Delhi District Court
State vs Asif Ali on 13 May, 2025
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
IN RE:
SC No. 44578/2015
CNR No. DLNE01-000248-2013
FIR No. 311/2012
PS New Usmanpur
U/s 302/201/34 of IPC, 1860.
STATE ASIF ALI & ANR.
Date of Committal : 27.02.2013
Date of Arguments : 06.03.2025 &
25.04.2025
Date of Judgment : 13.05.2025
INDEX
S. No. Contents Page No.
1. Brief Details of the Case & Memo of Parties 2
2. Brief Case of the Prosecution 3
3. Prosecution Evidence 4
4. Plea of the Accused Persons 29
5. Submissions made on behalf of the State 31
6. Submissions made on behalf of the Accused 34
Persons
7. Relevant Law & the Case Laws 37
8. Appreciation of Evidence 44
9. Conclusion & Findings 60
Digitally signed
by ATUL
AHLAWAT
ATUL Date:
AHLAWAT 2025.05.13
10:04:36
+0530
(ATUL AHLAWAT)
ASJ (FTC)/North-
East/KKD Courts/
Delhi/13.05.2025
CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 1/63
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
SC No. 44578/2015
CNR No. DLNE01-000248-2013
FIR No. 311/2012
PS New Usmanpur
U/s 302/201/34 of IPC, 1860.
Brief Details of the Case & Memo of Parties
STATE ASIF ALI & ANR.
Brief details of the case
A) Case FIR No. : 311/2012
B) Charges framed under section : 302/201/34 of IPC,
1860 against both the
accused persons.
C) Name of the complainant/Informant : SI Satbir Singh/Seema
W/o Late Sh. Iqbal
Ahmed
D) Name of the accused persons : (1) Asif Ali
S/o Late Sh. Munawar
Ali,
R/o H. No. 1370, 3rd
floor, gali no. 46,
Jafrabad,
Delhi-110053.
(2) Asif Khan Digitally
signed by
S/o Sh. Mobin Khan,
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.05.13
10:04:47
+0530
CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 2/63
R/o H. No. 469, gali
No. 21, Jafrabad,
Delhi-110053.
E) Plea of the accused persons : Not guilty
F) Final Order : Acquittal
G) Date of Order : 13.05.2025
JUDGMENT
(Pronounced on the 13th day of May, 2025) Brief Case of the Prosecution:
1. The criminal law machinery was set into motion on 20.11.2012, when DD no. 31A, Ex. PW10/B was registered at PS New Usmanpur at 05:55 PM, regarding one dead body being found lying in Yamuna Khadar Jungle, Garhi Mendu, Delhi.
2. The IO SI Satbir Singh alongwith Ct. Umed Singh reached the spot i.e. near the Pipeline, Old Village Garhi Mendu, Yamuna Khadar, Delhi and found that one male dead body, aged about 20-25 years was lying in a pit. The dead body was smeared with blood and throat of the dead body was slit and was found cut with a sharp-edged weapon. One blood stained stone and one black cap was found lying next to the dead body. The blood was also found lying near the bank of the pit, where the dead body was found. Upon the personal search, one brown coloured Digitally signed by ATUL CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 3/63 ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:04:53 +0530 purse containing Rs. 100/- in cash and some visiting cards etc., were recovered. The IO made all possible efforts to get the dead body identified, however, his efforts went in vain. The crime team was called and the inspection was conducted. The main IO Inspector Arjun Singh reached the spot and the dead body was sent to GTB Hospital for preservation.
3. Upon the basis of the inspection of the dead body and scene of crime, the commission of an offence punishable u/s 302 IPC, 1860 was found out and the present case FIR, Ex. PW10/A was registered at PS New Usmanpur on 20.11.2012. After completing the investigation, IO filed the chargesheet before the Court of Ld. Metropolitan Magistrate u/s 302/201/34 IPC, 1860 against the accused persons.
4. After compliance of section 207/208 Cr.PC, 1973, the case was committed by the Court of Ld. MM before this Court on 27.02.2013. Thereafter, the charges were framed by my Ld. Predecessor on 08.03.2015 u/s 302/34 of IPC, 1860 against both the accused persons.
The accused persons pleaded not guilty and they had claimed trial.
Prosecution Evidence:
5. To prove its case, the prosecution has examined 22 (Twenty Two) witnesses and out of the said witnesses, there are 4 Public Witnesses; 2 Expert Witnesses and 16 formal witnesses including the 2 Investigating Officers: Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:05:01 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 4/63
6. Public Witnesses:-
(6.1.1) PW-1 is Ruksana and she is the mother of the deceased. She had deposed that she had five children and deceased Feroz was her only son and she was residing with her children, at her father's house. On 19.11.2012, at around 07:00 PM, while her son Feroz was having food at their house, accused Asif Ali and accused Asif Khan, who are sons of her sister-in-law and were residents of Jafrabad area, came to their house and called her son Feroz. Since, her son was having food, she informed the accused persons that Feroz would come and meet them later and the accused persons left from there.
(6.1.2) PW-1 Ruksana had further deposed that after about 15-20 minutes, her son Feroz left the house and did not return back. When it got late at night, she searched for her son and went to the place of his employment, i.e. the Garment Stitching Factory, owned by one Guddu, however, Feroz was not found there. She kept searching for her son, however, no clue about his whereabouts were found on that night.
(6.1.3) PW-1 Ruksana had further deposed that on the next morning, she went to the house of accused Asif Khan to inquire about her son and she was informed by the accused persons that they had parted with the company of deceased Feroz last night and when PW1 went to the house of accused Asif Ali, he also gave similar explanation. When she could not trace her son, at around 01:30 PM on 20.11.2012, she made a call on 100 number and informed the police about his son Feroz being missing. She continued to search him, however, he was not Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:05:06 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 5/63 traced and at around 09:00 to 09:30 PM, on 20.11.2012, she received a phone call from the police official of PS New Usmanpur and she was informed that the dead body of one boy, matching the description of her son Feroz was found lying in the Usmanpur area.
(6.1.4) PW-1 Ruksana had further deposed that she alongwith her family members reached the PS and she identified her son Feroz from the pocket purse, Ex. P-1 and handkerchief, Ex. P-2 recovered from the dead body and also from the photographs shown by the police officials on a mobile phone. Thereafter, she alongwith the police officials went to GTB Hospital Mortuary and identified the dead body of her son Feroz. She further categorically deposed that her nephew Shanu informed her at the hospital that he had seen the accused persons and one unknown boy with her son Feroz near Welcome puliya at around 08:00 to 08:15 PM on 19.11.2012. Thereafter, she suspected the involvement of the accused persons in the murder of her son.
(6.1.5) PW-1 Ruksana during her cross examination conducted by Ld. Counsel for the accused persons had deposed that Shanu (PW2) is the son of her muh-boli sister Julekha and Shanu was on visiting terms with her and her family. The accused persons were also on visiting terms with them and both the accused persons were sons of her elder sister Rehana's nanads (sister-in-laws).
(6.1.6) PW-1 Ruksana during her cross examination conducted by Ld. Counsel for the accused persons had deposed that on 19.11.2012, she had not gone to the PS to lodge any report. Furthermore, on that day Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:05:14 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 6/63 PW2 Shanu had not come to her house to inform her, rather, she had gone to his house. She further deposed that she had not called the police on 100 number, after she had visited the house of the accused persons on 20.11.2012, however, the call was made at around 01:30 PM, from the house of PW2 Shanu.
(6.1.7) PW-1 Ruksana during her cross examination conducted by Ld. Counsel for the accused persons had deposed that the distance between her house and the house of the PW2 Shanu was around 40-50 steps. PW2 Shanu was also searching her son Feroz on 19.11.2012, after she had gone to his house, however, she was not accompanying PW2 Shanu in the said search and they were both searching separately for Feroz.
(6.1.8) PW-1 Ruksana during her cross examination conducted by Ld. Counsel for the accused persons had deposed that although, she was having a mobile phone, however, she had not called the police on 100 number on 19th, 20th or 21st of November, 2012. The said call was made from the mobile phone of PW2 Shanu on 20.11.2012 at around 01:30 PM. She categorically deposed that in the said call, they had not named the accused persons and voluntarily deposed that at that time they did not seriously suspect the accused persons to have committed the murder of her son.
(6.1.9) PW-1 Ruksana during her cross examination conducted by Ld. Counsel for the accused persons had deposed that on 20.11.2012, Digitally signed by ATUL some police official from PS New Usmanpur visited her house, at around ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:05:19 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 7/63 09:00 to 09:30 PM and informed that some dead body had been found in Usmanpur area and she went to PS New Usmanpur at that very time and she was not accompanied by PW2 Shanu and her father PW9 Mohd. Matloob. She further categorically deposed that at that time, the police officials had shown her a knife, however, the clothes and the shoes of her son were not shown to her. She was further shown a purse, Ex. P-1, handkerchief, Ex. P-2 and the photographs of her dead son.
(6.2.1) PW-2 is Shanu and he is the last seen witness. He had deposed that on 19.11.2012, at around 08:00 to 08:30 PM, while he was returning back from Jafrabad and had reached Welcome pulia situated on Jafrabad road, he saw accused Asif Ali, accused Asif Khan and one unknown person with deceased Feroz and all the said four persons were walking and talking with each other. Since, he was in hurry, he did not approach them and proceeded ahead.
(6.2.2) PW-2 Shanu had further deposed that on 20.11.2012 at around 01:00 to 01:30 PM, the mother of the deceased, PW1 Ruksana came to his house and made inquiries about Feroz, as her son had not come back home since last night. He then made a call to the police on 100 number and lodged the information, Ex. PW20/A regarding the missing of Feroz. On that day itself, during the evening hours, he went to the house of the deceased and informed PW1 Ruksana that he had seen Feroz in the company of accused persons and one other unknown person on the previous day and at that time, the deceased was wearing a yellow coloured check shirt and a black coloured pant. At that time, he was informed by PW1 Ruksana that she made inquires from the accused Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:05:24 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 8/63 persons, however, they had informed her that they both parted with the company of deceased Feroz after sometime on 19.11.2012.
(6.2.3) PW-2 Shanu had further deposed that at around 09:00 to 09:30 PM on 20.11.2012, an information was received from PS New Usmanpur, while he was still at the house of PW1 Ruksana, that the dead body resembling the description of the deceased was found. He further categorically deposed that he alongwith PW1 Ruksana then went to the PS and after seeing the photographs of the dead body and the belongings of Feroz, they both identified his dead body.
(6.2.4) PW-2 Shanu had further deposed that on 21.11.2012, at about 04:30 PM, he received a call from IO PW19 Inspector Arjun Singh and accordingly he reached PS Jafrabad and he informed the IO that he is aware of the addresses of the accused persons and thereafter, he alongwith the IO and other police staff proceeded to the house of accused persons, however, they were not found present there. On the same day, at around 06:00 PM, he spotted both the accused persons near Tent wala School, 66 Foota Road, Jafrabad and both the accused persons were apprehended and arrested from there. The IO then recorded their separate disclosure statements and in pursuance of the disclosure statement of accused Asif Ali, at his pointing out, the knife, Ex. P-1A (emphasis supplied) (although during his examination-in-chief conducted on 22.11.2013, the knife was exhibited as Ex. P-1 inadvertently by the Ld. Predecessor of this Court, since, the purse of the deceased was already exhibited as Ex. P-1 in the testimony of PW1 Ruksana on 03.07.2013), was recovered from the bushes located near the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:05:32 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 9/63 Yamuna Khadar.
(6.2.5) PW-2 Shanu was shown the clothes i.e. black coloured pant alongwith leather belt, shirt, banyan and underwear, which were worn by the deceased Feroz at the time of his death. Although, he correctly identified the pant, Ex. P-2A (emphasis supplied) (although during his examination-in-chief conducted on 22.11.2013, the pant was exhibited as Ex. P-2 inadvertently by the Ld. Predecessor of this Court, since, the handkerchief of the deceased was already exhibited as Ex. P-2 in the testimony of PW1 Ruksana on 03.07.2013), however, he failed to identified the shirt, since, the prosecution had wrongly shown him the case property of some other case, wherein, the same doctor had conducted the postmortem of some other deceased. Thereafter, the correct shirt, Ex. P-3 of the deceased was shown to him and he correctly identified the same as being worn by the deceased, when he had last seen him with the accused persons.
(6.2.6) PW-2 Shanu during his cross examination conducted by Ld. Counsel for the accused persons had deposed that mobile no. 9899424258 belonged to him, however, he did not knew whether the IO had collected the CDR and location ID chart of the said mobile phone, to ascertain his presence at Jafrabad pulia on 19.11.2012.
(6.2.7) PW-2 Shanu during his cross examination conducted by Ld. Counsel for the accused persons had deposed that on 20.11.2012, he came to know that Feroz had not reached his home, after PW1 Ruksana informed him, however, he had not gone to the police station to lodge Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:05:40 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 10/63 +0530 any report and had only made the call on 100 number. He categorically deposed that in the said 100 number call, he had not mentioned the fact that he had seen deceased Feroz in the company of the accused persons on 19.11.2012 and voluntarily deposed that he had not suspected their involvement by that time.
(6.2.8) PW-2 Shanu during his cross examination conducted by Ld. Counsel for the accused persons had deposed that he had not informed the PCR officials about the fact that he had seen the deceased in the company of the accused persons on 19.11.2012, at around 08:00 to 08:30 PM.
(6.2.9) PW-2 Shanu during his cross examination conducted by Ld. Counsel for the accused persons had deposed that on 20.11.2012, he alongwith PW9 Mohd. Matloob (maternal grand father of the deceased) went to PS New Usmanpur, since, while he was passing through the gali where the house of the deceased was situated, there was a talk going on that the dead body of the deceased was found and accordingly, both him and PW9 Matloob went to the PS on a motorcycle. He categorically deposed that even at that time, he did not inform the police officials that he had seen Feroz in the company of the accused persons on 19.11.2012.
(6.2.10) PW-2 Shanu during his cross examination conducted by Ld. Counsel for the accused persons had deposed that on 21.11.2012, at around 09:30 to 10:00 AM, he went to the GTB Hospital alongwith PW9 Mohd. Matloob. Even at that time, he did not inform the police officials about seeing the deceased with the accused persons and the said fact was Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:05:46 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 11/63 +0530 given after his statement was recorded post the last rites of the deceased.
(6.2.11) PW-2 Shanu during his cross examination conducted by Ld. Counsel for the accused persons had deposed that on 21.11.2012, his statement regarding the identification of the dead body was recorded, however, he had not stated any fact regarding the accused persons being last seen with the deceased on 19.11.2012 at around 08:00 PM.
(6.2.12) PW-2 Shanu during his cross examination conducted by Ld. Counsel for the accused persons had deposed that his statement was recorded by the IO for the first time on 21.11.2012, when the accused persons were apprehended from near the Tent Wala School. He further categorically deposed that although, the said spot was situated in a very busy public place, the IO had not joined any other public person in the proceedings qua the arrest and recovery of the alleged weapon of the offence.
(6.3.1) PW-9 is Mohd. Matloob and he is the maternal grand father of the deceased. He had deposed that on 21.11.2012, he alongwith PW2 Shanu went to the mortuary of GTB Hospital and identified the dead body of his grand son Feroz, who had gone missing on 19.11.2012 at about 08:00 PM. His identification statement, Ex. PW9/A was recorded and after the postmortem, the dead body was handed over to him and PW2 Shanu, vide memo, Ex. PW2/B. (6.4.1) PW-4 is Seema and she is the informant/caller who called the police on 100 number. She had deposed that on 20.11.2012, while Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:05:52 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 12/63 +0530 she was standing at her tea shop, situated opposite to Aggarwal Sweets, near Khajuri Chowk, some children came to her shop and informed her that one female dead body was lying near water pipe line in a mud pit. She called the police on 100 number from her mobile phone no. 9718901596 at around 05:30 to 06:00 PM.
7. Expert Witnesses:
(7.1.1) PW-20A is Ms. Manisha Upadhyaya, Assistant Director (Biology), FSL Rohini, Delhi (her serial number is hereby changed to PW20A (emphasis supplied), since, the Ld. Predecessor of this Court had inadvertently recorded her testimony as PW20 on 02.06.2023, in spite of the fact that the testimony of another witness namely SI Sandeep Kumar was already recorded as PW20 on 11.03.2019) . She had deposed that she had prepared the FSL reports, Ex. PW19/F and Ex.PW19/G, wherein, the blood was detected on the earth alongwith vegetative material, big piece of stone, dirty brown gauze cloth piece, the clothes of the deceased, few dirty nail clippings and the knife. Furthermore, on the piece of the stone, blood stained gauze, clothes of the deceased (except for pants with belt) and knife, the blood grouping was found to be of 'B Group' i.e. the blood group of the deceased.
(7.2.1) PW-16 is Dr. Neha Gupta and she is the expert witness, who had conducted the postmortem of the dead body of the deceased. She had deposed that on 21.11.2012, she was posted in GTB hospital in Deptt. Of Forensic Medicine and on that day upon the request of the IO Inspector Arjun Singh, she had conducted the postmortem examination on the dead Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:05:58 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 13/63 body of Firoz S/o Mohd. Fahrooq, which was found wearing a yellow coloured shirt, a black T-shirt, a blue jeans, white sport shoes, blue socks and light blue underwear.
(7.2.2) PW-16 Dr. Neha Gupta had further deposed that upon examination of the dead body, she found following external antemortem injuries:
1. Lacerated wound 3.5 x 0.2x 0.2 cm present obliquely over forehead on right side, 3 cm above eyebrow, 7 cm from mid line.
2. Lacerated wound present horizontally over right eyebrow of size 3x0.2x0.5 cm, 5 cm from mid line.
3. Lacerated wound of size 0.5 x 0.2 x0.6 cms present over right side forehead, 5 cms above eye brow and 4 cms from mid line.
4. Incised wound of size 1x0.2x0.4 cm present right side forehead, 4 cm above eyebrow and 5 cm from mid line.
5. Incised wound of size 05 x0.2 x0.2 cm present over right side forehead, 2 cm above eyebrow and 5 cm from midline.
6. Multiple reddish scratch abrasions present over right side forehead in an area of 4 x4 cm, 2 cm above glabella and 0.1 cm from mid line ranging in size from 0.5 x 0.1 cm to 1 x0.1 cm. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:06:07 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 14/63
7. Reddish scratch abrasion 3.4 x0.2 cm present vertically over right side face, 6 cm from mid line and 5 cm below right eye.
8. Blueish contusion 2 x2 cm present over right upper eyelid, 1.5 cm from mid line.
9. Multiple reddish abrasion in an area of 4 x3 cm present over right side face, 5 cm from mid line just below right eyebrow.
10. Reddish abrasion 9 x 8 cm present over left side face, 5 cm from mid line and just below left eyebrow.
11. Incised stab wound present vertically over left side face of size 1.5 x 0.2 x 2 cm, 1 cm below eyebrow and 7 cm from mid line, upper angle sharp. No major vessel cut.
12. Incised wound 1 x0.2 x0.2 cm present over left upper eyelid, 5.5 cm from mid line, 0.7 cm below eye brow.
13. Incised wound, 1.5 x0.2 x 0.3 cm present over left side face just lateral to left ala of nose.
14. Multiple reddish scratch abrasion present in an area of 19 x 6 cm over from and both side of neck, 3 cm above sternal notch, ranging in size from 4 x 0.1 cm to 12 x 0.1 cm.
Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
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15. Multiple reddish abrasion over chest in an area of 11 x 4 cm in m d line, just below sternal notch ranging in size from 1 x 0.5 cm to 3 x 1 cm.
16. Reddish abrasion 7 x 4 cm, present over upper right chest, 10 cm lateral to mid line, 6 cm below clavicle.
17. Multiple reddish scratch abrasion present over left lateral and left posterior aspect of neck, 12 cm from mid line and 6 cm below left mastoid ranging in size from 1 x 0.1 cm to 10 x 0.1 cm.
18. Incised wound of size 4 x 0.2 x 0.2 cm present over right chest horizontally placed, 17 cm below sternal notch just lateral to mid line, with tailing medially.
19. Incised wound of size 1 x 0.2 x 0.2 cm present over left chest horizontally present, 9 cm from mid line, 9 cm below nipple, tailing medially.
20. Incised wound of size 1.0 x 0.2 x 0.2 cm present over left chest, 15 cm from mid line, 20 cm below sternal notch.
21. Multiple reddish scratch abrasions, 3 in number, present in an area of 6 x 5 cm, over right side chest, 14 cm below nipple and 6 cm from mid line ranging in size from 1 x 0.2 cm to 2 x 0.2 cm. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:06:15 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 16/63
22. Reddish abrasion, 2.5 x 2 cm, present over left ramus of mandible, 7 cm lateral to mid line.
23. Incised wound 1.5 x 0.2 x 0.5 cm, present vertically over dorsal aspect of left thumb, 7 cm below wrist joint.
24. Reddish scratch abrasion 1 x 0.2 cm present over left radial styloid process.
25. Multiple reddish abrasion present in an area of 3 x 3 cm on base of left dorsal thumb, 2 cm below wrist joint ranging in size fro m 0.5 x 0.5 cm to 1 x 1 cm.
26. Multiple reddish abrasion in an area of 5 x 2 cm present on left lateral chest 13 cm from mid line, 15 cm below Axilla.
27. Reddish scratch abrasion 2 in number, parallel to each other, each measuring 2.7 x 0.1 cm present over abdomen in mid line just above umbilicus.
28. Incised wound 1.5 x 0.2 x 0.3 cm present horizontally over parmer aspect of left little finger over the middle phalanyx.
29. Incised wound 3x 0.2 x 0.2 cm, present vertically over first web of right hand between thumb and index finger, 6 cm below wrist joint.
Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:06:19 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 17/63
30. Incised cut throat wound of size 12.5 x 0.2x 3.5 cm, present horizontally over front of neck, 5 cm below chin and mid line, the left end is 2 cm below left angle of mandible and on right side the end of wound is 2.3 cm below right angle of mandible.
The wound shows tailing towards right side for a distance of 2 cms. The wound goes cutting the carotid sheath structures including carotid artery, internal jugalar vein and vagus on both sides, trachea and esophagus, thyroid cartrilage shows clean cut margins.
31. Reddish abrasion 1.5 x 1 cm present over right upper back, 3 cm below shoulder talk and 10 cm from mid line.
(7.2.3) PW-16 Dr. Neha Gupta had further deposed that on internal examination, she found the following:
1. Scalp: Extra vasation of blood present over both frontal region.
2. Skull: No abnormality detected (NAD).
3. Brain: 1360 gms, pale, subdural hemorrhage was found present over both cerebral hemisphere, subarachnoid hemorrhage was found present over both frontal and parietal lobes.
4. Neck: Injury no. 30 i.e. incised cut throat wound of size Digitally 12.5x0.2x3.5 cm was found present horizontally over the front of signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:06:24 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 18/63 the neck.
5. All the organs were found to be pale, soft and flabby. The stomach was full of semi digested food.
(7.2.4) PW-16 Dr. Neha Gupta had further deposed that the opinion as to the time since death was about "1 1⁄2 days". The cause of death was "haemorrhagic shock as a result of ante mortem injury to neck and its structures produced by sharp edged weapon". She further opined that, injury no. 1, 2 and 30 were sufficient to cause death in ordinary cause of nature, both independently and collectively.
(7.2.5) PW-16 Dr. Neha Gupta had further deposed that she sealed the pulanda containing clothes, blood on gauge, nail clippings of the deceased and were sealed with the seal of "NG" and handed over to the IO along-with the sample seals. Her detailed postmortem report was exhibited as Ex. PW 16/A. (7.2.6) PW-16 Dr. Neha Gupta had further deposed that on 05.01.2013, at the request of the IO, she had given subsequent opinion, Ex. PW16/B on the injuries found on the dead body vis-a-vis the weapon of offence, Ex. P-1A (emphasis supplied). On examination of the knife and after going through the postmortem report, she was of the opinion that injury no. 4, 5, 6, 7, 12, 13, 14, 17, 18, 19, 20, 21, 23, 24, 27, 28 and 30 were possible by the weapon, Ex. P-1A. She had also correctly identified the knife, Ex. P-1A at the time of her examination-in-chief.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.05.13
10:06:30
+0530
CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 19/63
8. Formal Witnesses:-
(8.1.1) Through the testimony of PW10 HC Mukesh Kumar, who
was the Duty Officer posted at PS New Usmanpur, the prosecution has brought on record the DD entry no. 41A, and the endorsement made by him on the rukka, the FIR, Ex. PW10/A and the DD No. 31A, Ex. PW10/B. (8.2.1) PW-3 is Inspector Mukesh Jain and he is the Droughtsman and during his testimony he had brought on record the scaled site plan, Ex. PW3/A, which was prepared by him on 12.01.2013, on the basis of rough notes and measurements of the spot taken on 11.01.2013.
(8.3.1) PW-14 is SI Prem Singh and he was the Channel Operator in PCR HQ and he had received the PCR call made by the caller from mobile number 9718901596, at 05:41 PM on 20.11.2012 regarding one dead body of a male being found at Khadar Garhi Jungle. The PCR form, Ex. PW14/A and the certificate u/s 65-B of Indian Evidence Act, 1872, Ex. PW14/B was brought on record.
(8.4.1) The crime team report, Ex. PW15/A was brought on record through the testimony of In-charge Mobile Crime Team, PW15 Inspector Ravi Kumar and the 12 photographs of the crime scene, Ex. PW13/A-1 to Ex. PW13/A-12 alongwith their negatives, Ex. PW13/B-1 to Ex. PW13/B-12 were brought on record through the testimony of PW13 Ct.
Sanjay Kumar (Photographer Crime Team). Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.05.13
10:06:35
+0530
CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 20/63
(8.5.1) PW-16A is Ct. Ram Kumar Tomar and he is the Special
Messenger, who had delivered the copy of the FIR to the house of Joint CP, Addl. DCP and Ld. Ilaka MM.
(8.6.1) PW-20 is SI Sandeep Kumar and he is a DD Writer and he had brought on record the DD No. 14A, Ex. PW20/A, registered at PS Welcome, regarding the missing PCR call pertaining to the deceased Feroz.
(8.7.1) PW-11 is ASI Om Prakash and he was the Inquiry Officer qua DD No. 14A, Ex. PW20/A. He had deposed that 20.11.2012, after receiving the information at about 01:57 PM, he reached the house of the deceased, however, no one was found present there. He was informed by one the neighbours that PW1 Ruksana had gone searching for her son. On the same day, at 07:00 PM, PW1 came to PS Welcome and informed him about the missing of her son since 19.11.2012 at 08:00 PM and she also provided the description and photograph of the deceased. PW11 then flashed the message about the missing boy and later he came to know that within the jurisdiction of PS New Usmanpur, a dead body of similar description was found. Thereafter, he conveyed the said message to PW1 Ruksana and asked her to go to PS New Usmanpur for the identification of the dead body. Later on, he was informed that she had identified the dead body of the deceased and thereafter, he recorded DD No. 25A dated 21.11.2012 to the said effect.
(8.8.1) PW-7 is Ct. Balbir Singh and he had deposed that on
15.01.2013, upon the directions of the IO, he had collected five sealed Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.05.13
10:06:39
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CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 21/63
pullandas sealed with the seal of "AS" and four sealed pullandas sealed with the seal of "NG" alongwith FSL Form from the then MHCM HC Raj Kumar vide RC No. 15/2021 for depositing the same at FSL Rohini. He then deposited the said sealed parcels and sample seal with FSL Rohini and handed over the acknowledgment and receipt of copy of RC to the MHCM and so long as the exhibits remained in his possession, they were not tampered.
(8.9.1) PW-6 is HC Tarsem Lal and he had deposed that on 05.01.2013, upon the instructions of the IO he obtained the request for subsequent opinion of the weapon of the offence and obtained the sealed pullanda with the seal of "AS" from MHCM HC Raj Kumar vide RC No. 12/2021 and took the same to GTB Hospital and after depositing the same, he handed over the acknowledgment slip and copy of RC, Mark PW6/1, to the MHCM.
(8.10.1) PW-12 is HC Raj Kumar and he is the then MHCM. During his testimony the relevant entries in register no. 19 and 21 were brought on record as Ex. PW12/A and Ex. PW12/B, respectively. He had categorically deposed that on 20.11.2012, the IO deposited four pullandas containing one purse and one handkerchief. He further deposed that on 21.11.2012, the IO deposited one knife and personal search articles of the accused persons.
(8.10.2) PW-12 HC Raj Kumar during his cross examination conducted by Ld. Counsel for the accused persons had deposed that the Digitally signed by ATUL pullandas were deposited by the IO on both 20.11.2012 and 21.11.2012 ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:06:44 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 22/63 during the day time, prior to 03:00 PM/04:00 PM.
(8.11.1) Through the testimony of PW18 Retd. SI Satbir Singh (the Inquiry Officer/1st IO), PW-8 Ct. Anil and PW-17 Ct. Umed Singh, the prosecution has sought to prove that DD No. 31A, Ex. PW10/B was marked to PW18 and the same was handed over to PW18 by PW17, after collecting the same from the DO. Thereafter, PW18 and PW17 reached the spot and found the dead body of the deceased lying there in a pit. In the meanwhile, PW19 ACP Arjun Singh and PW8 reached there and the crime team was called to the spot. The identity of the dead body could not be established, thereafter, PW18 took the personal search of the dead body and found the purse, Ex. P-1 and handkerchief, Ex. P-2. Thereafter, PW18 prepared the rukka, Ex. PW18/A on the basis of the DD No. 31A, Ex. PW13/B. The further investigation was marked after registration of the FIR to PW19 IO ACP Arjun Singh.
(8.11.2) PW-8 Ct. Anil during his cross examination conducted by Ld. Counsel for the accused persons had deposed that they had reached the spot at around 09:00 PM and no public person was present at the spot and seizure of any article/exhibit was effected in his presence, since, he had proceeded to take the body to the mortuary of GTB Hospital.
(8.11.3) PW-8 Ct. Anil during his cross examination conducted by Ld. Counsel for the accused persons had deposed that he had seen the knife somewhere lying in the bushes. He further voluntarily deposed that the said knife appeared to be a vegetable cutting knife. He again said that he did not recall if the knife was there or not.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.05.13
10:06:49
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(8.11.4) PW-17 Ct. Umed Singh during his cross examination
conducted by Ld. Counsel for the accused persons had deposed that the time of recording of DD No. 31A is 05:55 PM, however, they reached at the place where the dead body was found lying at about 05:15 PM.
(8.11.5) PW-17 Ct. Umed Singh during his cross examination conducted by Ld. Counsel for the accused persons had deposed that the interrogation from the accused persons was done inside the Tent Wala School, after getting the gate opened through the Chowkidar, however, the said Chowkidar was not made a witness of the arrest memos and disclosure statements of the accused persons. He further categorically deposed that no notice u/s 160 Cr.PC, 1973 was given to the Chowkidar by the IO to join the investigation.
(8.11.6) PW-17 Ct. Umed Singh during his cross examination conducted by Ld. Counsel for the accused persons had deposed that the writing work was done by the IO at the place of recovery of the knife and the road light was coming and reflecting to the place of recovery. The height of the bushes were about 2 feet and the IO was having a torch with him. The IO lifted the knife at the instance of the accused and it was kitchen knife. He further deposed that they remained there till 09:30 PM and the IO recorded his statement and the statements of the police officials and PW2 Shanu at the said place itself. He was contradicted from his statement recorded u/s 161 Cr.PC, Ex. PW17/DA, wherein, it was recorded that the statement was recorded by the IO at the PS, after returning from the place of recovery of knife. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:06:55 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 24/63 (8.11.7) PW-17 Ct. Umed Singh during his cross examination conducted by Ld. Counsel for the accused persons had deposed that after the use of the seal of "AS", the same was handed over to him by the IO. He had admitted that in his earlier statement recorded u/s 161 Cr.PC, Ex. PW17/DA, it was mentioned that after the use, the IO had handed over th seal to him.
(8.11.8) PW-18 Retd. SI Satbir Singh during his cross examination conducted by Ld. Counsel for the accused persons had deposed that they remained at the spot till 11:15 PM and one police official was having a search light. He further categorically deposed that they had throughly checked the area of the radius of about 150 meters and there was no electricity pole, adjacent to the 150 meters radius from the place where the dead body was recovered.
(8.12.1) PW-19 is ACP Arjun Singh and he is the main Investigating Officer of the present case. He had deposed that on 20.11.2012, after DD No. 31A was registered and marked to SI Satbir Singh, he was also informed about the information regarding the dead body being found in Yamuna Khadar area. He reached the spot and met PW18 SI Satbir and PW17 Ct. Umed Singh at the spot near the pipe line, where the dead body was lying in a pit. He called the crime team and got the inspection done. The personal search of the dead body was already conducted by PW18 SI Satbir Singh and the purse, Ex. P-1 and the handkerchief, Ex. P-2 were handed over to him by PW18 SI Satbir Singh. He got the dead Digitally body removed to GTB Hospital Mortuary through PW8 Ct. Anil. After signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:07:03 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 25/63 the registration of the FIR, PW17 Ct. Umed Singh returned back to the spot and handed over the copy of the FIR and the original rukka to him, since, the further investigation was marked to him. He took the purse and handkerchief in his possession vide seizure memo, Ex. PW17/A and deposited the case properties in the Malkhana.
(8.12.2) PW-19 ACP Arjun Singh had further deposed that on the same day he had flashed the wireless message regarding the recovery of the dead body and on the same day, he came to know about one DD entry being lodged at PS Welcome regarding missing of one 19 year old girl. The police officials of PS Welcome had sent PW1 Ruksana to PS New Usmanpur and she identified the dead body from the photographs clicked by PW19 and from the purse, Ex. P-1 and handkerchief, Ex. P-2 recovered from the personal search of the dead body.
(8.12.3) PW-19 ACP Arjun Singh had further deposed that on 21.11.2012, he recorded the statements qua the identification of the dead body, Ex. PW2/A and Ex. PW9/A and thereafter, filled the inquest papers, Ex. PW19/B and Form No. 25.35(1)(b), Ex. PW19/C and got the postmortem conducted. Thereafter, the dead body was handed over to the relatives of the deceased vide handing over memo, Ex. PW2/B. On the same day, PW8 Ct. Anil handed over the sealed envelops alongwith the sample seals collected from GTB Hospital to him and he took the same into possession vide memo, Ex. PW8/A. Thereafter, he deposited the case properties in the malkhana.
(8.12.4) PW-19 ACP Arjun Singh had further deposed that on Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 26/63 2025.05.13 10:07:09 +0530 21.11.2012 itself, he left the PS in search the accused persons, since, they were last seen with the deceased. He called PW1 to PS Jafrabad and constituted a raiding party including HC Nathu Ram, PW17 Ct. Umed Singh and Ct. Devender at PS Jafrabad. Thereafter, they all went to the house of the accused persons, however, they could not be traced.
Thereafter, while searching in the nearby area, the accused persons were found at Tent Wala School, Jafrabad and were pointed out and identified by PW2 Shanu. Thereafter, they were both interrogated and arrested by PW9. Thereafter, accused Asif Ali led the police party to the bushes at Yamuna Khadar, near pipeline and got recovered the knife, Ex. P-1A, which was stained with blood and mud. The same was sealed by PW19 with his seal of "AS" and was seized by him vide seizure memo, Ex. PW2/J. Thereafter, the accused persons led the police party to the place of occurrence and he prepared the pointing out memos at their instance. The accused persons also took the police party to Garbage Khatta at Jafarabad, for recovery of their blood stained clothes, since, as per their disclosure statement, they had thrown the same in the garbage. However, no clothes could be recovered as the garbage was already moved from the said place.
(8.12.5) PW-19 ACP Arjun Singh had further deposed that on 05.01.2013, he sent the parcel containing the weapon of the offence, knife, Ex. P-1A to GTB Hospital through PW6 HC Tarsem Lal, alongwith the letter seeking subsequent opinion. He collected the subsequent opinion, Ex. PW16/B and on 11.01.2013, got the spot inspected by the Droughtsman and received the scaled site plan, Ex.
Digitally
signed by
PW3/A from him. ATUL
ATUL
AHLAWAT
AHLAWAT Date:
2025.05.13
10:07:15
+0530
CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 27/63 (8.12.6) PW-19 ACP Arjun Singh had further deposed that on 15.01.2013, he sent the exhibits to FSL Rohini through PW7 Ct. Balbir Singh. Thereafter, he collected the PCR Form, Ex. PW14/A and collected the photographs from the crime team and also collected the FSL reports, Ex. PW19/F and Ex. PW19/G, respectively. Thereafter, he completed the investigation and filed the chargesheet. He identified the case properties and the accused persons.
(8.12.7) PW-19 ACP Arjun Singh during his cross examination conducted by Ld. Counsel for the accused persons had deposed that he did not remember as to whom he had handed over his seal "AS" after the same was used in sealing the pullandas of the present case.
(8.12.8) PW-19 ACP Arjun Singh during his cross examination conducted by Ld. Counsel for the accused persons had deposed that PW2 Shanu had duly stated in his statements u/s 161 Cr.PC, 1973, Ex. PW19/DA that the deceased was last seen by PW2 Shanu with three persons, including the two accused and one other person. He categorically deposed that during the investigation the identity of the third person namely Irshad came on record, however, he did not get the TIP of the said person conducted through PW2 Shanu. He had given the explanation for not getting the TIP of the said Irshad conducted, since, it had come during the investigation that on 19.12.2011, at about 07:30 PM, when deceased Feroz came out of his house, the accused persons invited him to consume liquor and thereafter, they all went to Khajuri Digitally signed by Chowk, where accused Asif Ali had purchased the liquor. Since, Irshad ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:07:20 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 28/63 did not want to have the said liquor, he went back to his home. Furthermore, PW19 recorded the interrogation report of Irshad, however, the same was not filed alongwith the chargesheet.
(8.12.9) PW-19 ACP Arjun Singh during his cross examination conducted by Ld. Counsel for the accused persons had deposed that although it had come in the disclosure statements of the accused persons that deceased Feroz had consumed half a bottle of liquor, however, the viscera samples were not sent for forensic analysis and no such report could be brought on record.
(8.12.10) PW-19 ACP Arjun Singh during his cross examination conducted by Ld. Counsel for the accused persons had deposed that it was correct that at the place where the dead body was found and the place where the knife was recovered were both situated in an area, where there was no artificial light after the sunset and it used to be completely dark. He further categorically deposed that he had not prepared the site plan of the place of alleged recovery of the weapon. He further specifically deposed that the knife was recovered from the bushes which were around 3-4 feet in height and upon pointing out of accused Asif Ali, he himself picked up the said knife, Ex. P-1A.
Plea of Accused Persons:-
9. After completion of prosecution evidence, PE was closed. The statements of the accused Asif Khan and Asif Ali were recorded under ATUL Section 313 Cr.P.C. 1973, in which they had pleaded innocence. AHLAWAT Digitally signed by ATUL AHLAWAT Date: 2025.05.13 10:07:24 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 29/63
10. The accused persons chose to lead Defense Evidence and had examined 1 (One) witness:
(10.1.1) DW-1 is Mohd. Gulzar Khan and he is the alibi witness and he had deposed that both the accused persons are related to him, being sons of his maternal aunts (mausis). He further deposed that even deceased Feroz was related to him, being son of his maternal uncle (mama). He categorically deposed that on 19.11.2012, both the accused persons came to his house situated at Kabir Nagar, Shahdra at 06:00 PM and they left his house at around 10:00 PM.
(10.1.2) DW-1 Mohd. Gulzar Khan had further deposed that on 20.11.2012, there was a function at his house and the accused persons came to his house at about 04:00 to 05:00 PM and were accompanied by their respective parents. At about 01:00 to 01:30 AM on 21.11.2012, the police officers from PS New Usmanpur came to his house and told them that the accused persons were required for some inquiry and they had to take them to the PS. When DW-1 and others inquired as to the reason for taking them alongwith them, the police officers informed them that the accused persons would be made free to go in couple of hours.
(10.1.3) DW-1 Mohd. Gulzar Khan during his cross examination conducted by Ld. Addl. PP for the State had deposed that he had not given in writing to any police officer or any other authority till date that the accused persons were present at his house on 19.11.2012, from 06:00 Digitally PM to 10:00 PM. signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:07:31 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 30/63 (10.1.4) DW-1 Mohd. Gulzar Khan during his cross examination conducted by Ld. Addl. PP for the State had deposed that he did not have any photographs or video recording of the alleged function which took place at his house on 20.11.2012. He further deposed that he or anyone else from his family did not made any call to the police on 100 number, to inform that the police officials from PS New Usmanpur had come to their house and taken the accused persons alongwith them.
(10.1.5) DW-1 Mohd. Gulzar Khan during his cross examination conducted by Ld. Addl. PP for the State had categorically deposed that he was having cordial relations with the accused persons and went on to voluntarily depose that he had cordial relations with the deceased as well.
11. I have heard the arguments advanced by Sh. Kamal Akhter, Ld. Additional PP for the State and Sh. Kapil Singhal, Ld. Counsel for the accused persons. I have minutely gone through the evidence brought on record and the material aspects of the case.
Submissions made on behalf of the State:
12. It has been argued by the Ld. Addl. PP for the State that the prosecution has proved beyond reasonable doubt that on the intervening night of 19/20.11.2012, between 08:30 PM to early morning hours, accused persons in furtherance of their common intentions, shared with each other committed the murder of deceased Feroz by assaulting him Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:07:36 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 31/63 with a knife and caused as many as 30 injuries on the person of the deceased. The injuries mentioned at serial no. 1, 2 and 30 of the postmortem report, Ex. PW16/A were sufficient independently and cumulatively in the ordinary course of nature to cause death. Therefore, both the accused persons have committed the offence punishable u/s 302/34 IPC, 1860.
13. It is further submitted by Ld. Addl. PP for the State that through the testimonies of PW1 Ruksana (mother of the deceased) and the last seen witness, PW2 Shanu, the prosecution has been successfully able to establish beyond reasonable doubt that on 19.11.2012 at around 07:00 PM, while deceased Feroz was present at his home and was having dinner, the accused persons came to his house and called upon him to come out. Since, the deceased was having dinner, PW1 Ruksana told them that he would come and see them letter. Thereafter, at around 07:15 to 07:20 PM, deceased left his house to meet the accused persons and he never came back. The deceased was then last seen at around 08:00 to 08:30 PM, at Welcome Pulia, Jafrabad Road, by PW2 Shanu and at that time, he was with the accused persons. Thereafter, the whereabouts of the deceased were not known and his dead body was later found on the next day, lying in a mud pit at Yamuna Khadar area near Old Garhi Mendu village.
14. It is further submitted by the Ld. Addl. PP for the state that the knife Ex. P-1A was duly recovered through the accused Asif Ali and it was correctly identified by independent witness PW2 Shanu and other formal Digitally signed by ATUL witnesses and therefore, the prosecution has been able to clearly ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:07:51 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 32/63 established the crucial link between the offence in question and the role played by the accused persons.
15. It is further submitted by Ld. Addl. PP for the State that the testimonies of the mother of the deceased, PW1 Ruksana and the last seen witness, PW2 Shanu were duly corroborated with the medical evidence i.e. the postmortem report, Ex. PW16/A and the subsequent opinion qua the weapon of the offence, Ex. P-1A. The recovery of the said weapon of offence was duly established through the testimony of PW2 Shanu and other material formal witnesses, who had taken part in the arrest and recovery proceedings.
16. It is further submitted by the Ld. Addl. PP for the state that from the FSL results, Ex. PW19/F and Ex. PW19/G, the prosecution has established that the blood of the deceased was found on the knife, Ex.
P-1A, since, the same blood group 'B' pertaining to the deceased was detected on the said weapon. Furthermore, the blood of the deceased was also found on the stone, the clothes of the deceased and other earth control, recovered from the scene of crime. Therefore, another essential link of the prosecution story had been fully established in the present case.
17. It is further submitted by the Ld. Addl. PP for the state that the identity of the accused persons was fully established through the testimony of PW1 Ruksana, PW2 Shanu and other formal prosecution witnesses. Therefore, the prosecution has been able to prove the case Digitally signed by beyond reasonable doubt that the accused persons had committed the ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:07:56 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 33/63 murder of Feroz. Therefore, they had both committed the offence punishable u/s 302/34 IPC, 1860.
18. It is further submitted by the Ld. Addl. PP for the state that the defense taken by the accused persons, that they were not present at the scene of occurrence, at the time of the incident, is not established through the testimony of DW-1 Mohd. Gulzar Khan, since, the plea of alibi flows from section 11 of the Indian Evidence Act, 1872 and the standard of proof, as enshrined u/s 103 of the Indian Evidence Act, 1872 was not met by the defense in the present case. The sole defense witness for the plea of alibi, DW-1 Mohd. Gulzar Khan is not a reliable witness and his entire testimony was rendered highly doubtful in view of the detailed cross examination conducted on behalf of the State. Since, the accused persons had taken the said plea of alibi, it was up to them to prove it, which they had miserably failed in the present case. The State is relying upon the decision of the Hon'ble Supreme Court of India in "State of Haryana Vs. Sher Singh" AIR 1981 SC 1021.
Submissions made on behalf of the Accused Persons:
19. It is submitted by the Ld. Counsel for the accused persons that the entire case of the prosecution is relying upon circumstantial evidence, since, there was no eye witness of the incident and there was no direct evidence to establish the case of the prosecution. The backbone of the story put forth by the prosecution was the testimony of the last seen witness PW2 Shanu, wherein, he had allegedly seen the deceased Feroz with the accused persons on 19.11.2012, at around 08:00 to 08:30 PM Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:08:01 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 34/63 near Welcome pulia, Jafrabad. However, the recovery of the dead body is at 05:30 PM on the next day i.e. 20.11.2012 and the time gap of around 20-21 hours had rendered the said last seen testimony, non est in law. Furthermore, considering the inherent contradictions and inconsistencies in the testimony of PW2 Shanu, the entire last seen testimony has been rendered inconsequential.
20. It is submitted by the Ld. Counsel for the accused persons that there are serious contradictions in the testimony of the mother of the deceased, PW1 Ruksana and the other witnesses, who had taken part in the arrest and recovery proceedings, such as PW2 Shanu, PW8 Ct. Anil and IO PW19 ACP Arjun Singh regarding the recovery of the alleged weapon of the offence. Furthermore, even the testimony of the MHCM, PW12 HC Raj Kumar is running counter to the case of the prosecution regarding the timeline of the recovery of the said knife and its deposit with the malkhana. Therefore, the entire recovery proceedings are tainted and the accused persons cannot be convicted solely on the basis of said recovery proceedings.
21. It is submitted by the Ld. Counsel for the accused persons that the entire investigation conducted by the IO was inherently faulty and the possibility of the 3rd person, who was allegedly last seen by PW2 Shanu with the deceased Feroz, alongwith the accused persons cannot be ruled out. The IO chose not to get the TIP of the said person namely Irshad conducted through PW2 Shanu and chose not to file the interrogation report of the said suspect alongwith the chargesheet. Therefore, the possibility of the said person or anyone else being involved in the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:08:18 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 35/63 +0530 offence in question cannot be ruled out.
22. It is submitted by the Ld. Counsel for the accused persons that the possibility of tampering with the pullanda containing the alleged weapon of the offence i.e. the knife, Ex. P-1A cannot be ruled out, since, there is an unexplained and inordinate delay of over 55 days in depositing the same before FSL Rohini for forensic examination. Furthermore, there are serious doubts regarding the IO not handing over the seal to any independent witness, after the alleged pullanda being sealed by the IO. Furthermore, as per the testimony of the mother of the deceased, PW1 Ruksana, she was already shown the knife at the PS on 20.11.2012, i.e. one day prior to the date of alleged recovery of the knife on 21.11.2012.
23. It is submitted by the Ld. Counsel for the accused persons that the prosecution could not bring even a single shred of evidence to establish the motive to the accused persons in committing the offence in question. Since, the entire case of the prosecution is based upon circumstantial evidence and since, there was no motive assigned to the accused persons, the benefit of the same must go to the accused persons.
24. It is submitted by the Ld. Counsel for the accused persons that the defense evidence brought on record by the accused persons relating to the plea of alibi cannot be ignored and equal weightage must be given to the said testimony. Through the categorical testimony of DW-1 Mohd. Gulzar Khan, the defense has been able to establish the alibi and that the accused persons were not present where the alleged last seen witness Digitally PW2 Shanu had seen them to be with the deceased, prior to the incident signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:08:24 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 36/63 in question. Therefore, the accused persons are liable to be acquitted for committing the alleged offence in question.
Case Laws & Relevant Law:
25. It is trite law that the accused persons can be convicted on the basis of credible evidence brought on record and the appreciation of the said evidence must be done in correct and true perspective manner and in the natural course of events, what would have been occurred. Appreciation of evidence beyond reasonable doubt does not mean that it should be assessed beyond any iota of doubt. Beyond Reasonable Doubt means that the prosecution is required to place evidence at a higher degree of preponderance of probabilities compared to what is degree of preponderance of probability in civil cases. The theory of Beyond Reasonable Doubt means expecting higher degree of preponderance of probabilities and the natural conduct of human beings, as held by the Hon'ble High Court of Karnataka in "State of Karnataka Vs Venkatesh @ Venkappa & Anr" , Criminal Appeal No. 100492 of 2021, decided on 18.12.2023.
26. Section 3 of the Indian Evidence Act defines "evidence". The evidence can be broadly divided into oral and documentary. "Evidence" under the Act can be said to include the means, factor or material, lending a degree of probability through a logical inference to the existence of a fact. It is an adjective law highlighting and aiding the substantive law. Thus, it is neither wholly procedural nor substantive, though trappings of both could be felt. Reliance is placed upon the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:08:29 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 37/63 +0530 decision of the Honble Supreme Court of India in "Rajesh Yadav & Anr. Vs. State of U.P", Criminal Appeal No. 339-340 of 2014, date of decision 04.02.2022.
27. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the "matters before it". The importance is attached to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical inference.
28. Matters are necessary, concomitant material factors to prove a fact. All "evidence" would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also adds strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact.
29. Matters, do give more discretion and flexibility to the court in deciding the existence of a fact. They also include all the classification of evidence such as circumstantial evidence, corroborative evidence, Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:08:35 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 38/63 derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.
30. In addition, they supplement the evidence in proving the existence of a fact by enhancing the degree of probability. As an exhaustive interpretation has to be given to the word "matter", and for that purpose, the definition of the expression of the words "means and includes", meant to be applied for evidence, has to be imported to that of a "matter" as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar.
31. What is important for the court is the conclusion on the basis of existence of a fact by analyzing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:08:43 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 39/63
32. The word "prudent" has not been defined under the Act. When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case.
33. The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and relevant, as against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved. However, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domain.
34. While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case Digitally signed by ATUL where evidence is not believable. When evidence produced is neither ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:08:48 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 40/63 wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters. The aforesaid principle of law has been enunciated in the authority of Hon'ble Supreme Court of India in "Vadivelu Thevar Vs. State of Madras" , 1957 SCR 981 wherein it is held as under:
"In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence -- 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s.134 quoted above. The section enshrines the well-recognized maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:08:53 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 41/63 +0530 depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or ATUL AHLAWAT Digitally signed by ATUL AHLAWAT CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 42/63 Date: 2025.05.13 10:09:02 +0530 subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.05.13
10:09:07
+0530
CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 43/63 Appreciation of Evidence:
Last Seen Evidence:-
35. Since, there is no ocular witness testimony in the present case, the entire case of prosecution was resting upon the last seen testimony of PW2 Shanu, who had allegedly seen the deceased Feroz in the company of the accused persons, prior to his death and that between the period when he was last seen and the discovery of the dead body, the deceased was not seen in the company of any other person.
36. As per the testimony of the mother of the deceased, PW1 Ruksana the accused persons came to her house on 19.11.2012, at around 07:00 PM and asked for her son Feroz. However, since, Feroz was having dinner at that time, PW1 Ruksana asked the accused persons to leave and that her son Feroz would come and fetch the accused persons later. Thereafter, at around 07:15 to 07:20 PM, her son Feroz left the house to meet the accused persons and he never returned back home.
37. As per the deposition of PW2 Shanu, on 19.11.2012, he had gone to Jafrabad for some personal work and by around 08:00 to 08:30 PM, while he was returning from Jafrabad to his house situated in Janta Colony, Welcome, Delhi and when he reached Welcome Pulia, situated on Jafrabad Road, he saw accused Asif Ali and Asif Khan and one unknown person were going alongwith the deceased Feroz, who was her khala's son. All the said 4 persons were walking and going towards PS Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:09:13 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 44/63 Maujpur side. He further categorically deposed that since, he was in a bit of hurry, he did not approach them and proceeded ahead towards his house.
38. The dead body was first found at around 05:30 PM on 20.11.2012, when some children stumbled upon the same and went to the shop of PW4 Seema, who was running a tea shop, opposite Aggarwal Sweets, near Khajuri Chowk and informed her about it. As per PW4, she gave the said information to the police by calling on 100 number from her mobile phone 9718901596.
39. The prosecution has brought on record the Form-I pertaining to the said 100 number call registered at Delhi Police Control Room, through the testimony of PW14 SI Prem Singh. As per the said form, Ex. PW14/A, the call was made at 17:41:16 on 20.11.2012, wherein, the caller PW4 Seema had informed that "Khadar Garhi Jungle me Khajuri Chowk jo rasta Usmanpur ki taraf jata hai ke pichhe yaha per ek male dead body padi hai." The said call was dispatched at 17:47:51 to PCR van and the information was sent to PS New Usmanpur which led in registration of DD No. 31A, Ex. PW10/B at 05:55 PM.
40. Therefore, between the time when the deceased was allegedly last seen with the accused persons by PW2 Shanu on 19.11.2012 at around 08:00 to 08:30 PM and the time when the dead body was first recovered i.e. around 05:30 PM on 20.11.2012, around 21 hours had already elapsed and therefore, the considerable time gap had created doubts upon Digitally the nature of the testimony of the last seen witness and it looses its signed by ATUL AHLAWAT ATUL AHLAWAT Date:
2025.05.13 10:09:19 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 45/63 incriminating character, since, the circumstance of last seen does not by itself necessarily lead to the inference, that it was the accused persons who committed the crime in question. Since, the accused persons were distantly related to the deceased and there being no evidence brought on record regarding the prior enmity between them, even if the testimony of PW2 Shanu relating to the last seen circumstance is accepted as a gospel of truth, there is every possibility of them parting company with the deceased and someone else being the assailant. The Reliance is placed upon the decision of the Hon'ble Supreme Court of India in "State of Goa Vs. Sanjay Thakran & Ors " 2007 (3) SCALE 740.
41. The deceased Feroz was last seen alive in the company of the accused persons, is only one of the circumstances and the entire evidence lead by the prosecution has to be examined in the context of proximity of not only time, but of place as well. As per the postmortem, Ex. PW16/A, the time of the death was opined to be 1 ½ days prior to the time of the atopsy i.e. 01:00 PM on 21.11.2012. Relating back the time of death approximately comes between 11:00 PM on 19.11.2012 to 03:00 AM on 20.11.2012 (keeping in mind the plus and minus of two hours).
42. The large time gap between the alleged last seen of the deceased with the accused persons and the time of his approximate death and the ultimate discovery of the dead body had to be appreciated in the background of the specific circumstances of the present case. The last seen witness, PW2 Shanu had categorically deposed that the deceased was seen not only with the accused persons, however, there was one other unknown person present with the deceased and the accused persons Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:09:25 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 46/63 +0530 at that time. It had come in the testimony of PW19 IO ACP Arjun Singh that it had duly come to his knowledge, at the time of recording of the statement of PW2 Shanu u/s 161 Cr.PC, Ex. PW19/DA that there was a third person also involved, and as per his cross examination dated 26.04.2024, he had categorically deposed that during the investigation, the identity of the said person was duly established and name of the said person was Irshad.
43. The IO PW19 ACP Arjun Singh had further deposed that he chose not to get the TIP of the suspect Irshad conducted since, it had come in the investigation that Irshad had already parted company with the deceased and the accused persons. However, the said testimony of the IO is rendered highly suspicious, since, he had not filed the interrogation report alongwith the chargesheet. Therefore, the only document to exonerate the said suspect is the disclosure statements of the accused persons and the said documents are per-se not admissible in evidence. Therefore, it cannot be ruled out that the said suspect Irshad or someone else might have been involved in the commission of the offence in question. Therefore, the benefit of the said doubt must go to the accused persons. The last seen testimony is thus not established beyond reasonable doubt.
44. Keeping aside the last seen testimony of PW2 Shanu, his remaining testimony is also marred with inherent inconsistencies and contradictions. The fact that PW2 Shanu did not inform the mother of the deceased, PW1 Ruksana at the first possible opportunity, that the deceased was seen by him in the company of the accused persons has Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:09:33 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 47/63 raised doubts on his credibility as a witness. He had categorically deposed that he informed PW1 Ruksana about the same, when he went to her house on 20.11.2012, i.e. prior to the information about the discovery of the dead body was received by them. However, PW1 Ruksana had categorically deposed that PW2 Shanu informed her about the said last seen fact, at the GTB Hospital Mortuary, when they had already come to know about the death of her son.
45. There are further material contradictions between the testimony of PW1 Ruksana and PW2 Shanu. PW1 Ruksana had deposed that after the information regarding the discovery of the dead body was received by her, she went to PS New Usmanpur on her own and PW2 Shanu had not accompanied her at that time. However, PW2 Shanu had deposed to the contrary and had specifically submitted that he had accompanied PW1 Ruksana and had also identified the belongings of the deceased Feroz and the photographs shown on the mobile phone of the police official. Furthermore, PW2 Shanu went on to contradict himself, wherein, he had deposed during his cross examination that he went to PS New Usmanpur after receiving the information of the discovery of dead body matching the description of the deceased and he was accompanied by PW9 Mohd. Matloob at that time and not by PW1 Ruksana.
46. Further doubts are created upon the credibility of PW2 Shanu as a witness, since, he had not disclosed about the deceased being seen with the accused persons, to the family members of the deceased and the first time he disclosed about the same was when his statement u/s 161 Cr.PC, Ex. PW19/DA was recorded by the IO on 21.11.2012. Till that time he Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 48/63 10:09:41 +0530 had already informed the police by calling on 100 number on 20.11.2012 at around 01:30 PM, that the deceased was missing from his house. In the said DD No. 14A, Ex. PW20/A, he had not mentioned the fact regarding the accused persons being seen with the deceased on 19.11.2012. Thereafter, on 21.11.2012 he had also identified the dead body of the deceased vide the identification memo, Ex. PW2/A and after the postmortem he had also received the dead body vide memo, Ex.PW2/B, yet at both the instances, he kept quiet about the fact that he had seen the deceased in the company of the accused persons.
47. As per the cross examination of PW2 Shanu conducted on 30.01.2014, he had categorically deposed that he had given the statement to the IO, only after the dead body was cremated and his first statement was recorded when the accused persons were apprehended from near Tent Wala School on 21.11.2012 at around 06:00 PM. The said statement was recorded at the said school itself. Therefore, how come the IO suspected the accused persons to be involved in the offence in question, since, neither the PW1 Ruksana nor PW2 Shanu had suspected their involvement, till PW2 Shanu's statement was recorded. Furthermore, then why did PW2 Shanu was called by the IO on 21.11.2012 at around 04:30 PM and he was asked to reach PS Jafrabad is not explained by the prosecution. The constitution of the raiding team and the efforts to trace out and arrest the accused persons were made by the IO, without explaining as to the basis of the accused persons being suspected of committing the offence in question. Therefore, further doubts are created upon the entire investigation. Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.05.13 10:09:46 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 49/63
48. The time gap between the said two events i.e. the last seen and discovery of the dead body coming to around 21 hours, and even taking the time gap between the sighting of deceased Feroz in the company of the accused persons and the time of the death as brought on record through the testimony of PW16 Dr. Neha Gupta is around 5 hours. This cannot be regarded as being proximate in time. Therefore, PW2 Shanu cannot be considered to be "last seen" witness, as is usual under the law.
Reliance is placed upon the decision of the Hon'ble Supreme Court of India in "Mohd. Azad @ Samin Vs. State of West Bengal" (2008) 15 SCC 449; "State of UP Vs. Satish" (2005) 3 SCC 114, wherein, it was observed by the Hon'ble Apex Court that the last seen theory comes into play where the time gap between the point of time when the accused and deceased was seen last alive and when the deceased was found dead was so small that the possibility of any person other than the accused being the author of the crime becomes impossible. Even if there is such proximity, the Courts are expected to look out for some corroboration as pointed out by the Hon'ble Apex Court in "Ramreddy Rajesh Khanna Reddy and Anr Vs. State of Andhra Pradesh " (2006) 10 SCC 172. In the present case, the time gap is quiet large and this Court cannot rule out the possibility of any other person, other than the accused persons being the perpetrators of the offence in question. Therefore, in the considered opinion of this Court, the last seen theory as set up by the prosecution is not established at all.
Circumstances Surrounding the Arrest and Recovery Proceedings:-
Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
49. As per the case of the prosecution, the accused persons were arrested 2025.05.13 10:09:51 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 50/63 on 21.11.2012, near the Tent Wala School, Jafrabad, Delhi during the evening hours after the postmortem of the body was conducted and the dead body of the deceased was already handed over to his family members for performing the last rites and ceremonies. As per the IO, he made search for the suspects Asif Ali and Asif Khan alongwith PW2 Shanu, HC Nathu Ram, Ct. Devender and Ct. Umed Singh. Therefore, it was a five member raiding team, yet for reasons best known to the IO, HC Nathu Ram was not made a prosecution witness and he was never examined in the present case. The testimonies of the remaining witnesses of recovery are marred with inherent contradictions and inconsistencies.
50. It had come in the testimony of PW2 Shanu that he received a call from the IO at around 04:30 PM on 21.11.2012 and he was asked to come to PS Jafrabad and thereafter, he alongwith the police officials went on search of the accused persons. Initially the accused persons were not found at their addresses and were later found near Tent Wala School, 66 foota Road, Jafrabad. Thereafter, the IO carried out the arrest proceedings and the arrest memos, personal search memos and the disclosure statements were prepared. In pursuance of the disclosure statements of accused Asif Ali, the knife in question was allegedly recovered from the bushes situated near Yamuna Khadar.
51. The alleged weapon of the offence was an ordinary kitchen knife with a wooden handle and the same was found containing mud/stains, stuck to the blood stains as per the testimony of PW2 Shanu. It was similarly deposed by the IO PW19 ACP Arjun Singh that the knife was allegedly recovered from the bushes which was around 3-4 feet in height Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:09:57 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 51/63 and the place from where the knife was recovered was situated in an area where there was no artificial light and after the sunset it was completely dark. He had further deposed that accused Asif Ali had pointed out the place where the knife was allegedly lying and on his pointing out, he had picked up the knife himself.
52. Therefore, as per the testimony of the public witness PW2 Shanu and the IO PW19 ACP Arjun Singh, the knife was lying at a place, which was not within the knowledge of the IO, prior to the accused Asif Ali allegedly pointing out the said place. However, it had come in the testimony of PW8 Ct. Anil, who had reached the spot on 20.11.2012, alongwith the IO PW19 ACP Arjun Singh, after the information regarding the dead body was received by the IO, where he had categorically deposed at the time of his cross examination conducted on 13.05.2014 that "I had seen a knife somewhere lying in bushes.
(emphasis supplied) (Vol. which appeared to be a vegetable cutting knife again said I do not recall if knife was there or not)." Therefore, serious doubts are created around the entire investigating process, wherein, one of the first witnesses to arrive on the spot where the dead body was found had deposed about seeing the knife in question, i.e. on 20.11.2012 itself.
53. The testimony of PW8 Ct. Anil qua seeing the alleged knife is further confounded, by the testimony of the mother of the deceased, PW1 Ruksana, wherein, she had categorically deposed at the time of her cross examination conducted on 06.03.2014 that on 20.11.2012, after she was informed about some dead body being noticed in the area of PS New Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:10:02 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 52/63 Usmanpur, she had visited PS New Usmanpur and had categorically deposed that "At that point of time, police had inquired only fact as to who were friends of my deceased son and I had accordingly informed that fact to the police. At that point of time, police had shown me a knife (emphasis supplied is mine). I had however not being shown the clothes and shoe, I had been shown a purse and a handkerchief and the photo of the body of my son in the mobile phone." Therefore, the police officials had already shown the knife, Ex. P-1A to the mother of the deceased on 20.11.2012, i.e. one day prior to the day on which its recovery is shown at the instance of accused Asif Ali, on 21.11.2012.
54. As per the case of the prosecution, the alleged recovery of the knife, Ex. P-1A took place after the accused persons were arrested near the Tent Wala School, Jafrabad. As per the arrest memo of accused Asif Ali, he was arrested at 07:00 PM and accused Asif Khan was arrested at 07:15 PM on 21.11.2012, as duly reflected in their arrest memos, Ex. PW2/D and Ex. PW2/E, respectively. The IO then recorded their alleged disclosure statements and thereafter, the alleged pointing out of the place of incident and pointing out the place of hiding the alleged weapon alongwith its recovery memo, Ex. PW2/J was prepared by the IO. All the members of the raiding team including PW17 Ct. Umed Singh, PW2 Shanu and PW5 Ct. Devender had specifically deposed on the lines of the IO PW19 ACP Arjun Singh that the recovery was effected after the sun had already set and there was no natural light available. The IO had to use a torch/artificial light to effect the said recovery. However, as per the testimony of the MHCM PW12 HC Raj Kumar, on 21.11.2012, IO Inspector Arjun Singh deposited one knife and personal search of the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:10:11 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 53/63 accused persons during the day time, i.e. before 03:00 to 04:00 PM. Therefore, yet another doubt is created upon the time line put forth by the prosecution.
55. As per the case of the prosecution, the IO used his seal of "AS" to seal the pullandas, after the seized knife was put in a white cloth. As per the prosecution story, the seal was handed over by the IO to PW17 Ct. Umed Singh after its use in the present case, since, the same was duly recorded in the statement of Ct. Umed Singh u/s 161 Cr.PC. However, when he stepped into the witness box, PW17 Ct. Umed Singh had categorically deposed that "After use, seal was not handed over to me. It is correct that in my statement, Ex. PW17/DA, it is mentioned that after use, seal was handed over to me." Further doubts regarding the recovery proceedings were created from the testimony of PW17 Ct. Umed Singh, wherein, he had deposed during his cross examination that "The interrogation from the accused persons was done inside the Tent Wala School after getting the gate opened after calling the Chowkidar. The signature of Chowkidar was not obtained on the arrest memos and the disclosure statements. No notice u/s 160 Cr.PC was given to the Chowkidar." Therefore, an independent public witness was present, yet, the IO chose not to make him join the investigation. The PW17 went on to further categorically depose that "Statements of mine, and other police officials and Shanu were recorded there. It is wrong to suggest that my statement was recorded in the PS. It is correct that it is mentioned in the statement, Ex. PW17/DA where it is recorded that my statement was recorded after returning to PS." Hence, PW17 Ct. Umed Singh is not only contradicting other prosecution witnesses, however, the doubts Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:10:17 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 54/63 +0530 regarding the handing over of the seal and presence of public witnesses near the spot had created further doubts on the veracity of the entire prosecution story.
56. Therefore, the alleged recovery of the weapon of the offence from public place, without joining the public witnesses and doubts created upon the entire process from the contradictions and inherent inconsistencies in the testimonies of the witnesses examined before this Court had not helped the case of the prosecution.
57. The recovery evidence of incriminating article is admissible u/s 27 of the Indian Evidence Act, 1872, however, its admissibility alone would not render that evidence reliable. It had to be shown to have been recovered from place ordinary not visible to others i.e. the place should be known only to the accused in exclusion to the knowledge of others. The fact that one of the police witness had stated to have seen the knife on 20.11.2012 itself, near the place where the dead body was found and the categorical testimony of the mother of the deceased that the knife was already shown to her by the police officials at the PS on 20.11.2012 i.e. one day prior to the arrest and recovery of the said weapon, had rendered the entire recovery proceedings shrouded in suspicion and the same is insufficient to bring home the charge of murder against the accused person. Reliance is placed upon the decision of the Hon'ble High Court of Delhi in"Shailesh Kumar Vs. State" 2023 (3) JCC 1934 (Delhi) and "Deepak Chadha Vs. State " 2012 (1) JCC 540 (Delhi) and the decision of the Hon'ble Supreme Court of India in "Jasobanta Sahu Vs. State of Orissa" 2024 (3) JCC 1996 (SC), as the inherent Digitally signed by ATUL ATUL AHLAWAT contradictions in the testimony of the recovery witnesses and the IO and AHLAWAT Date:
2025.05.13 10:10:23 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 55/63 the said recovery being shown from an open place, not much reliance can be based on such tainted recovery.
The chain of custody of the case property/exhibits:
58. As per the categorical testimony of the IO PW19 ACP Arjun Sagar, the knife, Ex. P-1A was allegedly recovered on 21.11.2012 and he had already received the copy of the postmortem report, Ex. PW16/A on 02.01.2012. Yet, for the reasons best known to him, he waited for over a month and the request for providing opinion about the weapon of the offence was sought from the Head of Department, Forensic Medicine, GTB Hospital vide Ex. PW19/E on 05.01.2013. The said subsequent opinion was prepared on 05.01.2013 itself, yet, he waited till 11.01.2013 to receive the said subsequent opinion, Ex. PW16/B and the sketch/figure, Ex. PW16/C.
59. The knife in question along-with the other exhibits were sent to FSL only on 15.01.2013 i.e. after about 55 days from its alleged recovery of the present case. There was an inordinate delay in sending the exhibits for forensic examination. Furthermore, in spite of there being allegations of the deceased consuming half a bottle of liquor, prior to his death, the viscera samples were never sent to the FSL and there is no explanation to the said effect provided by the prosecution.
Medical Evidence & Cause of Death:-
ATUL
60. In the present case, the prosecution has sought to prove the death of AHLAWAT Digitally signed by ATUL AHLAWAT Date: 2025.05.13 10:10:29 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 56/63 deceased Feroz through testimony of PW16 Dr. Neha Gupta, who had conducted the postmortem of the dead body. She had opined the time since death was about "1 1⁄2 days". The cause of death was "haemorrhagic shock as a result of ante mortem injury to neck and its structures produced by sharp edged weapon". She further opined that, injury no. 1, 2 and 30 were sufficient to cause death in ordinary cause of nature, both independently and collectively. Furthermore, as per her subsequent opinion, Ex. PW16/B, the said injuries could have been caused by the knife, Ex. P-1A. However, since, the entire recovery proceedings are tainted, the said knife cannot be ascribed to the accused persons and no benefit of the said PM report and the subsequent opinion can be taken by the prosecution, to link the accused persons to the said injuries inflicted upon the body of the deceased.
61. The knife in question was sent to the FSL and as per the report, Ex. PW19/F and Ex. PW19/G, the blood group 'B' was found on the said knife. However, since, the entire recovery proceedings are tainted, the said knife cannot be ascribed to the accused persons and no benefit of the said report can be taken by the prosecution.
Plea of alibi:
62. Although, the plea of alibi was raised by the accused persons that they were not present at the time of the incident, was sought to be proved through the testimony of PW-1 Mohd. Gulzar Khan, the burden cast upon the accused person was undoubtedly heavy since, it flows from section 103 of the Indian Evidence Act, 1872. Merely because the alibi Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:10:36 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 57/63 was not proved, does not automatically lead to an inference that the accused persons were present at the scene of occurrence of the crime. The failure on the part of the accused persons to establish their plea of alibi is not fatal to the defense. The prosecution still had to prove its case with positive evidence and it can't rely on the weakness of the defense of the accused persons, since, it had to stand on its own legs and even the Court could not make out an all together different case for the prosecution and convict the accused persons on its basis. The burden of proof remained on the prosecution only and it was not lessened by mere fact that accused persons had adopted a plea of alibi.
63. The plea of alibi had to be considered only when the prosecution had discharged its burden of proving its case beyond reasonable doubt and it may not be necessary to see whether the accused persons were able to prove their defense of alibi or not. Once the prosecution has successfully discharged its burden beyond reasonable doubt, the burden of proof then shifts upon the accused to prove it with certainty, so as to exclude the possibility of their presence at the time and place of the occurrence. Since the prosecution had failed to prove its case beyond reasonable doubt, the burden cannot be misplaced and the plea of alibi of the accused persons need not be looked into considering the facts of the present case. Reliance is placed upon the judgment of Hon'ble Supreme Court of India in "Jayantibhai Bhenkarbhai Vs. State of Gujrat" AIR 2002 SC 3561.
Motive:
64. In a case based on circumstantial evidence, the settled law is that ATUL AHLAWAT Digitally signed by ATUL AHLAWAT Date: 2025.05.13 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 58/63 10:10:44 +0530 the circumstantial from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence, as held by the Hon'ble Supreme Court of India in "Hanuman Govind Nargundkar Vs. State of MP " AIR 1952 SC 343, "Bodh Raj Vs. State of J&K" AIR 2002 SC 3164 and "Sharad Birdhichand Sarda Vs. State of Maharashtra " AIR 1984 SC 1622 and "C. Chenga Reddy and Ors. Vs. State of A.P. " (1996) 10 SCC 193.
65. It is also settled law that accused has to only proboblize the defense and he is presumed to be innocent till he is proved to be guilty. Suspicion, however, strong can never take place of proof. There is indeed a long distance between accused "May have committed the offence" and "Must have committed the offence", which must be traversed by the prosecution by adducing reliable evidence. Emphasis is supplied on the decision of the Hon'ble Supreme Court of India in "Kailash Gaur Vs. State of Assam" (2012) 2 SCC 34 and "Padala Veera Reddy Vs. State of Andhra Pradesh" AIR 1990 SC 79.
66. There is another golden thread which runs through the web of administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted, as held by the Hon'ble Supreme Court of Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:10:50 +0530 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 59/63 India in "Kali Ram Vs. State of Himanchal Pradesh" AIR 1973 SC 2773.
67. In the present case, the prosecution could not bring a shred of evidence to ascribe the motive to the accused persons for committing the offence in question. There is no testimony of any witness that the accused persons were having any prior enmity with the deceased. In fact, the deceased was the distant cousin of the accused persons and both the accused persons were on visiting terms at the house of the deceased. It was not deposed by any witness related to the deceased namely PW1 Ruksana, PW2 Shanu and PW9 Mohd. Matloob that the accused persons were having any motive to commit the murder of deceased. There is no incriminating evidence except for the alleged last seen testimony, which had fallen on its face in the present case and the tainted recovery proceedings. Therefore, the absence of motive assumes great significance and importance, since, in its absence, each piece of evidence had to be closely monitored to ensure that suspicion, emotion or conjecture did not take place of the proof. Reliance is placed upon the decision of the Hon'ble High Court of Delhi in "Jaffar @ Raju Vs. State"
2013 (3) JCC 1175 (Delhi).
Conclusion & Findings:
68. The improvements and the inherent contradictions in the testimony of the last seen witness, PW2 Shanu and the suspicious circumstances surrounding the recovery proceedings carried out by the IO had certainly raised doubts in the mind of this Court and the effort of the Criminal Court is not to be prowl for imaginative doubts, unless is doubt is of a Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 10:10:59 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 60/63 +0530 reasonable dimension and is what judicially conscientious mind entertains with some objectivity, otherwise no benefit can be claimed by the accused. In the present case the doubts raised from the testimony of the prosecution witnesses cannot be set to be merely imaginative and the same has been borne from the record of the present case. The said doubts are not merely imaginary or trivial in nature and it has dented the entire case of the prosecution. The burden of proof cast upon the accused persons is governed by the principle of "preponderance of probabilities"
and in light of the discussion above, the accused persons in the present case have been able to raise reasonable doubts against the prosecution version of events and the hypothesis as propounded by the accused persons that they have been falsely implicated in the present case by the IO, since it was a blind murder case and instead of searching for the real culprits, the accused persons were roped in by the IO.
69. With the evidence brought on record, wherein, Firstly, the last seen testimony of PW2 Shanu is not inspiring any confidence, therefore, the prosecution could not establish the last seen story of their case; Secondly, as per the prosecution story, the deceased was allegedly last seen not only in the company of the accused persons, however, there was one another person alongwith them. The identity of the said person was duly established during the investigation and the IO had apparently prepared his interrogation report, however, the same was not filed alongwith the chargesheet. Therefore, the involvement of someone else, especially, the third person namely Irshad cannot be ruled out; Thirdly, the prosecution's case is completely silent on the aspect of motive;
Fourthly, the material contradictions in the testimony of the recovery Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.05.13
10:11:06
+0530
CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 61/63 witnesses; Fifthly, the categorical testimony of PW1 Ruksana that the alleged weapon of the offence i.e. knife was already shown to her at the PS, one day prior to its alleged recovery; Sixthly, one of the formal witnesses deposing that he had already seen the knife in the bushes, on the day when the dead body was found, i.e. one day prior to the date of alleged recovery of the knife; Seventhly, the testimony of the MHCM that the IO deposited the knife with the malkhana during the day time, before 03:00 to 04:00 PM on 21.11.2012, while as per the IO and other witnesses, the recovery was effected during the late evening hours, after the sun had already set; Eighthly, the recovery shown from place, where public persons usually pass through and had access and the Chowkidar of the school was not made a witness of arrest of the accused persons; and Lastly, long unexplained delay in sending the samples/exhibits to the FSL, after recovery of the knife and delay in between, for getting the subsequent opinion from the doctor who conducted the postmortem report. Therefore, it cannot be said that the chain of prosecution witnesses and the evidence brought on record was so complete, so as to not leave any reasonable ground consistent with the innocence of the accused person.
70. When the entire evidence of the present case is cumulatively read and appreciated in the background of the settled principle of law and in the light of the evidence adduced by the prosecution, there is a shadow of doubt cast upon it and not worthy of inspiring any confidence. Hence, they strike at the very root of the prosecution story rendering it to be improbable and unbelievable. Therefore, in the opinion of this Court, there is no doubt that the prosecution has miserably failed to prove its Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.05.13 CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 62/63 10:11:15 +0530 case beyond reasonable doubt and hence, accused Asif Ali S/o Late Sh. Munawar Ali and accused Asif Khan S/o Sh. Mobin Khan are acquitted of the charges for committing the offences punishable u/s 302 R/w section 34 of Indian Penal Code, 1860 and they shall be set at liberty.
71. The accused persons are directed to file their bail bonds u/s 437A Cr.PC and the same shall remain in force for a period of six months from today. All the other bail bonds/surety bonds stands canceled and the earlier surety except for surety given u/s 437A Cr.PC stands discharged.
72. The case property, if any, be released to the rightful owner as per the law and the applicable rules.
73. File be consigned to the record room after due compliance.
Announced in the open court on 13.05.2025.
This judgment consists of 63 pages and all
of them have been digitally signed by me. Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.05.13
10:11:28
+0530
(ATUL AHLAWAT)
ASJ (FTC)/North-
East/KKD Courts/
Delhi/13.05.2025
CNR No. DLNE01-000248-2013 State Vs. Asif Ali & Anr. FIR No. 311/2012 Page no. 63/63