Delhi District Court
The State vs Firoz on 25 April, 2017
IN THE COURT OF SHRI SANJEEV KUMAR, ADDITIONAL SESSIONS JUDGE-5,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
SESSION CASE NO. 2353/2016
OLD SESSION CASE NO. 138/2016
IN THE MATTER OF:
The State
VERSUS
Firoz
S/o Sh. Akbar Khan
R/o C-148, Gali No.10,
Kacchi Colony, Madanpur Khadar, New Delhi
Permanent Address:
Village- Madanpur, PS - Momdabad,
District- Farukkhabad, (UP)
Date of institution : 08.08.2011
Date of arguments : 29.11.2016
Date of order : 25.04.2017
JUDGMENT
1. Case of prosecution is that on 07.04.2011, after receiving information on telephone, Inspector Surender Singh alongwith Assistant Sub Inspector Ram Kumar and Head Constable Kedar Lal reached at spot i.e., playing ground, near Samosa Chowk where Sub Inspector Sherpal alongwith Constable Dharmender and Constable Vikas found there and a dead body of a person aged about 30 years was found SC No. 2353/2016 State v. Firoz 1 alongwith the wall of the gas plant. On enquiry, the name of deceased was found/ascertained as Rafedin S/o Shri Mohd. Chaubey R/o C-97/3, Kachchi Colony, Badarpur Khadar, Delhi. On the spot, Sharif, nephew of the deceased, was also found and his statement was recorded and rukka was prepared by Inspector Surender Singh. Inspector Surender Singh sent the rukka to Police Station Jaitpur through Head Constable Kedar Lal and First Information Report (FIR) no. 86/2011 was registered at Police Station Jaitpur under Section 302 of the Indian Penal Code, 1860 (in short 'IPC') on 07.04.2011. Illaka magistrate and senior officers were intimated through special messenger. Inspector Surender Singh conducted investigation. The spot was got inspected by crime team and photographes of spot were taken. Inspector Surender Singh prepared the site plan at the instance of complainant Sharif. The shirt which was found lying upon the dead body of Rafedin, was sealed with the seal of S.S.Y. and taken into possession. On search of said dead body, one purse was found in the back pocket of wearing pant and said purse was containing Rs. 101, one small diary, some visiting cards and a pencil. One mobile make Nokia was also found in the front pocket of the wearing pant of the deceased. The investigating officer had sealed the phone and the purse in a cloth pullanda with seal of 'SSY' and seized the same through the seizure memo.
2. The dead body was sent in government vehicle through constable Vikas to AIIMS mortuary for postmortem. The case property was deposited in malkhana. The dead body was identified on 08.04.2011 by family members at AIIMS mortuary and thereafter postmortem on the dead body was done by doctor and dead body was handed over to the legal heirs. Accused firoz was apprehended at the instance of complainant and on his cursory search two mobille phones (one make of G.Five IMEI number 353182048655040 having sim number 9891107696 and other one make of Vodaphone IMEI number 353161021843260 having sim number 9540227214) and one extra sim card of Idea Company were recovered from the right pocket of his wearing jeans pant and same were seized and sealed and taken into possession.
SC No. 2353/2016 State v. Firoz 2Accused Firoz was arrested.
3. After investigation, police report under section 173 of the Code of Criminal Procedure, 1973 (in short "Code") was filed against the accused Firoz and Afshana for the offence punishable under Sections 302 IPC before the learned Metropolitan Magistrate, South-East District, Saket Court, New Delhi. The learned Metropolitan Magistrate committed the case to the Court of Session vide order dated 30.07.2011 because offence under section 302 IPC was triable exclusively by the Court of Session.
4. Vide order dated 20.04.2012 of my learned predecessor, this case was transferred to the Juvenile Justice Board for determination of age of the accused persons. Vide order dated 21.06.2012, learned Juvenile Justice Board declared Afshana as a juvenile and vide order dated 04.07.2012, accused Firoz was declared not to be a juvenile and therefore, file was sent back to this court for further proceedings in respect of accused Firoz.
5. Charge was framed against the accused for the offence punishable under section 302 read with Section 34 IPC vide order dated 19.08.2011.
6. The prosecution examined twenty seven witnesses, namely, Sh. Nasir (PW-
1), Sh. Dildar Ahmed (PW-2), Sh. Salil-Ur-Rehman (PW-3), Sh. Jalaludin (PW-4), Sub Inspector Mahesh Kumar (PW-5), Dr. Karthik Krishna (PW-6), Head Constable Harish Chander (PW-7), Sh. Surender Kumar (PW-8), Sh. Sharif Ahmed (PW-9), Sh. Tarun Khurana (PW-10), Sub Inspector Jitender Kumar (PW-11), Constable Dinesh (PW-12), Constable Revati Kant (PW-13), Constable Sonia Rana (PW-14), Head Constable Kedar Lal (PW-15), Dr. Sudipta Ranjan Singh (PW-16), Ms. Shabnam (PW-17), Head Constable Sukhpal Singh (PW-18), Mohd. Sayeed (PW-19), Sh. Hawaldar Khan (PW-
20), Retired Sub Inspector Sher Pal Singh (PW-21), Constable Vikas (PW-22), Dr. SC No. 2353/2016 State v. Firoz 3 Hari Prasad (PW-23), Head Constable Rajveer Singh (PW-24), Ms. Poonam Sharma (PW-25), Inspector Surender Singh (PW-26) and Ms. Kavita Goyal (PW-27). The statement of the accused Firoz was recorded under section 313 of the Code on 10.03.2016. Accused stood by his denial in his said statement. The accused examined one witness Md. Shafique (DW-1) in his defence.
7. Shri Nischal Singh, learned Additional Public Prosecutor has submitted that prosecution has examined twenty seven witnesses and most of the witnesses including last seen witness Shafique have fully supported the case of prosecution. The motive has established on the basis of deposition of PW-2 Dildar Ahmed and P-17 Ms. Shabnam. PW-9 Sharif Ahmed is material witness/last seen witness and "last seen theory" has been proved. All the three injury which have been proved by PW-16 Dr. Kartik Krishna and PW-23 Dr. Hari Prasad support the case of prosecution that death of Rafedin was caused due to strangulation. There is no reasonable doubt in the evidence of prosecution witnesses and, therefore, accused may be convicted of the charge.
8. On the other hand, Shri Abhishek Singh, learned counsel appearing for the accused Firoz has submitted that there is no direct evidence and case is based on circumstantial evidence and last seen witness. PW-9 and PW-19 are the last seen witness but PW-19 has turned hostile. In view of deposition of PW-9 and statement of PW-19 under section 161 of the Code, the case of prosecution are mutually destructive. The dead body of the deceased was found in open place and was not hidden. On the aspect of motive, none of prosecution witnesses has supported case of prosecution and motive has not been proved. As per visra report, deceased was in heavily drunken condition but it has not been proved how he taken the drink. None of the prosecution witnesses deposed about the alleged illicit relationship of the wife of deceased and accused Firoz. There was no insect bite on body of the deceased and blood was oozing out from the body of deceased. Call detail record (CDR) of mobile SC No. 2353/2016 State v. Firoz 4 phone of deceased Rafedin has not been brought on record. There were press release of the police in this case and there is serious lacunae in the case of prosecution as eye-witnesses Sakil and Mukarram who were mentioned in the press release, have not been examined. The said press release was admitted by the investigating officer (PW-26). It has come in the examination-in-chief of PW-9 Sharif Ahmed that he knew the name of accused Firoz as he (Firoz) had also met himself (PW-9) and deceased Rafedin on the way in the morning of 06.04.2011 when they were going to place of work, but in cross examination, he has stated that he did not know the name of the Firoz in the morning of 06.04.2011 and he came to know his name in the morning of 07.04.2011. The deposition of PW-9 is not reliable and can not be taken into consideration and if it is taken into consideration, then time gap between last seen witness and recovery of dead body is so long that same can not be relied upon. Both the mobile phones which are shown to have been recovered from the possession of accused Firoz are not in his name and the persons in whose name said phones are, have not been examined. As per PW-9, he alongwith Noor Mohd., Shakeel and Iqbal went out in search of Rafedin. But these Noor Mohd., Shakeel and Iqbal have not been examined by prosecution. As per PW-8, telephone numbers 9891107696 and 9540227214 are belonging to Akvara Khan and Satyawan respectively, but statement of Akwara Khan and Satyawan under section 161 of the Code were not recorded nor they have been cited/examined as witness. In death report Ex.PW-26/B, it is mentioned that eyes were closed, mouth was opened and blood was oozing out, but blood can not be oozed out after twenty hours of death. The case is based on circumstantial evidence but chain of circumstances have not been completed and proved and therefore accused Firoz may be acquitted. Learned counsel has placed reliance upon the decisions, namely, Bodhraj @ Bodha & Ors v. State of Jammu & Kashmir, (2002) 8 SCC 45; State of Goa v. Sanjay Thakkran & Ors., (2007) 3 SCC 755; Nizam & Ors v. State of Rajasthan, (2016) 1 SCC 550; Aghnoo Nagesia v. State of Bihiar, 1965 LAWSUIT (SC) 143 and Khatri Hemraj Amulakh v. State of Gujrat, 1972 LAWSUIT (SC) 92.
SC No. 2353/2016 State v. Firoz 59. First of all, I have to consider as to whether deceased Rafedin and Afsana were husband and wife. In this regard, PW-2 Dildar Ahmed has testified that he is the caretaker of the house consisting of two rooms belonging to his father in law Sh. Ataulla Khan situated adjacent to his house no. C-128, Gali no. 10, Kachi Colony, Madanpur Khadar, near Badi Masjid and he received rent from the tenants in the said house. The deceased Rafedin was a tenant in the said house for about one year and he was residing with his wife Afsana and two children. PW-9 Sharif Ahmed has testified inter alia, that his maternal uncle Rafedin was also residing in the other gali at Madanpur Khadar. He has also stated in this regard that on 06.04.2011 at about 9- 9:30 pm, one boy named Firoz came to house of his mama Rafedin in his presence and took Rafedin with him. He has also stated that his maami Smt. Afsama Begum told him (Sharif Ahmed) to took food. PW-19 Md. Sayeed has testified in this regard that Afsana alongwith her husband were residing in the house of Dildar as tenant. PW-20 Hawaldar has testified that at the first floor of his house in the adjoining room Rafedin (deceased) was residing with his wife Afsana with their children on rent. Nothing has been come in the cross examination of PW-2, PW-9, PW-19 and PW-20 in respect of abovesaid facts pertaining to relationship of deceased Rafedin and Afsana. From these testimonies, it has been proved on record that deceased Rafedin and Afsana were husband and wife.
10. Now, I have to appreciate the testimony of the prosecution witnesses in respect of factum of death of Rafedin and registration of FIR and sending the copy thereof to Ilaka Magistrate and senior police officers. PW-15 Head Constable Kedar Lal has deposed that on 07.04.2011 he was posted at Police Station Jaitpur and on that day, Station House Officer (PW-26 Inspector Surender Singh) received information on telephone regarding lying of a dead body at Samosa Chowk near gas godown playground and pursuant to said information he also accompanied Station House Officer and went to said playground where he saw one dead body of male lying SC No. 2353/2016 State v. Firoz 6 alongwith wall of gas godown but inside the playground near Samosa Chowk. Sub- Inspector Sherpal (PW-21) and the Beat Staff of the area were found already present at the spot. There were marks on the neck and on the right arm of the dead body. Station House Officer made local enquiry at the spot and name of deceased was revealed as Rafedin S/o Shri Chobe, R/o C-97/3, Gali no. 17, Kachi Colony, Madanpur Khadar. One Sharif (PW-9) nephew of deceased was also found present. Station House Officer recorded the statement of said Sharif, made his endorsement and gave the complaint to him (PW-15) and sent to the police station for registration of the case and after getting FIR, he came back at the spot and handed the copy of FIR and original rukka to Investigating Officer Inspector Surender Singh.
11. PW-15 Head Constable Kedar Lal has further testified that the shirt having red, black and white checks (cross strips) was lying on the dead body. The left sleeve of the shirt was having a zip and on the front of the shirt word 'zoom' was written on both side i.e. on left and right side. On the left sleeve of the shirt i.e., at the place of wrist, some blood stains and saliva (laar) were found. The shirt was sealed in a cloth pullanda with seal of 'SSY' and same was seized. The deceased was wearing mehroon colour baniyan and black pant. The investigating officer has also conducted the jamatalashi of the deceased and one purse was found in the back pocket of the wearing pant of the deceased and words 'FELA' were written on the purse and same was found to be containing Rs.101/-, one small diary, some visiting cards and one pencil. One mobile make of Nokia was also found in the front pocket of the wearing pant of the deceased. The investigating officer had sealed the phone and the purse in a cloth pullanda with seal of 'SSY' and seized the same through the seizure memo.
12. PW-21 Retired Sub Inspector Sherpal Singh has testified that on 07.04.2011, he was posted police station Jaitpur and on that day, he received a call vide DD No.25-A (Ex.PW-7/C) regarding the fact that a dead body was lying at near the wall of the gas plant, Khel Maidan near Samosa Chowk, Kachchi Colony, SC No. 2353/2016 State v. Firoz 7 Madanpur Khadar and he reached at the spot and beat staff was already present there. A dead body was lying near the wall of the gas plant on which one check shirt was kept. The dead body was having ligature marks on the neck, some abrasion on right hand and was bleeding from the nose. On enquiry, name of the dead person was revealed as Rafedin. In the meantime, Shri Surender Singh Yadav (PW-26), Station House Officer alongwith Head Constable Kedar (PW-15) also reached at the spot. Sharif (PW-9) who is the bhanja of deceased also met them at the spot. The shirt which was lying over the dead body was converted into a pullanda, sealed with the seal of SSY and seized vide seizure memo Ex.PW-9/C. On personal search of dead body, one mobile phone, one purse having money and some cards were found and were converted into a pullanda, sealed with the seal of SSY and seized vide seizure memo Ex.PW-9/D by investigating officer. Dead body was sent through Constable Vikas to AIIMS mortuary for preservation. On 08.04.2011, he accompanied Investigating Officer to the AIIMS mortuary where complainant Sharif and Naseer (brother of the deceased) met them. After preparing necessary papers, the postmortem of dead body was conducted and dead body was handed over to Naseer vide dead body handing over memo Ex. P-2.
13 In his cross examination, PW-21 has deposed that the dead body was at the distance of two-three steps from the wall of the gas plant and there were grass and bushes. The dead body was not hidden but lying in the grass and bushes and same was visible from a distance of about 100 steps. The shirt on the dead body was kept on the face but it was not twisted. The bleeding from nose was not completely dry and it was slightly wet. The distance of the place from where the accused was arrested and the place of recovery of dead body is about 3000 yards.
14. PW-22 Constable Vikas who was posted at Police Station Jaitpur on 07.04.2011 testified that on that day he was on patrolling in beat no. 1 i.e. area of Kanchan Kunj and at about 4:40 pm he received a telephone call from the police SC No. 2353/2016 State v. Firoz 8 station and was asked to go near Samosa chowk where a dead body was stated to be lying near a wall of gas plant. Pursuant to the information he reached the gas plant wall where he saw that a dead body of a male was lying. In the meantime, Station House Officer (PW-26) also reached at the spot and on enquiry at the spot, the name of deceased was revealed as Rafedin. The Station House Officer directed him to remove the dead body in the Government vehicle i.e. TATA 407 and pursuant to the direction, he took the dead body in said vehicle and got preserved at AIIMS Mortuary. On 08.04.2011, after the postmortem upon the dead body of deceased, the doctor gave him viscera, one cloth pullanda, blood on gauze and sample seal in sealed condition and he handed over the same to PW-26 Inspector Surender Singh. The dead body was handed over to his legal heirs vide receipt Ex. P-2. Thereafter, they returned to police station and the case property was deposited in the malkhana.
15. In his cross examination, PW-22 has stated in this regard that the shirt was not twisted. The distance between the place from where the accused was arrested and the place from where dead body was recovered is about 100-150 metres. There is no provision for lighting from the place from where the dead body was recovered.
16. PW-26 Inspector Surender Singh was posted as Station House Officer, Police Station Jaitpur on 07.04.2011. He testified that on 07.04.2011, he received an information on his mobile phone from the duty officer at about 4:36 pm that one dead body is lying in the playground near gas plant, Samosa Chowk. Assistant Sub- Inspector Ram Kumar and Head Constable Kedar Lal (PW-15) were also with him in official Gypsy. Having received information, they reached at the spot where they found that one male dead body aged about 30 years was lying in the ground near gas plant. Sub-Inspector Sher Pal (PW-21) alongwith Constable Vikas (PW-22) and Constable Dharmender were already present at the spot. Some public persons were also present there. A shirt was lying on the dead body. There was a ligature mark of strangulation around neck. There were injuries like scratch marks on the right hand of SC No. 2353/2016 State v. Firoz 9 the deceased. Nephew (bhanja) of the deceased (PW-9) was also present at the spot who told his name as Sharif and he identified the dead body to be of his maternal uncle namely, Rafedin. He recorded the statement of Sharif Ex. PW-9/A and prepared rukka Ex. PW-26/A and handed over the same to Head Constable Kedar Lal (PW-15) for registration of the case. He called up the crime team at the spot. The photographer clicked the photograph of the scene of crime including dead body. He prepared site plan Ex. PW-9/B at the instance of complainant Sharif (PW-9). Head Constable Kedar Lal (PW-15) returned back to the spot and handed over to him the rukka and copy of FIR in which the investigation was entrusted to him. One shirt bearing the impression of 'zoom' on the backside and one chain on the left pocket of the shirt was lying upon the deceased. The right sleeve of the shirt was spotted with Saliva and the blood. He prepared the pulanda of the shirt and sealed with the seal of SSY and took into the possession vide seizure memo Ex. PW-9/C. He also carried out the personal search of the dead body in which one purse kept in the back pocket of the pant and one mobile phone in the right pocket of the pant were found. The purse contained one small diary, Rs. 101/-, some visiting cards and one pencil. He noted down the IMEI number as well as the SIM number 9911842488 of the mobile phone make Nokia. He prepared the pullanda of the purse and the mobile phone and sealed with the seal of SSY and after use, seal was handed over to Sub-Inspector Sher Pal (PW-21). He took into possession the pulanda vide seizure memo Ex. PW- 9/D in which he also mentioned the IMEI number and SIM card number. He got sent the dead body to the mortuary through Constable Vikas (PW-22) in government vehicle, TATA 407. He returned back to the police station and deposited the case property in malkhana.
17. PW-11 Sub-Inspector Jitender Kumar who was posted as Incharge Crime Team at mobile Crime Team on 07.04.2011, has testified that he received a message from control room to reach place of occurrence i.e. Play Ground, Near Samosa Chowk, Madanpur Khadar where a dead body is lying. He alongwith Member of the SC No. 2353/2016 State v. Firoz 10 Crime team i.e. Photographer, finger print proficient and the driver reached at the spot where he met Inspector Surender Singh (PW-26) and other police staff. He inspected the scene of crime and got the place of photograph and he prepared the scene of crime report (SOC report) Ex. PW-11/A and gave the same to PW-26. In his cross examination, this witness has stated that by prima facie looking at the dead body, the nature of crime appeared to be murdered ; that he had noticed ligature mark on the neck of the deceased. This witness has further stated in his cross examination that if somebody is strangulated the ligature mark would be 'O' in shape and in case of hanging the same would be 'V' in shape. This witness after looking the photograph (Ex. PW-11/D1) has stated that the ligature mark is going upwards but could not say about the exact shape of the ligature mark. He has admitted the suggestion that the ligature mark is not in 'O' shape.
18. In respect of death of deceased Rafedin, complainant Sharif Ahmed (PW-9) has deposed that at about 09:00/9:30 pm, one boy named Firoz, who was known to his mama Rafedin came to the house of Rafedin in his presence and took Rafedin with him. They waited for Rafedin for long time but he did not return back. At about 10:15 pm, he had taken the food on asking by his mami Smt. Afsana Begam and thereafter, he slept but Rafedin did not return till that time. His mami Smt. Afsana Begam woke up him at 5:30 am (on 07.04.2011) and told him that Rafedin had still not returned and asked him to search for him. He alongwith Noor Mohammad (cousin of Rafedin), Shakeel (boy who was working with Rafedin), Iqbal (cousin of Rafedin) and two-four more boys went out in search of Rafedin but despite their efforts, he could not be found. When they were returning at about 04:00/4:30 pm, they saw that a crowd had gathered at the play ground near gas plant and then they went there and saw the dead body of his maternal uncle Rafedin. There were marks of injury on his neck and on his right hand and his red colour shirt was found lying above his body. Police had already present at the spot at the time of their visit. This witness has also testified regarding recording his statement by the police at the spot vide Ex. PW-9/A, inspection of the SC No. 2353/2016 State v. Firoz 11 spot by the police, prepration of the site plan Ex. PW-9/B, sealing the shirt of deceased in a pulanda and seizing the same through the seizure memo Ex. PW-9/C, recovery of one purse having visiting cards etc and mobile phone in search of the dead body and sealing both the articles in a pulanda and seizing the same through the seizure memo Ex. PW-9/D. On 08.04.2011, he alongwith his other relatives went to mortuary where he again identified the dead body of mama Rafedin. After postmortem the dead body of his mama was given to them vide receipt Ex. P-2.
19. PW-7 Head Constable Harish Chander has testified that on 07.04.2011, he was posted as duty officer at police station Jaitpur from 04:00 pm to 12:00 night and on that day, he received a rukka prepared by Inspector Surender Singh (PW-26) at 06:15 pm. He got registered FIR number 86/11 on computer from the computer operated Constable Mithilesh in his presence which is Ex.PW-7/A. He sent FIR through special messenger at about 07:00 pm.
20. PW-7 in his cross examination, has stated that on the basis of rukka sent by investigating officer, he had registered FIR and after reading rukka, he made entry in the daily register (kayami) and thereafter, he got the FIR typed on computer. The copies of DD No. 25-A, 27-A and 29-A were exhibited as Ex.PW-7/C, Ex.PW-7/D and Ex.PW-7/E. Said DDs were entered in the DD Register which was brought by the witness. This witness also had also seen Entry number 7-A dated 08.04.2011 in the DD Register brought by him which is regarding arrival of Inspector Surender Singh and depositing of case property in malkhana and said Entry has been exhiited as Ex.PW-7/E.
21. PW-1 Nasir who is the brother of the deceased Rafedin has testified that he went to the AIIMS Mortuary where he identified the dead body of deceased Rafedin. After the postmortem, dead body of his brother was handed over to them by the police and receipt in this regard is Ex. P-2.
SC No. 2353/2016 State v. Firoz 1222. PW-6 Dr. Karthik Krishna was posted as Junior Resident, AIIMS Hospital on 08.04.2011 and he conducted the postmortem number 367/11 (Ex. PW-6/A) on the dead body of the Rafedin.
23. Cross examination of PW-1, PW-6, PW-7, PW-9, PW-11, PW-15, PW-21, PW-22 and PW-26 were conducted on behalf of the accused Firoz but nothing has been come against the case of prosecution in respect of death of the deceased Rafedin, registration of FIR and handing over the dead body of Rafedin. PW-9, PW-21 and PW-26 have correctly identified one mobile phone Ex.MO1, one purse Ex.MO2 containing four torned attendence cards in the name of Rafedin, one small pocket diary, 21 visiting cards Ex.MO3 (collectively) and cash of Rs. 101 Ex.MO4 (colly), and one pencil Ex.P-1.
24. On the basis of testimony of PW-1, PW-6, PW-7, PW-9, PW-11, PW-15, PW-21, PW-22 and PW-26 as discussed above, it has been proved that Rafedin was died and his dead body was found alongwith the wall of the gas plant, Samosa Chowk at about 04.00/04.30 pm on 07.04.2011; that FIR number 86/11 was registered at police station Jaitpur at about 07:00 pm on the same day when dead body was found on 07.04.2011; that copies of FIR was sent to Metropolitan Magistrate and senior police officials through special messenger on 07.04.2011 and therefore, there is no delay in registration of FIR and sending the copy of FIR to Metropolitan Magistrate and senior police officials; that dead body was identified as Rafedin by PW-1 and PW-9 and thereafter dead body was handed over to PW-1 and PW-9 vide receipt Ex. P-2.
25. Now, I have to appreciate the testimony of witnesses with regard to the houses which were taken on rent by the deceased Rafedin before his death. PW-2 Dildar Ahmed testified that he is the owner of house no. C-128, Gali No.10, Kacchi Colony, Madanpur Khadar, near Badi Maszid and there is a house consisting of two rooms SC No. 2353/2016 State v. Firoz 13 belonging to his father-in-law Sh. Ataulla Khan, situated adjacent to his house of which he is the caretaker and he received rent from the tenants in the said house. The deceased Rafedin was a tenant in the said house for about one year but he does not remember the date. Rafedin had vacated the said house about 18-20 months earlier and had shifted to the Gali No.17 in house of one Hawaldar and he was residing with his wife Afsana and two children. The accused Firoz was working in a bakery shop owned by Shakil. Bakery was situated towards back side of his house. Shakil told him "mahol sahi nahi hai aur Firoz aur Afsana ke beech me isharebaji hoti hai kuch bhi ho sakta hai". (i.e., atmosphere is not proper. Firoz and Afsana are used to make gesture to each other and anything may happen in future). On coming to know about this, he got the tenanted premises vacated from Rafedin and Afsana.
26. In his cross examination on behalf of accused Firoz, PW-2 has stated that he had never seen any exchange of gesture between Afsana and Firoz and he has no personal knowledge, if there was any illicit relationship between Afsana and Firoz. There was no cross examination of PW-2 on the point of residing of Rafedin and his wife Afsana at his said house. It is correct that PW-2 was not having any personal knowledge if there was any illicit relationship between Afsana and accused Firoj. But there is no cross examination of testimony that on coming to know about this (illicit relationship between Afsana and accused Firoj), he got the tenanted premises vacated from Rafedin and Afsana.
27. PW-19 Mohd. Sayeed has not fully supported the case of prosecution but he testified that house of Dildar (PW-2) is situated adjacent to his house at Madanpur Khadar and Afsana alongwith her husband were residing at the ground floor in the house of Dildar as tenant. Accused Firoz was a running bakery in front of house of Afsana. This witness has also stated in his examination under Section 154 of the Indian Evidence Act conducted by the learned Additional Public Prosecutor that entire mohalla knew that Dildar had evicted Afsana and her husband from his house and SC No. 2353/2016 State v. Firoz 14 thereafter, they started residing at gali no.17, Madanpur Khadar. This witness has not been cross examined on behalf of the accused. Hence, there is no cross-examination on the deposition that entire mohalla knew that Dildar had evicted Afsana and her husband from his house.
28. PW-20 Hawaldar Khan testified that he used to reside at the first floor, C- 17/99, Madanpur Khadar Extension, New Delhi and he received the summons at the address of C-97/3, Kacchi Colony, Madanpur Khandar, New Delhi, but that address is not correct and correct address of his house is C-17/99, Madanpur Khadar Extension, New Delhi. At the first floor of his house in the adjoining room, Rafedin (deceased) was residing with his wife Afsana with their three children on rent and they resided there for about four months. There is no cross examination of this witness in respect of residing of deceased Rafedin alongwith his wife and three children at the house of the said witness i.e., C-17/99, Badarpur Khadar Extension, New Delhi.
29. Sharif Ahmed (PW-9) testified in respect of residence of deceased Rafedin that on 04.04.2011, he had come from his native place District Muradabad to the house of his uncle Musharaf, who is residing at Madanpur Khandar. His maternal uncle Rafedin is also residing in the other gali at Madanpur Khadar.
30. Md. Shafique (DW-1) is defence witness examined by accused Firoz. This defence witness has also admitted in his cross examination that Afsana was residing in front of there bakery in the house of Dildar (PW-2) on rent.
31. Hence, from the testimony of PW-2, PW-9, PW-19 , PW-20, and DW-1, it has been proved on record that deceased Rafedin and his wife Afsana were earlier residing at the house of Dildar Ahmed i.e. House no. C-128, Gali No.10, Kacchi Colony, Madanpur Khadar, near Badi Maszid and he got the tenanted premises SC No. 2353/2016 State v. Firoz 15 vacated from Rafedin and Afsana on coming to know about them from Shakil that atmosphere is not proper and Firoz and Afsana used to make gesture to each other and anything may happen in future, and entire mohalla knew that Dildar had evicted Afsana and her husband from his said house and thereafter, Rafedin and Afsana shifted to the house of Hawaldar i.e. C-17/99, Madanpur Khadar Extension, New Delhi on rent.
32. Now, I have to appreciate the evidence in respect of arrest of the accused Firoz and recovery from him. PW-21 Retired Sub Inspector Sher Pal Singh has deposed in respect of arrest of accused Firoz that on 08.04.2011 at about 09.45 pm, a secret information was received by the investigating officer (PW-26) that suspect Firoz is available at J.J. Colony, Samosa Chowk. He alongiwth investigating officer and constable Vikas (PW-22) reached at J.J. Colony, Samosa Chowk and found Firoz there. He was interrogated by the investigating officer and was arrested vide arrest memo Ex.PW-9/E. His personal search was also carried out and two mobiles, one extra SIM, cash of Rs. 62/- were recovered from the search. His personal search memo Ex.PW-21/C was prepared. A seizure memo of two mobiles (one of which G-5 and other was Vodafone), one extra SIM (Idea) was also prepared vide Ex.PW-21/D. Sharif (PW-9) had also reached at the place where the accused was arrested. Sharif identifed the accused and stated that he was the same person who had taken his mama Rafedin. The disclosure statement of the accused was recorded by the investigating officer vide Ex.PW-21/E and pursuant to the said statement, pointing out memo of place of occurrence was prepared at the instance of the accused vide Ex.PW-21/F (wrongly exhibited as Ex. PW-21/E instead of Ex. PW-21/F).
33. In his cross examination PW-21 has testified that they arrested the accused at the distance of around 1000 yards from his house; that the distance of the place from where the accused was arrested and place of recovery of dead body is about 3000 yards; that they prepared the Ex.PW-21/F at the Khel Ka Maidan from where the SC No. 2353/2016 State v. Firoz 16 dead body was recovered. The witness has denied the suggestion that they had made the father of Firoz sit in the police station and asked the brother of Firoz to call him in the police station and the brother of Firoz had brought him to the police station. There is no cross examination on behalf of accused regarding recovery of two mobiles, one extra SIM from the personal search of the accused Firoz.
34. PW-22 Constable Vikas has corroborated the version of PW-21 in respect of arrest of the accused Firoz and recovery of two mobiles with one extra SIM card from his possession. This witness has also testified that at about 09.45 PM on 08.04.2011, the investigating officer Inspector Surender Singh (PW-26) had received a secret information regarding the availability of accused at Samosa Chowk and they reached immediately at Samosa Chowk and on the pointing of Sharif (PW-9), they apprehended accused Firoz. Sharif was called by investigating officer when they proceeded in the area.
35. In his cross examination, PW-22 has testified that the distance between the place from where accused was arrested and the place from where dead body was recovered is about 100 to 150 meters; that the phone and the SIM card recovered from the accused, were sealed at Samosa Chowk and he did not know to whom investigating officer had handed over the seal after using it; that SIM card (Ex.MO-5) and two mobile phones (Ex.MO-6 & Ex.MO-7) were kept in a cloth parcel and same were sealed. There is even no suggestion given to this witness on behalf of the accused in the cross examination that no said two mobile phones and one extra SIM were recovered from the possession of the accused Firoz.
36. PW-26 Inspector Surender Singh is investigating officer who has corroborated the version of PW-21 & PW-22 in respect of arrest of the accused Firoz and recovery of two mobile phones and one extra SIM of Idea mobile phone. He has also testified that one mobile phone was of Vodafone having SIM card number SC No. 2353/2016 State v. Firoz 17 9540227214 and other one was of G-5 having SIM card number 9891107696. He also testified that he prepared the pullanda of mobile phone as well as the extra SIM card and sealed the same with the seal of 'SSY' and took into possession and seal after use was handed over to Sub Inspector Sher Pal (PW-21). He deposited the case property in malkhana. PW-24 Head Constable Rajveer Singh who was the MHC(M) on 08.04.2011 at police station Jaitpur has corroborated version of PW-26 regarding depositing of property at malkhana stating that PW-26 deposited the personal search of the accused and two mobile phones alongwith SIM card in the malkhana and he made an entry in register no. 19 at serial no. 487 Ex. PW-24/D.
37. Lengthy cross examination of PW-26 was conducted by the learned counsel for the accused but there is no cross examination on the aspect of recovery of two mobile phones and one sim card from the possession of the accused Firoz. Even no suggestion has been given to the witness by the learned counsel for the accused that no mobile phones and sim card were recovered from the possession of the accused Firoz.
38. PW-9 Sharif has also stated in this regard that on 08.04.2011 he joined the investigation along with the police when they were searching the accused Firoz and he was found at Samosa Chowk and on his pointing the police apprehended accused Firoz and arrested him vide arrest memo Ex. PW-9/E. Personal search of the accused was also conducted by the police. In his cross examination, he has stated that he was with the police when the accused Firoz was arrested by the police but he did not remember the names of the police officers who arrested him. He has further stated in his cross examination that police had arrested the accused Firoz before the dead body of Rafedin was handed over to them. He has denied in his cross examination that the seizure memo and other documents were not prepared in his presence or that he has signed them afterwards. Hence, there is no effective cross examination on the aspect of arrest and personal search of the accused.
SC No. 2353/2016 State v. Firoz 1839. Defence witness Md. Shafique (DW-1) has stated that on 06.04.2012, the accused who is his brother was with him since 08:30 pm till morning and on 07.04.2012 at around 05:00 am he went alongwith him to do bakery work. They alongwith two other workers worked till 08:00 pm. After a while, Firoz went back to the residence then two police officers came to their bakery and enquired about his family and his father was taken by the police officers to police station Jaitpur. He called Firoz and told him that our father had been taken away by the police officials to the Police Station Jaitpur. He alongwith Firoz went to the police Station Jaitpur and after one and half hours, two police official came to them and took Firoz into custody. At around 11:30 pm, two police officials came to him and said that his brother Firoz was calling him. When he met his brother Firoz, he said that the police officials asking for Rs. 2 lakhs for his releasing from custody but he was not having money and refused for giving the said amount to police officials.
40. The testimony of DW-1 does not inspire confidence as he stated that his father was taken to the police station by the police officials and thereafter, he alongwith accused Firoz went to the police station and after sometime, Firoz was taken into custody, but his father has not been examined by the defence to prove that his father was taken into police station by the police official. Further, DW-1 has admitted in his cross examination that neither he nor his family members had given any complaint against the said police officials who had demanded Rs. 2 lakhs for releasing accused Firoz. DW-1 is brother of the accused. He stated in his evidence the facts in respect of date 06.04.2012 and 07.04.2012, but accused was arrested in the present case on 08.04.2011 and dead body of the deceased Rafedin was found on 07.04.2011 at about 04:00/04:30 pm. Further, he stated that he, accused Firoz alongwith two other workers worked till 08:00 pm on 07.04.2012. But said two workers who might be independent witness, have not been examined.
SC No. 2353/2016 State v. Firoz 1941. PW-21, PW-22 and PW-26 have identified mobile phone make G-5 and mobile phone make Vodafone and one extra SIM card of IDEA company vide Ex. MO- 5, MO-6 and MO-7 respectively.
42. From the above testimony of PW-9, PW-21, PW-22, PW-26 and DW-1, it has been proved that accused Firoz was arrested on 08.04.2011 at Samosa Chowk, Madanpur Khadar Extension, New Delhi by the PW-26 vide arrest memo Ex. PW-9/E and one mobile phone make G-5 having SIM card number 9891107696 (IMEI No. 353182048655040) and other mobile phone of Vodafone having sim card no. 9540227214 (IMEI No. 353161021843260) and one extra SIM of Idea company were recovered from the possession of accused Firoz.
43. Now, I have to appreciate the medical evidence. Prosecution has examined Dr. Karthik Krishna (PW-6), Junior Resident, AIIMS Hospital who conducted the postmortem number 367/11 Ex. PW-6/A on the dead body of Rafedin. On examination, he found bluish disclouration of nails present, face is congested and blood stains present at opening of nostrils.
He has given description of ligature mark on the neck:
1. A brown coloured Groovy Ligature mark of width 5cm present encircling the neck running horizontal direction merging at posterior hairline at the nape of the neck.
The ligature mark is 7 cm. below the mentum, 7 cm. above the supra-sternal notch on the anterior midline of the neck. It is 7 cm. below the right mastoid tip and 6 cm. below the left mastoid tip on the lateral aspect of the neck. Total neck circumference is 35 cms.. On dissection of the neck, diffuse hematoma present on the soft tissues of the neck. Neck muscles and large vessels are intact. There is fracture of greater horn of hyoid bone on the right side, associated with hematoma. Tracheal mucosa is normal.
2. A reddish brown coloured contusion measuring 4X4 cm. present on the dorsum of right hand.
3. A reddish brown coloured contusion measuring 3X1 cm. present over the left SC No. 2353/2016 State v. Firoz 20 cheek region, just below the lateral angle of left eye.
As per opinion of Dr. Karthik Krishna, the cause of death to the best of his knowledge and belief is asphyxia due to strangulation.
44. In his cross examination, PW-6 has stated that rigormortis is present all over the body. It is not possible to quantify the extent of rigormortis. Rigormortis appears after death in three to four hours stays in the body for another twelve to fourteen hours and gradually passes off in another twelve to fourteen hours. During autopsy, they can find out the rigormortis stage of appearance or disappearance, but in this case it is difficult to comment on rigormortis as the dead body was preserved in mortuary.
45. PW-23 Dr. Hari Prasad, Senior Resident, Department of Forensic Medicine and Toxicology, AIIMS Hospital testifies that as per record i.e. the postmortem report number 367/11 pertaining to the deceased Rafeddin S/o Sh. Md. Chaube, the dead body of the said Rafeddin was received in the mortuary of the AIIMS hospital on 07.04.2011 at about 8:30 pm and the postmortem on his dead body was conducted on 08.04.2011 in between 1.15 pm. to 2.30 pm. by Dr. Kartik under the supervision of Dr. Sudipta Ranjan Singh vide Ex. PW-6/A. As per record, the cause of death in the present case is Asphysix due to strangulation. He identifed the signatures of Dr. Sudipta Ranjan Singh as well as Dr. Kartik on the postmortem report Ex. PW6/A as in the course of his official duty Dr. Sudipta Ranjan Singh was his senior and Dr. Kartik was his Junior and he had worked with both of them. Dr. Sudipta Ranjan Singh has been transferred to the AIIMS, Bhuvneshwar.
46. In his cross examination, PW-23 has stated that Asphyxia can be caused by various means i.e. drowning, hanging, suffocation, strangulation, smothering, throttling etc.; that in the postmortem report, the mentioning of horizontal ligature mark, congestion of face and two contusions one over hand and one over the cheek region are sufficient to show the struggle and asphyxia due to strangulation; that in case of SC No. 2353/2016 State v. Firoz 21 strangulation, the ligature mark would be horizontal, complete and 'O' shape and in case of hanging, it is generally incomplete and would be 'V' Shape; that in the present case, the ligature mark is mentioned as horizontal and encircling; that there are two internal findings in the postmortem report i.e. diffused, hematoma and fracture of greater hornu of hyoid bone which suggest that cause of asphyxia was due to strangulation; that livor mortis is caused after death for the reason that the blood accumulates in the vessels and settled down; that the decomposition of dead body in summer season starts after 24 hours to 36 hours; that rigor mortis starts after about one or two hours of death and progresses to the whole body within next twelve hours and remains stagnant for twelve hours before it starts coming down in the further twelve hours; that this all process takes place only if the body is not preserved but in this case, the body was preserved; that as per the report Ex. PW-6/A, the rigor mortis was present all over the body meaning thereby that there is a minimum duration since death is 12-24 hours; that it is absolutely not possible if a man falls down and dies and remains in a same position for a long time the skin of the neck may fold and give an appearance of a ligature mark. This witness has denied the suggestion that the postmortem report is misleading and incomplete; that as per the report if the ligature mark is 7 cm below the mentum, 7 cm above the suprasternal notch on the anterior midline of the neck. At this juncture, I have to appreciate the deposition of PW-11 Sub-Inspector Jitender Kumar who has deposed in his cross examination that if somebody is strangulated, the ligature mark would be 'O' in shape and in case of hanging the same would be 'V' in shape; that the ligature mark is not in 'O' shape. This deposition of PW-11 with regard to ligature mark not having in 'O' shape, does not inspire confidence as he is not a doctor and further, Dr. Hari Prasad (PW-23) has deposed in his cross examination that the mentioning of horizontal ligature mark, congestion of face and two contusions one over hand and one over the cheek region mentioned in the postmortem report are sufficient to show the struggle and asphyxia due to strangulation.
SC No. 2353/2016 State v. Firoz 2247. Dr. Sudith Ranjan Singh (PW-16) was also examined by the prosecution but only examination in chief was recorded and cross was deferred but thereafter he could not be appeared for cross examination and therefore, his examination in chief cannot be taken into consideration.
48. From the testimony of PW-6 and PW-23, postmortem report of deceased Rafedin has been proved as Ex. PW-6/A. Medical evidence has also supported the case of prosecution. It has also been proved that cause of death of Rafedin was asphyxia due to strangulation.
49. Now, I have to consider the deposition with regard to mobile phones. PW-8 Sh. Surender Kumar, Nodal Officer, Idea Cellular Ltd. testified that he brought the record in respect of telephone number 9891107696 belonging to Akvara Khan S/o Sh. Nanhe Khan and telephone number 9540227214 belonging to Satyawan S/o Sh. Pati Rakhan. The call detail records of mobile number 981107696 and 9540227214 have been exhibited as Ex.PW8/A and 8/B respectively and the certificate thereof under section 65-B of Indian Evidence Act as Ex.PW8/C and 8/D respectively.
50. This witness was cross examined by learned counsel for accused. In said cross examination, he had stated that in I Card brought by him, his post is not mentioned but same bears the name of company, his photograph, his name and his office address. He further stated in said examination that he is employed as an executive of IDEA Cellular and posted as a Nodal Officer with the company since the last one and half year. The witness on further cross examination on other date had brought authorization letter dated 02.01.2012 Ex.PW-8/DA on behalf of his company IDEA Cellular Ltd. to appear and depose in the court. He had denied the suggestion that he is not the Nodal Officer of the IDEA Cellular.
51. This witness has not produced his appointment letter but he has produced SC No. 2353/2016 State v. Firoz 23 the authorization letter Ex.PW-8/DA. He had also brought his I Card in which the name of the company, his photograph, his name and his office address were mentioned. He had told the purpose of issuing a certificate under Section 65B of the Indian Evidence Act. He has denied the suggestion put by learned counsel for the accused that he did not understand the implication of furnishing a certificate under Section 65B of the Indian Evidence Act. He has also denied the suggestion that he had signed the said certificate without understanding the content of the same. It is correct that mobile number 9891107696 belongs to Akbara Khan and mobile number 9540227214 belongs to Satyawan and said Akbara Khan and Satwayan have not been examined by the prosecution. But non examination of these two persons are of no consequences as I have already observed in para no. 42 that said mobile phones were recovered from the possession of the accused Firoz.
52. Hence, PW-8 has proved the call detail records of the telephone number 9891107696 as Ex.PW-8/A and call detail records of the telephone number 9540227214 as Ex.PW-8/B. He has also proved certificate under Section 65B of the Indian Evidence Act of the call details of telephone number 9891107696 as Ex.PW- 8/C and call detail records of the telephone number 9540227214 as Ex.PW-8/D.
53. PW-4 Jalaluddin testified that he was living with his wife Shabnam (PW-17) in the house of Salil.Ul.Rehman in the C Block in the Madanpur Khadar as a tenant. He resided there as tenant since Janurary, 2010 and vacated the said premises about two months ago. He had obtained a mobile connection number 8826472263 of AIRTEL in the name of his friend Akhtar during Commonwealth Games in the year 2010 and that SIM card was being used by Shabnam. He also sometimes used the said Cellphone after returning from his duty to his house. Afsana used to reside in front of her house and sometimes she used to ask for the said cellphone from his wife and used it on the pretext of talking to her husband. Later on, he came to know that she used to talk to Firoz.
SC No. 2353/2016 State v. Firoz 2454. This witness has clearly deposed that he had obtained a mobile connection number 8826472263 of AIRTEL in the name of his friend Akhtar in the year 2010 and said SIM card is used by his wife Shabnam. He has also clearly deposed that Afsana who was residing in front of his house, some times used to ask for the said cell phone for her wife and used it on the pretext of talking to harassment and later on, he came to know that he used to talk to Firoz. In his cross examination conducted by learned counsel for the accused Firoz, he clarified that he had not taken the SIM card in his name as he was not having ID proof at that time. There is no suggestion to this witness in his cross examination that he had not obtained the said mobile connection and said SIM card was not being used by his wife Shabnam and further that Afsana had not asked for the said cell phone from his wife Shabnam and had not used it on pretext of talking to harassment. It is correct that this witness has stated in his examination in chief that he came to know later on that Afsana used to talk Firoz. In this regard, he has clarified in his cross examination that he came to know about the name of the Firoz at the police post before his visited police post, he did not know the name of Firoz.
55. Prosecution has also examined wife of Jalaluddin, Ms. Shabnam (PW-17) who has corroborated version of her husband Jalaluddin. She also deposed that she was residing earlier at other house in C Block, Gali no. 17, Madanpur Khadar. In the house belonging to one Hawaldar, which was situated opposite to my house, about more than one year ago, Afsana was residing with her husband in a rented accomodation. Afsana had visited her residence once or twice in order to borrow hermobile phone to talk with someone. The mobile phone number used by her at that time was 8826472263 and the same was in the name of some friend of her husband, who was working with him. One person used to make telephone call at the aforesaid telephone number, who used to ask her to arrange his telephonic conversation with Afsana. She used to call Afsana and used to arrange her telephonic conversation with SC No. 2353/2016 State v. Firoz 25 the person, who used to call on her mobile phone. That person talked Afsana five six times on the mobile phone used by her. On the day of incident, in the evening, she had come to know that her husband had expired. On that day when husband of Afsana had expired, one person whose voice appeared to be of the same person, who used to make call at her mobile phone. Police had taken away the said mobile phone. Later on, police had told her the name of the person, who used to make call at her mobile phone, as Firoz.
56. Hence, PW-17 Ms. Shabnam has also clearly deposed regarding residing Afsana opposite to her house and visiting the Afsana in her residence once or twice in order to borrow her mobile phone (mobile no. 8826472263) to talk with someone and further, making telephone call by one person at the said telephone number who used to ask to arrange his telephonic conversation with Afsana and calling the Afsana and arranging her telephonic conversation with the person who used to call on her mobile phone. In the cross examination, she has admitted that she came to know the name of Firoz on the day when her statement was recorded by the police and police told her the name of Firoz and before that she did not know the name of Firoz.
57. PW-3, Salil-Ur-Rehman has not fully supported the case of prosecution but in respect of residence of Jalaluddin (PW-4) and her wife Ms. Shabnam (PW-17), he has stated that they were living at first floor as a tenant in his house no. C-97/1, Gali no. 16, Madanpur Khadar Extension, New Delhi and the house of Hawaldar (PW-20) is situated in front of his house. Hence, these witnesses have established that Jalaluddin with his wife Shabnam was residing in front of house of Hawaldar.
58. Prosecution has also examined Tarun Khurana (PW-10), Nodal Officer Bhartiya AIRTEL Limited who brought the record in respect of telephone no. 8826472263 belonging to Akhtar s/o Sh. Dilshad Mohd. Airtel Prepaid enrollment form pertaining to the customer Akhtar and the copy of his ID proof has been marked as Ex.
SC No. 2353/2016 State v. Firoz 26PW10/A and PW10/B respectively. The call detail records of the above phone number from the period 15.03.2011 to 10.04.2011 have been marked as Ex. PW10/C (seven pages). He also brought the Cell ID Chart Ex. PW10/D. All the call detail record is computer generated and authenticated for which he tendered a certificate under Section 65-B of Indian Evidence Act to this effect, which is Ex. PW10/E. As per the Cell ID Chart and the call detail record, on 06.04.2011 from 07:29:11 hours to 14:51:53 hours of 08.04.2011, the above phone number remained present within the range of Tower no. 114_16733 and the said tower is located in the area of Madanpur Khadar, JJ colony.
59. PW-10 has been cross examined by the learned counsel for the accused Firoz. In said cross examination, he has placed copy of his I- card and Power of Attorney Ex. PW-10/D1 and Ex. PW-10/D2 respectively. It is correct that said I-card did not record that he was the nodal officer. But vide Special Power of Attorney, he was appointed as Nodal Officer, Delhi Circle. He has admitted that said Power of Attorney is dated 03.05.2011 and certificate under Section 65-B of Indian Evidence Act regarding mobile phone in question was furnished for the period from 15.03.2011 to 10.04.2011. In this regard, this witness had clarified that certificate was issued as per record. He has denied the suggestion that he was not a Nodal Officer of Bharti Airtel Limited during the period w.e.f. 15.03.2011 to 10.04.2011. When he was asked question about certificate under Section 65-B, he replied that he has already explained in the said certificate wherein he had stated that the information pertaining to the mobile number in question is true extract on the relevant data created in the usual and ordinary course of business and stored on the designated hard disk of the computer/system of the company. He had denied the suggestion that he had given said certificate without understanding implications thereof. It is correct that mobile number 8826472263 belongs to one Akhtar, but said Akhtar has not been examined by the prosecution. The non-examination of said Akhtar is of no consequences as PW-4 Jalaluddin and PW-17 Shabnam have deposed that Ms. Shabnam was using SC No. 2353/2016 State v. Firoz 27 mostly the said mobile phone and further, Jalaluddin has clarified in this regard that he had obtained said mobile connection in the name of his friend Akhtar in the year 2010 as he was not having I- Card at that time.
60. PW-10 has proved that telephone number 8826472263 belongs to Akhtar and call details of said phone number from the period 15.03.2011 to 10.04.2011 as Ex. PW-10/C and Cell ID Chart as Ex. PW-10/D and Certificate under Section 65-B of Evidence Act as Ex. PW-10/E. He has also proved that on 06.04.2011 from 07:29:11 hours to 14:51:53 hours of 08.04.2011, the phone number 8826472263 remained present within the range of tower number 114_16733 and said tower is located in the area of Madanpur Khadar, J.J. Colony.
61. Hence, from the testimony of PW-3 Salil-Ur-Rehman, PW-4 Jalaluddin and her wife PW-17 Shabnam, it has been proved that Jalaluddin and her wife Shabnam was residing in front of house of hawaldar wherein deceased Rafedin alongwith her wife Afsana was residing. PW-4 and PW-17 have further proved that mobile number 8826472263 was mostly using by PW-17 Ms. Shabnam and one person used to make telephone call at the said telephone number who used to ask her to arrange his telephonic conversation with Afsana and she used to call Afsana and used to arrange her telephonic conversation with the said person who used to call on her mobile phone and about 5-6 times that person talked Afsana on said her mobile phone. PW-8 who is the Nodal Officer from Idea Cellular Limited has proved call details of mobile number 9540227214. PW-10 who is the Nodal Officer from Bharti Airtel Limited, has proved the call detail records of mobile number 8826472263 and the fact that said mobile number remained present within the range of tower number 114_16733 and said tower is located in the area of Madanpur Khadar, J.J. Colony. On perusal of the call detail records of phone number 9540227214 Ex. PW-8/B and call detail records of mobile number 8826472263 Ex. PW-10/C show that there were outgoing calls from mobile number 9540227214 to mobile number 8826472263 one time on 04.04.2011, SC No. 2353/2016 State v. Firoz 28 two times on 05.04.2011 and eight times on 07.04.2011. I have already recorded finding in the previous paras that mobile number 9540227214 was recovered from the possession of the accused Firoz. Hence, from the testimony of PW-4 Jilaluddin, her wife PW-17 Shabnam, PW-8 Surender Kumar (Nodal Officer from Idea Cellular Limited) and PW-10 Tarun Khurana (Nodal Officer from Bharti Airtel Limited), it has been proved that mobile number 8826472263 was mostly used by PW-17 Ms. Shabnam and accused Firoz used to make telephone call at the said telephone number from his mobile number 9540227214, who used to ask her to arrange his telephonic conversation with Afsana and she used to call Afsana and used to arrange her telephonic conversation with the accused Firoz.
62. PW-5 Sub-Inspector Mahesh Kumar was posted as Sub-Inspector draftsman at Crime Branch, Police Headquarter on 01.06.2011, he has deposed that on that day, he alongwith Inspector Surender Singh (PW-26) visited place of occurrence i.e. Vacant Land, Khel Ground, Near Samosa Chowk, Madanpur Khdar, New Delhi and took rough notes and measurements on the pointing of PW-26 and on the basis of them, he prepared scaled site plan Ex. PW-5/A. PW-26 has also corroborated the version of PW-5 in respect of re-visiting the place of occurrence alongwith PW-5. Hence, it has been proved that PW-5 prepared scaled site plan Ex. PW-5/A.
63. PW-12 Ct. Dinesh has deposed that on 07.04.2011 he was posted in Crime Team, South-East District as photographer and on the requisition of local police, he alongwith PW-11 and other member of crime team reached at the Khel Ground, Near Samosa Chowk, Madanpur Khadar, where the dead body of deceased was lying. He had taken seven photographs of the seen of spot from different angles and after developing the prints, the photographs and negatives were handed over to the Investigating Officer. The seven photographs were exhibited as Ex. PW-12/A1 to Ex. PW-12/A7 and negatives as Ex. PW-12/D1 to Ex. PW-12/D7. In his cross examination, he has stated that the shirt of the deceased was lying in the same SC No. 2353/2016 State v. Firoz 29 position as seen in the photograph and the dead body was not hidden in bushes and visible from a distance and he had not seen any bite marks of animal on the dead body. This witness has proved the seven photographs as Ex. PW-12/A1 to Ex. PW- 12/A7 and negatives as Ex. PW-12/D1 to Ex. PW-12/D7.
64. PW-7 Head Constable Harish Chander has deposed that after registration of the FIR Ex. PW-7/A, he sent copy of the FIR at about 07:00 pm on 07.04.2011 to the Ilaka Magistrate and senior police officials through special messenger. Said special messenger has also been examined by the prosecution as PW-13 Constable Ravati Kant who deposed that on 07.04.2011 he was posted as Constable at police station Jaitpur and was deputed as a Special Messenger. He further deposed that at the instance of Duty Officer (PW-7) he delivered computerized copy of FIR no. 86/11 at the residence of Joint CP, DCP (SE) and Metropolitan Magistrate. Nothing has been come in the cross examination of PW-7 and PW-13 which goes against the case of prosecution. Hence, it has been proved from the testimony of PW-7 and PW-13 that copy of FIR of the present case was delivered at the residence of joint CP, DCP (SE) and Metropolitan Magistrate on 07.04.2011 after 07:00 pm.
65. PW-24 Head Constable Rajbir Singh, MHC (M) at police station Jaitpur has stated that on 31.05.2011 as per the instructions of the Investigating Officer, the Exhibits of the present case were sent to FSL through Head Constable Sukhpal Singh (PW-18) regarding which entries were made in register no. 21 vide RC No. 62/21/11 Ex. PW-24/D and RC no. 63/21/11 Ex. PW-24/E and the receipts of the same i.e. Ex. PW-24/F and PW-24/G were deposited back in the malkhana by Head Constable Sukhpal Singh. Head Constable Sukhpal Singh (PW-18) has also corroborated the version of PW-24 with regard to depositing the said two RCs and depositing back the receipts. Hence, it has been proved that on 31.05.2011 at the instance of Station House Officer, PW-18 had taken two sealed pulandas of Exhibits from PW-24 to FSL Rohini for expert analysis and after depositing of the said exhibits, he was giving the SC No. 2353/2016 State v. Firoz 30 receipt Ex. PW-24/F and PW-24/G which he had deposited in the malkhana.
66. Head Constable Rajbir Singh (PW-24) has further proved that on 07.04.2011, Investigating Officer Inspector Surender Singh (PW-26) had deposited the pulanda of the shirt of the deceased as well as pulanda of purse and mobile duly sealed with the seal of SSY in the Malkhana and he made an entry in register no. 19 in his own handwriting at serial no. 486 to this effect Ex. PW-24/A. He has also proved that on 08.04.2011, PW-26 again deposited the viscera duly sealed with the seal of hospital alongwith the sample seal and also deposited the pulanda of the clothes of the deceased alongwith the sample seal.
67. PW-25 Ms. Poonam Sharma, Senior Scientific Officer (biology), FSL Rohini has stated that the three sealed parcels were received on 31.05.2011 which were duly sealed and matched with the provided sample seal. Parcel-1 was cloth parcels sealed with the seal of SSY containing Ex. 1 and Ex. 1 was shirt having brown stains. Parcel- 3 was a sealed envelope sealed with the MSL, Department of Forensic Medicine, AIIMS, New Delhi containing Ex. 3 which was brown gauze cloth piece described as blood in gauze. Parcel-5 was a cloth sealed with the seal of MSL, department of Forensic AIIMS, New Delhi containing Ex. 5a, 5b and 5c. Ex. 5a was dirty pants with belt and Ex. 5 was T-shirt having brown stains and Ex. 5c was one underwear. After biological examination of all these exhibits blood was detected on Ex. 1, 3 and 5b but blood could not be detected on exhibits 5a and 5c. Saliva was detected on Ex. 1. On serological examination, Ex. 1 and Ex. 3 gave A group for blood stains and Ex. 5b gave no reaction. For saliva Stains, Ex. 1 gave no reaction. He prepared her detailed biological report Ex. PW-25/A and serological report Ex. PW-25/B. This witness has proved the biological and serologicial report as Ex. PW-25/A and PW-25/B respectively. It has also been proved that blood was detected on Ex. 1,3 and 5b.
68. Now, I have to consider testimony of last seen witnesses. As per case of SC No. 2353/2016 State v. Firoz 31 prosecution there are two last seen witnesses, namely Sharif Ahmed (PW-9) and Mohd. Sayeed (PW-19). PW-19 has not supported the case of prosecution in respect of relationship between accused Firoz and Afsana, and becoming himself as last seen witness. But PW-9 Sharif Ahmed has supported the case of prosecution. He (PW-9) has testified that on 04.04.2011, he had come from his native place District Muradabad to the house of his uncle Musharaf, who is residing at Madanpur Khandar. His maternal uncle Rafedin is also residing in the other gali at Madanpur Khadar. His uncle (Chacha) Musharaf and his maternal uncle (Mama) Rafedin both are carpenters. On 05.04.2011, he went for a job alongwith his uncle Musharaf at Nizamudin. He returned in the evening. In the evening of 05.04.2011, he went to the house of his maternal uncle Rafedin. He took dinner and stayed there overnight. In the morning of 06.04.2011, he accompanied Rafedin to a place known as Kerala House in Delhi, at his place of job. They returned back to the house of Rafedin at about 07.00 pm. On 06.04.2011 evening, his Mama had given him a treat (Dawat) and meat was cooked at home.
69. PW-9 has further deposed that his Mama Rafedin had not eaten his food by that time. At about 09.00/09.30 pm, one boy named Firoz, who was known to his Mama Rafedin came to his house in his presence and took Rafedin with him. He knew his name as he had also met him and Rafedin on the way in the morning of 06.04.2011, when they were going to place of work. They waited for Rafedin for a long time, but he did not return back. His Mami Smt. Afsana Begum told him to take food as it was not clear at what time Rafedin would return. At about 10.15 pm, he had taken the food and thereafter, he slept. Rafedin had not returned till that time. At about 05.30 am, his Mami Smt. Afsana Begum woke him up and told him that Rafedin had still not returned and asked him to search for him.
70. In his cross examination, PW-9 has deposed that on 06.04.2011 he had made a telephone call at the mobile phone of Rafedin only at once at about 9:30 pm ;
SC No. 2353/2016 State v. Firoz 32that he had a talk with Noor Mohammad @ Chhote face to face when he was sitting in his house and he was present in his house for 5-10 minutes at about 9:30 pm ; that he is not sure therefore, he cannot admit or deny that he had any telephonic conversation with Noor Mohammad on 06.04.2011 at about 9:30 pm; that when he was talking with Noor Mahammad sitting at the house, Rafedin was not present with them ; that at the stage, witness states that he has some confusion whether he had gone to the house of Noor Mohammad at about 9:30 pm or between 8:30 pm to 9:30 pm ; that his last conversation with Rafedin on his mobile was at around 9:30 pm ; that Rafedin had given the party at his own house and he was alone with the Rafedin and no one else was invited in the Daawat ; he did not know Firoz till 06.04.2011 by name, (Vol. He knew by his face); that he cannot pin-point who had told him the name of Firoz ; there was several persons who told him the name of Firoz and those boys were residents of same locality, they knew the name of Firoz ; that he cannot recollect if he had told to the police that he knew the name of Firoz as he had met him and Rafedin on the way in the morning of 06.04.2011 when they were going to the place of work ; he did not know the name of Firoz in the morning of 06.04.2011 and he came to know name of Firoz in the morning of 07.04.2011 ; that he tried searching for Rafedin from 9:30 to 9:45 pm on 06.04.2011 and during that period he had gone to Noor Mohammad's house and in the streets ; that Afsana did not accompany him for searching Rafedin.
71. PW-9 Sharif Ahmed has clearly and categorically deposed that in the evening of 05.04.2011 he went to house of his maternal uncle Rafedin and he took dinner and stayed there over night. In the morning of 06.04.2011 he accompanied Rafedin to a place known as Kerala House in Delhi and they returned back to the house of Rafedin at about 7:00 pm. On 06.04.2011 in the evening his mama Rafedin given him a treat (daawat) and meat was cooked at home. He has also deposed that his mama Rafedin had not ate his food by that time and at about 9/9:30 pm, one boy namely, Firoz who was known to mama Rafedin came to his house in his presence and took Rafedin with him and they waited for Rafedin for a long time but he did not SC No. 2353/2016 State v. Firoz 33 return back. Hence, PW-9 has categorically deposed regarding his reaching at the house of the Rafedin and staying there and further, coming at the house of the Rafedin by the Firoz at about 9:00/9:30 pm on 06.04.2011 and taken Rafedin with him by Firoz. It is correct that he has deposed in his examination in chief that he knew the name of Firoz as he had also met himself and Rafedin on the way in the morning of 06.04.2011 when they were going to place of work, but he has deposed in his cross examination that he did not know Firoz till 06.04.2011 by name but he knew him by face and came to know the name of Firoz in the morning of 07.04.2011 and name of Firoz was told to him by the persons who knew the name of Firoz. It is also correct that PW-9 could not recollect in his cross examination that he had told to the police that he knew the name of Firoz as he had met him and Rafedin on the way in the morning of 06.04.2011 when they were going to the place of work. It is correct that there are some contradictions in the testimony of PW-9 Sharif Ahmed as stated above but same is not material which goes to the root of the case. In respect of contradictions/infirmities in the testimony of the witnesses Hon'ble Supreme Court has held in State of Madhya Pradesh v. Dal Singh & Ors., Criminal Appeal No.2303 of 2009 decided on 21.05.2013 at para no. 7:
"So far as the discrepancies, emlellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, woing to common errors in observation, i.e., errors of memory due to lapse of time, or errors owing to mental dispostion, such as feelings shock or horror that existed at the time to occurrence.
The court must form its opinion about the credibility of a witness, and record a finding with respect to whether his deposition inspires confidence. "Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution's story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of SC No. 2353/2016 State v. Firoz 34 credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of a statement made by the witness at an earlier stage. "Irrelevant details which do not in any way corrole the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, ie., which materially affect the trial, or the core of the case of the prosecution, render the testimony of the witness as liable to be discredited.
72. In A. Shankar v. State of Karnataka, Criminal Appeal No.1006 of 2007, decided on 09.06.2011 and in Madhu @ Madhuranatha & Anr. v. State of Karnataka, Criminal Appeal nos. 1357-1358 of 2011 decided on 28.11.2013. Hon'ble Supreme Court has reiterated the view in respect of circumstantial evidence as stated above paras herein.
73. Hence minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. There are only minor contradictions and improvements in the cross examination of PW-9 Sharif which do not effect the core of the prosecution case.
74. The principle of circumstantial evidence has been reiterated by Hon'ble Supreme Court in plethora of cases. In Bodhraj's case (supra), Hon'ble Supreme Court has held at para no. 9 to 13:
"9. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by SC No. 2353/2016 State v. Firoz 35 direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or facium probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
10. It has been consistenly laid down by the Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukum Singh v. State of Rajasthan, (1977) 2 SCC 99, Eradu v. State of Hyderabad, AIR 1956 SC 316, Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330, State of U.P. v. Sukhbasi, 1985 Supp SCC 79, Balwinder Singh v. State of Punjab, (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P. 1989 Supp (1) SCC 560.) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond SC No. 2353/2016 State v. Firoz 36 any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P., (1996) 10 SCC 193, wherein it has been observed thus : (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
12. In Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 it was laid down that when a case rests upon cirucumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) "10 (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused:
(3) 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 none else: and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence SC No. 2353/2016 State v. Firoz 37 should not only be consistent with the guilt of the accused but should be inconsistent with his innocence ".
13. In State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt."
(emphasis supplied)
75. The abovesaid principle of circumstantial evidence has been reiterated by Hon'ble Supreme Court in Sanjay Thakkran's case (supra) and Nizam's case (supra) which have been relied upon by the learned counsel for the accused.
76. In Sanjay Thakkran's case (supra), Hon'ble Supreme Court has observed in para no. 34.
"34. From the principle laid down by the Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of SC No. 2353/2016 State v. Firoz 38 the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is, to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."
77. In Nizam's case (supra), the principle of "last seen theory" has been SC No. 2353/2016 State v. Firoz 39 discussed in para Nos.14 and 15:
"14........ undoubtedly, the "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
15. Elaborating the principle of "last seen theory" in State of Rajasthan v. Kashi Ram, this Court held as under: (SCC p. 265, para 23) "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the SC No. 2353/2016 State v. Firoz 40 burden placed on him, that itself provides an additional link in the chain of circumstances proved against him, Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohamed, In re, AIR 1960 Mad 218.
The above judgment was relied upon and reiterated in Kiriti Pal v. State of W.B.(2015)11 SCC 178."
(emphasis supplied)
78. In Amit v. State of Maharashtra, (2003) 8 SCC 93, Hon'ble Supreme Court has observed :
"9. The learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was a member in Mohibur Rahman v. State of Assam, (2002) 6 SCC 715, for the proposition that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. In the decision relied upon it has been observed that there may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death. A rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain who and in what circumstances the victim SC No. 2353/2016 State v. Firoz 41 suffered the death or should own the liability for the homicide. The present is a case to which the observation as aforesaid and the principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction............."
79. Hence, for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistence only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
80. PW-9 Sharif is last seen witness and he has fully supported the case of prosecution and his testimony inspires confidence. It has been proved from the testimony of this witness that on 05.04.2011 in the evening, he went to the house of his maternal uncle Rafedin who was residing in the gali at Madanpur Khadar and stayed there over night and in the morning of 06.04.2011, he accompanied Rafedin to a place known as Kerala House in Delhi, at his place of work and they returned to the house of Rafedin at about 7:00 pm. On 06.04.2011 in the evening, his mama Rafedin had given him a treat and about 9:00/9:30 pm, accused Firoz came to his said house in his presence and took Rafedin with him and he slept after taking food at about 10:15 pm and till that time Rafedin did not return. At about 5:30 am on 07.04.2011 his mami Smt. Afsana Begum woke him up and told him that Rafedin had still not returned and asked him to search for him.
SC No. 2353/2016 State v. Firoz 4281. I have already observed that it has been proved on record that deceased Rafedin and his wife Afsana were earlier residing at the house of Dildar Ahmed i.e. House no. C-128, Gali No.10, Kacchi Colony, Madanpur Khadar, near Badi Maszid and he got the tenanted premises vacated from Rafedin and Afsana on coming to know about them from Shakil that atmosphere is not proper and Firoz and Afsana used to make gesture to each other and anything may happen in future, and entire mohalla knew that Dildar had evicted Afsana and her husband from his said house and thereafter, Rafedin and Afsana shifted to the house of Hawaldar i.e. C-17/99, Madanpur Khadar Extension, New Delhi on rent. Further, the mobile number 8826472263 was mostly used by PW-17 Ms. Shabnam and accused Firoz used to make telephone call at the said telephone number who used to ask her to arrange his telephonic conversation with Afsana and she used to call Afsana and used to arrange her telephonic conversation with the accused Firoz. Further, there were outgoing calls from mobile number 9540227214 belonging to accused Firoz to mobile number 8826472263 belonging to Ms. Shabnam one time on 04.04.2011, two times on 05.04.2011 and eight times on 07.04.2011. From these proved evidence, motive of the accused Firoz has been proved that he was having relationship with the Afsana. Further, if the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence lending assurance to the prosecution of the case but even if the prosecution has not been able to prove the motive, that will not be a ground to throw away the prosecution case and the absence of proof of motive only demands careful scrutiny and deeper analysis of evidence adduced by the prosecution as held in Nizam's case (supra) which has been relied upon by learned counsel for the accused.
82. It has also been proved as mentioned in earlier paras that deceased Rafedin and his wife Afsana were earlier residing at the house of Dildar Ahmed and Dildar Ahmed got the tenanted premises vacated from them on coming to know about that atmosphere is not proper and Firoz and Afsana used to make gesture in each other SC No. 2353/2016 State v. Firoz 43 and anything may happen in future ; that Accused Firoz came to the house of Rafedin at 09:00/09.30 pm in the presence of Sharif Ahmed (PW-9) and took Rafedin with him and till 5:30 am on 07.04.2011 Rafedin did not return to the home and then, Sharif Ahmed went to search for him ; that Rafedin was found died on 07.04.2011 at about 04:00/04:30 pm at playground near Samosa Chowk, Madanpur Khadar ; that accused Firoz was arrested on 08.04.2011 at Samosa Chowk, Madanpur Khadar Extension, New Delhi by the PW-26 vide arrest memo Ex. PW-9/E and one mobile phone make G-5 having SIM card number 9891107696 (IMEI No. 353182048655040) and other mobile phone of Vodafone having sim card no. 9540227214 (IMEI No. 353161021843260) and one extra SIM of Idea company were recovered from the possession of accused Firoz ; that mobile number 8826472263 was mostly used by PW-17 Ms. Shabnam and accused Firoz used to make telephone call at the said telephone number who used to ask her to arrange his telephonic conversation with Afsana and she used to call Afsana and used to arrange her telephonic conversation with the accused Firoz ; that there were outgoing calls from mobile number 9540227214 belonging to accused Firoz to mobile number 8826472263 belonging to Ms. Shabnam one time on 04.04.2011, two times on 05.04.2011 and eight times on 07.04.2011; that cause of death of Rafedin was asphyxia due to strangulation. Hence, prosecution has been succeeded to prove the last seen theory.
83. The preposition as held in Kashiram's case (supra) and reiterated in Kirti Pal's case (supra) and Nazim's case (supra) is that if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional SC No. 2353/2016 State v. Firoz 44 link in the chain of circumstances proved against him, Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. In the present case, accused was last seen with the deceased Rafedin, he must offer an explanation as to why and when he parted company of the deceased and explanation should be probable and satisfactory. But accused has failed to offer an explanation on the basis of facts within his special knowledge and hence, he failed to discharge the burden cast upon him by Section 106 of the Indian Evidence Act. Failure of explanation by the accused itself provides an additional link in the chain of circumstances proved against him. Further, failure to adduce an explanation by the accused is considered to be as an additional link which completes the chain. Hence, the circumstances from which the conclusion of guilt is drawn has been fully proved and circumstances are of conclusive nature. Further, all the circumstances are complete, forming a chain and there is no gap left in the chain of evidence. Further, the proved circumstances are consistence only with the hypothesis of the guilt of the accused Firoz and totally inconsistent with his innocence.
84. From the above discussion, I am of the considered view that prosecution has succeeded to prove its case against the accused beyond reasonable doubt. Hence, accused Firoz is held guilty for the offence punishable under Section 302 IPC and he is convicted for the offence under Section 302 IPC.
Announced in the open court on 25.04.2017.
(Sanjeev Kumar) Additional Session Judge-05, South East,Saket Courts New Delhi SC No. 2353/2016 State v. Firoz 45