Delhi District Court
State vs . Mehboob Hasan on 25 January, 2016
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(SOUTHWEST)02, DWARKA COURTS : DELHI
(Session Case No. : 44/14)
Unique ID case No. 02405R0365012009
FIR No. : 239/93
U/s : 302 IPC
PS : Najafgarh
State Vs. Mehboob Hasan
State Vs. Mehboob Hasan
S/o Late Sh. Mohd. Suleman
R/o Village Malab, PS Nuh,
District : Mewat, Haryana.
Date of institution of the case01.07.2009
Date on which, judgment have been reserved11.01.2016
Date of pronouncement of judgment25.01.2016
JUDGEMENT:
In the present case on receipt of DD No. 18A dated 19.08.1993 at PS Najafgarh, SHO: PS Najafgarh alongwith his staff reached at the spot at 10 DLF, Kalyani Farm, New Delhi, where SI Joginder Singh and Ct. Bijender Singh met him and one Ms. Pushpa @ Noori was found there in dead condition and articles were also found lying scattered. At the spot, Sh. Ram Chander, husband of the deceased met the police and got recorded his statement.
In the above said statement, complainant Sh. Ram Chander stated that he SC No. 44/14 1/27 2 alongwith his wife Smt. Pushpa aged about 60 years was residing at the said place since December, 1987. He further stated that he had retired as a Principal from Laxmi Bai Nagar Senior Secondary School and the said Kalyani Farm was purchased by him fourteen years ago for residential purposes and his children used to reside separately. He stated that on that day at about 10:30 AM, he alongwith Jagbir had gone to a mechanic in his tempo no. HNB 1843 to check the car and to make the payment and after completing the work and after purchasing the milk and drinking water, he came back to his house at about 1:15 PM, where he found that a maruti van bearing no. DL 4 C 5860 was parked near the gate of his farm. He further stated that driver of the tempo stopped his vehicle in front of the said van near the gate and in the meantime, three young boys came from inside the farm and tried to bolt the gate and he thought that those boys might have come to meet his wife regarding admission etc and as such he did not raise any suspicion upon them and told them not to bolt the gate as he has to go inside. He further stated that in the meantime, driver Jagbir got down from the tempo and two of those boys asked him to push the van so that they can start it, however Jagbir straightaway went inside and he also followed him and when Jagbir entered into the room, he said that there was something wrong and when he entered into the room, he found that his wife Pushpa @ Noori was lying on the floor near the bed and her hands and feet were tied and she was in unconscious condition and a piece of cloth was also inserted in her mouth. He stated that he took out the said piece of cloth from her mouth and found that his wife was neither breathing nor her heart was functioning and he asked Jagbir to follow those boys and in the meantime, he untied the rope from the hands and feet of her wife and he also found that one golden kangan, one gold chain and gold earrings, which his wife used to wear, were missing. He also found that the telephone had been made dead by cutting its wires and articles were also lying scattered in the room and their dog was locked inside the SC No. 44/14 2/27 3 bathroom. He further stated that he tried to revive his wife, but was not successful and he also stated that he can identify those above said three boys, if they were shown to him. He stated that Jagbir informed him that he had tried to chase the said maruti van in his tempo, however they managed to escape. He further stated that those three boys had committed robbery in his house and had also committed murder of his wife and that appropriate legal action may be taken against them.
On the basis of above said statement of complainantSh. Ram Chander, a tehrir was prepared and the same was sent to the PS through Ct. Bijender Singh, for registration of the case and accordingly, the present case was registered vide FIR No.239/93 at P.S Najafgarh and the investigation of the case was assigned to the SHO, PS : Najafgarh.
During the investigation of the present case, IO inspected the spot and also called the crime team and he also got the postmortem on the dead body of deceased conducted. The above said vehicle bearing no. DL 4 C 5860 involved in this case was found abandoned near GandaNala, Kakrola Road, Dharampura, Delhi and on verification, the original number of the said vehicle was found to be DL 3 C 9979 and on inquiry, it was found that the said vehicle had been robbed from the area of PS Gopal Garh, Rajasthan and a case bearing FIR No. 33/1993 u/s 392 IPC in this regard has been registered at PS Gopal Garh, Rajasthan. During the investigation of the present case, chance prints lifted from the spot were also sent for examination to Finger Print Bureau and thereafter the present case was sent as untraced on 21.10.1993 by the SHO: PS Najafgarh.
It is stated that in the year 2006, the case bearing FIR No. 251/2006 u/s 454/380 IPC was registered at PS Bara Hindu Rao and in the said case, specimen finger prints of accused Mehboob Hasan were obtained. In the meantime, one Atul Khullar, soninlaw of deceased Pushpa Devi made a complaint that accused SC No. 44/14 3/27 4 Mehboob Hasan was involved in the murder of his motherinlaw as he has received an information that he was seen near Kalyani Farm on the day of incident.
On the basis of the above said complaint, a letter was written to the Director, Finger Print Bureau and a report was received, wherein it was stated that five chance prints were developed by Ct. Vedpal Singh (Finger Print Proficient) from the scene of crime on 19.08.1993 and on examination, it was found that the said finger prints were of either faint or smudged and were unfit for comparison. In the same case, two more prints were developed by Sh. A.K. Mishra ( FP Expert) on the rear view mirror of the aforesaid maruti van found abandoned and the said finger prints were found to be identical with the left thumb impressions of accused Mehboob Hasan, whose specimen slips were received in case FIR No. 251/2006, PS:
Bara Hindu Rao.
On the basis of the above said Finger Print Bureau's report, the present case was reopened for further investigation and during the further investigation on the basis of the aforesaid finger print result, accused Mehboob Hasan was arrested in this case on 15.01.2009.
During investigation, accused made disclosure statement regarding his involvement in this case and he also refused to participate in the TIP proceedings. It is further stated that during investigation on 06.04.2009, with the permission of concerned Ld. MM, further specimen finger prints of accused were obtained and the same were sent to FPB, Malviya Nagar, New Delhi and report from there confirmed the earlier result obtained on 31.07.2008.
In brief, case of the prosecution is that on 19.08.1993 at 10, Kalyani Farm (DLF), Najafgarh, New Delhi, within the jurisdiction of PS Najafgarh, accused Mehboob Hasan committed the murder of one Pushpa @ Noori w/o Sh. Ram Chander.SC No. 44/14 4/27 5
2. On completion of the investigation, the charge sheet was filed. After committal, the arguments on the point of charge were heard and on the basis of the material on record, charge for committing the offences punishable u/s302 IPC was framed against accused Mehboob Hasan by one of the Ld. Predecessors of this court, to which the said accused pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined twenty nine witnesses i.e PW1 to PW29.
PW1 ASI Harbhan Singh has proved copy of the FIR No. 33/1993 u/s 392/34 IPC and FIR No. 25/09 u/s 224 IPC both of PS Gopal Garh, Rajasthan as Ex. PW1/A and Ex. PW1/B respectively.
PW2 Jagbir Singh was working as a driver on the vehicle of complainant Sh. Ram Chander and he resiled from his earlier statement and does not support the case of the prosecution.
PW3 Sh. Ram Chander is the complainant in this case and the prosecution is mainly relying upon his testimony to prove his case on record.
PW4 Sh. Atul Khullar is the soninlaw of the complainant Sh. Ram Chander and the prosecution is also relying upon his testimony to prove its case on record.
PW5 Ct. Hardeep Singh has prepared the scaled site plan at the instance of Insp. R.R. Khatana and he has proved the said scaled site plan as Ex. PW5/A. PW6 Dr. Ashok Jaiswal conducted the postmortem on the dead body of deceased Smt. Pushpa and has proved his report in this regard as Ex. PW6/A. PW7 Sh. A.K. Mishra developed two chance prints from a car i.e. one SC No. 44/14 5/27 6 on the rear view mirror and second from the rear view mirror from on the driver side of the car and submitted the report at Finger Print Bureau Office.
Since this witness was resiling from his earlier statement, Ld. Addl. PP sought and was given to cross examine this witness. In his cross examination by the Ld. Addl. PP, PW7 denied the suggestion that he had developed chance prints from the car on 19.08.1993 and stated that he cannot say that the registration number of the car was DL 5 C 5860. PW7 admitted that it was a maruti van and it was not a car and stated that he cannot say if it was of light green colour.
PW8 HC Nand Kishore deposed that on 25.10.2008, he was working as I/c, VRK and on that day, on the directions of ACP Najafgarh, he handed over the police file of FIR No. 239/1993 to Insp. R.R. Khatana vide memo Ex. PW8/A. PW9 Sh. Pawan Kumar resiled from his earlier statement and does not support the case of the prosecution.
PW10 Sh. Sanjeev Kumar also resiled from his earlier statement and does not support the case of the prosecution.
PW11 Sh. Rajinder Singh has also resiled from his earlier statement and does not support the case of the prosecution.
PW12 ASI Om Prakash deposed that on 19.08.1993, he was posted as MHC (M) at PS Najafgarh and on that day, Insp. Jagmal Singh, SHO deposited two pullandas vide entry at sr. no. 2140 in register no. 19. He further stated that on 20.08.1993, HC Hukum Chand deposited three sealed pullandas and one maruti van bearing No. DL 4 C 5860 in the malkhana vide entry at sr. no. 2142. PW12 also stated that said vehicle was released to one Madan Singh as per orders of the court on 06.10.1993 and he has proved the copy of the aforesaid entries as Ex. PW12/A. PW13 Dr. Poonam Srivastava deposed that on 02.01.2009, she had supplied attested copy of postmortem report bearing no. 2433 dated 20.08.1993 of SC No. 44/14 6/27 7 deceased Pushpa Ram Chandran to Insp ( Investigation) PS: Najafgarh vide memo Ex. PW13/A and stated that attested copy supplied by her, was already Ex. PW6/A .
PW14 Sh. Amar Pal Verma, Sr. Finger Print Expert deposed that he has brought the original record i.e. File No. 1417/93, case FIR No. 239/1993 dated 19.08.1993 PS Najafgarh and stated that the report Ex. PW14/A bears his signatures at point A. He further stated that as per the report , chanceprint Mark Q1 which was developed by Mr. A.K. Mishra from the rear view mirror of maruti van was found to be identical with left thumb impression of Mehboob Hasan, whose specimen finger impression slip was received in case FIR No. 291/06 dated 16.09.2006 PS Bara Hindu Rao. PW14 also stated that a subsequent report was given by him on 09.04.2009 on the request of ACP Najafgarh and the said report was Ex. PW14/B. PW15 HC Ved Pal deposed that on 19.08.1993, he alongwith SI Vijay Pal Photographer reached PS: Najafgarh on receipt of a call from the said PS and from there they reached a farm at Nangli, where dead body of a lady aged about 60 65 years was lying and he developed certain chance prints but he did not remember the number thereof and the said chance prints were delivered with the Finger Print Bureau.
PW16 HC Satyavan deposed that on 27.01.2009, he was working as MHC (M) and on that day, Insp. R.R. Khatana took into possession the photographs of three seizure memos dated 19.08.1993 and 20.08.1993 alongwith the corresponding entries bearing Nos. 2140 & 2142 made in register No. 19 made by the then MHC (M) vide seizure memo Ex. PW16/A. He further stated that he has brought the carbon copies of the seizure memo whose photocopies were taken into possession and the photocopies thereof were Ex. PW3/A, Ex. PW16/1 and Ex. PW16/2 and photocopies of the entries taken into possession were Ex. PW16/3 and SC No. 44/14 7/27 8 Ex. PW16/4.
PW17 ASI Hukam Chand deposed that on 20.08.1993, Ct. Dharampal handed over four pullandas to him which were sealed with the seal of Civil Hospital Subzi Mandi and he took the same into possession vide memo Ex. PW17/A and deposited the same in malkhana at PS Najafgarh.
PW18 HC Vijender deposed that on 19.08.1993, he alongwith SI Joginder reached at 10, Kalyani Farm, where one Ram Chander met them and on the floor of the room, dead body of a lady was found lying and her name was revealed as Pushpa and in the meanwhile, SHO also reached at the spot. PW18 further stated that SHO made inquiries from Ram Chander and recorded his statement and prepared a tehrir and handed over the same to him for getting the FIR recorded at PS and accordingly, he went to the PS and got the FIR registered and reached back at the spot and handed over the original tehrir and copy of FIR to the SHO, who made inquiries from other persons also.
PW19 ASI Suresh Kumar deposed that on 27.01.2009, ASI Harbhan Singh from PS: Gopal Ganj, District Bharatpur, Rajasthan came to PS: Najafgarh and handed over the original tehrir to Insp. R.R. Khatana, who got the same photocopied and took into possession the same vide seizure memo Ex. PW19/A. PW20 ASI Dilbagh deposed that on 15.01.2009, he alongwith HC Vijender, Ct. Inderjeet, Ct. Rakesh and Ct. Ashok were called at PS by Insp. R.R. Khatana, who gave the description of a particular person named as Mehboob Hasan and also informed that the said person will arrive at Tis Hazari Court in vehicle bearing No. DL 3 CU 5613 and accordingly, they reached at Tis Hazari Courts and on reaching there, the said vehicle was found parked in the parking and a vigil was kept on the same. PW20 further deposed that one person came and sat in the said SC No. 44/14 8/27 9 vehicle and started the vehicle and they followed him and the said vehicle was overtaken at JPN hospital and on inquiry, the said person disclosed his name as Mehboob Hasan and they informed Insp. R.R. Khatana, who also reached in front of JPN hospital and thereafter they came back to PS Najafgarh, where accused was interrogated by Insp. R.R. Khatana at the PS and then he was arrested vide arrest memo Ex. PW20A and his personal search was conducted vide Ex. PW20/B. PW20 deposed that the disclosure statement of accused was recorded by Insp. R.R. Khatana and thereafter accused pointed out a farm house at Nangli Sakrawati but he cannot tell the number thereof and a pointing out memo Ex. PW20/C was prepared in this regard and he also pointed out the place at old Kakrola Road, Najafgarh near Ganda Nala, where the vehicle was left and single pointing out memo of both the places was prepared and no other proceedings took place in his presence. PW20 also deposed that the car was brought to the PS by a constable and the same was taken into possession vide memo Ex. PW20/D. PW21 HC Manjeet has proved the FIR No. 239/93 u/s 392/302/34 IPC registered on 19.08.1993 at PS Najafgarh as Ex. PW21/A. PW22 Sh. Himanshu Gaur deposed that on 19.08.1993, he received a phone call from his sister Vikrama @ Annu Khullar to the effect that her mother was no more and she had been murdered and accordingly he reached at Kalyani Farm, Najafgarh, where he found that the dead body of his mother had already been removed by the police to the PS Najafgarh. He further deposed that he reached at PS:
Najafgarh and found the body of his mother lying in a police gypsy and was in the process of being taken to Subzi Mandi Mortuary. PW22 also deposed that in his presence, a rope (Sutli) and white blouse of his mother which was stuffed in the mouth of his mother were taken into possession vide memo Ex. PW3/A. SC No. 44/14 9/27 10 PW23 SI Mahesh Soni deposed that on 05.11.2008, complaints filed by Sh. Atul Khullar and Sh. Ram Chander were marked to him for inquiry and he wrote a letter to Fingerprint Bureau. He further deposed that the above said complaints filed by Sh. Atul Khullar and Sh. Ram Chander were taken into possession by Insp. R.R. Khatana on 05.11.2008 vide seizure memo Ex. PW23/A. He further deposed that the complaint dated 21.06.2008 (Ex. PW14/DB) was the complaint filed by Sh. Atul Khullar and the complaint (Ex. PW3/DA) dated 28.05.2008 was the complaint of Sh. Ram Chander.
PW24 HC Rakesh accompanied PW20 ASI Dilbagh Singh to Tis Hazari on the instructions of Insp. R.R. Khatana and his testimony is almost on the similar lines as that of PW20 ASI Dilbagh Singh.
PW25 Sh. Ajay Singh Shekhawat, Ld. MM deposed that on 16.01.2009, he was posted as MM and was working as Link MM to the court of Sh. N.K. Laka, Ld. MM and on that day, an application for conducting TIP of accused Mehboob Hasan (Ex. PW25/A) was moved by Insp. R.R. Khatana, which was marked to him vide endorsement Ex. PW25/B of Sh. N.K. Laka, Ld. MM and he fixed the date 20.01.2009 for conducting of TIP. He further deposed that on 20.01.2009, he went to Central Jail No. 7, where accused was produced and was identified by Sh. Ram Phal Sharma, Asstt. Superintendent Jail No. 7 vide statement Ex. PW25/C and despite making the accused understand that his refusal to take part in TIP can go against him during the trial and an adverse inference can be drawn, accused vide statement Ex.
PW25/D refused to take part in TIP. PW25 also deposed that the proceedings conducted by him were Ex. PW25/E and the certificate of recording of proceedings correctly was Ex. PW25/F. PW25 also deposed that copy of the proceedings was directed to be supplied to the IO Insp. R.R. Khatana on application Ex. PW25/G. SC No. 44/14 10/27 11 PW26 Ct. Dharam Pal deposed that on 19.08.1993, he shifted the dead body of Pushpa w/o Sh. Ram Chander from 10, Kalyani Farm to the mortuary at Subzi Mandi and on 20.08.1993, postmortem on the dead body was conducted and doctor handed over to him the report of postmortem alongwith four pullandas in sealed condition and he handed over the same to HC Hukam Chand DO at the PS vide memo Ex. PW17/A. PW27 Insp. Joginder Singh Joon deposed that on 19.08.1993, on receipt of DD No. 17A, he alongwith Ct. Vijender reached 10, Kalyani Farm, Najafgarh, where Sh. Ram Chander met him at the spot and one dead body was found lying in a bed room inside the house in the farm house and in the meanwhile, SHO Insp. Jagmal Singh also reached at the spot and thereafter the investigation were carried out by him. He further stated that Insp. Jagmal Singh took into possession the blood stained blouse cloth and one Sutli vide memo Ex. PW3/A and thereafter he accompanied the IO to Kakrola Mor, near Nala, where one maruti van bearing no. DL 4 C 5860 of light green colour, was found standing by the side of Nala and the same was taken into possession by the IO in his presence vide seizure memo Ex. PW16/1.
PW28 HC Sanjeev Kumar deposed that on 06.04.2009 on the directions of the court, he took fingerprints of accused Mehboob Hasan and handed over the same to Insp. R.R. Khatana and the copy of the fingerprints taken by him was Ex. PW28/A. PW29 Insp. R.R. Khatana is IO of the case and he deposed that on 16.07.2008, one old complaint filed by Sh. Atul Khullar (soninlaw of deceased Pushpa @ Noori) and Sh. Ram Chander (husband of deceased Pushpa @ Noori) against accused Mehboob Hasan was handed over to him for investigation and the FIR of the present case was already registered in the year 1993 and since no clue SC No. 44/14 11/27 12 about the assailant could be found during the investigation, the case was closed as untraced. He further deposed that Sh.Atul Khullar and Sh. Ram Chander had been informed by somebody that deceased Pushpa had been murdered by accused Mehboob Hasan and he had been arrested in case FIR No. 251/06 PS : Bara Hindu Rao and pursuant to the said complaint of Sh. Atul Khullar and Sh. Ram Chander, the investigations of the present case were reopened and since he did not have the file pertaining to the present case, he sought permission for reconstruction of the whole file, which was granted to him by the DCP (SouthWest District) and thereafter he obtained photocopy of all available records in respect of this case from VRK on 25.10.2008 vide memo Ex. PW8/A. PW29 deposed that SHO PS :
Najafgarh had called for chance fingerprint report in respect of the FIR No. 239/1993 (pertaining to present case) and the specimen fingerprint in respect of FIR No. 251/06 PS : Bara Hindu Rao. PW29 deposed that the Fingerprint Bureau, Malviya Nagar sent the fingerprint report in respect of both the aforesaid cases to the SHO and the chance fingerprint in respect of the thumb lifted from maruti van used in the commission of murder of deceased Pushpa @ Noori in the present case matched with the thumb impression of accused Mehboob Hasan taken during the investigation of FIR No. 251/06 and on the basis of that report, he directed the investigation of this case towards accused Mehboob Hasan. PW29 deposed that he examined the IO SI Lajja Ram, who had investigated the case FIR No. 251/06 in which the specimen fingerprints of accused Mehboob Hasan were taken and he also summoned the complainant Sh. Ram Chander and his servant Jagbir and they took him to the place of incident on the same day and pointed out the place where deceased Pushpa was murdered and the site plan Ex. PW29/A was prepared. He also obtained the certified copy of the postmortem report in respect of deceased Pushpa from mortuary near Old Subzi Mandi vide memo Ex. PW13/A and tried to search for accused Mehboob SC No. 44/14 12/27 13 Hasan at his house in Bara Hindu Rao area, but he could not be found there. PW29 deposed that thereafter he got information that accused Mehboob Hasan was to appear before a court in Tis Hazari on 15.01.2009 and he sent a team under the leadership of ASI Dilbagh Singh to apprehend Mehboob Hasan in Tis Hazari Court on that day as he himself had to go for evidence in Patiala House Courts. PW29 further deposed that the team led by ASI Dilbagh Singh apprehended Mehboob Hasan in front of LNJP hospital and intimated him about the same and he also reached the spot in front of LNJP hospital and they brought accused Mehboob Hasan to the PS, where he arrested accused vide arrest memo Ex. PW20/A and his personal search was conducted vide memo Ex. PW20/B and the accused made the disclosure statement, which was Ex. PW29/B. PW29 deposed that accused Mehboob Hasan had pointed out place of occurrence vide pointing out memo Ex. PW20/C and car bearing No. DL 3 CU 5613 in which accused had come, was also seized vide memo Ex. PW20/D. He further deposed that accused was kept in muffled face and on the next day, he was produced in the court and on his application (Ex. PW29/C) for conducting the TIP, the TIP was fixed for 20.01.2009. PW29 deposed that on 20.01.2009, accused refused to participate in TIP proceedings vide his application Ex.
PW29/D. He further deposed that on 21.01.2009, he took two days PC remand of accused and on 23.01.2009 Jagbir and complainant Sh. Ram Chander had identified the accused in the PS. PW29 further deposed that on 27.01.2009, ASI Harbhan of Rajasthan police came to him and he handed over to him the copy of original tehrir of case FIR No. 33/1993 of PS Gopal Garh, Rajasthan which he seized vide memo Ex. PW19/A. PW29 deposed that during the investigation, he got prepared scaled site plan, recorded the statements of witnesses and also obtained permission for NARCO analysis test for the accused but the said test was not conducted due to huge pendency at FSL Banglore. PW29 also deposed that after completing the SC No. 44/14 13/27 14 investigation, the challan was prepared and filed in the court.
4. After recording of prosecution evidence, statement of accused Mehboob Hasan u/s 313 Cr. P. C was recorded by Ld. Predecessor of this court, wherein all the incriminating evidence was put to the accused, which he denied as incorrect. Accused claimed to be innocent and stated that he has been falsely implicated in this case by his brother in order to usurp the properties. He also stated that he wanted to lead evidence in his defence.
5. In the DE, accused Mehboob Hasan has examined himself as DW9 and apart from himself, he has also examined eight other witnesses i.e. DW1 to DW8.
6. I have heard the arguments put forward by Ld. Addl. PP and Ld. defence counsel for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced on behalf of the prosecution in support of its case as well as by the accused in his defence.
7. It has been submitted by Ld. Addl. PP that in view of the evidence adduced on record, the prosecution has been successful in proving on record the guilt of the accused, beyond the reasonable doubt. It is further submitted that prosecution has been successful in proving on record that on 19.08.1993 at 10, Kalyani Farm (DLF), Najafgarh, New Delhi, within the jurisdiction of PS: Najafgarh, accused Mehboob Hasan committed the murder of one Pushpa @ Noori w/o Sh. Ram Chander. Ld.Addl. PP also submitted that in view of the evidence and material brought on record by the prosecution, the guilt of the accused have been proved beyond the reasonable doubts and he prayed that accused Mehboob Hasan may be SC No. 44/14 14/27 15 convicted of the charged offence.
On the other hand, it has been submitted by the Ld. defence counsel that the prosecution has miserably failed to prove the guilt of the accused beyond the reasonable doubts. It is further submitted that accused is innocent and has been falsely implicated in this case by his brother to usurp the properties worth crores of rupees. It is submitted that accused has been implicated in this old untraced case pertaining to the year 1993 in pursuance of conspiracy hatched by his brother Mehmood Hasan alongwith his next door neighbour cum agent namely Daljeet Singh, whereby they roped Atul Khullar (soninlaw of deceased) and IO Insp. R.R. Khatana for extraneous consideration to falsely implicate the accused in a murder case to settle the personal score with him, although accused has nothing to do with the offence alleged in the instant case. It is further submitted that evidence brought on record by the prosecution was selfcontradictory and there were various loopholes in the testimonies of various prosecution witnesses, which entitles the accused to the benefit of doubt. It is submitted that apart from the complainant i.e. PW3 Sh. Ram Chander, all other material public witnesses have turned hostile and do not support the case of the prosecution and as far as the testimony of PW3 Sh. Ram Chander is concerned, his testimony is not trustworthy as there were material contradictions/ discrepancies in his testimony, which were fatal to the case of the prosecution. It is further submitted that the prosecution is also relying upon the chance prints, however from naked eyeexamination of the said chance prints, one can easily come to the conclusion that there are no characteristics which are visible to make any comparison as there are apparent superimposition and such superimposition lead to crossing of ridges and the said cross ridges would mean that the characteristics are not visible for any comparison. It is submitted that the pattern as found in the chance prints are extremely unclear for any examination and even if all efforts are put in, one would SC No. 44/14 15/27 16 observe cross cutting of ridges due to superimposition and highlighted area by the prosecution shows entirely different pattern. It is further submitted that expert witness i.e. DW8 Sh. Deepak Jain examined by the accused in his defence has also come to a conclusive finding that the chance prints, which were taken with the permission of the court, by photography from record of the court, were unfit for comparison. Ld. defence counsel also submitted that prosecution has miserably failed to bring home the guilt against the accused and he prayed that accused Mehboob Hasan may be acquitted of the charged offence.
In support of his contentions, Ld. Defence counsel has relied upon the judgment dated 11.12.2012 passed by the Hon'ble Supreme Court of India in Crl. Appeal No. 143/2007 in the case titled as, Oma @ Om Prakash & Ors. Vs. State of Tamil Nadu.
8. I have carefully considered the submissions made by Ld. Addl. PP for the State and Ld. defence counsel for the accused and have carefully gone through the record of the case. I have carefully considered the evidence adduced on behalf of the prosecution in support of its case and by the accused in his defence. I have also carefully perused the case law relied upon by the Ld. defence counsel.
9. In the present case, accusedMehboob Hasan has been charged for committing the offence punishable u/s 302 IPC by one of the Ld. Predecessors of this court.
In brief, case of the prosecution is that on 19.08.1993 at 10, Kalyani Farm (DLF), Najafgarh, New Delhi, within the jurisdiction of PS: Najafgarh, accused Mehboob Hasan committed the murder of one Pushpa @ Noori w/o Sh. Ram Chander.
SC No. 44/14 16/27 1710. In the instant case, the material public witnesses examined by the prosecution in support of its case are PW2 Jagbir, PW3 Ram Chander. PW4. Atul Khullar, PW9 Pawan Kumar, PW10 Sanjeev Kumar and PW11 Rajinder Singh.
Out of the above said material public witnesses, PW2 Jagbir resiled from his earlier statement and does not support the case of the prosecution on certain material points and was cross examined by the Ld. Addl. PP for the State.
In his cross examination by the Ld. Addl. PP, PW2 Jagbir stated that he had gone to the police station on 23.01.2009 and a fat person having a beard was present in the PS, however he denied the suggestion that he identified the person present at the PS to be the same person, who had met him outside the gate of Kalyani Farm on 19.08.1993 and the person who had asked to push the maruti van. PW2 further denied the suggestion that while he went after the persons in the maruti van in his tempo, he distinctly saw the person present at PS. PW2 volunteered to state that police had asked him as to whether the fat person with the beard was the same person or not, but he told the police that he was not the same person. PW2 admitted that the accused present in the court was the same person, to whom he saw in the PS. PW9 Sh. Pawan Kumar also resiled from his earlier statement and does not support the case of the prosecution and was cross examined by the Ld. Addl. PP for the State.
In his cross examination by the Ld. Addl. PP, PW9 admitted that the vehicle belonged to Rajender Pehlwan and was stolen near village Peepal Khera and Rajender told him that the vehicle had been traced at Najafgarh. PW9 further stated that he had not told the police that one of the persons was speaking Mewati language and volunteered to state that none of those two persons talked in his presence. PW9 stated that he had told the police that one of them was 30 to 32 years in age while the SC No. 44/14 17/27 18 other was 20 to 26 years in age and he denied the suggestion that the other person was aged 20 to 22 years. PW9 stated that he cannot identify the person who was aged 30 to 32 at that time. During his cross examination by the Ld. Addl. PP, accused has been shown to this witness but the witness denied that the accused was the same person aged 30 to 32 years or having a beard. PW9 also denied the suggestion that he was unable to identify the said person as the matter was 17 years old and PW9 volunteered to state that since an incident had happened in his presence and with him, he would have definitely identified the person, if the real person was shown to him.
PW10 Sh. Sanjeev Kumar has resiled from his earlier statement and does not support the case of the prosecution and was cross examined by Ld. Addl. PP.
In his cross examination by the Ld. Addl. PP, PW10 admitted that he was asked to stop the vehicle at gunpoint and that the incident took place at about 2:00 AM near village Peepal Khera. PW10 denied the suggestion that one of the said persons was aged 30 to 32 years or was of wheatish complexion or had little beard. He further stated that he was unable to identify the person who was wearing cream colour even if shown to him.
During his cross examination, Ld. Addl. PP pointed out towards accused present in the court but this witness stated that accused was not one of the passengers. PW10 denied the suggestion that he was not identifying the person deliberately.
PW11 Sh. Rajender Singh has also resiled from his earlier statement and does not support the case of the prosecution and was cross examined by Ld. Addl. PP.
SC No. 44/14 18/27 19In his cross examination by the Ld. Addl. PP, PW11 denied the suggestion that he was disturbed when the vehicle did not reach back. He further denied the suggestion that he visited Gali No. 11, Sultanpuri or came to know that no such person resided there and volunteered to state that on receipt of phone call, he immediately rushed to Rajasthan. PW11 denied that Sanjeev came to Ajronda to call him or that he accompanied Sanjeev to Rajasthan. He further denied that Najafgarh police contacted him 15 to 16 days after the robbery and stated that he cannot say that on the fake number plate the number depicted was DL 4C 5860. PW11 stated that he can identify the persons, who had come to book the vehicle.
Ld. Addl. PP pointed out towards accused Mehboob Hasan and asked this witness whether he was one of the persons but the witness stated that he was not one of those persons. PW11 also denied the suggestion that he was not identifying the accused deliberately.
11. PW3 Sh. Ram Chander is the complainant in this case and he deposed that on 19.08.1993, he alongwith his employee Jagbir left his house at 10:30 AM in a tempo to the market to purchase milk and other house hold items and to check from the mechanic about the repair of the vehicle which was given to the mechanic and to make payment towards the said repairs. He further deposed that when they reached back at 10, Kalyani Farm, Najafgarh at 1:30 PM, a van of colour like that of 'Ghiya' was seen parked in front of the gate of the farm house where he was residing at that time and the number of the van was DL 4C 5860. PW3 deposed that Jagbir parked the tempo near the gate and he saw that three boys came out of the farm house and one out of them started bolting the gate from the outside and they said that since they had arrived, the gate should not be bolted from outside as they had to go inside. He further deposed that he did not raise any suspicion on such activities of the said three SC No. 44/14 19/27 20 boys as boys used to come to his house to get their problems regarding education solved. PW3 deposed that he unbolted the door and he alongwith Jagbir entered the farm house and Jagbir told that there was something amiss in the house and thereafter he placed the milk and other articles and also entered the room and saw his wife was lying on the floor by the side of the bed while her hands and legs were tied with a white thread ( dori ) and her mouth was gagged with a white cloth and he immediately directed Jagbir to chase the said three boys and removed the cloth and untied the dori and made efforts to revive his wife but despite hectic efforts, she could not be revived. PW3 further deposed that he noticed that the goods in the room were lying in a scattered condition and that the Karas which his wife used to wear were missing and he also found that the Mangalsutra alongwith a gold chain which she used to wear and also earrings were missing. He also found that from the almirah, a set meant for the wife of his younger son was missing. PW3 deposed that he found that the pet dog was locked in the bathroom and Jagbir came back and told him that he chased the three persons till the city but thereafter they could not be located. PW3 further deposed that one of the boys was having very thin built and was of height of about 5 ft 6 inches and was having a short beard, the second boy was of heavy built and was wearing a half sleeves shirt and her hairs were short and his height was also about 5 ft 6 inches, while third boy was thin and his height was about 5 ft 3 inches and 'Uska Moohn Pichka Hua Tha'. PW3 deposed that before reaching back at the farm house, Jagbir had also informed about the incident and as such crime branch officials also reached the spot and his statement was recorded by the police and police also took into possession the blouse piece and the rope ( dori ) vide memo Ex. PW3/A. He further deposed that after about 1015 days, SHO Jagpal Singh had told him that the case was not traceable and closed the case. PW3 deposed that one day while he was present in his farm house, a person came to his SC No. 44/14 20/27 21 house and told that the person, who had committed murder of his wife, was present at Bada Hindu Rao, Subzi Mandi, Delhi and he told those facts to his friends and his soninlaw and also gave information to this effect at PS. He further deposed that he came to know that police went to Bada Hindu Rao and found that accused Mehboob Hasan was in custody and the police matched the fingerprints of Mehboob Hasan with the fingerprints lifted by the police from the van which they already found and accused Mehboob Hasan was arrested by the police but not in his presence and for the purpose of identification of Mehboob Hasan, he and Jagbir were called at Tihar Jail. PW3 further deposed that accused refused to take part in TIP but after the TIP proceedings were over, he made a statement before the police that accused was the person who had murdered his wife as he had seen this person while coming out of the farm house with two other boys.
In reply to the leading question by the Ld. Addl. PP, PW3 admitted that on 19.08.1993 some persons were to come to his house for handing over money. He further admitted that the three boys asked Jagbir to push their vehicle but Jagbir ignored and PW3 also identified accused present in the court.
PW 4 Sh. Atul Khullar deposed that in the year 2006, his fatherinlaw told him on telephone that the murderer was under arrest at Bada Hindu Rao and he requested SHO Najafgarh and DCP (SouthWest) to get the fingerprints of murderer matched with the fingerprint from maruti van and the police handed over him the report, whereby the fingerprints matched. PW4 also stated that he had not taken part in any other investigation and he had nothing more to say.
12. In the present case, as far as the testimonies of PW3 Sh. Ram Chander & PW4 Sh. Atul Khullar are concerned, their testimonies do not inspire confidence as there are material contradictions / discrepancies and improvements in their SC No. 44/14 21/27 22 testimonies and these contradictions/discrepancies and improvements are fatal to the case of the prosecution. It is pertinent to note here that Ex. PW3/DA is the complaint of PW Ram Chander , on the basis of which the present case was reopened for further investigation, however, in his cross examination, PW3 Ram Chander stated that whatever was written in Ex. PW3/DA was incorrect and he had seen the said Ex. PW3/DA for the first time in the court and nobody has shown him the photograph of Mehboob Hasan and it has been wrongly mentioned in Ex. PW3/DA that somebody has shown the photographs of Mehboob Hasan. PW3 further stated that his soninlaw had not obtained his signature on any document or letter in connection with this case and he was surprised to see his signatures on Ex. PW3/DA, when it was produced in front of him. PW3 further stated that it has been wrongly mentioned in complaint Ex.PW3/DA that they kept watch on the movement of accused and were assured he was the person,who committed the crime.
The abovesaid deposition of PW3 qua Ex. PW3/DA has been contradicted by PW 4 Sh. Atul Khullar, who stated that he got signatures of his fatherinlaw on Ex.PW3/DA at his house. PW4 further stated that complaint Ex. PW3/DA was drafted in consultation with his fatherinlaw and averments mentioned in the same were correct and were not manipulated and the said complaint was read by his father in law before signing of the same.
PW3 further stated that it was matter of chance that he saw the number plate and he remember the same of the van, however this averment regarding the remembering of the number of van by PW3 does not inspire confidence as PW3 also stated, he do not remember the number of his Fiat vehicle which was given to the mechanic for repair. He further stated that he can not tell the number of the tempo which was being driven by Jagbir on the day of the incident. PW3 also stated that he do not remember the number of the car of his soninlaw.
SC No. 44/14 22/27 23In these circumstances, it is highly improbable that PW3 could have remembered the registration of the van in question after almost 17 years, although he has seen it only once especially in view of the fact he was not remembering the number of his own fiat vehicle or the number of car of his soninlaw or of the tempo of Jabir, who was employed with him, although he might have seen the number plates of these vehicles on numerous occasions. Further, in the present case, the incident took place in the year 1993 and the case was filed as untraced and thereafter the present case has been reopened after almost 1415 years on the basis of the complaint of PW3, who stated that some person came to his house and informed him in the year 20082009 that murderer of his wife was at Bara Hindu Rao, Sabjimandi. PW3 also stated that he had not pursued the matter with the police till the date, the said person came to his house, however the said factum regarding giving of the abovesaid information to PW3 by the aforesaid anonymous person is again doubtful as PW3 stated that he was not in a position to identify the said person even if he is brought in front of him and he also stated that he do not know from where he got his address. Even otherwise, PW3 has also specifically stated that he has not seen the accused or anybody else murdering his wife and he can not say how many persons came to his house between 12:30 p.m and 1:30 p.m. Apart from this, PW3 also stated that he will not be in a position to identify the other two boys seen by him at the farm house on the day of incident. PW3 further stated that the clothes of the said three persons, when he saw them on 19.08.1993 were intact and were not torn and there was no blood stain on the same.
Further, the averments of PW3 regarding the receipt of the information from an anonymous person has also not been corroborated by PW4 Sh. Atul Khullar, who stated that his fatherinlaw had received the information on telephone from somebody about the murderer being in custody of Bara Hindurao and his SC No. 44/14 23/27 24 father inlaw had also told him of the name of the murderer as Mehbob Hasan, whereas on the other hand, PW3 Sh. Ram Chander, who is fatherinlaw of PW4, stated that the person who informed him that murderer was at Bara Hindurao House came to his house and he has not stated anything about the receipt of the said information on telephone as is being stated by the PW4. Further, PW4 stated that complaint dated 01.12.2007 was Ex. PW4/DA and complaint dated 21.6.2008 was Ex. PW4/DB and both bears his signature at pointA and lateron in his testimony, PW4 stated that he do not know about the contents of Ex. PW4/DA as he simply signed the same at the asking of Mr. Bhasin and that all the complaints were drafted by Mr. Bhasin and he had signed the same even without reading their contents and he has no personal knowledge about the same . He further stated that his answer was the same with respect to all the correspondence in his name with each and every authority . PW4 also stated that he was shocked and surprised to read the contents of the complaints when he was confronted from the same during cross examination . Even otherwise, the testimony of PW4 Atul Khullar is not of much use to the prosecution as he was admittedly not present at the spot at the time of incident and has not seen any person coming out from the Kalyani Farm on the said date. In fact, PW4 have specifically stated in his crossexamination that on the day of incident, he was present at Karol Bagh and he reached the house of his fatherinlaw at about 2:00 or 2:30 p.m alongwith his brother Sh. Deepak Thakur and his wife . He also stated that he has not taken part in the investigation in this case and that no investigation was carried out by the police in his presence.
Further, as far as testimony of PW3 Sh. Ram Chander is concerned his testimony also does not inspire confidence as his testimony is not corroborated by PW2 Jagbir Singh, who was admittedly accompanying him at the time of incident. In fact, PW2 Jagbir Singh specifically stated that he had not identified the person SC No. 44/14 24/27 25 at PS: i.e accused to be the same , who had met him outside the gate of Kalyani Farm on 19.8.1993 and the person who had asked to push the Maruti Van. Further , PW2 Jagbir Singh also stated that police had asked him as to whether the fat person with the beard i.e accused was the same person or not but he told the police that he was not the same. PW2 also admitted in his testimony that accused present in the court was the same to whom he saw in the police station and he was not the same person, whom he had seen outside the gate at Kalyani Farm on the day of incident.
13. In the instant case, the prosecution is also relying upon the chance prints of the accused allegedly recovered from the Van. In this regard, PW14 Sh.Amar Pal Verma,Sr. Finger Print Expert stated that chanceprint MarkQ1, which was developed by Mr. A.K.Mishra from the rearview mirror of Maruti Van was found to be identical with left thumb impression of Mehbood Hasan, whereas on the other hand, it is being submitted on behalf of the accused that from naked eye examination of the said chance prints, one can easily come to the conclusion that there are no characteristics which are visible to make any comparison as there are apparent superimposition and such superimposition lead to crossing of ridges and the said cross ridges would mean that the characteristics are not visible for any comparison. It is also submitted that the pattern as found in the chance prints were extremely unclear for any examination and even if all efforts are put in, one would observe cross cutting of ridges due to superimposition and highlighted area by the prosecution shows entirely different pattern. I find considerable force in the said submissions made on behalf of the accused and even the expert witness i.e PW8 Deepak Jain examined by the accused in his defence has also come to a conclusive finding that the chance prints, which were taken with the permission of the court, by SC No. 44/14 25/27 26 photography from record of the court, were unfit for comparison. Further, Sr. Finger Print Expert PW14 Sh. Amar Pal Verma examined by the prosecution in support of its case has also also stated that Mark Q1 was not compared with the record of the finger prints available with the Department and in fact no record of fingerprint of Mehboob Hasan was available with the department. PW14 further stated that the specimen fingerprint impression were received in case FIR No. 251/06 PS: Bara Hindu Rao and he also stated that he can not say whether the fingerprints taken in the FIR No. 251/06 PS: Bara Hindu Rao were taken at the PS or with the permission of the court, however on the specimen receipt, it was not mentioned that same were taken with the permission of the court. PW14 also stated that there was no record in the Bureau regarding fingerprints of the Mehboob Hasan and no enlargement was done at the time of giving report Ex. PW14/B.It is pertinent to note here that the report of PW14 ( Sr. Finger Print Expert) is based upon the comparison of specimen finger prints with chance prints allegedly lifted by PW7 Sh. A.K.Mishra, however the lifting of the said chance prints from the van itself has become doubtful in view of the fact that PW7 Sh. A.K.Mishra himself resiled from his earlier statement and was crossexamined by the Ld. Addl.PP for the State and in his cross - examination by the Ld. Addl. PP, PW7 Sh. A.K.Mishra denied the suggestion that he developed the chance prints from the car on 19.8.1993 and he also stated that he can not say that the registration umber of the car was DL 5C 5860. Even otherwise, the abovesaid sole fact regarding the comparison of chance prints in itself is not sufficient to prove the guilt of the accused on record beyond reasonable doubt as the said factum is also not corroborated by the testimonies of material public witnesses i.e PW2 Jabir Singh, PW9 Pawan Kumar, PW10 Sanjeev Kumar & PW11 Rajinder Singh, all of whom resiled from their earlier statements and do not support the case of the prosecution.
SC No. 44/14 26/27 2714. Thus, in view of the above discussion & observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused on record, beyond the reasonable doubts. Accordingly, I acquit the accusedMehboob Hasan of the charged offence, giving him the benefit of doubt.
Personal bond and bail bond of the accused Mehboob Hasan are cancelled. His surety is discharged.
File be consigned to Record Room.
(Announced in the open ) (Paramjit Singh)
(court on 25.01.2016) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
SC No. 44/14 27/27
28
FIR No.239/93
P.S. Najafgarh
25.1.2016
Present: Sh. Pramod Kumar, Addl. PP for State.
Accused - Mehboob Hasan is present on bail with his counsel Sh.
Osama Suhail.
Vide separate judgment, announced in the open court, accused Mehboob Hasan have been acquitted of the charged offence .
PB & SB of accused Mehboob Hasan are cancelled. His surety is discharged.
Further, in accordance with the provisions of Section 437A Cr.PC, the acquitted accusedMehboob Hasan have been directed to furnish fresh PB & SB in the sum of Rs.20,000/each and accordingly, the said PB & SB have been furnished on behalf of the accused and the same are considered and are accepted till 27.01.2016.
Put up for F.P on 27.01.2016, as requested.
(Announced in the open ) (Paramjit Singh)
(court on 25.1.2016) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
25.1.2016
SC No. 44/14 28/27
29
FIR No. 239/93
PS : Najafgarh
27.01.2016
Present: Sh. Pramod Kumar, Addl. PP for the State.
Accused Mehboob Hasan in person with Sh. Rajni Kant, proxy counsel for the defence counsel Sh. Osama Suhail.
In view of earlier order dated 25.01.2016 and in accordance with the provisions of Section 437A Cr. PC, the acquitted accused Mehboob Hasan has furnished the fresh PB & SB in the sum of Rs.20,000/each and the same are considered and are accepted for six months in terms of provisions of Section 437A Cr. PC.
File be consigned to Record Room.
(Announced in the open) (Paramjit Singh)
(Court on 27.01.2016) ASJ02 (South West),
Dwarka Courts, Delhi
27.01.2016
SC No. 44/14 29/27