05."
3. After registration of the case investigation was assigned to SI Om Pal Singh. W.T message to all SSPs/DCPs in India and all SHO in Delhi were flashed, Police Control Room and Form NCRB and CBI were sent, HUE & CRY Notice Page 2/98 3 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS were also pasted at public places. It was also revealed that at the time of missing of Mohd. Idrish he was having a mobile phone make Metrola with IDEA Mobile Connection no. 9911135484 which was found switched off (documents i.e receipt of mobile phone of Mohd. Idrish was taken from complainant Iqbal thereby IMEI number of the said phone i.e 35891600323389 was ascertained, which was kept under observation for seeking call details.
4. During the course of investigation and on keeping the said phone under observation, on 10.07.07 two messages were found registered as per call details on the sim card of Mohd. Idrish. The location of the phone in which sim card of Mohd. Idrish was used was ascertained as Mainpur, Meerut Road, Ghaziabad, UP and owner of the mobile phone was revealed as one Niranjan s/o Aman Singh r/o Village Duhai, PS Murad Nagar, District Ghaziabad, UP. He was interrogated and during interrogation he revealed that his mobile phone was being used by his son Sachin. Sachin was interrogated wherein he stated that he found a sim card near Power House on the side of a road while returning from Gang Nahar. He put the sim card in his mobile phone set. Page 3/98 4 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS When no balance was found, he removed that chip and thrown the same in his village. Receipt of the phone of Niranjan bearing IMEI no.85884900974269 was taken in possession and mobile phone set belonging to Mohd. Idrish was continued to be kept under observation. Thereafter, investigation of this case was handed over to Inspector A.S. Negi.
5. During further course of investigation it was revealed that the mobile phone hand set of Mohd. Idrish was found used in a mobile no. 9873063428. Whereabouts of user of said mobile phone was revealed as one Saffuddin r/o 460, Phase 1, Shehzada Bagh, Inderlok, Delhi. Raiding party was organized, raid was conducted. It was revealed that Hotel Dawat-A-Mejban was being run at the said address. Mohd. Saffuddin met them there, inquiries were made. During inquiry he disclosed that aforesaid mobile phone set was in the possession of one Mohd. Ashfaq who was working with him in the said hotel. He further stated that Mohd. Ashfaq was not having any ID proof for obtaining sim card, therefore, on his request he gave his ID proof for securing a new sim card. Mohd. Ashfaq s/o Mohd. Nazmul was also interrogated and during interrogation he revealed that he had purchased the mobile phone set from Page 4/98 5 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS one Mehfooz resident of his own village, who was working at Brahampuri, Gali no.21 at the bangle shop of Mohd. Aamin. He also introduced him with Mohd. Javed and Mohd. Shakir. He also stated that he purchased a hand set from Mehfooz on payment of Rs.500/- and after taking ID proof from Saffuddin he obtained the sim card bearing no. 9873063428. Mohd. Ashfaq also stated that he kept aforesaid hand set at his village in Bihar at the instance of Mehfooz and Mohd. Shakir. IO alongwith Mohd. Ashfaq reached at gali no.21, Braham Puri, Delhi and on his identification Mohd. Shakir s/o Mohd. Suleman and Mohd. Javed s/o Lal Mohd were arrested. They all were interrogated and during interrogation Mohd.Javed and Mohd. Shakir disclosed as under :
"Mohd. Idrish was their brother in relation, they usually used to sit together. During those day he made a joke with the wife of Mohd. Idrish due to that Mohd. Idrish became annoyed and also extended threat while saying that "AAINDA ESS TARAH KI BAT KAROGE TO PATTA SAAF KAR DUNGA" and since then they were making plan to teach a lesson to Mohd. Idrish. It is also stated that they both introduced Mehfooz with them so that Mohd. Idrish can easily be controlled. On 24.06.07 it was Sunday and factory was closed for half day. They all made a plan, Mohd. Javed called his brother Imran on telephone and they made a plan to take Mohd. Idrish at Murad Nagar, Gang Nahar for taking bath and to kill him while drowning in the Gang Nahar after taking bath. Zen maruti car bearing no. DL-6CC-1515 Page 5/98 6 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS belonging to Sabir (brother of Shakir) was taken out. They all called one Vicky @ Shaheen and took him with them. They took Mohd. Idrish from under the Gokul Puri fly over and from there took him to Gang Nahar, Murad Nagar, Ghaziabad, UP. Car was parked in front of a Hotel. They all put off their clothes and kept in a car. It is further disclosed that Imran Khan and Vickey were directed to take bath in another corner and all the three accused alongwith Mohd. Idrish started taking bath in another corner and killed Idrish by drowning in the Gang Nahar. They also disclosed that they removed sim card of mobile phone of Mohd. Idrish and thrown his clothes, chip and shoes near Bijli Ghar main road, Murad Nagar."
6. Mohd. Shakir and Mohd. Javed both made disclosure statement in the same manner. They all were arrested, their personal search were taken. Mobile phone make Nokia 2600 of Mohd. Javed with IMEI no. 356231007382089, mobile phone make Nokia 2310 bearing IMEI no.359745001075289 of accused Mohd. Shakir and a mobile phone Samsung C-168 bearing IMEI no. 35652010684381 of accused Mehfooz which were in the name of their family members were taken in possession. At their instance a Zen Maruti car allegedly used by accused was taken in possession. A burnt pant, one purse of black colour belonging to deceased were recovered at the instance of accused persons from the bushes near Power House at a distance of about 1 Page 6/98 7 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS k.m from Gang Nahar. Purse was found to contain a visiting card bearing the address of Vinod Jain, Sumit Jain and Rajiv Jain AIN Novelty Bangle Store.
7. Mobile phone set of Mohd. Idrish was got recovered by accused Mohd. Ashfaq from his village Digoch, PS Rota, District Purnia, Bihar. Statement u/s 164 Cr.P.C of Imran Khan and Mohd. Shaheen @ Vickey was got recorded. At the instance of all the accused persons steps to search the dead body of deceased were taken. Identification memo was prepared at their instance. Despite repeated efforts dead body of Mohd. Idrish could not be traced. TIP of pant worn by Mohd. Idrish and purse kept by him was conducted by wife and brother of deceased. Maruti car Zen bearing no. DL-6CC-1515 was released on superdari and was identified by Imran Khan and Shaheen. On the basis of aforesaid investigation section 302/201/120B IPC was also added. Statement of witnesses were recorded and after completion of necessary investigation challan u/s 173 Cr.P.C was presented to the court of Ld. MM.
8. Ld. MM after taking cognizance for the offence supplied the copies of the challan to all the accused as provided u/s 207 Cr.P.C and committed the Page 7/98 8 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS case to the court of Sessions and on turn allocated to this court for trial. Thereafter case was fixed for arguments on charge.
9. After hearing arguments and on perusal of the material placed on record charge for the offence u/s 364/302/201/120B IPC was framed against accused Mohd. Javed, Mohd. Shakir and Mehfooz and charge for the offence u/s 201 IPC was framed against accused Mohd. Ashfaq to which they pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.
10.HC Vinod Singh appeared as (PW1), Ms. Shabnam @ Shabana w/o deceased Mohd. Idrish as (PW2), Mohd. Iqbal s/o Gaffur Ahmed as (PW3), Imran s/o Zahir Khan as (PW4), Shaheen @ Vicky s/o Mohd. Sharif as (PW5), Vinod Jain s/o Muni Lal Jain as (PW6), Sachin s/o late Sh. Ramesh Kumar as (PW7), Niranjan s/o Aman Singh as (PW8), SI Mukesh Kumar, Draftsman as (PW9), HC Menhdi Abba as (PW10), HC Yogender Singh as (PW11), Mohd. Saffuddin as (PW12), ASI Om Parkash as (PW13), Uma Shanker Harijan, Grameen Police of PS Rota, Purnia Bihar as (PW14), Israr Babu, Nodal Page 8/98 9 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS Officer as (PW15), SI Om Pal Singh as (PW16), Inspector A.S Negi as (PW17), Ajit Singh, Nodal Officer as (PW18), thereafter no PW was left to be examined, therefore, prosecution evidence was closed.
11.Brief testimony of all the PW's in chronological order are as follows:
(i) PW3 is the Mohd. Iqbal who is real brother of Mohd. Idrish. He deposed that on 24.06.07 his brother deceased Mohd. Idrish aged about 25-
26 years left his house and thereafter he did not return. On 26.6.07 he informed the factum of missing of his brother Mohd. Idrish at PS Gokul Puri vide DD no. 27A which is Ex.PW3/A. When his brother could not be traced then again on 30.06.07 he went to the PS and FIR u/s 365 IPC was got registered. He further deposed that when his brother left his house he was having a mobile phone bearing no. 9911135484 make Metrola with him. He and his family members made call on his mobile phone but it was found switched off. He also handed over the documents i.e receipt/bill of the phone of his brother to the police official which were seized vide memo Ex.PW3/B and bill is Ex.PW3/B1. He further deposed that after 6/7 months of missing of Page 9/98 10 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS his brother he came to know through police officials that during investigations conducted by them it was revealed that his brother had gone to take bath at Gang Nahar, Murad Nagar with 2/3 persons and from there he was found missing or has been killed. He also came to know the name of those persons who took his brother at Gang Nahar as Mohd. Javed, Mohd. Shakir, Mohd. Imran, Vickey @ Shaheen and Mehfooz. He had seen the photographs of his brother Mohd. Idrish in HUE AND CRY notice which is Mark Y. During his cross examination he deposed that accused Mohd. Javed and Mohd. Shakir are his relatives and remaining accused persons mentioned above are also known to him. He further deposed that during the period of past six months I.e after missing of his brother, accused persons used to meet him and also assisted him in searching his brother.
During his cross examination by Sh. Ravi Soni Advocate on behalf of accused Mehfooz he deposed that on 24.06.07 it was Sunday, his brother Idrish was present in his house upto 3-4 p.m. He further deposed that prior to seeking information through the police official he had not raised doubt on any of the Page 10/98 11 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS accused persons.
Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(ii) PW16 SI Om Pal Singh is the first IO of this case and deposed that on 26.6.07 he was posted as Sub Inspector at PS Gokul Puri and on that day DD no. 27A which is already Ex.PW3/A was assigned to him for conducting inquiry. When Idrish could not be traced, a FIR no. 484/07 u/s 365 IPC was registered on 30.6.07 and same was also assigned to him for the purpose of investigation.
He sent WT message to All India Police Stations, informed said information to NCRB and CBI missing persons squared. He further deposed that during the course of investigation he came to know that missing person Mohd. Idrish was having Idea mobile phone connection bearing no.9911135484. He contacted the service provider and found said mobile phone switched off. PW3 Iqbal (complainant Iqbal) also handed over a cash receipt of purchasing the mobile phone make Nokia 1100 which was seized vide memo already Ex.PW3/B. He Page 11/98 12 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS also identified the original cash receipt which is already Ex. PW PW3/B1. On the basis of documents produced by PW3 IMEI number of the mobile phone set of Mohd. Idrish was found as 358916003233389. He also collected the call details of mobile phone and on the basis of call details he found two messages in the call details on 10.7.07. Location was found at Mainapur, Meerut Road, Ghaziabad, UP. On the basis of location and call details matter was further investigated and found that sim card of Idrish was used by one Niranjan on his mobile hand set. He interrogated Niranjan who told him that his hand set was being used by his son Sachin. Sachin was also interrogated and he told him that he (Sachin) found/picked sim card from the side of a road at Murad Nagar, Meerut Road near Power House. His statement was got recorded. On 06.08.07 he seized a cash receipt of mobile phone of Niranjan vide memo already Ex.PW8/P1 and thereafter investigation of this case was assigned to Inspector Arvind Sagar.
During his cross examination he deposed that PW3 complainant Iqbal told him that his brother Idrish left his house at about 4 p.m on the day of his missing. He interrogated Sachin s/o Niranjan on 6.8.07 at village Duhai. Rest of his Page 12/98 13 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS testimony is reiterated by him as submitted by him during examination in chief.
(iii) PW7 deposed that on 10.07.07 in the evening time he was returning to his house from Murad Nagar on his motorcycle. When he reached near Power House about ½ k.m away from Murad Nagar, he found an Idea mobile sim card lying on the side of the road. He lifted sim card and kept in his pocket. After coming to his house he inserted that sim card in the mobile phone of his uncle Niranjan with the intention to check the balance in the sim card but when he came to know nil balance in the sim card he had thrown the same.
He further deposed that after about one month of the said incident police official came to his house and make inquiries about sim card and he had told all these facts to the IO. He further deposed that after about 5/6 months he received a telephonic call at his house from PS Gokul Puri to join the investigation of this case. He accordingly reached at PS Gokul Puri and was interrogated at PS. Police official seized his mobile phone vide seizure memo Ex.PW7/A. He also identified his mobile phone Nokia 1100 and on opening Page 13/98 14 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS the cover and battery of the phone no sim card was found inside the mobile set and IMEI number was mentioned as 358849009742691 which he correctly identified as PW7/P1.
During his cross examination he deposed that on the day of picking the sim card he was coming from Jalalabad which is about 7/8 k.m far from his village. Sim card was found lying on the way in between village Jalabad and in his village. Power house is at a distance of 4/5 k.m far from his village. He also stated prior to 10.7.07 he had passed through that road and lifted the sim card from there at about 5:30/6 p.m. He also admitted that police officials had recorded his statement on the day when they had gone to his village for making inquiry about sim card. He also deposed that he had inserted the sim card only once on that day. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(iv) PW8 deposed that on 6.8.07 he had handed over the original purchase receipt/cash memo of his mobile phone Nokia 1100 to IO which was seized by him vide memo Ex.PW8/A. He has identified the original cash Page 14/98 15 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS memo available in the judicial file and same is Ex. PW PW8/P1.
(v) PW17 Inspector A.S. Negi is the second IO of this case. He deposed that on 17.12.07 further investigation of this case were assigned to him. During the course of investigation he collected the call details of mobile phone of Idrish on the basis of IMEI number of his mobile phone set. On perusal of the call details it was revealed that mobile hand set of Idrish was found used with a new number I.e 9873063428 which was registered in the name of Saffuddin r/o 460 phase-I Shahzada Bagh Inderlok. He further deposed that on 15.1.08 raiding party was constituted and raid was conducted at the aforesaid address of Saffuddin. Police officials of special cell also joined the investigation with them. On reaching at the aforesaid address they came to know that a Hotel Dawat A Mezwan was being run on that address. On making inquiry from the owner of hotel he came to know that one Saffuddin was working in that Hotel. He interrogated Saffuddin, who told him that he handed over his identity document to one Ashfaq and sim card was being used by Ashfaq. As per the pointing out of Page 15/98 16 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS Saffuddin accused Ashfaq present in the court (correctly identified) was apprehended. He was interrogated and during the course of interrogation he disclosed that he had sent the hand set in which sim card of Ashfaq was used, to his village at Purnia Bihar and was being used by his father. He also disclosed that he had purchased the mobile hand set from one Mehfooz. Accused Ashfaq took the police team to Braham Puri, Gali No. 21 and as per his pointing out, accused Mehfooz was apprehended (correctly identified in the court).
Accused Mehfooz was interrogated and during interrogation he disclosed that he alongwith his companion committed murder of Idrish while drowning him in Gang Nahar on 24.06.07 and at his instance other co-accused Mohd. Shakir, Mohd. Javed were arrested. Arrest memo of all the accused are Ex.PW11/A to Ex.PW11/D and their personal search was also conducted vide memo Ex. PW11/E to PW11/H respectively. All the accused were thoroughly interrogated and they all made disclosure statement which were recorded vide memo Ex. PW11/I to Ex.PW11/L. Three mobile phones were recovered from accused Mohd. Javed, Mohd. Shakir and Mehfooz and were kept in separate Page 16/98 17 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS pullanda duly sealed with the seal of AS and were seized vide memo Ex. PW11/M to Ex.PW11/O. Pursuant to the disclosure statement accused Mohd. Shakir took the police team to his house and also got recovered one Maruti car Zen bearing no. DL-6CC-1515 from his garrage which was used by them in taking the deceased Idrish at Gang Neher and Maruti car was also seized vide memo Ex. PW11/P. All the accused took the police team towards Gang Nahar and on the way they stopped the police team at distance of about ½ k.m. prior to Gang Nahar and pointed out the spot near Bijli Ghar where they had thrown the pant and purse of Idrish. He prepared the pointing out memo at their instance. The torn and burnt pant and purse of deceased Idrish were got recovered. He prepared the pointing out memo/seizure memo Ex. PW11/Q. He also prepared the site plan at Gang Nahar Ex. PW 17/A with correct marginal notes.
He checked the purse recovered from near the Power House Meerut Road at the instance of accused person wherein a visiting card of Novelty Bangle Store mentioning hereon the name of its owner Vinod Jain, Sumeet Jain and Rajiv Jain was taken out and again kept in the purse. Purse and pant were Page 17/98 18 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS seized and sealed with the seal of AS. He also took the photographs of the spot from his mobile phone as no photographer was found available near the spot. He further deposed that they returned to Delhi from Gang Nahar and deposited the case property in the malkhana. All the accused were medically examined and produced before the then Ld. MM. Police custody was obtained. Accused Ashfaq was taken to Purnia, Bihar under the custody of HC Vinod Singh. On next day accused persons took the police team to Gang Nahar and pointed out the spot where they had killed Mohd. Idrish. He prepared the pointing out memo Ex.PW11/R to Ex.PW11/T. He further deposed that despite best efforts dead body of deceased Idrish could not be recovered from the spot, thereafter he alongwith team members returned to Delhi. He further deposed that on 16.1.08 Sachin (PW7) was called at PS and he handed over his mobile phone make Nokia 1100 to him which he seized vide memo Ex.PW7/A. He further stated that statement of Mohd. Shaheen and Imran Khan u/s 164 Cr.P.C were also got recorded.
HC Vinod Kumar also returned from Purnia, Bihar alongwith accused Ashfaq and sealed pullanda containing mobile phone Metrola was handed over to Page 18/98 19 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS him. He deposited the same in the Malkhana. TIP of the case property i.e a pant and purse of deceased were got conducted. PW2 wife of Mohd. Idrish identified the purse and PW3 brother of Mohd. Idrish identified his pant and purse both. Copy of the TIP proceedings were received, scaled site plan of the spot was got prepared at the pointing out of Imran and Shaheen @ Vickey. He had also contacted the nearby police stations of Gang Nahar Murad Nagar for seeking information of receiving any unclaimed dead body but no such information was received by them. He recorded the statement of witnesses. He also identified all the 13 photographs which were taken by him through his mobile phone on the day of recovery of pant and purse at the instance of accused persons. All the photographs are exhibited as Ex.PW17/P-1 to P-13. After completion of all the necessary investigation he presented the challan to the court of Ld. MM. He also identified all the accused persons present in the court and also identified the case property i.e Ex.PW11/P1, P2 and P3 which were seized by him vide memo Ex. PW 11/M to Ex. PW 11/O. Mobile phone seized from Sachin is not disputed and is Ex.PW7/P1. He also identified the pant, purse, visiting cards already Ex.PW2/P1 and PW11/P4.
Page 19/98 20 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS During his cross examination he deposed that the pant which was got recovered by the accused was not a jean pant but a pant of black colour vol. Stated that it was looking like jean and was dirty. He also admitted that many public persons were taking bath in the Gang Nahar when accused persons took the police party at Gang Nahar. He had searched the dead body up to Masoori Jaal. (Iron web) and also send the message to the irrigation department at Masoori but they had not provided any information regarding recovery of dead body. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(vi) PW12 deposed that the incident is of the year 2008 (date and month not recollected). On that day he was working at Hotel Dawat-E-Mezban and one Mohd. Ashfaq was also working in the said hotel with him. Mohd. Ashfaq informed him that he had purchased a mobile phone and was in need of some identity proof for obtaining new sim card and requested him to provide his identity card and other proof. On the basis of request of Ashfaq he handed over his identity card issued by Hotel Authority and one photograph and on his address Ashfaq obtained new sim card and since then he had Page 20/98 21 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS been using the said connection.
During his cross examination he deposed that he had not accompanied Ashfaq at the time of purchasing sim card and he had also not disclosed the name of the person from whom he had purchased the said mobile. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(vii) PW14 is the Grameen Police of PS Rotta, District Purnia, Bihar and deposed that on 19.1.08 he was posted as Grameen police at PS Rotta and on that day police official came to PS Rotta and one Ashfaq accused present in the court (correctly identified) was also in the custody of Delhi Police Team. As per direction of his SHO he accompanied the police team to village Digoch i.e village of accused Ashfaq. Accused Ashfaq took the police team to his house and got recovered one mobile phone and handed over to IO. IO seized the same vide seizue memo Ex.PW14/A but he failed to identify the mobile phone due to lapse of time.
During his cross examination he deposed that Delhi police did not record his Page 21/98 22 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS statement. His statement mark PW14/A was read over and explained to him and he denied having made any such statement to the Delhi Police Official but he admitted that father of accused Ashfaq had handed over one mobile phone make Motrola model C-168 to Ashfaq and accused Ashfaq handed over the same to IO and during cross examination by Ld. Addl. PP for state he had correctly identified the mobile phone when shown to him which is Ex.P.1. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
(viii) PW4 deposed that on the day of incident he was working as driver and used to drive the vehicle of Amin r/o Braham Puri. Javed was known to him as he was residing in the house of Amin. Iqbal and Idrish both were not known to him. He also failed to recollect the date, month and year of the incident but deposed that once a time he was directed by Amin to drive his vehicle as he used to drive the vehicle only as per direction of his owner Amin. On that day he was directed by Amin to go to Gang Nahar.
Page 22/98 23 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS (His further examination in chief was deferred as witness was not feeling well and suffering from fever. PW4 was again examined on 16.10.2010). He further deposed that in the noon time he alongwith Javed, Shakir, Mehfooz, Shaheen and some other persons had gone to Gang Nahar Murad Nagar, Ghaziabad from Brahampuri in a car which was being driven by him at that time.
They stayed there for half an hour. He and his cousin brother took bath in Gang Nahar and above named persons took bath at some distance from them. He and his cousin brother had returned near the car first and thereafter, Mohd. Javed, Mohd. Shakir and Mohd. Mehfooz also reached there. He further deposed that as per his memory they were five in numbers (himself, brother Shaheen @ Vickey, Mohd. Javed, Mohd. Shakir and Mehfooz) who had taken bath in the river. He further deposed that after taking bath on the same day he returned alongwith above named accused persons at Delhi and left the car at the house of his employer Amin. He further deposed that all the accused Javed, Shakir and Mehfooz were already known to him as they were Page 23/98 24 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS doing the job with Amin. He specifically deposed that Idrish had not gone to take bath in Gang Neher with him. Idrish was not known to him. During cross examination by Ld. Addl. PP for state he admitted that his statement u/s 164 Cr.P.C was recorded by Ld. MM on 17.1.08 but he had given his statement at the instructions of police officials. He also admitted his signature on his statement Ex.PW4/A and also admitted his signature at point A, B and C but he denied the suggestion that he had made the statement before the Ld. MM voluntarily, thereby he confronted from his statement Ex.PW4/A from point 'A to A' to 'E to E' recorded by IO on 15.1.08.
(ix) PW5 deposed that PW4 is the son of his brother in law. Accused Javed is known to him but other accused namely Shakir, Mehfooz and Ashfaq are not known to him. He also failed to recollect the date, month and year of the incident but deposed that about two and half/three years ago it was Sunday of summer season and on that day he alongwith Imran, Javed, Mehfooz and one another person whose name he cannot recollect had gone to Gang Nahar falling in way to Meerut. They all went there in a car. He further Page 24/98 25 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS deposed that he also made statement before the Magistrate but at the instance of police. He further deposed that one person among them who had gone to take bath at Gang Nahar had not returned with them but he cannot recollect his name and he can not tell what happened with him. During his cross examination by Ld. Addl. PP for state he admitted that all the facts of this case were clear in his mind when his statement u/s 164 Cr.P.C was recorded by Ld. MM and he also identified his signature on his statement recorded u/s 164 Cr.P.C. He also admitted that he had not stated before Ld. MM that he had given his statement on the instructions of the police. He also admitted that before recording his statement u/s 164 Cr.P.C Ld. MM had questioned him on the point of ascertainment of his voluntariness to make his statement to which he replied that he was making statement voluntarily and with his free will. He also admitted that all the three accused persons namely Javed, Shakir and Mehfooz had gone to Gang Nahar in a car and another person who was with them was Mohd. Idrish.
During his cross examination by Sh. R.K. Shama Advocate on behalf of Page 25/98 26 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS accused Javed and Shakir he specifically stated that he was called by the police to gave his statement as he was present on the day of incident with the deceased and he had seen the deceased first time on the day of incident however, he was not known to him by his name. He further stated that he had not disclosed this incident prior to recording of his statement by the police official to any family members of the deceased. He also stated that all the five persons were already sitting in the vehicle and the sixth person was allowed to sit on the rear seat of the car. He also denied the suggestion that no person by the name of Idrish had gone with him but he disclosed the height of Mohd. Idrish as about more than 5' 10" but he failed to recollect the complexion of Mohd. Idrish. On the remaining points he confronted from his statement Ex.PW5/DX from point A to A.
(x) PW6 deposed that he has been running a bangle store in the name of Jain Novelty Bangle Store at Sadar Bazar, Delhi. One Iqbal (brother of deceased) was known to him as he used to supply bangles to his shop. About two years ago he told him that his brother Idrish had been missing. One day Iqbal reached at his store with police official and told him about the recovery Page 26/98 27 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS of purse belonging to Idrish and one visiting card was found inside the purse. On making inquiry he identified his visiting card on which the address of his shop and his name was mentioned, visiting card is Ex.PW6/P1. During his cross examination he deposed that he had no personal relation with Idrish however, Idrish used to work with Iqbal. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(xi) PW1 deposed that on 18.1.08 on the directions of IO Sh. A.S. Negi he alongwith Ct. Pratap, Ct. Harender and accused Ashfaq had gone to village Deegoch PS Rota, District Purnia, Bihar. On 19.1.08 they all informed the PS Rota and one Uma Shanker, Chowkidar was allowed to join with them. He further deposed that they all alongwith official of PS Rota (Uma Shanker) reached at the house of Ashfaq i.e at village Deegoch and mobile phone belonging to deceased was got recovered from the possession of Nazmul father of accused Ashfaq at the instance of accused and said mobile was without sim card. He further deposed that mobile phone was of make Motrola Company and was of Black and Gray colour, C-168 was also inscribed on the Page 27/98 28 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS back side of the mobile set. He prepared a sealed pullanda and sealed with the seal of VS and seal after use was handed over to Ct. Harender. He also prepared seizure memo of mobile which is Ex.PW1/A and signature of Mohd. Ashfaq were also obtained on Ex. PW1/A. He also recorded statement of Uma Shanker, Chowkidar and thereafter they returned to Delhi and he handed over sealed pullanda and seizure memo to Inspector A.S. Negi, IO of this case. He also identified the mobile phone when shown to him in the court, same is Ex.P.1.
During cross examination by counsel on behalf of accused Ashfaq he deposed that accused Ashfaq told him that he had purchased the mobile phone Ex.P.1 from co-accused Mehfooz.
During his cross examination by Sh. R.K.Sharma counsel on behalf of remaining accused he denied the suggestion that the mobile phone Ex.P.1 was found lying on the road in Delhi. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
Page 28/98 29 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS
(xii) PW2 is the wife of deceased Mohd. Idrish and deposed that she is an illiterate lady. One and a half month prior to incident i.e from 24/6/07 her husband Mohd. Idrish left her at her parental house at Tara Nagar, District Churu, Rajasthan on the occasion of death of her grand mother. She further deposed that it was the vacation period, therefore, on 24.06.07 her husband informed her that the school of their son Amir was going to be opened and he would come to her parents house to take her back but her husband did not turn up rather she received telephonic call that her husband had been missing from the house. She further deposed that she alongwith uncle Mohd. Sattar returned to her matrimonial home and found that her husband was not present in the house. She further deposed that after about seven months she came to know that her husband had been murdered by one Shakir, Javed and his other associates. She further deposed that one of them was Karigar and one was driver of Javed.
Ld. Addl/PP for state after seeking permission to cross examine the witness he cross examined her and during her cross examination she deposed that Page 29/98 30 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS police made inquiries from her and her statement Ex.PW2/A was also recorded. She further deposed that she told the police that her husband Mohd. Idrish left his house in the afternoon of 24.06.07 and had not come back till late night and thereafter they made search of her husband but he could not be found. She further stated that after about 5/6 months of missing of her husband she came to know that her husband was taken by his cousin Mohd. Javed, Mohd. Shakir and their servant Mehfooz on the pretext of taking bath in Gang Nahar in a maruti car and thereafter they killed him after drowning in the Gang Nahar. She further deposed that after committing murder of her husband his clothes had been thrown by them in the way. She further stated that on the pointing out of accused persons, police got recovered wearing clothes and purse of her husband. She also identified Mohd. Shakir in the court but she cannot identify Mohd. Javed as she never saw him but she knew that he is cousin brother of her husband but she never had talk with her. She further stated that she did not know whether Mohd. Shakir and Mohd. Javed used to feel jealousy on seeing the well built body of her husband. She further deposed that she identified the purse of her husband during the TIP proceedings in the court but could not identify his Page 30/98 31 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS clothes due the reason that these were badly torn and burnt. She also identified her thumb impression on the TIP proceedings Ex. PW2/A and she identified purse Ex. PW2/P1.
During her cross examination by Sh. R.K. Shrma Advocate she deposed that on 24.06.07 her husband had talk with her at about 10 a.m and informed her that her husband had to go for a marriage at about 3 p.m. She further deposed that accused present in the court never misbehaved and talked with her. Her husband never informed her about any sort of previous enmity with the accused persons. Rest of her testimony is reiterated by her as submitted by her during examination in chief.
(xiii) PW9 is the formal witness. He deposed that on 08.03.08 on the request of IO Inspector Arvind Sagar Negi he reached at PS Gokul Puri and from there he alongwith IO and public witness Imran and Vicky reached at the spot i.e Gang Neher, Murad Nagar, District Ghaziabad, UP. He inspected the spot, took measurements and prepared rough notes of the spot on pointing out of Imran and Shaheen @ Viceky. On the basis of those rough Page 31/98 32 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS notes he prepared the scaled site plan Ex.PW9/A bearing his signature at point A.
(xiv) PW10 deposed that on 22.2.08 as per direction of IO he took the sealed pullanda of the case property of this case in the court of Ld. MM for conducting TIP and after conducting TIP, IO had handed over the case property to him with the seal of the court which he had deposited with MHCM. He further deposed that during the time the case property remained in his possession it was not tampered with.
(xv) PW11 deposed that on 15/1/08 he alongwith Inspector Arvind Sagar Negi and other staff went to Inder Lok for investigation of this case. On reaching there, special cell staff official also met them at Inder Lok Metro Station and they also told the IO that they were also in search of the accused of this case. Special Staff police official also joined the investigation with the IO. He further deposed that when they reached at 460 Phase-1 Shehzada Bagh Inderlok, Ashfaq and Saifuddin met them. IO interrogated accused Mohd. Ashfaq and Saifuddin. Mohd. Ashfaq took the police party at Braham Page 32/98 33 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS Puri and as per his pointing out accused Mohd. Javed, Mohd. Shakir and Mehfooz were apprehended. All the accused persons were interrogated by the IO. They disclosed about their involvement in the commission of murder of Mohd. Idrish. They all were arrested vide arrest memo Ex.PW 11/A to Ex.PW11/D and their personal search memos Ex.PW 11/E to Ex.PW 11/H. They all were thoroughly interrogated and their disclosure statements Ex.PW 11/I to 11/L were recorded. Three mobile phones were recovered from accused Mohd. Javed, Shakir and Mehfooz respectively. Those were kept in separate pullandas and sealed with the seal of AS and were seized vide memo Ex. PW11/M,11/N and 11/O respectively. One Maruti Car Zen No. DL- 6CC-1515 was also got recovered by co-accused Mohd. Shakir from his Garrage which was seized vide memo Ex.PW.11/P. He further deposed that all the accused persons were produced before the court of Ld. MM. Pursuant to their disclosure statement all the accused took the police team towards Gang Nahar Murad Nagar and on the way to Gang Nahar they stopped the police team before about half km away from Gang Nahar, near Bijli Ghar and pointed out a place where they had thrown the wearing clothes i.e pant, shirt and one purse of deceased Mohd. Idrish. Accordingly, one Pant and purse Page 33/98 34 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS belonging to deceased Idrish were recovered. IO kept both the articles in a sealed pullanda, sealed with the seal of AS and seized vide memo Ex.PW 11/Q. He further deposed that all the accused persons also took the police team to Gang Nahar and pointed out the place of incident separately. IO had prepared the pointing out memos at the instance of all the accused vide memo Ex.PW.11/R,11/S and 11/T. They also tried to search the dead body but despite best efforts the dead body could not be searched/recovered . He further deposed that IO also sent some other police officials to the nearby police station for seeking information about any unclaimed dead body. Thereafter they all returned to the police station and his statement was recorded by the IO.
He further deposed that on 16/1/08 one Sachin reached at P.S Gokul Puri and handed over one mobile phone to IO, which was seized by him vide memo Ex.PW 7/A. He also identified the said mobile phone Ex.PW 11/P1. He also identified the mobile phone make Samsung, Black colour which was recovered from the possession of one of accused, same is Ex.PW11/P2. He also identified another mobile phone make Nokia 2310 which was recovered Page 34/98 35 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS from another accused which is Ex.PW11/P3. He also identified third phone make Nokia 1100, which was seized from Sachin. Mobile phone is Ex.PW7/P1. He also identified one pant, one purse belonging to deceased which were recovered at the instance of accused persons from near Bijli Ghar on the way to Gang Nahar. Purse is Ex.PW2/P1 and Pant is Ex.PW11/P4. Ld. Addl. PP for state after seeking permission cross examined the witness on some points regarding identification of the case property to which he deposed that mobile phone make Nokia 2600 was recovered from the possession of accused Javed and mobile phone Nokia 2310 was recovered from the possession of accused Mohd. Shakir and mobile phone make Samsung was recovered from the possession of accused Mehfooz.
During his cross examination he denied all the suggestions as pointed out by Ld. Counsel for accused person rather he reiterated his testimony as submitted by him during examination in chief.
(xvi) PW13 deposed that on 26.6.07 he was working as duty officer at PS Gokul Puri at midnight. On that day at about 8 p.m one Mohd. Iqbal came Page 35/98 36 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS to PS and lodged a DD no.27 with regard to factum of missing of his brother. He recorded his statement in his own hand bearing his signature and signature of Mohd. Iqbal. He also brought the original DD register, true copy of the relevant entry is Ex.PW3/A. He further deposed that on 30.6.07 he was again working as duty officer and on that day at about 4:05 p.m Mohd. Iqbal reached there and on the basis of his previous statement he recorded formal FIR no.484/07. He also brought the original register. Computer copy of the same is Ex.PW13/A. He further deposed that after registration of the FIR investigation of this case was assigned to SI Om Pal.
During his cross examination he reiterated his testimony as submitted by him during examination in chief.
(xvii) PW15 is the Nodal Officer and produced the original customer application form of mobile no. 9999095257 in the name of Niranjan Singh s/o Aman Singh (PW8). The photocopy of the voter ID proof which is Ex.PW15/A is also placed on record (original seen and returned). He further deposed that he had seen the call details of above said mobile number for the period 15.07.07 to 28.07.07. Copy of the same is Ex.PW15/B and call details were Page 36/98 37 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS sent to IO via E Mail on his request.
(xviii) PW18 is the Nodal Officer, Cellular Ltd. Noida and deposed that he had seen the call details of mobile phone no.9911135484 consisting of four pages in the judicial file. Call details were supplied from their office to IO. The call details are collectively Ex.PW18/A. Thereafter, no PW was left to be examined and prosecution evidence was closed and case was fixed for examination of accused u/s 313 Cr.P.C.
12. During the course of examination of all the accused u/s 313 Cr.P.C they all controverted all the allegations as alleged against them and submitted that they all were innocent and falsely implicated in this case. They all desire to lead defence evidence, therefore, case was fixed for defence evidence.
13. After having been given opportunity to all the accused to lead defence evidence they failed to produce any defence evidence and on the basis of request of Ld. Counsel for accused defence evidence was closed and case was fixed for final arguments.
Page 37/98 38 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS
14. I have heard the arguments on behalf of ld. Counsel on behalf of all the accused and Ld. Addl. PP for state.
15. Ld. counsel on behalf of all the accused submitted that before convicting the accused under any penal of law it is the duty of the prosecution to prove its case beyond reasonable doubt and in the present case no incriminating corroborative evidence is brought on record against any of the accused persons.
16. In support of their contention Ld. Counsel on behalf of accused Javed, Shakir and Mehfooz submitted that :
(a) Initially a missing report of deceased Idrish Ex.PW3/A was recorded by PW3 Mohd. Iqbal brother of deceased vide DD no.27A on 26.6.07 wherein he stated that on 24.06.07 his brother Mohd. Idrish left his house at 4 p.m and had gone to see a movie, who had not returned. It is also stated that his brother was wearing grey colour T-Shirt, Jeans Pant and Page 38/98 39 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS leather shoes. He was about 28/30 years old and his height was about 5' 4"
and on that day he had also not raised any doubt on any of the accused persons.
(b) In contradiction to the testimony of PW3 (Mohd. Iqbal) PW2 wife of deceased submitted that Mohd. Idrish informed her that he had to go to a marriage at 3 p.m on 24.06.07 and again during her examination in chief in second para she deposed that on 24.6.07 her husband informed her that he would come to her parental house to take her back as the school of their son Aamir was going to be reopened.
( c) The testimony of PW2 and PW3 is further contradicted with the disclosure statement allegedly made by the accused persons wherein it is mentioned that they alongwith Mohd. Idrish left for Gang Nahar at about 2:45 p.m which clearly suggests that the testimony of PW2 and PW3 does not inspire confidence rather contradicted by themselves.
(d) PW3 in his report Ex.PW3/A height of deceased Idrish was Page 39/98 40 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS disclosed as 5' 4". On the other hand during cross examination of PW5 Shaheen he disclosed the height of the person whose name was revealed as Idrish was more than 5' 10". PW3 in his report Ex. PW3/A further disclosed that his brother Mohd. Idrish was wearing grey colour shirt and jeans pant but the pant allegedly recovered at the instance of accused persons was not made up of jean but on perusal of seizure memo of pant and purse Ex.PW11/Q it is no where stated that jean pant was recovered from the spot however, it is mentioned that a "galee jalee kale rang ki pant jiske belt ke andar ke taraf angrejee mai specially ordered ki likhi hui patti lagi hai" and this fact is further corroborated by IO during his cross examination wherein he stated that pant which was got recovered by the accused was not a jean pant but a pant of black colour look like a jean pant.
(e) The alleged recovery of the pant and purse was admittedly not conducted in the presence of public witnesses. It is also admitted that these were recovered from the public place after about 6-7 months of the incident and in such circumstances the investigation with regard to recovery of these articles by the IO does not inspire confidence and possibility of manipulation in Page 40/98 41 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS the investigation cannot be ruled out and also placed their reliance on a decided case cited as Dinesh Kumar Vs. State 1998 (1) JCC (Delhi) 173 wherein it is observed as under :
"It need hardly be said that in order to lend assurance that the investigation has been proceeding in fair and honest manner, it would be necessary for the Investigating Agency to take independent witnesses to the discovery under section 27 of the Indian Evidence Act and not taking independent witnesses and taking subordinate police person as the witnesses to the disclosure/recovery/discovery would in a given case render the discovery at least not free from doubt. The object of Sub section (4) of Section 100 of the Code is to ensure an honest and genuine search and to prevent trickery by "planting" the things to be "found" in searches."
They also placed their reliance on another decided case cited as State of Punjab Vs. Sarup Singh II (1998) SLT 115 wherein it is observed as under :
"After going through the evidence it is found that the recovery of money and the wrist watch stated to be of the deceased were recovered by the Investigating Officer in presence of Amar Singh, PW10, Maternal grand father of the deceased. It was held that recovery was not in presence of any independent person. It was for this reason that the High Court did not think it safe to place any reliance on the recovery evidence. The evidence of PW5 Page 41/98 42 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS Kulwinder Kaur even if believed only establishes that the accused and the deceased left together at 5 p.m on 18.2.1985. From that circumstance alone no inference can be drawn that the respondent had committed the murder of Kulwinder Singh."
Ld. Counsels for accused further placed their reliance on another decided case cited as Abdul Sattar Vs. Union Territory, Chandigarh AIR 1986 Supreme Court 1438 wherein it is observed as under :
"As per prosecution version the pant and shirt had been removed from the body and hidden there. Recovery is said to have been made more than three weeks after the occurrence. Admittedly, the place from where these two things are said to have been recovered are a public place and appears to have been very much accessible to people of the locality. It is difficult to believe that these two have been so concealed that they were not noticed and were available to be collected from the very place such a long time after."
(f) It is further pleaded that initially investigation of this case was started only on the basis of the fact that sim card of mobile set of deceased was found used on 10.07.07 in a mobile set belonging to (PW8) Niranjan Singh s/o Aman Singh and on making inquiry from him it was revealed that his phone was being used by his son Sachin (PW7) but on perusal of the Page 42/98 43 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS testimony of PW7 and PW8 it has not been established that Sachin was the son of Niranjan however, it is brought on record that Sachin is the son of late Ramesh Kumar which again raises a doubt upon fairness of the investigation conducted by the IO.
(g) The second instance of initiation of investigation of the case starts from the fact that IMEI number of mobile set which was in possession of deceased Idrish was kept under observation and during the said period the hand set of Mohd. Idrish was found used with new mobile no. 9873063428 and said sim card was issued in the name of Saffuddin r/o 460, Phase 1, Shehzada Bagh, Inderlok, Delhi and during interrogation of Saffuddin he disclosed that one Ashfaq requested him to provide I.D proof for obtaining new sim number and the new sim number on his identity was being used by Ashfaq. Accordingly, Ashfaq was interrogated and he disclosed that he had purchased the said mobile set from co-accused Mehfooz and at his instance Mehfooz was interrogated and he made disclosure statement that he alongwith Mohd. Shakir and Mohd. Javed committed the murder of Mohd. Idrish at Gang Nahar. On the basis of the investigation it is established that all Page 43/98 44 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS co-accused were arrested only on the basis of statement of Ashfaq who is also one of the accused in the present case and is an accomplish. It is further pleaded that the testimony of an accomplish is unworthy of credit unless it is corroborated with the material particulars and also placed his reliance on a decided case cited as Abdul Sattar Vs. Union Territory, Chandigarh AIR 1986 Supreme Court 1438 wherein it is observed as under :
"If there is no conspiracy, association of co-accused with the process of murdering the deceased is difficult to believe. The approver is a competent witness but the position in law is fairly well settled that on the uncorroborated testimony of the approver it would be risky to base the conviction, particularly in respect of a serious charge like murder."
h) It is further pleaded that there is no chain of circumstances is brought on record against any of the accused persons except their disclosure statement which cannot be proved against them by virtue of the provisions of section 25 and 27 of Indian Evidence Act.
i) It is further pleaded that on the basis of disclosure statement of co- accused Mehfooz, PW4 Imran and PW Shaheen @ Vickey were interrogated Page 44/98 45 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS by the IO and their statement u/s 164 Cr.P.C was also got recorded by Ld. MM. They both were confined to PS for the purpose of interrogation with regard to involvement of both the PW's in this case and only after confining them at police station, their statement u/s 164 Cr.P.C were recorded. In such circumstances no reliance can be placed upon the testimony of PW4 and PW5. In view of the observations given by their lordships in a decided case cited as Bolum Bhaskara Rao Vs. State of Andhra Pradesh 1985 CRL. L J.32 wherein it is observed as under:
"When the evidence on record discloses that witness was kept in the custody of the police for several days and his wife had taken out search proceedings and also sent telegrams to higher officials and in view of the admission made by PW3 that he was not present in the village and that he did not disclose either to his wife or his brother of his whereabouts, the suggestion made by the accused that he was kept illegally in the custody by the police before recording his statement u/s 164 Cr.P.C appears to be correct. Under these circumstances, his evidence is suspect and therefore, no absolute reliance can be placed upon it ."
j) It is further pleaded that PW4 and PW5 whose statement u/s 164 Cr.P.C recorded by Ld. MM they stated that deceased Mohd. Idrish had been Page 45/98 46 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS taken by the accused persons at Gang Nahar but during his examination before the court they no where stated that they had seen deceased Mohd. Idrish with the accused persons and also submitted that whatever stated by PW4 and PW5 before Ld. MM u/s 164 Cr.P.C were stated by them at the instance of police officials , therefore, the statement of witnesses u/s 164 Cr.P.C is not the natural evidence but rather corroborative of what they had said in the committal court. They also placed their reliance on a decided case cited as Phool Chand Vs. State of UP 2004 CRL L.J. 1904 wherein it is observed as under :
"Where witnesses themselves did not support their version, their statements earlier recorded u/s 164 Cr.P.C could not be available to the prosecution for their corroboration. It could, to the maximum be used by the prosecution for their contradiction. It is obvious that it would be a fallacy of a legal approach to have reliance upon the statement of a witness recorded under section 164 Cr.P.C and thereby to record conviction of the accused persons on that basis."
k) It is further pleaded that no motive to commit the offence is proved against the accused persons and in support of their contention it is submitted that in the disclosure statement made by accused Javed it is stated that in the Page 46/98 47 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS month of April/May 2007 he and Shakir made a Joke with Idrish while saying that "Bhabi (wife of deceased Idrish) was very beautiful. She used to talk with other persons but not talk with them." Due to that Idrish got annoyed and said that "AIENDA ESEE BAAT DOBARA KE TO TUMHARA PATTA SAAF KAR DUNGA". Shabnam wife of Idrish is examined before the court as (PW2) and during her cross examination by Ld. Counsel for accused she specifically stated that accused present in the court never misbehaved/talked with her and her husband never informed her about any previous enemity with the accused, thereby it is established that whatever recorded in the disclosure statement by the IO is not proved by PW2 wife of deceased and therefore, motive in the present case is totally missing. To prove criminal case motive as a circumstance when put forward, it must be fully established like any other incriminating circumstance and also placed his reliance on a decided case cited as Ramgopal Vs. State of Maharashtra AIR 1972 Supreme Court 656 wherein it is observed as under :
"It is not possible to hold having regard to the probabilities of the case that the motive alleged by the prosecution is fully established." reliance is also placed on a decided case cited as A.K. Jaison Vs. State 2009 (110) DRJ 148 (DB).Page 47/98 48
FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS
l) It is further pleaded that admittedly dead body of the deceased in the present case has not been recovered pursuant to the disclosure statement made by the accused persons. In such circumstances it is established that no evidence of death of deceased is proved, this fact alone is sufficient to demolish the case of the prosecution and also placed their reliance on a decided case cited as K.T. Palanisamy Vs. State of Tamil Nadu 2008 (1) JCC 372 wherein it is observed as under
"On perusal of the entire material brought on record by the prosecution, the relevant evidence is only the recovery of chain at the instance of appellant, dead body not recovered, no evidence of death, all prosecution witnesses related to deceased. In such circumstances it is difficult to believe that all witnesses saw the deceased accompanying accused persons one after another at different places. In such circumstances, deposing falsely cannot be ruled out."
m) Ld. counsel for accused further pleaded that case of the prosecution is totally based on the electronic evidence i.e call details of the mobile phone belonging to deceased Idrish as well as of the accused persons and on perusal of the call details of the deceased as well as of the accused it Page 48/98 49 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS is not established that all the mobile phones allegedly recovered during the investigation were taken to Gang Nahar as no messages of roaming/entering into the State of UP from Delhi are registered in the call details brought on record. In such circumstances, it cannot be said that mobile phone of all the accused were taken by them from Delhi to Gang Nahar on the day of incident. Even on perusal of the call details of Mohd. Idrish it is no where established that his mobile phone was also taken outside Delhi on 24.06.07 i.e on the date of incident despite of the fact that it was with the deceased as per prosecution version.
n) It is further pleaded that on perusal of the call details of Mohd. Idrish on his mobile phone a call was received on 25.06.07 at about 6:26 p.m from a mobile phone bearing no. 9911380018 which clearly goes to show that mobile phone of Mohd. Idrish was found active on 25.06.07 and on the other hand all the accused persons in their disclosure statement stated that they removed sim card on 24.06.07 from the hand set of Mohd. Idrish and thrown the sim card on the road near Bijli Ghar, one/half k.m away from the Gang Nahar while returning to Delhi, which clearly suggests that no facts in issue Page 49/98 50 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS has been discovered by the IO on the basis of disclosure statement of accused, therefore, by virtue of provisions of section 27 of Indian Evidence Act the disclosure statement made by accused persons cannot be proved against them.
17. In view of the aforesaid confrontations and contradictions in the testimony of the witnesses and the electronic evidence collected by the IO coupled with the fact that none of public witnesses have supported the prosecution version it is established that prosecution failed to place on record unbreakable chain of circumstances and requested for acquittal of all the accused for the offence as alleged against them.
18. Ld. counsel on behalf of accused Ashfaq submitted that he was the bonafide purchaser of mobile phone hand set. During the course of investigation he disclosed before the IO that he had purchased the mobile hand set from Mehfooz and this fact is not denied by co-accused Mehfooz during his examination by the IO. He also got recovered the mobile hand set belonging to deceased from his native village and in such circumstances it Page 50/98 51 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS cannot be said that Mohd. Ashfaq assisted in destroying the evidence in the present case and in view of the investigation conducted by the IO no ingredients for the offence u/s 201 IPC is brought on record against the accused. It is further pleaded that accused Ashfaq during his examination u/s 313 Cr.P.C also admitted the fact that he had purchased the mobile set belonging to deceased Idrish from accused Mehfooz on payment of Rs.500/- and requested for his acquittal.
19. On the contrary Ld. Addl. PP for state submitted that prosecution examined 18 witnesses in the present case and on perusal of the testimony of all the witnesses, disclosure statement made by all the accused persons and discovery of facts pursuant thereto and the electronic evidence which are already brought on record, it is established that the prosecution succeeded in proving an unbreakable chain of circumstances against accused Javed, Shakir and Mehfooz to prove the ingredients of the offences as alleged against them and also succeeded in proving the offence u/s 411 IPC against accused Ashfaq.
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20. In support of his contention it is submitted that :
(i) Initially a missing report Ex.PW3/A was lodged vide DD no.27A which was converted into a FIR Ex.PW13/A. It was also revealed that Mohd.
Idrish was also having a mobile phone set bearing IMEI no. 358916003233892 having sim connection bearing no.9911135484 at the time of leaving his house, which was found switched off every time. The mobile phone of deceased was kept under observation.
(ii) As per call details two messages were found registered on 10.07.07 on the sim card of Mohd. Idrish. The location and ownership of mobile hand set was found to be in the area of Maina Pur, Ghaziabad, UP and was registered in the name of one Niranjan s/o Aman Singh (PW8) r/o village Duhai, District Ghaziabad, UP. He was interrogated wherein he revealed that his son Sachin was using sim card in his hand set. Sachin was interrogated wherein he disclosed that he found the sim card/chip at the bank of the road near Power House when he was returning from Gang Neher. He picked up that sim card/chip, put in his mobile phone and when he came to know about Page 52/98 53 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS nil balance in the sim card, he thrown the same in a street of his village. Receipt of mobile phone and IMEI number 358849009742691 were taken in possession from (PW8) Niranjan Singh and mobile set of deceased Mohd. Idrish was continued to be kept under observation.
(iii) During the course of investigation and on the basis of call details it was revealed that hand set of Mohd. Idrish was being used on a mobile phone no. 9873063428 and user of the said phone was traced as one Saffuddin r/o 460, Phase 1, Indira Park, Delhi. Saffuddin was interrogated who revealed that said mobile phone was being used by one Mohd. Ashfaq (one of the co- accused in this case) who had obtained I.D proof from him for seeking a new number. Accused Ashfaq was also interrogated and during interrogation he revealed that he had purchased the mobile set from one Mehfooz for Rs.500/- and thereafter he put sim card in the said mobile set on the basis of ID proof of Saffuddin. Mehfooz is known to him as he is resident of his own village. He also disclosed that Mehfooz was working at a bangle shop of one Amin at gali no. 21 Braham Puri and he used to visit there on the eve of holiday. He also disclosed that Mehfooz introduced him with Mohd. Javed and Mohd. Shakir Page 53/98 54 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS and at the instance of Mehfooz and Shakir he sent the mobile set at his village Purnia at Bihar. On the identification of Mohd. Ashfaq all the accused were arrested. They were interrogated, their disclosure statements were recorded. Their mobile phones were taken in possession. Call details of all the mobile phones were obtained. On the basis of disclosure statement of all the accused one Pant and Purse of deceased Mohd. Idrish was recovered from near the bushes at a distance of one k.m from Gang Nahar towards Murad Nagar. Visiting card of Novelty Bangle Store was also recovered from the purse. The identity of the visiting card was got verified from one Vinod Jain (PW6). Statement of Mohd. Imran and Shaheen @ Vickey were recorded u/s 161 Cr.P.C and also got recorded u/s 164 Cr.P.C wherein they both corroborated the facts which were disclosed by the accused person in their disclosure statements.
(iv) The place of incident was got identified by all the accused persons. Site plan was prepared at their instance but dead body of deceased Mohd. Idrish could not be traced due to lapse of time despite repeated efforts. The mobile phone set of Mohd. Idrish was got recovered from village Rota, Purnia, Page 54/98 55 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS Bihar at the instance of Mohd. Ashfaq. TIP of pant and purse of deceased Mohd. Idrish was got conducted. Maruti car Zen bearing no. DL-6CC-1515 used in committing offence was also taken in possession. The purse is identified by PW2, wife of deceased and pant is identified by his brother (PW3).
(v) In support of aforesaid contentions it is submitted that PW7 was initially interrogated when the sim card of deceased was found used by him in his mobile phone set, wherein he deposed that he picked up the sim card from the bank of road near Bijli Ghar, Murad Nagar half/1 k.m away from the Gang Nahar. The accused in their disclosure statement also stated that they had thrown the sim card of the mobile hand set of deceased near Bijli Ghar, Murad Nagar and subsequently pant and purse of the deceased were also got recovered at the instance of accused persons which were duly identified by the PW2 and PW3 wife and brother of deceased respectively.
(vi) Factum of purchasing the mobile phone set of deceased by co accused Ashfaq from co accused Mehfooz is also proved as co accused Page 55/98 56 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS Ashfaq admitted during his examination u/s 313 Cr.P.C. The recovery of mobile phone hand set from the native village of co accused Ashfaq is also proved.
(vii) On the basis of disclosure statement all the accused they were taken at Gang Nahar and identified the place of incident and also disclosed the manner of killing Mohd. Idrish. At their instance pant and purse of deceased Mohd. Idrish was also recovered which were duly identified by his wife and brother respectively. The identity of the purse is further corroborated by PW6 Vinod Jain who testified that (PW3) Mohd. Iqbal was known to him as he has been supplying bangles to him and Mohd. Idrish was his brother.
(viii) On the point of motive it is submitted that accused in their disclosure statement themselves established the factum of motive which has already been discussed. On perusal of disclosure statement of co accused Javed it transpires that at the time of making joke PW2 wife of deceased was not present and this fact can only be proved either by accused Javed, Shakir or by the deceased except them none was present at the time of making joke, Page 56/98 57 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS therefore, the testimony of PW2 to the affect that accused persons had never talked with her is totally insufficient to disprove the fact that no joke was made by the accused persons.
(ix) In view of the aforesaid discussion it is established that all the facts which were disclosed by the accused persons in their disclosure statement have been discovered and proved except the fact that dead body of the deceased was not recovered at their instance.
(x) PW4 Imran deposed that in the noon time he alongwith Javed, Shakir Bhai, Mehfooz, Shaheen and some more other persons had gone to Gang Nahar Ghaziabad in a car and stayed there for about half an hour. He also stated that his cousin brother Shaheen @ Vickey also took bath in the Gang Nahar with him and other persons took bath at some distance from them. He also stated that accused Javed, Shakir and Mehfooz were all known to him as they were working with one Amin.
(xi) PW4 turned hostile to the fact that deceased Mohd. Idrish was also Page 57/98 58 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS with them. During cross examination he disclosed that two and half/three years ago it was the day of Sunday of summer season when he had gone with the accused persons at Gang Nahar in a car and specifically stated that PW5 (Shaheen) was also present with them at Gang Nahar on the day of incident. PW5 further corroborated the fact that he alongwith PW4 and accused person had gone to Gang Nahar. Mohd. Idrish was also with them. He also stated that at the time of recording his statement u/s 164 Cr.P.C he was fully aware of the true facts of this case. Even during cross examination by counsel for accused he no where stated that deceased Idrish was not with them rather he stated that Mohd. Idrish had gone with them to Gang Nahar but he was not with them when they were returning to Delhi, thereby the presence of deceased Mohd. Idrish with the accused persons is fully established.
(xii) It is further pleaded that all the accused persons were examined u/s 313 Cr.P.C but they all denied that they had ever gone to Gang Nahar for taking bath. They also denied that they kept their mobile phone switched off when they left Delhi for Gang Nahar till they returned to Delhi but on perusal of the call details their mobile phones were remained switched off during the Page 58/98 59 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS said period i.e about 3 p.m to 7 p.m.
(xiii) The factum of recording the statement of PW4 and PW5 u/s 164 Cr.P.C is admitted by them. It is also admitted that they had not stated before Ld. MM that they were making statement at the instance of police officials however, it is admitted by PW5 that ld. MM has specifically asked a question to him with regard to his voluntariness to make the statement to which he replied that he would make the statement voluntarily and on perusal of the statement u/s 164 Cr.P.C both the PWs disclosed the date, time, month and year of the incident. PW5 during cross examination by Ld. Addl. PP for state specifically stated that at the time of recording his statement u/s 164 Cr.P.C he was fully aware of all the facts of this case.
(xiv) PW6 Vinod Jain identified his visiting card which was recovered from the purse of Mohd. Idrish. He also admitted that Mohd. Iqbal brother of Mohd. Idrish was well known to him as he used to supply the bangles to his shop.
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(xv) PW7 Sachin and PW8 Niranjan proved the fact that sim card of Mohd. Idrish was picked by PW7 from a bank of road near Bijli Ghar about 1 k.m away from the Gang Nahar. Testimony of PW7 is further corroborated by PW8.
(xvi) PW9 draftsman who proved the factum of preparation of site plan Ex.PW9/A. PW10 proved the factum of conducting TIP proceedings of the case property by Ld. MM on 22.02.08. PW11 proved the factum of joining investigation on 15.1.08 with the IO of this case and other officials of the special staff. He also proved the factum of interrogation of Mohd. Ashfaq and Saffuddin. He also proved the interrogation of accused Mohd. Mehfooz and arrest of accused persons at their instance. He also proved the recovery of three mobile phones from the possession of accused Mohd. Javed, Shaheen and Mehfooz. He also proved the factum of recovery of Maruti car zen from the garrage of Mohd. Shakir. He also proved the factum of recovery of clothes worn by deceased and his purse from near the Bijli Ghar about ½ k.m away from Gang Neher. He also proved that dead body of deceased could not be recovered despite best efforts. He also identified all the case properties when Page 60/98 61 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS shown to him. PW12 proved the factum of providing identify card and other proof to Mohd. Ashfaq for obtaining sim card/new connection. He specifically stated that he on the request of Mohd. Ashfaq handed over his identity card issued from Hotel Authority and one photograph and on his said address Ashfaq obtained sim card of the mobile phone.
(xvii) PW13 corroborated the factum of recording DD no.27 A dated 26.6.07 and factum of recording FIR no.484/07 on 30.6.07. PW14 proved the factum of recovery of mobile phone from the native village of Mohd. Ashfaq. PW15 brought the original customer application form of mobile no. 9999095257 in the name of Niranjan Singh s/o Aman Singh (PW8). He also proved the photocopy of the voter ID proof of PW8 Niranjan. He also proved the call details of above said mobile number for the period 15.07.07 to 28.07.07.
(xviii) PW16 is the initial IO of this case who had proved the factum of recording DD no. 27A i.e missing report of deceased Mohd. Idrish, factum of recording FIR on 30.06.07. Factum of flashing message to different branches Page 61/98 62 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS and factum of recovery of receipt of mobile phone of deceased Mohd. Idrish. He also proved that he collected the call details of mobile phone and found two messages in call details on 10.07.07 location of those calls was found at Mainapur, Meerut Road, Ghaziabad, UP. He also proved that during investigation the sim card of Mohd. Idrish was used by one Niranjan in his phone and on interrogating Niranjan he told that mobile phone was used by his son Sachin and on interrogation Sachin told him that he found/picked sim card from the side of a road at Murad Nagar, Meerut Road near Power House. (xix) PW17 is the IO. He corroborated the testimony of all the witnesses discussed earlier. PW18 proved the call details of mobile phone of Mohd. Idrish and on the basis of aforesaid discussion an unbreakable chain of circumstances to prove the case against the accused persons for the offence as alleged against them is brought on record.
(xx) In rebuttal to the contention earlier discussed on behalf of Ld. Counsel for all the accused with regard to non joining of the public witnesses during recovery he submitted that in view of the facts and circumstances of Page 62/98 63 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS this case the absence of independent witness at the time of recovery of case property would not be fatal to the prosecution however, it depends upon facts of the case to the case and the circumstances under which recovery was affected and also placed his reliance on a decided case cited as Karamjeet Vs. State of Delhi AIR 2003 SC 1311 wherein it is observed as under :
"The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down."
(xxi) Ld. Addl. PP for state also placed his reliance on a decided case cited as State of Himachal Pradesh Vs. Jeet Singh AIR 1999 Supreme Court 1293 wherein it is observed as under :
"There is nothing in Section 27 of Indian Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others." It is a fallacious notion that when Page 63/98 64 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence u/s 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main road side or if it is concealed, beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
(xxii) On the point of motive Ld. Addl. PP for state submitted that in the disclosure statement of Mohd. Javed Ex. PW11/J he disclosed as under :
"Deceased Mohd. Idrish was married. In the month of April-May 2007 he and Shakir made a Joke with Idrish while saying that "BHABHI KAPHI KHUBSURAT HAI, WAO AURO SE BATE KARTI HAI HAMSE NAHI KARTI JABKI HAM TUMARHE JAYADA NAJDEEK HAI AUR HAM BHEE BHABHI SE BAAT KARNA CHAHTE HAI"
Due to the aforesaid incident Mohd. Idrish get annoyed and extended threat while saying "AIANDA ASEE BAATE DUBARA KEE TO TUMHARA PATTA SAAF KAR DOONGA.
Page 64/98 65 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS (xxiii) On perusal of the aforesaid contents of the disclosure statement it appears that there was the conversation between the deceased Idrish and accused person admittedly in the absence of PW2 wife of deceased Mohd. Idrish. In such circumstances the testimony of PW2 to the affect that she had never talked with the accused person would not prove fatal to the prosecution as these words were not spoken by the accused in her presence and cannot be proved by her and the person in whose presence these words were spoken is no more. Ld. Addl. PP for state also placed his reliance on a decided case cited as State of Himachal Pradesh Vs. Jeet Singh AIR 1999 Supreme Court 1293 wherein it is observed as under :
"It is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such Page 65/98 66 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."
(xxiv) In rebuttal to the contention raised by Ld. Counsel for all the accused that no messages of roaming/entering into the State of UP were registered despite of the fact that mobile phone were in possession of accused persons as well as in possession of the deceased. On this point it is submitted that last call which was found registered in the call details of mobile phone of Mohd. Idrish and Javed was only at 2:45 p.m i.e within the area of Gokul Puri Flyover Delhi and thereafter, the call was registered at about 7 p.m when accused again entered in the area of Delhi, which clearly suggests that all the accused kept their mobile phones switched off during the said period and in such circumstances the possibility of registering the alleged message is totally ruled out, therefore, plea taken by Ld. Counsel on behalf of all the accused is not tenable by virtue of the electronic device. Page 66/98 67 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS (xxv) Ld. counsel for accused persons also took the plea that one message was also found registered in the call details of deceased Mohd. Idrish from sender's mobile phone no.9911380018 on 25.6.07 at 6.26.19 p.m I.e one day after the said incident. In rebuttal to this contention it is submitted that at the time of registering the aforesaid message no sim card was attached with any mobile hand set, therefore, IMEI number of the hand set was not registered rather the space for the said purpose is blank. It is further pleaded that cell ID no. 40404-65535 only shows dump call ID and said SMS was passed through dump cell ID no. 6553 and in view of electronic/scientific device the plea taken by the counsel for accused is not tenable in law rather helping in discovery of the facts, disclosed in the disclosure statement of the accused.
(xxvi) In view of the aforesaid discussion and evidence adduced by the prosecution it is submitted that prosecution succeeded in proving the unbreakable chain of circumstances against the accused and requested for their conviction for the offences as alleged against them. Page 67/98 68 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS
21. After hearing arguments on behalf of ld. Counsel for both the parties and taking into consideration the facts and circumstances of this case it is established that initially there was no direct evidence to connect the accused person with the offence for which they were charged. The present case is mainly rests on the following evidence :
i) Electronic evidence ii) The disclosure statement made by the accused persons and the discovery of facts pursuant thereto. Iii) The testimony of PW4 and PW5 as they both had gone at the place
of incident I.e at Gang Nahar with the accused persons as well as with deceased Mohd. Idrish.
22. The law regarding circumstantial evidence is well settled. When a case rests upon electronic and circumstantial evidence, such evidence must satisfy the following tests:
a) The circumstances, from which an inference of guilty is sought to be drawn, must be cogently and firmly established.Page 68/98 69
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b) Those circumstances should be of a definite tendency erringlly pointing towards guilt of the accused.
(c ) 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.
d) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis then that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be in consistent with his innocence.
23. The proof of electronic evidence is governed by the Indian Evidence Act as amended by the Information Technology Act 2000, therefore, it would be pertinent to analyze in detail the effect of amendments of the Indian Evidence Act as made by the Information Technology Act 2000 Page 69/98 70 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS pertaining to electronic evidence. Special provisions as to the evidence relating to electronic record were inserted in Indian Evidence Act. Section 65A and section 65 B deals with the mode of proof relating to Electronic evidence which reads thus :
"65A Special provisions as to evidence relating to electronic record - The contents of electronic records may be proved in accordance with the provisions of section 65B.
65B Admissibility of electronic records -
(1)Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2)The conditions referred to in sub section (1) in respect of a computer output shall be the following, namely :
(a) The computer output containing the Page 70/98 71 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer ;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c ) throughout the material part of the said period, the computer was operating properly or, if not;
then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub section (2) was regularly performed by computers, whether -
(a) by a combination of computers
operating over that period; or
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(b) by different computers operating in succession over that period; or ( c) by different combinations of computers, operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c ) dealing with any of the matters to which the conditions mentioned in sub section (2) relate, and purporting to be signed by a person Page 72/98 73 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section -
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
( c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation - For the purposes of this section any reference to information being derived from other information shall be reference to its being derived Page 73/98 74 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS therefrom by calculation, comparison or any other process."
24. I placed my reliance on a decided case cited as "SHANTABAI & ORS. VS STATE OF MAHARASHTRA 2008(2) JCC 1080" wherein it is observed as under:-
"This court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following test:
i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
ii) Those circumstances should be of 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
iv)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 evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
25. I also placed my reliance on a decided case cited as Swami Page 74/98 75 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS Shardanand @ Murli Manohar Mishra Vs. State of Karnataka AIR 207 SC 2539 and also in Shaik Mastan Vali's case which are as follows :
(1)The inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.
(2)The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
(3)Where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
(4)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 the accused must be accepted
26. In view of the submissions made by Ld. counsel for both the parties and the observations given by their lordships on the decided case Page 75/98 76 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS upon which both the parties placed their reliance as well as the observations given by their lordships in the cases Shanta Bai & Ors. VS State of Maharashtra and Swami Shardanand @ Murli Manohar Mishra Vs. State of Karnataka (Supra) I analyzed the testimony of all the witnesses wherein following facts are established :
A) Deceased was last seen on 24.06.07 and since then he had never seen alive.
B) On the day the deceased was last seen, he was having a mobile phone which was kept under observation. During investigation on 10.07.07 the sim card of the mobile phone of deceased was found used on a mobile phone of (PW8) which was being used by (PW7) who revealed that he picked the sim card from the corner of a road near Bijli Ghar, Murad Nagar while returning from Gang Nahar to his house I.e 1 k.m away from the Gang Nahar.
No further clue was disclosed by PW7 and PW8.
C) The mobile phone set of the deceased continued to be kept under observation and on the basis of call details it was revealed that hand Page 76/98 77 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS set of deceased Idrish was found used with new mobile number 9873063428 registered in the name of Saifuddin (PW12) r/o 460, Phase I, Shehzada Bagh, Inder Lok, Delhi who had further disclosed that the mobile phone set was being used by one Ashfaq who had obtained the sim card/new connection on the basis of his identity card and photograph.
(D) At the instance of Saifuddin (PW12) Ashfaq was arrested, interrogated wherein he admitted that he obtained the new connection/sim card on the basis of ID proof I.e identity card and photograph of PW12. He also admitted that he used the mobile phone hand set for a short period and sent the same to his native village and at his instance mobile hand set of deceased Idrish was got recovered from the native village of Ashfaq. E) Disclosure statement of accused Ashfaq was recorded wherein he disclosed that he had purchased the mobile phone hand set from co accused Mehfooz on payment of Rs.500/- and this fact is also admitted by him during his examination u/s 313 Cr.P. C. Page 77/98 78 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS F) Co-accused Mehfooz was arrested at the instance of co -accused Ashfaq. His disclosure statement was recorded which is Ex.PW11/C. The relevant facts in the statement of co accused Mehfooz are as under :
i) "On 24.6.07 he was present with Javed and Shakir and they both told him that "UNKI PHOOPHI KA LADKA IDRISH UNKO APNI BODY KA ROB DETA HAI AUR KAHTA HAI KEE MERI BIBI KE BARE ME KOI MAJAK NAHI KAROGE AUR SAFAAI KARNE KE DHAMKI DETA HA"
ii) He further disclosed that he alongwith Javed and Shakir made a plan to take Idrish at Gang Nahar Murad Nagar on the pretext of taking bath and would kill him while drowning in the Gang Nahar.
Iii) Co-accused Javed called his driver Imran (PW4) and (PW5) Vickey also reached there.
iv) Javed already informed Mohd. Idrish to meet him under Gokul Puri Fly Over. They all took Idrish at Gang Nahar and killed him while drowning in Page 78/98 79 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS the Gang Nahar.
v) He also disclosed that at about half k.m. Walking distance from the Gang Nahar Javed took out the sim card of the mobile phone of Idrish and threw on the road and mobile set was handed over to him. He threw his shoes and Shakir threw his wearing clothes and spectacle on the side of the road and thereafter they all returned to Delhi.
vi) He also stated that Shakir had given the mobile phone of deceased to him which he had sold to Ashfaq for Rs.500/-. Other co-accused Mohd.
Javed and Shakir also made a disclosure statement in the same manner. G) All the accused were arrested. Their mobile phones which were in their possession on the day of incident were taken. Call details of their mobile phones and of deceased Mohd. Idrish of those days were obtained. H) On analyzing the contents of the disclosure statement of all the accused persons by virtue of the provisions of section 25 and 27 of the Indian Page 79/98 80 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS Evidence Act the following facts are discovered and are admissible in evidence against the accused:
I) Presence of Mohd. Idrish in the area of Gokul Puri Flyover during the time i.e 2:39 to 2:47 as disclosed by Javed is established by virtue of electronic evidence i.e four messages from the mobile of Idrish are registered in the mobile of Javed during the said period and location was in the area of Gokul Puri Flyoverm thereby, it is also established that the time of leaving the house by Mohd. Idrish as disclosed by PW3 and PW2 appears to be based on approximation and on natural human tendency.
J) Mobile phone set of deceased Idrish was got recovered at the instance of co accused Ashfaq from his native village which he had purchased from co accused Mehfooz (admitted by co-accused Ashfaq in his statement u/s 313 Cr.P.C).
K) The factum of throwing the sim card of the mobile phone of deceased on the road side near Bijli Ghar about one k.m away to Gang Nahar Page 80/98 81 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS at the time of returning to Delhi is proved by PW7 and PW8.
L) The recovery of purse which was in possession of the deceased and his wearing cloth I.e pant from the place as disclosed by the accused is also proved. The factum of identification of the purse belonging to deceased Idrish is proved by his wife PW2 and factum of identification of the pant worn by the deceased is proved by PW3 Mohd. Iqbal (brother of deceased).
M) The factum of having telephonic conversation between co accused Javed and deceased Idrish in the area near to Gokul Puri Fly Over on the date, time and place of incident is proved by way of call details which is further corroborated by Israr Babu, Nodal Officer (PW15) and Sh. Ajeet Singh , Nodal Officer as (PW18).
N) PW5 Shaheen @ Vickey proved the factum of taking Mohd. Idrish at Gang Nahar by the accused persons as he had been engaged by accused Javed to drive a maruti car (make Zen bearing no.DL-6CC-1515) on the date, time and place as disclosed by the accused persons. He also specifically Page 81/98 82 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS stated that when they had gone to Gang Nahar Mohd. Idrish was with them but when they were returning he was not with them.
O) The factum of visit of all the accused at Gang Nahar with (PW5) Imran is further corroborated by Imran (PW4) however, he denied that Mohd.
Idrish was with them but stated that he alongwith Shaheen @ Vickey, accused Javed, Shakir, Mehfooz and some other persons were present when they proceeded to Gang Nahar from Delhi.
P) Despite the evidence to the fact that all the accused had gone to Gang Nahar alongwith Imran and Vickey, they all denied this fact during their examination u/s 313 Cr.P.C. None of the accused brought on record any evidence in rebuttal to the testimony of (PW4) Imran and (PW5) Shaheen despite opportunity given to them, therefore, the such conduct of the accused persons is relevant as per provisions of section 8 of the Indian Evidence Act which reads thus:
"Motive, preparation and previous or subsequent conduct - Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant Page 82/98 83 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, 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 proceedings, 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.
Explanation 1 : xxxxxxxxxxxx Explanation 2 - When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant."
Q) Co-accused Mohd. Javed in his disclosure statement Ex. PW11/J specifically stated that in the month of April-May 2007 he and co accused Shakir made a joke while saying to deceased Mohd. Idrish that "BHBHI KHAFEE KHUBSURAT HAI , WHAH AURO SE BATE KARTI HAI HAMSE NAHI KARTI, JABKI HAM TUMAHRE JYADA NAJDIKI HAI AUR HAM BHEE BHABHI SE BAAT KARNA CHAHTE HAI" due to that Idrish became annoyed while saying that "DUBARA AISEE BATE KEE TO TUMAHRA PATA SAAF KAR DOONGA" . The aforesaid conduct revealed that at the time of making Page 83/98 84 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS joke none except Mohd. Idrish, accused Javed and Shakir were present, therefore, these facts can only be proved either by deceased Mohd. Idrish or by the accused persons, therefore, the plea of the counsel for accused that Ms. Shabnam @ Shabana wife of Mohd. Idrish (PW2) has not supported the aforesaid version is not tenable in law in view of the observation given in a decided case cited as State of Himachal Pradesh Vs. Jeet Singh AIR 1999 Supreme Court 1293 (supra) wherein it is held that it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it, when the prosecution succeeded in showing the possibility of some ire for the accused towards the victim cannot be construed as a fatal weakness of the prosecution.
R) Admittedly the dead body of the deceased not recovered pursuant to the disclosure statement of accused persons. On this point on perusal of the disclosure statement of accused persons it transpires that deceased Mohd. Idrish was directed to meet at the red light of Gokul Puri Fly over and Page 84/98 85 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS accordingly, he reached there at about 2:45 p.m and this fact is further corroborated by the electronic evidence I.e the telephonic conversation during the said period and also in the area of Gokul Puri Fly Over. They took deceased Idrish at Gang Nahar and took him in deep water and forcibly drowned him in the Gang Nahar and except the accused persons none was present there. It was the incident of 24.6.07 and disclosure statement was recorded on 15.1.08 I.e about the lapse of about seven months and after the period of seven months the possibility of recovering the dead body has totally become impossible but the factum of causing death is further fortified with the fact that whereabouts of the deceased were not known by their family members or by any other persons. In such circumstances the factum of not recovering the dead body alone is not sufficient to discard the disclosure statement made by the accused persons.
S) It is also established that the facts of the cases upon which Ld. Counsel for the accused placed their reliance are totally different from the facts of this case, hence the contention of Ld. Counsel for the accused is devoid of merit and hence declined.
Page 85/98 86 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS
27. Irrespective of my aforesaid observation I would also like to appreciate the role of Inspector Arvind Sagar Negi IO of this case, who had not left any stone unturned to explore each and every circumstances in reaching to the final conclusion of this case. Since the initial stage of investigation I.e w.e.f 24.6.07 till 15.1.08 no clue was discovered/ascertained with regard to the fact that whether Mohd. Idrish was killed or absconding or abducted but the substantive steps taken by the IO while keeping the mobile hand set of deceased under observation is worth appreciated and on the basis of electronic evidence collected by him he succeeded in bringing on record the unbreakable chain of circumstances which enabled this court to reach to the right conclusion, therefore, I direct that the copy of the order be also sent to worthy commissioner of Delhi police for his perusal and recommendation of appreciation for the performance of the IO in this case.
28. In view of the aforesaid established facts on the basis of evidence adduced by the prosecution and on careful perusal of the observation given by their lordships in the aforesaid decided cases upon which both the parties Page 86/98 87 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS placed their reliance I am of the considered view that prosecution succeeded in proving an unbreakable chain of circumstances to prove the offence u/s 364/302/201/120B IPC against accused Mohd. Javed s/o Lal Mohd, Mohd. Shakir s/o Mohd. Suleman and Mehfooz s/o Mainuddin. No sufficient ingredients to prove the offence u/s 201 IPC against accused Mohd. Ashfaq s/o Mohd. Nazmul are proved however, prosecution succeeded in proving the case u/s 411 IPC against accused Ashfaq.
29. I accordingly held accused Ashfaq guilty for the offence u/s 411 IPC and other accused namely Mohd. Javed s/o Lal Mohd, Mohd. Shakir s/o Mohd. Suleman and Mehfooz s/o Mainuddin held guilty for the offence u/s 364/302/201/120B IPC. They all be heard on the point of sentence.
ANNOUNCED IN OPEN COURT (B.S. CHUMBAK)
DATED 20th APRIL 2011 ASJ-3 (NORTH-EAST)
KKD/DELHI
Page 87/98
88
FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS IN THE COURT OF SH. B.S. CHUMBAK: ADDL. SESSIONS JUDGE-3 (North East): KARKARDOOMA : DELHI SC No. 70/08 FIR NO. 484/07 PS GOKUL PURI U/S 364/302/201/120B IPC STATE VS MOHD. JAVED ETC.
Present: Sh. S.K. Dass Ld. Addl. PP for state.
Sh. Ravi Soni Advocate on behalf of accused Mehfooz, Shakir and Mohd Javed.
None for accused Ashfaq.
Convict Ashfaq on bail.
Convicts Mohd. Javed, Mohd. Shakir and Mehfooz are in JC. ORDER ON SENTENCE
1. I have heard the arguments on behalf of Ld. Addl. P.P for State as well as ld. Counsel on behalf of the convicts Mohd. Javed, Mohd. Shakir, Mehfooz and Ashfaq on the point of quantum of sentence.
2. Ld. counsel on behalf of convict Javed pleaded that he is a poor, young person aged about 23 years. He is unmarried and having three brothers, two unmarried sisters, father and mother in his family. One brother of convict Javed is handicapped and other two brothers are married and leaving Page 88/98 89 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS separately. Convict Javed is the sole bread earner in his family and is duty bound to look after the interest of his old aged parents, aged about 56 and 54 years respectively, handicapped brother and two unmarried sisters and requested for taking lenient view accordingly.
3. Ld. counsel on behalf of accused Shakir pleaded that he is about 25 years old and a poor married person having one female child, his wife and old aged parents aged about 68 and 65 years respectively. Convict is having one elder brother who is leaving separately and he is the sole bread earner in his family and requested for taking lenient view on the point of accordingly.
4. Ld. counsel on behalf of accused Mehfooz pleaded that he is about 24 years old and poor person having two younger brothers and his mother (widow). He is unmarried and is the sole bread earner in his family and is duty bound to meet out the day to day expenses of his whole family and requested for taking lenient view on the point of sentence.
5. Ld. Counsel on behalf of accused Ashfaq pleaded that the convict belongs to Page 89/98 90 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS a very poor family. His father is very old aged about 65 years and is totally enable to do any work. His mother is also an old lady and suffering from tuberculosis. Besides the above mentioned family members there are two unmarried sisters of the convict namely Nahida and Nasida aged about 20 and 18 years respectively. The convict is only the sole bread earner in the family and is duty bound to maintain her parents and unmarried sisters. It is further pleaded that convict is a married person having four minor children consisting of three daughters and one son and is earning Rs.3500/- per month.
6. It is further pleaded that the charge against the convict is proved only u/s 411 IPC for which he had suffered a lot while appearing before this court and also remained in jail for about three and half months at the initial stage of this case and requested for awarding the benefit u/s 428 of Cr.P.C as well as to sentence him for the term of imprisonment for which he had already undergone.
7. Ld. counsel on behalf of accused Javed, Shakir and Mahfooz further pleaded Page 90/98 91 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS that they all were the young persons at the time of commission of offence and requested for giving them the benefit of section 360 Cr.P.C r/w section 3 & 4 of Probation of Offenders Act.
8. It is further pleaded that none of the convict is an habitual offender and has suffered a lot while appearing before the court from the jail. During the period they appeared before the court their conduct remained unblemished and no proof of any previous involvement of any of the convict in any criminal case is brought on record during the trial before this court and requested for awarding the benefit of provisions of section 428 Cr.P.C to all the accused persons.
9. Ld. counsel on behalf of convict further pleaded that the present case is based solely on the disclosure statement of co accused and the electronic evidence brought on record during the trial of this case, therefore, the present case is totally based on the circumstantial evidence and does not fall within category of rarest of rare cases and placed his reliance on a decided cases reported as "ASHOK KUMAR PANDEY VS STATE OF DELHI 2002 (1) JCC 526"
AND BABU S/O RAVEENDRAN VS BABU S/O BAHULEYAN AND Page 91/98 92 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS ANOTHERS 2003(3) JCC 1290"
10.On the contrary Ld. Addl. PP for state argued that the deceased was well known to the convicts Javed and Shakir are the cousin brother of deceased Idrish and remaining accused were also known to him. The manner of killing the deceased as disclosed by the accused persons in their disclosure statement I.e by way of drowning in the gang nahar goes to show that the murder is committed is an extremely brutal and dastardly manner and is well covered within the category of rarest of rare case. Also placed his reliance on a decided on a decided case cited as Bachan Singh Vs. State of Punjab (1980) 2 SCC 684 and Machhi Singh and Ors. Vs. State of Punjab (1983) 3 SCC 470 wherein the following illustrations of murders which fall within the category of rarest of rare cases and deserves death penalty were given which are as follows:
i) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.Page 92/98 93
FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS
ii) When the murder is committed for a motive which evinces total depravity and meanness; e.g murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course of betrayal of the motherland.
iii) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of bride-burning "or dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again to marry another woman on account of infatuation.
iv) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
v) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a- vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."
Page 93/98 94 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS
11.In Bachan Singh's case the Constitution bench observed that the death penalty contemplated by Section 302 IPC is not unreasonable and is not against the public interest and it does not violate Articles 19 or 21 of the IPC. In the same decision it was also observed that judicial discretion cannot be fettered by attempting to make an exhaustive enumeration by one way or the other. Hence, it follows that five principles referred to in Aloke Nath Dutta's case justifying award of death penalty can only be treated as illustrative and not exhaustive.
12.In Holiram Bordoloi Vs. State of Assam 2005 (3) SCC 793 it is held as under:
"that pre-planned, calculated, cold-blooded murder has always been regarded as one of an aggravated kind. A murder diabolically conceived and cruelty executed would justify the imposition of the death penalty on the murderer."
13.In view of the contentions of Ld. Counsel for both the parties I also have gone through the observations given by their lordships in the aforesaid decided cases and analyzed the established circumstances in this case wherein it transpires that admittedly all the convicts were of young age at the time of Page 94/98 95 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS commission of offence. The dead body of deceased has not been recovered as the investigation was started only after about 6/7 months of commission of offence and in view of the aforesaid circumstances I am of the considered view that this case does not fall within the category of rarest of rare cases.
14.In view of the submissions of ld. counsel for accused Ashfaq and taking into consideration the facts and circumstances of this case coupled with the fact that accused has already remained in jail at the initial stage of investigation of this case and case is proved only u/s 411 IPC against him I am of the considered view that it is a fit case to take lenient view on the point of sentence, therefore, convict Ashfaq is sentenced for a term of imprisonment for which he had already been undergone and to a pay a fine of Rs.200/- in default SI for 15 days for the offence u/s 411 IPC. Fine paid.
15.In view of the aforesaid discussion I hereby sentenced the convict namely Mohd. Javed, Shakir and Mehfooz for a term of RI for life and to pay a fine of Rs. 2000/- each in default of payment of fine they shall further undergo SI for six months for the offence punishable u/sec. 302/120B IPC. They are also Page 95/98 96 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS sentenced for a term of imprisonment for ten years for the offence u/s 364/120B IPC and to pay a fine of Rs.2000/- each and also in default of payment of fine they all shall undergo SI for three months. They all are also sentenced for a term of imprisonment for three years and to pay fine of Rs.1000/- each in default of payment of fine further SI for 30 days for the offence u/s 201/120B IPC. All the sentences shall run concurrently. Fine not paid.
16.Benefit of Section 428 Cr.P.C shall be given to the convict as per law. Copy of the judgment and this order be given to the convicts free of cost.
17.Bail bond of convict Ashfaq shall remain in force till the expiry of six months and convict is further directed to appear before the appellant court, if he is required to appear before the appellant court in view of the provision of Section 437A Cr.P.C. File be consigned to Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 26th Day of April 2011 Page 96/98 97 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS FIR NO.484/07 PS Gokul Puri 26.04.2011 Present: Sh. S.K. Dass Ld. Addl. PP for state.
Convict Ashfaq on bail.
Convicts Mohd. Javed, Mohd. Shakir and Mehfooz are in JC. Sh. Ravi Soni Advocate on behalf of accused Mehfooz, Shakir and Mohd Javed.
None for accused Ashfaq.
Arguments on the point of sentence heard.
Vide separate order on the point of sentence convict Ashfaq is sentenced for a term of imprisonment for which he had already been undergone and to a pay a fine of Rs.200/- in default SI for 15 days for the offence u/s 411 IPC. Fine paid.
Remaining convicts namely Mohd. Javed, Shakir and Mehfooz are sentenced for a term of RI for life and to pay a fine of Rs. 2000/- each in default of payment of fine they shall further undergo SI for six months for the offence punishable u/sec. 302/120B IPC. They are also sentenced for a term of imprisonment for ten years for the offence u/s 364/120B IPC and to pay a fine of Rs.2000/- each and in default of payment of fine they all shall undergo SI for three months. They all are also sentenced for a term of imprisonment for three Page 97/98 98 FIR NO:484/07; PS GOKUL PURI; U/S 364/365/302/201/120B IPC ; STATE VS. JAVED & OTHERS years and to pay fine of Rs.1000/- each in default of payment of fine further SI for 30 days for the offence u/s 201/120B IPC. All the sentences shall run concurrently. Fine not paid.
Benefit of Section 428 Cr.P.C shall be given to the convict as per law. Copy of the judgment and this order be given to the convicts free of cost. Copy given to all the accused free of cost.
Bail bond of convict Ashfaq shall remain in force till the expiry of six months and convict is further directed to appear before the appellant court, if he is required to appear before the appellant court in view of the provision of Section 437A Cr.P.C. File be consigned to Record Room.
(B.S CHUMBAK) ASJ-3/NE/KKD/DELHI 26.04.2011 Page 98/98