Delhi District Court
Sc No. 32/13. State vs . Shabana & Another. on 18 November, 2013
SC No. 32/13. State Vs. Shabana & Another.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
Session Case No. 32/2013.
FIR No. 105/2011.
PS Bindapur.
U/s 302/34 IPC.
State.
Vs.
1.Shabana, W/o Late Mohd. Illiyas Khan, R/o Q105, Vikas Vihar, Manas Kunj, Uttam Nagar, Delhi.
2. Imran Khan, S/o Late Mohd. Illiyas Khan, R/o Q105, Vikas Vihar, Manas Kunj, Uttam Nagar, Delhi. ... Accused.
Date of Institution. : 30.7.2011.
Arguments Advanced On. : 7.11.2013.
Date of Judgment. : 18.11.2013.
:: JUDGMENT ::
Page No. 1 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
1. Briefly stated the facts of the case of prosecution as per the charge sheet, are that on 26.4.2011, ASI Dharamvir (PW20) of PS Bindapur received DD No. 8A (Ex PW1/A), wherein it was mentioned that at 10.20 am, wireless operator came to Duty Officer's room and produced one PCR call, the contents of which were "one lady has severally beaten her husband at C105, Vikas Vihar, Uttam Nagar, Delhi and he is unconscious" and the said information was reduced into writing vide the aforesaid DD and copy of the same was handed over to ASI Dharamvir (PW20) for appropriate action. ASI Dharamvir (PW20) and HC Pappu Ram (PW9) reached Vikas Vihar, where on inquiry, they came to know that there is no C Block in Vikas Vihar and, thereafter, they reached Q105, where on the spot, Beat Const. Prahlad and Const. Brij Mohan (PW8), alongwith PCR staff were found to be present. Meanwhile, Inspector ATO Pyare Lal also reached the spot. Complainant eye witness (PW4) Sehnaz W/o Sultan Seikh R/o R323, Hastsal Road, JJ Colony, Uttam Nagar, New Delhi, was found present, who got recorded her statement (Ex PW4/A), wherein she stated that she is residing alongwith her children and working as maid servant. She further stated that she had told Dr. A.S. Khan (property dealer) that she wanted to purchase a house, whereupon he (PW3 Dr. A.S. Khan) called back after 4 days and got her introduced to Illiyas (deceased) Page No. 2 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
and had stated that Illiyas is having a 50 square yards house at ground floor and in case she (Shahnaz) is interested (in buying), she may see the same. She further stated that Illiyas had informed her that the said house is in the name of his mother Amina Begum (PW21) and on the upper floor of the same, his first wife is residing and he is not residing there and is residing on rent at Shani Bazar and is keeping his second wife and mother there, with him. She further stated that Illiyas further informed that he wanted to sell the said house so that he may purchase a new house, far from his first wife. She also stated that he (Illiyas) asked her to stay in the said house for a day or two, before purchasing the same and in case no altercation takes place (of her) with his first wife, she may take the same and make payment and get the documents executed. The deal for the said house was fixed for Rs. 9 lakh. She further stated that yesterday (25.4.2011) at about 1.00 pm, she came to house no. Q105, Vikas Vihar. Meanwhile, Illiyas and his mother also reached there and they all three stayed there till 10.00 pm. During that time, both the sons (from first marriage) of Illiyas, were on the upper floor of the said house. Thereafter, at 11.00 pm, Illiyas and his mother went away and her (complainant) husband Sultan Seikh (PW2) came and he also talked with Illiyas (deceased). At 11.30 pm, her foster brother also came there and her Page No. 3 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
husband went back home and was dropped by Bhola (foster brother) on his motorcycle, as her mother in law was sick. She further stated that today (on the date of incident i.e. 26.4.2011) at 7.00 am, Illiyas brought tea for them in a thermos, one cup and fan (kind of snacks) and Bhola went away. She further stated that both (she and Illiyas) of them kept talking. She further stated that around 9.00 am, Shabana, wife (first) of Illiyas and his daughter (from first marriage) came and both went to the upper floor. After 45 minutes, wife (first) of Illiyas and his daughter came and sat in front of chair of Illiyas and told him that he cannot sell the said house, whatsoever may happen. On this, Illiyas told them that she may stay on the upper floor, as he is selling the ground floor. On this, the wife of Illiyas got up and started calling him names and held Illiyas by hair and started beating him in anger. During this time his daughter was standing there. Meanwhile, both the sons of Illiyas, namely, Imram holding iron rod and Juvenile (name of juvenile was mentioned but same is not reproduced herein in order to protect the identity and privacy of the juvenile) holding one baseball bat, came there from upper floor and started beating Illiyas. They gave beatings at the head of Illiyas with rod and bat. She further stated that when she asked them to leave, as he (Illiyas) would die, all three of them stated that they would kill him today. They also asked her Page No. 4 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
not to make noise. They pushed her and got the door bolted. Illiyas was thrown from sofa to the ground and, thereafter, beaten up. Thereafter, they opened the "kundi" and ran away to the upper floor. She further stated that when she came out, she saw that Illiyas was lying with his face towards the earth and lot of blood was spilled over there. She called at phone no. 100 and also informed the entire facts to Dr. A.S. Khan and he also made telephonic call. As per the charge sheet, when ASI Dharamvir reached house no. Q105, on entering the room, he found one "diwan" (single wooden bed with box inside for keeping clothes) placed in the left side of the room and near the front side wall, 2 sofas and one chair were lying and in between the same, the dead body of one person was lying with his face towards the earth and his head was near the left side wall. Lot of blood had spilled over on earth from his head. Some blood was also found on the seat cover near the wall. One pink and while flowering thermos having blood stains was found, whereupon "Milton" was written. One purple coloured polythene was found on the seat, whereupon "New Delite Tailor" was written. In the said polythene, there were 2 cups, on the bottom of which "Leobone China" was mentioned, 7 fans (kind of snacks), were found in a polythene. Towards the left side of the sofa chair, near wall, one glass of steel, which was broken from upper side Page No. 5 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
and one broken cup, were kept. Crime Team was called to the spot, which investigated the crime scene and photographs were obtained. The dead body was removed to the mortuary of DDU Hospital, through Const. Brij Mohan (PW8). ACP, PS Dabri also reached the spot. On the basis of inspection of the spot and in view of circumstances, offence u/s 302/34 IPC was found to have been committed. ASI Dharamvir prepared "tehrir" and sent the same, through HC Pappu Ram (PW9) to the Duty Officer for registration of FIR. Further investigation was handed over to Inspector Surender Kumar (PW22). During investigation, at the instance of complainant Sehnaz (PW4), the IO prepared the site plan of place of incident, the exhibits were taken into police possession, the statements of witnesses were recorded. Shabana (one of the accused) was interrogated and she accepted her crime and was arrested and all documents relating to her arrest were prepared. Information regarding her arrest was given to her daughter Shabnam. Her conviction slip was prepared. During her sustained interrogation, she made disclosure statement that she was married to Mohd. Illiyas (deceased) R/o Q105, in 1988 and she was having 3 children from him, elder son Imran (aged 22 years), daughter Shabnam (aged 17 years) and younger son Juvenile (name of juvenile was mentioned but same is not reproduced herein in order to protect the identity and Page No. 6 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
privacy of the juvenile) (aged 15 years). She further submitted that the said house no. Q105 was in the name of her mother in law "Amina" and the ground floor of the same was with her husband Illiyas. She further stated that she is residing at the first floor of the said house with her 3 children since last 12 years, despite having dispute relating to the said house with her husband and the matter pertaining to that is pending in the Court and from that time, her husband was residing separately and wanted to sell the said house. She further stated that she and her children used to tell him (Illiyas) not to sell the said house. She further stated that her husband got married for the second time and was residing with his second wife at "Shani Bazar". She also stated that on 24.4.2011, she had taken her daughter to Kanpur, where her (Shabana) brother 'Nafiz' was residing. On 25.4.2011, in the afternoon, her son Juvenile (name of juvenile was mentioned but same is not reproduced herein in order to protect the identity and privacy of the juvenile) informed her brother Nafiz on mobile, that his father has called one lady for selling the said house and is staying alongwith her in the said house. She also disclosed that on 26.4.2011, she alongwith her daughter reached back at house no. Q105, at 9.00 am and found that at the ground floor, Illiyas and one lady were sitting and talking. She further stated that thereafter, she alongwith her Page No. 7 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
daughter went to upper floor, where her 2 sons were sitting and she informed them that their father is selling the house. She also disclosed that she told her sons that today Illiyas (deceased) should be killed and that she is going downstairs and as soon as she calls, they should come (there) alongwith arms. She further disclosed that thereafter, she alongwith her daughter reached the room of Illiyas and told him that they would not let him sell the said house. Thereupon, Illiyas told them that they may remain on the upper floor and he is selling the ground floor only. She further disclosed that on this, she got angry and as per the plan, caught hold of the hair of Illiyas and called her sons and slapped him (Illiyas) and called him (Illiyas) names. Meanwhile, her children came. Imran was armed with iron rod and Juvenile (name of juvenile was mentioned but same is not reproduced herein in order to protect the identity and privacy of the juvenile) was armed with baseball bat and they gave many blows near head of Illiyas and the lady in the said room tried to make Illiyas free and shouted. She further disclosed that thereafter, they all three asked the lady not to make noise and pushed her inside the room and bolted the room. She further stated that thereafter, she told her sons to kill him (Illiyas) and thereafter, all 3 made Illiyas lie down on the floor with his face towards the earth and beat him with rod and bat, as a result of which, Illiyas Page No. 8 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
bled profusely and got unconscious. Thereafter, all of them opened the "kundi" and ran up stairs. She further disclosed that her sons have hidden iron rod and baseball bat in one corner of the room and her son Juvenile (name of juvenile was mentioned but same is not reproduced herein in order to protect the identity and privacy of the juvenile) and daughter came down and her son Imram ran away. She further stated that meanwhile, police came and she got recovered the iron rod and baseball bat from the roof. She lastly stated that due to greed for the said house, she committed mistake and may be forgiven. As per the further story of the prosecution, the Juvenile (name of juvenile was mentioned but same is not reproduced herein in order to protect the identity and privacy of the juvenile) was handed over to SI Jatender and against him separate action was being taken. On 27.4.2011, postmortem on the dead body of Illiyas was got done, vide PM No. 486/11 and after recording the identification statement, the dead body was handed over to his LRs. Accused Shabana was produced before the concerned Court and was sent to JC. After postmortem, the concerned doctor handed over 2 sealed pulandas sealed with the seal of the said hospital, which were taken into police possession and coaccused Imran was searched for. On 4.5.2011, accused Imran produced himself before the concerned Court and after Page No. 9 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
interrogation, he was formally arrested in the Court and was taken into one day police remand and he also made his disclosure statement. As per the case of the prosecution, the disclosure statement of the said accused is on the same footing as that of coaccused Shabana (mother of accused Imran). In the later part of his disclosure statement, he disclosed that after the incident, he had hidden the iron rod in the corner of the roof of one of the rooms and ran away. He also stated that clothes worn by him during the incident, have been hidden by him at the roof and can be recovered. On 20.5.2011, the postmortem report of deceased Illiyas was obtained alongwith inquest paper, whereupon the doctor opined that cause of death is "shock, due to head injuries produced by blunt force impacts. Head injuries mentioned in the report are sufficient to cause death in ordinary course of nature. All injuries are ante mortem in nature. Time since death approximately one day prior to postmortem examination." The sealed pulanda containing the weapon of offence i.e. Iron rod and baseball bat, were sent to the concerned doctor for subsequent opinion, through SI Ashok Kumar (PW11) and he (doctor) opined "after going through the postmortem report and examining the exhibits, I am of the opinion that injuries over the head and left thigh were possible with both the weapons. Injuries over the back were possible with the Page No. 10 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
baseball bat. Injuries over the head were sufficient to cause death in ordinary course of nature." Thereafter, the said two pulandas were again sealed with the seal of "DFMT, DDU Hospital", and returned. On 27.6.2011, 13 exhibits alongwith 2 sample seals of "DFMT, DDU Hospital", were sent to FSL, Rohini, vide RC No. 50/21/11, through Const. Sandeep (PW10). The scaled site plan of the spot was prepared, through Draftsman. After completion of investigation, charge sheet for the offence u/s 302/34 IPC was filed against the accused persons, namely, Shabana and Imran and PIR report against Juvenile (name of juvenile was mentioned but same is not reproduced herein in order to protect the identity and privacy of the juvenile), was prepared separately and was sent to concerned ld. JJBII. After filing of the charge sheet, FSL report was also filed.
2. After filing of the charge sheet, cognizance was taken by the concerned ld. MM and complete copies were supplied to the accused persons and since the offence u/s 302/34 IPC was sessions triable, therefore, the case was committed to the Court of Sessions.
3. Vide order dated 17.8.2011, Sh. Virender Bhat, ld.
Predecessor, framed the charge u/s 302/34 IPC against both the accused persons, to which they pleaded not Page No. 11 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
guilty and claimed trial.
4. The prosecution has examined 22 witnesses in support of its case.
5. PW1 HC Om Prakash deposed that on on 26.4.2011, he was posted as Duty Officer at PS Bindapur and his duty hours were from 9.00 am to 5.00 pm and on that day, at about 10.20 am, he received a call from PCR to the effect that "one lady had beaten her husband, who is unconscious", which was reduced into writing by him, vide DD No. 8A, photocopy of same is Ex PW1/1 and the said call was marked to ASI Dharamvir for taking necessary action. He further deposed that on that day, at about 2.20 pm, he received a rukka from HC Pappu Ram, sent by ASI Dharamvir and on the basis of the said rukka, he registered the FIR No. 105/11, u/s 302/34 IPC, photocopy of which is Ex PW1/B. He further deposed that he made endorsement on the rukka Ex PW1/C and handed over the original rukka and copy of FIR to HC Pappu Ram and the investigation of the case was marked to Inspector Surender Kumar.
6. PW2 Mohd. Sultan Sheikh deposed that Mohd. Illiyas (deceased) was the brother in law of his brother and he does not know as to when he died, but he died about 5 Page No. 12 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
months before today (date of his deposition is 13.9.2011 and date of death of deceased is 26.4.2011). He further deposed that on the date of death of Illiyas, sister of deceased informed him about the same on telephone at 12.00 noon or 1.00 pm and further that the deceased had been taken by the police to DDU Hospital. He further deposed that at that time, he was present in his shop at B323, Hastsal, Uttam Nagar, Delhi, whereas his wife (eye witness) was present at Q105, Manas Kunj Road, Vika Vihar, Uttam Nagar, the ground floor of which was purchased by them for a sum of Rs. 9.50 lakh from Dr. S.K. Khan, two days before the incident. He further deposed that he went to DDU Hospital and remained there for one hour, where he met his wife Shenaz, who was in police custody, as she was a witness to the death of deceased. He further deposed that on the same day, he was summoned by the police and reached there at about 3.30 pm and inquiries were made from him by the police regarding the death of deceased, but police had not recorded his statement. He further deposed that he did not know any of the accused, (present in the Court) on that day.
7. PW3 Dr. A.S. Khan deposed that he knows both the accused persons, namely, Shabana and Imran, present in the Court on that day. He further deposed that he also Page No. 13 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
knew deceased Illiyas, who was the husband of accused Shabana and earlier Illiyas and Shabana used to reside together, but thereafter, on account of certain differences, they stared residing separately. He further deposed that thereafter, Illiyas had solemnized a second marriage with "Shaheen" and both them had been residing as tenant, at A2/42, Hastsal Road, Uttam Nagar, New Delhi, till the death of Illiyas. He further deposed that house no. Q105/AB, Vikas Vihar, Vikas Kunj, Uttam Nagar, is in the name of mother of deceased Illiyas and Illiyas and his mother wanted to sell the said house and they had expressed their such intention to him in the year 2007 and ultimately, they sold the ground floor of the same, through him in the year 2008 and Illiyas, his mother and first wife, were staying on the first floor. He further deposed that accused Shabana used to approach the buyer and quarrel with him often and the buyer became tired of the quarrels with accused Shabana and he (buyer) approached him (PW3) in this regard and thereafter, he (PW3) advised Illiyas to return the purchase money back to the buyer and take back the house to which, Illiyas asked him to find another buyer for the ground floor, so that the purchase money received from the prospective buyer, can be paid to the earlier buyer. He further deposed that he found that one Shahnaz (PW4) W/o Sultan Sheikh, was interested in buying the said ground Page No. 14 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
floor and the deal was finalized for Rs. 9 lakh, out of which Rs. 50,000/ was paid by Shahnaz to Illiyas and it was agreed that Shahnaz alongwith her family would stay in the said ground floor for a few days to see that whether same is fit for her family. He has further deposed that she shifted in the said house on 24 or 25.4.2011. He further deposed that the first wife of Illiyas was residing on the first floor of the said house and on the next day, in the morning, he received a call from Shahnaz, who informed that Shabana and her son, have killed Illiyas, thereafter, he informed PCR on telephone no. 100 from his mobile phone no. 9211247474.
8. PW4 Shahnaz was the eye witness of the present case and has deposed about the incident in question. Her deposition is broadly as per the prosecution case and she has been consistent in her testimony on all material points.
9. PW5 Dr. Yogesh Tyagi, Assistant Professor, Department of Forensic Medicine, PGI, Dr. RML Hospital, New Delhi, deposed that on 27.4.2011, he was posted as Junior Specialist at DDU Hospital and on that day, on the request of IO of this case, he conducted postmortem on the dead body of Illiyas and has proved his postmortem report as Ex PW5/A, wherein following injuries are Page No. 15 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
mentioned: "External Injuries:
1. Fresh lacerated wounds present over a) right parietal region, vertically placed, with abraded margins, of size 8.0 X .8 X 0.5 cms.
2. Fresh contusions present over a) back of left shoulder, elongated, obliquely placed, two in number, overlapping with each other, collective length is 25 cms and individual width is 3.0 cms each b) back of lower chest, obliquely placed, two in number, parallel to each other, of size 15 X 2.0 cms each. Lower ends of each contusion mentioned above are tapered. c) left thigh outer aspect, upper third of size 15 X 10 cms. d) left thigh outer aspect, middle third of size 5.0 X 2.0 cms.
3. Fresh abrasion over a) left knee outer aspect of size 1.0 X 1.0 cms.
Internal Injuries: Head Page No. 16 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
1. Scalp: reddish contusions over both temporal and right parietal regions.
2. Skull: linear fracture left temporal bone and petrous temporal bone.
3. Brain: subdural hemorrhage over left temporal lobe.
4. Base of skull: NAD.
NeckThyroid and hyoid are intact. OthersNAD Chest (throax)
1. Ribs and chest wall: NAD.
2. Diaphragm: NAD.
3. Esophagus: NAD.
4. Pleural cavities: NAD.
5. Lungs. Congested.
6. Heart and pericardial sec: Congested. Page No. 17 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
7. Large blood vessels: NAD.
Abdomen
1. Abdominal wall: NAD.
2. Peritoneal cavity: NAD.
3. Stomach: 50 ml of food particles present.
B Mucosa: NAD.
C Abnormal smell: None.
4. Small intestine: soft & congested.
5. Large intestine, vermiform appendix, mesentery & pancreas: NAD.
6. Liver: NAD.
7. Spleen: soft & congested.
8. Kidney, renal pelvis, ureter: NAD.
Page No. 18 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
Genital organ
1. Urinary bladder: NAD.
2. Rectum: NAD.
3. Genital organs: NAD.
4. Spinal column: Intact.
Opinion: Cause of death is shock due to head injuries produced by blunt force impacts. Head injuries mentioned in the report are sufficient to cause death in ordinary course of nature. All injuries are ante mortem in nature."
He further deposed that on 16.6.2011, IO of the case, moved an application before him, seeking subsequent opinion regarding weapon of offence and produced 2 pulandas sealed with the seal of "SKY", in which iron rod and baseball bat were taken out. He further deposed that he examined the same and after going through postmortem report, opined that the injuries present over the head and left thigh of the deceased, were possible with both the weapons and injuries over back, were possible with baseball bat. He proved his subsequent Page No. 19 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
opinion as Ex PW5/B.
10. PW6 Const. Suresh deposed that on 26.4.2011, he was posted as Photographer in Mobile Crime Team, South West Dwarka, and on that day, he alongwith Incharge, Crime Team ASI Khajan Singh, reached at quarter no. 105, Manas Vihar, Vikas Nagar, Uttam Nagar, where they found dead body of a male lying on the floor on the ground floor and on direction of Incharge Crime Team, he took 13 photographs of the dead body and the spot of incident, from various angles. He proved the said photographs Ex PW6/A1 to Ex PW6/A13 and negatives of the same vide Ex PW6/B1 to Ex PW6/B13.
11. PW7 ASI Khajan Singh deposed that on 26.4.2011, he was posted as Incharge in Mobile Crime Team, South West Dwarka, and on that day, on receiving information from PS Bindapur, he alongwith staff, reached the place of incident at Q105, Manas Kunj, Vikas Nagar, Uttam Nagar, where he came to know that a person, namely, Illiyas has been killed. He further deposed that his dead body was lying on the floor on the ground floor with face downwards and on his direction, Const. Suresh, took photographs of the dead body and the spot of incident, from various angels. He further deposed that he inspected the spot and prepared his report Ex PW7/A, Page No. 20 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
which was handed over to ASI Dharamvir, who was present at the spot.
12. PW8 Const. Brij Mohan deposed that on 26.4.2011, he was posted at PS Bindapur and on that day, on the instructions of IO, he took the dead body of lliyas (deceased) from the spot of incident to DDU Hospital and after postmortem, the autopsy doctor, handed over, 2 sealed pulandas alongwith sample seal to him, which he handed over to Inspector Surender Kumar (PW22) for seizure and same were seized by him, vide seizure memo Ex PW8/A.
13. PW9 HC Pappu Ram deposed that on 26.4.2011, he was posted as HC in PS Bindapur and was assigned emergency duty on that day. He further deposed that on that day, on receiving a call, vide DD No. 13A by ASI Dharamvir, he alongwith ASI Dharamvir, reached at the place of incident i.e. quarter no. 105, Vikas Vihar, where many persons had gathered, Beat Const. Prahlad was also found present there and the PCR had already reached the spot. He further deposed that they came to know from Const. Prahlad that a person is lying with his face downwards in the space between the sofa set and the bed in the one room of the quarter and a lady has been kept confined in the other room. He further deposed that the Page No. 21 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
door of that room was bolted from outside and ASI Dharamvir entered that room, brought out that lady and made inquiries from her, who informed that wife and children of the person, who is lying in another room, had beaten him and that they are staying on the first floor. He further deposed that thereafter, he alongwith ASI Dharamvir went to the first floor, where they found a lady, her daughter and a minor child and ASI Dharamvir made inquiries from them, to which that lady disclosed her name as Shabana and informed that the person, who is lying in the room below, is her husband. He further deposed that thereafter, they entered the room, where the male person was lying with his face downwards, who was having head injuries and was bleeding. He further deposed that one "Milton" thermos, seven fans (kind of snack), one steel glass, 3 chinaware cups, one polythene bag with words "New Delite Tailor" written and one of the cups broken, were found in the room and the said person Illiyas was unconscious. He further deposed that ASI Dharamvir recorded the statement of the lady, who was kept confined in the room, in the ground floor and whose name came to be known as Shahnaz and prepared rukka, on the basis of her statement and sent him (PW9) for registration of FIR. He further deposed that after registration of the case FIR, he came back to the spot and handed over the original rukka and copy of FIR to Page No. 22 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
Inspector Surender Kumar. He further deposed that all the aforesaid articles were seized by the IO, vide seizure memos Ex PW9/A to Ex PW9/D and IO also took into possession the blood stained seat cover of the sofa, which was in the room, vide seizure memo Ex PW9/E and lifted earth control, blood stained earth and blood samples on gauze piece and seized the same, vide seizure memos Ex PW9/F. He further deposed that Inspector Surender Kumar arrested Shabana, vide arrest memo Ex PW9/G and recorded her disclosure statement Ex PW9/H. He further deposed that accused Shabana got recovered an iron rod and baseball bat from the roof of the quarter, which were seized by IO, vide seizure memo Ex PW9/I. This witness correctly identified the accused Shabana, present in the Court, during his deposition. He has further proved the baseball bat and iron rod Ex P1 and Ex P2 respectively. He has further proved pink colour polythene having the words "New Delite Tailor" written on it, containing two tea cups and 6 fans (kind of snack), as Ex P3, which were lifted by the IO from the room, where the dead body of Illiyas was found. He has further proved one "Milton" thermos Ex P4 and sofa cover Ex P5, which were lifted by the IO from the room, where the dead body of Illiyas was found. He further proved, one broken tea cup and one broken steel glass vide Ex P6, which were lifted by the IO from the room, where the dead body of Page No. 23 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
Illiyas was found.
14. PW10 Const. Sandeep deposed that on 27.6.2011, he was posted as Constable in PS Bindapur and on that day, on the direction of SHO, MHC(M) handed over to him 13 pulandas alongwith 2 sample seals, vide RC No. 50/12/11 for depositing the same at FSL, Rohini, which were deposited there against acknowledgment and the said acknowledgment was handed over by him to MHC(M) of PS Bindapur. He further deposed that so long as the said pulandas remained in his possession, they remained intact and the IO had recorded his statement.
15. PW11 SI Ashok Kumar deposed that on 6.6.2011, he was posted as SI in PS Bindapur and on that day, on the direction of Inspector Surender Kumar, he received 2 sealed pulandas from MHC(M) HC Jail Singh and took those to DDU Hospital, vide RC No. 43/21/11 and handed over the same to Dr. Yogesh Tyagi against acknowledgment and the said acknowledgment was handed over by him to MHC(M) of PS Bindapur. He further deposed that so long as the said pulandas remained in his possession, they remained intact. He further deposed that on 15.6.2011, he went to DDU Hospital and obtained the subsequent opinion from Dr. Yogesh Tyagi, who handed over his subsequent opinion and 2 sealed pulandas and the said Page No. 24 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
subsequent opinion was handed over by him (PW11) to the IO and the said pulandas, were deposited with the MHC(M).
16. PW12 HC Jai Singh deposed that on 26.4.2011, he was posted as MHC(M) in PS Bindapur and on that day, IO handed over him 10 pulandas, sealed with the seal of "SKY" for depositing in the malkhana, which were deposited vide enter at serial no. 1114 in register no. 19, photocopy of the same is Ex PW12/A. He further deposed that on 27.4.2011, IO handed over to him 2 pulandas, sealed with the seal of "DFMT, DDU Hospital" alongwith 2 sample seals, for depositing in the malkhana, which were deposited vide entry at serial no. 1115 in register no. 19, photocopy of the same is Ex PW12/B. He further deposed that on 3.5.2011, IO handed over him one pulanda, sealed with the seal of "SKY" for depositing in the malkhana, which was deposited vide entry at serial no. 1136 in register no. 19, photocopy of the same is Ex PW12/C. He further deposed that on 6.6.2011, on the direction of SHO, he handed over 2 sealed pulandas to SI Ashok Kumar, vide RC No. 43/21/11 for deposing in DDU Hospital, for subsequent opinion and he made entry to this effect at serial no. 1114 in register no. 19, photocopy of the same is already Ex PW12/A, from portion X to X. He further deposed that on 15.6.2011, SI Ashok Kumar handed over to him 2 sealed pulandas, sealed with the seal of "DFMT, Page No. 25 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
DDU Hospital" for depositing in the malkhana, which were deposited vide entry at serial no. 1114 in register no. 19, photocopy of the same is already Ex PW12/A, from portion Y to Y. He further deposed that on 27.6.2011, on the direction of SHO, he handed over 3 sealed pulandas to Const. Sandeep, vide RC No. 50/21/11 for deposing at FSL, Rohini and he made entry to this effect at serial no. 1114 in register no. 19, photocopy of the same is already Ex PW12/A, from portion Z to Z. He further deposed that so long as the pulandas remained in his possession, they remained intact.
17. PW13 SI Mahesh Kumar deposed that on 19.6.2011, he was posed as Draftsman in Crime Branch and on that day, at the request of IO, he reached at PS Bindapur and from there, he alongwith IO, reached at house no. Q105, Vikas Vihar, Uttam Nagar, where at the instance of IO, he prepared rough notes of the place of incident and on the basis of same, he prepared scaled site plan Ex PW13/A on 21.6.2011, which was handed over to IO. He further deposed that after preparing the scaled site plan, he destroyed the rough notes.
18. PW14 Const. Attar Singh deposed that on 27.4.2011, he was posted at PS Bindapur and on that day, Duty Officer handed over to him one envelope to deliver the same to Page No. 26 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
the concerned ld. MM and, accordingly, he reached the house of Sh. Sushant Changotra, ld. MM at Saket and handed the said envelope to him.
19. PW15 WConst. Anita deposed that on 26.4.2011, she was posted in PCR, PHQ and her duty hours were from 8.00 am to 2.00 pm and on that day, at about 10.13 am, she received a call from mobile no. 9211247474 to the effect that a lady has severally beaten her husband at Q Block, House No. 105, Vikas Vihar, Uttam Nagar. She further deposed that she filled up PCR form, attested copy of which is Ex PW15/A and that she sent the information to the concerned net.
20. PW16 HC Jeet Ram deposed that on 26.4.2011, he was posted in PCR Van Zebra 31 and on that day, his duty hours were from 8.00 am to 8.00 pm and on that day, at about 10.40 am, he received an information from PCR on wireless to the effect that a lady has severally beaten her husband at Q Block, House No. 105, Vikas Vihar, Uttam Nagar. He further deposed that he alongwith Const. Jai Prakash and Const. Kuldeep, reached the spot, where they saw that a crowd had gathered outside the house and on entering inside the house, they found a person lying on the floor in one of the rooms with his face downward, who had bled from his head and there was Page No. 27 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
blood around his head and his body was cold. He further deposed that he apprised the Control Room about the circumstances and after some time, SHO, PS Bindapur, reached the spot and thereafter, they left the spot.
21. PW17 R.K. Singh, Nodal Officer, Bharti Airtel Ltd., deposed that the mobile no. 8800650721 was allotted in the name of Shahnaz Sheikh W/o Sultan Sheikh R/o Uttam Nagar, New Delhi, and has proved the photocopy of the customer application form Ex PW17/A and photocopy of election identity card Ex PW17/B, as proof of identity furnished by said customer. He has further proved the CDR of the aforesaid mobile phone from 20.4.2011 to 30.4.2011, Ex PW17/C and certificate u/s 65B of Evidence Act Ex PW17/D in respect of aforesaid CDR.
22. PW18 WHC Gayatri deposed that on 26.4.2011, she was posted as HC in PS Bindapur and on that day, she was summoned by the SHO to the house of accused Shabana, where on the direction of SHO, she conducted search of Shabana, but nothing was recovered from her search. She further deposed that she reached the house of accused Shabana at about 9.30 pm and remained there for about 3 hours and thereafter, WConst. Rajbai was summoned from PCR and she handed over the custody of accused Shabana to her. She has proved the personal search Page No. 28 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
memo of accused Shabana Ex PW18/A.
23. PW19 HC Nihal Singh deposed that on 4.5.2011, he was posted as HC in PS Bindapur and on that day, he alongwith IO, had come to Dwarka Courts in connection with the investigation of this case, as accused Imran had surrendered before the Court of Sh. Sushant Changotra, ld. MM, and after taking permission from the ld. MM, the IO, interrogated the accused and arrested him in this case, vide arrest memo Ex PW19/A and said accused was remanded to one day PC. He further deposed that from the Court, accused Imran was taken to DDU Hospital for medical examination and thereafter, brought to PS, where he made his disclosure statement Ex PW19/B and then, he was taken to the spot, where he pointed out the room, where he had beaten the deceased and pointing out memo Ex PW19/C was prepared in this regard. He further deposed that accused Imran got recovered one blue colour jeans pant and one blue colour round neck tshirt, which were lying on the bed alongwith other clothes on the first floor room which were seized vide seizure memo Ex PW19/D and he (accused) further pointed out a place on the roof of the house, where he had kept the iron rod and wooden rod after the commission of offence, but these could not be found there and the pointing out memo Ex PW19/E in this regard was prepared and thereafter, the Page No. 29 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
accused was brought to PS and kept in lockup. He further deposed that on the next day, he produced the accused before the Court and said accused was sent to JC. This witness has correctly identified the accused Imran during his deposition, in the Court. He has proved one blue colour tshirt and one blue colour jeans pant Ex P7, which were got recovered by accused Imran.
24. PW20 ASI Dharamvir has deposed about the initial investigation done by him in this case and has proved the rukka Ex PW20/A.
25. PW21 Amina Begum deposed that she is residing with her daughter Shahida and is owner of house bearing no. Q105, Vikas Vihar, Gali No. 3, Uttam Nagar, New Delhi, and deceased Illiyas was his son. She further deposed that his son Illiyas had gone to Saudi Arabia for work and there used to be quarrel between herself and her daughter in law Shabana, almost daily and she (PW21) was compelled to leave that house. She further deposed that she left the aforesaid house about one year before the incident and started residing somewhere else as a tenant. She further deposed that on the return of Illiyas from Saudi Arabia, he used to say with her at the tenanted house and they wanted to sell the aforesaid house (Q105). She further deposed that accused Shabana Page No. 30 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
alongwith her children stayed at the first floor of house no. Q105 and the ground floor of the said house was lying vacant. She further deposed that they wanted to sell the said house and had discussed the same with accused Shabana about her share in the sale proceeds, but the accused Shabana caused obstruction in the sale of the said house and there used to be quarrels between them and Shabana on this issue. She further deposed that they had sold the said house about 2 or 3 months before the death of Illiyas and they had not given the possession of the house to the purchaser. She further deposed that she used to come and sleep on the ground floor of the said house almost daily and used to leave in the morning. She further deposed that on the night before the incident, they had brought one Shahnaz and her husband, the purchaser of the house, to the said house to have a look at the same and since it got late in night and their residence was quite far away, therefore, they (Shahnaz and her husband) stayed in the ground floor of the house for the night and she did not sleep there that night. She further deposed that her son Illiyas came to the house in the morning at about 10.00 am and at about 12.00 noon, police officials came to her and informed about the death of Illiyas.
26. PW22 Inspector Surender Kumar, is IO of the present case Page No. 31 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
and has deposed about the investigation carried out by him in the present case and the said deposition is as per the prosecution version.
27. Thereafter, separate statements of accused persons u/s 313 CrPC were recorded and all the incriminating circumstances were put to the accused persons, to which stand of the accused persons was of general denial and they stated that they are innocent and that they have been implicated falsely in the present case.
28. I have heard Sh. Pramod Kumar, ld. Addl. PP for State.
However, Sh. F.A. Banisrael, ld. counsel for accused persons had chosen not to address oral final arguments and instead had filed written submissions.
29. I have perused the entire record, carefully.
30. The most important witness to the case of the prosecution is PW4 Shahnaz and she is stated to be an independent witness of the killing of deceased. She has deposed in her examination in chief that in the month of April, 2011, she had purchased ground floor of house no. Q105, near Manas Kunj, Uttam Nagar, New Delhi, from Illiyas (deceased) and she alongwith her family had shifted in the said house on 25.4.2011. She further deposed that the Page No. 32 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
first wife of Illiyas i.e. accused Shabana (correctly identified during deposition) and her children, were residing on the first floor of that house and Illiyas had told her that his relations with his first wife were strained and further asked her (PW4) to stay in the aforesaid house for some time and to see whether she can adjust with his first family. She has further deposed that in the evening of 25.4.2011, Illiyas and his mother also came to the said house and stayed there till 11.30 pm and her (PW4) husband was also present in the house. She further deposed that her husband and Illiyas also talked to each other and at 11.30 pm, Illiyas and his mother left the house and at 12.30 pm, in the night her husband also left the house and went to attend his ailing mother in another house. She further deposed that she alongwith her foster brother stayed in the ground floor of the house for the night and in the morning of 26.4.2011, Illiyas came to them alongwith morning tea and thereafter, her foster brother left the house. PW4 further deposed that accused Shabana and her daughter were not in the house during the night and they were in the hospital, as her daughter was sick and her two sons were present in the house throughout the night. She further deposed that at about 9.30 am, accused Shabana alongwith her daughter came to the house and went straight to the first floor portion, without talking (with this witness or Illiyas) and at about Page No. 33 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
9.45 am, she came down to talk to her husband Illiyas, who was sitting in the ground floor. She further deposed that thereafter, they (accused Shabana and her husband Illiyas) started abusing each other and accused Shabana caught Illiyas by his hair and started beating him, but when she (PW4) tried to intervene, the deceased stopped her from doing so, saying that it is their family matter. Thereafter, daughter of Shabana also joined Shabana in quarrel with Illiyas. She further deposed that Shabana, thereafter, called his both sons, who came down and her elder son was having an iron rod in his hand and the younger son was having a baseball bat in his hand and all of them started beating Illiyas with the rod and bat in presence of this witness. She further deposed that she (PW4) requested them not to beat Illiyas, but they did not stop saying that it is their family matter and asked her to remain silent and thereafter, she called police PCR on telephone no. 100 from her mobile phone no. 8800650721 and while, she was calling the PCR, the sons of Shabana, pushed her outside the room and bolted the room from inside. PW4 further deposed that she watched through window of the room that accused Shabana and her sons were again beating Illiyas and pushed him into the gap between the sofa set and the double bed in the room. Thereupon, she raised an alarm. This PW has further deposed that the accused and her sons opened the door of Page No. 34 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
the room and went upstairs to the first floor. Thereafter, she went inside the room and found blood all over in the room. She further deposed that Illiyas was not in a position to talk or move and police reached there after about half an hour, but by that time, Illiyas had died. She further deposed that police went to the first floor of that house and recovered the iron rod and baseball bad from there and the police apprehended accused Shabana, her two sons and daughter and took them alongwith it. She further deposed that police recorded her statement Ex PW4/A. Further, during her testimony she correctly identified the iron rod and baseball bat, Ex P2 and Ex P1, respectively, vide which the deceased was beaten up by the accused persons.
31. Ld. counsel for accused persons in the written submissions filed on behalf of the accused persons, has stated that the prosecution has miserably failed to prove the sale of the said ground floor in question because Shahnaz (PW4) and her husband Sultan Sheikh (PW2) and Dr. A.S. Khan (PW3), have deposed quite contrary to each other. It is further mentioned on behalf of the accused persons that PW2 Sultan Sheikh has stated that they purchased the house in question for Rs. 9.50 lakh, but he is silent about the payment of any amount to the buyer in this regard, but PW3 Dr. A.S. Khan has stated Page No. 35 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
that the deal was finalized for Rs. 9 lakh, out of which Rs. 50,000/ was paid by Shahnaz (PW4) to Illiyas (deceased), whereas the complainant (PW4) is silent about the consideration amount of the floor in question, but she has stated that she had given a sum of Rs. 4 lakh as earnest money to Illiyas (deceased) and obtained a written receipt for a sum of Rs. 4 lakh from Illiyas, but surprisingly, she stated before the ld. JJB that she purchased the ground floor in question for Rs. 9 lakh and had paid Rs. 4.5 lakh as earnest money. It is also mentioned that PW2 Sultan Sheikh stated before this Court that he purchased the floor in question from Dr. S.K. Khan, but before the ld. JJB, he stated that he purchased the same from A.S. Khan. It is further mentioned that PW4 Shahnaz stated before this Court that she purchased the floor in question from deceased Illiyas, but before the ld. JJB, she deposed that she purchased the same from S.K. Khan. It is also mentioned that the prosecution failed to establish the transaction of the ground floor between the complainant Shahnaz and deceased Illiyas by way of any documentary proof, as to the sale of the floor in question and, as such, in view of the quite contrary statements of the PW2, PW3 and PW4 and lack of any documentary proof of the sale of the floor in question, the prosecution has miserably failed to prove the reason behind the crime and, as such, the story of the prosecution becomes doubtful and the Page No. 36 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
presence of the complainant at the spot is doubtful.
32. No doubt there are aforesaid contradictions. The motive of killing of deceased, as per prosecution is that the aforesaid house was in the name of the mother of the deceased and the accused Shabana (estranged first wife of deceased) was staying at the first floor of the said house alongwith her 3 children (out of which one is Imran, (another accused) and her husband Illiyas (deceased) wanted to sell the ground floor of the said property, but the accused Shabana and her children were opposing the same and used to quarrel with him in this regard. Further prosecution story is that since the deceased was going to sell the ground floor of the said property to PW4 Shahnaz and the deceased was present with Shahnaz at the ground floor on the fateful day, therefore, the accused persons, in furtherance of their common intention to commit criminal acts, committed the murder of the deceased. Inspite of the aforesaid contradictions, one thing is clear from the testimony of material prosecution witnesses Shahnaz (PW4), her husband Sultan Sheikh (PW2), PW3 (property dealer) and PW21 Amina Begum (mother of deceased), that PW21 Amina Begum was the owner of the said property and the deal for selling the ground floor of the said house was finalized between the deceased and PW4 Shahnaz and that the PW4 Shahnaz Page No. 37 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
had shifted to the said house on 25.4.2011, to see whether she can adjust with the first family of the deceased. However, admittedly, no sale documents regarding transfer of the ground floor of the said property, were executed. Still, the various discrepancies regarding the consideration amount and bayana (initial amount) paid in this regard, as mentioned in the testimony of the aforesaid witnesses and pointed out on behalf of the accused persons, is not of much significance, as firstly, it is not a civil dispute relating to the ownership of the said property and secondly, for establishing the aforesaid motive, it was not necessary for the prosecution to prove that the sale documents of the property were executed in favour of PW4 Shahnaz and it was never the case of the prosecution that in fact the said documents were executed. No doubt, some consideration amount changed hands as "bayana amount", as is clear from the testimony of the aforesaid witnesses. But, the discrepancies regarding the said "bayana amount", mentioned in the testimony of aforesaid witnesses, is not of much significance, as all the aforesaid witnesses are consistent that the deal was finalized and "bayana" exchanged hands. From the testimony of aforesaid prosecution witnesses, the prosecution has established that the deal for sale of ground floor portion was struck between the deceased and PW4 Shahnaz and for ascertaining as to whether PW4 Shahnaz would be Page No. 38 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
able to adjust with the first family of the deceased (which was residing at first floor), the PW4 Shahnaz had shifted in the said property on 25.4.2011 (one day before death of deceased), as accused Shabana and her children were against the sale of said home, which was in the name of PW21 Amina Begum. From the testimony of PW4 and PW5, who proved postmortem Ex PW5/A of deceased Illiyas, it is clear that the deceased died a homicidal death on 26.4.2011. Hence, the necessary inference of the testimony of the aforesaid material prosecution witnesses on the above mentioned point is that accused Shabana and her children had grudges towards the deceased, as accused Shabana was staying in the first floor of the said property with her children and did not want that the ground floor of the said property be sold to anybody and the deceased, who was residing separately with his mother and second wife, wanted to sell the said ground floor property to PW4 Shahnaz and accused persons wanted to thwart the same. Further, the wrong mentioning of initials of name of PW3 A.S. Khan by PW2 and PW4, as claimed by the accused persons, is not of much significance and appears to be a typographical error, in the totality of facts and circumstances. Hence, it stands established that the accused persons had a motive to cause death of the deceased. Even if for arguments sake, it is assumed that the accused persons had no Page No. 39 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
motive to cause death of the deceased, still establishing of motive in a homicidal death case, was not necessary for the prosecution. It was held in the case of "Bipin Kr. Mondal Vs. State of West Bengal", AIR 2010 SC 3638, that motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime. Further, it was held in the case of "Raja Vs. State", (1972) 2 Crimes 175, that it is well settled that where the direct evidence regarding the assault is worthy of the credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes the motive is shrouded in the mystery and it is very difficult to locate the same. If, however, the evidence of eye witnesses is credit worthy and is believed by the court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant. Further, it was held in the case of "Yunis @ Kariya Vs. State of Madhya Pradesh", AIR 2003 SC 539, that where the ocular evidence is very clear and convincing and role of the accused persons in the crime clearly established, establishment of motive is not a sine qua non for proving the prosecution case.
33. The next line of argument on behalf of the accused Page No. 40 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
persons is that none of the alleged documents prepared by the police at the spot, including the alleged recovery memos including of weapon of offence, bear the signature of the alleged eye witness PW4 Shahnaz and from the same also, it is clear that she was not present at the spot.
34. However, I do not find any force in the said arguments.
The baseball bat Ex P1 and iron rod Ex P2 (weapon of offence), were recovered at the instance of accused Shabana by the police from the first floor of the said premises, whereas this witness was present at the ground floor of the premises and recovery memo Ex PW9/I regarding the same, bears the signatures of two police witnesses, namely SI Dharamvir (PW20) and HC Pappu Ram (PW9). Further, it is not the case of the prosecution that the eye witness had also gone to the first floor of the said premises, from where the accused Shabana was arrested and aforesaid recoveries were effected. Rather, it is the case of the prosecution and deposed so by prosecution witnesses that the incident took place at ground floor, when the aforesaid eye witness was present at the ground floor and she had not accompanied the police team to first floor. Further, there is signature of the eye witness PW4 Shahnaz on unscaled site plan Ex PW22/A prepared at the spot, which also confirms her presence at the spot. Hence, merely because some of the Page No. 41 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
documents prepared at the spot do not contain the signature of this witness, it cannot be inferred that she was not present at spot, as the said witness has given a detailed credible eye witness account of incident.
35. The next line of argument on behalf of the accused persons is that the investigation agency had not complied with the provisions of Section 174 and 175 CrPC, as neither the IO had informed the inquest Magistrate nor had joined any independent witness in the inquest proceedings, though, as per the deposition of the witnesses, there were many persons present at the spot after the incident and, hence, the entire prosecution story becomes highly doubtful. It is further mentioned that as per the story of the prosecution, the murder of the deceased was committed at 10.00 am on 26.4.2011 and FIR was registered as 2.20 pm on the same day, but surprisingly, the IO of the case conducted inquest proceedings on the next day i.e. on 27.4.2011, instead of 26.4.2011 and no inquest proceedings were conducted at the spot, but were conducted subsequently in the mortuary of the DDU Hospital. In this regard, the accused persons have relied upon the judgment in the case of "Devender @ Kallu Vs. State", 2011 (2) JCC 1453.
Page No. 42 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
36. However, this argument has no force because as per the case of the prosecution, there was an eye witness account of the killing of deceased by the accused persons and the dead body of the deceased was recovered from the said premises soon after the incident when the police reached there, in the presence of the said witness and one of the accused Shabana was arrested from first floor portion of the said property, near the spot, immediately thereafter. In such circumstances, the conducting of inquest proceedings by the concerned Executive Magistrate, was not obligatory for the IO. Once there was an eye witness account and it was clear to investigating agency as to how the deceased was killed and who were the persons, who killed him, there was no need to inform the Executive Magistrate concerned. It appears that the accused primarily want to challenge the delay in the postmortem of the deceased on 27.4.2011, inspite of alleged death of deceased on 26.4.2011. However, on this point, PW22 IO Inspector Surender Kumar has categorically deposed that he had sent the dead body of Illiyas to the mortuary of DDU Hospital. He has deposed so while describing about the investigation done by him on the date of incident. From the same, it appears that dead body of deceased was sent to DDU Hospital mortuary on the date of incident itself i.e. 26.4.2011. Further, PW8 Const. Brij Mohan corroborated him and stated that on the Page No. 43 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
instruction of IO, he took the dead body of injured from the spot to DDU Hospital on 26.4.2011 itself. It is also the case of the prosecution that the said dead body was sent to the mortuary of DDU Hospital on 26.4.2011 i.e. on the date of incident. Thus, the dead body of the deceased was not under the domain and control of the investigating agency after depositing of the same with DDU Hospital on 26.4.2011, but was with the third neutral party i.e. officials of mortuary of DDU Hospital. In such circumstances, the performing of postmortem of the deceased on 27.4.2011 (next day of incident) by concerned doctor of DDU Hospital, is not fatal to the case of the prosecution, although, request letter for postmortem of the dead body (though not exhibited) was given on 27.4.2011. Hence, the judgment cited by the ld. counsel for accused persons is distinguishable on facts and does not help the case of accused persons.
37. The next line of argument on behalf of the accused persons is that, although, the FIR was registered on 26.4.2011 at 2.20 pm, but the copy of the same was sent to the concerned ld. MM on the next day i.e. on 27.6.2011 and the same creates doubt on the story of the prosecution. The aforesaid judgment cited by the ld. counsel for accused persons, has relied upon the judgment in the case of "Pala Singh Vs. State of Page No. 44 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
Punjab", (1972) 2 SCC 640, wherein it was held as under: "No doubt, the report reached the Magistrate at about 6 pm. Section 157 CrPC requires such report to be sent forthwith by the police officer concerned to a Magistrate empowered to take cognizance of such offence. This is really designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159. But when we find in this case that the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to our notice, then, however improper or objectionable the delayed receipt of the report by the Magistrate concerned it cannot by itself justify the conclusion that the investigation was tainted and the prosecution in supportable. It is not the appellant's case that they have been prejudiced by this delay."
38. Thus, from the said judgment itself it is clear that the mere delay of one day in sending of the copy of FIR to the area Magistrate, is not fatal to the case of the prosecution, as no suggestion was given to PW14 Const. Attar Singh, who took the copy of FIR to the area Magistrate on 27.4.2011 or the IO PW22 Inspector Surender Kumar, that by the said act, the accused persons had got prejudiced in any manner. Admittedly, there is no delay in registration of the FIR or claimed so by the accused persons. Page No. 45 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
39. The next line of argument of ld. counsel for accused persons is that PW4 Shahnaz and other material prosecution witnesses have admitted that the public persons had gathered at the spot and also had come inside the house, but none of them was made a witness in this case, hence, the story of the prosecution becomes doubtful and no reliance can be placed on the testimony of the interested witness i.e. PW4 Shahnaz.
40. However, in my considered opinion, once an eye witness was found at the spot and narrated the entire incident to the police in a credible manner, it was not obligatory for the police to make other public persons, who had gathered at the spot, witness in this case. Also, it is common knowledge that life in a metropolitan city like Delhi is hectic and people are reluctant to become witnesses in such cases. In any case, it is not the version of the prosecution that any of those public witnesses had witnessed the incident. Hence, nonciting of the said public witness and their nonexamination, is not fatal to the case of the prosecution.
41. The next line of argument on behalf of the accused persons is that the version of complainant Shahnaz PW4 about incident is highly doubtful. It is mentioned that the Page No. 46 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
medical evidence is contrary to the statement of PW4, because as per the statement Ex PW4/A of the complainant given to the police on the basis of which FIR was registered, both the sons of deceased gave blows on the head of deceased by their respective weapons of offence i.e. iron rod and baseball bat, but surprisingly there is only one head injury sustained by the deceased.
42. PW4 in her deposition before the Court, has stated that they were beating the deceased with iron rod and baseball bat. Further, the postmortem report Ex PW5/A of deceased reveals that there were fresh lacerated wounds present over a) right parietal region, vertically placed, with abraded margins, of size 8.0 x .8 x 0.5 cms and also the cause of death was mentioned as shock due to head injuries produced by blunt force impacts and it was further opined that head injuries mentioned in the report are sufficient to cause death in ordinary course of nature and all injuries are ante mortem in nature. Thus, in the postmortem report, only the size of the injury on the head has been given and from the same it cannot be inferred that only one blow on the head was given and rather from the word "head injuries" mentioned in the postmortem report, it can be inferred that more then one blow with the aforesaid weapons, were given on the head of the deceased. Thus, the inference of the accused persons, on Page No. 47 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
the basis of postmortem report, that only one blow was given on the head of the deceased, is incorrect. Also PW5 (Dr Yogesh Tyagi) has proved in his subsequent opinion about weapon of offence Ex. PW5/B that the injuries present on over the head and left thigh of deceased were possible with both the weapon and injuries present on the back were possible with the baseball bat.
43. It is also mentioned in the written submissions filed on behalf of the accused persons that as per the story of prosecution, PW16 HC Jeet Ram (Incharge PCR), PW8 Const. Brij Mohan and Const. Prahlad (dropped by the prosecution from giving evidence), firstly reached the spot after the incident, but in the Court during their deposition, they have not stated even a single word about the presence of the complainant at the spot and, thus, the complainant was not present at the spot and she was planted later on.
44. However, from the testimony of PW4 Shahnaz it is clear that immediately after the incident, she had called the PCR by making call on phone no. 100 from her mobile phone no. 8800650721. As per the testimony of PW17 R.K. Singh, Nodal Officer of Bharti Airtel Ltd., the said mobile phone no. 8800650721 was issued in the name of Shahnaz (PW4), vide customer application form Ex Page No. 48 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
PW17/A, on the basis of photocopy of her election identity card Ex PW17/B, as proof of her identity and residence. He has proved the CDR of said mobile phone from 20.4.2011 to 30.4.2011 vide Ex PW17/C and the certificate u/s 65B of Evidence Act as Ex PW17/D in respect of the CDR and cell ID chart as Ex PW17/E. From the CDR Ex PW17/C, it stands proved that a phone call was made from said mobile phone at phone no. 100 at 9.469.47 am for 24 seconds and from the same and in view of the testimony of PW4 Shahnaz that she made a call to PCR, it stands established that she made a call to PCR on 26.4.2011 between 9.469.47 am. Further, PW4 Shahnaz categorically deposed about the incident in a credible manner and from her testimony, it was clear that she was present at the spot, during entire incident and her presence at the spot after incident, stands corroborated by the testimony of PW9 HC Pappu Ram and PW20 ASI Dharamvir, who deposed that PW4 Shahnaz was found present at the spot. This coupled with the fact that PW4 Shahnaz has deposed consistently and convincingly about the mode and manner of giving beatings to deceased by the accused persons and as to how the entire incident took place and her proving of the unscaled site plan Ex PW22/A prepared at the spot by the IO immediately after the incident and corroboration of said injuries by medical evidence, makes this Court arrive Page No. 49 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
at the conclusion that she was present at the spot. Admittedly, no animosity of her (PW4) towards the accused persons, has been suggested to her during her cross examination by accused persons. Further, it is not the case of the accused persons that the said witness was interested in the conviction of the accused persons in any way. Admittedly, the said witness is not a family member of the deceased or is closely related to him. In such circumstances, the consistent and credible description of incident by PW4, which is also supported and corroborated by aforesaid material, makes this Court believe that she was present at the time of incident and had witnessed the incident. Hence, non deposition by PW8 and PW16 about the presence of eye witness (PW4) at the spot when they reached there, is of not much significance, as they have deposed about the investigation done in their presence in a consistent and credible manner.
45. From the testimony of PW9 HC Pappu Kumar, PW20 ASI Dharamvir, PW22 Inspector Surender Kumar it is clear that immediately after the incident when the police reached there, the accused Shabana was interrogated and arrested from the first floor portion of the property and pursuant to her disclosure statement, she got recovered the baseball bat and iron rod from first floor portion of Page No. 50 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
her premises, from which the injuries were allegedly inflicted upon the deceased. However, I do not find any force in the arguments of behalf of the accused that since the said recovery was already effected prior to the arrest of the accused persons, therefore, the said recovery has not been duly proved as the same is not admissible u/s 27 of Indian Evidence Act and is hit by Section 25 and 26 of the Indian Evidence Act. From the testimony of PW9, PW20 and PW22 (IO), there is no doubt that the said recovery would amount to discovery of new fact u/s 27 of Indian Evidence Act, as prior statement of accused in custody was recorded. Further, there is no rule of presumption that testimony of police witnesses are untrustworthy or that the official acts of the police regularly performed have to be seen with distrust. Thus, once the police witnesses have deposed that the aforesaid weapons of offence were recovered (immediately after the incident) at the instance of accused Shabana (which were only in her knowledge and control) from her premises, the same cannot be disbelieved, merely because the said recovery was effected by police witnesses in the absence of an independent witness. In this regard reliance is placed on State of Govt. of NCT of Delhi Vs. Sunil & Another 2001 Cri.L.J. 504 (1). Also, PW4 Shahnaz has categorically deposed during her testimony that the said weapons of offence are the ones, which were used by the Page No. 51 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
accused persons, namely, Imram and Juvenile (name of juvenile was mentioned but same is not reproduced herein in order to protect the identity and privacy of the juvenile). Further, in the opinion of concerned Dr. Yogesh Tyagi (PW5), who has given subsequent opinion about weapons of offence, the injuries on the body of the deceased, could be possible due to said weapons. Even if for argument sake it is believed that the said recovery of weapons of offence, has not been duly proved, even then, the recovery of weapons of offence was not necessary in view of categorical and convincing ocular deposition of PW4 Shahnaz on material points, as to how the accused persons gave the injuries to the deceased with the said weapons, which have been corroborated by medical evidence.
46. As per the postmortem report Ex PW5/A, the cause of death of deceased is shock due to head injuries produced by blunt force impacts. Head injuries mentioned in the report were sufficient to cause death in ordinary course of nature. All injuries were ante mortem in nature. PW4 Shahnaz during her testimony, has deposed that on 26.4.2011, at about 9.45 am, accused Shabana came down to talk to her husband Illiyas, who was sitting on the ground floor and they started abusing each other and thereafter, accused Shabana caught Illiyas by his hair and Page No. 52 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
started beating him. She further deposed that Shabana called her both sons, who also came down. She further deposed that the elder son of accused Shabana was having an iron rod in his hand and the younger son was having a baseball bat in his hand and they all started beating Illiyas with the rod and bat, in her presence. She correctly identified the accused Imran in the Court of the date of her deposition. She further deposed that she requested them not to beat Illiyas, but they did not stop saying that it was their family matter and asked her to remain silent, thereafter, she called police PCR on telephone no. 100 from her mobile no. 8800650721. She further deposed that while she was calling PCR, the sons of Shabana pushed her outside the room and bolted the room from inside and she watched through window of the room that accused Shabana and his sons were again beating Illiyas and pushed him into the gap between the sofa set and the double bed in the room. She further deposed that she raised alarm and accused and her sons opened the door of the room and went upstairs to the first floor. Thereafter, she (PW4) went inside the room and found blood all over in the room and Illiyas was not in a position to talk or move, and thereafter police reached there after about half an hour, but by that time, Illiyas had died. Thus, it is clear from the testimony of PW4 Shahnaz and postmortem report Ex PW5/A of the Page No. 53 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
deceased that his death was homicidal and the deceased died due to the aforesaid injuries inflicted by the accused persons, namely, Shabana and Imran and (juvenile, who is facing trial before the ld. JJB).
47. PW15 WConst. Anita of PCR, CPCRPHQ, has proved that she had received a call from mobile no. 9211247474 (of PW3 Dr. A.S. Khan) to the effect that a lady had severely beaten her husband at Q Block, House No. 105, Vikas Vihar, Uttam Nagar, on 26.4.2011. She has been corroborated by PW3, who has corroborated that he had made a call to PCR from his mobile no. 9211247474. PW16 HC Jeet Ram, had proved that at 10.40 am on 26.4.2011, while he was in PCR Van, Zebra 31, he received the aforesaid information from police control room on wireless. PW4 Shahnaz by her ocular evidence has clearly proved that the assailants had given repeated severe blows with the aforesaid deadly weapon of offence i.e. iron rod (Ex P2) (given by accused Imran) and baseball bat (Ex P1) (given by Juvenile) upon the body of deceased and that after the incident, she found blood all over in room. It is clear from her testimony that the deceased bled profusely and collapsed and received severe injuries, including on vital part of his body i.e. head. PW5 Dr. Yogesh Tyagi has proved the postmortem report Ex PW5/A of the deceased, from which it is clear that severe injuries Page No. 54 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
were inflicted on the vital part of the body of the deceased i.e. head and the said injuries were possible by the aforesaid recovered weapon of offence and that the said injuries were sufficient in ordinary course of nature to cause the death of the deceased. PW3, PW4 and PW21, have proved that the accused persons did not want the deceased to sell the aforesaid house and had grudges against him, as he was attempting to sell the said house. PW1 has proved the DD No. 8A Ex PW1/A, registration of FIR vide Ex PW1/B and his endorsement on the rukka Ex PW1/C. PW20 ASI Dharamvir has proved the initial investigation done by him at the spot and rukka Ex PW20/A. He was corroborated by PW9 HC Pappu Ram. PW7 ASI Khajan Singh, Incharge, Mobile Crime Team, Sector 9, Dwarka, has proved his crime scene investigation report Ex PW7/A prepared immediately after reaching the spot and PW6 Const. Suresh has proved 13 photographs of the spot, including the dead body of the deceased vide Ex PW6/A1 to Ex PW6/A13. The various police witnesses have deposed about the scene of crime immediately after the incident when they reached there and the recovery of blood stained sofa cover, blood found spilled over on the earth in the room and injures found on the body of the deceased and have also proved the taking of samples of earth control and blood found in the room and from the same also it stands established that the Page No. 55 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
deceased was inflicted injuries in the said room only and bled profusely. The remaining prosecution witnesses have deposed as per the line of the prosecution case on material points and have proved the various proceedings conducted during investigation of the case and have completed the chain of evidence. Nothing substantial was extracted in the cross examination of the prosecution witnesses to demolish the case of the prosecution.
48. PW4 Shahnaz has categorically deposed that after catching hold of Illiyas (deceased) with his hair by accused Shabana, she beat him up and called her sons and her aforesaid sons also came there armed with aforesaid weapons of offence and gave many severe blows including on the vital part of the body of the deceased i.e. head. The coming of the sons of the accused Shabana on her calling, armed with weapons, shows that there was some premeditation and further giving of numerous severe blows on the body of the deceased, while none of the accused tried to stop each other and rather the pushing of PW4 into another room and bolting of door, shows that aforesaid injuries were inflicted to the deceased in furtherance of common intention of all the accused persons to commit criminal act.
49. The testimony of PW4 (sole eye witness) is found reliable Page No. 56 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
and inspires confidence as the accused persons were not able to impeach her creditworthiness. It was held by Hon'ble Supreme Court in case of Anil Phukan Vs. State of Assam 1993 (1) Crimes 1180 (SC) that conviction can be based on testimony of a single eye witness, provided his testimony is found reliable and inspires confidence. The other minor deficiencies in the case of prosecution as pointed out are not material as it is well settled that while evaluating evidence grain is to be separated from Chaff. The testimony of prosecution witness is trustworthy.
50. From the aforesaid discussions and the testimony of prosecution witnesses, it stands proved beyond reasonable doubt that the accused persons, namely, Shabana and Imran, in furtherance of their common intention to commit criminal act (alongwith juvenile, who is facing trial before the ld. JJB), had inflicted aforesaid various severe blows to the deceased on his body, including on the vital part of his body i.e. head with deadly weapon (iron rod and baseball bat) and as a result of which the deceased received injuries and died and the injuries inflicted were sufficient to cause his death in the ordinary course of nature. From the mode and manner in which the said injuries were severally caused by the accused persons, repeated beatings of the deceased by iron rod and baseball bat i.e. deadly weapons of offence, it Page No. 57 of 58. Const... ... ...
SC No. 32/13. State Vs. Shabana & Another.
is clear that the intention of the accused persons was to cause such bodily injuries to Illiyas (deceased) which were sufficient in the ordinary course of nature to cause his death which resulted into the death of deceased. The said acts are squarely covered in the definition of murder mentioned in Section 300 (3) IPC. Consequently, both the accused persons, namely, Shabana and Imran Khan, are held guilty for the offences u/s 302/34 IPC. Announced in the open Court on 18.11.2013.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 58 of 58. Const... ... ...