Delhi District Court
The State vs 1. Mohd Sahjad on 30 September, 2014
D.O.D 30.9.2014 FIR no : 199/2004
P. S : Kanjhawalan
u/s 365/342/304/34 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 165/2014
UID NO . : 02404R023412009
FIR No : 199/2004
P. S : Kanjhawala
u/s 365/342/304/34 IPC
The State versus 1. Mohd Sahjad
S/O Mohd Hanif
2. Mohd. Sahnawaj @ Bhoora
S/O Mohd Hanif(Juvenile)
3. Mohd Hanif s/o Late Abdul Rasid
All R/O C-630,Meer Vihar, P.S
Kanjhawala, Delhi.
Date of committal to session court : 10.07.2009
Date of argument : 30.09.2014
Date of order : 30.09.2014
JUDGMENT
1 Facts and circumstances giving rise to the present case, as per the story of the prosecution are that :
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a) On 15.8.2004, an information was received at P.S Kanjhawala regarding quarrel at C 615 , Mangal Bazar , Mir Vihar which was recorded vide DD no. 6 A dated 15.8.2004. Subsequently, another information was received at P.S Kanjhawala that"Meer Vihar Mangal Bazar road, Shahjad STD ke paas ek 20-21 saal ke ladke ko jeher dekar ya karant lagakar maar diya" which was recorded vide DD no.
8 A dated 15.8.2004. On receipt of DD no. 6 A , S.I Hansraj alongwith Constable Vikram Singh reached at the spot i.e C 615 , Mangal Bazar , Mir Vihar, Delhi where lot of people were gathered. In the meanwhile, Ct. Ramdhari also reached there with carbon copy of said DD no. 8 A . They all entered inside a room where a dead body of a male(Mohd Zahid) aged about 22-23 years, was found lying dead on the floor of the house . Three sewing machines , connected with wires were also found there. Insp.Hansraj noticed a burnt mark on the right arm and left thumb of the dead body.
b) Inspector Hansraj called the Crime team . Crime team headed by S.I Rajesh Kumar alongwith ct. Chunni Lal ,photographer reached at the spot. S.I Rajesh Kumar inspected the scene of crime and Ct. Chunni Lal took the photographs. Inspector Hansraj met Mohd. Shamshad(complainant) at the spot and recorded his statement and made endorsement on the same and got registered the FIR through Ct. Vikram .
c) It is the case of the prosecution that Mohd Zahid (deceased), who was maternal nephew (Bhanja) of Mohd Samshad, was residing with Mohd Shamshad at H.NO B 269,Meer Vihar, Delhi along with him. Mohd Zahid (deceased) was having a shop of manufacturing furniture at Meer Vihar Madan Pur where Mohd Aslam was also working with him in the said shop . On 14.8.2004, at about 12:30 pm, accused Mohd Sahjad alongwith Bhoora(juvenile) went to the said shop and started beating Aslam and forcibly took him to their house and asked him about the Mohd. Zahid.
d) It is the further case of the prosecution that one Hazi Sabir came to the house of Naseema Begum w/o Mohd SC No. 165/14 State vs Mohd Sahjad etc (Page 2 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC Shamshad and informed her that accused persons had taken away Aslam from the shop forcibly . Naseema Begum made a call to Mohd Shamshad and told entire facts to him. Mohd Shamshad inquired from accused Mohd Hanif as to why Aslam was brought by them to which accused Mohd Hanif told him that his daughter Shabnoor Jahan @ Baban and Mohd Zahid(deceased) were having affair and they want Mohd Zahid. All the accused persons insisted Mohd Shamshad (complainant) to bring Mohd Zahid first for releasing Aslam. Mohd Shamshad produced Mohd Zahid to accused persons as a result of which accused persons released Aslam from their custody and also stated that Mohd Zahid have defamed them and they will perform the marriage under the Muslim rites between Mohd Zahid(deceased) and Shabnoor Jahan and refused to release Mohd Zahid. On the next day Mohd Shamshad along with the parents of Mohd Zahid(deceased) and few other persons again went to the house of accused persons and asked about Mohd Zahid to which accused persons stated that Mohd Zahid (deceased) is sleeping in the room on the ground floor. When accused Mohd Hanif opened the lock of the room, where Mohd Zahid was sleeping, Mohd Zahid was found lying dead on the floor and thereafter, as stated herein above, police reached there.
e) Initially an FIR u/s 304 A/323/34 IPC was registered . Accused persons were arrested and chargesheet came to be filed. Record indicates that vide order dated 28.6.2008, ld MM took the cognizance of the offences u/s 304 /365/342 /34 IPC .
f) Since the offence u/s 304 IPC was exclusively triable by the court of sessions, therefore vide order dated 10.7.2009, case was committed to the court of sessions.
2 Vide order dated 30.7.2010, ld predecessor of this court decided the charges and SC No. 165/14 State vs Mohd Sahjad etc (Page 3 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC accordingly, accused Md Sahjad, Mohd Hanif and Mohd Shenawaj were charged for the offences u/s 365/342/304/34 IPC to which they pleaded not guilty and claimed to be tried.
3 Here it is pertinent to mention that during the pendency of the case, Mohd Shenawaj was declared as Juvenile vide order dated 09.12.2013 and IO is shown to have filed separate charge sheet before JJB .
4 In order to prove its case, prosecution has examined as many as fifteen witnesses.
5 Public witnesses examined by the prosecution are being detailed as under:
i) PW1 Mohd Shamshad : He is the complainant in the present case. He deposed that deceased Mohd Zahid used to reside with him. Mohd Zahid (deceased ) alongwith Mohd Aslam used to work in his shop of manufacturing furniture at Meer Vihar , Madan Pur. On 14.8.2004, he received a phone call from his wife that accused Sahjad and Bhura has taken Aslam from the shop of Mohd Zahid with them at their house and Hazi Shabir has closed the shop of Mohd Zahid and handed over the keys to her. He further deposed that he went to the house of Mohd Hanif and inquired him as to why he brought Aslam with him to which accused Mohd Hanif told him that they had seen Mohd Zahid with Shabnoor at the pond of Madanpur Village . He has brought his daughter back and he want Mohd Zahid SC No. 165/14 State vs Mohd Sahjad etc (Page 4 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC as he ran away from there. PW1 further deposed that he requested accused persons to release Aslam but they insisted that they will release Aslam only when Mohd Zahid is handed over to them. PW1 Shamshad further deposed that he returned from there and went towards Kanjhawala side in search of Mohd Zahid who met him in Karala Village on the way. He took Mohd Zahid (deceased) from there to the shop of Vakil who is relative of Mohd Zahid and narrated whole incident to him . Vakil advised him to bring Irfaan , relative of Mohd Zahid(deceased) first. He brought Irfaan from his house and he alongwith Mohd Zahid(deceased), Vakil, Irfaan and Hazi Sabbir went to the house of accused persons and handed over Mohd Zahid (deceased) to accused persons as a result accused persons had released Aslam from their custody .
PW1 further deposed that accused persons stated that Mohd Zahid have defamed them and they will perform the marriage under the Muslim rites between Mohd Zahid(deceased) and Shabnoor Jahan and they asked him to call parents of Mohd Zahid(Deceased). He made a call to the parents of Mohd Zahid and again went to the house of accused persons at about 11:00 pm and requested them to release Mohd Zahid as his parents were coming in the next morning to discuss the matter but accused persons did not release Mohd Zahid(deceased) . Next day in the morning at about 5 am parents of Mohd Zahid(deceased) came to the his and they all alongwith other persons came to the house of accused persons and asked accused persons about Mohd Zahid. Accused Mohd Hanif stated that Mohd Zahid (deceased) is sleeping in the room on the ground floor and accused Mohd Hanif opened the lock of the room where Mohd Zahid was sleeping. Mohd Zahid was found lying dead on the floor. There were three sewing machine and electrical wires were lying inside the room near the body . Electrical wires were also touching the body of Mohd Zahid on his hand and his hands were also in burn condition. There was also a burn mark on the left wrist of Mohd Zahid (deceased). He made a call to police at 100 number. Police arrived at the spot and recorded his statement ExPW1/A.
ii) PW4 Md Yusuf : He is the public witness who deposed that deceased Mohd Zahid and Irfan were working with the sons of his uncle Shamshad(PW1) and he was called by Shamshad(PW1) in the Nikah of deceased Zahid. His other relatives namely Md. Vakeel and Moinuddin were also present there. Accused Md. Hanif and Shamshad had also visited there at about 8PM. Md. Hanif and his son Shamshad asked them to send Mohd Zahid with them at their house SC No. 165/14 State vs Mohd Sahjad etc (Page 5 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC and they would marry Mohd Zahid with bride on the next day when parents of Mohd Zahid would arrive. On this, Mohd Zahid and Irfan accompanied Hanif and his son Shamshad to the house of Hanif. After about one hour, Irfan returned and stated that Mohd Zahid had slept there and locked the room from inside. At about 11PM, on the same night, he along with Shamshad, Moinuddin, Hazi Sabir had gone to the house of accused Hanif to see whether Mohd Zahid was alright and to take him back along with them but accused Hanif told them that Mohd Zahid would sleep there and there was no problem and that Mohd Zahid would return after Nikah. They returned to their house. On the next day, he came to know that Mohd Zahid has died.
Iii) PW5 Mohd Waqil : He deposed that on 14.8.2004 , he alongwith Yusuf(PW4) , Moiniddin had gone to the house of Mohd Shamshad . Deceased Mohd Zahid also reached there . He was told that Mohd Zahid had taken away a girl alongwith him and that Mohd Zahid had been called at the house of Shamshad. One more boy was working with Mohd Zahid . That boy was taken away by family members of the girl namely accused Hanif and his son Sahjad . Later on Mohd Zahid(deceased) was also taken away by accused Hanif and his son Sahjad and they stated that Mohd Zahid will sleep at their residence. They further stated that they will arrange the 'Nikah' of Mohd Zahid with their daughter on the next day and asked to call the parents of Mohd Zahid(deceased) .
PW5 further deposed that at about 11:30 pm on the same night , while returning to his house, he had also gone to the house of accused Hanif and had seen Mohd Zahid inside the room from the 'roshandaan' and talked with Mohd Zahid. He stated to them that he is very much comfortable and sleeping comfortably there. Thereafter, they left for their house. On the next day at around 9:00-10:00 pm , they came to know that Mohd Zahid has died.
iv) PW6 Mohd Kalam : He is the owner of the house where accused persons were residing as tenants. He deposed that he had given some portion of second floor of his house to Mohd Hanif on rent. Accused Mohd Hanif was residing there with his family. Ground floor of his house was rented out to one Sadiq. 2-3 days prior to the incident in the year 2004. Sadiq had put his three sewing machines in the said room but he had not started his work yet and had not even started living there. On 14.8.2004 the rented room of Sadiq was open . On that day at about 9 pm one Shamshad alongwith his nephew namely Mohd Zahid (deceased) had come to his house on SC No. 165/14 State vs Mohd Sahjad etc (Page 6 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC the ground floor . At that time accused Mohd Hanif alongwith his son accused Sahzad had also come down stairs. In his presence, they had decided that they would marry Mohd Zahid with Babban in the next morning. Thereafter, accused Hanif and Sahzad went upstairs in their rented premises after locking deceased Mohd Zahid in the rented room of Sadiq from outside. In the next morning some relatives of deceased Mohd Zahid reached his house and he saw that the rented room of Sadiq was locked from outside and the relatives were knocking the door where deceased Mohd Zahid was locked. He further deposed that accused Sahzad has opened the door in his presence and they found Mohd Zahid dead.
v) PW8 Aslam : According to the prosecution is also the victim as he was abducted by accused persons. He deposed that he is doing the work of carpenter at the shop of his uncle Shamshad(PW1) where Mohd Zahid( deceased) nephew of Shamshad, also used to work there. On 14.8.2004, at about 12:30 pm, accused Sahjad and Bhoora came to his shop and started beating him and took him forcibly to their house where he was beaten up severely and accused persons were making inquiry about Mohd Zahid. After some time Shamshad(PW1) came to the house of accused Mohd Hanif and requested accused Hanif to release him(Aslam). Accused persons asked Shamshad(PW1) to hand over Mohd Zahid (deceased) to them and then only they will release him( Aslam). He further deposed that he pleaded accused persons to leave him and then he was released and he came back to the house of his uncle Shamshad(PW1). Accused Hanif and Sahzad again came to the house of Shamshad and thereafter Irfan and Mohd Zahid(deceased) accompanied accused persons to their house.
vi) PW9 Naseema Begum : She is the wife of Shamshad(PW1) . She deposed that on 14.8.2004, accused persons came to her house and inquired about Mohd Zahid. She informed them that Mohd Zahid is at his shop to which accused persons told her that Mohd Zahid is not at his shop. They all threatened her that they would take Aslam(PW8) alongwith them if Mohd Zahid is not handed over to them. They also asked Naseema Begum to communicate this to her husband Shamshad (PW1). After some time , Hazi Sabir came to her house and informed her that accused persons had taken away Aslam(PW8) from the shop forcibly . She made a call to Mohd Shamshad(PW1) and told entire facts to him SC No. 165/14 State vs Mohd Sahjad etc (Page 7 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC 6 Following police officials were examined as prosecution witnesses:-
i) PW2 S.I Rajesh Kumar : He was posted at Mobile Crime Team, North-West as SI during relevant time. He deposed that on 15.8.2004, on receipt of the information of the incident, he along with Ct. Chunni Lal Photographer reached at the spot ie., C-630, Meer Vihar, Delhi and found that a dead body of one person is lying in one room. He inspected the scene of the crime and prepared the report Ex.PW2/A.
ii) PW3 HC Vikram Singh and PW7 Ct. Luxmi Narayan : These are the witnesses who accompanied the IO during investigation.
iii) PW10 Ct. Devender : He is the witness who on 28.10.2004, took viscera box alongwith sample seal to CFSL , Kolkata after taking the same from MHC(M) vide RC no. 78/21/2004 and after depositing the same with CFSL Kolkata , on 29.10.2004, he obtained receipt no. CFSL/DE/04/Del-729/839 .
iv) PW11 Ct. Ramdhari : He is the witness who on 15.8.2004 , on receipt of DD no. 8 A ExPW11/A reached at the spot where S.I Hansraj alongwith ct. Vikram were already present. He also found dead body of Mohd Zahid (deceased) lying on floor of ground floor.
Three sewing machines in that room and a network of wires were also there. There were marks of electrocution on the right hand of the dead body and left thumb of the dead body. He further deposed that IO called the crime team at the spot who alongwith photographer reached there . Case properties were seized by the IO .
v) PW12 ACP Bir Singh : He is the witness who had collected the subsequent opinion ExPX8 from the doctor .
vi) PW13 Inspector Hansraj: He is the IO of the case. He deposed that on 1.08.04, he was posted at PS Kanjhawala as SI. On that day, on receipt of DD no.6A Ex.PX3, he along with Ct. Vikram Singh reached at the spot ie., C-615, Mangal Bazar, Meer Vihar, Delhi where they found a lot of people collected there. In the meanwhile, Ct. Ramdhari also reached at the spot along with carbon copy of DD no.
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P. S : Kanjhawalan
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8A Ex.PX4 ( also exhibited as EX.PW11/A) . He along with Ct.
Vikram and Ct. Ramdhari entered inside the house. There was a room on the left side of the house which was already open. A dead body of a male aged about 22-23 yrs. was found lying dead on the floor. There was a network of wires and three sewing machines. One foot of sewing machine was having connected wires with earth. Two remaining sewing machines were having motors and wires attached to it. There was a three way plug holder hanging from the wall from where the connection was given to the machine. He also found a burnt mark on the right arm and left thumb of the dead body. After some time, SHO PS Kanjhawala & ACP Sultanpuri also reached at the spot.
PW13 further deposed that he called the crime team which inspected the site and gave the detailed report Ex.PW2/A. The photographs of the site were also taken. They also met one Shamshad who was relative of the deceased. The statement of Shamshad ExPW1/A was also recorded by him and he made endorsement Ex.PW13/A, on the same and got registered FIR through Ct.Vikram . He also prepared the site plan Ex.PW13/B recorded statement of the relatives of the deceased regarding the dead body identification ie., of Md. Zamil and Md. Shamshad Ex.PW13/C & D, and the dead body was taken to the mortuary for postmortem by him after leaving the Ct. Ramdhari at the spot to look after the spot. Postmortem of the dead body was conducted and after postmortem Doctor handed over the viscera and the clothes of the deceased duly sealed with the seal of SGM Mortuary along with its sample seal and the same were seized vide seizure memo Ex.PW13/H . After postmortem the dead body was handed over to maternal uncle of deceased namely Md. Shamshad vide receipt carbon copy of which is Ex.PW13/J .
PW13 further deposed that thereafter, they returned at the spot and he disconnected the wires which were attached with the machine. All the three machines along with wires and one pedal of a machine were seized vide seizure memo Ex.PW3/B & Ex.PW3/A respectively . He collected the postmortem report Ex.PX5 and sent viscera to CFSL through Ct. Devender vide RC no.78/21/04. He collected CFSL report which is Ex. PX7 and moved an application for seeking subsequent opinion regarding the cause of death but could not obtained the same. Thereafter, he was transferred.
vii) PW15 Sh R. S Dahiya : He deposed that on 19.10.07, he was entrusted further investigation in this case pursuant to the order of Ld. MM . He examined the case file and had also gone through the SC No. 165/14 State vs Mohd Sahjad etc (Page 9 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC statements of various witnesses. He considered it correct to record the statements of seven witnesses cited by the IO of the case namely Md. Shamshad, Md. Vakeel, Hazi Sabir, Aslam, Zameel Ahamad, Moinuddin and Md. Yusuf. He also added sec.365 IPC in the case. Thereafter, he was transferred from DIU on 12.11.07. He handed over the case file along with supplementary statements of the above mentioned witnesses to ACP Bir Singh and further investigation was conducted by him.
Medical Evidence :
i) PW14 Dr. V.K Jha : He has conducted postmortem on the body of deceased Mohd Zahid and gave report ExPW14/A. On 24.6.2005, IO moved an application before him and also produced viscera report prepared by CFSL. After going through the same and the photographs , he had given subsequent opinion ExPW14/B.
7 Thereafter prosecution evidence was closed and statement of accused persons u/s 313 Cr. PC were recorded wherein accused persons denied the allegations. However, they did not opt to lead any evidence in their defence.
8 Ld counsel for the accused persons argued that the testimonies of prosecution witnesses do not inspire confidence as there are number of contradictions therein . He submitted that, the room where death of Mohd Zahid took place , did SC No. 165/14 State vs Mohd Sahjad etc (Page 10 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC not belong to accused persons and that room was rented out to one Mohd Sadiq. By referring the postmortem report and subsequent opinion given by Dr. V.K Jha(PW14) , Ld defence counsel contended that homicide in the present case has been completely ruled out. He further argued that there is nothing on record which could suggest that Mohd Zahid was confined in the said room as alleged by the prosecution and accused persons knew that sewing machines connected with the live wires are lying in the said room. Ld defence counsel urged that prosecution has miserably failed to prove its case against the accused persons. In support of his arguments he has placed reliance upon following authorities:
a) Aher Raja Khima vs State of Saurashthra : 1955 (2) SCR 1285
b) Rahim Beg vs State of UP : 1972 CAR 248 (SC).
c) Kaliram vs State of Himachal Pradesh : 1974 CAR 1 (SC).
d) Suresh Pal vs State of Haryana :2011 (4) JCC 2450.
e) Sunil Rai @ Paua & Ors Vs UT, Chandigarh: 2011(4) JCC 2453.
f) Darshan Singh vs State of Punjab: 2013 (2) RCR (Crl).
g) Vinod Chaturvedi vs State of Madhya Pradesh: AIR 1984 SC 911.
h) Suraj Mal vs State (Delhi Administration) : AIR 1979 SC 1408 .
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i) State of Maharashtra vs Annappa : AIR 1979 SC 1410 .
j) Anup Kumar Konkde vs State(Delhi): 2011 (3) JCC 1938.
k) C.K Dasegowda & Anrs vs State of Karnatka : 2014 IV AD(CRI) (SC) .
9 Per contra, ld Addll PP for the state by rebutting the argument of ld defence counsel pointed out that prosecution case stands proved . He has taken me to the testimonies of prosecution witnesses particularly PW1, PW4, PW5 and PW8 and submitted that they have testified that accused persons abducted Aslam and Mohd Zahid was confined wrongfully in a room. He further submitted that it were the accused persons who had to explain as to how death of Mohd Zahid took place as he was in their custody, but they have failed to explain the same .
10 I have heard the Ld Addl. PP for the state and the ld counsel for the accused persons. I have also perused the record very carefully.
11 Accused persons are facing trial for the
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offences u/s 365/342/304/34 IPC on the allegations that on 14.8.2004, they abducted Mohd Aslam from the shop of Mohd Zahid (deceased) and in the intervening night of 14.8.2004 -15.8.2004 confined Mohd Zahid wrongfully in a room situated at house no. 630, Meer Vihar, Delhi. It is alleged that they also caused culpable homicide not amounting to murder of Mohd Zahid by knowingly, secretly and wrongfully confining him in room.
12 First of all, let me take the case qua offences u/s 365/342 IPC. PW1 Mohd Shamshad is the maker of the FIR and is shown to have made statement ExPW1/A. He deposed that on 14.8.2004, he received phone call from his wife Naseema Begum (PW9) from his house that accused Sahzad and Bhoora (juvenile) had come to their house and had taken Alslam from the shop of Zahid(deceased). PW1 further deposed that when he returned to his house the aforesaid facts were confirmed by one Hazi Shabir and then he along with Hazi Shabir went to the house of accused SC No. 165/14 State vs Mohd Sahjad etc (Page 13 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC Hanif. Accused Hanif stated that his daughter Shabnoor and deceased Mohd Zahid were seen together at the pond of Madan pur village. Accused Hanif brought his daughter back to his house but Mohd Zahid ran away from there.
13 PW1 further deposed that he made a request to accused Hanif to release Aslam but accused persons asked to bring Mohd Zahid first and then only Aslam would be released. From there, PW1 went towards Kanjhawala and met Mohd Zahid in Karala village on the way. Then he took Mohd Zahid along with Waqil(PW5) and Irfaan and Hazi Shabir to the house of Mohd Hanif. Mohd Zahid was handed over to accused persons and then only Aslam was released by them. PW1 further deposed that he again went at about 11:00pm to the house of accused Hanif and requested him to release Mohd Zahid till morning as his parents are coming in the morning to discuss the matter but despite that accused Hanif did not release Mohd Zahid.
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14 If PW1 Shamshad is to be believed then
Aslam was abducted by accused Sahzad and
Bhoora(juvenile) and Mohd Zahid (deceased) was confined wrongfully in a room by the accused persons which is contrary to the testimonies of other material witnesses which ultimately gives benefit of doubt to the accused persons due to the following reasons:
a) PW1 deposed that he received a call from his wife(PW9) who stated that accused Sahzad and Bhoora(juvenile) had taken away Aslam(PW8) but PW9 Naseema Begum deposed that accused Hanif, Sahjad and Bhoora(juvenile) had taken away Aslam(PW8) from the shop of Mohd Zahid. She is mentioning the name of accused Hanif also which is not the case of prosecution as reflected in the testimony of PW1 on whose statement present case came to be registered.
b) According to PW1 accused Mohd Hanif released Aslam only when custody of Mohd Zahid was handed over to him but said Aslam, who has appeared in the witness box as PW8, has deposed contrary to that. According to his testimony , he was taken away by accused SC No. 165/14 State vs Mohd Sahjad etc (Page 15 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC Bhoora(Juvenile) and Sahzad and also deposed that accused persons insisted that they will release him only when custody of Zahid is handed over to them but when he (Aslam) pleaded to them, accused persons allowed him to go and he returned to the house of his uncle Shamshad(PW1) at about 6:00 pm and at that time, Mohd Zahid(deceased) has already left the house of his uncle Shamshad(PW1). He further deposed that he was called by wife of Shamshad (PW9) that Mohd Zahid (deceased) has been taken away to the house of accused Hanif by Irfaan. There is material contradiction between the testimony of these two material witnesses. PW1 is claiming that Aslam was released when custody of Mohd Zahid(deceased) was given to accused persons whereas Aslam (PW8) has testified that he was released when he pleaded to accused persons , even prior to the alleged handing over of the custody of Mohd Zahid (deceased) to the accused persons.
c) Further, Aslam deposed that Mohd.Zahid(deceased) was taken away to the house of accused persons by Irfaan whereas PW1 Shamshad deposed that he had taken Mohd Zahid to the house of accused persons.
d) PW8 Aslam further deposed that after about one and half hour i.e at about 7:30 pm, accused Hanif and Sahzad SC No. 165/14 State vs Mohd Sahjad etc (Page 16 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC came to the house of his uncle Shamshad(PW1) and Zahid (deceased) was also there brought by Irfaan.
Accused Hanif and Sahzad asked Mohd Zahid(deceased ) to accompany them . On hearing this Mohd Zahid (deceased) came outside from the room. PW1 Shamshad stated that how Mohd Zahid can go from there without his permission to which Mohd Zahid(deceased) stated that he himself will go there and Irfaan stated that he will also accompany Mohd Zahid . Thereafter, Irfaan and Mohd Zahid (deceased) had gone with them. This is absolutely contrary to the version as given by PW1.
e) PW4 Mohd Yusuf deposed that accused Hanif and his son had asked them to send Mohd. Zahid with them to their house and they would marry Mohd. Zahid with their daughter on the next day when the parents of the Mohd Zahid would arrive. On this , Mohd Zahid and Irfan accompanied accused persons to their house. After one hour, Irfaan returned back to the house of his uncle Shamshad(PW1) who stated that Mohd Zahid(deceased) had slept there and locked the room from inside. He further deposed that at about 11:00 pm, on the same night , he along with Shamshad, Moinuddin and Hazi Shabir had gone to the house of accused Hanif to see whether Mohd Zahid(deceased) was alright and to take him back along with them but accused Hanif told them SC No. 165/14 State vs Mohd Sahjad etc (Page 17 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC that Mohd Zahid would sleep there and there was no problem and Mohd Zahid would return back after Nikah. This is also contrary version to the version of PW1 as Mohd. Yusuf(PW4) is also speaking that Mohd Zahid (deceased) was taken to the house of accused persons by Irfan and Mohd Zahid locked the door of the room from inside. PW4 has nowhere stated that Mohd Zahid was confined in a room by any of the accused persons. The testimony of PW4 cannot be thrown out. He is the prosecution witness . He is claiming to be one of the eye witness. It is not the case that PW4 Yusuf is not known to Mohd Shamshad(PW1) as during cross examination of PW1, he admitted that in relation Mohd Yusuf is his nephew.
f) PW5 Mohd Waqil is another public witness who has taken a contrary stand to the version given by PW1. He deposed that Mohd Zahid was taken away by accused Hanif and his son Sahjad on the ground that they will arrange the Nikah of their daughter with Mohd Zahid(deceased) on the next day. Mohd Zahid along with his cousin Irfaan has left for the house of accused Hanif. After some time, Irfaan returned back to the house of Shamshad(PW1) and Irfaan stated that Mohd Zahid (deceased) is very much comfortable and is sleeping after locking the door of room of accused Hanif from inside. PW5 further deposed that at about 11:30 pm on SC No. 165/14 State vs Mohd Sahjad etc (Page 18 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC the same night , while returning to his house, he had also gone to the house of Hanif and had seen Mohd Zahid inside the room from the 'roshandaan' and talked with Mohd Zahid . Mohd Zahid stated to them that he is very much comfortable and sleeping comfortably there. PW5 and PW4 have made it crystal clear that accused Mohd Zahid was never confined wrongfully in any of the room by any of the accused persons as alleged by the prosecution. Rather it has come on record that Mohd Zahid had locked the room from inside and he was comfortable there. It has also come on record that he had gone there with Irfaan without any force therefore, ingredients of offence u/s 342 IPC remain unproved. Same is the case qya the offence under section 365 IPC as there is material contradiction in the testimony of PW1 and PW8, which ultimately gives benefit of doubt to the accused persons.
15 Now, we advert to the case qua offence u/s 304 IPC . It is the case of the prosecution that Mohd Zahid (deceased) was confined wrongfully in a room and accused persons in furtherance of their common intention caused his death which is culpable homicide not amounting to murder.
SC No. 165/14 State vs Mohd Sahjad etc (Page 19 of 25 )
D.O.D 30.9.2014 FIR no : 199/2004
P. S : Kanjhawalan
u/s 365/342/304/34 IPC
16 PW6 Mohd Kalam , is the owner of the
said house. He deposed that accused Mohd Hanif and his son accused Sahzad was given some portion of second floor of the said house on rent and accused Mohd Hanif was residing there with his family. He deposed that one Sadiq was his tenant in a room on the ground floor and said room was given to him about 2-3 days prior to the incident in the year 2004. Sadiq had put his three sewing machines in the said room. On 14.8.2014, the rented room of Saddiq was open. On that day at about 9:00pm, one Shamshad(PW1) along with his nephew namely Mohd Zahid had come to his house on the ground floor. At that time accused Mohd Hanif along with his son namely Sehzad had also come down stairs. PW6 further deposed that in his presence they had decided that they would marry Mohd Zahid with one Babban(Daughter of accused Hanif) in the next morning. Thereafter, accused Hanif and Sehzad both went upstairs in their rented premises after locking deceased Mohd Zahid in the rented room of Sadiq from outside.
SC No. 165/14 State vs Mohd Sahjad etc (Page 20 of 25 )
D.O.D 30.9.2014 FIR no : 199/2004
P. S : Kanjhawalan
u/s 365/342/304/34 IPC
17 From the testimony of PW6 , it is clear
that on 14.8.2004 at about 9:00 pm, Mohd Zahid had come to that house. At that time accused Hanif and his son Sahzad has also come down from the second floor . It was decided that they would marry Mohd Zahid with their daughter . Thereafter, accused Hanif and Sahjad , both went upstair after locking Mohd Zahid inside the room of Mohd Sadiq from outside which is contrary to the version of PW4 and PW5 as both the witnesses have deposed that Mohd Zahid (deceased) had locked the room from inside.
18 During the cross examination of public witness PW1, PW4 , PW5 and PW8, it has come on record that room where the death of Mohd Zahid took place ,did not belong to accused persons and it belonged to one Mohd Sadiq. It has come on the record that Sewing machines belonging to Sadiq, were lying in the said room and the live wire were there. It is nowhere the case of the prosecution SC No. 165/14 State vs Mohd Sahjad etc (Page 21 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC that Mohd Zahid was confined in that room knowingly well that three sewing machines were lying there which is connected with the electricity through wires. None of the public witness has stated so that Mohd Zahid (deceased) was confined there with such intention or knowledge as alleged by the prosecution. Rather, from the testimonies of prosecution witnesses, it is evident that accused persons had asked Mohd Zahid to come to their house and to sleep there so that they can perform the Nikah of Mohd Zahid (deceased ) with the daughter of accused Hanif namely Shabnoor Zahan @ Babban.
19 According to the prosecution , accused Hanif had opened the door of the room in the next morning and Mohd Zahid was found dead but PW6 says that door was opened by Sahjad . Whereas inspector Hansraj(PW13) deposed that when he along with Ct. Vikram and Ct. Ramdhari entered inside the house , there was a room on the left side of the house which was already open. A SC No. 165/14 State vs Mohd Sahjad etc (Page 22 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC dead body of a male aged about 22-23 yrs. was found lying dead on the floor. No lock is shown to have been seized . PW4 and PW5 are saying that Mohd Zahid closed the door from inside . There are sets of evidence . One set of evidence indicates that there is possibility that room was locked from outside . Another set of evidence in the form of testimonies of PW4 and PW5 indicates that Mohd Zahid had locked the room from inside. That being so, the view which favours the accused, is to be adopted.
20 Further, the sewing machines are shown to have been seized along with wires but the wires were not sealed and the same were in the possession of police authorities till the same were produced before the court . In these circumstances, the possibility of tempering with the case property cannot be ruled out.
21 It has already been indicated that the room where the death of Mohd Zahid took place SC No. 165/14 State vs Mohd Sahjad etc (Page 23 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC was rented out to one Mohd Sadiq . It has not been explained by the prosecution that how the possession of the room was with the accused Hanif and his sons ? How they could allegedly lock the room from outside when admittedly it was rented out to Mohd Sadiq. Prosecution has failed to explain the same. Moreover, Dr. V.K Jha(PW14) had conducted postmortem on the body of deceased Mohd Zahid. He has categorically opined the cause of death was neurogenic shock as a result of electrocution. Not only that Dr V. K.Jha after going through the PM report Ex PW14/A and Viscera report, on the request of IO, gave subsequent report Ex PW14/B and opined that "homicidal element in this case is ruled out", which cannot be ignored.
22 In totality of the facts and the circumstances and the nature of the evidence brought on record by the prosecution , prosecution was unable to persuade me to hold that prosecution has been able to prove its case SC No. 165/14 State vs Mohd Sahjad etc (Page 24 of 25 ) D.O.D 30.9.2014 FIR no : 199/2004 P. S : Kanjhawalan u/s 365/342/304/34 IPC "beyond all reasonable doubt" against the accused persons. There are material improvements and inconsistencies in the testimonies of material prosecution witnesses which do not inspire confidence of this court.
23 In the background of the fact, the prosecution having failed to establish and prove the allegations against the accused and having failed to bring on record evidence against the accused persons to connect them conclusively to the commission of the offences, benefit of doubt is being given to the accused persons Mohd Hanif and Sahjad , who are hereby acquitted of the charges under Section 365/342/304/34 IPC .
24 File be consigned to Record Room after compliance of section 437(A) CrPC.
Announced in the open (Rajesh Kumar Goel) Court today i.e 30.9.2014 ASJ-5, North Rohini Court SC No. 165/14 State vs Mohd Sahjad etc (Page 25 of 25 )