Delhi District Court
Fir No. 222/10 State vs . Shahnawaz. Page No. 1/131 on 21 July, 2016
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE(NE), KARKARDOOMA COURTS, DELHI.
SC No. 44592/15
FIR No. 222/2010
PS : New Usmanpur
U/s. 498A/304B/302 IPC
& 27 of Arms Act
State
Versus
Shehnawaz @ Sonu
S/o Sh. Meharban
R/o H. No. U-200, Arvind Nagar,
Near Khadde Wali Masjid, Third Pusta,
Usmanpur, Delhi.
Date of Committal : 25.10.2010
Date of Arguments : 07.06.2016
Date of Pronouncement : 21.07.2016
JUDGMENT :
1. Prosecution case: It is the case of the prosecution that on 12.07.2010, a DD No-9A was lodged with PS New Usmanpur on the basis of an information from one known person that one lady had been shot. On receiving of DD, ASI Satyapal along with Ct. Devender FIR No. 222/10 State Vs. Shahnawaz. Page No. 1/131 visited at House No. U-200, near Khadde Wali Masjid, Arvind Nagar, Ghonda, Delhi, where dead body of a lady was lying on a cot in varanda. On inspection of the body, it was revealed that she was shot on her head in the room adjoining to gallery and back portion of the scalp had scattered. It is further alleged that a riffle .315 bore was lying in the room and magazine of cartridges was put on a slab and, blood, flash and skull bones were spread all over the room. One mobile phone was lying in the corner and a piece of bullet pellet was lying there. Crime team was called at the spot. Dead body of the lady was removed to GTB Hospital. Ld SDM was informed about the incident as the deceased had died within seven years of her marriage. Ld. SDM recorded the statements of parents of deceased in his office and got recorded the FIR against the accused u/s 302/304B/498A IPC, with the allegations that deceased was subjected to harassment by accused for not meeting out his demand of a car. Accused was arrested and charge-sheeted u/s 302/304B/498A IPC.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. This court has framed charges against accused u/s 302 IPC and an alternative charge of section 304B IPC, besides charge u/s 498A IPC and also a charge under section 27 of Arms Act. Accused pleaded not guilty and claimed trial.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 2/1314. To prove the allegations, prosecution has examined PW1 Shakil Ahmad, PW2 Smt. Aneesa, PW3 Sazid Khan, PW4 Smt. Phool Bano, PW5 SI Anil Kumar, PW6 SI E.S.Yadav, PW7Ct. Neeraj, PW8 Sh. Israr Babu, Nodal Officer, Vodafone, PW9 SI Mukesh Kumar Jain, Draftsman, PW10 Sh.A.K. Sharma, Ld.SDM, PW11H.C.Narain Singh, PW12 HC DeshPal, PW13 Ct. Naseem Ahmed, PW14 Dr. Juthika Debbarma, PM Doctor ,PW15 SI Satya Pal, PW16 Md. Tehseen, PW17SI Chet Ram, Finger Prints Experts, PW18 Ct. Anil Kumar, PW19HC Pradeep Singh, PW20 Ct. Sunil, PW21Ct. Devender, PW22 SI Grish, PW23 ACP R.K. Khatana, PW24 Sh. R. Suresh, Asstt. Director Ballistic, PW25 Anita Chhari and Sr. Scientific Officer (Biology), FSL and closed PE.
5. After PE, entire incriminating evidence explained to the accused under section 313 Cr.P.C. and his statement was recorded. Accused preferred to lead defense evidence.
6. Accused has examined DW1Md. Saleem, DW2 Rajiv Ranjan, Nodal Officer, TATA, DW3 Saurabh Aggarwal, Nodal Officer, Vodafone, DW4 Swalin Khan and closed DE.
7. I have heard the arguments of both the parties and perused the record.
7.1. As per the allegations of prosecution, accused allegedly caused cruelty towards deceased Farheen Khan when her family members failed to meet out his dowry demand of a car and she was FIR No. 222/10 State Vs. Shahnawaz. Page No. 3/131 killed in her matrimonial home within the period of seven years of her marriage by gun shot injury on her head, by the license riffle of the father of accused.
7.2. To deal with the cases of dowry death which seems homicidal, the Hon'ble Supreme court of India has held in Vijay Pal Singh & Ors. v. State of Uttarakhand X (2014) SLT 478 that:
17. Since, victim in the case is a married woman and the death being within seven years of marriage, apparently, the court has gone only on tangent, to treat the same as dowry death. No doubt, the death is in unnatural circumstances but if there are definite indications of the death being homicidal, the first approach of the prosecution and the court should find as to who caused that murder. Section 304B of IPC is not substitute for section 302 of IPC. The genesis of section 304B of IPC introduced w.e.f. 19/11/1986 as per Act 43 of 1986 relates back to the 91 st report of the Law Commission of India. It is significant to note that the subject was taken up by the Law Commission suo-motu. The Paragraph-1.3. of the report reads thus:
"1.3. If, in a particular incident of dowry death, the facts are such as to satisfy the legal ingredients of an offence already known to the law, and if those facts can be proved without much difficulty, the existing criminal law can be resorted to for brining the offender to book. In practice, however, two main impediments arise-
I. either the facts doer not fully fit into the pigeon hole of any known offence; or II. the peculiarities of the situation are such that proof of directly incriminating facts is thereby rendered difficult.
The first impediment mentioned above is aptly illustrated by the situation where woman takes her life with own hands, though she is driven to it by ill-treatment.This situation any not fit into any existing pigeon hole in the list of offences recognized by general criminal law of the country, except where there is definite proof of instigation, encouragement of other conducts that amounts to "abetment" of suicide. Though, according to newspapers reports, there have been judgment of lower courts which seems to construe "abatement" in this context widely, the position is not beyond doubt.FIR No. 222/10 State Vs. Shahnawaz. Page No. 4/131
The second situation mentioned above finds illustration in those incidents in which, even though the circumstances raise a strong suspicion that the death was not accidental, yet, proof beyond reasonable doubt may not be forthcoming that the case was really one of homicide. Thus, there is need to address oneself to the substantive criminal law as well as to the law of evidence."
18. xxxx xxxx xxxx xxxx xxxx
19. However, it is generally seen that in cases where a married woman dies within seven years of marriage otherwise than under normal circumstances, no inquiry is usually conducted to see whether there is evidence, direct or circumstantial, as to whether the offence falls under section 302 of IPC. Sometimes, section 302 of IPC is put as an alternate charge. In cases where there is evidence, direct or circumstantial to show that the offence falls under section 302 of IPC, the trial court should frame the charge under section 302 of IPC even if the police have not expressed the any opinion in that regard in the report under section 173(2) of the Cr. P.C. section 304B of IPC can be put an alternative charge if the trial courts so feels. The course of trial, if the court finds that there is no evidence, direct or circumstantial, and proof beyond reasonable doubt is not available to establish that the same is not homicide, in such a situation, if the ingredients under section 304B of IPC are available, the trial court should proceed under the said provision.
7.3. The above said law laid down by the Hon'ble Apex Court in the above said recent judgment is the main criteria to decide the dowry death homicide cases. However, Court has to determine first as to whether the death of a bride is homicidal, accidental or suicidal or result of instigation by her in-laws. In the present case, the Ld. Predecessor has framed a charge u/s 302 of IPC as main charge and charge u/s 304B of IPC is an alternative charge thereby considering the death a homicidal.
7.4. Nature of Death: To ascertain the factum of nature of death of the deceased, the postmortem report Ex.PW14/A as well as the FIR No. 222/10 State Vs. Shahnawaz. Page No. 5/131 testimony of PW14 Dr. Jhutika Debbarma is relevant. PW14 Dr. Juthika Debbarma has deposed that on 13.07.2010, he conducted the postmortem on the dead body of deceased Farheen, aged 18 years old female, started at 10.35 a.m. and concluded at 12.00 noon. The body was brought with the alleged history of fire arm injuries, vide DD No.9A dated 12.7.2010 lodged at 12.25 p.m. The victim died on the spot. The following injuries were observed during postmortem :
On general observation: All the clothes were stained with blood. Mehandi stains were present applied to palm of both hands. Eyes and mouth were closed. Rigor mortis was present in well developed stage. Postmortem staining was present on back and fixed. No signs of decomposition were seen. He noticed following injuries on the dead body:
External Ante-mortem Injuries:-
(1) Partial firearm entry wound (muzzle imprint) cresentic shaped measuring 1 cm x .4 cm present on left parietal area of the scalp,
8 cm above left ear and 8 cm above left eyebrow. Incorporating this partial firearm entry wound was a lacerated wound measuring 22 cm x 11 cm x skull cavity deep present extending from nasion to occipital area of the scalp. Some parts of the scalp and parts of frontal, parietal and occipital bones were missing from the normal anatomical site, underlying the lacerated wound. The skull cavity was exposed to the surface and the bilateral cerebral hemispheres FIR No. 222/10 State Vs. Shahnawaz. Page No. 6/131 were missing from the skull cavity. Only the cerebellum was present. A partial exit wound was present on the right occipital wound measuring .7 cm x .6 cm, cresentic shaped, 2.8 cm from the external occipital protuberance with beveling on the external surface of the bone. Four grey colored small metallic pieces were present on the circumference of the exit wound and the subcutaneous tissue of scalp surrounding the partial exit wound. Comminuted fractures were present of the base of the skull. Internal Examination:-
Scalp: On reflection, extravasations of blood were present on the whole of the scalp, some parts over the frontal, parietal and occipital areas were missing from the normal anatomical site. Lacerated pieces of brain matter were present on the scalp hairs. Skull: Some parts of the frontal bone, parietal bones and occipital bones were shown in the figure of my report on the vault of the skull were missing from the normal anatomical site and were not present beside the body. Comminuted fractures present on the base of the skull were shown in the figure of my report.
Brain: Cerebral hemisphere was missing from the skull cavity. Only cerebellum was present weighing 100 grams.
Neck: NAD.
Stomach was full of semi digested food. Wall - 'NAD'. Cause of death was shock as a result of ante mortem injury to head produced by projectile of firearm. Injury No.1 was sufficient to cause death in ordinary course of nature.FIR No. 222/10 State Vs. Shahnawaz. Page No. 7/131
Articles preserved:
1. Sealed pullanda containing clothes of the deceased.
2. Sealed envelope containing blood on gauze of the deceased.
3. Sealed bottle containing four small grey color metal pieces recovered from the deceased.
4. Sample seal of JD.
Time since death was about 24 hours at the time of conduction of postmortem.
7.5. The above said testimony of the PW14 has proved that the death of the deceased Farheen was homicidal. During the cross examination of this witness, nothing adverse has come out to dispute this finding as only one question was put to him that, while conducting the postmortem he was being assisted by his juniors whose names he did not remember. He has denied that the postmortem report is false and manipulated.
7.6. In fact, by the testimony of the PW14, it is duly proved beyond doubt that the death of the deceased Farheen was homicidal and the cause of death was shock as a result of ante-mortem injury to head produced by the projectile of firearm. Injury No.1 was sufficient to cause death in ordinary course of nature and partial firearm entry wound (muzzle imprint) cresentic shaped has also proved that it must be blank point firing and measurement of wound 22cm x 11 cm has proved that it could not be accidental. As such, the testimony of FIR No. 222/10 State Vs. Shahnawaz. Page No. 8/131 PW14 has ruled out any other reason of the death of the deceased except homicidal.
7.7. Further, PW6 SI E.S. Yadav visited the spot of incident as an incharge of crime team and prepared his SOC report which is Ex.PW6/A. He found a gun .315 bore, three live cartridges, skull pieces, blood, bed sheet with blood and hairs, a cloth piece having bullet hole and piece of fired bullet. As per SOC Report, the modus operandi was 'shot dead by gun fired (.315 bore)'. This testimony of PW6 has corroborated to the PW14 that the death of the deceased was by a gun fire. PW7 Ct. Neeraj was photographer of the crime team and took 27 photographs of the place of incident which are Ex.PW7/A (colly.) of which negatives are Ex.PW7/B (colly.) and these photographs have also proved that a lot of blood and one fired bullet pellet were lying at the spot besides one riffle along-with one magazine which has also proved that the death of the deceased was homicidal and nothing else.
7.8. Besides it, PW13 Ct. Naseem Ahmed has also corroborated that on hearing the news of the murder of the deceased Farheen, he reached the spot of incident and on entering the house it was revealed that the dead body of a lady was lying on a cot in varanda and there was a bullet injury mark on the forehead of deceased and skull of the deceased had been scattered from top wards. He further noticed a bullet mark towards the head portion of the bed and small FIR No. 222/10 State Vs. Shahnawaz. Page No. 9/131 portions of flesh spread all over the bed.
7.9. PW15 SI Satya Pal has also corroborated to PW13 Naseem regarding the scene of crime and also noticed a gunshot injury on the forehead of the dead body and back portion of the skull was scattered. The pieces of skull and blood were visible on the walls as well as floor. One mobile phone was lying under the sofa chair and one bullet pellet was also lying there. He also noticed the riffle lying at the spot along with magazine and one fired cartridge was also found inside the chamber of the riffle. He seized all the articles containing blood stains, pieces of blood and clothes, and flesh of the deceased vide seizure memos Ex.PW13/A to Ex.PW13/E. He has identified the cartridge found inside the riffle which is Ex.P11.
7.10. PW17 SI Chet Ram has also corroborated the testimonies of PW13 and PW15 regarding the scene of crime. In the capacity of Finger Prints Expert, he tried to lift finger prints but no finger prints could be found in the entire room. PW21 Ct. Devender has also corroborated the testimony of PW13, PW15 and PW17 regarding the scene of crime as well as modus operandi of the murder. PW23 ACP R.K. Khatana has also corroborated the testimonies of the other witnesses regarding the scene of crime and also admitted about the recovery of the fired cartridge from the riffle Ex.P1 and has also corroborated the evidence of the other police officials.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 10/1317.11. PW24 has also corroborated the testimony of other PWs that a cartridge was recovered from the chamber of the riffle found having the individual characteristics of firing pin marks and beech face marks present on the evidence cartridge case mark as Ex.EC1 and on the test fired cartridge cases marked as TC1 to TC4 were examined and compared under the comparison microscope model Lieca DMC and were found identical. Hence, the cartridge case marked Ex.EC1 was fired through the riffle .315 " caliber bearing no. AB 95 3740 without magazine marked F1, but no opinion could be given regarding one metallic piece marked MP1 and 4 small pieces marked Ex.MP2 (colly.) due to insufficient data, however, Ex.P1 was found in working condition and was capable to fire the cartridge Ex.EC1.
7.12. As such, by the testimonies of the all the above said PWs, it stands proved that the death of the deceased was not natural and bullet was fired from the riffle recovered from the spot of incident and even the distinctive marks on the fired bullet cartridge were found identical to the specific and identical marks of the riffle used in the crime. As such, deceased was killed by the riffle Ex.P1 and death was homicidal.
7.13. Further, this fact has also been confirmed and corroborated by the DW1 and DW4 that they heard the sound of firing inside the house of the accused and a huge rush entered into the house of the FIR No. 222/10 State Vs. Shahnawaz. Page No. 11/131 accused and saw that someone had shot the wife of the accused namely Farheen and it has also suggested that the death of the deceased was homicidal and there is no possibility of being the suicidal or accidental. As such, it stands proved that the death of the deceased was homicidal.
8. Since it has been established that the death of the deceased Farheen was homicidal, the first charge u/s 302 IPC has to be dealt with first and alternative charge u/s 304B IPC is to be considered only after the failure of proving the charge u/s 302 IPC as held in Alamgir Sain v. State of Assam, (2002) 10 SCC 277 that the acquittal under Section 302 IPC will not lead to automatic acquittal u/s 304B IPC, if there is evidence available so as to satisfy the ingredients of Section 304B IPC, the accused can still be convicted u/s 304B of IPC, in case there is no rebuttal of presumption on the death as caused by the accused. It is not disputed proposition of law that the parameters of proving both the charges u/s 302 IPC as well as 304B IPC are separate and section 302 IPC does not carry any presumption like section 113B of Evidence Act regarding the offence u/s 304B IPC. As such, section 302 IPC is the main charge against the accused and Section 304B IPC is not substitute for Section 302 IPC and I am taking up it first.
8.1 UNDER SECTION 302 IPC: To prove the charges under section 302 IPC, the evidence of the both parties is relevant.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 12/131Prosecution has examined a number of witnesses to prove its case and accused has also examined four defense witnesses to prove his multiple defenses. The testimonies of PWs and DWs are as under:
8.1.1. PW1 Shakeel Ahmad has deposed that his daughter got married with accused on 07/04/2010 and joined her matrimonial home with accused on 3/7/2010 but on 12/7/2010, she was killed by firing. He received this information through the neighbor of the accused whose name he did not remember. It is further deposed that he came to know that accused had also beaten the deceased two days prior to her death. It is further deposed that at the time of marriage he had given one bullet motorcycle to the accused but accused used to harass the deceased for bringing a big car and deceased used to get scared in the name of going to her matrimonial home. It is further deposed that Ld. SDM recorded his statement which is Ex.PW1/A. On 13/7/2010, he identified the dead body of the deceased at GTB Hospital vide statement Ex.PW1/B. It is further deposed that on 05/09/2010, he handed over the list of dowry articles and two cash receipts/ cash memos of the motorcycle and copy of RC which were seized by the IO vide memo Ex.PW1/C. He also handed over the wedding card Ex.PW1/D and photographs of marriage of the deceased with accused which is Ex.PW1/E and were seized vide memo Ex.PW1/F. The original RC and payment receipts of which photocopies were handed over to police are Ex.PW1/H, Ex.PW1/J and Ex.PW1/K. FIR No. 222/10 State Vs. Shahnawaz. Page No. 13/131 8.1.2. During cross examination, PW1 has admitted that the list of dowry articles Ex.PW1/G does not bear signatures of any person from the side of accused and it is in the hand writing of his brother Sajid Khan and was prepared after the occurrence and on the asking of police. It is further admitted that the receipts Ex.PW1/J and Ex.PW1/K of South Delhi Motors are in the name of Maharban i.e. father of accused, and he neither has documentary proof regarding payment of purchase of motorcycle nor handed over the same to the police that he purchased the motorcycle for Rs. 75,000/-. It is denied that he has prepared a false list or no payment was ever made to purchase of this motorcycle or that it was purchased by the accused.
It is admitted that the accused family has many houses and rental income from those houses and is also admitted that the Nagini bua of his father has been residing at Gautam Vihar and accused family also resides very near to her house and there is only a gap of about 1-2 lines between their houses.
8.1.3. PW1 has further deposed that he has a local transport business and having one TATA 407 in his name besides joint business with other brothers and family members, and his brother is also having one TATA 407. It is further deposed that he is not an income tax payee, but having one plot measuring 25 yards in his name, situated at Ramesh Market, East of Kailash, Garhi, Delhi. It is admitted that three marriages took place in one pandal including the marriage of his sister Phool Bano, who also has been residing 4-5 FIR No. 222/10 State Vs. Shahnawaz. Page No. 14/131 km distant to the house of accused. It is admitted that the accused was doing the business of collecting rent of his properties. It is further deposed that he had given a motorcycle in the marriage of his sister Phool Bano also. He received the information of death of his daughter at about 12:30 pm - 1:00 pm through telephone from unknown number and at that time he was riding motorcycle and coming back from AIIMS and was going to his house at East of Kailash, but he did not remember the phone number by which he received the call regarding information of death of his daughter and also did not hand over that number to the police. It is admitted that he did not verify the incident from the accused or his family members being puzzled after receiving the information and want to his house first and thereafter went to the house of accused alongwith family members including his brothers Sajid, Haroon, mother Ashia and wife Aneesa and reached there at about 2:00-3:00 pm, but by that time, the other family members who had been residing near to the spot of incident, had already reached there besides police. It is further deposed that the dead body of his daughter was lying in the house and he stayed there for half an hour and got mentally disturbed due to went to the house of his relative Tehsin who was residing near to the house of accused and stayed there till 5:30/5:45 pm. Thereafter, he reached the office of the SDM at 6:00 pm alongwith his wife and, the SDM recorded his statement in his own handwriting and from there he along with his wife went back to his home.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 15/1318.1.4. PW1 has further deposed that he did not personally informed to Phool Bano about the incident nor she came there, but she visited to his house on next day of incident. On 13/7/2010, he along with police went to mortuary of GTB Hospital and on releasing of the dead body, he took it to his house. Police again called him on 05/09/2010 to PS. He has further deposed that accused, his parents and sisters are total 12-13 in numbers who had been residing with the accused and it is also admitted that all the relatives of the deceased also have been residing within the radius of one kilometer of the house of the accused, but when he reached at the spot of incident, he did not see the accused there and also was not aware as to whether family members of the accused were present at the spot as there was a lot of crowd. He was also not aware as to whether he had any conversation with the uncle of the accused regarding the incident on the way from AIIMS to East of Kailash. It is further deposed that he used to have conversation with the deceased every day or in alternative days by telephone, but he has denied the suggestion that any motorcycle was not given to the accused in the marriage or that the list of dowry articles is false or that accused never harassed the deceased or that Phool Bano also visited the house of the accused along with him after the incident. It is also denied that Mehardin i.e. chacha of the accused informed him about the incident that his daughter had suffered bullet injury.
8.2. PW2 Aneesa is the mother of the deceased and has FIR No. 222/10 State Vs. Shahnawaz. Page No. 16/131 corroborated the testimony of the PW1. She has deposed that on 12/7/2010, she received the information from neighbor that Shahnawaz had killed her daughter by fire arms. On 03/07/2010, her daughter had joined her matrimonial house. Initially, she went to her matrimonial home at the time of marriage and remained there for about 9-10 days. After coming from her matrimonial house, deceased used to remain frightened/ depressed "sahmi sahmi si rehti thi" and she tried to know the reason but she did not tell anything. She came to know that two days back accused had beaten up her daughter. It is further deposed that they had given a bullet motorcycle to the accused in the marriage but accused had been demanding a big car and used to harass her daughter regarding it. It is further deposed that on 12/7/2010, her statement Ex.PW2/A was recorded by the SDM. It is further deposed that she had given one mobile connection number 9899571796 to deceased so that family could remain in touch with the deceased. On 10/7/2010, deceased Farheen made a call to and informed that Shahnawaz demanded a car and also abused and assaulted her. She has corroborated that accused killed her daughter as they failed to meet out his dowry demand. PW2 Smt. Anesha has also given the similar statement to the Ld. SDM which is Ex.PW2/A. PW2 has admitted that four marriages took place in the same pandaal including marriages of deceased and Phool Bano and her husband borne all the expenses of all marriages. It is further deposed that she used to have telephonic conversation with the deceased on alternative days or whenever she went to her FIR No. 222/10 State Vs. Shahnawaz. Page No. 17/131 matrimonial home.
8.2.1. PW2 has admitted that she did not tell to the SDM in his statement that she tried to know the reason as to why deceased used to remain frightened but she did not tell anything or that she had given a mobile connection bearing no 9899571796 to deceased so that she may remain in touch with her but on confrontation of her statement, it was not found recorded in Ex.PW2/A. It is further admitted that mobile instrument was given to the deceased by accused. It is further deposed that she had stated to the SDM that on 10.7.2010, her daughter made a call her and told that Shahnawaj demanded a car and also abused and assaulted her, but on confrontation of earlier statement it was not found recorded. It is also not found recorded that accused Shahnawaj killed her daughter as they did not provide him a car. She received the information of death of the deceased through her husband and visited the matrimonial house of the deceased along with her family member, however, she did not visit the house of the deceased during her stay in her matrimonial house. It is further deposed that deceased had close relations with Phool Bano and used to talk her regularly since marriage and Phool Bano was also residing in the same area at Mustafabad, Delhi.
8.2.2. PW2 has further deposed that she did not know as to whether Phool Bano was informed about the death of the deceased or not or FIR No. 222/10 State Vs. Shahnawaz. Page No. 18/131 that she visited the spot of incident. She was also not aware as to who was present at the spot of incident during her visit, but she did not talk to Phool Bano on the day of incident, however, Phool Bano visited her house on 13/7/2010. She was also not aware as to who had informed Phool Bano about the incident, but it is denied that accused never harassed the deceased for dowry demand or has not killed her. It is also denied that no motorcycle was given in the marriage.
8.3. PW3 Sazid Khan has deposed that on 3/7/2010, accused had come to his house at Lajpat Nagar to take her niece Farheen back to his matrimonial home, and he alongwith accused went to take a stroll in the neighboring area and accused told him that that they had been residing in posh area where rich people resides, but they did not spend sufficient money in his marriage, however, he did not reply and kept mum but on confrontation of his statement Ex. PW3/DA it was not found recorded. It is further deposed that he handed over a SIM no 9899571796 to deceased at the time of his departure. On 10/7/2010, he came to know that accused had beaten up the deceased on the pretext of demanding a car.
8.3.1. During cross examination by Ld. APP for State, PW3 has admitted that he had stated to the IO that deceased did not want to go back to her matrimonial and used to say that 'man nahi lag raha' and also told IO that accused had beaten her up and had been FIR No. 222/10 State Vs. Shahnawaz. Page No. 19/131 demanding car instead of motorcycle. It is further admitted that he had assured the deceased that they would talk to her in-laws but on 12/7/2010 he came to know that deceased was killed by the accused by firing and accused had been constantly harassing her for demanding the car for which he killed her.
8.3.2. During cross examination by Ld. Counsel for accused, PW3 has admitted that he has been residing in a joint family and family has different businesses. His brother Shakeel has 6-7 transport vehicles and operates from tempo stand. His statement was recorded on 05/09/2010 in PS New Usmanpur. It is admitted that he received the information of beatings to deceased from his family members and did not remember whether he had any telephonic conversation with deceased regarding it. The incident regarding beating to the deceased by accused took place on 10/7/2010 and it came into his notice through family discussion. It is further deposed that on 12/7/2010, he along with family members reached the house of the deceased, but left the house after one hour to attend his business. He was not aware as to whether the family of the accused was present at the spot of the incident during his visit as large crowd had gathered. He used to talk Phool Bano and also visited her matrimonial house but did not remember the mobile numbers of Phool Bano or her husband and was also not aware whether Phool Bano or her husband was present at the spot of incident.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 20/1318.4. PW4 has deposed that deceased was her niece but like her friend and both of them used to have conversation on regular basis. It is further deposed that both of them got married on the same day and deceased used to tell her that she was not at ease at her matrimonial home and during her last conversation with deceased, she insisted her to come to meet her at her matrimonial home and also started crying on telephone. On asking, she replied that accused had beaten her up and thereafter her call got disconnected. She again connected to deceased after sometime and realized that deceased was frightened, but during the conversation, accused snatched her mobile and told that she should not make call to his house since they could not fulfill his demand of a car and disconnected the call. PW4 has further deposed that she lastly talked to the deceased on 12/7/2010 when deceased made a call and made complaint for not visiting her matrimonial home, but phone disconnected 2-3 times, however, it is reiterated that deceased was frightened and Shahnawaz snatched her mobile and complaint that his demand of car had not been fulfilled. It is admitted that her mobile number was 9212671881 and mobile number of her husband was 9289457530 and she used to talk to deceased from these both numbers.
8.4.1. During cross examination by Ld. APP for State, she has admitted that on 12/7/2010, deceased made a call to her and informed that accused had been demanding a car from her family FIR No. 222/10 State Vs. Shahnawaz. Page No. 21/131 members and even accused had also told her that their status was of merely motorcycle and they cannot fulfill his demand of car. It is further admitted that accused used to harass the deceased and killed her by firing on her.
8.4.2. During cross examination by Ld. Counsel for the accused, she has deposed that two marriages were solemnized in the same pandaal and one bullet motorcycle was given in the marriage of deceased and also to her own husband. It is further deposed that she used to talk to deceased by his mobile number 9212671881 and sometimes from the mobile of her husband. Her statement was recorded on 5/9/2010 at PS and she went there along with her brothers namely Shakil and Sajid and her statement was read over to her after recording, but she did not remember as to whether she had disclosed to the police that on 10/7/2010, she had telephonic conversation with deceased or that she insisted of her coming to meet her at her home or that she started weeping and informed that accused had beaten up. On confrontation of her statement Ex.PW4/DA, it was not found recorded there. It is also not found recorded in her statement that during talks with the deceased, accused snatched her mobile phone and asked that she should not make call to his house as they failed to fulfill his demand of car, but she did not remember as to whether she had stated to the police that on 12/7/2010 she talked to the deceased but her phone got disconnected 2-3 times or that she felt that deceased was frightened FIR No. 222/10 State Vs. Shahnawaz. Page No. 22/131 and it was also not found recorded in his statement Ex.PW4/DA. It is further deposed that she used to talk to the deceased 2-3 times daily for about 30-60 minutes, but her husband used to have no conversation with deceased except occasionally about asking her well being and that too in her presence. It is further deposed that she did not disclose to her parents about the conversation took place with the deceased on 10/7/2010 and 12/7/2010, and had no telephonic conversation with her parents. She received the information of the death of the deceased at about 5:00-5:30 pm on 12/7/2010 from her parents through telephone but she visited her parents on next day i.e. 13/7/2010, however, she did not disclose regarding the conversation dated 10/12-7-2010 took place with deceased as everybody was weeping. It is further deposed that she was informed by his brother on 12/7/2010, in evening that accused killed Farheen, but she never informed him about the talks took place with the deceased to any of her family members. It is further deposed that she talked with deceased in the presence of her husband on 12/7/2010 but did not remember by which mobile number she talked to deceased as both phone were available at her house.
8.4.3. PW4 has further deposed that she might have talked to her maternal uncle / mama Yameen or brother Shakil between 3:30-3:50 pm on 12/7/2010 but did not remember exactly. She was not aware about the adjoining areas of Mustafabad and did not leave her house on 12/7/2010 after speaking to Farheen. It is further deposed that FIR No. 222/10 State Vs. Shahnawaz. Page No. 23/131 her husband left home at about 1.30 - 2.00 pm but she did not talk to her husband at 1:30 pm nor received any such call throughout day. PW4 has denied that on 12/7/2010 she had visited the house of accused after the death of the deceased or that she has been deliberately concealing this fact to create a false evidence or that she did not talk to the deceased soon before her death or that she was ever made any complaint by deceased regarding harassment by the accused to her for bringing a car instead of motorcycle. It is also denied that the mobile number 9289457530 belongs to one Rakesh of Dayalpur or that mobile phone remained in operation for about 1½- 2 months after July, 2011. It is denied that she moved through Dayal Pur, Brijpuri, Shastri Park and Nand Nagri on the day of incident. It is further denied that accused was not present at his home at the time of incident or that he had gone to collect the rent from his tenants at the house of his maternal grandmother or that he has not committed any offence.
8.5. PW5 SI Anil Kumar from Licensing Branch of Delhi police has proved the file of Arm License of .315 bore riffle No 95-AB 3740 in the name of Meharban Ali C/o U-200, Arvind Nagar, Ghonda, issued on 22/8/1995 and was valid till 15/4/2013 for throughout Delhi State. The said license has been cancelled vide order of the Addl. CP Licencing No. 50163-66/Addl.CP/Lic./Arms/SCN(NED) dated 20.10.2011 after seeking a reply of show cause notice from the license holder. The copy of license, cancellation order and reply to FIR No. 222/10 State Vs. Shahnawaz. Page No. 24/131 show cause notice filed by Meharban are Ex.PW5/A to Ex.PW5/C. 8.6. PW6 SI E.S Yadav has proved the SOC Report Ex.PW6/A, but no finger prints could be lifted from the spot by ASI Chet Ram who was also part of crime team as finger prints expert. During cross examination, he has admitted that he reached there at about 1:00 pm and left the spot at about 2:00 pm. He was not aware about the presence of the parents of the deceased or accused at the spot. It is denied that some chance prints were lifted from the spot but those could not match due to the same have been withheld at the instance of IO.
8.7. PW7 Ct. Neeraj took the photographs of the spot of incident which are Ex.PW7/A (1 to 27 colly) of which negatives are Ex.PW7/B (1 to 27Colly). During cross examination he has admitted that he did not specifically photographed the bullet lying in the room but only one photograph was taken. He was not aware as to whether ASI Chet Ram lifted the chance prints from the spot as all the members of the crime team were doing their own job.
8.8. PW8 Israr Babu, Nodal Officer has produced the record of mobile number 9899571796 in the name of Ali Jaan R/o 199A/2, Ramesh Market, Garhi, Delhi. The certificate u/s 65B is Ex.Pw8/A and CDR of the number for the period from 01/07/2010 to 05/10/2010 is Ex.PW8/B. Application of issuance of above connection along with FIR No. 222/10 State Vs. Shahnawaz. Page No. 25/131 ID is Ex.PW8/C. The Cell ID Chart of mobile number 9711126659 belonging to Shahnawaz is Ex.PW8/D. He has also produced the telephone record in respect of mobile number 9711126659 in the name of Shehnawaj for the period between 01.07.2010 to 05.10.2010 of which computerized copy is Ex.PW8/E. The said mobile number was activated on 25.5.2010 and remained in operation till 14.5.2011. He was not aware about the current status of the said mobile phone bearing No. 9711126659. The photocopy of the application form along with the copy of the ID of the applicant / accused is Ex.PW8/F. The certificate in compliance of the provisions of section 65 B (2)(a) to (d) of the Evidence Act is Ex.PW8/G. During cross examination, it is admitted that he cannot say as to who had been actually using the mobile number issued in the name of Ali Jaan or Shehnawaz.
8.9. PW9 SI Mukesh Kumar, Draftsman visited the spot of incident on 22/8/2010 at the instance of IO and prepared a scaled site plan in his office on 24/8/2010 which is Ex. PW9/A. He did not notice blood spots at the spot of incident during his visit to the spot of incident.
8.10. PW10 Sh. A.K. Sharma, was posted as the than SDM on 12.7.2010. He received the information of incident at about 4:30 pm from SHO PS New Usman Pur that a lady namely Farheen, aged about 18 years, had been murdered and she was married only three months back. SHO also informed him that the dead body had been FIR No. 222/10 State Vs. Shahnawaz. Page No. 26/131 removed to GTB Hospital and her parents had been called. He called the parents of the deceased to his office at Seelampur at about 6.00 p.m. through police and recorded their statements which are Ex.PW1/A and Ex.PW2/A. At the time of recording of the statements of witnesses, no other person was present in his office except him and the witness concerned. He made his endorsement on the statement Ex.PW1/A thereby directing to SHO concerned to take action as per law.
8.10.1. PW10 has further deposed that on the next day i.e. 13.07.2010, he made a request for conducting postmortem on the dead body of the deceased and the request application is Ex.PW10/A. He carried out the inquest proceedings vide Ex.PW10/B and also recorded the statements of Mohd. Tehseen and Shakeel Ahmed regarding the identification of dead body which are Ex.PW10/C and Ex.PW1/B. During cross examination, he has admitted that he did not visit the spot of incident and parents of the deceased remained with him between 6.00 p.m. to 7.00 p.m. and their statements were recorded by him in his own handwriting. He recorded the whole facts as stated before him by the witnesses without addition or deletion of anything.
8.11. PW11 HC Narain Singh was posted a DO on 12/7/2010 and got registered an FIR on the basis of rukka sent by ASI Satyapal Singh through Ct. Naseem and FIR Ex.PW11/A was registered on FIR No. 222/10 State Vs. Shahnawaz. Page No. 27/131 the basis of rukka vide endorsement Ex.PW11/B. 8.12. PW12 HC Desh Pal was posted a DD writer with PS New Usman Pur and recorded a DD No. 9A at about 12.25 p.m. which is Ex.PW12/A. 8.13. PW13 Const. Naseem was posted as area beat Officer and was on patrolling duty and, on 12/7/2010 at about 12.30 p.m., he received an information that an incident of firing had taken place near Khaddey Wali Masjid and one lady had sustained bullet injuries and he reached the spot of incident. ASI Satya Pal and Const. Devender also reached there. All of them entered into the house of incident and saw that a dead body of a lady was lying on a cot (charpai) in gallery and it was revealed that dead body was of Farheen and her husband had shot her. It is further deposed that there was a bullet injury mark on the forehead of the deceased and her skull had scattered from top-wards. He alongwith police team also entered into the room situated in the left side of the gallery and saw that a bed placed in the left side of the room had a bullet mark towards the head portion (sirhana) of the bed and small pieces of flesh had spread all over the bed. He noticed that one riffle was lying on the floor near the bed and one magazine was kept on a slab which was built in the room. It is further deposed that on checking the magazine it was found containing three live cartridges. He also noticed that the blood had spread in the room on various places and one cartridge case was FIR No. 222/10 State Vs. Shahnawaz. Page No. 28/131 lying near the bed and a bullet pellet was lying near the sofa put near to bed.
8.13.1. PW13 has further deposed that ASI Satyapal called the crime team and the photographer of the crime team took the photographs of the spot. IO also prepared the sketch of magazine, live cartridges and bullet pellet which is Ex.PW13/A. IO seized all the recovered articles vide seizure memo Ex.PW13/B and sealed them. Riffle found at the spot was seized vide seizure memo Ex.PW13/C, a bed sheet having bloodstains and skull bones were also seized vide seizure memo Ex.PW13/D, blood, flesh and bone pieces lying at the spot were seized vide seizure memo Ex.PW13/E and the portion of the bed sheet having the mark of bullet was seized after cutting it down and a NOKIA Mobile phone found lying in the room was also taken into possession vide seizure memo Ex.PW13/F. IO also called the area SDM. The parents of the deceased also reached at the spot and they were called by the SDM to his office for recording of their statements. After recording the statements of parent of deceased, IO prepared a rukka and handed over to him for registration of FIR and he got registered the present FIR. He handed over the copy of FIR and original ruqqa to Inspector R.K. Khatana, the then SHO, PS New Usmanpur, who had also arrived at the spot and was assigned the investigation.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 29/1318.13.2. PW13 has further deposed that SI Girish had also reached the spot and he received a secret information that the accused was seen roaming around 3rd Pushta, Usmanpur. Police team reached there and on the pointing out of the secret informer, accused was apprehended. Accused was interrogated in his presence and disclosed that he had killed his wife by gun fire. Accused was arrested vide arrest memo and his personal search was also conducted vide memo Ex.PW13/G and Ex.PW13/H. The disclosure statement of accused was also recorded vide Ex.PW13/J. He has identified the riffle seized from the spot as Ex.P1, magazine of the riffle containing three cartridges of 8 m.m. / .315" bore, out of which, one was live and two are cartridges cases, as Ex.P2, and the cartridges case and live bullet are collectively Ex.P3. One bullet pellet was also recovered from the spot which is Ex.P4 besides one mobile phone make NOKIA Xpress Music which was also recovered from the spot which is Ex.P5. The bed sheet having blackish brown stains is Ex.P6. One plastic container having dirty cloth piece seized from the spot is Ex.P7. He has also identified one fired cartridge recovered from the barrel of the riffle as Ex.P11, bone pieces as Ex.P12 and hairs of deceased seized from the spot as Ex.P13. One brownish substance was also seized from the spot which is Ex.P14.
8.13.3. During cross examination, he has deposed that he reached at House No. U-200 at about 12.30 p.m. and was in his beat area, near to the place of occurrence, when he received the verbal FIR No. 222/10 State Vs. Shahnawaz. Page No. 30/131 information from some passersby that an incident of firing had taken place. He was the first policeman who reached the spot first, but remained standing outside the house till reaching of ASI Satyapal and Const. Devender and all of them entered into the house together. Both, ASI Satya Pal and Const. Devender reached there soon after his reaching at the spot and a lot of public persons were present inside the house when they entered, however, he did not remember as to whether the main door was opened or closed, but it was partly opened and partly closed. It is further deposed that there were approximately five rooms in the house and had two entry points to access to the house from two different sides in different streets. IO prepared a site plan in his presence which is Ex.PW13/DA.
8.13.4. PW13 has further deposed that he did not see anybody known to him inside the house when he entered, but IO made enquiries from those persons present inside the house, but IO did not record the statement of anybody inside the house on that day, but none from the family of the accused was present inside the house when they reached there. Nobody from the complainant side was also present there and they came later on. It is admitted that I knew the occupants of the house being beat constable of the area that is why he could say that none of the family member of accused was present in the house when he entered nor they came inside the house till 5.00 p.m. He neither met Meharbaan nor had any conversation with him on that day, but again said that he did not FIR No. 222/10 State Vs. Shahnawaz. Page No. 31/131 remember whether he met Meharddin or had any conversation with him on that day.
8.13.5. PW13 was not aware during cross examination that any site plan was prepared by the IO at the spot and even he did not inquire from Dudh Wala, Chudi Wala and Halwai, whose shops were there, or any other person about the incident when he reached the spot. It is further deposed that any person from the crowd was not known to him but it is denied that he was informed during enquiry that there was a sound of gunshot inside the house and two persons were seen running out of the house from the gate opening towards the closed street. He was also not aware as to whether accused Shahnawaj had come to the spot at about 12.50 - 1.00 PM or was making inquiries as to how the incident had taken place. He was also not aware as to whether Phool Bano, a relative of the deceased, had also come to the spot.
8.13.6. PW13 has further deposed that a lot of blood was lying on the spot when he reached there but he did not pay attention if there were blood stains on the clothes of the accused when the accused was apprehended. It is further deposed that his statement was recorded only once on 12.07.2010 but he did not remember if he had stated to the IO when he reached the spot he came to know that Farheen had been shot by her husband. He was confronted with his statement Ex. PW13/DA, where it is not so recorded in verbatim, FIR No. 222/10 State Vs. Shahnawaz. Page No. 32/131 however, it is mentioned that at the secret informer informed him that the murderer of Farheen, her husband Shahnawaz @ Sonu S/o Meharban, had been found roaming at 3rd Pushta, near Usmania Masjid. (This fact is mentioned at the stage when this witness had come to the spot after registration of the case and handed over the documents to IO). It is admitted that there are two doors in the house and it was possible that anyone could have run away of the house after committing the offence in the room of the incident by either of two gates. The exit towards at point Y on Ex.PW13/DA opens towards a gali opposite to which houses are built. It is further admitted that this gali is not a thoroughfare and has very little movement and it is also closed at one end. He was also not aware who had lifted the body of the deceased to remove to the hospital but he was not involved in the lifting of the dead body. He did not remember as to where the rukka was prepared or by whom it was prepared or as to what was the time when he reached the PS with the rukka or that the time when he left the PS. He could not tell the time when he reached the spot with FIR from PS, but it was dark.
8.13.7. PW13 has further deposed that at about 9:25 pm, he along with the police team comprising of SHO, SI Grish, driver and operator left the spot in search of the accused by police Gypsy, but at the time of leaving the spot, SHO had not informed the team members about the spot of their visit but the secret informer met the SHO who informed about the presence of accused at 3rd pushta. SHO had FIR No. 222/10 State Vs. Shahnawaz. Page No. 33/131 conversation with the secret informer but he did not hear that information, but secret informer sat in rear seat of the gypsy and SI Girish also sat beside him. He did not know whether any identity proof or photograph of the accused was taken from his house before leaving for the arrest of the accused, but they reached at 3 rd pusta at about 9:45pm and left Gypsy there and proceeded on foot towards Usmania Masjid. All the police personnel were in police uniform and reached at Usmania Masjid within 5-7 minutes and accused was found standing in front of the gate of said masjid on service road and was pointed out from a distance of 10-15 paces and started walking away at a brisk pace to see them but only could go away about 5-7 step away to the spot and was apprehended by him as well as SI Girish, but he could not recall whether secret informer was with him at that time or not. Accused was not taken to the spot of incident after his arrest, but information of his arrest was given to his cousin who came to the spot. It is denied that the brother of the deceased was called to PS or his signatures were obtained on arrest memo forcibly. It is further deposed that he saw the cartridge Ex.P11 when it was taken out from the riffle by the IO but he did not remember the time when he saw it. Empty cartridge was found inside the riffle and IO found it, but he did not remember whether crime team had inspected the gun or not. Crime team was present at the time of seizure of empty cartridge. Cartridge was found near to bed and its sketch was also prepared but it is not on record. Ct Devender was also present there at the time of seizure of the articles. SI Satya Pal FIR No. 222/10 State Vs. Shahnawaz. Page No. 34/131 deposited the seizures with MHC(M), but again said, that Ct. Devender deposited the same with MHC(M). In his presence SI Satya Pal and Ct Devender took the case property from the scene of crime before it was dark, but it is denied that accused was apprehended from his house but has been shown arrested later on or that an empty cartridge has been planted in the barrel of the gun just to implicate the accused.
8.14. PW14 Dr. Juthika Debbarma conducted the postmortem on the dead body of deceased and prepared the report Ex. PW14/A and opined the cause of death as shock as a result of ante-mortem injury to head produced by projectile of firearm which was sufficient to cause death in ordinary course of nature. Time since death was about 24 hours at the time of conduction of postmortem. He sealed parcels containing clothes of the deceased, blood on gauze of the deceased, bottle containing four small grey color metal pieces recovered from the deceased and sample seal of JD. It is denied that the postmortem report is false and manipulated.
8.15. PW15 SI Satya Pal has deposed that on 12.07.2010, at about 12.25 PM, he received a copy of DD No. 9A which is Ex. PW-12/A as per which, one lady was shot at the house of Meharban located near Khadde Wali Masjid, Gautam Vihar, Delhi. In pursuance of this information, he along with Ct. Devender reached at the spot of incident where Ct. Naseem met him. Thereafter, they went inside and FIR No. 222/10 State Vs. Shahnawaz. Page No. 35/131 saw a dead body of a female was lying on a cot in the gallery with a gunshot injury on her head. The back portion of the skull was scattered. He has also corroborated the PW13 about the scene of crime and recovery of articles like riffle, cartridges, and other articles seized from spot. He summoned crime team which reached around 01.00 PM. Two ladies were found present in that house but no male member was there. He made inquiry from the ladies present in the house and came to know that deceased was Farheen whose marriage was solemnized with Shahnawaz @ Sonu about 03 months prior to the incident. On spot inquiry, it was revealed that Shahnawaz had shot Farheen.
8.15.1. PW15 has further deposed that he got removed the the dead body of Farheen to mortuary of GTB Hospital through Const. Devender alongwith copy of an application Ex.PW15/A. Thereafter, he lifted the magazine and live cartridges of riffle lying therein and also lifted the pallet lying at the spot. He prepared the sketch and measured three live cartridges, magazine and pallet which is already Ex.PW13/A. He seized the same vide seizure memo already Ex.PW13/B. Thereafter, he lifted riffle of .315 bore, took measurement and prepared its sketch. One spent cartridge was also found inside the chamber of the riffle and he removed the same from its chamber and prepared its sketch and thereafter inserted it again in the chamber of riffle in the same position, and seized and sealed the riffle vide seizure memo already Ex.PW13/C (the sketch of riffle FIR No. 222/10 State Vs. Shahnawaz. Page No. 36/131 and spent cartridge is not on record, neither it is find mentioned in the list of documents). He also lifted samples of flesh, skull bone pieces with hair and blood sample of deceased from the spot and kept the same in separate plastic containers and converted them into separate cloth parcels and seized vide seizure memo already Ex.PW13/E. He also lifted bloodstained bed sheet lying on the bed on which some pieces of skull bone were also lying and converted the bed sheet into a cloth parcel and seized the same vide seizure memo already Ex.PW13/D. He also lifted mobile phone make NOKIA of red and black color and cloth piece on which the bullet had pierced and converted into a cloth parcel by keeping them in separate plastic containers and seized the same vide seizure memo already Ex.PW13/F. He also filled the FSL form at the spot and also informed the area SDM telephonically to reach the spot. He alongwith parents of deceased namely Aneesha and Shakeel went to the office of Ld. SDM and Ld. SDM recorded the statements of Shakeel and Aneesha which are Ex.PW1/A and Ex.PW2/A and made his endorsement on the statement of Shakeel Ahmed which is Ex.PW15/B and handed over the rukka to PW13 Const. Naseem with the direction to get the case registered. He proceeded to GTB hospital where Const. Devender Kumar gave him the jewellery articles which were found on the dead body, consisting of a pair of pajeb, a pair of ear ring, one chain, one nose pin and 36 bangles handed over to him by the concerned doctor and he converted jewellery items and bangles vide seizure memo Ex.PW15/C. FIR No. 222/10 State Vs. Shahnawaz. Page No. 37/131 8.15.2. PW15 has further deposed that he reached the spot again around 9.00 p.m. / 10.00 p.m. and IO/SHO Inspector R.K. Khatana prepared the site plan of the spot at his instance. He deposited all the seized articles seized by him with MHC (M). It is further deposed that on 13.7.2010, he again visited the mortuary of GTB Hospital where Ld. SDM, Sh. A.K. Sharma met him and postmortem on the dead body of Farheen was conducted. Inquest proceedings were conducted by the SDM and dead body was released in favour of the relatives of the deceased vide receipt already Ex.PW16/A. He has also identified exhibits Ex. P1 to Ex. P14 which were seized from the spot.
8.15.3. During cross examination, PW15 has deposed that he reached the spot at about 12.40 p.m. by his motorcycle and his departure entry was made in the call itself. Const. Naseem met him outside the house No.U-200 and they entered into the house from main gate and noticed the presence of 2-3 ladies inside the house, but there was no male member in the house. He enquired from the said 2-3 ladies present there but did not note their names and also did not remember whether the said ladies were inhabitant of that house or outsider.
8.15.4. PW15 has further deposed that from the side of deceased, her parent and some other persons had come to the residence of accused at U-200 at around 3.30 / 4.00 p.m. and he heard that they FIR No. 222/10 State Vs. Shahnawaz. Page No. 38/131 were informed by the neighbors of accused, but he did not make enquire from them about the name and telephone number of that neighbor by which information was received by them. Crime team reached at the spot around 1.00 p.m but he had no idea as to who called the crime team or what was informed to crime team. The spot was protected on their arrival at the spot and no one was allowed to temper with the spot till the dead body was lying there, but family members were allowed to enter the house but outsiders were not allowed till dead body was removed. The dead body was removed from the spot around 2.30 p.m. by a private tempo. It is further deposed that the persons present outside the house were saying that Farheen was shot by Shehnawaz, but he did not make enquire from any of them as to how and on what basis they were saying so, nor he enquired their names and addresses but those were local residents and he inferred it by their apparels and appearance. The crime team lifted the chance prints from the spot of its own, but crime team instructed him to lift the blood samples which he did under the instruction. No blood was found on the weapon of offence, but he was not aware as to whether chance prints were lifted from the riffle. Accused Shahnawaj was not known to him prior to the incident so he did not know as to whether Shahnawaj was present outside in the crowd or not.
8.15.5. During re-examination, PW15 has failed to disclose the material seized vide seizure memo Ex.PW13/E or that as to who FIR No. 222/10 State Vs. Shahnawaz. Page No. 39/131 prepared it under his directions and instructions. He was also not aware as to who purchased the containers in which articles were seized, but all the exhibits were personally lifted by him and Ct. Naseem assisted him in sealing them. He prepared the sketch of riffle before its seizure when the crime team left the spot as all the seizures were made after the departure of the crime team from the spot. The crime team did not check the riffle, but he handed over the sketch of the riffle and empty cartridge to IO on the same day in evening. It is admitted that he identified the empty cartridge by having written KF on it, but it is also admitted that all the cartridges are having the same KF writing. He again deposed that he handed over all the exhibits to IO on the same day at the spot of incident but it is denied that he did not find any empty cartridge in the chamber of the riffle or that it is planted one just to implicate the accused.
8.16. PW16 Sh. Mohd. Tahseen has deposed that deceased Farheen was his niece i.e. daughter of his sister and got married with accused Shahnawaj. On 12.07.2010 at around noon time, he came to know that Farheen was murdered by bullet fire. He visited the spot of incident and on 13/7/2010, he identified the dead body of Farheen before the Police and his statement Ex. PW10/A was recorded. They received the dead body of Farheen after postmortem vide receipt Ex. PW-16/A and performed her last rites.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 40/1318.16.1. During cross examination, he has deposed that he did not recollect the exact time of his arrival at the spot but it was noon time and one of his relatives telephonically informed him regarding the incident but he did not recollect who he was that person. He remained outside the house during his stay at the spot and during this period his sister, Jija, Ali Jaan (father of his Jija) and Sajid (brother of his Jija) were present, but he did not notice if Phool Bano (sister of his Jija) was also present at the spot or not. Police made inquiries regarding identification of the dead body, but he did not state to the Police that "on 12.07.2010 at around noon time, he came to know that Farheen was murdered due to bullet fire or that he immediately proceeded for the matrimonial home of Farheen located at Gautam Vihar, Khadde Wali Masjid, Delhi and several persons were present there and police officials were in process of removing the dead body of Farheen".
8.16.2. PW has admitted that Mr. Yameen is his father who has been retired as Head Constable from Delhi Police in the year 2011 and was also posted with PS New Usmanpur at some point of time during his service, but it was a long time ago. Anis, Irfan and Jamshed are his cousin brothers and they are also working with Delhi Police as Constables. Mr. Ramzan is his uncle and has retired from Delhi Police, but he did not remember if Yameen, Anis, Irfan, Jamshed and Ramzan had also reached the spot after hearing the news of death of Farheen. He saw Meharddin, mother of accused Shahnawaj, FIR No. 222/10 State Vs. Shahnawaz. Page No. 41/131 grandmother of accused Shahnawaj at the spot, but cannot say if any other relative of Shahnawaj was there or not as he did not know many relatives of the accused Shahnawaj. As such, he could not say if she was present at the spot or not, but he did not notice accused Shahnawaj at the spot due to cannot say if he was also there or not.
8.17. PW17 SI Chet Ram was Finger Print expert of crime team and visited the spot of incident between 1.00 pm to 2.00 pm along with crime team In-charge SI E.S. Yadav and Ct. Neeraj Kumar (photographer) and noticed a gun lying in the room and one magazine was lying on the shelf. He examined the gun and magazine with a view to obtain chance prints but no chance print could be developed from magazine and gun.
8.17.1. During cross examination, he has admitted that he used powder method to lift chance print but did not try to lift the chance prints from any other object lying in the room as no such object was perceived by him for this purpose. He did not notice any blood spot on the gun and magazine but he moved the gun and tried to lift chance prints from both the sides and applied powder on the handle and magazine area of the gun. He did not remember if he made an effort to lift chance prints from barrel area or that it was a single or double barrel gun. The finger prints of the accused are generally submitted to the office of Director, Finger Print Bureau, Kamla Market and if he would have lifted any chance prints in the present case, FIR No. 222/10 State Vs. Shahnawaz. Page No. 42/131 those would have been sent to Director, Finger Print Bureau, but it is denied that he lifted the chance prints from the gun and the barrel or that he concealed the same at the instance of IO or that the chance prints lifted did not match with the accused and for this reason alone those finger prints report have been concealed.
8.18. PW18 Ct. Anil deposited nine sealed parcels with FSL on 07/10/2010 vide RC No. 115/21 and three parcels further vide RC No-116/21after receiving form MHC(M).
8.19. PW19 H.C. Pratap Singh was malkhana moharar of government property on 16/7/2010. He furnished the license details of the riffle in the name of Meharbaan Ali s/o Samey Din as per register No.17 of PS New Usmanpur and also furnished the photocopy of Register No.17 is Ex.PW19/A. The entry in the name of Meharbaan Ali is mentioned at serial No.125. The photocopy of list of DCP Licencing is Ex.PW19/B. (Original register seen and returned).
8.20. PW-20 Const. Sunil was MHC(M) and on 7.10.2010, he handed over nine parcels to Const. Anil Kumar vide RC No.115/21 and further handed over three parcels vide RC No.116/21, along with forwarding letter for depositing the same with FSL Rohini under the directions of IO. The exhibits were deposited with the FSL and receipt was handed over to him by Constable Anil. Case property remained intact so long it remained in his custody. The photocopy of FIR No. 222/10 State Vs. Shahnawaz. Page No. 43/131 R/C No.115/21 is Ex.PW20/A (not objected to by Ld. Defence Counsel so far as endorsement on the photocopy of RC is concerned). The photocopy of RC No.116/21 is Ex.PW20/B, receipts of deposit are Ex.PW20/C and Ex.PW20/D. He has denied that the samples were tempered with or that the records have been fabricated.
8.21. PW21 Const. Devender has corroborated that on 12.7.2010, he visited the spot of incident with ASI Satya Pal on receipt of DD No. 9A around 12.25 p.m., where beat constable Naseem also met them. He also noticed a dead body of a female lying on cot in the gallery with bullet injury on her head and skull bone was completely burst and scattered. He has also corroborated the testimonies of PW13 and PW15 regarding riffle and cartridges lying in the room. On the direction of ASI Satya Pal, he removed the dead body of Farheen to mortuary GTB Hospital. Dead body was preserved in the mortuary GTB Hospital under his supervision. On 13.7,2010, ASI Satya Pal and Ld. SDM Sh. A.K. Sharma came to the mortuary and postmortem was conducted on the dead body of Farheen and dead body was handed over to relatives. The dead body remained intact so long it remained in his custody. It is further deposed that there were some ladies and gents who were present at the spot and saying that Shahnawaz had shot his wife. On 2.8.2010, under the direction of IO, he visited GTB Hospital where from three sealed parcels were handed over to him by the doctor which were sealed with the seal of FIR No. 222/10 State Vs. Shahnawaz. Page No. 44/131 JD. He handed over the same to IO who seized them vide seizure memo Ex.PW21/A. 8.21.1. During cross examination, he has deposed that at the time of receiving the DD no. 9A, he was in the PS and reached the spot at 12:40 pm. Ct. Naseem reached simultaneously to them. There were only two women in house when they reached there, though a crowd had gathered outside house. During the period of investigation being carried out on spot, no one from the public was allowed to enter the house. He remained at the spot till about 2.30 PM and thereafter accompanied the dead body to the hospital. Crime team arrived at around 1.00 PM and was called by ASI Satya Pal. During the entire period of his presence, he remained inside the house but no interrogation / inquiry was conducted from any person in his presence. The crime team photographed the weapon of offence but he did not remember the other investigation regarding the weapon. He also did not remember as to whether ASI Satya Pal picked up and inspected the weapon or not. They found the dead body on a cot in the gallery. It is further deposed that the dead body was removed to the hospital by a TSR and he was alone in that TSR. At the spot, there were some ladies and gentlemen who were saying that Shahanwaj had shot his wife and those were standing outside the house but he did not inquire from any of those persons as to why they had been making such allegations and also did not enquire their names and addresses.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 45/1318.22. PW22 SI Girish joined the investigation and a secret informer informed the SHO in his presence that he had seen the accused Shehnawaz at 3rd Pushta near Usmania Masjid. In pursuant to that 3rd information, they reached at Pushta, Usmania Masjid and on the pointing out of the informant, one person was apprehended who disclosed his name Shahnawaz. On his confession to the crime, he was arrested vide arrest memo already Ex.PW13/G and his personal search was also conducted vide personal search memo already Ex.PW13/H. Accused Shahnawaz has been correctly identified.
8.22.1. During cross examination, he has deposed that he received the instructions to join the investigation at around 09.15 p.m. when he was present in the police station. The informer arrived after 15 minutes after his arrival to the scene of crime and they departed by a government Gypsy from the scene of crime to the place of the presence of accused. The secret informer was also with them in the same vehicle. At around 09.45 p.m. they reached at 3 rd Pushta, near Usmania Masjid and parked their vehicle a little prior to the place from where the accused was arrested and preceded on foot towards the spot of arrest of accused. Accused was standing alone near the wall of the Masjid on the front side when they approached him and he started running to see them. There were not so many people in the mosque but people were frequenting to that area but it was a very scant traffic of people. The accused was standing at a place which was sufficiently lit and was wearing a FIR No. 222/10 State Vs. Shahnawaz. Page No. 46/131 pajama kurta.
8.22.2. The arrest memo and personal search memo of the accused were prepared at the spot and only three documents were prepared in his presence, but he did not recall who scribed these documents. IO requested 3-4 passersby to join the investigation but they refused. The area wherefrom the accused was arrested is inhabited but they did not go inside the mosque and also did not remember as to whether passersby gathered at that time when they were conducting the proceedings. The gypsy driver was not asked to join the investigation and he stayed with the gypsy. He did not conduct the personal search of the accused and was also not aware who had conducted it. He did not remember whether he made any DD entry of his departure and arrival to the police station, but it is denied that he did not join investigation or that the accused was not arrested in his presence from the place and at the time as alleged, or that he signed the documents while sitting in PS on asking of IO with a view to strengthen the false case against the accused. He has also corroborated about the arrival of cousin of accused to the spot on arrest.
8.23. PW23 ACP Sh. R.K. Khatana was posted as SHO and received the information on wireless set at around 12.25 p.m. that a woman had been murdered. He visited the spot before arrival of the crime team and took over the investigation after registration of FIR.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 47/131He inspected the scene of crime at the instance of ASI Satpal and prepared the site plan Ex.PW13/DA and summoned SI Girish to the scene of crime. He alongwith SI Girish and Ct. Naseem, conducted investigation in the locality and one secret informer informed him that the person who had murdered the deceased Farheen and was her husband could be apprehended from near Usmania Masjid, 3 rd Pushta and they immediately reached at 3rd Pushta. He tried to associate two or three public persons to join the investigation, but none agreed. Accused was found standing near the wall of Usmannia Masjid and on seeing them, he started running but was overpowered and apprehended. Accused was interrogated at the same place and confessed his crime. He was arrested vide arrest memo Ex.PW13/G and personal search was conducted vide memo Ex.PW13/H. He made disclosure statement Ex.PW13/J and the cousin of the accused was informed about his arrest and his signatures were also obtained on the arrest memo.
8.23.1. PW23 has further deposed that on 13/07/2010, he reached the mortuary of GTB Hospital and the SDM prepared the inquest papers. He recorded the statements of Tehseen and Shakeel u/s 161 Cr.P.C, who identified the dead body and collected the SOC report from the office of crime team office and also recorded the statement of crime team members. He collected the copy of license of weapon of offence which is already Ex.PW5/B through HC Pratap and got verified the license which was in the name of Meharban i.e. father of FIR No. 222/10 State Vs. Shahnawaz. Page No. 48/131 accused. On 02/08/2010, he seized three sealed parcels produced by Ct. Devender collected from the hospital and deposited the same with malkhana. He also collected the post mortem report and placed the same on record. On 22/08/2010, he visited the spot along with SI Mukesh took the rough notes and measurements of the spot at his instance.
8.23.2. PW23 has further deposed that on 05/09/2010, Shakeel, Sajid and Phool Bano came to Police Station and he recorded their statements. Shakeel Ahmed produced the marriage card which is Ex.PW1/D of the marriage of the accused with the deceased and also the photograph of the marriage already Ex.PW1/E which were taken into possession vide seizure memo already Ex.PW1/F. Shakeel Ahmed also produced copy of list of stridhan which is already Ex.PW1/6 and also copies the receipts of purchasing the motorcycle Ex.PW1/J and PW1/K along with copy of RC Ex.PW1/H which were taken into possession vide seizure memo Ex.PW1/C. On 07/10/2010, exhibits were sent to FSL Rohini through Ct. Anil. He also collected the call details of mobile phones of the deceased and her husband i.e. the accused. Request letter in this regard is Ex.PW23/A. Call details are already Ex.PW8/B. After completion of investigation, challan was prepared and submitted in the court. He has also proved the FSL reports as Ex.PW23/B, Ex.PW23/C and Ex.PW23/D. 8.23.3. During cross examination, PW23 has deposed firstly he FIR No. 222/10 State Vs. Shahnawaz. Page No. 49/131 reached the scene of crime at 12.40 p.m. by his official vehicle accompanied with driver and operator and ASI Satpal, Ct. Naseem, Ct. Devender, and many other police officials were present there, but left the scene of crime at around 1:00 p.m. He has corroborated that a crowd had gathered outside house but scene of crime was cordoned off to preserve the scene of crime. He made enquiry from the crowd members and they informed that accused murdered his wife. It is retreated the information which he had received on the wireless-set was that a woman had been shot (goli maar di) and not 'goli lagi hai'. It is admitted that there could be a difference between the language of the DD entry and transmission of information on the wireless by the operator but DD is to be recorded word to word on the basis of information from PCR, but the wireless operator of the P.S. need not to necessarily repeat the entry word by word and may state the gist of information. It is denied that he had received the information 'ek aurat ko goli lagi hai' or that he deliberately stated that the information was 'Ek Aurat Ko Goli Maar Di Hai'. It is further deposed that during the period from 12.40 p.m to 1:00 p.m., he did not meet anybody from the family of the accused or the accused,but it is admitted that on that day, he did not personally know or identify any of the family members of the accused, but made inquiries from the public and came to know that Meharban, father of accused, was out of Delhi and the accused was also not present at his house and so were his other family members.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 50/1318.23.4. PW has further deposed that the scene of crime was under the supervisions of SI Satya Pal and one or two police officials whose names he did not remember. He stayed at the scene of crime till around 9.45 p.m. but could not recall as to whether any family member of the accused was inside the house or not. It is further deposed that when he left the scene of crime at 9.40 p.m., there was nobody in the house who had specific information about the whereabouts of the accused due to he left the spot to find out the accused, but he did not try to find out the mobile numbers of the accused or his family members. They left by police Gypsy towards 3 rd Pushta where on the way, secret informer met them and informed the whereabouts of Shahnawaz to him. Ct. Naseem, SI Girish, operator and driver were traveling besides him by the same gypsy. He has also corroborated the mode and manner of arrest of accused from the spot near to Usmania Masjid and also preparation of documents of arrest by SI Girish.
8.23.5. PW23 has further deposed that he was informed by Shakeel that Phool Bano was the last person who talked to deceased, but prior to 5/9/2010, this fact was not recorded by him in his case diary nor her statement u/s 161 Cr. P.C was recorded. Prior to calling of Phool Bano, Shakeel had informed him about this fact and even he independently verified this fact from the CDR Ex.PW8/B of the personal number of Phool Bano and also the mobile number of her husband, but he did not remember whether he verified the FIR No. 222/10 State Vs. Shahnawaz. Page No. 51/131 ownership of the phone numbers. He could not admit or deny that the phone number 9289457530 belonged to one Rakesh and phone number 9212671881 belonged to one Tasvi but he did not verify the registered ownership of these numbers and, even husband of Phool Bano was also not interrogated. However, it is denied that the Phool Bano is procured witness or she was not using the above-said numbers to talk to the deceased.
8.23.6. He did not make any enquiry from Shakeel by whom and where he prepared the list of dowry Ex.PW1/G, but it is admitted that the documents Ex.PW1/J to Ex.PW1/H are in the names of accused as well as his father but it was clarified by Shakeel during interrogation that motorcycle was purchased from Kalkaji near to the parental house of family of deceased and was purchased in the name of the accused on the request of family of accused, but he did not make any enquiry from South Delhi Motorcycle regarding the genuineness of these documents nor seized the motorcycle or any document regarding the payment of the motorcycle. He was not aware as to whether dowry list Ex.PW1/G is fabricated and also did not verify its genuineness. He did not remember from whom he made enquiries about the allegations of harassments to the deceased by accused and also did not remember the date, month or year of that enquiry. It is admitted that the location of the accused was on the towers nearby the scene of crime as per Ex.PW8/B and the deceased died between 12.00 to 12:25 pm as she was talking till FIR No. 222/10 State Vs. Shahnawaz. Page No. 52/131 11:55 am and PCR call was received at 12:25 pm, but he did not come across any witness except Phool Bano that deceased had been using the mobile number 9899571796, but he did not remember as to whether he verified the location of the accused between 12.00-12:25 pm. He also did not verify the first informant who made call to PS as call was made on the landline of the PS and that phone number had no caller ID facility. He also did not try to get the mobile number of the informant from the father of the deceased who informed him. He collected the SOC report on the next day at about 3.00 pm as it was not ready on the same day but he did not make any enquiry as to why it was not ready. He made enquiry from the father of the accused on 16/7/2010 when he produced the copy of armed license, but he did not record his statement and also did not verify the whereabouts of the other family members of the accused at the time of incident or to know as to whether they were present at the spot at the time of incident or as to how incident took place or as to whether accused was present there at that time.
8.23.7. PW23 has further deposed that chance prints were not found on the weapon of offence as informed by the finger prints expert, but he did not make enquiry from inmates of house as to how dead body was removed from the room and put in varanda. He enquired from the public persons but they showed their ignorance but he did not record their names and addresses nor was such information recorded in case diary. It is further denied that accused FIR No. 222/10 State Vs. Shahnawaz. Page No. 53/131 was arrested from the house and has been falsely implicated in this case after obtaining his signatures on the documents forcibly. It is admitted that he did not know whether crime team inspected the weapon of offence to find out its working condition, but one used cartridge was found in the chamber of the gun, but it is not mentioned in the SOC report. It is admitted that he did not verify the financial condition of the family of the deceased to verify as to whether they had financial condition to give any dowry which they allegedly gifted in the marriage.
8.24. PW24 Sh. R. Suresh, Asstt. Director Ballistic, Central Forensic Science Laboratory, Kolkata, has deposed that on 07.10.2010, he examined sealed parcel no.1containing one rifle of .315'' bearing no.AB953740 without magazine which was marked as Ex.F1 and one 8 mm/.315'' empty cartridge case was found in the barrel-chamber of the rifle F1, which was taken out and marked as Ex.EC1. Second parcel no.2 containing one magazine was marked as Ex.M1 contained three 8 mm/.315'' cartridges which were marked as A1 to A3 and one metallic piece having weight of 3.517 grams approx. was marked as MP1. Parcel no.3, was containing four small pieces which were marked collectively as Ex.MP2 having total weight of 0.0113 grams (approx.). After examining the above said articles, he gave his opinion that the rifle F1 was designed to fire standard 8 mm/.315'' cartridges. After inserting the magazine M1, test fire was conducted successfully. So, rifle F1 was in working order in its present condition at that time. One cartridge Marked EC1 was an FIR No. 222/10 State Vs. Shahnawaz. Page No. 54/131 empty cartridge case. The magazine M1 could be used as a magazine for rifle like rifle F1. Three 8 mm/.315'' cartridges Marked A1 to A3 were live ones and could be fired through 8 mm / .315'' caliber fire arm. Two 8 mm/.315'' cartridges Marked A1, A2 and two 8 mm/.315'' cartridges from the laboratory stock were test fired through the rifle F1 and the test fired cartridges cases were marked as TC1, TC2, TC3 and TC4 respectively. One recovered test bullet was marked as TB1. The individual characteristics of firing pin marks and breech face marks present on the evidence cartridge case Mark Ex.EC1 and on the test fired cartridge cases marked as TC1 to TC4 were examined and compared under the comparison microscope model Leica DMC and were found identical. Hence, the cartridge case Marked Ex.EC1 has been fired through the rifle .315'' caliber bearing no.AB95 3740 without magazine Marked F1 above.
8.24.1. PW24 has further deposed that no opinion could be given on one metallic piece Marked MP1 and four small pieces collectively Marked Ex.MP2 due to insufficient data. But, the exhibits Marked A1 to A3 and EC1 are ammunition as defined under the Arms Act 1959 and the rifle F1 is fire arm. The detailed examination report is already Ex.PW23/B. He has identified the rifle as Ex.P1. One empty cartridge case found in the barrel of above said rifle is Ex.P11. One magazine of rifle, two empty cartridge cases and one live cartridge and, one metallic piece are as M1 and before test firing, empty cartridge cases as A1, A2 and live cartridge as A3 and metallic piece as MP1 at the FIR No. 222/10 State Vs. Shahnawaz. Page No. 55/131 time of examination. After test fire, A1 and A2 were marked as TC1 and TC2. The magazine is Ex.P2 and empty cartridge cases and live cartridge are collectively as Ex.P3 and the metallic piece is already Ex.P4. Four small metallic particles are marked as MP-2. These particles are now Ex.P-15 (Colly). He could not give any opinion that Ex.MP1 and MP2 had any link to the fire arm Ex.F1 because there was no rifling data on those metallic pieces as in the absence of metal jacket, it was impossible to give any opinion linking the lead or other particles with the weapon submitted for inspection and there is no such method to determine it.
8.24.2. During cross examination, he has deposed that it was not possible to give an opinion as to when the last time a particular firearm was used to fire a bullet. He also could not give any opinion regarding the date or time when the cartridge Ex.P11 found in the chamber of firearm Ex.P1 could have fired.
8.25. PW25 Anita Chhari, Sr. Scientific officer, FSL has proved the reports Ex.PW23/C and Ex.PW23/D prepared by her. She examined the clothes containing Salwar Ex.PW25/P1, Shirt Ex.PW25/P2, Brassier Ex.PW25/P3, one pink and one yellow color chunni Ex.PW25/P4 and Ex.PW25/5. As per the report, blood was detected on all the articles including mobile phone and no foreign material was detected on dirty clothe pieces, salwar, lady shirt, and two chunni and it was human blood but blood grouping was FIR No. 222/10 State Vs. Shahnawaz. Page No. 56/131 inconclusive/ no reaction.
8.26. PW26 HC Jagbir Singh has proved the entries of register no 19 and RC book. Nine sealed parcels were handed over to him on 12/7/2010 by ASI Satya Pal alongwith six seizure memos including personal search of accused vide entry Ex.PW26/1. On 2/8/2010, IO deposited two sealed parcels along with seizure memo vide entry Ex.PW26/2. On 7/10/2010, he handed over nine sealed parcels to Ct. Anil to deposit with FSL vide RC Ex.PW26/3 bears signatures of HC Satish. He made endorsement in the register vide Ex.PW26/4 and copy of AD is Ex.PW26/5. On 23/03/2011, he received one sealed parcel from FSL and received vide endorsement Ex.PW26/6.
9. Accused has also examined four witnesses in his defense to prove his defense as under:.
9.1. DW1 Md. Saleem has deposed that he is the tenant of Meharban and had been residing with his family at U-37, Gali number 2, Arvind Nagar, Ghonda, Delhi, where the grandmother of accused namely Nagini was also residing and, this house is situated about 10-15 minutes distance away from the house of the accused. It is further deposed that on 12/7/10 at about 11:45 am, he was going to take bath when accused Shahnawaz came to his house to collect the rent but he asked him to wait at his Nani's place and will meet him after taking bath. At about 12:30 pm, he went to the portion of FIR No. 222/10 State Vs. Shahnawaz. Page No. 57/131 grandmother of accused and accused was having breakfast. He talked to accused for about 10 minutes about his marriage, but suddenly someone shouted outside that a firing incident had taken place at the house of Menharban. Shahnawaj instantly ran towards his house and he also along with Nani of accused also followed accused and reached at the house of accused within 10-15 minutes. A lot of crowd had gathered in and outside the house of the accused and family members were crying and dead body of the wife of the accused was lying on the cot in the varanda. He also inquired about the incident and was informed that two persons left the house from the inner door opens towards rear street after incident and at that time no male member of the family was present there except ladies of the family. He has reiterated that at about 12:30 pm, accused Shahnawaj was with him at his house.
9.1.1. During cross examination, he has failed to produce any rent agreement or rent receipt that he is tenant under the father of accused in the property no U-37, Arvind Nagar, Delhi. Aaadhar card Ex.DW1/P1 is bearing his address as V-37 instead of U-37, Arvind Nagar, Delhi. He has deposed that accused used to visit him between the dates from 11-15 of every month to collect the rent, but he used to visit accused occasionally. It is denied that he was not at home on 12/7/10 between 11:30 to 12:30 pm. It is further deposed that he heard that Meharban ke ghar goli chal gai and there were many persons who were talking about the incident but he did not FIR No. 222/10 State Vs. Shahnawaz. Page No. 58/131 remember their names. After 1-2 days, he came to know that accused had been arrested in a dowry case, but he did not inform to anyone that accused was with him between 11:30-12:30 pm on the day of incident. He has denied all the suggestions that he has been favoring the accused.
9.2. DW2 Rajiv Ranjan has proved CAF, ID and CDR of phone number 9212671881 in the name of one Tasvi vide Ex.DW2/A and Ex.DW2/C. Mobile connection no 9289457530 is in the name of one Rakesh and CAF, ID and form are Ex.DW2/B and CDR is Ex.DW2/D for the period from 1/7/10 to 15/7/10. Location chart of both mobile is Ex.DW2/E and certificate u/s 65B is Ex.Dw2/F. During cross examination, it is admitted that the data is to be maintained on the basis of registered customer and he cannot tell who is the user of the number.
9.3. DW3 Saurabh has proved the CAF of mobile number 9899571796 in the name of Ali Jan which is Ex.PW8/C and CDR of this number is Ex.DW3/A and location chart is Ex.PW8/D. Certificate u/s 65B of Indian Evidence Act is Ex.PW8/A and CDR between the period from 1/7/10 to 5/7/2010 along with certificate u/s 65 B of Indian Evidence Act is Ex.DW3/B and Ex.DW3/C. The number was activated on 21/4/2010 and ownership details are Ex.DW3/D. It is admitted that Ex.DW3/D was not summoned by this court.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 59/1319.4. DW4 Swalin Khan is also the tenant under the father of the accused for the last 18-19 years and is running a milk shop in the premises of the accused. It is further deposed that no dowry article was given in the marriage of the accused including motorcycle and marriage took place in a simple manner. It is further deposed that the father of accused has a lot of properties and motorcycle was gifted to accused by his father 4-5 days prior to his marriage on account of his marriage. It is further deposed that family of the accused was happy with marriage. On 12/7/2010, he opened his shop at 6:00 am and closed 12:00 midnight and remained at shop throughout the day. It is further deposed that Shahnawaj met him at about 11:30 am and told that he was going to collect rent from Saleem at U-37, Arvind Nagar, Delhi and, at about 12:00 noon, the mother of accused also left the house to bring her children from school along with her other child in her lap. The father of accused was out of station and was not at home. It is further deposed that the wife of Shahanawajh was alone at home and at about 12:15 pm, he heard a sound like pataka and after 1-2 minutes, two persons were seen running from the rear gate of the house of the accused opens in rear street. At about 12:30 pm, people started gathering at house of Meharbaan and police also reached there. It is further deposed that on entering inside, he saw that the wife of the accused was lying on the cot in varanda and was having head injury and was dead. Shahnawaj came there about 12:55/1:00 pm and mother of accused also reached there around that time. Shahnawaj started weeping and crying and was asking FIR No. 222/10 State Vs. Shahnawaz. Page No. 60/131 from everybody as to what had happened to his wife. Nani of accused and Saleem also reached there and remained there for about 30-35 minutes. It is further deposed that accused left the spot at 11:30 pm and returned at 12:55-1:00 pm and remained there till 7:00-7:30 pm, when the police took him from his house to PS. It is further deposed that accused neither demanded any dowry nor harassed the deceased at any point of time.
9.4.1. During cross examination, he has deposed that motorcycle was purchased by Meharban in cash and it is denied that it was purchased in EMI. It is further deposed that he used to go inside the house of Shahnawaj almost daily after marriage of accused. It is admitted that the rear gate of the accused was not visible from his shop but he cannot notice the rear gate while sitting on his shop but family members of the landlord used to use the rear gate as and when required. He was not aware as to whether rear gate of the premises usually remained locked or opened as it could be known only by the family members. It is admitted that 4-5 houses are also having gates in that street in which accused has rear gate of his house. It is further deposed that accused used to collect the rent from the tenants but he did not remember as to when he had gone to collect the rent from them. The school was at the distance of 15 minutes away from the house of the accused and mother of accused reached at the spot at about 12:40/12:45pm. He was not aware how many persons entered into the house of the accused after hearing FIR No. 222/10 State Vs. Shahnawaz. Page No. 61/131 the sound of pataka, but when he entered inside the house, there were about 100 persons including ladies. Rizwan was also present there but he did not know the names of other persons as he became hopeless. Shahnawaz came to his house after about 10 minutes of his reaching to the house and Saleem came there in 5 minutes after reaching accused and mother of accused also reached there. Three police officials reached at the spot after reaching Shehnawaz and Saleem. The dead body was removed at about 2.00 pm. Police made enquiry from him when he was inside the house but he did not make any complaint to the police that two persons were escaping from the rear gate after the sound of pataka in the house of accused. He was not aware about the dowry articles exchanged between the parties in marriage and has deposed before the court as to what was told to him regarding it by the father of accused. Shahnawaj told him that motorcycle was given by his father to him and he was not aware whether it was given in the marriage or not. It is admitted that the family members of the accused did not used to discuss their family problems with him 9.4.2. DW4 has further deposed that accused had told him on the day of incident that he was going to collect the rent from Saleem and he also verified from the Saleem about it when he came to spot of incident there at about 12:50 pm. It is also admitted that during the period when Shahnawaz and his mother had left the house, he was sitting on his shop and front and rear gates of the house were FIR No. 222/10 State Vs. Shahnawaz. Page No. 62/131 opened, but he was not aware as to who entered or exit from the rear gate. He saw two persons coming out of the street, but he could not say from which house they had come and those may be the workers of the factory situated in rear street of the house of accused. It is further admitted that the incident took place at about 12:00 noon and police reached at 12:30 pm. It is further admitted that he has not made any compliant to police nor visited PS to make any such complaint that accused has been falsely implicated in this case. It is admitted that he has visited the court about 20-25 times to meet accused and, father of accused Meharban has told him as to what is to be deposed before this court. It is further admitted that no outsider could have entered into the premises of Meharban except from the front and rear gates of the house.
10. After going through the evidence led by the prosecution, it is revealed that this case is totally based upon the circumstantial evidence and there is no direct evidence against the accused that he committed the murder of his wife. However, there are many circumstances against the accused which are to be determined in view of the defense of the accused. Accused has taken a plea of alibi that he was not present inside the house at the time of incident and even has led evidence of the witnesses to prove this fact. As such all such facts are to be dealt with. It is admitted case of the accused in view of his defence that he left the spot of incident at about 11:30 am in the presence of DW4 to collect rent and deceased was alive at that FIR No. 222/10 State Vs. Shahnawaz. Page No. 63/131 time. As such, scene of crime and time of death of the deceased is much relevant to determine the guilt of the accused to prove the charges u/s 302 IPC.
11. Scene of crime: As per the testimonies of the PW6, PW13, PW15, PW17, PW21 and PW23, the deceased had a bullet injury on forehead by a fire arm and her body was put on a cot in the gallery, whereas the incident took place inside the room. Scene of crime was full of blood and bone pieces of the deceased were scattered all over the room. One bullet pellet was also found inside the room near sofa set. As per the report prepared by PW25, the articles seized from the spot of incident were containing the human blood and that could be of the deceased alone despite the fact that the report regarding the blood group was inconclusive/ incomplete. The report of the PW6 which is Ex.PW6/A has also disclosed that the modus operandi of murder was shot dead by rifle fire (.315 bore) and exhibits collected were comprising one gun .315 bore, magazine plus 3 live cartridges, skull pieces, blood, bed sheet, hairs, cloth piece having bullet hole, fired bullet lead piece. Though the report Ex. PW6/A is bearing DD No-8A which is wrongly mentioned, yet the other facts mentioned in the documents have duly proved that this report is pertaining to this case alone and it may be inadvertent mistake.
12. The photographs Ex.PW7/A (Colly.) taken by the PW7 in the capacity of a photographer of the crime team have duly proved that FIR No. 222/10 State Vs. Shahnawaz. Page No. 64/131 the deceased Farheen was murdered in a very gruesome manner and P.M. report Ex.PW14/A has also proved the manner of killing by projectile weapon which was not possible accidentally in any manner. Even otherwise, it is not the case of the accused also. The head portion of the deceased had blown up by the bullet and the extent of missing portion of the head as observed by the PW14 has also suggested that the extent of the loss of head injury was not possible by accidental firing. The testimony of PW17 has proved that he tried to lift the chance prints from the spot of incident but no chance prints could be lifted which suggests that the scene of crime was either dressed up or finger print expert did not try to lift the chance prints from the spot otherwise at least finger prints of family members were bound to be found at the spot, but it is very strange that no chance print was found and elimination of chance prints may not be ruled out especially when the dead body of the deceased was also shifted from the room after the incident and facts can not be within the knowledge of the police. The removal of the dead body from the room outside to cot and absence of chance prints on the riffle and other articles have duly proved that the scene of crime was dressed up prior to reaching of public otherwise PW15 and PW23 have deposed that the scene of crime was cordoned off after reaching at the spot of incident. As such, scene of crime has proved that the death of the deceased was only murder and there was no sign of any other theory like external aggression or handiwork of any other person except insiders.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 65/13113. Time of death: Time of death of the deceased is also very rele- vant and crucial in this case. This fact has gain more significance when accused has taken a defense that he was not present at the spot of incident at the relevant and had gone to collect the rent from the DW1 and deceased was alive at the time of his departure and he received the information of incident there. To prove the time of death of deceased, the PM report Ex.PW14/A prepared by PW14 Dr. Juthika Debbarma is material. As per PM report, time since death was about 24 hours at the time of conduction of post mortem which started at 10:35 am and concluded at 12:00 Noon. Accused has not denied this timing of death. In fact, the murder took place about 24 hours prior to the time of conducting PM which comes to at about 10:30 am on 12/7/2010. However, it has been held in Baso Prasad v. State of Bihar (2006) 13 SCC 65 that medically time of death may not be given scientifically and precisely and it may be in approximation. Approximation always has some variation may be minus or plus of some hours and is to be determined with the help of ocular evidence.
14. Besides it, time of death may also be determined by the devel- opment of rigor mortis on the corpse. The Hon'ble Supreme Court of India has been held in Baso Prasad and Ors v. State of Bihar (2006) 13 SCC 65 thereby relying upon Thangavelu v. State of T.N. (2002) 6 SCC 498 that rigor mortis may set in after about 2-3 hours after the death it would take 12 hours from leg to head and the FIR No. 222/10 State Vs. Shahnawaz. Page No. 66/131 same would remain in existence for about another 12 hours. There- after, it would gradually diminished in reverse direction and would take 12 hours to diminish and the time of death given by the doctor by this process was accepted.
15. Similarly, it is held in case titled Kunju Muhammed Alias Khu- mani and Another v. State of Kerala (2004)9 SCC 193 that rigor mortis time starts to set within 4-7 hours of death and take time to well developed and the court considered higher time limit to ascertain the time of death on this aspect. However, the Hon'ble Supreme Court of India has held in Mangu Khan and Ors. v. State of Rajasthan (2005) 10 SCC 374 that the time within which rigor mortis develops all over the body depends on various factors such as con- stitution of the deceased, season of the year, temperature in the re- gion and conditions under which the body has been preserved. The Hon'ble court observed in that case that the doctor who conducted the PM on the dead body observed that the time of death was 'within 24 hours prior to PM examination'. Post mortem report indicated the rigor mortis present all over the body. The post mortem carried out at 11:00/12:00 noon and it suggested that the death might have oc- curred within 24 hours, any time after the time of conducting post mortem, one day prior to the day of postmortem and the death was considered anytime between the 24 hours and plea of the accused was discarded that the death must have occurred exact prior to 24 hours in previous night.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 67/13116. As such, it stands clear that medically the time of death may be determined though not precisely as held in Mangu Khan case, but it may be determined by this method. In the present case rigor mortis was in well developed stage and if it started to set in within 4-7 hours and developed in next 12 hours, then the approximation of the time of death of the deceased came to prior to 20-22 hours of conduction of post mortem and nearby to 12:00 Noon on 12/7/2010.
17. From both angles, it stands proved that the time of death of the deceased ascertained by PW14 Dr. Juthika Debberma is correct. As such, time of death might have occurred 20-22 hours prior to the time of conduction of postmortem on the dead body which was started at 10:30 am and, death must have occurred anytime after 10:30 am on 12/7/2010. As such, the deceased was murdered anytime after 10:30 am but prior to 12:25 pm, when the information by received by the police at PS.
18. So far the ocular evidence is concerned, the medical evidence is to be read in consent with the ocular evidence as held in Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 that ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner al- leged and nothing more. The use which the defense can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye wit-
FIR No. 222/10 State Vs. Shahnawaz. Page No. 68/131nesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whosoever of injuries: tak- ing place in the manner alleged by eye witnesses, the testimony of eye witnesses cannot be thrown out on the ground of alleged in con- sistency between it and the medical evidence. As such, the medical evidence is to be read in consent with the ocular evidence.
19. In the present case, rukka Ex.PW15/B has pointed out the time of incident at 12:00 noon and DD entry Ex.PW12/A was lodged at 12:25 pm. The death was instant. PW13 received the information at about 12:30 pm and instantly reached at the spot of incident. PW15 and PW23 have also corroborated that they received the information of death at 12:25 pm. and instantly reached the spot of incident. Crime team in-charge SI E.S.Yadav along with photographer and fin- ger prints expert reached the spot of incident at 1:00 pm. DW4 heard the sound of pataka inside the house of the deceased at about 12:15 pm but has admitted during cross examination that incident took place at about 12:00 noon. As such, the evidence of both parties has duly corroborated that the time of death of the deceased was near about 12:00 noon in terms of medical evidence.
20. This timing of death is also suitable from another angle as well. The information of incident recorded by the way of DD entry Ex.PW12/A which was lodged at 12:25 pm and incident must have occurred much prior to the reporting of the incident to PS at 12:25 FIR No. 222/10 State Vs. Shahnawaz. Page No. 69/131 pm. DW4 heard the sound of pataka inside the house at 12:15 pm. and also noticed the dead body of the deceased on cot outside the room whereas the incident had taken place inside the room as de- posed by the PW6, PW9, ,PW13, PW15, PW21 and PW23 as well as DWs. The Removal of dead body from inside the room to outside in varanda / gallery to put on the cot must have taken some time before spreading the news of firing as well as death of the deceased in the area only then some unknown person flashed the information to the PS. In fact, the testimonies of these witnesses have duly proved that the incident took place much prior to its reporting at 12:25 pm. Call details of the mobile number 9899571796 of the deceased has proved that she had been talking by this phone till 11:55:50 am and PW23 has also corroborated this fact which suggests that the deceased was alive till that time and must have died at about 12:00 noon or onwards and has corroborated the timings of death given by the medical evidence.
21. Now it is to be seen as to whether accused committed the murder of the deceased Farheen or not. The first circumstance against the accused is that the murder was committed by the riffle which was found inside the room which was the spot of incident. Ad- mittedly, the incident occurred within the four corners of the house and especially in a room which was being used by the accused and deceased to reside together being a married couple. PW14 has also opined that the death of wife due to projectile arm and he recovered FIR No. 222/10 State Vs. Shahnawaz. Page No. 70/131 4 pieces of metal from the out circumferences of exit point of the wound. Police seized a license riffle of the father of the accused from the room and one fired cartridge from the barrel of the riffle. PW13 and PW15 have corroborated that they saw the fired cartridge inside the barrel of the riffle and they put it insert again into the barrel after checking it out. PW24 has proved that the riffle was in working condition and one fired cartridge Ex.EC1 (Ex. P11) was having the similar marks of the fired cartridges used to check the test fire of the weapon. As such, fired cartridge found inside the barrel of the riffle matched with the moves and grooves pin points of the weapon/ riffle Ex.P1. PW25 has proved that the blood was found present on the articles seized from the room which was place of incident. Police also seized live cartridges magazine of the riffle which was lying in the room and one steel almirah was lying opened and magazine was put on a slab. One bullet had pierced the bed sheet and also hit on the sirahana of the bed which was also seized by the police and was contained the human blood. No specific cross examination of the PW24 and PW25 was conducted by the accused to bring out anything for his assistance except that PW24 could not tell as to when this weapon was lastly used. As such, by the recovery of the weapon and the circumstances prevailed at the spot have pointed that the incident was caused by this weapon / riffle only.
22. Even the use of this riffle is proved by the reply to the show cause notice Ex.PW5/C filed by the father of the accused in FIR No. 222/10 State Vs. Shahnawaz. Page No. 71/131 pursuance to show cause Ex.PW5/A issued by the then Licensing commissioner of the police to the father of the accused and has proved by the PW5 Ct Anil. Admittedly, this riffle Ex.P1 is the licensee weapon of the father of the accused vides Arm License No- NEUP/4/1995/15 issued on 22/8/1995 regarding a riffle .315 bore bearing no. 95-AB-3740 and was valid till 15/4/2013 for State of Delhi. Photocopy of license is Ex.PW5/B. The reply to show cause notice is also relevant to consider and is as under:
..My son Shahnawaz had not killed his wife, rather it was outrightly and unfortunate accident took place in my family, which snatched away my beloved daughter in law from us. This incident has completely ruined us and till date, we have not overcome with such incident.
As a matter of fact, on 12/7/2010, I had gone to Kanpur in connection with some important work and I had kept my riffle as usual in the steel Almirah with lock and key, as I could not carry the Riffle with me being having the license for Delhi State only. I came to know about the incident on phone through my family members that my daughter in law had opened the Almirah and the loaded Riffle kept inside of Almirah fell down from the Almirah and accidently the Riffle went off and struck against the head of my daughter in law and consequently took away the life of my beloved daughter in law. We are still mourning.
I have not been negligent in keeping the riffle in safe custody nor violated any terms and conditions of the Arms Act. I would like to reassure you that I will keep the riffle in safe custody;FIR No. 222/10 State Vs. Shahnawaz. Page No. 72/131
hence, I may please be permitted to retain the Riffle for the purpose of safety and security of myself and my family, which is at stake.
23. From the reply of the show cause notice furnished by the father of the accused, it stands proved that this riffle was used during the incident and family members of the accused must have witnessed the incident or had knowledge about the incident but have concealed the incident from the police. Accused has not cross examined this witness and, even during SA, has admitted that license was issued in the name of his father and it has been cancelled, but he has shown his ignorance regarding reply to show cause notice without any explanation as to why he has no knowledge about this reply, whereas has knowledge about the cancellation of this license which was in pursuance of this show cause notice only. As such, it stands proved that the murder of the deceased was committed by this weapon.
24. Since the murder of the deceased was committed by the licensee riffle of the father of the accused, then the use of the same by the family member alone may not be ruled out as the weapon was put in the safe custody as disclosed by the father of the accused in his reply and only family member has used this weapon and accused is the person who used it as the riffle was put inside the room which was in possession of the accused and was being used as matrimonial home and accused alone has opportunity to use it as other family members were not inside except the mother of accused FIR No. 222/10 State Vs. Shahnawaz. Page No. 73/131 who had no occasion to do it and stated to be outside.
25. Ld. counsel for the accused has argued that Ex.P11, fired cartridge, is a manipulated cartridge and the seizure memo of the cartridge Ex.PW13/A is not on record and this court has also given such observation at the time of examination of this witness, yet it has no bearings on the merit of the case as the cartridge was found inside the chamber of the barrel of the riffle as deposed by PW13 and it was also seized with riffle and PW24 has examined this cartridge Ex.P11 and also furnished his report on the basis of the same. As such, it shall be presumed that the empty cartridge was duly found inside the barrel of the riffle which was sent for ballistic examination. PW13 has reiterated during re-examination by court that Ex.P11 was found inside the riffle and he saw the same when IO took it out from the riffle and till that time PW15 SI Satyapal was IO. PW15 has also corroborated PW13 Ct. Naseem about the incident and scene of crime that the deceased was laying on the cot whereas the scene of crime was room. He also observed that a riffle was lying there and almirah was lying opened and magazine was put on the slab. He has proved that he seized the weapon of the offence after preparing of its sketch vide memo Ex.PW13/A which was not found on record. PW15 deposited the case property with MHC(M) and PW26 has also corroborated this fact that on 12/7/2010, ASI Satya Pal deposited nine sealed parcels with him vide entry Ex.PW26/1 and the same were sent to FSL on 7/10/2010 through Ct. Anil vide RC Ex.PW26/3 FIR No. 222/10 State Vs. Shahnawaz. Page No. 74/131 and received back on 23/3/2011 vide entry Ex.PW26/5. As such, the plea taken by the accused is not sustainable that cartridge was manipulated in the barrel of the gun.
26. Further, PW23 has also supported the PW13 and PW15 that he observed the similar scene of crime when he firstly visited the spot of incident before arrival of the crime team at the spot of incident and met PW13, PW15 and PW21 there and they also participated in the investigation. PW6, PW7 and PW17 also visited the scene of crime as members of the crime team and also observed the similar scene of crime as observed by PW13, PW15 and PW23.The use of the riffle Ex.P1 has also proved by the prosecution with the help of the reply to the show cause notice for cancellation of the license of the weapon after the incident in which the father of the accused admitted that weapon was went off by sudden falling when the deceased opened the almirah and bullet hit against her head. As such, it stands proved that the same riffle was used during the incident and used by accused as observed earlier.
27. Ld. Counsel for the accused has further argued that the recovery of metal pellet could not be connected to the bullet cartridge Ex.EC1 and it could not be proved that the similar metal pieces were fired from the same riffle. To ascertain this fact, it is necessary to go through the PM report of the deceased which has proved that the cause of death of the deceased was by projectile weapon. Four gray FIR No. 222/10 State Vs. Shahnawaz. Page No. 75/131 colored small metallic pieces were present on the circumference of the exit wound and the subcutaneous tissues of scalp surrounding the partial exit wound. Comminuted fractures were present of the base of skull. Some parts over the frontal, parietal and occipital areas were missing from the normal anatomical site. Lacerated pieces of brain matter were present on the scalp hairs. As such, a large portion of the head and mind of the deceased was found missing which could have been only of the result of the velocity of the bullet and entry point was noticed on the forehead of the deceased. Skull is a very sound and hard object and recovery of the pieces in outer circumferences of the wound and partial recovery of metal pieces at the spot made it clear that the bullet lead might have scattered or disfigured and not only burst the skull of the deceased but also pierced into the bed. Merely because the bullet lead could not be recovered intact from the spot, it cannot be said that the deceased was not killed by the bullet fired through cartridge case Ex. P11 on which the similar and identical grooves and pin marks of riffle were found by the PW24. The reason of the non availability of the report on the bullet pieces was the absence of bullet metal jacket as well as incomplete data and it was quite possible. The accused cannot be given benefit of this fact. As such, it would be a hyper technical approach if it is assumed that the bullet was not fired by this weapon especially when bullet case has been recovered from the barrel of the riffle Ex. P1 and bullet was fired from this riffle.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 76/13128. Further, the range of riffle used in the crime has high muzzle velocity as well as very high range to hit and in such condition, firing from blank point range or nearby would have so much impact that the recovery of fired bullet lead in actual figure was not possible especially when the members of the crime team and police also did not make sincere efforts to locate it and PW24 has also given a reason that the bullet metal pieces could not be ascertained for the want of complete data. Contrary to it, accused has failed to extract any information from PW14 and PW24 during cross examination as to what were the metal pieces actually if those were not part of bullet pellet. In such condition, it shall be presumed that bullet lead struck the brain skull and scattered into pieces and it shall be presumed that the same metal pieces were fired in the shape of the bullet from the cartridge Ex.EC1 / Ex. P11. In similar situated facts, the recovery of bullet pellet was not found fatal as held in Birender Rai v. State of Bihar (2005) 9 SCC 719 " it was submitted that if several shots were fired, some pellets would have been found at the place of occur- rence. It is the case of the prosecution that no pellets were found. From this reason alone we cannot discard the case of the prosecu- tion. If pellets were found at the place of occurrence it would have further strengthened the case of the prosecution, but in the absence of such evidence has to rely upon the ocular evidence which if found reliable may be acted upon". As such, it stands proved that the metal pieces recovered from the spot as well as were part of bullet lead FIR No. 222/10 State Vs. Shahnawaz. Page No. 77/131 and it could not be disputed merely of not recovery of complete bullet lead.
29. Last seen Evidence: Admittedly, it is not the disputed case of the accused that prior to his alleged departure from his house to collect the rent from DW1, he was in the company of the deceased. As per the testimony of DW4, accused left his house at about 11:30 am to collect the rent and the mother of accused also left the spot of incident to pick the sibling from the school at about 12:00 noon. The incident also took place at about 12:00 noon as per rukka and also medical evidence as well as testimony of DW4 during cross examination. As such, by that time, the mother of the accused left for the school of the children to collect them, deceased was alive and talking with someone on her mobile till 11:55:50 am, as it is not the case of the accused that someone else was using this phone, and suddenly killed. Mother of the accused has not been examined to dispute this case and it shall be presumed that she was alive till 12.00 Noon when she was killed as also admitted by DW4.
30. Further, his last togetherness of accused with the deceased is not disputed till 11:30 am, but thereafter, accused has denied his presence at the spot of incident and has alleged that the he was not at the spot and deceased was alone in the house and two unknown persons killed her. I have already observed herein above that the de- ceased was alive till near about 12:00 noon as also corroborated by FIR No. 222/10 State Vs. Shahnawaz. Page No. 78/131 medical evidence and there is no sign of any external entry to the premises. DW4 was put on guard to the house of the accused during the entire time as admitted and has ruled out anyone else who entered into the house including two unknown persons who also could be the workers of the nearby factory, and has ruled out any in- terference of any third person in the house of the accused. As such, accused is the prime suspect who could have done it.
For similar situated cases where the wife is the victim and hus- band is the suspect. The Hon'ble Supreme Court of India has held in IV (2013) SLT 428 titled Sooguru Subrahmanyam v. State of AP that:
10. Once it is held that the death was homicidal and the injuries were not the result of any violent sexual intercourse, the circumstances are to be scrutinized to see the complicity of the accused in the crime.
31. Similarly in this case, in view of the above said law, there is no sign of the sexual assault on the deceased and this case is to be determined from the complicity of the accused alone. As such, last togetherness of the victim with the accused stands proved and also that she was alive in his company and last togetherness of deceased and accused stands proved. Now it is to be determined as to whether accused really went outside of his house at 11:30 am, prior to the murder of the deceased, as pleaded in his defense.
32. Plea of Alibi of Accused and Defense Witnesses: In fact, FIR No. 222/10 State Vs. Shahnawaz. Page No. 79/131 last togetherness of the accused with deceased stands proved and deceased was alive soon before 12:00 Noon, but accused has taken a plea of alibi to escape from this last togetherness and has alleged that he was 10-15 minutes distance away to collect the rent from his tenant who has been examined as DW1. It is not disputed proposition of law that the plea of alibi is to be proved by the accused. The law related to the alibi has been dealt with by the Hon'ble Supreme Court of India in Binay Kumar Singh v. State of Bihar, (2013) 14 SCC 159 as under:
"22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:
"The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant."
23. The Latin word alibi means "elsewhere" and that word is used for con- venience when an accused takes recourse to a defense line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is al- leged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defense of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecu- tion succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to ex- clude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter- evidence to the effect that he FIR No. 222/10 State Vs. Shahnawaz. Page No. 80/131 was elsewhere when the occurrence happened. But if the evidence ad- duced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.
The said principle has been again reiterated in Gurpreet Singh v. State of Haryana (1997) 1 SCC 283, S.K.Sattar v. State of Maharashtra (2002) 8 SCC18 and Jitender Kumar v. State of Haryana (2010) 8SCC 430.
33. Similarly, it has been held in Dudh Nath Panday v. State of UP, AIR 1981 SC 911 that:
"...The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at other place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed...". Distance thus would be a material factor in the matter of accept ability of the plea of alibi."
As such, the onus to prove plea of alibi is on the accused and it is to be seen as to whether accused has proved this alibi or not.
34. Accused has examined four defense witnesses out of which DW2 and DW3 are official witnesses who have proved the CDR of mobile phones used by the deceased, accused and Phool Bano. DW1 and DW4 are the witnesses of alibi. DW1 was the tenant under the father of the accused and as per his testimony, accused came to FIR No. 222/10 State Vs. Shahnawaz. Page No. 81/131 his house on 12/7/2010 at about 11:45 am to collect the rent, but he was going to take bath due to asked the accused to wait at his nani's house and met him at about 12:30 pm after taking bath and breakfast and accused had been waiting at the house of his nani. It is further deposed that he kept on talking with the accused for about 10 minutes regarding his marriage and suddenly heard shouting outside house that firing incident had taken place at the house of accused. Accused immediately reached his house and he followed accused to his house, and accused was asking to everyone as to what had happened to his wife as his wife was lying dead on a cot in the house of varanda / gallery. He came to know that after the incident of firing two persons left the house from the inner door which opens in the gali.
35. However, the testimony of DW1 has many chinks which stands proved that his testimony is concocted. He has admitted during cross examination that he has neither rent agreement nor rent receipt to prove his tenancy. Even Aaadhar card Ex.DW1/P1 is also bearing a different address i.e. V-37, Arvind Nagar instead of U-37, Arvind Nagar which is altogether different and by this document, the tenancy of the DW1 under the father of the accused could not be proved. Further the deposition of the DW1 is very vague and calculative. As per his testimony, accused went to collect rent from him but he allowed him to wait for 45 minutes and that too no rent was paid. Even the conduct is of the DW1 is also of not a tenant as he allowed FIR No. 222/10 State Vs. Shahnawaz. Page No. 82/131 to wait his landlord for about 45 minutes and took from bath to break- fast instead of paying rent which was a work of just minute. As such, the conduct of DW1 was not practically possible. Rather DW1 has given the minute calculation of the time as to how much time he took into bath and for how much time he remained busy in taking break- fast and also in talking with the accused. All such calculation of time suggests that he has calculated the time just to give deposition to fit to the defense of the accused.
36. Further, DW1 has admitted that he did not attend the marriage of the accused and was only occasional visitor to the house of the accused which suggests that he was not having such relations which allowed him to treat the accused such casually in payment of rent. Even, he came to know about the arrest and false implication of the accused in a case, but still he neither disclosed to the police nor to higher authorities that accused was with him at the time of incident and this conduct of DW1 is not trustworthy.
37. Even it is assumed for the sake of arguments that accused was present at his house or was waiting at the house of his nani, then also it could not be said that accused was constantly under the watch of the DW1. DW1 was inside his room from 11:45 am to 12:30 pm and was having bath and breakfast. In this duration, it was quite possible to accused must to visit his house and again came back to the residence of DW1 after committing the offence as the distance FIR No. 222/10 State Vs. Shahnawaz. Page No. 83/131 between the house of the accused and DW1 was not more than 10 minutes as admitted by him. In any case, it cannot be proved by the DW1 that accused constantly remained at the house of his nani as nani of the accused has not be examined to prove this fact that he was with her at the time of incident, and it is not the case of the accused that he also visited somewhere else besides the house of the DW1. As such, testimony of DW1 could not prove the plea of alibi of accused.
38. Now come to the testimony of the DW4 Swalin Khan. He is also a tenant under the father of the accused for the last 18-19 years and entire brought up of the accused took place in his presence. He has sympathy with the family of the accused and has deposed that he has visited the court about 20-25 times to meet accused Shahnawaz. The father of accused Meharban informed him to depose before the court regarding the facts disclosed to him. This testimony of the Dw1 is sufficient to prove that he is a tutored witness.
39. Further, testimony of the DW4 is also not reliable on another aspect. On the one hand, he has deposed that the accused left his house at 11:30 am to collect the rent and did not return back and he heard a sound of pataka at about 12:15 pm and saw two persons running from the rear street of the house of the accused, on the other hand, he has deposed during cross examination that the two people seen by him on the day of incident in the adjacent street having rear FIR No. 222/10 State Vs. Shahnawaz. Page No. 84/131 gate of the premises, could be from the nearby houses where a num- ber of workers had been working in the factories. This testimony is contradictory.
40. Further, he has deposed that he remained at his shop since 6:00 am to 12:00 mid night and at about 12:00 Noon, the mother of the accused left with her child to pick another one from the school and Meharban was out of station and deceased was alone at the house at the time of incident. He heard the sound of pataka at about 12:15 pm, but during cross examination he has deposed that the incident took place at 12:00 noon and police reached at the spot at 12:30 pm and during this period he was constantly watching the house of the accused and no one entered into the house of the accused. As such, there was no occasion to anyone to enter into the premises and to commit the offence as mother of the accused left the spot at 12:00 Noon and incident also took place at about 12 Noon which suggests that the testimony of DW4 is not trustworthy. As such, there was no time gap between the departure of mother of accused and death of deceased and no one had occasion to commit such offence except accused. As such, he has deposed falsely just to support to the defense of the accused.
41. Even the conduct of the DW4 has also rendered his testimony untrustworthy. Accused left the spot after informing him about his purpose of going out of his house, but he did not inform the accused FIR No. 222/10 State Vs. Shahnawaz. Page No. 85/131 about the incident despite hearing the sound of gun-shot inside his house and saw the dead body of the deceased. Even he instantly got the information about the false implication of the accused but still kept mum and neither made complaint to police after the incident nor made complaint against the police for false implication of the accused despite the facts that the accused was not present at the spot and was away to collect the rent.
42. As such, the testimonies of both DW1 and DW4 are not reliable. DW1 has introduced the story of two unknown persons just to support the defense of the accused otherwise this fact was not in his personal knowledge and must have been forwarded by the DW4 only, who is interested witness to save the accused and has deposed false.
43. In similar type of case titled Dudh Nath Panday v. The State of U.P (supra) the Hon'ble Supreme Court of India refused to buy the plea of alibi of the accused that he was in his office along with his colleagues despite their examination as defense witnesses and also the fact that he was also arrested from the factory compound where he was working. The Hon'ble Court observed that the accused was present in his factory at 8:30am and at the scene of offence at 9.00 am as so short was the distance between two points. The workers used to punch their cards at the time of entry to the factory but not at the time of leaving and it were quite possible that he left the factory FIR No. 222/10 State Vs. Shahnawaz. Page No. 86/131 and again came back after committing the offence. It was observed that the defense witnesses deposed falsely for the reason best known to them.
44. Further, in State of UP v. Sheo Sanehi & Ors Appeal (Crl.) 952-953 of 1998 dated 6 October, 2004 also, the Hon'ble Supreme Court of India refused to believe the testimony of the defense wit- nesses and discarded the govt. record and testimonies of jailors despite proving the official jail entries pertaining to the accused, the court set aside the defense of the accused which was accepted by the high court that accused was in jail.
45. In view of the above said law, the version of the DW4 is not trustworthy and he has deposed just to favour the accused and his testimony could not prove the plea of alibi of the accused.
46. From another angle, the testimony of DW4 is not reliable as the incident was not possible to be caused by anyone else except the accused as no outsider could have entered into the premises of the accused and to commit the murder of the deceased and also to remove the dead body of the deceased from the room to varnada and put her on a cot especially when police have not collected any blood stain clothes of the accused or family members who put the body on cot after the murder of the deceased. All such, dressing up of the scene of crime was not possible in the presence of the DW4 or FIR No. 222/10 State Vs. Shahnawaz. Page No. 87/131 other family members without his knowledge and he has also suppressed the truth. As such, by the testimonies of the DW1 and DW4, the defense of the accused could not be proved. As such, plea of alibi of accused could not be proved and he was present at the spot of incident with the deceased.
47. Presumption of Section 106 of Evidence Act: Admittedly, accused had been residing with the deceased who shifted to her matrimonial home just on 3/7/2010 from her parental home after her marriage with the accused on 10/4/2010 and after a long stay with her parents. A newly wedded lady must be living separately in a room which was the place of incident. Accused had been regularly residing with the deceased till some time earlier to the time of incident and suddenly left the spot of incident and deceased found dead and plea of alibi has been proved false. In such situation, the presumption of section 106 of Indian evidence act would come into play. The Hon'ble Supreme Court of India had occasion to deal with the presumption of section 106 of Indian Evidence Act, in State of Rajasthan v. Thakur Singh VI (2014) SLT 260 where death of wife was unnatural and witnesses turned hostile. The burden of proof was fixed upon to ac- cused to explain the death of his wife took place within the four cor- ner of the house. The interpretation of the Section 106 was given as under thereby relying upon the various judgments;
[Section106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 88/131Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket on him.] This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.
48. The Hon'ble Supreme Court of India in Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 has given interpretation to section 106 of the Indian Evidence Act and has held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well high impossible or extremely difficult for the prosecution to prove that fact. It was said:
"This [section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not in tended to relieve if of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The work "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. It the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than that he whether he did or did not."
49. Similarly, In Trimukh Maroti Kikran v. State of Maharashtra, (2006) 10 SCC 681 has held that when the wife is injured in the FIR No. 222/10 State Vs. Shahnawaz. Page No. 89/131 dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said:
"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
50. Further, in Jagdish v. State of Madhya Pradesh, (2009) 9 SCC 495, it is further observed as follows:
"it bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."
51. Further, in State of West Bengal v. Mir Mohammad Omar, (2000) 8 SCC 282 contains an example to explain the principle behind section 106 of the Evidence Act in the following words:
"During arguments we put a question to learned senior counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such FIR No. 222/10 State Vs. Shahnawaz. Page No. 90/131 a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."
After relying upon may judgments, the Hon'ble Apex Court observed that there is no evidence that anybody else had entered their room or could have entered their room and in the absence of any explanation by the accused, it was convicted for the murder of his wife.
52. In the present case also, the accused and his mother were the only persons who were in the house and mother left to pick the child from school and deceased was alive in the company of the accused in the matrimonial house. The plea of accused that he was away at that time to collect the rent could not be proved by DW1 and DW4. The time of death of the deceased has already been observed that it was near about 12:00 Noon and she was in the company of the accused. In such circumstances, accused is the only person who could have committed the offence. The father of the accused stated to be away to jamaat. The cell location of accused proved by DW2 has proved that the cell location of the accused was also at his house at the relevant time of incident which was fortified the presence of accused at the spot. All the witnesses including PW13, PW15 and PW23 have duly proved that that everybody in the crowd had been saying that Shahnawaz had killed his wife and this fact is also relevant u/s 6 of the Evidence Act to draw an adverse inference against the accused.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 91/13153. Further, seizure memo of the riffle Ex.PW13/C has disclosed that the riffle was having safety lock and has ruled out the explana- tion of the father of the accused furnished to the Addl. C. P. that riffle went off on falling accidentally which was not possible without unlock- ing of safety lock of riffle. Even accidental firing was not bound to strike on the forehead of the deceased and must have struck on some other parts of body as the angle of the shot is in left forehead which was not possible by accidental firing. The postmortem report Ex.PW14/1 has proved that the muzzle print was found on the partial firearm entry caused injury no. 1 which was sufficient to cause the death of the deceased and it was possible by the riffle Ex.P1. This observation of the PW14 has proved that the firing was from blank point range and not accidental otherwise muzzle print in cresentic shape was not possible by accidental firing. In fact, it was the handi- work of an expert alone who was verse in handling of riffle and ac- cused is the main person who could have done it as the unlocking of the safety lock and handling of force discharge by firing required some expertise and accused is healthy and strong person to handle it and it was not possible by mother of accused.
54. Even the deceased was killed inside the room and it was not possible to a single lady i.e. mother of accused to bring out the dead body of a young lady from a room alone to put on cot in varanda especially when it was profusely bleeding. In fact, in this case, the family members of the accused also must have supported the FIR No. 222/10 State Vs. Shahnawaz. Page No. 92/131 accused but police have not made efforts to ascertain their involved in displacing the dead body from the room to varanda In fact, the removal of dead body from the room of incident is the material which was only within the knowledge of the accused or family members, but neither the accused nor the family members have tendered any explanation as to how the dead body came out of the room and this fact could not be within the knowledge of the prosecution to prove as it was under the four corner of the house exclusively in possession of the accused and family and in the absence of any explanation from the side of the accused, an adverse inference is bound to be drawn against the accused alone. Further, the deceased was died by firing and accused was inside the house and it was the accused to prove as to how the deceased was died and in the absence of any negative proof, it shall be presumed that the accused has committed the offence. Accused has not tendered any explanation to rebut this presumption and it is bound to be drawn against him.
In Sarojini and Ors. v. State of MP and Ors. Criminal Ap- peal No-626,627 of 1992 dated 16/10/1992 (SC) has held that "Within a short period of three months, there is no possibility of any- one developing such deep enmity with Rajini to put to end the life of a young married woman. It must, therefore, be none other than the inmates of the matrimonial home". Similarly in this case, the deceased joined her matrimonial home with accused just on 3/7/2010 and her murder was committed on 12/7/2010 and in just 9 days of stay, none other than accused could have caused the death of the FIR No. 222/10 State Vs. Shahnawaz. Page No. 93/131 deceased as there was no possibility of the any other person to develop such enimity to kill the deceased as it is not the case of the accused that she had any extramarital affairs which led her death as there was no sign of anyone to enter into the house of the deceased or any such sexual assault by any third person except the accused. as such, it shall be presumed that accused has committed the murder of the deceased.
55. Conduct of the Accused: Further, the conduct of the accused is also relevant. On the one hand accused immediately reached to the spot of incident soon after receiving the information at the house of the Dw1 and reached there at about 12:50/1:00 pm and was crying and asking to the people as deposed by DWs, but it is very strange that his presence could not be recorded anywhere. Rather the cell lo- cation of the mobile number 9711126659 was moving around the area of and at about 1.30 pm he was at Ghonda, whereas he was at the spot of incident at the time of incident and was also talking to his father and uncle regularly, whereas the uncle of the accused was at the spot of incident and informed the parents of the deceased as per the case of the accused. it is beyond explanation if accused was at the spot of incident then why he was making calls to his uncle who was also present there him and this facts draw an inference that accused was not present at the spot of incident. It is not the case of the accused that he was not carrying the mobile phone with him as the same was seized during the personal search of the accused and FIR No. 222/10 State Vs. Shahnawaz. Page No. 94/131 accused was arrested much far away from the spot of incident near Usmania Masjid and accused has not tendered any explanation to it as to how he reached and he was just denied it without explanation. Though the testimonies of the PW13, PW22 and PW23 are having some contradictions regarding the secret information which led to the arrest of the accused, yet those contradictions have not affected the core issue that the accused was arrested in this case.
56. Further, the explanations tendered by the accused during the statement of accused are also relevant. It has been held by the Hon'ble Supreme Court of India in Ganeshlal v. state of Maharashtra (1992) 3 SCC 106 that appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under obligation to give an explanation for the cause of death in his statement under section 313 of the Code of Criminal Procedure. A denial of the prose- cution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, consistent with the hypothesis that the appellant was a prime accused in the commis- sion of murder of his wife. Similarly in Jagroop Singh v. State of Punjab, V (2012) SLT 508 thereby relying upon State of Maha- rashatra v. Suresh (2000) 1 SCC 471 that when the attention of the accused is drawn to such circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives false an- swer, the same can be counted as providing a missing link for com-
FIR No. 222/10 State Vs. Shahnawaz. Page No. 95/131pleting the chain of circumstances. We may hasten to add that we have referred to the said decision only to highlight that the accused has not given any explanation whatsoever as regards the circum- stances put to him under section 313 of the code of criminal procedure. In view of these judgments, it is clear that the explanation of the accused u/s 313 Cr.P.C. may not be deciding factor to convict the accused yet those may be considered to complete the chain of the circumstances against the accused.
57. In the present case, from the SA of the accused, it is clear that the marriage between the parties is admitted. The use of mobile number 9899571796 by deceased is not denied and admitted in reply to Q. 12. Accused has denied Q. 28 about the status of the dead body on the cot for the want of knowledge despite the fact that he has claimed that he went back to the spot of incident after receiving the information. Manner of death is not denied. It is also not denied that bullet mark was not found towards the sirhana of the bed but it is denied that the riffle and magazine were found from the room. Recovery of fired cartridge from barrel of the riffle has been denied for the want of knowledge. Accused has denied all the questions re- garding the recovery of seizures from the spot of incident for the want of his knowledge, but strangely, accused has tendered an explana- tion to Q.43 the as per his information chance prints were lifted from the spot and his finger prints were also taken during investigation but since his finger prints did not match with the chance prints the same FIR No. 222/10 State Vs. Shahnawaz. Page No. 96/131 have been concealed to make a false case against him. He has denied the post mortem report of the deceased.
58. Every one informed in the area that he shot his wife but he did not come forward with the witnesses that he was with the DW1 at the time of incident. During the course of arguments, Ld. Counsel for the accused has argued that the accused was himself minor at the time of incident and his father was out of station and it was not expected from the accused to remain present at every stage or to participate in the entire proceedings after the death, but this arguments of the ac- cused cannot be accepted as if accused was present at the spot after the incident then he was supposed to sit along with the family mem- bers of the deceased and it did not require any expertise of a major man, but it was also not done. He did not accompany to the dead body when it was removed to the hospital and till that time he was not arrested. He did not witness any of the part of proceedings and remained absent throughout the investigation despite the fact that everyone was saying that he killed his wife but he did not come forward to deny this fact. In fact, this conduct is not expected from an innocent person.
59. Further, Question 62 was replied regarding his arrest that he was apprehended from his house and later on falsely implicated in this case and this reply suggests that he was very well present at the house, but strangely was not aware about the investigation which FIR No. 222/10 State Vs. Shahnawaz. Page No. 97/131 must have been carried out in his presence. The explanation regard- ing his presence at the spot of incident has already been found false and it stands proved that he was not present at the spot of incident and non tendering of any explanation to the incriminating evidence is fatal to the accused. Rather has corroborated the misconduct of the accused observed by this court which is relevant u/s 8 of the Evi- dence Act.
60. The Hon'ble Supreme Court of India has held in Amit Alia Ammu v. State of Maharashtra, (2003) 8 SCC 93 that if no explanation is offered in the statement by the accused u/s 313 Cr.P.C. and his defense was of complete denial is against the accused. It is further held in State of Maharashtra v. Suresh, (2000) 1 SCC 471 that the attention of the accused is drawn to such circum- stances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for completing the chain of circumstances. In view of the above judgments and the explanation tendered by the accused to the incriminating evidence, it is clear that the tendency of the accused throughout statement is just of denial the entire evidence and an adverse inference is bound to be drawn against the accused. As such, this conduct of the accused has also proved that he has committed the murder of his wife and has taken false defence.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 98/13161. Motive of Crime: During the course of arguments, Ld. Coun- sel for the accused has argued that there was no motive to the ac- cused to kill the deceased and prosecution has not proved any such motive. In support of the arguments, Ld. Counsel for the accused has relied upon Surender Pal Jain v. Delhi Administration, AIR 1993 SC 1723, Babu v. State of Kerala, 2010 (9) SCC 189 AND State v. Mahender Singh Dhaiya, 2011 (3) SCC 109.
62. However, the arguments of the Ld. Counsel for the accused have no substance. The Hon'ble High Court of Delhi has held in Gajraj Singh v. State thereby relying upon Mulakh Raj v. Satish & Ors, 1992 Cri.L.J. 1529 that motive is immaterial when there is clear evidence or circumstances against the accused and has held :
"It is true as contended for the appellant that the evidence on record is not sufficient to arrive at an immediate motive to commit the crime and the case depends on circumstantial evidence. But in circumstantial evidence also when the facts are clear, it is immaterial that no motive has been proved. Men do no act wholly without motive. Failure to discover the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it is not necessarily fatal as a matter of law. Proof of motive is never an indispensable factor of conviction. In Alley v. State of UP, MANU/SC/0102/1955 this court held that where there is clear evidence that the person has committed the offence, it is immaterial where no motive for commission of the crime has been shown. Therefore, even in the case of circumstantial evidence, absence of motive which may be one of the strongest links to connect the FIR No. 222/10 State Vs. Shahnawaz. Page No. 99/131 chain would not necessarily become fatal provided the other circum stances would complete the chain and connect the accused with the commission of the offence, leaving no room for reasonable doubt, even from the proved circumstances...
63. It is further held in Sooguru Subrahmanyam v. State of A.P., IV (2013) SLT 428 thereby relying upon Nathuni Yadav and Ors. v. State of Bihar and Anr., (1998) 9 SCC 238 as under:
"17. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that aforesaid impelling facto would remain undiscoverable. Lord Chief Justice Chambell struck a note of caution in R. v. Palmer, Shorthand Report at p.308 CCC May 1856 thus:
'But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from the experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.' Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant."
64. In view of these judgments, the motive is not always relevant to be proved when the circumstances are clearly proving that the guilt of the accused. The judgments of the Ld. Counsel for the accused are not applicable on the facts as in Surender Pal Jain (Supra) the FIR No. 222/10 State Vs. Shahnawaz. Page No. 100/131 case was based upon the circumstances of dog tracking which was not found a sufficient evidence against the accused. Rather it is held that in a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinize the circumstances more carefully to ensure that suspicions and con- jecture do not take place of legal proof. Similarly, in Babu v. State of Kerala (Supra), it is held that motive is to be proved to the extent on the part of accused that he wanted to get rid of the deceased and the facts of this case are not applicable in this case as in that case the motive was refusal to have sexual relations which could not be proved by contrary evidence that the deceased was taking contra- ceptive at the behest of accused and both evidence were found con- tradictory which is not the case herein. Even the facts of Mahender Singh Dhaiya case were also different and motive was considered significant because the identity of dead body had a major difference of age as well as constitution of the deceased, which is again not a case herein. As such, the judgments relied upon the accused are not applicable in this case.
65. Contrary to the case of the accused, the law laid down by the Hon'ble Supreme Court of India in Mulakh Raj v. Satish & Ors, 1992 Cri.L.J. 1529 and Sooguru Subrahmanyam v. State of A.P., IV (2013) SLT 428 is dealing with the correct proposition of law that FIR No. 222/10 State Vs. Shahnawaz. Page No. 101/131 motive lost significance where the circumstances have proved the involvement of the accused. In this case, the prosecution has proved that the circumstances against accused that accused was alone with the deceased at the time of incident and deceased had no enmity with anyone and even no other one entered into the house and, defenses of the accused have been proved false. As such,all the circumstantial evidence have duly proved that accused has committed this offence the guilty. Even otherwise, in this case, the dowry demand of a big car instead of motorcycle is the motive of the accused to commit the offence and PW1 and PW2 have duly proved this fact and PW4 has corroborated it. The testimony of PW2 / mother is un-rebutted that on 10/7/2010, deceased called her and disclosed that accused had been harassing her for not fulfilling his demand of big car and the statement u/s 161 Cr.P.C. has duly corroborated her testimony before this court that the accused had been harassing her and it was the motive of the crime. As such, the plea taken by the accused that there was no motive to the accused to commit this offence is not sustainable.
66. Now the last defense of the accused is to be dealt with. Accused has taken a defense that the offence was committed by the two unknown assailants who were seen by the DW4 while running out from the rear street after hearing the sound of pataka in the house of accused, but this defense of the accused is after thought, as no prosecution witness has deposed anything about it except FIR No. 222/10 State Vs. Shahnawaz. Page No. 102/131 putting a suggestion to the PW13 that he came to know about this fact. However, the testimony of DW4 is not found trustworthy due to this defense put forward by the accused through him could not be proved by the accused. The testimony of DW1 qua this fact is based upon the testimony of DW4 only otherwise he did not know anything about this fact due to this fact could not be proved being after thought as well as false defence.
67. Contradictions in the testimonies of the PWs: It has held in Kunju Muhammed Alias Khumani and another v. State of Kerala, (2004) 9 SCC 193, State Rep. by Inspector of Police v. Saravanan and Anr., AIR 2009 SC 152 and Sunil Kumar Sambhu dayal Gupta (Dr.) and Others v. State of Maharashtra, (2010) 13 SCC 657 that the contradictions/ omissions must be of such nature which materially affect the trial. Minor contradictions, inconsistencies, em- bellishments or improvements which do not affect the core of the prosecution case should not be made a ground to reject the evidence of the witness in entirety. In view of this law laid down in the above said judgments, the contradictions of the witnesses regarding arrest of the accused are minor and the entire testimonies of PW13, PW15 and PW23 cannot be rejected for these contradictions. These testimonies have disclosed the lapses of investigation but even a defence investigation is not a ground to acquit the accused and is not a ground for benefit of doubt. It has been held in in Sucha Singh & Anr. v. State of Punjab, 2003 7 SCC 643 that the prosecution is not FIR No. 222/10 State Vs. Shahnawaz. Page No. 103/131 required to meet any and every hypothesis put forward by the ac- cused. A reasonable doubt is not an imaginary, trivial or merely pos- sible doubt, but a fair doubt based upon reason and common sense. It must grow out the evidence in the case if a case is proved per- fectly, it is argued that it is artificial; if a case has come inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. The present case is one where there is no trace of doubt that all the circumstances complete the chain and singularly lead to the guilt of the accused persons. Similar proposition has been followed in Jagroop Singh v. State of Punjab, V 2012 SLT 508. As such, all the major defences have been dealt with by the court including his plea of alibi, motive and contradictions in the testi- monies of PWs.
68. Standard of Proof in cases: The standard of proof to prove the circumstances in dowry related case has been laid down by the Hon'ble Supreme Court of India in 2007 CRI.L.J. 20 titled Trimukh Maroti Kirkan v. State of Maharashtra that:
In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and Firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.FIR No. 222/10 State Vs. Shahnawaz. Page No. 104/131
11. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighborhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.
12. If an offence takes place inside the privacy of a house and in such cir-
cumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as no- ticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 _ quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prose- cution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is es- pecially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."
Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prose- cution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter FIR No. 222/10 State Vs. Shahnawaz. Page No. 105/131 character. In view of Section 106 of the Evidence Act there will be a corre- sponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prose- cution and there is no duty at all on an accused to offer any explanation.
69. In view of the above said law laid down by the Hon'ble Apex Court, the standard of proving the circumstances in dowry related cases is lower than the other cases based on circumstantial evi- dence. In this case also, the offence took place inside the four cor- ners of the matrimonial house and the entire evidence was inside the house but the house members have failed to co-operate in the inves- tigation and accused has also failed to come up with some fair clarifi- cations against the inference of his guilt and has also failed to rebut the presumption of his guilt. As such, it shall be presumed that he has committed this offence. In fact, the arguments of Ld. Counsel for accused cannot be accepted that this case is also at par to the other case of murder and some standard of proof is to be applied. By the circumstantial evidence of prosecution, it stands proved that accused has committed the murder of his wife.
70. From the circumstantial evidence, following circumstances have been established by the prosecution against the accused as under:-
1. That accused got married with deceased on 07.04.2010 and she started residing with accused on 03.07.2010 but FIR No. 222/10 State Vs. Shahnawaz. Page No. 106/131 murdered on 12.07.2010 in a room shared by accused and deceased.
2. The accused harassed the deceased for a dowry demand as he was not happy with the motorcycle gifted in marriage and wanted a big car for which he had been harassing the deceased.
3. That the deceased was talking on her mobile no.
9899571796 soon before her murder at about 12 noon as also corroborated by medical as well as ocular evidence and at the time of incident, accused was inside the house with deceased.
4. That the deceased was killed from the licensee rifle of father of the accused kept inside the room of incident in possession of accused. The death of the deceased was homocidal and PM report has proved that the deceased was shot from a blank point range and muzzle imprint was found on forehead which burst the skull of deceased.
5. The dead body of deceased was removed from the room of incident to outside on a cot in varandah and accused has failed to tender any explanation to this fact which was within his personal knowledge.
6. That the bullet case Ex.P-11 was recovered from the barrel FIR No. 222/10 State Vs. Shahnawaz. Page No. 107/131 of the rifle and grooves and pin marks of the rifle were found identical on fired cartridge case found inside the barrel of the bullet.
7. The scene of crime was dressed up and no finger prints of anyone were found inside the room and also on weapon of offence despite its use.
8. Accused has failed to rebut the presumption of Section 106 Evidence Act.
9. The accused failed to tender any satisfactory explanation to incriminating evidence during SA.
10. The defense of the accused of alibi is found false and defense witnesses are found not trustworthy.
11. The conduct of the accused is not found satisfactory. He absconded from the spot of incident after the murder of his wife and arrested from the place much far away from the place of incident. The defense of the accused is found false.
12. There was no opportunity to anyone to enter into the house of the accused and to commit such an offence, nor de-
FIR No. 222/10 State Vs. Shahnawaz. Page No. 108/131ceased had any enmity with anyone and no one except accused could have committed this murder.
71. All such circumstances have been duly proved by the prosecution against the accused and there is no room of doubt, in the absence of any explanation by the accused to the presumption u/s 106 of Evidence Act, that it is the accsued alone who had committed the murder of the deceased by the license riffle of his father there- after he removed the dead body of the deceased from the room to the outside varanda with intention to remove the evidence to screen himself. As such accused is guilty of committing the murder of the de- ceased Farheen u/s 302 IPC.
72. Alternative Charge Under Section 304B IPC:
The prosecution has duly proved by the circumstantial evidence that the accused has committed the murder of his wife Farheen. Charge under section 304B IPC was an alternative charge. If first charge has been proved by the prosecution, then the charge under section 304B has become redundant. The criteria to prove the charge for dowry death is altogether different. The criteria has been laid down in the section itself to raise a presumption u/s 113B of Evidence Act and prosecution has led evidence regarding cruelty for dowry demand, but the death of the deceased was homicidal due to this charge has to be dropped by the prosecution and accused is hereby acquitted u/s 304B IPC.FIR No. 222/10 State Vs. Shahnawaz. Page No. 109/131
73. .SECTION 27 OF ARMS ACT: This court has also framed a charge under section 27 of the Arms Act regarding the unauthorized use of license weapon of the father of the accused in violation of section 5 of the Arms Act. Section 27 of Arms Act is subjected to con- travention of Section 5 of Arms Act. As per Section 5 (i)(a), use, man- ufacture, sell, transfer, convert, repair, test or prove of an unautho- rized weapon is punishable under Section 27 of Arms Act. In the present case, the riffle Ex. P1 a licensee weapon and license of weapon has been proved by PW5 as Ex.PW5/A. Reply to show cause notice issued but father of accused which is Ex. PW5/C has proved that incident was caused by this weapon. I have given my findings during deciding the charge under Section 302 IPC that this weapon was used during incident by accused and killing of deceased was result of use of this weapon only. PW24 has corroborated that the riffle Ex. P1 and fired cartridges Ex. P11 were having similar grooves and pin marks of riffle as found on the tested cartridge as per report Ex. PW23/B. Bullet pellet marks were also gathered from the spot as well as dead body of deceased by PW14 and it has been proved that the weapon was used by accused during the incident. The fired bullet lead could not be recovered from the spot intent as it scattered in metal pieces and the objection of the Ld. Counsel for the accused has found no force that absence of recovery of bullet lead has proved that cartridge case Ex.P11 was not fired by riffle and is manipulated.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 110/13174. Even the recovery of bullet pallet is not fatal to the prosecution in view of case titled Birender Rai v. State of Bihar (2005) 9 SCC 719 " it was submitted that if several shots were fired, some pellets would have been found at the place of occurrence. It is the case of the prosecution that no pellets were found. From this reason alone we cannot discard the case of the prosecution. If pellets were found at the place of occurrence it would have further strengthened the case of the prosecution, but in the absence of such evidence has to rely upon the ocular evidence which if found reliable may be acted upon".
75. Admittedly the riffle was seized from the room as admitted in the unebutted reply to the father of the accused and also proved by PW13 Ct. Naseem and PW15 SI Satya Pal. Father of accused namely Meharban was the license holder and he was not in Delhi at the time of incident and was not carrying this riffle with him. Even it is the admitted case of the accused as well and also corroborated by PW13, PW15 and PW23 as well as DWs. Accused was not authorized to use this riffle as he was not named in the record of the licensing authority to use this riffle and even there was no occasion to use it in his private defences, but still he committed the murder of his wife. As such, use of the riffle by the accused stands proved. In view of this judgment, the parts of the bullet pellet were found and recovered from the spot as well as from the dead body but no spe- cific opinion could be given in the absence of complete data as ad-
FIR No. 222/10 State Vs. Shahnawaz. Page No. 111/131mitted by the PW24 but it stands proved in view of my findings that the incident of firing in the room took place and riffle was used in contravention of the license of the father of the accused and accused is liable for the same from the view of circumstances of the evidence. As such, accused is liable to be convicted for the same, hence con- victed u/s 27 of Arms Act. In view of this judgement hereinabove, the failure of recovery of complete bullet lead from the spot fired through cartridge case Ex.P11 is not fatal, rather it would have further satis- fied the case of prosecution. As such, it stands proved that accused used the riffle of his father in contravention of Section 5 of Arms Act to commit the murder of the deceased and is liable under Section 27 of Arms Act.
76. UNDER SECTION 498-A IPC: The last charges against the accused are pertaining to the dowry demand, that a motorcycle was given in the marriage of the deceased but accused Sehnawaz was not happy with that motorcycle and had been harassing the deceased for bringing a big car and ultimately killed her.
77. Before proceeding to the case of the prosecution, it is relevant to consider the cruelty defined u/s 498A IPC as under:
[Section 498A-Husband or relative of husband of a woman subject- ing her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun- FIR No. 222/10 State Vs. Shahnawaz. Page No. 112/131 ished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purpose of this section, "cruelty" means-
(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health ( whether mental or physical) of the woman; or
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]
78. From the definition of the section 498A IPC, it is clear that cru- elty defined in two categories, firstly which is likely to drive a woman to commit suicide or to cause danger to lift or limb or health and such type of cruelty is either mental or physical which is not relevant to this case. Second type of cruelty is harassment to meet out the demand of dowry form the woman or her family members. In the present case, I have already observed that the death of the deceased is homicidal so explanation (b) shall attract in this case, but it is to be seen as to whether it has been proved or not.
79. It has been held by the Hon'ble Supreme Court in Dinesh Seth Vs. State of NCT of Delhi (2008) 14 SCC 94 that the ingredients of FIR No. 222/10 State Vs. Shahnawaz. Page No. 113/131 Section 304B and 498A IPC are similar but scope of two Sections is different. It held that :
17. Section 498A was added to the IPC by amending Act No. 46 of 1983 in the backdrop of growing menace of dowry related cases in which the women were subjected to cruelty and harassment and were forced to commit suicide. This section lays down that if the husband or his relative subjects a woman to cruelty, then he/ she is liable to be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation appended to this section defines the term 'cruelty' to mean any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical ) of the woman; or harass ment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person.
18. After three years, Section 304B was inserted by amending Act No. 43 of 1986 to deal with cases involving dowry deaths occurring within seven years of marriage. Sub-section (1) of Section 304B IPC lays down that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death. By virtue of explanation appearing below Sub-section (1), the word 'dowry' used therein carries the same meaning as is contained in Section 2 of the Dowry Prohibition Act, 1961.FIR No. 222/10 State Vs. Shahnawaz. Page No. 114/131
19. The ingredient of cruelty is common to Sections 304B and 498A IPC, but the width and scope of two sections is different, inasmuch as Section 304B deals with cases of death as a result of cruelty or harassment within seven years of marriage, section 498A has a wider spectrum and it covers all cases in which the wife is subjected to cruelty by her husband or relative of the husband which may result in death by way of suicide or cause grave injury or danger to life, limb or health (whether mental or physical) or even harassment caused with a view to coerce the woman or any person related to her to meet unlawful demand for property or valuable security.
20. In order to bring home charge under Section 304B IPC, the prosecution is required to establish that the death of the woman has been caused by burns or bodily injury or otherwise than under normal circum stances within seven years of her marriage and soon before her death, the woman is subjected to cruelty or harassment by her husband or his relative. However, for the purpose of conviction under Section 498A IPC, it is sufficient to prove that the woman was subjected to cruelty, as eluci dated in the explanation appearing below substantive part of the section, by her husband or his relative.
80. Similarly, it is further held in Pawan Kumar & Ors. Vs. State of Haryana (1998) 3 SCC 309 that a quarrel before death of de- ceased by itself would constitute to be a willful act to be a cruelty and it held in Smt. Shanti & Anr. Vs. State of Haryana, (1191) 1 SCC 371 that Section 304B and 498A IPC cannot be held to be mutually FIR No. 222/10 State Vs. Shahnawaz. Page No. 115/131 exclusive. These provisions deal with two distinct offences despite common essentials.
In view of these judgments, it is clear that standard of proving cruelty under Section 498A IPC is entirely different to Section 304B IPC and magnitude of standard to prove both offences is different and Section 49A IPC is easier to be proved than Section 304B IPC.
81.. To prove this allegation, the testimonies of PW1, PW2 and PW4 are relevant. PW1 has deposed that a motorcycle was given in the marriage of the deceased but accused had been demanding a big car and deceased communicated to her mother that accused had been harassing her and even beat her. Accused also made this de- mand from the PW4 Phool Bano also. PW4 has deposed that the de- ceased used to talk her regularly and used to inform that accused had been harassing her for not meeting out his demand and also in- formed her about this fact on 10/7/2010 and on 12/7/2010, but she has also deposed during cross examination that she did not communicate the deceased to her family members. The statements of the PW1 and PW2 have also proved that the deceased talked to her mother / PW2 on 10.7.2010 and informed that she was being harassed by the accused for not meeting out his demand of a car and this testimony of the PW2 has duly corroborated by her state- ment u/s 161 Cr.P.C. The testimonies of the PW1, PW2 and Pw4 have some contradictions and omissions regarding the dowry demands but the same are not of such nature to discard the entire FIR No. 222/10 State Vs. Shahnawaz. Page No. 116/131 testimonies of these witnesses. PW1 has corroborated that he had come to know two days back of incident that his daughter was beaten up by the accused and, he had given a bullet motorcycle in the marriage to the accused but accused had been harassing his daughter for brining a big car. It is further deposed that his daughter used to get scared in the name of going to her matrimonial home. This testimony of PW1 has been duly corroborated by the PW2 that after coming from her matrimonial home, deceased used to remain frightened/ depressed (sahmi sahmi si rehti thi). PW3 has also deposed and corroborated that deceased did not want to go back to her matrimonial home and even accused had also told him that they had been residing in the posh area but did not spend sufficient amount in his marriage. As such, all the family members of the deceased have duly proved that the deceased was being harassed for the demand of a car and accused had also assaulted and beat her earlier to her death.
82. Ld. Counsel for the accused has argued that the complainant had not given any motorcycle in the marriage due to demand of big car from the deceased was out of question. It is further argued that the documents of motorcycle proved by the prosecution have re- vealed that these are in the name of the accused or his father Meharban and these documents have to be considered only in terms of contents and any other interpretation beyond contents is barred by section 91 of Indian Evidence Act. It is further argued that the produc-
FIR No. 222/10 State Vs. Shahnawaz. Page No. 117/131tion of these documents by the PW1 during cross examination does not prove that motorcycle was purchased and given in the marriage by the family members of the deceased especially when the payment of the amount to purchase is not proved by the prosecution. It is fur- ther argued that both the parties were relatives to each other and motorcycle was purchased prior to marriage but on account of close relations between complainant and accused, accused asked the complainant to collect the RC and receipt of the payment of the motorcycle from dealer and it was the only reason of having the original papers with the complainant and it does not prove that complainant gifted the motorcycle in the marriage.
83. It is further argued that the police have neither seized the said motorcycle nor interrogated the showroom owner from whom that motorcycle was purchased to ascertain that the complainant ever purchased this motorcycle from there. It is further argued that the financial condition of the complainant was not too good being lone earning member of the family to afford four marriages on the same day including the marriages of deceased and PW4 Phool Bano in the same pandaal and, it was not possible to him to gift motorcycles in all marriages, whereas no document of any of the motorcycle has been proved before this court. It is further deposed that the allegations of the prosecution are not trustworthy and are liable to be discarded.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 118/13184. On the other hand, Ld APP for State as well as counsel for the complainant has contradicted all the submissions of the Ld counsel for the accused and has submitted that the motorcycle was given in the marriage to the accused otherwise there was no occasion to the accused to purchase the motorcycle from the place near to the house of his in-laws soon before his marriage and also to leave the original papers of the motorcycle with the complainant as the payment receipt was to be kept by the payment maker i.e. accused or his father. It is further argued that there was no occasion to the accused to leave this original receipt with the complainant for any purpose. It is further argued that the production of original receipts and RC of motorcycle by the complainant has proved that the motorcycle was purchased by the complainant and gifted in the marriage. It is further argued that the motorcycle gifted in the marriage could not be disputed merely on the ground that complainant afforded four marriages on the same day because a person who afforded four marriage does not prove his financial incapacity, rather proves that the financial condition of the complainant was so good to afford four marriages on a single day. It is further argued that the examination of the showroom owner from where motorcycle was purchased was not required as only receipts could have been proved by him which are not disputed and merely non examination of showroom owner could not dispute the purchase of the motorcycle and it not fatal to this case.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 119/13185. I have heard the arguments and perused the record. It is not disputed that the motorcycle bearing no. DL-7SBG 2932 of which RC is Ex.PW1/H is registered in the name of the accused Shahnawaz, whereas it was purchased in the month of February, 2010 i.e prior to the marriage of the deceased with the accused. The original payment receipts have proved that the payment of this motorcycle was made in two installments. First installment was paid on 22/02/2010 for Rs. 25000/- and second installment was paid on 23/03/2010 for Rs. 50000/- and this payment in EMI is against the deposition of the Dw4 who has deposed that the father of the accused purchased this motorcycle in cash to gift on the occasion of marriage and has denied to be purchased in installments.
86. Both the original receipts are in the name of Mehrban i.e. father of accused which are Ex.PW1/J and Ex.PW1/K issued by South Delhi Motorcycles C/o Showroom: B-38, Main Road, Kalkaji, New Delhi -110 019. These documents have made it clear that the place from where the motorcycle was purchased is nearby to the residence of the complainant and it is beyond explanation as to why accused went all the way from New Usman Pur to Kalkaji to purchase this motorcycle which was much far away from his house and there must be a number of showrooms in the area where accused usually resides especially when payment was being made in two installments and it was multiple task to pay the amount. Even the receipt Ex.PW1/K is bearing mobile numbers 9313096097 and FIR No. 222/10 State Vs. Shahnawaz. Page No. 120/131 9999983835 which belongs to the brother of the complainant. It is beyond explanation as to how the phone numbers of the uncle of deceased came on these receipts and why accused or his father did not provide their phone numbers to the bike dealer at the time of booking or purchasing the motorcycle.All such facts proved that motorcycle was given in the marriage of accused.
87. Further, a list of dowry articles Ex.PW1/G has also got mentioned this bullet motorcycle alongwith other articles which also suggests that it was part of dowry articles. Though Ld. Counsel for the accused has argued that the list of dowry article is disputed one and it was prepared after the incident as admitted by PW1 himself and accused has disputed it during the cross examination, but accused has remained in the mode of denial of everything otherwise he was supposed to disclose as to which item was not given in the marriage to dispute the genuineness of the dowry list and without pointing out it, merely denial by the accused could not prove that the articles mentioned in the list of articles were not given in marriage or no article was given in the marriage.
88. Besides it, during the course of arguments, it is argued by Ld. counsel for accused that the original payment receipts and RC came into the possession of the complainant as those were handed over to him by accused to collect the RC from the showroom as the motorcycle was purchased from the area of the complainant and RC FIR No. 222/10 State Vs. Shahnawaz. Page No. 121/131 was to be delivered by the dealer later on. However, this defense was not put by the accused to PWs during their cross examination and in the absence of putting this defense to the witness, it could not be explained by him. Rather production of original receipts by the accused has proved that motorcycle was purchased by the family member of the deceased and gifted to accused in marriage. PWs have also deposed that one motorcycle was also given in the marriage of Phool Bano and this fact has not been denied by the accused thereby conducting any cross examination of this witness.
89. Further, as per the SA, these documents were put to the accused, but accused did not put forward this defense in reply to the question no. 2 that the document were handed over to the PW1 to collect the RC of the motorcycle. As such, it is an afterthought explanation and is of no defense.
90. Now a days, the dowry articles are usually given to the bridegroom side prior to the actual marriage ceremony and sometimes on the occasion of engagement also, and it is not improbable that the dowry articles like vehicle is usually purchased in the name of bridegroom to avoid further transfer or to overcome of legal hurdles or sometimes on the request of the bridegroom side as well and this probability of purchasing the motorcycle in the name of accused and gifting in the marriage of the deceased may not be ruled out. Even PW23 has corroborated that it is revealed during FIR No. 222/10 State Vs. Shahnawaz. Page No. 122/131 investigation that the motorcycle was given in the marriage of the deceased and purchased in the name of the accused at the request of family members of accused.
91. Another defense taken by the accused is pertaining to the financial condition of the complainant to afford the motorcycle. The motorcycle was purchased only in Rs.75,000/- and it was not too costly to afford. PW1 has categorically deposed that he has been residing in a joint family and running a transport business and owned one tempo, his brother is also having one TATA 407 and his family is also running milk business and also have rental income. With this financial condition, the gift of motorcycles by the family in two marriages of deceased and Phool Bano was not too expensive affair especially when the accused has also failed to prove any document regarding the payment of purchase of this motorcycle by herself. As such, the financial condition of the complainant was much sound to give motorcycle in the marriage of deceased and it stands proved that the motorcycle was given in the marriage and defense of the accused is misconceived.
92. Further, Ld. Counsel for the accused has argued that the prosecution has failed to prove that any dowry demand was ever made by the accused from the deceased or her family members and no such demand was ever made by the accused. It is further argued that none of the witness has deposed that the accused ever raised FIR No. 222/10 State Vs. Shahnawaz. Page No. 123/131 any dowry demand and testimonies of all the PWs have proved that no such dowry demand was ever made by accused at any point of time and depositions of the PW3 Sazid Khan and PW4 Phool Bano are not reliable. It is further argued that allegedly communication between deceased and PW4 regarding demand of big car was never communicated to her parents or family members as admitted testimony of PW4, then it was no demand of dowry. It is further argued that PW4 was married and had been residing separately and also was not supposed to fulfill that demand due to there was no occasion to accused to make such demand of car from her and earlier testimony is not reliable. It is further argued that the testimony of PW3 is hearsay as deceased never informed him personally that she was subjected to harassment for dowry demand by the accused and even he has retracted to his statement during cross examination that accused asked him that sufficient dowry articles were not given in his marriage. It is further deposed that the status of the family of deceased proved by the fact that PW3 just purchased SIM card and gifted to deceased without mobile phone and even receipt of purchase of SIM has not been placed on record and testimony of PW3 is also not reliable.
93. After going through the arguments of the Ld. Counsel for the accused and perusal of the evidence of the witnesses, it is revealed that the testimony of PW1 has proved that deceased used to remained frightened in the name of going to her matrimonial home FIR No. 222/10 State Vs. Shahnawaz. Page No. 124/131 and a demand of a big car instead of motorcycle was disclosed by him, but PW2 has specially deposed that the deceased had disclosed to her on 10/07/2010 that she was beaten up by the accused for not fulfilling the dowry demand of the accused. Though it has been recorded in the testimony of PW2 that she did not disclose this fact in her statement and did not talk with the deceased, yet in the supplementary statement u/s 161 Cr.P.C., it has been recorded that on 10/7/2010, Farheen had made a call to her and disclosed that the accused had abused her and beaten for the demand of dowry. This testimony of PW2 has corroborated the testimonies of PW1 and PW3 and has duly proved that the deceased was being harassed by the accused for dowry demand of car.
94. The Ld. Counsel for the accused has much emphasized that the PW4 could not communicate to her family members about the alleged dowry demand of the accused due to it was of no use, but this argument of the Ld. counsel has no force as the requirement of section 498A IPC is harassment of the woman to coerce her or family members to meet out illegal demand and actually meeting out of illegal demand is not mandatory. As such, harassment for that demand is a main criteria and, harassment may be physical or mental. PWs have duly proved that the deceased was subjected to the harassment for dowry demand and she communicated her mother as well as PW4 about it and further communication to fulfill that demand cannot refute the allegations of harassment of the FIR No. 222/10 State Vs. Shahnawaz. Page No. 125/131 deceased. PW1, PW2 and PW3 have also corroborated to it. Such allegations were also leveled by the PW1 and PW2 in their statements recorded by the Ld. SDM and those statement have been duly proved by PW10. In such conditions, it stands proved that the deceased was subjected to the harassment and cruelty to meet out the demand of car instead of the motorcycle.
95. The testimony of PW4 Phool Bano is being assaulted that the mobile phone no 9212671881 and 9289457530 were belonging to someone else due to she had no communication to demand prior to her death on the day of incident. DW2 has proved the application of mobile number 9289457530 as Ex.DW2/B (Colly.) as per which this connection was issued in the name of one Rakesh S/o Rajbir R/o D- 6/125, Gali No 6, Dayalpur, Delhi 94. Phone number-9212671881 was issued in the name of one Tasvi R/o 1050, Rajiv Gandhi Nagar, Mustafabad, Delhi-94 vide Ex.DW2/A (Colly.) In view of these documents, it is not disputed that the above said mobile connections have been issued in the names of some other persons than the user of the phone. However, it is also not disputed that a lot of mobile connections are being issued on fake IDs whereas the user are different. Even this fact has been duly admitted by DW2 that he cannot tell as to who is the user of the connections. As such, it cannot be discarded that the above said mobile connections were not being used by Phool Bano and her husband merely on the ground that the same were issued in different names.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 126/13196. The entire dispute is regarding the use of the mobile number 9289457530 belonging to one Rakesh which was being used by the husband of the PW4 as per her testimony and deceased used to talk her on this number regularly, whereas the PW4 has deposed that her husband used to not talk to the deceased regularly except asking her well being and that too in her presence and this fact suggests that the deceased used to talk someone else instead of PW4. It is further argued that PW4 has claimed that this phone number 9212671881 belonging to her and she used to talk to deceased on this number, whereas it belongs to one Tasvi and deceased also used to talk on this number also. Ld. Counsel for the accused has argued that deceased used to talk to someone else instead of PW4 and testimony of the Pw4 is not reliable as the police have not interrogated those persons to whom those phone connections allotted to prove that they were not using these numbers and in the absence of this evidence, the testimony of PW4 is not reliable.
97. The arguments of the Ld. Counsel for the accused have no force on the ground that if the mobile connection is issued in the name of someone else that also can be used by another person. Even otherwise the mobile number 9212671881 belonging to one Tasvi which was issued at the matrimonial home of the PW4 i.e. at 1050, Rajiv Gandhi Nagar, Mustafabad, Delhi which suggests that this number was issued in the name of near relative of the husband of the Pw4 and the use of this connection by the PW4 may not be FIR No. 222/10 State Vs. Shahnawaz. Page No. 127/131 ruled out. The document Ex.Dw2/A Colly has also proved this fact. The Hon'ble High Court of Delhi in Gajraj v. State CRL. A. No- 461/2008 dated 24/2/2009 that it is not unusual in India to conduct one's affairs in a most un-officious manner. Friends using the mobile phones of their friends, relatives of their relatives and inter-se even acquaintances are not unknown in India. In view of this judgment, it may not be ruled out the PW4 was using the mobile issued in the name of others.
98. PW4 has further admitted during the cross examination that the phone number 9212671881 was gifted to her by her husband and she used to talk to deceased by this number only. She has also admitted that her husband used to go outside and used to come back in late night and she used to talk to deceased for about 30-60 minutes. In such circumstances, it may not be ruled out that she used to talk to demand even more. She also used to talk to deceased by the mobile number 9289457530 of the her husband and on the day of incident also, he talked to the deceased but did not remember by which number she talked as both the mobiles were present at her house. In fact, the talks between the deceased and PW4 cannot be disputed merely if the cell locations of the mobile were found in the nearby area of the residence of the PW4 especially when the PW4 has admitted that her husband was plying gramin sewa in the same area and it may not be ruled out that he must have carrying this mobile as PW4 has deposed that she did not remember by which FIR No. 222/10 State Vs. Shahnawaz. Page No. 128/131 phone she talked to the deceased. Contrary to it, PW4 has repeatedly reiterated during cross examination that she talked to the deceased soon before her death and earlier also and there is no reason to disbelieve this testimony.
99. Ld. counsel for the accused has argued that the Pws have made improvements in their testimonies which vitiates their testimonies, but the statements of parents of deceased which are Ex.PW1/A and PW2/A recorded by the Ld. SDM are very short and pertaining to the dowry demand of a big car and consequential murder of the deceased in failure to meet out that demand. The description of the statements suggest that the Ld. SDM failed to seek clarifications to elaborate the facts disclosed by the witnesses and statements were recorded in such brief that they failed to disclose all the material facts. In such circumstances, where the description of details of facts sought by the Ld. Counsel for the accused during cross examination and its disclosure cannot be said entirely useless and beyond the scope of this case.
100. The scope of admissibility of evidence beyond Section 161 Cr. PC has been dealt with by the Hon'ble Supreme Court of India has held in Ashok Debbarma V. State of Tripura, (2014) 4 SCC 747 and has held as under :
"22. the mere fact that the appellant was named in the statement made before the police under Section 161 Cr.PC and due to this omission, evidence of PW10 and PW13 tendered in the court is not reliable, cannot FIR No. 222/10 State Vs. Shahnawaz. Page No. 129/131 be sustained. Statements made to the police during investigation were not substandard piece of evidence and statements recording u/s 161 Cr.PC cannot be used only for the purpose of contradiction and not for corroboration. In our view, if evidence tendered by witness in the witness box his credibility and reliability, that evidence cannot be rejected merely because of a particular statement made by witness before the court does not find a place in the statement recorded u/s 161 Cr.PC. Police officer recorded statements of witnesses in an incident where 15 persons lost their life, 23 houses were set ablaze and a large number of persons were injured. PW10 lost his real brother and PW13 lost his daughter as well his wife and in such a time of grief they would not be a normal state of mind to recollect who all were miscreants and their names. Witnesses may be knowing the persons by face, not their names. Therefore, the mere fact that they had not named accused persons in Section 161 Cr. PC Statements, at that time, they would not be a reason for discarding the oral evidence, if their evidence is found to be reliable and credibility.
In view of this judgment, it stands clear that credit worthy testimonies of PWs cannot be discarded just on the basis of lacking some information under Section 161 Cr.PC.
101. Similarly, in this case, the statements of PW1 and PW2 recorded by PW10 cannot be discarded just because entire information was not elaborate as already observed. Even the delay in recording the statement of PW4 by IO cannot be blamed just because the statement was recorded after some delay, whereas the other part of investigation was also conducted on the same day which proves that the testimony of PW4 cannot be discarded on FIR No. 222/10 State Vs. Shahnawaz. Page No. 130/131 account of this delay. As such, prosecution has proved the offence against accused under Section 498A IPC.
102. Keeping in view the fact and circumstances of the case, I am of the considered opinion that prosecution has successfully proved that accused committed the murder of his wife and he is guilty under Section 302 IPC. Accused used a licensee riffle of his father to commit this offence, accordingly, he is also guilty under Section 27 of Arms Act. Accused harassed the deceased for not meeting out his unlawful demand of dowry, accordingly, he is guilty under Section 498A IPC. Accused is hereby convicted for the abovesaid offences.
Announced in open court (Devender Kumar)
Today on 21.07.2016 Additional Sessions Judge-03
(NE): Karkardooma Courts, Delhi.
FIR No. 222/10 State Vs. Shahnawaz. Page No. 131/131