Delhi District Court
Fir No. 275/08; State vs . Mohd. Ashiq Page 1 Of 56 on 8 June, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 188/09
FIR No. 275/08
P.S. Ashok Vihar
U/S: 302/498A IPC
STATE
Versus
MOHD. ASHIQ
s/o Mohd. Yusuf
r/o AB430, Amarpuri,
Nabi Karim, Delhi
Date of Institution: 01112008
Date of arguments: 07062012
Date of judgement: 08062012
J U D G M E N T
1. The case of the Prosecution, in brief, is that complainant Mohd. Shakil was residing at jhuggi no. N17A/177, Patharwala Bagh, Wazirpur JJ Colony, Delhi and her sister Aasmin @ Baby was residing on the ground with her younger son Rehmat aged 11 years. Aasmin was married with Mohd. Ashiq in 1990 and she was having two sons namely Neemat, aged 14 years and Rehmat aged 11 FIR No. 275/08; State Vs. Mohd. Ashiq Page 1 of 56 years. Mohd. Ashiq performed second marriage with Shakila 13 years ago and he was residing at H. No. AB430, Amar Puri, Nabi Karim, Delhi. There used to be quarrel between Mohd. Ashiq and Aasmin @ Baby due to second marriage and Mohd. Ashiq stopped coming to Aasmin. Aasmin used to do cleaning work in kothies to look after her sons. After some time, Mohd. Ashiq again started coming to Aasmin but he used to doubt the character of Aasmin and he used to beat Aasmin and there used to be quarrel between them. Aasmin made complaint in police and after the intervention of Panchayat, some settlement took place between them. Despite settlement, Mohd. Ashiq used to doubt the character of Aasmin @ Baby and used to beat her. The elder son of Aasmin had gone to Mumbai and younger son Rehmat had gone to Nabi Karim on 03082008 at about 4 pm. On 03082008 at about 9:30 pm, her jija Mohd. Ashiq came in the jhuggi of her sister Aasmin and started quarrelling with her by saying that she was bad character and he will not spare her. Mohd. Shakeel and her mother intervened in the matter and at about 10:15 pm, they went to their jhuggi situated upside and Mohd. Ashiq and Aasmin went to sleep.
2. On 04082008 at about 6 am, complainant saw Mohd. Ashiq coming out of the jhuggi of her sister and going towards FIR No. 275/08; State Vs. Mohd. Ashiq Page 2 of 56 Mulla's dhaba. After about ten minutes, complainant came down and saw the door of her sister's jhuggi latched from outside. When complainant went inside the jhuggi, he saw that her sister Aasmin was lying dead on the wooden bed. There were injury marks on her neck. When he raised noise, her mother and neighbours came there. Complainant informed her sister and she along with her husband Abdul Kalam came there. Police was informed and FIR was registered. Police team along with Shakil reached at the house of Mohd. Ashiq situated at AB430, Amarpuri, Nabi Karim, Delhi and laid trap outside the house. At about 6:30 pm, accused Mohd. Ashiq was arrested on the identification of Shakil. After completion of investigation, chargesheet was filed in the court u/s 302/498A IPC.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 498A/302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to prove its case, Prosecution has examined 26 witnesses. Statement of accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. He did not opt to lead defence evidence.
5. I have heard Ld. Defence counsel and the Ld. APP for FIR No. 275/08; State Vs. Mohd. Ashiq Page 3 of 56 State and have perused the entire records.
6. Let us firstly examine the legal position u/s 498A and 302 IPC. Under Section 498A IPC, the prosecution must prove that:
(i) the woman was subjected to cruelty or harassment;
(ii) such cruelty or harassment was shown either by the husband of the woman or by the relative of the husband;
(iii) such cruelty was (1) with a view to drive her (a) to commit suicide; or (b) to cause grave injury or danger to her life, limb or health, whether mental or physical; or
(iv) such harassment was (1) with a view to coercing her to any person related to her to meet any unlawful demand of any property or valuable security; or (2) on account of failure by such woman or any person related to her to meet such unlawful demand.
7. Section 300 IPC deals with murder. It reads as under:
300. Murder: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death; or 2ndly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly--It it is done with the intention of causing bodily FIR No. 275/08; State Vs. Mohd. Ashiq Page 4 of 56 injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1 to 5 to section 300 IPC provides certain circumstances under which culpable homicide is not murder.
In Section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done:
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or
iii) with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not FIR No. 275/08; State Vs. Mohd. Ashiq Page 5 of 56 amounting to murder.
8. Section 302 IPC provides that whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. The court has to consider the nature of the crime as well as the accused. Every matter is a heinous crime. Apart from personal implications, it is also a crime against the society. The learned defence counsel argued that none of the circumstances from which an inference of guilt can be drawn has been proved beyond reasonable doubt and therefore there can be no inference that it was the accused who committed the murder of Aasmin. The Ld. Defence counsel in support of his arguments has relied upon the judgement dated 08052012 delivered by the Hon'ble Supreme Court in Crl. Appeal no. 1405 of 2008 in the case of Sahadevan and Anr. Vs. State of Tamilnadu. Whereas, the learned APP has argued that the entire prosecution case rests upon circumstantial evidence and the prosecution by appropriate evidence has proved the guilt of accused which rules out that any other person was author of crime. The conduct of the accused was not good with deceased since he continued beatings with his wife i.e. deceased. There is a extra judicial confession made by the accused before his two sons and PW8 Mohd. Umar, dhabawala. The public witnesses have deposed FIR No. 275/08; State Vs. Mohd. Ashiq Page 6 of 56 against the accused. As per postmortem report, the cause of death of wife of accused was asphyxia due to antemortem manual strangulation (throttling). The accused cannot take benefit of the faulty investigation. Ld. APP for the State, in support of his arguments, has relied upon the judgements reported as Bhagwan Dass Vs. State (NCT) of Delhi, 2011 III AD (CRI.)(SC)157; Paramjeet Singh @ Pamma Vs. State of Uttarakhana, AIR 2011 SC 200; State of UP Vs. Krishna Master & ors, 2010 CRI. L. J. 3889; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; and Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1).
9. It is well settled in law that where the case rests squarely on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence which has been well settled by the Hon'ble Supreme Court. In Sharad Birdichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116, some cardinal principles regarding the appreciation of circumstantial evidence have been FIR No. 275/08; State Vs. Mohd. Ashiq Page 7 of 56 postulated. Whenever the case is based on circumstantial evidence following features are required to be complied with :
(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely may be fully established.
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other; hypothesis except that the accused is guilty.
(iii) The circumstances should be of a conclusive nature and tendency,
(iv) They should exclude every possible hypothesis except the one to be proved, and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
The doctrine of circumstantial evidence was again discussed and summarised in Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra 2008 (1) JCC 597, it was held that it is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the FIR No. 275/08; State Vs. Mohd. Ashiq Page 8 of 56 circumstance from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
10. Ld. Counsel for accused has argued that there is a delay of 68 hours in registration of the FIR and there is no explanation of delay which creates doubt about the prosecution story. Whereas, the Ld. APP for the State has argued that there is no delay in the registration of the FIR keeping in view the facts and circumstances of this case. Perusal of the FIR Ex. PW13/A reveals that date of occurrence of offence is from 03082008 to 04082008. The information was received at PS Ashok Vihar, New Delhi on 04082008 at 12:40 hrs. The FIR Ex. PW13/A is also dated 04082008. As per statement given by Mohd. Shakeel, brother of the deceased as detailed in the said FIR, found his sister Aasmin dead at about 6:10 am on 04082008 in her jhuggi. In this context, I would place a reliance upon the judgement reported as Dasondha Singh & Ors. Vs. State of Punjab, 2012 Cri.L.J. 194, therein it was held that delay in lodging FIR is not fatal as incident occurred at night, deceased taken to the hospital and the fact that family was in grief.
FIR No. 275/08; State Vs. Mohd. Ashiq Page 9 of 56
11. The Ld. Defence counsel has further argued that the accused was neither present at the place of occurrence nor came in the area where the incident occurred on 04082008. The witness of "last seen" is not trustworthy. Let us discuss legal position of "last seen" witness. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. In a recent case, since the eyewitnesses turned hostile, the circumstances that the appellant had accompanied the deceased and was last seen by him was only treated as one of the circumstances in the chain of circumstances to prove the guilt. The Court held that mere fact that there is no evidence to show that he actually assaulted the deceased may not be of any consequence in the facts and circumstances of this case. Where the prosecution has established the fact that deceased was last seen in the company of the accused and thereafter, his dead body was found, it becomes obligatory on the accused to satisfy the Court as to how, where and in what manner the deceased parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the FIR No. 275/08; State Vs. Mohd. Ashiq Page 10 of 56 person with whom he was last found has to explain the circumstances in which they parted company. In taking this view, I am supported by the judgments reported as Shadevan (2003) SCC 534; AIR 2003 SC 215; 2003 Cri.L.J. 424 (SC). In State Vs. Kashi Ram AIR 2007, SC 144, it was held by the Hon'ble Supreme Court that when a person is accused of committing murder of another, the fact that the accused and the deceased were "last seen together" is a circumstance of an incriminating nature against the accused. Failure on the part of the accused to satisfactorily account for the disappearance or whereabouts of the deceased may be held to be sufficient to hold him guilty.
12. Now, let us discuss the evidence whether the accused was present at the place of occurrence on 04082008 or whether the "last seen" witness is trustworthy or not in this case. PW4 Mst. Samida deposed in her examination in chief that on 03082008, accused visited her daughter at 2 pm. At about 3 pm, she along with her daughter went to market for getting her sewing machine repaired. They came back at about 4 pm. She was very tired on that day. Her daughter went to sleep with her husband. She went upstairs. On the next day in the morning, Monu, her neighbour told her that her daughter has expired. She came downstairs and saw FIR No. 275/08; State Vs. Mohd. Ashiq Page 11 of 56 her daughter had expired and accused was sitting by the side of her dead body. Her daughter was having injury on her neck. She observed that there were rope marks on her neck. PW9 Mohd. Shakeel deposed in his examination in chief that on 03.08.2008, Naimat, elder son of his sister had gone to Mumbai. Accused came at the jhuggi of his sister at N17A/77, Patthar Wala Bagh, Wazir Pur, JJ Colony and started quarrelling with her at about 9.30 pm. On hearing the noise of quarrel, he along with his mother came down from the first floor of the jhuggi and after persuading both of them, they went back to the first floor of the jhuggi where they were residing. Accused had sent the younger son of his sister Rehmat to Nabi Karim.
13. On 04.08.2008 at about 6.00 am, PW9 saw the accused going from the jhuggi towards Mulla's Dhaba after bolting the door of the jhuggi. PW9 came down and opened the Kundi and went inside and saw his sister Aasmin lying on the bed. He tried to shake her but she was not responding. There was injury mark on her neck. There was also black and yellow scars on her face. He raised noise and on hearing his noise, his mother, neighbours and Mulla Ji of Dhaba reached there. He telephonically informed his sister Praveen. His sister Aasmin was lying dead. His sister Praveen and FIR No. 275/08; State Vs. Mohd. Ashiq Page 12 of 56 brotherinlaw Abdul Kalam also came at their house. The photographer was also called who took the photographs. Naimat had later on informed PW9 that accused had telephonically informed him about the death of his sister Aasmin. Police recorded his statement Exbt. PW9/A. The police then rushed the body of his sister to Jahangir Puri Hospital Mortuary for postmortem. PW9 identified the body of his sister. His statement regarding the identification of the body of his sister was recorded vide Exbt. PW9/B and after postmortem, the body was handed over vide receipt Exbt. PW3/B. PW9 further deposed in his cross examination that by the time he reached on the ground floor and opened the Kundi of the jhuggi, the accused had left by that time. PW9 further deposed in his crossexamination that he made no attempt to apprehend the accused as he got busy in trying to awake his sister since at that time, he was not knowing that she had died. PW9 deposed that lot of people from the Mohalla gathered on hearing his noise. PW9 had made a call to his Jeeja Abdul Kalam who was residing at Gurgaon at about 7.00 am and his sister and Jeeja reached in about 1 or 1½ hours by bus. PW9 denied the suggestion that on 03.08.2008, his Jeeja was also present at their jhuggi. PW9 denied the suggestion that accused did not visit their FIR No. 275/08; State Vs. Mohd. Ashiq Page 13 of 56 jhuggi or that the quarrel took place between them and their Jeeja. Therefore, it has been proved on record that accused was present at the place of occurrence on the date of commission of offence.
14. The Ld. Defence counsel has also argued that the accused neither quarrelled nor made any demand of money. The deceased never filed any case against the accused for his second marriage without her consent. The accused was residing only with the second wife and was not keeping any relations with the deceased. No Panchayat in the year 1995 was held and even the accused did not attend the Panchayat. The accused never resided with Aasmin/ deceased after the year 1995. The Ld. Defence counsel further argued that the accused is innocent and he has been falsely implicated at the instance of the brother in law and brother of the deceased. PW3 Mohd. Lal Mohd. deposed in his examination in chief that accused used to live in Beriwala Bagh as he had married Shakila and he also used to visit his daughter Baby on holidays. PW3 Mohd. Lal Mohd. deposed in his examination in chief that accused used to beat and abuse his daughter and also used to call her immoral and that she was having affair with other man. PW4 Mst. Samida deposed in her examination in chief that her daughter Baby (deceased) along with two sons used to live on FIR No. 275/08; State Vs. Mohd. Ashiq Page 14 of 56 the ground floor of said house and she used to live on the first floor along with Mohd. Ammin, her second husband. Accused Mohd. Ashiq had married with one Shakila and used to live with her in Nabi Karim. He used to visit her daughter Baby on holidays. PW4 also deposed in her examination in chief that her daughter used to work as maid servant. Accused after taking liquor, used to quarrel with her daughter Baby for money. Accused used to suspect her daughter and used to call her loose character.
15. PW6 Mohd. Abdul Kalam deposed that his sisterinlaw namely Ashmin was married with accused Mohd. Ashiq according to Muslim rites and customs. After 2½ year of the marriage of his sister in law with accused, accused got remarried with another lady whose name he does not know. Accused also started torturing and harassing his sister in law and accused left the matrimonial home. Uncle of his sister in law namely Mohd. Salim made a complaint Ex. PW6/A to Chowki Incharge. He along with his mother in law arranged a biradari meeting and a compromise was arrived at between accused and his sister in law in the presence of panchayat. Compromise/ decision of panchas is Ex. PW6/B. On 04082008 at about 7 pm, his brother in law Mohd. Shakeel informed him on telephone at his residence at H. No. 214, village Sarol, Gurgaon, FIR No. 275/08; State Vs. Mohd. Ashiq Page 15 of 56 Haryana that his sister in law Ashmin had been murdered by the accused. He along with his wife Parveen Kaushar came to the matrimonial house of his sister in law at N17, A177, Wazirpur JJ Colony, Delhi where he has started living. He saw that the dead body of his sister in law was lying on the bed and there were ligature marks on the neck of his sister in law and blood was also on her face. He made a call at 100 number and police came there and got the spot photographed and also recorded his statement. PW7 Mst. Parveen Kaushar deposed that she used to reside at village Sarol, Gurgaon along with her husband and children. Her father reside at jhuggi no. 206, Wazirpur JJ Colony, Delhi. Her younger sister Ashmin was married with Mohd. Ashiq according to Muslim rites and customs in the year 1990. Accused used to torture her sister. After 2/ 2½ years of marriage of her sister with accused, accused got remarried with another lady namely Shakila. Accused started living with Shakila at Nabi Karim. Her uncle namely Salim went to Chowki and made a complaint Ex. PW6/A. A panchayat was held in her presence and decision of the panchas is Ex. PW6/B. Thereafter, accused used to come to the matrimonial home of her sister in her present and started demanding money from her sister and also threatened her that if she will not give the money, he would kill her. FIR No. 275/08; State Vs. Mohd. Ashiq Page 16 of 56 She had given her jhuggi to her sister Ashmin for living. Her sister started working as a maid in order to earn livelihood for her and her children namely Neemat and Rehmat. After giving her jhuggi to her sister, she went to Gurgaon and started working in Top Security as Security Guard. Accused occasionally used to visit the jhuggi of her sister and after quarrelling and beating her sister, he used to leave. On 04082008, her brother Shakeel informed her and her husband on telephone that her sister had been murdered by her husband Mohd. Ashiq. She along with her husband came at Wazirpur JJ colony at about 8:30 am. She saw that the dead body of her sister was lying on a bed and there were ligature marks on her neck and blood was also on the face of her sister. Her husband made a call at 100 number and police came there and got the spot photographed. Her statement was recorded by the police.
16. PW9 Mohd. Shakeel deposed in his examination in chief that he was working as a helper in Orient Craft Limited at Gurgaon. Deceased Aasmin @ Baby was his sister. She got married with accused Mohd. Ashiq (correctly identified) in the year 1990. She had two sons named Rehmat and Naimat. She was residing at the ground floor of the jhuggi with her sons. About ten years ago, accused performed a second marriage with a lady by the name FIR No. 275/08; State Vs. Mohd. Ashiq Page 17 of 56 Shakeela and started residing with her at Nabi Karim. Due to the second marriage of accused, there used to be quarrels between the accused and his sister Aasmin so much so that he stopped coming to his sister. His sister used to work in Kothis to earn livelihood for her and her children. Accused did not make any financial contribution to his sister and used to doubt her character by calling her "Badchalan." His mother had also lodged a complaint with police against the accused. Due to the intervention of Panchayat, a compromise took place between his sister and the accused. Even after compromise, accused used to doubt his sister and continued calling her "Badchalan." Accused also used to beat her. During crossexamination by the Ld. APP for State, PW9 admitted that number of the jhuggi was 17A/177 and not 17A/77. PW9 also admitted the suggestion that while quarrelling with his sister on 03.08.2008 at about 9.30 pm, accused was telling her that she was "Badchalan" and he would not spare her. During crossexamination by the Ld. APP for State, PW9 deposed that the complaint made by his sister to Chowki Incharge is Exbt. PW6/A and the agreement between accused and his sister Aasmin is Exbt. PW9/F on which, he identified the signatures of his sister at point A. The complaint made by his sister to DCP, Crime Women Cell dated 13.12.1994 FIR No. 275/08; State Vs. Mohd. Ashiq Page 18 of 56 was marked as Mark A. Exbt. PW6/B was the Panchayatnama but he could not identify the signatures of his sister on the Panchayatnama. In the case of Sucha Singh Vs. State of Punjab, AIR 2003 SC 3617 (1), it has been held that relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. It cannot be said that the witness being a close relative and consequently being a partisan witness should not be relied upon. In the present case, in my view, testimonies of PW1 to PW4, PW6, PW7 and PW9 cannot be discarded merely because they are close relatives of the deceased.
17. PW17 Sh. Subhash Nagpal deposed that he was running a factory in Wazir Pur Area of steel line. About two years ago, his maid servant Baby did not come for work at his house. Some other maids came and informed that her body was lying at her jhuggi. Thereupon, he made a call at 100 number from his phone No. 27430731. PW18 Sh. Ram Adhaar deposed that he knew the accused Mohd. Ashiq present in court as he was residing in his neighbouring house with his wife Baby. Accused used to quarrel with his wife and beat her. Baby made a complaint Ex. PW6/A against the accused and he identified his signatures at point C. FIR No. 275/08; State Vs. Mohd. Ashiq Page 19 of 56 PW18 deposed that he was not much educated and he was not aware much about the contents of the complaint Exbt. PW6/A. PW20 Mohd. Shoaib deposed that he used to work as contractor of briefcase and presently he was not doing any job. He knew the accused Mohd. Ashiq (correctly identified) who got married with Yasmin. A panchayat was held in Madarsa at Wazirpur, JJ Colony. The Panchayat took a decision in writing Ex. PW6/B bearing his signature at point C. Accused had stated before the Panchayat that he would look after his wife well. The Panchayat was held because accused was not maintaining his wife well and used to beat her and had performed second marriage. PW21 Mohd. Haroon deposed that the wife of accused Mohd. Ashiq (correctly identified) used to come and make complaints against him that he was not giving her money for expenses. A Panchayat was held in the year 1995. PW21 was also called in the Panchayat and a decision was taken in the said Panchayat which is Ex. PW6/B bearing his signature at point D. During crossexamination by the Ld. APP for State, PW21 deposed that Panchayat was held on 26041995. PW22 SI Bal Prakash deposed that on 02041995, he was posted as ASI at PS Ashok Vihar. Aasmin Kausar had given a complaint in CAW Cell, Nanakpura against her husband Mohd. Ashiq and other family FIR No. 275/08; State Vs. Mohd. Ashiq Page 20 of 56 members. After inquiry of the said complaint, a case was registered at PS Ashok Vihar vide FIR no. 159/95 u/s 498A/406 IPC Ex. PW22/A (original FIR produced by witness, seen and returned). He conducted investigation of the said case. Accused Ashiq (correctly identified) along with his father Mohd. Yusuf were arrested by him in the said case. After completing investigation, he filed challan against both of them under section 498A/406 IPC.
18. During crossexamination, PW6 deposed in his cross examination that 2025 persons were present when Ex. PW6/A was prepared and signatures of few persons were obtained on the same. He was working as a security guard. On 04082008, his duty hours were from 8 pm to 8 am. His son had come to his place of work and informed him about the death of his sisterinlaw. PW6 denied the suggestion that no phone was received by his wife. The telephone no. of his wife is 9891115736. PW6 denied the suggestion that he along with his wife was present at Ashok Vihar during the intervening night of 03082008 and 04082008. PW6 denied the suggestion that after 1995 accused never resided with Aashim. Accused had visited Aashmin in his presence after 1995 but he could not recall the exact dates and times. PW7 in his cross examination deposed that accused was living with his second wife FIR No. 275/08; State Vs. Mohd. Ashiq Page 21 of 56 till the time of his arrest. Accused did not start living permanently with his sister after the compromise. PW7 denied the suggestion that accused never used to live with his sister or that he never quarrelled with her or that he never made any demand of money or that he never stayed with his sister after 1995. During cross examination, PW9 deposed that his sister did not give her consent for the second marriage of the accused. His sister had filed a case against the accused for undertaking second marriage without her consent. PW9 denied the suggestion that no such case was filed by his sister against the accused. PW9 also deposed in his cross examination that his sister had filed a case u/s 498A IPC against the accused. PW9 denied the suggestion that accused was residing only with his second wife and was not keeping any relations with his sister. PW17 Subhash Nagpal in his crossexamination deposed that maid servants usually came for their work in the morning at around 9.00 am. The maid servants on that day also came to his house at around 9.00 am. PW17 did not make any enquiry from those maid servants regarding cause of death of his maid. PW18 Ram Adhaar denied the suggestion that Exbt. PW6/A was falsely prepared by the police in order to implicate the accused in the present case. PW20 deposed in his crossexamination that the FIR No. 275/08; State Vs. Mohd. Ashiq Page 22 of 56 Panchayati decision was taken on 26041995. Apart from him, Kalaam, Haroon, Saleem (now deceased), Abdul Hannan and many others whose names he could not recall were present in the Panchayat. PW20 denied the suggestion that no settlement Ex. PW6/B took place in the Panchayat or that he had deposed falsely at the instance of police. PW21 deposed in his crossexamination that he was one of the elected representative of their Community and people of their community came and made complaints to them. PW21 identified the accused as he had seen him in Panchayat. PW21 further deposed in his crossexamination that there were 6-- 7 Panchas in the Panchayat and names of other Panchas were Shoaib, Harnan, Barik and others whose names he could not recall. PW21 denied the suggestion that no such Panchayat took place or that Mohd. Ashiq did not attend the Panchayat. It is also proved on record that accused used to quarrel with the deceased and beat and also made demand of money.
19. The Ld. Defence counsel argued that PW1 and PW2 are the sons aged 11 years and 13 years respectively of the deceased and the accused and being minor of the said age, they can easily be overcome and tutored. Whereas, the Ld. APP for the State has argued that there is extrajudicial confession made by the accused FIR No. 275/08; State Vs. Mohd. Ashiq Page 23 of 56 before his two sons and PW8 Mohd. Umar, dhabawala. Let us discuss the legal position of extra judicial confession. The term "confessions" is not defined in the Evidence Act. All the provisions relating to confessions occur under the heading of "admission." The definition of "admission" as given in Section 17 becomes applicable to confession also. Section 17 defines admission as "a statement oral or documentary, which suggest any inference as to any fact in issue or relevant fact." A confession is a statement made by a person charged with crime suggesting an inference as to any facts in issue or as to relevant facts. The inference that the statement should suggest should be that he is guilty of the crime. As stated by the Supreme Court in a recent case, Gura Singh, it is settled position of law that extrajudicial confession, if true and voluntary, it can be relied upon by the Court to convict the accused for the commission of the crime alleged. Despite inherent weakness of this as an evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Corroboration of such evidence is required only by way of abundant caution. In Narayan Singh, this Court cautioned that it is not open to the Court to start with a presumption FIR No. 275/08; State Vs. Mohd. Ashiq Page 24 of 56 that extrajudicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession.
20. Now, let us discuss whether the accused made the extrajudicial confession before PW1, PW2 and PW8 in the present case. PW1 Master Rehmat deposed that he along with his brother and mother were residing at jhuggi no. 17A/177, Patharwala Bagh, Wazirpur JJ Colony, Delhi on the ground floor and his NanaNani were living on the first floor. PW1 further deposed that he was still residing there along with his mother and NanaNani were living on the first floor. He further deposed that his father used to reside at Nabi Karim along with his other Mammi and my father/accused used to come to their house on holidays. His mother used to work as maid servant. His father, accused used to come at their house after consuming liquor and used to demand money from his mother and also used to quarrel with her. His father used to ask him to accompany his mother and used to keep a watch on her. He used to say to his mother "tu to kissi se fasi hui hai". Accused also used to say to his mother that she is in company of bad people and indulge in immoral activities. He used to go to the house of his FIR No. 275/08; State Vs. Mohd. Ashiq Page 25 of 56 rd father situated at Nabi Karim. On 03 August, threefour months back on Sunday, he went to meet his father in Nabi Karim. His father met him at Nabi Karim and told that he was going to his mother's house at Patharwala Bagh in JJ Colony. He stayed at the house of his father at Nabi Karim. On next day, his father came to Nabi Karim and told him that he had committed murder of his mother as she was quarrelling with him. His father gave him Rs. 1,000/ and asked him to buy things for himself and he further asked him to tell the police that his mother died of her own. He came back to his house situated at Patharwala Bagh. He went inside the house and saw the dead body of his mother and she was having injury on her neck. After seeing his mother, he went in the adjacent room and police came there. Police took photograph of the dead boy of his mother from different angles. Police recorded his statement at his house.
21. PW2 Master Neemat deposed that he along with his brother and mother were residing at jhuggi no. 17A/177, Patharwala Bagh, Wazirpur JJ Colony, Delhi on the ground floor and his Nana Nani were living on the first floor. Nowadays, he live in Mumbai. His father Mohd. Ashiq used to reside at Nabi Karim as he married with another lady namely Shakila. His father used to visit their FIR No. 275/08; State Vs. Mohd. Ashiq Page 26 of 56 house after consuming liquor and used to quarrel with his mother and demand money from her. His mother used to work as maid servant. His father used to snatch money from his mother. His father used to say to his mother that she was having love affair with other person. His father used to ask him to keep a check on her and to see with whom his mother meet and he used to say to his mother that she is a bad character (badchalan). His father also used to say his mother that she lives with some other man. His mother wanted him to study but his father wanted him to work somewhere and give his earnings to him. His father sent him to Mumbai Center for a job of embroidery. On 03082008, his father made a call to him and informed him that he will kill his mother and asked him to come to Delhi. Immediately, he came to Delhi and came to know that his mother has been killed by his father but he could not see his mother. His statement was recorded by the police. PW8 Mohd. Umar deposed that he is running a dhaba in his jhuggi. On 04082008 at about 6 am, he was working in his dhaba. Accused Mohd. Ashiq (correctly identified) came and told him that he had killed his wife Ashmin by pressing her neck. He was shocked to hear the same from his mouth and could not believe him. He thought that he was cracking joke and therefore, he continued FIR No. 275/08; State Vs. Mohd. Ashiq Page 27 of 56 with his work. The accused was looking perturbed and his voice was trembling but he could not judge the same at that time. After this, the accused went away from his dhaba. After some time, he heard the noise of Mohd. Shakil, brother of Ashmin and also heard cries. He came out and went to the jhuggi of Ashmin where he found her lying dead on her bed. There was injury mark on her neck. He realized that accused Mohd. Ashiq was stating correctly. Accused Mohd. Ashiq was present in the jhuggi at that time but thereafter fled away. During crossexamination, PW8 deposed that he knows the accused Mohd. Ashiq since his marriage. Accused Mohd. Ashiq used to reside in Nabi Karim. Mohd. Ashiq went back from his dhaba after telling him that he had killed his wife. PW8 denied the suggestion that the accused Mohd. Ashiq did not tell anything to him. PW8 further deposed in his crossexamination that there was no other person in the dhaba at that time when the accused told him about killing his wife. PW8 deposed that he had no worker in his dhaba. PW8 denied the suggestion that accused was neither present in the jhuggi nor in the area on that day. It is further proved on record that there is an extrajudicial confession made by the accused to PW1, PW2 and PW8.
22. The Ld. Defence counsel further argued that faulty FIR No. 275/08; State Vs. Mohd. Ashiq Page 28 of 56 investigation has been conducted in this case. No finger prints were taken from the spot. There is no date and time on the photographs taken at the spot. On 03082008, he came to know that his daughter has been murdered by the accused. He went to her house and saw her dead body which was having injury on her neck. Police came there and dead body of his daughter was taken to mortuary where he identified the dead body of his daughter. His statement Ex. PW3/A regarding identification was recorded by the police. After postmortem, the dead body was handed over to them vide handing over memo Ex. PW3/B. In the evening time, accused was arrested vide arrest memo Ex. PW3/C. His statement was recorded by the police. PW5 SI Matadin deposed that on 04082008, he was called by SI Satya Prakash at the spot i.e. H. No. 17A/177, Patharwala Bagh, Wazirpur JJ Colony. He along with Ct. Ramesh, finger print expert reached at the spot. He inspected the spot along with Ct. Ramesh and he prepared the Crime Team report Ex. PW5/A. During crossexamination by the Ld. APP for State, PW9 deposed that police had prepared the site plan on his pointing out. He handed over the copy of the agreement reached before the Panchayat and the copies of police complaints made by Aasmin to the police which were seized vide memo Exbt. PW9/C. PW9 FIR No. 275/08; State Vs. Mohd. Ashiq Page 29 of 56 deposed that he along with the IO went to Nabi Karim in search of accused Mohd. Ashiq and that at about 6.30 pm when they reached in the gali in front of house No. AB430 Amar Puri, accused Mohd. Ashiq came out of the house suddenly and on his pointing out, accused was apprehended by the police. On enquiry, accused Mohd. Ashiq confessed his guilt and gave the complete narration of the incident. The accused was arrested vide arrest memo Exbt. PW3/C and his personal search was conducted vide memo Exbt. PW9/D. Accused Mohd. Ashiq was having injuries on his lip and near his left eye. On interrogation, accused disclosed that he had sustained those injuries while he was strangulating Aasmin, when she was moving her hands to save herself. The accused gave disclosure statement Exbt. PW9/E bearing his signatures at point A.
23. PW10 Ct. Ugrasain deposed in his examination in chief that on 04.08.2008, he was posted at PS Ashok Vihar as Constable and on that day, DD No. 14 was received at 9.15 am that a dead body was lying in the jhuggi at Patthar Wala Bagh, JJ Colony, Wazirpur. He along with Chowki Incharge SI Satya Prakash, ASI Dev Raj and Constable Sheesh Ram went at the spot. The dead body of a lady was found on the bed in jhuggi No. N17A/177, Patthar Wala Bagh. There was crowd at the place. SI Satya FIR No. 275/08; State Vs. Mohd. Ashiq Page 30 of 56 Prakash examined the body. Mohd. Shakeel, brother of the deceased met them. There were injury marks on the neck and water was coming out from the mouth of the body. On enquiry, the name of the deceased came to be known as Aasmin @ Baby. The crime team was called at the spot. SHO PS Ashok Vihar also came at the spot. SI Satya Prakash prepared a tehrir and sent him to the police station with Tehrir. On the basis of the Tehrir, the Duty Officer recorded the FIR and handed over a computer print out of the FIR. PW10 then came back at the spot and handed over the copy of FIR and Tehrir to the IO. Then, he along with SI Satya Prakash, SI Dev Raj, Constable Sheesh Ram and Mohd. Shakeel went to Nabi Karim with IO in search of accused Mohd. Ashiq. Accused Mohd. Ashiq (correctly identified) was apprehended outside his house AB430 Amar Puri on the pointing out of Mohd. Shakeel. Accused was arrested and was brought to the police station. PW10 and Constable Sheesh Ram then took the accused to BJRM Hospital for medical examination. The body of the deceased was found on the ground floor of the jhuggi. PW11 Sanjeev running a photo studio by the name of Mann Photo Studio at shop no. 3, near Primary School, JJ colony, Wazirpur, Delhi, deposed in his examination in chief that at the instance of IO, he FIR No. 275/08; State Vs. Mohd. Ashiq Page 31 of 56 took photographs Ex. PW11/1 to PW11/16 of the body of a lady lying on the bed on ground floor from different angels through his digital camera. He handed over the printouts of the photographs to the police. During crossexamination by the Ld. APP, the witness deposed that photographs were taken on 04082008 at jhuggi no. 17A/177.
24. PW12 Ct. Vinod Kumar deposed that on 04.08.2008, he was posted at PS Ashok Vihar. On that day, DO handed over him copy of FIR No. 275/08 under Section 302 IPC to deliver the same to Area MM and senior police officials. He delivered the copy of the same to the residence of learned MM, office of ACP Keshav Puram, office of DCPI and DCPIII and to the Joint CP Northern Range at his office. PW13 WHC Prafulla deposed that on 04082008 he was posted at PS Ashok Vihar as DO from 8 am to 4 pm. On that day, Ct. Ugrasen brought a rukka sent by SI Satyaprakash on which basis he registered the computerised FIR Ex. PW13/A of the present case. (OSR). He also made endorsement on the rukka. PW14 SI Manohar Lal, Draftsman, NorthWest, PS Ashok Vihar deposed that on 24092008, he was posted as Draftsman in North West District and on that day, he along with IO Inspector Om Prakash visited the spot i.e. jhuggi no. N17A/177, Patharwala FIR No. 275/08; State Vs. Mohd. Ashiq Page 32 of 56 Bagh, JJ Colony, Wazirpur, Delhi where on the pointing out of IO he prepared rough notes and took measurements. Later on, on the basis of rough notes, he prepared scaled site plan Ex. PW14/A. PW15 Mohd. Salim deposed that he knew the accused Mohd. Ashiq and name of his wife was Asmeen Kausar. Accused Mohd. Ashiq had contracted a second marriage in the village. The village Panchayat directed the accused to keep both his wives with him. PW15 had also attended that Panchayat. On 14.10.2008, Chowki Incharge called him and asked if the settlement had taken place in his presence. PW15 told him about the Panchayat settlement Ex. PW6/B before the Panchayat. During her lifetime, Asmeen Kausar gave a complaint Ex. PW6/A to the police. PW15 deposed that contents given in Exbt. PW6/A and Exbt. PW6/B were correct. Accused used to harass his wife Asmeen Kausar and also used to call her a woman of easy virtue.
25. PW16 ASI Dev Raj deposed that on 04.08.2008, he was posted at PP Wazir Pur JJ Colony of PS Bharat Nagar and on that day, at around 9.15 am, he received an information through DD No. 14 Exbt. PW16/A that a dead body was lying near Chhoti Masjid, Patthar Wala Bagh. He along with SI Satya Prakash, Incharge Police Post Wazir Pur JJ Colony, Constable Ugrasain and FIR No. 275/08; State Vs. Mohd. Ashiq Page 33 of 56 Constable Sheesh Ram reached near Chhoti Masjid. On enquiry, it was revealed that a woman had died in jhuggi No. N17/A/177 and lying of dead body inside the jhuggi. They went inside the jhuggi and one dead body of a woman was found lying on the wooden bed on the ground floor room of the jhuggi. One Mohd. Shakil, brother of the deceased met him there. The name of the deceased was revealed as Asmeen @ Baby wife of Mohd. Ashiq. There were injury marks on the neck of the dead body of deceased Asmeen. Crime team was called at the spot by SI Satya Prakash who inspected the spot. Constable Ugrasain and Constable Sheesh Ram controlled the crowd. One private photographer was also called at the spot by SI Satya Prakash who took the photographs of the dead body and the spot. SI Satya Prakash recorded the statement of Mohd. Shakeel. Inspector Om Prakash, SHO PS Ashok Vihar also reached at the spot. SI Satya Prakash made endorsement on the aforesaid statement and got the FIR registered through Constable Ugrasain who handed over the copy of FIR and original endorsement to Inspector Om Prakash who carried out the further investigation. On the instructions of the IO, Inspector Om Prakash, SI Satya Prakash and Constable Sheesh Ram shifted the dead body to BJRM Mortuary. SI Satya Prakash got conducted the FIR No. 275/08; State Vs. Mohd. Ashiq Page 34 of 56 postmortem examination on the dead body of Asmeen and on return to the spot, handed over the blood sample and sample seal of the deceased to the IO which were taken into possession. PW16 along with IO Inspector Om Prakash, SI Satya Prakash, constable Ugrasain, Constable Sheesh Ram and public witness Mohd. Shakeel went in search of Mohd. Ashiq to his house situated at Nabi Karim, H. No. AB430, Amar Puri. When they reached near the house in the lane, accused Mohd. Ashiq (correctly identified) was seen coming out of his house who was identified by public witness Mohd. Shakeel. The accused was apprehended and was interrogated who after sometime, admitted his guilt. The accused was arrested vide arrest memo Exbt. PW3/C and his personal search was carried vide memo Exbt. PW9/D. The information regarding the arrest of accused was given to his wife Shakeela and landlord Naseem. Two mobile phones, one watch having steel chain and one black colour rexine purse containing Rs. 300/ were recovered in his personal search. The accused gave the disclosure statement Exbt. PW9/E. The documents including the agreement between the accused and Asmeen in a Panchayat and the complaints given by Asmeen to the police before her death against the accused which were taken into possession when the same were FIR No. 275/08; State Vs. Mohd. Ashiq Page 35 of 56 handed over by Mohd. Shakeel to the IO vide seizure memo Exbt. PW9/C. His statement was recorded. PW16 identified the agreement Exbt. PW9/F, complaint Exbt. PW6/A, complaint Mark A and Panchayatnama Exbt. PW6/B. PW19 Ct. Sheesh Ram joined the investigation and also supported the testimony of PW24 Inspector Sat Prakash.
26. PW23 Ct. Rajeev Mann deposed that on 04082008, he was posted as Operator in PHQ (CPCR) and his duty was from 8 am to 2 pm. At about 9:13 am, he received information from one Subhash regarding lying a dead body at Patharwala Bagh, JJ Colony, Wazirpur, in front of Masjid. On this information, he filled the PCR form Ex. PW23/A. Thereafter, he sent the information on net for further inquiry. PW24 Inspector Satya Prakash deposed that on 04082008, he was posted as Chowki Incharge, Police Post Wazir Pur, JJ Colony. On that day, on receipt of DD no. 14 Ex. PW16/A, he along with ASI Devraj, Ct. Shish Ram, and Ct. Ugrasen reached at jhuggi no. N17A/177, Patharwala Bagh, near Choti Masjid where lot of people had gathered at the spot. The body of a woman was lying on a wooden bed in the jhuggi with strangulation and injury marks on her neck. She was bleeding from her mouth. On inquiry, PW24 came to know that name of the woman was FIR No. 275/08; State Vs. Mohd. Ashiq Page 36 of 56 Aasmin. Her brother Shakil met him in the jhuggi. PW24 passed message to Control Room. SHO PS Ashok Vihar, Inspector Om Prakash came at the spot. In the meanwhile, he also recorded statement of Mohd. Shakil and made endorsement Ex. PW24/A and sent the rukka to PS through Ct. Ugrasen. Crime Team was called at the spot. The spot was inspected by the Crime Team. The camera of Crime Team photographer was out of order and therefore spot was photographed by calling a private photographer. SHO sent the body to BJRM hospital mortuary through Ct. Shish Ram. SHO recorded statement of IC, Crime Team. Ct. Ugrasen came back at the spot after the registration of FIR and handed over copy of FIR and rukka to SHO. On the directions of SHO, PW24 took Shakil, brother of deceased and Lal Mohd., father of the deceased to BJRM hospital for postmortem of the deceased. He prepared the inquest documents Ex. PW24/B. After postmortem, the body was handed over to the father of the deceased vide memo Ex. PW3/B. The doctor had handed over two sealed pullandas and a sample seal to PW24. He then came at the spot and handed over the sealed pullandas and sample seal to the SHO which were seized vide memo Ex. PW24/C. On inquiry by the SHO, Shakil informed that name of his brotherinlaw was Mohd. Ashiq and he was FIR No. 275/08; State Vs. Mohd. Ashiq Page 37 of 56 resident of AB430, Amarpuri, Nabi Karim, Delhi. Shakil also handed over the complaints made by his sister and the Panchayatnamas which were seized vide memo Ex. PW9/C. PW24 deposed that the agreement is already Ex. PW9/F and copy of compromise is also and already exhibited as Ex. PW6/A and PW6/B. Then, PW24 along with SHO, Ct. Ugrasen, ASI Dev Raj, Ct. Shish Ram, and complainant Shakil went at AB430, Amarpuri, Nabi Karim, Delhi. They laid trap outside the house. At about 6:30 pm, accused Mohd. Ashiq (correctly identified) came out of his house and he was identified by Shakil. After interrogating accused, he was arrested vide arrest memo Ex. PW3/C and his personal search was conducted vide memo Ex. PW9/D. Accused was sent to BJRM hospital for medical examination. During crossexamination by Ld. APP for State, PW24 deposed that on interrogation, accused gave disclosure statement Ex. PW9/E and that sealed pullandas were bearing the seal of CMO, BJRM hospital.
27. PW25 ACP Om Prakash, PM Security, New Delhi deposed that on 04.08.2008, he was posted as SHO at PS Ashok Vihar and on that day, a call was received in the police chowki Wazir Pur JJ Colony that one dead body of a lady was lying in a jhuggi near Chhoti Masjid. The said information was recorded vide DD No. FIR No. 275/08; State Vs. Mohd. Ashiq Page 38 of 56 14 already Exbt. PW16/A. He directed SI Satya Prakash, Chowki Incharge to carry out the investigation regarding the same as he was busy in an official meeting. At around 10.45 am, he received another call from SI Satya Prakash that it seemed to be a murder on the inspection of the dead body. PW25 reached at the spot i.e. Jhuggi No. N17A/177, Wazir Pur JJ Colony where the dead body of a lady, aged around 3032 years, was lying on Takht and there were ligature marks on her neck. SI Satya Prakash had already recorded the statement of brother of the deceased namely Shakeel and SI Satya Prakash made endorsement upon the same. PW25 inspected the spot as well as the body and also verified the statement made by the complainant. The crime team was already present at the spot including SI Matadin and his staff. Crime team inspected the spot and handed over crime team report Ex. PW5/A to him. Thereafter the body was sent to BJRM Hospital Mortuary through Constable Sheesh Ram for preservation. PW25 directed SI Satya Prakash to get the postmortem of the dead body. He made enquiries from the residents of nearby jhuggi regarding the incident. PW25 prepared site plan Ex. PW25/A of the spot at the instance of Shakeel. He recorded the statement of Crime Team Incharge. A private photographer was called as the camera of the crime team FIR No. 275/08; State Vs. Mohd. Ashiq Page 39 of 56 was not in working condition. The private photographer took the photographs Exbt. PW11/1 to Exbt. PW11/16 of the deceased as well as of the spot. SI Satya Prakash reached at the place of occurrence at about 3.30 pm accompanied by brother of deceased and other police staff.
28. Shakeel disclosed to PW25 that accused Mohd. Ashiq (correctly identified) used to harass and torture her sister and a case under Section 498A/406 IPC was also registered in this regard. The mother of deceased as well as complainant also told him that the aforesaid matter was got compromised by the intervention of Panchayat and a Panchayatnama was prepared in this regard. Complainant produced the said Panchayatnama regarding compromise to him which he seized through seizure memo already exhibited as Exbt PW9/C. The documents i.e. agreement Exbt. PW9/F, intimation to the Chowki Incharge Exbt. PW6/A, application written to the DCP (photocopy) already Mark A, the detail of proceedings conducted by Panchayat members and the witnesses exhibited as Exbt. PW6/B. SI Sat Prakash handed over to him pullandas containing the blood of the deceased and clothes of deceased along with sample seal of BJRM Hospital which he seized through seizure memo already exhibited as Exbt. PW24/C. FIR No. 275/08; State Vs. Mohd. Ashiq Page 40 of 56 Complainant was asked regarding the whereabouts of accused Mohd. Ashiq and he informed him that accused was present at Amar Puri, Nabi Karim, Delhi where he was residing with his second wife. PW25 along with police team and Shakeel went to house No. AB430, Amar Puri, Nabi Karim, Delhi. The police team took position in different directions at some distance from the house. At around 6.30 pm, complainant pointed out towards one person and told that he was Mohd. Ashiq. Accused was nabbed by the members of the police team. PW25 started interrogating the accused. Accused was arrested vide arrest memo Exbt. PW3/C and his personal search memo Exbt. PW9/D was also prepared. He prepared body inspection memo of accused Exbt. PW25/B. After interrogation, he recorded his disclosure statement already Exbt. PW9/B. He recorded the statements of witnesses under Section 161 Cr. PC. and got prepared scaled site plan through draftsman. The post mortem report was collected. After completion of investigation, challan was prepared and the same was filed in the court.
29. PW9 deposed in his crossexamination that he did not remember the time when the police reached at their jhuggi as he was perplexed. Police had recorded the statement of Mulla Ji at the spot. PW9 also deposed that statements of his mother, father and FIR No. 275/08; State Vs. Mohd. Ashiq Page 41 of 56 both the children of his sister were also recorded. The statement Exbt. PW9/A was recorded near his house but he could tell the time of its recording. PW9 denied the suggestion that statement Exbt. PW9/A was given after consultation with his Jeeja. PW9 further denied the suggestion that he made no complaint to the police before the arrival of his Jeeja to discuss with him as to what statement to be given to the police. PW9 had told the police that his sister was residing on the ground floor and they were residing on the first floor. PW9 deposed in his crossexamination that only he accompanied the police from his family for the arrest of accused from Nabi Karim. PW9 had identified the body of his sister during the period he remained at the hospital for 1½ hours. The statement Exbt. PW9/B was recorded in the hospital. PW10 in his cross examination deposed that the IO of the case investigated the matter from the next door neighbours about the incident. However, PW10 deposed in his crossexamination that only the brother and mother of the deceased were present at the spot when they reached there. PW10 reached at the spot after registration of the FIR at about 1.30 pm. They left the spot for Nabi Karim at around 3.00 - 3.30 pm. PW10 further deposed that the had directly reached the house of the accused. IO had requested 24 persons to join the investigation FIR No. 275/08; State Vs. Mohd. Ashiq Page 42 of 56 but they refused. Ct. Sheesh Ram had caught hold of the accused Mohd. Ashiq. PW16 ASI Dev Raj during his crossexamination deposed that he received the information in the Police Chowki from PCR (NW District) through wireless. DD no. 14 was lodged in this regard in the police chowki. He reached the spot within five minutes on foot and inspected the place of incident properly. The dead body was lying on the ground floor of the said house. There was one other room on the first floor of the said premises. PW16 further deposed in his crossexamination that SI Satya Prakash started conducting proceedings at the spot as he had accompanied him. He called the Crime Team and informed SHO. Private photographer was also called. PW16 further deposed in his crossexamination that on the first floor of the said house, mother, father and brother of the deceased used to reside. PW16 also deposed in his cross examination that on interrogation of the parents of the deceased, it was revealed that accused had visited their house at around 9:30 pm and had quarrelled with the deceased. The parents of the deceased had counselled the deceased and they went on the upper floor to sleep. Accused remained at their house in the night along with deceased. PW16 denied the suggestion that accused was not present there. Some neighbours were asked to join the FIR No. 275/08; State Vs. Mohd. Ashiq Page 43 of 56 investigation at the time of arrest of the accused but none agreed.
30. PW19 Ct. Shish Ram deposed in his crossexamination that on the day of incident, he was on duty from 9.00 am to 11.00 pm. The information was received in the police chowki from Police Control Room of the District. SHO Om Prakash, SI Satya Prakash, ASI Dev Raj, Constable Ugrasain and PW19 were present at the spot. PW24 during crossexamination deposed that condition of the dead body was not suspicious. However, PW24 volunteered that the deceased was having ligature marks around her neck. PW24 inspected the spot and crime team was also called there. The height of the roof of the room where the dead body was lying was around 810 feet. PW24 further deposed in his crossexamination that when the quarrel took place between the deceased and her husband at around 10.00 pm on 03.08.2008, Shakeel, brother of the deceased and mother of the deceased came to sort out the matter. The family members of deceased could hear her noise when she was murdered. PW24 recorded the statement of Shakeel at the spot. IO had requested 45 public persons to join the investigation, but they refused. PW24 denied the suggestion that accused Mohd. Ashiq was arrested from his working place at Nabi Karim. During sustained interrogation, accused confessed his involvement in the FIR No. 275/08; State Vs. Mohd. Ashiq Page 44 of 56 present case. PW24 further denied the suggestion that accused was given beatings and he was forced to confess his involvement in the crime. PW24 also deposed that there was no other suspect of the crime in the present case except the accused. PW24 denied the suggestion that on 04.08.2008, accused Mohd. Ashiq never visited the spot or that accused has been falsely implicated in the present case at the instance of brother and family members of the deceased. PW24 further deposed in crossexamination that he came to know from public at the spot that accused used to suspect on the character of his wife.
31. PW25 deposed in his crossexamination that he reached at the spot within ten minutes of receipt of call from SI Satya Prakash. There was only one room in the jhuggi where the dead body was lying. The height of the roof of the jhuggi was around 810 feet. The brother and mother of the deceased informed that they had pacified the matter at around 10.00 pm between the accused and the deceased as the accused had quarrelled with her daughter. PW25 denied the suggestion that accused Mohd. Ashiq was not present at the place of occurrence on 04.08.2008. The crime team officials conducted the proceedings in presence of PW25. The DD No. 14 was recorded on the information given by FIR No. 275/08; State Vs. Mohd. Ashiq Page 45 of 56 Abdul Kalam, brother in law of deceased. PW25 also deposed in his crossexamination that FIR was got registered by the deceased against the accused under Section 406/498A IPC but he was not aware about the fate of the said case. PW25 denied the suggestion that he conducted faulty investigation in the present case. PW25 requested four public persons to join the investigation but they refused. PW25 was in police uniform at the time of arrest of accused. No memo was prepared of the raiding party. However, PW25 volunteered in his crossexamination that in disclosure, the accused himself disclosed that when he was strangulating his wife, she gave leg and fist blows to him to save herself due to which, he received those injuries. PW25 deposed in his crossexamination that he made enquiries from the brother and mother of the deceased as to whether they had heard any noise when the deceased was being strangulated but they informed that they had not heard the scuffle. PW25 denied the suggestion that accused has been falsely implicated in the present case at the instance of family members of the deceased or that accused was not on visiting terms at the house of deceased after 1995. Therefore, the accused cannot take the benefit of defective investigation, if any. In taking this view, I am supported by the judgement reported in the case of Dhanaj Singh @ FIR No. 275/08; State Vs. Mohd. Ashiq Page 46 of 56 Shera & ors. Vs. State of Punjab, AIR 2004 SC 1920 which has been relied upon by the Ld. APP for the State.
32. The Ld. Defence counsel has argued that there are major contradictions in the testimonies of the aforesaid PWs which go to the root of the case and the case of the Prosecution falls on that basis itself. Whereas, the Ld. APP for the State has argued that there are some minor contradictions in the testimony of PWs which do not go to the root of the case and the accused cannot take benefit of such minor contradictions. I have also found that there are some contradictions in the testimony of the said PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this context, a reliance is placed upon the judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. In Dasondha Singh & Ors. Vs. State of Punjab, 2012 Cri.L.J 194, it was also held by the Hon'ble High Court of Punjab and Haryana that minor discrepancies here and there in the statements of the prosecution witnesses, in view of overwhelming evidence on record are liable to be ignored.
33. The Ld. Defence counsel has further argued that no FIR No. 275/08; State Vs. Mohd. Ashiq Page 47 of 56 public witness joined the investigation. So far as public witnesses joining the investigation are concerned, PW10 deposed in his cross examination that IO has requested 2--4 persons to join the investigation but they refused. PW16 also deposed in his cross examination that he was present at the time of arrest of the accused. Some neighbours were asked to join the investigation at the time of arrest of the accused but none agreed. PW24 also deposed in his crossexamination that he had requested 4 public persons to join the investigation but they refused. It is pertinent to mention here that public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements by the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for not joining of independent public witnesses. In this context, a reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194.
FIR No. 275/08; State Vs. Mohd. Ashiq Page 48 of 56
34. Ld. defence counsel for the accused has argued that prosecution has failed to prove motive for the murder. The defence, to my view, cannot dig out any advantage from the fact that motive has not been proved. No doubt, the court generally tries to asses the motive behind any murder but most often only the perpetrator of crime alone knows as to what circumstances prompted him to certain course of action. Motive is in the mind of accused and can seldom be fathomed with any degree of accuracy. Therefore, absence of motive cannot dislodge the entire prosecution story. In this context, I would place a reliance upon the judgement reported in the case of State of UP Vs. Babu Ram 2000 (II) AD 285, it was held that:
"Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the Prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogation that cannot be put in evidence by them due to the ban imposed by law. In this context, we would reiterate what this court has said about the value of motive evidence and the FIR No. 275/08; State Vs. Mohd. Ashiq Page 49 of 56 consequences of prosecution failing to prove it, in Nathuni Yadav Vs. State of Bihar, [1998 (9) SCC 238] and State of Himachal Pradesh Vs. Jeet Singh [1998 (4 SCC 370)].
Following passage can be quoted from the latter decision:
No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the Prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the Prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered."
35. It is evident from the testimony of the aforesaid PWs that the accused used to come to the house/ jhuggi of the deceased after consuming liquor and used to demand money from her and also used to quarrel with her. PW1, son of the deceased categorically deposed that his father used to ask him to accompany his mother and used to keep a watch on her and he used to say his mother "tu to kisi se fasi hui hai". PW2 who is also son of the deceased specifically deposed that his father used to visit their house after consuming liquor and used to quarrel with his mother/ FIR No. 275/08; State Vs. Mohd. Ashiq Page 50 of 56 deceased and demand money from her. PW2 further categorically deposed that his father used to snatch money from his mother and his father used to say to his mother that she was having love affair with other person. His father/ accused used to ask him to keep a check on her and to see with whom his mother meets and he used to say to his mother that she is a bad character (badchalan). Meaning thereby, the accused admitted what PW1 and PW2 deposed against him before the court which is the unrebutted testimony of PW1 and PW2. PW3, father of the deceased also categorically deposed that accused used to beat and abuse his daughter and also used to call her immoral and that she was having affair with other man. PW4 is the mother of deceased who deposed that accused after taking liquor used to quarrel with her daughter Baby for money. Accused used to suspect her daughter and used to call her loose character. PW6 is the brotherinlaw of the deceased who categorically deposed that accused also started torturing and harassing his sister in law and accused left the matrimonial home. PW7, brother of the deceased also categorically deposed that accused used to torture his sister. After 2/ 2½ years of marriage of his sister, the accused got remarried with other lady namely Shakila. PW7 further specifically deposed that occasionally FIR No. 275/08; State Vs. Mohd. Ashiq Page 51 of 56 used to visit the jhuggi of his sister and after quarrelling and beating his sister, he used to leave. PW8 was running a dhaba also categorically deposed that the accused came and told him that he had killed his wife Aasmin by pressing her neck. The accused was looking perturbed and his voice was trembling. The accused was present in the jhuggi at that time but thereafter fled away.
36. PW9 is also brother of the deceased who categorically deposed that accused did not make any financial contribution to his sister and used to doubt her character by calling her "badchalan" and his mother had also lodged a complaint with police against the accused. The accused also used to beat her. PW9 further categorically deposed that on 03082008, accused came at the jhuggi of his sister and started quarrelling with her at about 9:30 pm and on hearing the noise of quarrel, he and his mother came down from the first floor of the jhuggi and after persuading both of them, they went back to the first floor of the jhuggi where they were residing. On 04082008 at about 6 am, he saw the accused going from the jhuggi towards Mulla's dhaba after bolting the door of the jhuggi. PW9 came down and opened the kundi and went inside and saw his sister Aasmin lying dead on the bed. He tried to shake her but she was not responding. There was injury mark on her neck. FIR No. 275/08; State Vs. Mohd. Ashiq Page 52 of 56 There was also black and yellow scars on her face. PW15 has categorically deposed that the village Panchayat directed the accused to keep his both wives with him since he had also attended that Panchayat. The accused used to harass his wife Aasmin and also used to call her woman of easy virtue. PW16 ASI Dev Raj also categorically deposed that there were injury marks on the neck of dead body of deceased Aasmin. Crime Team inspected the spot. Photographer was called who took the photographs of the dead and the spot.
37. PW18 neighbour of the accused and deceased also categorically deposed that accused used to quarrel with his wife and beat her. PW20 who knew the accused specifically deposed that accused had stated in the Panchayat that he would look after his wife well and the Panchayat was held because accused was not maintaining his wife well and used to beat her and had performed second marriage. PW22 SI Bal Prakash proved the FIR no. 159/95 u/s 498A/406 IPC which was registered against the accused. PW24 Inspector Satya Prakash categorically deposed that body of woman/ Aasmin was lying on a wooden bed in the jhuggi with strangulation and injury marks on her neck. PW25 ACP Om Prakash has also proved on record that he reached at the spot i.e. Jhuggi no. FIR No. 275/08; State Vs. Mohd. Ashiq Page 53 of 56 N17A/177, Wazirpur JJ Colony where the dead body of a lady/ Aasmin, aged about 3032 years was lying on takht and there were ligature marks on her neck. He inspected the spot as well as the body and also verified regarding the statement made by the complainant. PW25 prepared site plan Ex. PW25/A of the spot at the instance of Shakeel (PW9). SI Sat Prakash handed over him pullandas containing the blood of the deceased and clothes of the deceased along with sample seal of BJRM hospital which he seized through seizure memo Ex. PW24/C. PW25 also prepared body inspection memo of accused Ex. PW25/B. PW25 got prepared scaled site plan through draftsman and the postmortem report was collected. PW26 Dr. R. P. Singh, SR, Trauma Centre, AIIMS, Delhi conducted postmortem on the body of the Aasmin which was received through Ct. Shish Ram of PS Ashok Vihar. PW26 deposed regarding the external antemortem injuries of the deceased that reddish abrasion of size 6 cms x 1.5 cms present on right side of neck placed horizontally in submandibular region, medial and was in midline; semicircular reddish abrasion of size 1 cm x 0.3 cm was present 0.5 cm above the injury no. 2; reddish abrasion of size 0.5 cm x 0.4 cm was present on left cheek, 1.5 cms below and lateral to left angle of mouth; reddish abrasion of size 0.5 cm x 0.2 cm was FIR No. 275/08; State Vs. Mohd. Ashiq Page 54 of 56 present on left side of neck, 4 cms below ear lobule; multiple linear reddish abrasions were present on left side of base of neck in an area of size 2.5 cms x 2 cms, 6 cms posterior to middle of left clavicle. Postmortem report Ex. PW26/A also shows that cause of death in this case was asphyxia due to antemortem manual strangulation (throttling). PW26 deposed that time since death was about half a day. Clothes and blood on gauze piece were preserved. PW26 proved his detailed postmortem report as Ex. PW26/A. Despite opportunities given, the Ld. Counsel for the accused did not crossexamine PW1 to PW5, PW11, PW13 to PW15, PW22, PW23, and PW26 and their testimonies remained unrebutted.
38. In his statement u/s 313 Cr.P.C. accused has merely denied all the incriminating evidence. The Prosecution has satisfactorily proved the various links and the accused did not offer any explanation consistent with his innocence and therefore the absence of such explanation itself is an additional link which completes the chain. In my considered view, Prosecution has been able to prove the other circumstances which unerringly point to the guilt of accused and the chain of evidence is complete so as not to leave any reasonable ground for the conclusion consistent with the FIR No. 275/08; State Vs. Mohd. Ashiq Page 55 of 56 innocence of accused and shall in all probability that act was done by accused. The aforesaid judgement relied upon by the Ld. Defence counsel is not applicable to the fact and circumstances of the present case. I, therefore, hold the accused guilty and convict the accused for the charge of committing cruelty for demand of dowry and for committing murder of Aasmin @ Baby. Accordingly, accused Mohd. Ashiq is convicted for the offence u/s 498A and 302 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 08062012 FIR No. 275/08; State Vs. Mohd. Ashiq Page 56 of 56