Delhi District Court
State vs Nadeem Beg And Ors on 29 April, 2024
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL SESSIONS JUDGE-04
EAST DISTRICT, KARKARDOOMA COURTS: DELHI
CNR No:- DLET-01-003821-2014
SC No:- 1373/16
FIR No : 216/14
Police Station : Geeta Colony
Under Section (s) : 302/34 Indian Penal Code & 25/27 Arms
Act
In the Sessions case of:-
State
versus
1. Nadeem Beg
S/o Late Ayub Beg
R/o H. No. 242, Gali No. 8
New Lahore Shashtri Nagar
Delhi
2. Nadeem Khan @ Mulla
S/o Sh. Haji Rashid
R/o H. No. 107, Khureji Khas
Old Patpar Ganj Road, Delhi
Date of Institution : 30.06.2014
Date of reserving Order : 16.04.2024
Date of Pronouncement : 29.04.2024
Final Judgment : Both the accused persons
are acquitted.
Digitally signed
by AKASH JAIN
AKASH Date:
JAIN 2024.04.29
17:57:47
+0530
FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 1 of 54
Appearances :-
For the State : Sh. Sukhbeer Singh, Ld.
Addl. PP.
For the accused persons : Sh. Mahesh Kumar Sharma.
JUDGMENT
1. In the present case, accused persons namely, Nadeem Beg and Nadeem Khan @ Mulla were sent up for trial on the basis of report under Section 173 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') for committing murder of one Dilshad Ahmed @ DK S/o Sagir Ahmed on 01.04.2014 at about 23:45 hours near House No. F-13, Rani Garden, Delhi, within the jurisdiction of Police Station Geeta Colony. Additionally, accused Nadeem Beg was charge-sheeted for offence under Section 27 of Arms Act as on 05.04.2014, he allegedly got recovered a country made pistol which was used by him in commission of aforesaid offence.
Factual Matrix
2. The case of prosecution, in brief, is that on 01.04.2014 at about 11:45 PM, duty officer at Police Station Geeta Colony received information from control room that one person was found shot by bullet and he was lying unconscious at Rani Garden Extension near public toilet. The said information was received in the control room from phone number 9868962719. The duty officer recorded said information vide DD No. 30-A, gave information to SI Dinesh Kumar on phone and sent a copy of DD No. 30-A to him through Ct. Sunil. Thereafter, AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 17:57:58 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 2 of 54 SI Dinesh along with Ct. Sunil reached at the spot in front of House No. F-13, Rani Garden, Delhi where a young boy aged around 30 years was found lying on ground smeared with blood. On examination of the said body, two visible fire arm injury on the abdomen and one firm arm injury near the left side of ear were found. Mob of public persons was found there but the identity of the deceased could not be verified. Moreover, no eye witness could be found there. One mobile phone of black colour and two keys along with a remote in a ring were also found lying near the dead body. Crime team was requested to reach at the spot. Thereafter, SI Dinesh made endorsement on the DD entry, prepared rukka and handed over the same to Ct. Sunil for registration of FIR.
3. In the meantime, crime team arrived at the spot and lifted relevant exhibits from the spot. The photographer of the crime team also took the photographs of scene of crime. Dead body of deceased was thereafter, transferred to Subzi Mandi Mortuary. After much efforts, deceased was identified as Dilshad Ahmed @ DK S/o Sagir Ahmed. Father and brothers of deceased Dilshad Ahmed were examined by the IO who stated that the deceased had lent money to accused Nadeem Khan and Aamin and they had an altercation with him when he demanded said money from them. They further stated that accused Nadeem Khan had fixed a meeting for repayment of the loan amount in late night of 01.04.2014 at the house of girl friend of deceased Dilshad namely, Kajal and deceased Dilshad went to the said place at about 08:30 PM on the motor-cycle of his brother namely, Naushad. During investigation, girl-friend of deceased AKASH Digitally signed by AKASH JAIN FIR No:- 216/14 State v. Nadeem Beg & Anr.
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Dilshad was also examined who stated that on 01.04.2014 at about 09:30 PM Dilshad had come to her house on a motor-cycle and after about ½ to 1 hour accused Nadeem Khan came there on his scooty and took deceased Dilshad along with him. She further stated that at that time co-accused Nadeem Beg was also present on his scooty.
4. On 02.04.2014 two eye-witnesses of the alleged incident of murder namely, Sagir Khan and his wife Nasreen met the IO and informed him that on 01.04.2014 at about 11:15 - 11:30 PM, on hearing the noise of bullet, they came out in their balcony and had seen the incident from 4th floor at F-31, Rani Rani Garden, Shastri Nagar, Delhi where two boys were firing upon one boy. On 03.04.2014, postmortem of dead body of deceased Dilshad was carried out at Subzi Mandi Mortuary and thereafter, his dead body was handed over to Naushad (brother) for the last rites. During further investigation, both the accused persons i.e. Nadeem Khan and Nadeem Beg were apprehended by the police and both of them confessed to have killed Dilshad vide their separate disclosure statements. Both the accused persons got recovered blood stained clothes which were worn by them at the time of committing the alleged murder. Moreover, accused Nadeem Beg got recovered one country made pistol near Yamuna river bank in the bushes. All the exhibits were duly sealed and sent to the FSL for examination by the IO.
5. During investigation, the IO moved an application for conducting TIP proceedings of both the accused persons from both the eye-witnesses namely, Sagir Khan and Nasreen.
AKASH Digitally signed by
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However, both the accused persons refused to join the TIP. During further investigation, CAF and CDR details of the mobile phone recovered near the dead body of deceased were obtained and it was found that the same was registered at fake address. Moreover, the call details of the mobile phone reflected that the deceased had called accused Nadeem Khan on 01.04.2014 at 22:57 hours, thereafter, accused Nadeem Khan had called the deceased on 23:15:27, 23:17:08 and 23:17:46. After conclusion of investigation, IO found that sufficient evidence was collected to establish that both accused persons namely, Nadeem Khan and Nadeem Beg had committed murder of Dilshad. With respect to accused Aamin it was reported by the IO that during investigation it was found that on 30.03.2014, accused Aamin had gone to Shimla along with his girl-friend Shobha and stayed at Trimurti Palace Hotel on 01.04.2014 and came back to Delhi in late night of 02.04.2014. The same was duly verified through photographs, tickets, hotel bills and separate statement of Shobha. Thus, accused Aamin was kept in column no. 12 by the IO.
6. Charge-sheet for the offences under Section 302/34 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and Section 25/27 of Arms Act was accordingly filed against both the accused persons namely, Nadeem Khan and Nadeem Beg before the Court of Ld. MM on 30.06.2014. After statutory compliance under Section 207 IPC, present case was committed to the Court of Sessions and assigned to this Court vide order dated 27.07.2014 passed by Ld. District & Sessions Judge, East District, Karkardooma Courts, Delhi. AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 17:58:19 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 5 of 54 Charge
7. Vide order dated 08.09.2014, accused persons namely, Nadeem Beg and Nadeem Khan @ Mulla were formally charged for commission of offences under Section 302/34 IPC. Accused Nadeem Beg was additionally charged for the offence under Section 27 of Arms Act, which was later on amended vide order dated 30.08.2016 to Section 25/27 of Arms Act.
Prosecution Evidence
8. In order to prove its case prosecution examined as many as 22 witnesses. For the sake of convenience, I have categorized those witnesses in following 4 categories:-
Public Witnesses
9. PW-3 is Sagir Ahmed, who is the father of deceased Dilshad. He deposed that he was doing the work of kabad at Faizal Road, Ajmeri Gate, Delhi. His son Dilshad started the work of property dealing in the year 2013 and later on, started doing the work of building construction along with Aamin and Nadeem Khan. PW-3 deposed that Aamin and accused Nadeem Khan had borrowed Rs.25-30 lacs from Dilshad (since deceased). Further, Aamin and accused Nadeem Khan had asked Dilshad to hand over Rs. 5,00,000/- to one Sonu Sardar for investing the money for building construction near Jheel and Dilshad had arranged this money from his brother-in-law namely, Sayyed Noman. When Aamin and accused Nadeem did not return the said money, Dilshad started insisting them to return the money on which both of them threatened him. On one occasion Aamin, Guddu and one person Deepak @ Kale stopped his sons, Dilshad AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 17:58:26 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 6 of 54 and Irshad near Shakarpur at Vikas Marg and threatened them by putting pistol on the head of Dilshad by saying "paise mange to goli maar denge".
10. PW-3 deposed that after few days, Aamin and both the accused persons called Dilshad and fixed a meeting at the house of Kajal at Shastri Nagar in the late evening of 01.04.2014. Dilshad left from home on the pulsar motor-cycle of his brother Naushad at about 08:15 PM. He told PW-3 that in the said meeting sale of one plot which was near house of Salim, was to be discussed, thereafter, the loan money would be returned to him by Aamin and accused Nadeem. At about 03:30 AM, PW-3 received a call from his brother-in-law, who informed that Dilshad had been murdered. PW-3 correctly identified both the accused persons during his testimony. He further deposed that he identified the dead body of his son at mortuary of Sabzi Mandi on 03.04.2014 vide Ex. PW 3/A.
11. During cross-examination, PW-3 stated that he had not given any document to the police regarding money transactions between deceased Dilshad and accused Nadeem Khan. He further stated that Dilshad had given cash amount to accused Nadeem Khan after withdrawing the same from his bank account and at that time he was also present at the office of Dilshad. PW-3 stated that he did not make any complaint against Aamin and his associates when they repeatedly threatened Dilshad for not demanding the money.
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12. PW-6 is Naushad Ahmad, who is the younger brother of deceased Dilshad. He deposed that his elder brother Dilshad (now deceased) was doing the business of property dealing at Chander Nagar and that Dilshad had informed him that he had given loan of Rs.7-8 lacs to Aamin and accused Nadeem Khan for investing in property. He further deposed that both Aamin and accused Nadeem Khan were not returning the money and when Dilshad asked them to return the money, both of them quarreled with him and threatened to see him. PW-6 deposed that accused Nadeem Beg (brother-in-law) of accused Nadeem Khan, promised to return the money to Dilshad by 01.04.2014 and Dilshad informed him that the meeting for return of his loan amount was fixed at the house of accused Nadeem Khan. Dilshad left the house on Bajaj Pulsar motor- cycle of PW-6 at about 07:00 PM. At about 08:00/ 08:30 PM, PW-6 had talked with Dilshad on telephone and he informed that he was at the house of his friend Kajal at Rani Garden, Geeta Colony. At about 12:-
12:30 in the night, PW-6 was informed by his maternal uncle that Dilshad had suffered a gun shot injury and asked him to reach at Police Station Geeta Colony. He went there and was shown the photograph of Dilshad, which he identified. Next day, he again went to the police station and both the accused along with Kajal were present in the police station. Kajal informed him that at about 10:00 PM both accused had taken Dilshad from her house at the house of accused Nadeem Khan. PW-6 identified the dead body of his brother at mortuary vide Ex. PW 6/A and after postmortem of the body, the same was handed over to him vide memo Ex. PW 6/B. PW-6 correctly identified both the accused persons in the Court. AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 17:58:38 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 8 of 54
13. During cross-examination, PW-6 stated that he did not remember the name by which Dilshad was doing the business of property dealing at Chander Nagar. He further stated that he could not produce any visiting cards or letter heads regarding the said property dealing business. He also did not know about the business dealings of Dilshad in which he earned more than Rs.10 lacs. He denied the suggestion of Ld. Counsel for accused that Nadeem Khan never did the work of property dealing. PW-6 stated that he did not remember the date, month and year when the money to the tune of Rs. 7-8 lacs was given by Dilshad to accused Nadeem Khan. He further stated that 2-3 days prior to the incident, both the accused persons quarreled with his brother, however, he or his family member did not make any complaint to the police regarding same. PW-6 further stated that his statement was recorded by the police in the Police Station after about 1 month of the incident.
14. PW-9 is Irshad Ahmad, who is the younger brother of deceased Dilshad. He deposed on the similar lines as that of PW-3 and PW-6. He stated that Aamin and accused Nadeem Khan had requested Dilshad to invest money in the business of building construction, pursuant to which Dilshad had given Rs.10 lacs to Aamin on two occasions i.e. Rs. 5 lacs each. Moreover, Dilshad had also given about Rs. 8-10 lacs for collaboration business to Sonu Sardar at the surety of accused Nadeem Khan. Both Aamin and Sonu Sardar had assured Dilshad to refund his amount with profit but they failed to return the said amount. In the month of May, 2014, Dilshad had a quarrel with Aamin at Pushta Road, Laxmi Nagar and Aamin was along with 2-3 Digitally signed by AKASH JAIN AKASH JAIN Date: 2024.04.29 17:58:44 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 9 of 54 associates in his car. Later on, in the evening Dilshad disclosed the said incident to his father in the presence of PW-9. When their father asked him to make a complaint to police, Dilshad told that one relative of Aamin namely, Wajid had assured that the amount would be refunded to him soon. PW-9 further deposed that Dilshad also requested accused Nadeem Khan to refund the amount on which accused Nadeem Khan assured to refund Rs.2.5 lacs till 01.04.2014. On 01.04.2014, accused Nadeem called Dilshad in the evening time and asked him to come to the house of Kajal for refund of part amount of loan. At about 08:30 PM, Dilshad left the house and told PW-9 as well as his father that he was going to Laxmi Nagar to receive some amount from Nadeem @ Mulla as he had called him there. PW-9 further deposed that during the night time, his brother Naushad received a call from Police Station Geeta Colony and thereafter, Naushad called him to inquire as to him to whether Dilshad had come back home. PW-9 replied to him that Dilshad had not returned to home. When Naushad reached at Police Station Geeta Colony he came to know that Dilshad had been murdered. Thereafter, PW-9 also reached at Police Station Geeta Colony at about 04:00 AM on 02.04.2014.
15. Since, PW-9 did not disclose complete details and facts, Ld. Addl. PP for the State put some leading questions to the witness with the permission of the Court. PW-9 thereafter, admitted that 15-20 days prior to the murder of Dilshad, Aamin along with Guddu and Deepak Kale had quarreled with Dilshad, while Nadeem S/o Haji Rashid had promised to refund the said amount to Dilshad till 01.04.2014 and on this issueDigitally some hot AKASH AKASH JAIN signed by JAIN Date: 2024.04.29 17:58:50 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 10 of 54 discussion took place between Dilshad and Nadeem @ Mulla in the morning time of 01.04.2014. PW-9 further stated that in the evening of 01.04.2014, Dilshad told him that he had a meeting with accused Nadeem S/o Haji Rashid at the house of Kajal on the issue of refund of his loan amount and that he had left the home on Bajaj Pulsar motor-cycle at about 08:30 PM.
16. During cross-examination, PW-9 stated that no written complaint was made by him or his family to the police regarding altercation which allegedly took place between Dilshad and Nadeem. PW-9 denied the suggestion of Ld. Counsels for accused persons that deceased Dilshad had no business dealings with the accused persons or that no telephonic conversation took place between Dilshad and accused persons in his presence. He further denied the suggestion that he had deposed falsely against the accused persons at the instance of the IO.
17. PW-14 is Naim Ahmed who deposed that he had a bakery factory at E-37, Rani Garden Extension. He deposed that on 01.04.2014 in the night at about 10:30 to 10:45 PM, he was watching TV at the office of bakery, which was situated near Mohammadi Masjid and at that time his friend Abrar came there and told him about the firing incident which took place in the street behind Mohammadi Masjid near Nala. Thereafter, he rushed to the said place and saw one lady crying there and saying Nadeem had fired a shot. She was also pleading to call the police. Consequently, PW-14 called at 100 number and also saw that one person was lying in a pool of blood. Later on police came at the spot, made inquires from him and recorded his statement.
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18. During cross-examination, PW-14 stated that some public persons were present at the spot when he had reached there and that he had not met with the said lady prior to or after the incident. He further deposed that he had not accompanied with the police to search for the said lady. PW-14 further stated that the gali where spot of the incident was situated was around 5-6 feet in width and many families reside near the spot. He further stated that the spot of incident was situated at a distance of about 50-60 meters from his bakery.
Eye Witnesses
19. PW-10 Nasreen and PW-11 Sabir are the only eye- witnesses in the present case and testimonies of both these witnesses would be discussed in detail at later stage.
Expert witnesses
20. PW-7 is Dr. Asitesh Bajwa, Specialist Forensic Medicine, Aruna Asaf Ali, Govt. Hospital, Subzi Mandi Mortuary, Delhi, who deposed that on 03.04.2014, he conducted the postmortem examination on the dead body of Dilshad @ DK vide PM No. 553/14 dated 03.04.2014. PW-7 stated that during the postmortem he found following injuries on the body:-
External injuries
(i) Lacerated wound 4.5x2.4 cm with abrasion collar, blackening was present at left temporal region of scalp, 4.2 cm in front of left tragus and 2.5 cm from outer aspect of left eyebrow. Tatooing was seen at the surrounding surface. Underline left temporal bone was exposed. Brain matter was seen coming out of the AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 17:59:04 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 12 of 54 wound. On dissection, fraction of left temporal bone oval shaped with bavelled margins were seen forming a track which was directing downwards and backwards towards occipital lobe of brain, lacerating the brain through its course. Copper jacketed bullet 3x0.8 cm was recovered from the right side of occipital bone embedded at inner table 3.9 cm lateral to occipital protuberance.
(ii) Lacerated wound 0.7x0.9 cm with collar abrasion, blackening and tatooing around the wound were seen at front of right side of abdominal wall 17.5 cm below right nipple at 6 on O'clock position. On dissection, a track was formed with extra-
vassation of blood directing medially and downwards lacerating the loops of mesentry and puncturing the transverse colon at middle 1/3rd at anterior surface, directing downwards and medially and causing exit wound at lower border and upto the loops of Jejunum. A copper jacketed bullet was recovered at the loops of Jejunum. Clotting blood was present at site.
(iii) Lacerated wound 1.1x0.9 cms with abrasion collar, blackening and tatooing was present at front of right side of abdominal wall 6.6 cm below and medial to injury no.2 at 5 O'clock position, 8.5 cm from midline. On dissection a track was formed directing downward and medially with extra vassation of blood. Copper jacketed bullet was recovered measuring 3x0.8 cm at fat underlying injury no.3.
Internal injuries
21. Sub scalp bruise at left fronto parioto temporal region of scalp. Left temporal bone showed fracture in a circular shape measuring 1.7 x1.7 cm with bavelling. A linear fracture AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 17:59:11 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 13 of 54 was seen radiating from above said fracture to right parietal and right frontal bones & towards the right occipital bone. Brain matter was lacerated as described. Stomach contain about 500 cc of partially digested food material. No abnormal smell was perceived from stomach contents.
22. PW-7 further stated that he gave opinion that all injuries were of ante mortem in origin and the cause of death in this case was Cranio cerebral damage consequent upon fire arm injury by a projectile which was sufficient to cause death in an ordinary course of nature. The time since death was 1 to 2 days. The following articles/specimen were preserved and handed over to Police alongwith sample seal of Subzi Mandi Mortuary.
(a) Sealed clothes;
(b) Blood/ Viscera preserved in common salt solution for
toxicological analysis;
(c) Recovered bullet from the body sealed in three plastic
jars;
(d) Blood in gauze piece;
(e) Inquest papers 1 to 8
23. After conducting postmortem, PW-7 prepared the report which is proved as Ex. PW 7/A.
24. PW-21 is Amit Sharma, Nodal Officer, who proved his authority letter to depose before the Court as Ex.PW21/A. He brought the record of mobile phone no. 7827555595 and deposed that as per their record, the subscriber of said number was Niranj Singh from 18.11.2013 till 05.12.2014. He further proved the CDR of said number from 01.01.2014 to 01.04.2014 vide Ex.
AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 17:59:17 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 14 of 54 PW 21/B and certificate under Section 65-B of Indian Evidence Act vide Ex. PW 21/C. Police Witnesses
25. PW-1 is HC Sanjay Kumar, who deposed that he was posted as Duty Officer at Police Station Geeta Colony on 01.04.2014. At about 11:45 PM, he received the information from control room that one person was found shot by bullet and he was unconscious. The said information was received in the Control room by phone no. 9868962719. He recorded the information vide DD No. 30A and proved the same as Ex. PW 1/A (OSR). He further gave that information to SI Dinesh Kumar by phone and sent a copy of DD No. 30A to him through Ct. Sunil.
26. PW-2 is ASI Rampal Singh who deposed that on 02.04.2014, he was posted as Duty Officer at Police Station Geeta Colony from 12:00 midnight to 08:00 AM. At about 08:00 AM, he received rukka brought by Ct. Sunil and sent by SI Dinesh and he reduced the information in the DD entry 3A in his handwriting. He proved the said DD entry as Ex. PW 2/A. PW-2 further deposed that he consequently registered the FIR No. 216/14 which is Ex. PW 2/B and also made endorsement on rukka which is Ex. PW 2/C. He further proved Certificate under Section 65-B of Indian Evidence Act as Ex. PW 2/D. PW-2 further deposed that after registration of the FIR, he handed over the copy of FIR and original rukka to Ct. Sunil for giving it to SI Dinesh. The copies of FIR were also sent to senior Police Officers and concerned Ld. MM. PW-2 further deposed that AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 17:59:24 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 15 of 54 Inspector Arun Kumar was sent to the spot and he reduced DD No. 4A in this regard as Ex. PW 2/E. Later on Ct. Dharamvir came back at Police Station Geeta Colony and handed over copy of FIR to the senior officials qua which PW-2 recorded DD No. 6A which is Ex. PW 2/F.
27. PW-4 is SI Sanjay Saxena, who deposed that on 01.04.2014 he was posted as Incharge Crime team and at about 11:45 PM, he received information from East Control Room to reach at public toilet, Rani Garden Extn. Shastri Nagar, Delhi. On receipt of the information he along with photographer HC Sanjeev and finger print proficient Ct. Sandeep proceeded from the office and reached at the spot at 12:10 AM on 02.04.2014. There they found one dead body of a male lying in front of H. No. F-13, Rani Garden. PW-4 observed that blood was oozing from left side temporal region (kanpati) of the body. One black colour mobile phone make Samsung and one bunch of keys were also found lying near the dead body. The photographer HC Sanjeev took photographs of the crime scene. PW-4 inspected the scene of crime and prepared his report vide Ex. PW 4/A.
28. PW-5 is HC Sanjeev, who deposed that in the intervening night of 1/02.04.2014 he was posted in Mobile Crime Team, East District as Photographer. On receipt of call from Control Room, he along with other members of the crime team, went to Rani Garden Extension, Shastri Nagar, Near Shauchalaya and on the instructions of SI Sanjay Saxena, Incharge Crime Team, he took 15 photographs of the spot. After developing the said photographs, he handed over the same to the IO. He proved AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 17:59:30 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 16 of 54 the said photographs as Ex. PW 5/A-1 to Ex. PW 5/A-15 and their negatives as Ex. PW 5/A-16 to Ex. PW 5/A-30. During cross-examination PW-5 stated that public persons were present at the spot but he did not know if any of them was family member of deceased.
29. PW-8 is HC Kiran Pal Singh, who deposed that he was posted as MHCM at Police Station Geeta Colony on 02.04.2014 and on that day, Inspector Arun Chauhan handed over to him three sealed parcels Mark A, B and C, sealed with the seal of 'GC-03 PS Geeta Colony, East District' along with other parcels Mark D and E which were deposited by him in the Malkhana. He also received Rs. 4,500- which were recovered from the right side pocket of pant of deceased along with one parcel, which was also sealed with the seal of 'GC-03 PS Geeta Colony, East District'. One motor-cycle DL 10SA-8271 was also received by PW-8 and same was deposited in Malkhana. The said motor-cycle was released on superdari to its registered owner on 10.04.2015 and relevant entry was made by PW-8 in register number 19, which is proved as Ex. PW 8/A (colly). PW-8 further deposed that on 03.04.2014 Inspector Arun Chauhan came to Malkhana and handed over one viscera peti, sealed with the seal of 'CMO IC AAAGH' along with sample seal. He also produced 4 sealed parcels sealed with the seal of Subzi Mandi Mortuary i.e. 'CMO IC AAAGH' along with sample seal which was deposited by PW-8 in the Malkhana. Inspector Arun Chauhan also produced scooty bearing no. DL 4SZ-2326 and DL 7S PQ 8789 along with 2 parcels sealed with the seal of 'GC-03 PS Geeta Colony, East District' and same were deposited in AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 17:59:38 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 17 of 54 Malkhana by him. Jamatalashi articles of accused Nadeem Khan and Nadeem Beg were also produced by Inspector Arun Chauhan which also stood deposited by PW-8 in the Malkhana. PW-8 proved relevant entries qua same in register no. 19 as Ex. PW 8/B (colly). On 04.04.2014, Inspector Arun deposited Chauhan again came to malkhana and deposited one sealed pullanda sealed with the seal of 'GG-03, PS Geeta Colony, East District, Delhi' for deposition in Malkhana properly. PW-8 made entry regarding the same in register no.19 at sr. no.152 and proved the copy of register as Ex. PW8/C (OSR). On 05.04.2014, Inspector Arun Chauhan came to Malkhana and produced two sealed cloth parcels sealed with the seal of 'GC-03, PS Geeta Colony, East District, Delhi' and the same were also deposited in Malkhana properly. PW-8 made entry regarding the same in register no.19 at Sr. no.153 and proved the copy of register as Ex.PW8/D (OSR). He further deposed that on 16.06.2014, when he was at Malkhana, Constable Naushad had brought five cartridges from I/C KOT P&L by the order of PHQ which were kept in a plastic container and sealed by Inspector Arun Chauhan with the seal of 'GC-03, The same were PS Geeta Colony, East District, Delhi'. The same were handed over to him and were deposited in Malkhana by him. He made entry regarding the same in register no.19 at Sr. no. 286 and proved the copy of register as Ex.PW8/E (OSR). On 28.05.2014, on the instructions of IO, he handed over viscera peti sealed with the seal of over Subzi Mandi Mortuary Delhi CMO IC along with sample seal to Ct. Satender vide RC No. 62/21/14 against proper receipt. Copy of RC is Ex.PW8/F and copy of receipt is Ex.PW8/F-1 (OSR). PW-8 further deposed that on 28.05.2014, on the instructions of IO, he handed over AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 17:59:44 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 18 of 54 nine sealed pullandas with the seal of 'GC 03 PS Geeta Colony, East district Delhi' and Subzi Mandi Mortuary Delhi CMO IC alongwith sample seal to Ct. Satender vide RC no. 63/21/14 against receipt. Copy of RC is Ex.PW8/G and copy of receipt is Ex.PW8/G-1 (OSR). PW-8 also deposed that on 24.06.2014, on the directions of IO, he handed four sealed pullandas with the seal of 'GC 03 PS Geeta Colony, East district Delhi and Subzi Mandi Mortuary Delhi CMO IC alongwith sample agent proper receipt seal to Ct. Pawan vide RC no. is 87/21/14 against proper receipt. Copy of RC is Ex.PW8/H and copy of receipt is Ex.PW8/H-1 (OSR).
30. PW-12 is Ct. Dharamveer, who deposed that on 02.04.2014, he was posted at Police Station Geeta Colony and at about 02:10 AM, Duty officer handed over him five envelopes containing copy of FIR No. 216/14, which was delivered by him at the residences of Joint Commissioner of Police, Deputy Commissioner of Police, Additional DCP, ACP and area Metropolitan Magistrate. He made departure entry vide DD No. 4A and returned to the Police Station at about 04:45 AM.
31. PW-13 is ASI Sonu Kaushik, who deposed that on 07.06.2014, he was posted as Assistant Draftsman, Crime Branch, PHQ, Delhi. On the instructions of Inspector Arun Chauhan, he reached Police Station Geeta Colony and from there he along with Inspector Arun Chauhan and other staff had gone to the spot of incident. He took measurements and prepared rough notes there and returned back to the office. He prepared Digitally signed AKASH by AKASH JAIN Date:
JAIN 2024.04.29 17:59:49 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 19 of 54 scaled site plan Ex. PW 13/A on 13.06.2014 and handed over the same to IO. IO recorded his statement on 07.06.2014.
32. PW-15 is HC Pawan, who deposed that on 24.06.2014 he was posted at Police Station Geeta Colony as Constable and on the instructions of IO he took the exhibits in sealed condition from MHCM vide RC No. 87/21/14 for depositing the same at FSL, Rohini. The same is already proved as Ex. PW 8/H. The exhibits were later on deposited by PW-15 at FSL Rohini and he handed over the acknowledgement receipt to MHCM vide Ex. PW 8/H1.
33. PW-16 is Ct. Satender Kumar who was posted at Police Station Geeta Colony and on the instructions of IO, he took the exhibits in sealed condition from MHCM vide RCs No. 56/21/14, 62/21/14 and 63/21/14 for depositing the same at FSL, Rohini. He deposed that RC No. 56/21/14 was returned for want of five live cartridges. RC Nos. 62/21/14 and 63/21/14 are already proved as Ex. PW 8/F and Ex. PW 8/G respectively. The exhibits were later on deposited by PW-16 at FSL Rohini and he handed over the acknowledgement receipt to MHCM vide Ex.
PW 8/F1 and Ex. PW 8/G1 respectively.
34. PW-17 is Ct. Birender who deposed that in the intervening night of 1-2nd April, 2014, he joined investigation in the present case. He deposed on the lines of testimonies of IO PW-22 and Inspector Dinesh PW-20 regarding lifting of exhibits from spot, transferring dead body to mortuary, identification and Digitally signed AKASH by AKASH JAIN Date:
JAIN 2024.04.29 17:59:55 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 20 of 54 handing over dead body to its family and apprehension of both accused persons.
35. PW-18 is ASI Naushad Haider who deposed that on 16.06.2014, on the directions of IO Inspector Arun Chauhan, he reached Old Police Line along with PHQ Order No. 6464/ Admn. (IX)/ PHQ dated 11.06.2014, where he received 5 live cartridges of 8 MM/ 315 Bore vide RC No. 96/21/14 from Incharge of KOT. He further deposed that after returning to the police station, he handed over the same to IO which he kept in a plastic box and sealed it with a seal of 'GC 03 PS Geeta Colony, East District'. The sealed parcel was seized vide seizure memo Ex. PW 18/A.
36. PW-19 is HC Sonu, who deposed that on 01.04.2014, he was posted at CPCR PHQ, ITO, Delhi. On that day at about 11:40 PM, he received an information that 'yahan per kisi ne ek aadmi ko goli mar di hai jo behosh hai'. PW-10 fed that information in PCR Form-1 and the information was flashed to communication wing. PW-19 proved the PCR Form -1 vide Ex. PW 19/A.
37. PW-20 is Inspector Dinesh Kumar who deposed that on 01.04.2014 when he was on emergency duty, he received copy of DD No. 30A from Ct. Sunil vide which it was informed that one person was lying unconscious as he was shot by bullet near Toilet, Rani Garden. On receipt of said information, he along with Ct. Sunil reached in front of House No. F-30, Rani Garden where dead body of young boy aged about 30 years was found lying smeared with blood. On examination of the said Digitally body,signedtwo AKASH AKASH JAIN by FIR No:- 216/14 State v. Nadeem Beg & Anr.
JAIN Date: 2024.04.29 18:00:01 +0530 Page No. 21 of 54 visible fire arm injury on the abdomen and one firm arm injury near the left side of ear was found. He also found one mobile phone of black colour and two keys along with a remote in a ring lying near the dead body. No eye-witness could be found despite best efforts at that time. PW-20 made endorsement on DD No. 38 and prepared rukka vide Ex. PW 20/A, which was handed over by him to Ct. Sunil for registration of FIR. At about 02:30 AM Ct. Sunil returned at the spot with copy of FIR and rukka. Investigation was marked to Inspector Arun Chauhan after registration of FIR who also reached at spot. Crime team also reached at spot and inspected the crime scene and lifted exhibits. Thereafter, IO carried out investigation, lifted exhibits and sealed them vide separate seizure memos. PW-20 further deposed on the lines of testimony of IO/PW-22 regarding recording of statements of family members of deceased, girl-friend of deceased namely, Kajal and 2 eye-witnesses. He further deposed regarding apprehension of both accused persons, recording of their disclosure statements and recoveries effected at their instance. He further proved the case properties recovered and seized during investigation and correctly identified them in Court. He further correctly identified both the accused persons.
38. PW-22 is IO Inspector Arun Chauhan who deposed that on 02.04.2014 after registration of FIR in this case, the investigation of this case was assigned to him and he along with Ct. Sunil reached at the spot. On reaching there, he found SI Dinesh Kumar along with Ct. Virender and other senior police officers present there. He inspected the place of incident where the dead body of a male person aged about 30 years was lying.
AKASH Digitally signed by
AKASH JAIN
JAIN Date: 2024.04.29
18:00:07 +0530
FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 22 of 54
He deposed that some public persons were present there but they were unable to identify the dead body of that person. No eye witness met him at the spot. He prepared rough site plan at the instance of SI Dinesh vide Ex.PW20/G. Crime team arrived at the spot in the meantime and photographer of crime team had taken photographs of dead body. In the presence of Crime Team, PW-22 lifted exhibits from the place of incident i.e. blood stained earth control and earth control without blood and also lifted blood sample of deceased from the spot which were kept in three separate plastic vials and were marked as serial no. A, B and C and sealed them with the seal of 'GC03 PS GEETA COLONY EAST DISTT' and seized them vide seizure memo Ex.PW20/B. PW-22 deposed that one key ring with remote having two keys in the ring, two buttons (one of green colour and another of light white colour) and one mobile phone were also lifted from the spot. The key ring with keys were taken in police possession after sealing the same in a plastic container with the aforesaid seal vide seizure memo Ex. PW20/C. Two buttons were also kept in a plastic container and sealed with the aforesaid seal and seized vide seizure memo Ex.PW20/D. PW-22 deposed that one mobile phone make Samsung of black colour was also found at the spot and on checking, it was found in working condition and he thereafter, noted down the phone numbers stored in it for the purpose to find out the identity of the deceased. Said mobile phone was also sealed in a plastic container with the aforesaid seal and taken into police possession vide seizure memo Ex.PW20/E. Digitally signed by AKASH JAIN AKASH Date:
JAIN 2024.04.29
18:00:13
+0530
FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 23 of 54
39. PW-22 deposed that in the personal search of deceased, they found cash of Rs. 4,500/- in right side pocket of his pant (nine currency notes of 500 denomination) and currency notes were kept in a brown coloured envelope and taken into police possession vide seizure memo Ex.PW20/F. Incharge of Crime Team handed over to him scene of crime report and he recorded the statement of members of crime team. The dead body of deceased was sent to Subzi Mandi, Mortuary through Ct. Virender to preserve there for 72 hours. PW-22 tried to contact on phone number noted down from the mobile phone of deceased and one call was answered by Sh. Sagir Ahmad and he told that the description of body given by them was of his son Dilshad Ahmad @ DK. Thereafter, Sagir Ahmad came to the spot along with his family members Naushad Ahmad and Irshad. PW-22 showed them the photographs of dead body taken by him in his mobile phone prior to sending the dead body to Subzi Mandi Mortuary. On seeing the photograph, they identified the dead body as of Dilshad Ahmad @ DK. On further enquiry from the family of deceased, it was revealed that deceased was engaged in property business with Nadeem Khan and he was having some money disputes with him. It was further revealed that deceased was living with one Kajal in a rented accommodation at New Lahore Shastri Nagar near Kali Mata Mandir, Rani Garden and on the night of 01.04.2014, a meeting was fixed at the said house with Nadeem Khan to settle the money dispute between them. It was further revealed that on the said day, deceased left from his house no. 118-A, Mata Sundari Marg, Minto Road where his parents and other family members lived, on one black coloured Pulsar motorcycle of his brother Naushad Ahmad. PW-22 AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:00:19 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 24 of 54 deposed that thereafter, they along with family members of deceased reached at the aforesaid house where deceased was living with Kajal at New Lahore Shastri Nagar near Kali Mata Mandir, Rani Garden and on reaching there, they noticed the said motorcycle of black colour make Pulsar lying in the gali and it was identified by the family members of the deceased as of Naushad on which deceased had come there. PW-22 further deposed that no one was found present in the said house. Kajal was contacted on phone. When she arrived there, she was enquired about Dilshad Ahmad and she told that Dilshad had come on the aforesaid motorcycle at about 9:30 PM on 01.04.2014 and Nadeem Khan also came there after 1-1½ hour of arrival of Dilshad Ahmad. Thereafter, he left with Nadeem Khan on a black coloured scooty and Nadeem Beg also followed them on another scooty of red colour. PW-22 recorded the statement of Kajal and said motorcycle Pulsar was taken into police possession vide seizure memo Ex.PW20/I. Thereafter, he along with family members of deceased returned to the place of incident and tried to find out eye-witness of the incident. While they were making enquiries from residents of nearby houses where dead body was found, one Sabir Khan and his wife Nasreen who lived on fourth floor of House No. F-31 approached and claimed themselves to be eye-witnesses of the incident. PW- 22 consequently recorded their statements.
40. PW-22 deposed that on the next day, he along with SI Dinesh and other police staff reached at Subzi Mandi Mortuary where he called the family members of deceased and showed them the dead body of deceased which was identified by AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:00:25 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 25 of 54 father and brother of the deceased as of Dilshad Ahmad. He recorded the statement regarding identification of deceased and prepared inquest papers which includes form no. 25.35 (1) (B) vide Ex.PW22/A. He also proved application for postmortem of body of the deceased vide Ex.PW22/B and after the postmortem, the doctor handed over viscera of deceased, lead of bullets recovered from the body of the deceased, blood sample of the deceased and blood stained clothes of the deceased. All were sealed with the seal of Subzi Mandi Mortuary and were given to Ct. Virender who handed over the parcels to PW-22 which were seized vide seizure memo Ex.PW17/A, Ex.PW17/B, Ex.PW17/C and Ex.PW17/D. Thereafter, they deposited these parcels in Malkhana. PW-22 deposed that on the same day at about 1:30 PM, while he was present in the police station, one secret informer came to him and gave information about accused Nadeem Khan who was wanted in this case as he was seen by him at the scrap dealer shop of his father at Khureji Chowk. The DD entry was lodged about receipt of this information by PW-22 vide Ex.PW22/C. PW-22 constituted the raiding team consisting of SI Dinesh, Constable and reached at the aforesaid shop at Khureji Chowk, but no one was found present at the said shop. Thereafter, they laid a trap and kept on waiting for the accused and after waiting for about 2-2 ½ hours, accused Nadeem came there on a black coloured scooty who was identified by the secret informer. PW-22 arrested said accused vide arrest memo Ex.PW20/J and carried his personal search vide Ex.PW20/K. During personal search, one mobile phone make Nokia black colour was recovered, which was taken into police possession vide seizure memo Ex.PW20/L and was sealed with the seal of AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:00:30 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 26 of 54 GC03 PS GEETA COLONY EAST DISTT. PW-22 deposed that on interrogation of accused it was revealed that said scooty was used by him for taking away deceased on 01.04.2014. He seized the said scooty vide memo Ex.PW20/M. Accused Nadeem Beg was also apprehended by the police at the instance of accused Nadeem Khan on the same date. PW-22 deposed that accused Nadeem Beg was interrogated, who confessed his involvement in the present case. His scooty was also seized vide seizure memo Ex.PW20/Q. PW-22 proved arrest memo of accused Nadeem Beg as Ex.PW20/N and his personal search was also conducted vide search memo Ex.PW20/O. In his personal search one mobile phone make X-AGE black colour was recovered and said mobile phone was taken into police possession vide seizure memo Ex.PW20/P, which was sealed in a plastic container and sealed with the seal of GC03 PS GEETA COLONY EAST DISTT. PW- 22 proved the pointing out memo of place of incident vide Ex.PW20/R and Ex.PW20/S. He thereafter, took both the accused persons to Dr. Hedgewar Hospital, where they got medically examined and on reaching at police station, both the accused persons were thoroughly interrogated and the facts disclosed by them were recorded vide separate disclosure statements Ex.PW20/T and Ex.PW20/U. PW-22 deposed that on the next date i.e. 04.04.2014 both accused persons were produced by him in the Court and 3 days PC remand was obtained. During PC remand, accused Nadeem Khan got recovered his clothes which were worn by him at the time of incident from the shop of his father. The said clothes were kept by him in a green colour polythene bag. On checking the said bag, same was containing half sleeves brown coloured shirt and khaki coloured trouser. The AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:00:36 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 27 of 54 said polythene bag was sealed in a cloth parcel with the seal of GC03 PS GEETA COLONY EAST DISTT and parcel was seized vide seizure memo Ex. PW 20/V. PW-22 further deposed that on 05.04.2014, accused Nadeem Beg got recovered his clothes, which were worn by him at the time of incident, from Yamuna Khadar. The clothes which were worn by him were in one polythene bag which contained one blue coloured denim full sleeves shirt and one blue coloured jeans pant having blood stains. Those clothes were kept in the said polythene bag which was sealed in a cloth parcel with the seal of GC03 PS GEETA COLONY, EAST DISTRICT and were seized vide seizure memo already Ex. PW 20/W. Thereafter, accused Nadeem Beg also got recovered one country made pistol which was hidden under wet soil. The sketch of said pistol was prepared vide seizure memo Ex. PW 20/X and thereafter, said pistol was kept in a plastic container and sealed the same with the seal of GC03 PS Geeta Colony, East District and seized the same vide seizure memo Ex. PW 20/Y.
41. PW-22 sent exhibits to FSL and moved an application for TIP of accused persons vide application Ex.PW22/D. However, both accused persons refused to participate in the TIP vide mark PW22/A and mark PW22/B. He further deposed that during investigation, he collected CDR of mobile phone of deceased to find out the location of deceased and also to verify about call details of calls between deceased and the accused persons for the relevant period and as per the CDR, the last three calls of deceased were made to accused Nadeem Khan. PW-22 deposed that on completion of investigation, he AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:00:44 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 28 of 54 prepared the charge-sheet and filed it in the court through SHO. PW-22 correctly identified both accused persons during his testimony.
42. All the witnesses were duly cross-examined by Ld. Counsel for both the accused persons.
43. Record transpires that during course of trial on 10.05.2023, Ld. Counsel for accused persons admitted certain documents of prosecution i.e. FSL examination report no. FSL 2014/ F-4480 dated 30.06.2016 from Ballistics Division prepared by Sh. V. R. Anand, Assistant Director (Ballistics), FSL, Delhi; FSL examination report no. FSL 2014/ C-3819 dated 24.02.2015 prepared by Sh. Jitendra Kumar, Senior Scientific Officer (Chemistry), FSL, Delhi, Sanction under Section 39 Arms Act by Sh. R. Sathiyasundaram, Addl. DCP/ East District/ Delhi, FSL report No. FSL-2014/ DNA/ 3821 dated 07.11.2017 prepared by Ms. Anita Chhari, Senior Scientific Officer (Biology) and its forwarding letter dated 07.11.2017, Fact that ASI Shakeel Ahmed had brought the FSL report from FSL Rohini and supplementary charge-sheet was filed by IO/ SI Mintu Singh and TIP proceedings of both accused persons under Section 294 Cr.PC. In view of separate statements of Ld. Counsel for accused persons, Ld. Addl. PP for the State prayed for dropping these witnesses to formally prove aforesaid documents. Thus, PWs Sh. V. R. Anand, Assistant Director (Ballistics), FSL, Delhi, Sh. Jitender Kumar, Senior Scientific Officer (Chemistry), Sh. R. Sathiyasundaram and Sh. J. P. Nahar, Ld. Reliver MM were dropped by this Court from the list of witnesses. It is not out of place to mention that AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:00:50 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 29 of 54 vide statement of Ld. Addl. PP for the State recorded on 20.02.2023 before Ld. Predecessor Court, Ct. Sunil was also dropped as said PW was witness of repeat facts and was found suffering from paralysis and unable to speak and move in terms of report dated 16.12.2022 and 17.02.2023.
Statement of Accused person(s)
44. After conclusion of prosecution evidence, both accused persons were examined under Section 313 Cr.P.C. and incriminating evidence appeared against them during trial were put to them. Both accused persons denied incriminating evidence put to them and stated that they have been falsely implicated in the present case on some suspicion. Both accused persons stated that they had no concern with the deceased and no business transaction had ever been conducted between the deceased and accused persons at any point of time. Accused Nadeem Khan chose to lead defence evidence. As such, matter proceeded for recording of defence evidence.
Defence Evidence
45. DW-1 is Raseed Khan i.e. father of accused Nadeem Khan who deposed that he was running a Kabari shop for last 30 to 35 years at Shop no. 260, Khureji Chowk, Patparganj Road, Delhi. He deposed that either on 3 rd or 4th April in the year 2014, police came to his house, looking for his son. He was present at his shop at that time. When he reached at his house at about 4:00 PM, police had already left his house. He thereafter, made telephonic call to his son Nadeem Khan @ Mullah and asked him to visit police station as police was making enquiries qua him.
AKASH Digitally signed by
AKASH JAIN
JAIN Date: 2024.04.29
18:00:56 +0530
FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 30 of 54
Thereafter, accused Nadeem Khan @ Mullah went to police station on his own and not returned till 10-10:30 PM. As such, DW-1 went to Police Station Geeta Colony where he found his son Nadeem Khan @ Mullah along with 2-3 other boys who were also present there. The police then informed him that his son accused Nadeem Khan @ Mullah was involved in a murder case.
46. DW-2 is Rameez who deposed that he knew accused Nadeem Khan @ Mullah as their shops are situated adjacent to each other. He deposed that their shops are situated at Patparganj Road, near Rubi Dhaba, Khureji Khas and the shop of accused Nadeem Khan @ Mullah was used to be run by his father. He further deposed that accused Nadeem Khan @ Mullah sometimes also used to come to his shop. He further deposed that he came to know that a case was lodged against accused Nadeem Khan @ Mullah between 3rd April to 5th April, 2014. DW-2 further deposed that police never met him at his shop and he had not seen police at the shop of accused Nadeem Khan @ Mullah on any day.
Final Arguments on behalf of Both Sides
47. After conclusion of defence evidence, matter proceeded for final arguments. Final arguments were heard on behalf of Ld. APP for State and the accused persons. It is argued by Ld. Addl. PP for the State that it has been proved beyond reasonable doubt that murder of deceased Dilshad was committed by both the accused persons on the intervening night of 01.04.2014. It is argued that both the eye-witnesses i.e. PW-10 AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:01:01 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 31 of 54 Nasreen and PW-11 Sabir clearly deposed in their respective testimonies that they had seen commission of alleged murder from 4th floor of their balcony by the accused persons. It is further argued that motive behind commission of alleged offence was duly elaborated by family members of deceased Dilshad i.e. PW3 Sagir Ahmed (father of deceased), PW-6 Naushad Ahmad and PW-9 Irshad Ahmad (brothers of deceased) who stated that deceased was doing the work of building construction and had given loan amount to both the accused persons, who were not returning the same despite repeated requests of Dilshad. It is argued that above witnesses also deposed that on one occasion associates of accused persons threatened the deceased for his life. It is argued that the testimonies of aforesaid witnesses reflect that deceased left his home on 01.04.2014 between 07:00 PM to 08:30 PM to meet accused Nadeem Khan. It is further argued that the last three phone calls in the mobile phone of deceased, which was recovered along with his dead body showed that he received calls from accused Nadeem Khan immediately before his death. It is further argued that clothes recovered at the instance of both the accused persons were carrying blood stains and as per FSL report, the blood stains found on the clothes of both accused persons were found matched with the DNA profile of deceased. It is thus, prayed that both the accused persons be convicted for commission of murder of Dilshad and be suitably punished.
48. Per contra, it is argued by Ld. Counsel for both the accused persons that alleged eye witnesses PW-10 Nasreen and PW-11 Sabir are relatives of deceased Dilshad who are interested and planted witnesses by the police. It is argued that there are AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:01:07 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 32 of 54 material contradictions in the testimonies of both these witnesses and no document pertaining to address proof of both these witnesses was brought on record by the prosecution.
49. Further, House No. F-31 from which both these witnesses had allegedly claimed to have seen the incident is not even reflected in the site plan filed on record by the IO. It is argued that except the testimonies of alleged eye witnesses PW- 10 and PW-11, whose statements are not credit worthy, there is no cogent evidence on record to bring home the charges of murder against both the accused persons. It is argued that testimonies of family members of deceased are merely hearsay and none of them had seen deceased with either of the accused persons on the day of incident. It is further argued that girl friend of deceased namely, Kajal at whose place deceased had reportedly gone on the date of incident in the night, could not be examined by the prosecution during trial despite repeated opportunities granted by the Court. It is further argued that no proof of alleged money transactions between deceased and accused Nadeem Khan was brought on record by the prosecution to substantiate the alleged motive for killing the deceased. It is finally argued that the recoveries of blood stained clothes at the instance of both the accused persons were planted upon them by the police in the absence of any pubic witnesses to solve the blind murder of deceased Dilshad in this case.
Analysis and Findings
50. At the outset, the case of prosecution against both the accused persons rests heavily upon the evidence of alleged AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:01:12 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 33 of 54 eye-witnesses PW-10 Nasreen and PW-11 Sabir. The testimonies of both these witnesses are being discussed herein for better appreciation of evidence.
51. PW-10 is Nasreen, who deposed that on 01.04.2014 she was residing on the fourth floor of F-31, Rani Garden Extension. At about 10:30 PM, her husband returned from his job and she was serving food to him, when she heard a loud noise like bursting of crackers and she and her husband went in the balcony to check. From the balcony, they saw that three persons had shot one person and the injured was lying in the street. PW- 10 immediately rushed down to the street, however, the three assailants ran away from the spot on their scooty. PW-10 correctly identified both the accused persons as assailants during her testimony. PW-10 further deposed that after the incident, police had met her, made inquiries from her about the incident and recorded her statement on next day. She later on came to know that the person who was shot at was Dilshad. On 21.04.2014 she came to Karkardooma Court along with her husband for some work, where she saw both the accused persons along with police officials. She thereafter, informed the police officials that they were the assailants and came to know their names as Nadeem and Mulla Nadeem.
52. PW-10 was cross-examined by Ld. Addl. PP for the State with the permission of the Court on certain points in respect of her previous statement recorded under Section 161 Cr.P.C.. During cross-examination, she stated that there were three assailants who had committed the crime, but one of them had AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:01:17 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 34 of 54 managed to escape. She further stated that the two accused persons present in the Court remained at the spot. She denied the suggestion that her statement was recorded by the police on 21.04.2014.
53. During, cross-examination by Ld. Counsel for accused persons, PW-10 stated that on the ground floor of the house in which she was residing on the day of incident, one bakery was functional where 20-25 persons were working. She further stated that there was another bakery 5-10 steps nearby in the said gali. She further stated that the scene of crime could be seen from 8-9 houses besides her house. She also stated that there were 4 shops of junk dealers at the corner of gali and there were 20-25 people working there. PW-10 stated that she remained at the spot for about 15-20 mins on the day of incident and thereafter, returned back to her home. She also stated that she had visiting terms with deceased Dilshad and had visited his house on few occasions.
54. PW-11 is Sabir i.e. husband of PW-10 who also alleged to have seen the commission of offence in question. He deposed on the similar lines of testimony of PW-10 and stated that on 01.04.2014 he returned to his house from work at about 11:00 PM and when he was going to take dinner, he heard the sound like bursting of crackers. Immediately, thereafter as he heard another sound like cracker bursting, he along with his wife came towards balcony (chajja) and saw two persons having fire arms and one person was lying on the ground. Out of those two persons having fire arms, one person again fired in the air and AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:01:23 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 35 of 54 thereafter, both the said boys ran away from the spot on separate scooties (Activa). Thereafter, PW-11 along with his wife came down from stairs but the main door was found locked. He correctly identified both the accused persons in the Court as assailants.
55. PW-11 deposed that one person (Mulla Ji) came and called on 100 number. Police came at the spot and took the dead body. On the next day, police met PW-11 and after making inquires from him, recorded his statement. He did not remember the exact date, but in April 2014, after 19.04.2014, he had seen both the accused persons in Karkardooma Courts and informed the police that they were the same persons who had committed murder of Dilshad. He further stated that he came to know the name of deceased from the police on next day of the incident. He further stated that he got to know the name of both accused persons from the police at later stage.
56. During cross-examination, PW-11 stated that he knew the family members of deceased for last 4 years as they were related to his wife for many years. PW-11 stated that he had visited the Police Station for the first time in connection with this case in the morning of next day of the incident. He went to the Police Station along with his wife and remained there for ½-1 hour. He had signed on only one paper i.e. his statement in the Police Station. PW-11 further stated that on 02.04.2014, he had left for his village at Muradabad, UP and came back to Delhi on 05.04.2018 for appearing as a witness in Court on 07.04.2018. He stated that he was living in Delhi for about 22 years prior to AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:01:29 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 36 of 54 the incident and his wife also accompanied him to the village on 02.04.2014. The witness clarified that there was one bakery on the ground floor of his building and about 4-5 people were living there and there were 2 other bakeries in the said gali. PW-11 stated that he had not taken any household articles with him when he left for Delhi on 02.04.2014. He voluntarily mentioned that he had to leave Delhi all of sudden as about 10-15 persons had come to his house in the evening and created ruckus and out of fear and safety for his life, he and his wife left Delhi. He though did not file any complaint in this regard to any authority. PW-11 stated that he and his wife did not visit the family of deceased Dilshad after the incident.
57. During further cross-examination, PW-11 stated that he shifted at Building No. F-31 about 3-4 months prior to the date of incident and Hazi Allauddin was owner of the house. No rent agreement was executed between him and the landlord. About 7-8 persons were residing on 3rd floor of F-31 including PW-11 and his wife. The witness stated that there was gap of about 10-15 seconds between the two sounds of bursting of crackers heard by him while having dinner. PW-11 stated that he and his wife stayed in their balcony (chajja) for about 5-10 seconds and thereafter, descended to balcony (chajja) of 1 st floor. He further stated that they remained there for 10-15 minutes and reached the ground floor after both the assailants had fled away after committing the crime. No one was present on the ground floor when they reached there but later on people started gathering. PW-11 could not state if bakery was operational during the night time or whether it was opened, when they AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:01:34 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 37 of 54 reached at the ground floor. He could not remember if any of the persons working in the bakery were present there or not. He could not recall the names of the persons but many people were watching the incident from their floors.
58. PW-11 stated that he had not seen the accused persons prior to the date of incident and the scooties on which both the accused fled away after committing the crime were parked opposite the balcony of his building on vacant place. There was no traffic in the gali when the crime was committed. PW-11 stated that he did not try to chase the accused persons as they were carrying weapons and they had also fired the 3 rd round in the air towards the building of the witness. PW-11 further stated that once the accused persons had fled away he along with his wife reached near the dead body of deceased and that the body of deceased was lying about 10-15 feet from main gate of his building. About 30-40 persons gathered there at the spot after some time which included Mulla Ji, Saleem Parchun wala and Joney. No documentary evidence could be shown by the witness that he was living in F-31.
59. A close scrutiny of evidence of both these witnesses reflects that there are material contradictions in their testimonies as also highlighted by the defence. While, PW-10 mentioned in her statement that she saw 3 assailants shooting one person from her balcony at 4th floor of house no. F-31, PW-11 stated that he saw only 2 assailants shooting the deceased. While, PW-10 stated that on seeing the incident, she rushed down to the street, PW-11 stated that on seeing the incident both of them came down to the AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:01:42 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 38 of 54 balcony of first floor of house no. F-31 and remained there for about 10-15 minutes and reached on the ground floor thereafter. According to PW-10, she along with her husband reached at the spot immediately after the incident, however, PW-11 stated in his testimony that when both of them came down from the stairs the main door of their building was locked. While, PW-10 stated in her testimony that she had visiting terms with deceased Dilshad, PW-11 stated that his wife i.e. PW-10 was related to family of deceased Dilshad for last many years.
60. There are several other gaps and defects in the case of prosecution which make testimonies of aforesaid alleged eye- witnesses unreliable and suspicious. It was categorically deposed by PW-17 Ct. Birender and PW-20 Inspector Dinesh Kumar that when they reached at the spot of incident on receipt of information from the control room on 01.04.2014, no eye-witness was found despite best efforts and identity of deceased could also not be ascertained at first instance. It remains unexplained that when both PW-10 and PW-11 had allegedly seen the incident in question whereby deceased was shot down by two assailants, why did they not remain at the spot when police arrived there and only came forward to give their statements next day in the afternoon. It is pertinent to note that the deceased was allegedly shot down by the assailants between 11:15 to 11:45 PM and PW- 4 SI Sanjay Saxena i.e In-charge crime team had reached the spot at 12:10 AM. However, both the eye-witnesses were not reportedly present at the spot when police reached there.
61. It has been duly admitted by both PW-10 and PW-11 AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:01:48 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 39 of 54 that deceased Dilshad was known to them, rather PW-11 clarified that Dilshad and his family were related to his wife i.e PW-10 for last many years. It is hard to believe that when both these witnesses allegedly saw the incident from 4 th floor of their balcony, they could not see deceased Dilshad but clearly saw the assailants and also identified both of them during production in the Court after about 20 days of the incident.
62. PW-10 stated in her testimony that after the incident of shooting, she immediately rushed to the street where injured was lying and assailants had already ran away from the spot on their scooties and that she remained there for about 15-20 minutes. It was further stated by both PW-10 and PW-11 that police recorded their statements on next day and they later on came to know that the person who was shot dead was Dilshad. It defies logic that when PW-10 and PW-11 were known to the deceased and they rushed to the spot immediately after the incident, why did they not call the police or family of deceased Dilshad. It remains unexplained that how could they not recognize Dilshad when his body was lying on the street in front of their house after the incident in question. It also remains unexplained that how could PW-10 and PW-11 not meet the police after the incident on the same night when they arrived immediately at the spot after the incident.
63. During cross-examination PW-11 mentioned that many people were watching the incident from their respective floors. He further stated scene of crime could be seen from 8-10 houses and that there was one bakery on ground floorDigitally of signed their AKASH AKASH JAIN by JAIN Date: 2024.04.29 18:01:54 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 40 of 54 building and various other shops in the gali, yet not a single independent public witness could be examined by the police during investigation.
64. It is pertinent to note that PW-11 during his examination stated that he heard two sounds like crackers bursting when he came to his balcony (chajja) and 3rd round was fired in the air by one of the assailant before both the assailants ran away on their separate scooties from the spot. However, it is clearly brought on record by PW-7 Dr. Asitesh Bajwa that the deceased received 3 bullet injuries, one on his left temporal region and 2 on his abdomen, thereby raising further suspicion on the testimony of PW-11.
65. Another glaring lapse in the case of prosecution is site plan Ex. PW 13/A prepared by PW-13 Assistant Draftsman,Crime Branch, PHQ as well as rough site plan Ex. PW 20/G prepared by PW-22 IO Inspector Arun Chauhan, both of which do not reflect house no. F-31, from where both the eye- witness allegedly saw the incident in question. Thus, it could not be said beyond reasonable doubt that house no. F-31 is situated within the proximity of place of incident. PW-11 stated during his evidence that the dead body of deceased was lying about 10-15 feet from his building which is not supported by the site plan according to which the dead body was lying in front of house no. F-13 and F-14 and house no. F-31 is not even remotely reflected in the site plan.
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66. Finally, nothing cogent in the form of rent agreement, receipt, aadhar card, driving license, electricity bill or any other proof of residence could be brought on record during investigation by the IO to show that PW-10 and PW-11 were infact residing at House no. F-31, Rani Rani Garden, at the relevant time of incident in question.
67. The sum result of above discussion is that the testimonies of alleged eye-witnesses PW-10 and PW-11 are fraught with material defects and contradictions and they fail to inspire any confidence. It appears that PW-10 and PW-11 were planted as eye-witnesses in this case by the police in the zeal to solve this blind murder case as both these witnesses were known to the family of deceased.
68. Once the testimonies of PW-10 and PW-11 are discarded being unreliable and bereft of probity, the case of prosecution is left hanging on circumstantial evidence. Hon'ble Supreme Court in the celebrated judgment of Sharad Birdhichand Sarda v. State of Maharastra, (1984) 4 SCC 116 has elaborately considered the standard necessary for recording a conviction on the basis of circumstantial evidence which are:-
(a) the circumstance from which the conclusion of guilt is to be drawn should be fully established,
(b) the facts so established should be consistent only with the hypothesis of guilt of the accused that is to say, they should not be explainable on any hypothesis except that the accused is guilty,
(c) the circumstances should be of a conclusive nature and AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:02:06 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 42 of 54 tendency,
(d) they should exclude every possible hypothesis except one to be proved and
(e) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
69. It would be expedient here to refer to the observations of their lordship in the case of G. Farishwanath v. State of Karnataka, (2010) 8 SCC 593, where it was reiterated that where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. It was observed that:
".... Although there should not be any missing links in the cases, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:02:12 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 43 of 54 human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusions of guilty and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/ are not decisive.
The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone. It must exclude each and every hypothesis suggested by the accused. However, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court...."
70. In Hanumant v. The State of Madhya Pradesh AIR 1952 SC 343, Hon'ble Supreme Court cautioned that while dealing with circumstantial evidence the rules especially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson, to the jury in Reg v. Hodge ((1838) 2 Lew. 227), where he said that the mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:02:17 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 44 of 54 to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
71. Now with these parameters of law regarding circumstantial evidences and being conscious of the fact that the burden of proof in a criminal trial is always on the prosecution and it never shifts and to secure a conviction, the prosecution has to prove its case beyond reasonable doubt on the basis of acceptable evidence, I will proceed for the appreciation of evidence. It is a settled principle of criminal law jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. Though it is neither possible nor prudent to have a straight- jacket formula or principle which would apply to all cases without variance and every case has to be appreciated on its own facts and in light of the evidence led by the parties. It is for the Court to examine the cumulative effect of the evidence in order to determine whether the prosecution has been able to establish its case beyond reasonable doubt or that the accused is entitled to the benefit of doubt.
72. Coming to the facts of the present case and in the backdrop of testimonies of alleged eye-witnesses PW-10 and PW-11 being discarded and discredited, following incriminating circumstances are relied upon by the prosecution to point towards the guilt of the accused;
(i) Motive;
(ii) Statements of family members of deceased in respect of
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last seen evidence;
(iii) Exchange of calls between deceased and accused Nadeem
Khan immediately prior to the incident in question;
(iv) Recovery of weapon of offence; (v) Recovery of blood stained clothes. 73. Motive 73.1 It is the case of prosecution that the accused persons
had strong motive to commit the murder of Dilshad. In this regard the prosecution has relied upon testimonies of PW-3 Sagir Ahmed (father of deceased) PW-6 and PW-9 i.e. Naushad and Irshad i.e. (brothers of deceased). All these witnesses had deposed in unison that deceased Dilshad was doing building construction business with accused Nadeem Khan who had borrowed a sum of Rs. 25-30 lacs from Dilshad. The witnesses further deposed that despite repeated requests made by Dilshad accused Nadeem Khan was not returning the said money to him and on one occasion Dilshad was threatened by the associates of accused Nadeem who put pistol on his head and threatened to kill him if he demanded money.
73.2 The abovesaid testimonies of family members of deceased are though not corroborated by any documentary evidence. Neither any visiting cards, nor any letter heads were produced by the witnesses despite questions put to them by Ld. Counsel for accused persons to prove that deceased Dilshad was doing business with accused Nadeem Khan. Further, there are various contradictions in the testimonies of all these 3 witnesses with respect to amount of money allegedly taken loan by accused AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:02:28 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 46 of 54 Nadeem from the deceased Dilshad. However, even if said contradictions are to be ignored, nothing cogent is brought on record to show any money transaction between deceased Dilshad and accused Nadeem Khan. Also, no complaint was admittedly made either by Dilshad or any of his family members to the police regarding alleged threatening made to him by associates of accused Nadeem Khan. Thus, for want of corroborative evidence and documentary proof, the testimonies of PW-3, PW-6 and PW- 9 are not sufficient to believe the existence of facts alleged by them regarding business dealings and money transactions between deceased Dilshad and accused Nadeem. Hence, it could not be proved by prosecution that accused persons had any motive to kill deceased Dilshad.
74. Statements of family members of deceased in respect of last seen evidence;
74.1 It is deposed by PW Sagir Ahmed, PW Naushad Ahmad and PW-9 Irshad Ahmad that on 01.04.2014 deceased Dilsahd had left his home between 07:00 PM to 08:30 PM on the pretext of meeting accused Nadeem Khan for partial refund of his loan amount which was allegedly given by him to the accused persons. It is further deposed by these witnesses that the meeting of deceased Dilshad with the accused persons was scheduled to take place at the house of his girl-friend Kajal. However, PW Kajal @ Rizwana could not be examined by the prosecution despite repeated opportunities granted by the Court and thereafter, she was dropped from the list of witnesses on 06.06.2019. The chain of evidence of prosecution is thus, broken and there is nothing substantial on record to establish that AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:02:34 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 47 of 54 deceased met with both the accused persons on the date of incident, much less last seen with the accused persons. It was brought by the prosecution during trial that motor-cycle bearing no. DL 10SA-8271 which was taken by the deceased from his home was found parked near the house of Kajal i.e. House no. 91, Gali No. 2, Sunder Park, Neel Road, Shastri Nagar, Delhi. However, recovery of motor-cycle of deceased Dilshad from the aforesaid place is not sufficient to prove that he met with both the accused persons there, as alleged by the prosecution.
75. Exchange of calls between deceased and accused Nadeem Khan immediately prior to the incident in question 75.1 It is argued by Ld. Addl. PP for the State that it was brought during evidence that mobile phone recovered near the dead body of deceased had received last calls from accused Nadeem Khan from his mobile no. 9999363844, which shows that deceased was in constant touch with accused Nadeem Khan immediately prior to his death.
75.2 Pursuant to seizure memo Ex. PW 20/E one mobile phone make Samsung was found lying near the dead body of deceased Dilshad by the police and the number of said mobile phone was later on found as 7827555595. Nothing substantial is though brought on record by the prosecution to show that the aforesaid mobile phone belonged to deceased Dilshad as in terms of testimony of PW-21 i.e. Nodal Officer, Reliance Communication Ltd. the subscriber of said mobile phone was one Niranj Singh w.e.f. 18.11.2013 till 05.12.2014.
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75.3 For the sake of arguments, even if it is assumed that
deceased Dilshad was using the said phone, a close scrutiny of call detail record of aforesaid number 7827555595 reflects that one call was made from said number on the phone number of Nadeem Khan on the date of incident i.e. 01.04.2014 at 22:57:17 hours. Thereafter, one call was received on said number at 22:58:24 hours from mobile no. 8860668020. Thereafter, one call was made from 7827555595 to 9213241224 at 23:00:25 hours and one call was received from 9289859306 at 23:11:9 hours. Subsequently, 3 calls were made from the mobile number of accused Nadeem Khan 9999363844 on the aforesaid number i.e. 7827555595 at 23:15:27 hours, 23:17:8 hours and 23:17:46 hours respectively. After these calls, one another call was received on the aforesaid number from mobile no. 9289859306 at 23:22:8 hours and two calls were finally made from 7827555595 on 9310466556, which were reportedly the last calls made from this number prior to the death of deceased.
75.4 Thus, the deceased had reportedly spoken with number of persons prior to his death and the last phone calls made to the deceased were certainly not of accused Nadeem Khan. Nothing cogent is brought during investigation by the IO as to the identity of the persons with whom deceased reportedly spoke in last one hour prior to his death. Mere fact that deceased had spoken to accused Nadeem Khan vide 3 phone calls on the date of incident prior to his death would not in any manner be sufficient to establish that he was killed by the accused persons.
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76. Recovery of weapon of offence 76.1 It is deposed by PW-20 Inspector Dinesh Kumar and PW-22 Inspector Arun Chauhan that on 05.04.2014, weapon of offence i.e. country made pistol was recovered at the instance of accused Nadeem Beg which was hidden under wet soil near dry peepal tree at Yamuna Khadar. It is though pertinent to note that as per the Ballistics report no. FSL 2014/ F-4480 dated 30.06.2016, no conclusive opinion could be given by Assistant Director Ballistics as to whether the bullets recovered from the body of the deceased were fired from the same country made pistol which was recovered at the instance of accused Nadeem Beg. Thus, the recovery of alleged weapon of offence i.e. country made pistol at the instance of accused Nadeem Beg is without any consequence. Moreover, the firearm in question was reportedly recovered by the police from open place and IO failed to join any independent public witnesses during recovery proceedings. Thus, the recovery of country made pistol at the instance of accused Nadeem Beg is fraught with suspicion and he cannot be convicted for the offence under Section 25/27 of Arms Act on the basis of suspicion.
77. Recovery of blood stained clothes 77.1 It is deposed by PW-20 Inspector Dinesh Kumar and PW-22 Inspector Arun Chauhan that on 04.04.2014 accused Nadeem Khan got recovered his blood stained clothes i.e. half sleeves brown coloured shirt and khaki coloured trouser which were worn by him at the time of incident from the shop of his father. The said clothes were seized by the IO vide seizure memo Ex. PW 20/V. Further, on 05.04.2014, accused Nadeem Beg got AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:02:53 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 50 of 54 recovered his blood stained clothes which were worn by him at the time of incident i.e. one blue coloured denim full sleeves shirt and one blue coloured jeans pant from bushes near dry peepal tree at Yamuna Khadar. The said clothes were seized by the IO vide seizure memo Ex. PW 20/W. 77.2 Pursuant to FSL report no. 2014/ DNA-3821 dated 07.11.2017 Ex. X1, it is proved that DNA sample of blood of deceased Dilshad was found matched with the DNA of blood found on shirt of accused Nadeem Khan and jeans pant of accused Nadeem Beg.
77.3 Here it is apt to refer to the case of Prabhoo v. State of UP, Criminal Appeal No. 50 of 1962, where Hon'ble Supreme Court of India had held as under:-
".... It is well-settled that circumstantial evidence must be much as to lead to a conclusion which on any reasonable hypothesis in consistent only with the guilt of the accused person and not with his innocence. The motive alleged in this case would operate not only on the appellant but on his father as well. From the mere production of the blood stained articles by the appellant one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated by the Sub- Inspector of Police....."
77.4 Further, Hon'ble Supreme Court of India in the case of Mustkeen v. State of Rajasthan, AIR 2011 SC 2769, was pleased to observe that:-
".... 23. The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the Appellant unless the same was connected with the AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:02:59 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 51 of 54 murder of deceased by the Appellants. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of the Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder...."
77.5 Thus, mere production of blood stained clothes at the instance of accused persons is not sufficient to come to the conclusion that deceased was murdered by the accused persons in the absence of any corroborative evidence. It is pertinent to note that none of the seizure memos Ex. PW 20/V and Ex. PW 20/W qua recovery of clothes at the instance of accused persons were witnessed by any public witness. No suitable justification could be afforded by the prosecution for failure to join any independent public witness at the time of recovery of incriminating articles at the instance of accused persons. Merely a vague explanation is given by the IO that they requested public persons to join the investigation, but none of them joined while making an excuse. Though non-joining of public witnesses is not fatal to recovery proceedings, however, a case like the present case, which is essentially based on recoveries from the accused persons, the necessary safeguards ought to have been exercised by the IO to take care that the legislative safeguards are duly complied with.
77.6 In the present case, it is not even proved by the prosecution that the clothes allegedly recovered at the instance of accused persons, were actually belonged to them. For the sake of arguments, even if recoveries are considered proved, then in light AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:03:05 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 52 of 54 of law discussed herein-above, the recoveries by themselves cannot lead to the sole conclusion of guilt of the accused persons in absence of any other independent evidence to connect the accused persons with the murder of deceased Dilshad.
Conclusion
78. Keeping in view the totality of facts, circumstances and observations as above, it is held that prosecution failed to prove beyond reasonable doubt that accused persons committed murder of deceased Dilsad, as alleged. The evidence adduced in the case is not consistent with the hypothesis of the guilt of the accused. After having considered all the comprehensive aspects of the matter, there can be no doubt that the circumstances raise a suspicion against the accused persons but suspicion however grave it may be, cannot take the place of proof. It has already been observed that testimonies of alleged eye-witnesses did not inspire confidence and same were discredited. In these circumstances, the case was based on circumstantial evidence and the standard necessary for recording a conviction on the basis of circumstantial evidence could not be achieved in this case by the prosecution.
79. Hence, both the accused persons i.e. accused no. 1 Nadeem Beg S/o Late Ayub Beg and accused no. 2 Nadeem Khan @ Mulla S/o Haji Rashid are acquitted of the offences under Section 302/34 IPC as alleged against them. Further, accused Nadeem Beg also stands acquitted of the offences under Section 25/27 of Arms Act as alleged against him. Bail bonds AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.04.29 18:03:10 +0530 FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 53 of 54 furnished by both accused persons under Section 437-A Cr.P.C. are extended for a period of 6 months from today.
80. File be consigned to record room after due compliance.
Digitally signed by AKASH JAIN AKASH Date:
JAIN 2024.04.29
18:03:17
+0530
ANNOUNCED IN OPEN (AKASH JAIN)
COURT ON 29.04.2024 ASJ-04, EAST DISTRICT
KARKARDOOMA COURTS
DELHI
This judgment contains 54 pages and each paper is signed by me.
Digitally signed by AKASH JAINAKASH Date:
JAIN 2024.04.29
18:03:30
+0530
(AKASH JAIN)
ASJ-04, EAST DISTRICT
KARKARDOOMA COURTS
DELHI
FIR No:- 216/14 State v. Nadeem Beg & Anr. Page No. 54 of 54