Delhi District Court
1. This Judgment Shall Dispose Of The ... vs Abdul on 21 April, 2009
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IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST04), DELHI
SC NO. : 3/3/08
State
Versus
1. Abdul Rasheed
S/o Noor Mohd
R/o Village Kansoli
P.S. Nagina, Distt. Nooh
Mewat, Haryana.
Case arising out of
FIR No. : 497/04
U/s : 302/120B/34 IPC
P.S. : Sadar Bazar
Date of FIR : 27.12.2004
Date of Institution : 08.03.2006
Date of Final Arguments : 15.04.2009
Judgment reserved on : 18.04.2009
Date of judgment : 21.04.2009
JUDGMENT
1. This judgment shall dispose of the case titled as State Vs Abdul Rashid for the offence U/s 302 IPC vide FIR No.497/04, PS Sadar Bazar.
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2. The brief facts as emerged from the prosecution story are that the accused Abdul Rasheed is facing trial on the allegations of murder of his nephew Shafiq. On being seen up by the SHO of PS Sadar Bazar, the accused Abdul Rasheed and Israil coaccused are facing trial for the offence u/s 302/120B/34 IPC and the case was committed to the court of sessions by Ld. MM since prima facie case has been made against both the accused persons. Later on, the matter was heard on arguments on charge by the predecessor of this court. The coaccused Israil is discharged for the offence u/s 120B IPC vide order dt. 21.07.2006. The charge u/s 302 IPC was framed against the present accused Abdul Rasheed.
3. Let first look into the allegations as made by the prosecution which are that on 03.09.2004, Rafiq real brother of the deceased Shafiq made a complaint at PS Sadar Bazar informing that Shafiq was a young man of 27 years, he died on 04.08.2004. The deceased was living in company of Abdul Rasheed in Delhi from last several years. The deadbody of deceased was also brought to the native village by 3 the present accused Abdul Rasheed who is the real uncle of deceased and deceased Shafiq was buried on 05.08.2004. The complainant Rafiq alleged in his complaint dt. 19.08.2004 that he has been told by one Farukh and JiyaulHaq that Shafiq has been murdered by Abdul Rasheed, Ismail etc. by giving him poison in Mango shake. On this allegations, the complainant Rafiq suspected upon the accused Abdul Rasheed that he was keeping all his earnings. It was further alleged that all his earnings which were accumulated to Rs.68 lacs. It is further alleged in the complaint that the deceased was also pressing coaccused for a share in the family land of 4 acres approximately and accused Israil had refused to part with any land. It was further alleged in the complaint that the deceased was invited for a dinner by accused Abdul Rasheed where he was given a Mango shake with poison and his food was also laced with poison later on he was throttled with a wooden stick.
The investigation was carried on, deadbody of Shafiq was exhumed and sent for post mortem on 04.12.2004 i.e. after four 4 months of the death of deceased Shafiq. Thereafter on 27.12.2004, FIR was registered u/s 302 IPC. The statement of the witnesses including the statement of one Hanif and JiyaulHaq was recorded. The police also collected the post mortem report, MLC and prepared the site plan. The PW Hanif in his statement dt. 21.02.2006 to the police stated that he knew the accused very well, one day he had gone to the house of accused Israil where he was told by him in conversation that accused Abdul Rasheed and Shafiq both were living in Delhi since long and whenever deceased Shafiq comes to village, he used to stay with Amna wife of accused Abdul Rasheed. This conduct of deceased has brought disreputed to the name of their family and he has decided that he would ask Abdul Rasheed to do away Shafiq. CFSL result was 'negative and ruled out the presence of any poison in the body of the deceased.' The final medical opinion has been collected in which cause of death has been given 'due to head injury which was sufficient to cause death in the normal course of events.'
4. The deceased as per the statement of Hanif was last seen in the 5 company of accused Abdul Rasheed. The accused Israil was discharged, the other coaccused was also put in the column no.2 since been shown to be absconded.
5. From the material collected by the police during the course of investigation and statement of witnesses, a prima facie case has been made out u/s 302 IPC against the accused Abdul Rasheed. As such on 21.07.2006, charge was framed for which accused did not pleaded guilty and claimed trial.
6. The case of the prosecution had begun after framing of the charge with the statement of PW1 ASI Dharam Pal who was the duty officer who lodged the FIR Ex.PW1/A on the basis of the information as recorded in DD No. 22A. The PW2 is complainant Rafiq Ahmed and during his examination he stated that " I was informed by Faruq and JiyaulHaq that death of my brother was due to poison. They disclosed to me the involvement of my Chacha (accused) and three more associated. This information was given to me by them after about 2025 days of cremation of my brother." It is further stated that 6 the deceased was using Reliance Mobile Phone but he do not remember the number and he has learned that the death of his brother took place not because of fever but he was murdered. He further testified that he does not know exactly know as to how deceased had come to Chhoti Masjid on the date of incident. Some says by telephone call and some says by sending some person. Mohd. Israil is elder brother of his father, he has no knowledge of any litigation regarding property matter or any other dispute between his father and Mohd. Israil. He has no knowledge whether his brother was keeping all his money of earning or has no knowledge of distribution of the ancestoral land between his father and his brothers. He has no knowledge of any relationship between Amna and deceased. The Ld. APP for state declared him hostile and cross examined. During the cross examination he stated that he was not aware about the contents of the complaint, he was not aware about the keeping of earnings to the tune of Rs. 6 to 8 lacs with the accused Abdul Rasheed. He has heard that from his father that Mohd. Israil was keeping about 4 acres 7 of land in access but he has no personal knowledge of it and it was not uttered in his presence by Mohd. Israil that he would give them death instead of land. He has no knowledge of this fact mentioned in the complaint Ex.PW2/A. He has no personal knowledge about the illicit relations of Amna and the deceased.
During the cross examination of defence counsel, PW2 Rafiq has admitted that accused and his two associates have been acquitted in a case of Gurgaon and the accused is not involved in any other case. His complaint was got typed by some other person. It is admitted that he has no personal knowledge of all the contents of the complaint except some facts. He has signed the complaint Ex.PW2/A when it was brought to him after typing of the same and he does not have the personal knowledge of the contents of the complaint. It is also admitted that he has no knowledge of the fact that dead body was recovered from Chhoti Masjid.
7. Since PW2 complainant in his deposition stated that he received information with respect to the murder of elder brother Shafiq from 8 Faruq and JiyaulHaq. Therefore, before examining the statements of other witnesses let us examine statement of Faruq and JiyaulHaq.
PW7 Md. Farukh stated in his deposition that he does not know anything about the murder of Shafiq. He has also been declared hostile by Ld. APP for state and he denied every suggestion made by Ld. APP. He has also confronted from his statement Ex.PW7/A to C. He has denied of having made any such statement to the police. It is also denied that he is deposing falsely as won over by the accused.
PW8 JiyaulHaq stated that he does not know any person namely Shafiq Ahmed. Therefore, this witness has also declared hostile by Ld. APP for state and being confronted from his statement recorded u/s 161 Cr.P.C. During the course of deposition, the PW8 stated that he was not interrogated on 03.01.2005 by the police nor his statement was recorded. It is denied that Sallauddain, Illiyas and Hujjaifa had disclosed that accused Abdul Rasheed called them and Shafiq at Chhoti Masjid, Sarai Khalil and they tied hands and legs of Shafiq and thereafter Abdul Rasheed strangulated Shafiq by putting a 9 wooden plank on his neck and pressing the same. It is also denied that he has seen the deadbody of Shafiq. It is further denied that his statement Ex.PW8/A is recorded by the police.
8. The other public witnesses are PW3 Mohd. Idrish father of the deceased Shafiq and the complainant Rafiq. The deceased Shafiq was the elder son and Rafiq is younger one. It is further submitted that no reason was told by anyone of causing murder of his son by the accused Abdul Rasheed. There was some difference over the distribution of ancestral land between himself and his brother. The land was approximately three kilas but there was no litigation. He does not no how much amount his son has given to the accused Abdul Rasheed. The police had collected the blood sample of him and his wife for DNA fingerprinting.
In cross examination of defence counsel, PW3 stated that he know that accused has acquitted in the murder case of his wife Amna and to his knowledge there was no illicit relation between his deceased son and Amna. He has no knowledge about the contents of 10 the complaint signed by his son Rafiq. Today he does not remember the name of any of the persons who were talking of the murder of his son. After digging the grave the deadbody was kept in that and was covered with a stone slab. he was present when the deadbody was exhumed. When the deadbody was brought he came to know from the talk that his son was given poison and strangulated and having marks on the body. JiyaulHaq and Faruq had told this fact to him. They had told this fact after about 25 days of the cremation of the deadbody.
9. PW5 Jaan Mohd. is totally hostile witness and did not support the case of the prosecution on any point of time.
PW9 Nizamuddin, PW10 Harun have also not stated anything against the accused with respect to the reason of the death of Shafik.
PW12 Ashraf also stated that he does not now where the death had taken place and he has no knowledge of any relations between Amna and deceased. He had heard about the death of the nephew of the accused and police had come in this connection. He has 11 no idea how the deceased died nor accused told him anything about that.
PW13 Mohd. Sultan also stated that he also have no idea why the police had come and he also declared hostile by Ld. APP for state. During the cross examination of Ld. APP for state he denied that he told to the police in his statement dt 04.08.2004 that he went to Chottey Masjid and saw a deadbody which was of Shafiq and accused Abdul Rasheed told him that the deceased was his nephew and died due to some unknown illness. It is also denied that he was suppressing the truth deliberately. In cross examination of defence counsel, it is stated that he does not know the contents of Ex.PW13/A and he cannot tell the name of the writer of Ex.PW13/A . He also stated that he cannot tell the time when police came and left the Masjid and their mode of transport.
PW14 Afzer Patel has also been declared hostile by the Ld. APP for state, since being not supported the statement as recorded by the police during the course of investigation. It is denied that after the 12 death he had come to deceased's room to collect his belongings. It is also denied that the belongings of Shafiq were kept in his room. It is also denied that the same were collected by deceased's brother after 1520 days of his death. It is also denied that the deceased had told him that his uncle was a Imam in Chottey Masjid. He has also confronted from his statement recorded u/s 161 Cr.P.C. vide Ex.PW14/A. It is further denied that he has been won over by the accused and deposing falsely.
10. PW15 Mohd. Hanif stated that he knew the accused as he was his neighbour and he came to know about the death of Shafiq as his deadbody was brought in the village Kansali. He has seen Shafiq many times as and when he came to Masjid Sarai Khalil where Rashid used to live. He has seen Shafiq last time in the Masjid of Sarai Khalil 23 days prior to the hearing in the news of his death. Amna was the wife of Rasheed. One day Israil had told him that due to the bad/illicit relation between Amna and Shafiq they were defamed in the village. Last time deceased Shafiq was seen in Delhi on 04.08.2008 and his 13 deadbody was received on next day i.e. on 05.08.2004. In the cross examination of defence counsel it is stated that there were 23 rooms in the Masjid where accused Abdul Rashid was living. These rooms were situated on second floor. He was not very well conversant with the geography of Delhi and therefore he cannot tell the route to follow the Masjid where Rasheed was living. The door of the room of the Masjid where Rashid and shafiq were seen by him were of wood and of green colour. He does not know who was the Imam of the Masjid. The bathroom and latrine from the room in Masjid is situated at the distance of 2530 yards approximately. There was no room in the Masjid. There were many shops in front of Masjid. He could not tell specifically as to what items on these shops were being sold. He does not remember the date on which he offered the Namaj in the Masjid. Accused was living in Hujra adjacent to the place where Namaj was offered; Hujra used for resting of the Imam and the relatives of the Imam. He was not aware that Hujra means room in Hindi. He does not remember the exact date on which I met with Israil. It may be 14 fourth or fifth in the month of July or August in the year 2004 or 2005. His chacha does the work of Rewri and Gajjak made by Gur. He alongwith his chacha came to Delhi 23 times and stayed with him in Masjid. They were purchasing the material from Sadar Bazar Delhi but he does not know the name of the shop. The goods are transported to the village from the shop and not brought to the Masjid. It is denied that there was any particular time written inside the Masjid when the Namaj is offered everyday except Jumma. It is also denied that he has not seen Rasheed and Shafiq together in the Masjid on 04.08.2004.
11. PW30 Mohd. Usman stated in his deposition that his daughter Amna told him that accused Abdul Rasheed had killed Safiq and also told that Abdul Rasheed had extended the threat to kill her also. He requested accused Abdul Rasheed to take Amna back. Accused Abdul Rasheed replied that Amna was ill and after treatment accused would leave Amna to her house. According to his statement PW Mohd. Usman is also a witness of heresay.
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12. There is no other public witness examined. Other witnesses are police officials and doctors.
PW17 Dr. Sanjeev Malhotra had conducted the post mortem and opined that the injury was antemortem in nature. The skull bone was showing infiltration of blood. The brain matter was showing reddish colour and was dried. The bones were sealed in a jar for DNA test if required. Viscera was separately preserved. The post mortem report is Ex.PW17/B. On 11.02.2006 he received FSL report alongwith report of DNA finger print. He examined the post mortem report in the light of these reports and gave his final opinion regarding cause of the death which was head injury described in post mortem report as injury no.1 which was antemortem and was sufficient to cause death in ordinary course of nature. Final opinion is Ex.PW17/D. In cross examination of defence counsel he stated that at the time of final opinion no weapon was produced before him.
PW18 Dr. Jagdish Parsad Sahu stated that in his presence the deadbody of Shafiq was exhumed. Two sample below the side of 16 stomach and perianal region were taken and sealed. The body was in high state of putrification hence post mortem could not be conducted at General Hospital Mande Khera and after sealing the body it was sent to PGIMS Rohtak. The report is Ex.PW18/A.
13. PW11 Dr. A.K. Srivastava conducted the DNA finger prints of bones of deceased and also blood samples of Idrish and Rahisin i.e. father and mother of deceased were collected in FSL Rohini, the report of which is Ex.PW11/A. As per the report the sources of exhibits '1', '2' and '3' were subjected to DNA isolation. The source exhibit '1' yielded degraded DNA which was amplified and did not give any DNA profile. Therefore, no opinion was offered from laboratory.
PW24 Sri Narain, Sr. Scientific Officer proved the examination of contents of all the four sealed parcels and the report is Ex.PW24/A and Ex.PW24/B. As per the report on chemical examination, metallic poisons, ethyl and methyl alocohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and insecticides could 17 not be detected in exhibits '1A', '1B', '2A', '2B' and '2C. Similarly, opined with regard to sealed parcel Ex.24/B.
14. The other PWs are police officials who have joined in the investigation. PW1 ASI Dharampal, duty officer, PW4 W SI Rajni was also duty officer, PW6 ASI Raj Kumar MHC(M) kept the sealed pulanda and entered in Register no.19.
PW16 Ct. Ramesh also collected one sealed Jar having bones of the deceased. The same was deposited in FSL Rohini.
PW19 HC Subhash alongwith Tehsildar F.P. Jhakka and three doctors from government hospital, local police and Rafiq and Idris went to the graveyard of village Kansali. Rafiq and Idris identified the graveyard of Shafiq. The graveyard was dugged and a deadbody taken out. Doctor collected the earth from the place inside the graveyard. The deadbody was sent to mortuary PGIMS Rohtak in sealed condition.
PW20 Ct. Satbir is the witness of disclosure statement of accused Abdul Rasheed and also of pointing out memo. 18
PW21 Ct. Vijay Pal also the witness of arrest of accused Abdul Rasheed vide Ex.PW21/A and Ex.PW21/B. PW22 SI Megh Raj took the sealed pulandas vide DD No. 13 A and deposited the same in FSL Rohini.
PW23 Devender Singh was the draughtsman and PW25 Nand Kishore was Ahlmad of District Magistrate, Gurgaon who brought the summoned record.
PW26 HC Dalel Singh was MHC(M) who entered the result of viscera in register no.19. PW27 Ct. Suresh Kumar obtained five sealed envelopes and deposited the same with the MHC(M).
PW28 Rajinder Singh was Tehsildar who received the permission for digging the grave of deceased Shafiq vide Ex.PW25/A. PW29 SI Saket Kumar conducted the inquiry on the complaint Ex.PW2/A and sought permission from the SDM for dealing with the deadbody of Shafiq Ahmed.
15. PW31 Insp. Baltej Singh stated in his examination that investigation was carried on by him and also stated in his cross 19 examination that he does not remember the DD entry by which drftsman was called to prepared the scaled site plan and visit of site. He also do not remember the total number of pages written by him and handed over to MHC(R). He also does not remember the DD entry by which he left for Fazilka and the same is answer regarding arrival entry. He also does not remember name of the police officer who accompanied him up to the graveyard. He cannot say if the labourer were not expert and well acquainted with the technique to take out the deadbody from the graveyard. It is also denied that he is deposing falsely.
16. PW32 Insp. P.S. Malik collected the result of viscera from the FSL Rohini and deposited the same in Malkhana. He obtained viscera from malkhana on 17.10.2005 and placed on record. On 30.11.2005, DD No. 22A was recorded at PS Sadar Bazar which was received from SHO of PS Nagina Haryana. Accused Abdul Rasheed and Mohd. Israil were arrested vide memo Ex.PW21/A and Ex.PW21/B. The weapon of offence i.e. rope and danda could not be traced out. He has 20 not examine any neighbour nor took the measurement of the room. He further stated that deceased used to take classes in Madarsa, but he cannot give the exact time from which month to which year. Accused Abdul Rasheed left the job of Imam at Chotti Masjid Sarai Khalil in the last week of August 2004. He cannot tell to which month accused Abdul Rasheed received his last salary. He did not interrogate the wives of deceased and accused. He cannot tell how many people besides accused were staying in the Masjid. He does not remember on which phone number accused had called the deceased and by which phone he made a call to deceased. He did not recorded the statement of driver who took deadbody of deceased to the village nor he remember the vehicle number. The weapon of offence could not be recovered and he could not tell wherefrom the Mango shake and the poison were purchased. He could not get the details about money transactions between accused and deceased. It is also denied that he did not properly investigate the case and it is also denied that the deceased died due to natural death. It is also denied that he obtained 21 the signature of the accused on plain papers. It is also denied that there was a litigation between complainant and the accused on land situated at Native place i.e. village Kansali.
17. Prosecution cited in the list of witnesses 36 witnesses and examined 32 witnesses. After closing of the prosecution evidence, statement of accused u/s 313 Cr.P.C. recorded and all the incrimidatory evidence led by prosecution were put to the accused for which he denied as false and incorrect and stated that the witnesses are interested witnesses. Accused do not want to lead any defence evidence and stated that he has been falsely implicated in this case.
18. I have heard the submissions of the Ld. counsel for the accused and Ld. APP for state and carefully gone through the material on record.
Ld. APP for state submitted that PW15 Md. Hanif is the witness who had seen the deceased last. He saw the deceased in the company of the accused last time on 04.08.2004. Thereafter the accused Abdul Rasheed took the body of the deceased in the native 22 village next day i.e. on 05.08.2004.
PW13 Mohd. Usman father of Amna who had stated that his daughter Amna told him that Abdul Rashedd had killed Shafiq and also extended threat to kill her. Apart from it, the post mortem report revealed that the death of the deceased was due to head injury as sustained by the deceased. It is further submitted that the chain of evidence in all respect is completed. The testimony of all the prosecution witnesses inspire confidence, trustworthy and corroborative. There is no oral or documentary evidence which can disbelieve the circumstantial evidence as produced by the prosecution. Therefore, the accused is liable to be convicted and punished in accordance with the charges framed against him.
19. On the contrary Ld. counsel for the accused submitted that the charges leveled against the accused is either to be established by direct evidence or by proof of circumstances from which legitimate influence of the existence of the allegations can be drawn against the accused beyond all reasonable doubts. The statement of Hanif that he 23 met with the accused Abdul and told him that he would do away and would ask Abdul Rasheed to do away the deceased for the reason given in the statement even if allowed to remain unrebutted, would not be sufficient to frame the charge for the offence of conspiracy in absence of any further evidence by way of showing that thereafter both the accused had agreed between themselves to cause murder of Shafiq was caused in the agreement of two of them. It is further submitted that the police in the course of the investigation has not collected any evidence to show that there was any agreement between the two accused Abdul Rasheed and Israil to cause the murder of Shafiq. There is no evidence on record to show that the offence in question was caused to be done by the accused. The police had not collected any evidence to show that the execution of the offence was caused by accused Abdul Rasheed. There is no statement of Van Driver was recorded nor number of Van is available with the police. The wife of the deceased was also not interrogated. The complainant who have heard the cause of death by the accused from Faruq and 24 JiyaulHaq themselves are witnesses of heresay. The PW Faruq and JiyaulHaq also been declared hostile and not supported the case of the prosecution on any point of time. All the three material witnesses including the complainant are hostile. The PW Idrish father of the deceased, PW5 Jaan Mohd, PW10 Hussain, PW12 Ashraf, PW13 Mohd. Sultan and PW14 Afzer Patel are being declared hostile and not supported the case of the prosecution on any occasion. This is a case of no evidence against the accused Abdul Rasheed even if the entire case of the prosecution admitted as a gospel truth.
It is further submitted that the post mortem report revealed the cause of death is due to head injury however allegations made is about the poison in 'Mango Shake' which is ruled out by viscera report proved by PW11 Dr.A.K. Srivastava and PW24 Sri Narain,Senior Scientific Officer of FSL. The DNA test also found to be negative in result with respect to the allegations of throttling. There is no danda or rope recovered nor any witness as alleged. Post mortem report also has not opined any mark or bruises around the neck. The manner in 25 which investigation has been conducted is also suffered a lot of irregularities and defects in the investigation. The PW32 Insp. B.S. Malik and PW31 Insp. Baltej Singh during their cross examination stated that they had not collected the evidence with respect to the money transaction between accused and deceased. They have not interrogated the driver of the Van and wife of the deceased and they also had not collected the phone number of the accused and the call details of the accused and deceased. They have also not collected how many persons were staying in the Masjid. They have also not collected the name of the secretary of the Masjid. The have also not examined wherefrom the Mango Shake was purchased and who had purchased the Mango Shake. There is no documentary proof with respect to the litigation and ownership of the land at village Kansali. Defence counsel had also placed in the examination of PW23, certified copy of the judgment of Gurgaon Court wherein present accused is also one of the accused for the allegation of the murder of his wife Amna in which PW Mohd. Usman stated that " Amna was his 26 daughter who was married to the accused Abdul Rasheed in the year 1994 and she was having two children. He further stated that Abdul Rasheed used to keep his daughter nicely and there were no differences between them. His daughter was living at Delhi with her husband and children but he do not know as to what happened with Shafiq in Delhi. He further stated that he do not know as to how his daughter died nor she had told anything to him. He had categorically stated that the accused had not caused the death of his daughter Amna. PW Usman has also been cross examined but he did not uttered anything against the accused Abdul Rasheed." The counsel for the accused also relied upon :
(i) 2004(II) SC 291 case titled as Sakatar Singh & Ors. Vs State of Haryana.
(ii) 65 DLT 786 (BD) case titled as Vinod Kumar & Anr. Vs State & Anr.
(iii) 2007 (3) C.C. Cases (HC) 61 case titled as Manpreet Kaur Dhaliwal Vs State of Punjab.
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With these submissions prayed for acquittal of the accused.
20. In simple parllance, murder requires, positively, the mental element traditionally known as 'malice aforethought' and negatively, the absence of certain mitigating circumstances that would turn the case into one of man slaughter.
The causing of death of a person by doing an act accompanied by intention in the two ways described in this section or with the knowledge also described i.e. that the section refer to intention apart from knowledge and refers to knowledge apart from intention.
Intention and knowledge both postulate the existence of a positive mental attitude and both of them commonly go together, yet they are two different things. There may be an intention without knowledge and vice versa. Knowledge is an awareness of the consequences of an act.
Knowledge as contrasted with intention would more properly signify a state of mental realisation in which a mind is a 28 passive recipient of certain ideas and impressions arising in it or passing before it. It would refer to a bare state of conscious awareness of certain facts in which the human mind might itself remain supine or inactive, on the other hand intention connotes a conscious state in which mental faculties are roused into activity and summoned into action for the deliberate purpose of being directed towards a particular and specified end which the human mind conceives and perceives before itself. This view is taken by Apex Court in case titled as Fakira AIR 1955 All 321 and Mer Dhana Sida AIR 1985 SC 386, it is observed that where the accused gave blows on the head of the deceased with sticks and they intended or knew themselves to be likely to smash their victim's skull, it was held that they must be taken to have known that they were likely to cause the death of the victim and were, therefore guilty of culpable homicide not amounting to murder. Where death was caused by giving a number of blows with a lathi but the injuries were all simple except one which fractured a finger bone and death was due to shock, it was held that the assailants 29 did not intend to cause death or bodily injury which was sufficient in the ordinary course of nature to cause death, but they must be presumed to have known that they were likely to cause death and that they were, therefore guilty of an offence under the second part of this section amounting to murder.
21. In the criminal trial, the prosecution is duty bound to prove its case against the accused beyond reasonable doubt. Before recording the guilt of the accused, the court is required to satisfy itself that the possibility of the innocence of the accused is ruled out. The evidence produced on the record must convince the mind of the court beyond all reasonable doubt. The golden thread running into the web of criminal justice system has laid down the rule of prudence that the court must insist higher degree of proof in criminal cases as compared to civil cases. The court cannot record the conviction on suspicion or conjecture. There is presumption of innocence in favour of the accused and therefore, the burden of proving the charge is on the prosecution. Reference can be made to the State of Punjab Vs. Jagir 30 Singh. (1974) 3 SCC, 277. In the above noted case the apex court inter alia held as under:
" A criminal trial is not like a fairy tale wherein one is free to i.e. flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty for the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures. There cannot be any specific formula for the appreciation of evidence. Law is a science and the application of the same is an art. The provisions of the statute are to be interpreted keeping in view the peculiar facts and circumstances of each case. Each case presents its own features. The evidence on record is to be considered as a whole irrespective of the fact that it has been led by the prosecution or accused. 31 Ld. Counsel for the accused has assailed the case of the prosecution on several grounds. I propose to take the issue raised by the defence as follows.
Ld. Counsel for accused has pointed out several lacunas in the investigation and has submitted that the case of prosecution cannot be accepted as it is culmination of tainted investigation. It has been submitted that there are several lecunas in the investigation and the Investigation Officer failed to carry out the investigation on the expected lines. Investigation is the main component of the Criminal Justice systems. Fair investigation is the right of the accused and tainted investigation is bound to prejudice the accused. It is also a matter of common knowledge that investigating agency sometime fails to carry out the investigation as per norms. The investigation part in the Criminal Justice system requires lot of improvement. The Scientific investigation is also the need of the hour. In the present case also there are certain lacuna in the investigation but no further investigation was carried out in this regard. However, rejecting the case of the prosecution 32 merely on the basis of defective investigation would amount to paying the premium for the faults of an Investigating Officer. It would also amount to playing into the hands of Investigation Officer.
Reference can be made to Karnal Singh Vs. State of M.P. (1995) 5 SCC 518. In this case the apex court inter alia held as under: " Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused persons solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer, if the investigation is designedly defective"
It has also been held time and again by the superior courts that in the case of defective investigation the case of the prosecution should be examined dehors such omissions otherwise the mischief done deliberately would be perpetuated and justice could be denied to the complainant party. Reference can be made to Ram Bihar Yadav Vs. State of Bihar (1994) 4 SCC.517. In Dhanaj Singh Vs. State of 33 Punjab AIR 2004 SC 1920, the apex court dealt with plea of tainted investigation and inter alia held as under: " In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective."
In Paras Yadav and others Vs. State of Bihar (1999 (2) SCC
126) it was held that " if the lapse or omission is committed by the investigating agency, the prosecutions evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the Courts; otherwise the designed mischief would be perpetuated and justice could be denied to the complainant party."
22. It was also observed in Ram Bihari Yadav Vs. State of Bihar and others( 1998 (4) SCC 517) that " if primacy is given to 34 such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice"
23. In order to apply the facts and circumstances of the case within the framework of the definition of section 300 IPC, the prosecution has to establish three expressions motive, knowledge and intention. The motive is something which prompts a man to form an intention and knowledge is an awareness of consequences of the act. More often intention and knowledge merge into each other and mean the same thing. More less an intention can be presumed from knowledge.
24. Assailant have any motive to take the life of deceased Shafiq either to have any intention on record that he is having Rs.68 lacs deposited by the deceased from his hard earning or the deceased have any agricultural land which have intention acquiring the same by the assailant or there is any illicit relationship between the deceased 35 Shafiq and Amna the wife of the accused Abdul Rasheed. The PW30 Mohd. Usman father of Amna is a witness of heresay evidence as his daughter Amna told him that the accused Abdul had extended threat to kill her and also kill the deceased. The PW30 Mohd. Usman in the court of Sh. Sanjeev Kumar, ASJ, Gurgaon examined as PW3 and stated that there is no differences between the accused and his daughter Amna. He does not know what happened with Shafiq in Delhi, he also does not know how his daughter has died nor she has told anything to him. Therefore, the statement of Mohd. Usman is different and contrary from his statement. Therefore, his testimony does not inspire confidence and cannot be relied upon.
25. PW2 Rafiq is complainant and he himself is a witness of heresay and he has heard regarding the death of his elder brother Shafiq from the PWs Faruq and JiyaulHaq. PW Faruq and JiyaulHaq have stated that they do not know anything about the murder of Shafiq and both of them have confronted from their statements u/s 161 Cr.P.C. The other public witnesses PW3 Mohd. Idrish is also a heresay 36 witness who stated that " we hear that my son was murdered". PW5 Jaan Mohd. is also a heresay witness, he stated that " I heard that deadbody was brought from Delhi and he came to know about the death of Shafiq". It is denied that the deadbody was having a rope marks on the hands and neck and the blood was coming from nose and mouth of the body. He also denied that he had made any statement Ex.PW5/A. PW9 Nizamuddin stated that " .... I was not told by Rasheed about the reason of death of Shafiq ....".
26. PW10 Harun stated that he has seen the deadbody of the deceased Shafiq at the time of bath during last rites of his body which was having marks on the hands and legs. PW12 Asraf stated that he does not know the name of the deceased nor seen him. He also stated that he has no idea how the deceased died nor accused told him anything about that. He also stated that he has no knowledge of any relations between Amna and deceased. In the cross examination of Ld. APP he has not supported the case of the prosecution. 37
PW13 Md. Sultan stated that he has not seen any deadbody in Chhotey Masjid and accused did not disclosed anything about the deadbody. He has denied that he has told anything to the police in his statement on 04.08.2004 and he also denied that accused told him tha he was his nephew and died due to some unknown illness.
PW14 Afzer Patel also declared hostile. He stated that he was not sharing room with the deceased and deceased has not told him about his job. He does not remember the date when the deceased had come to his house last. He does not know in which Masjid the deceased Shafiq had died. He also did not supported the case of the prosecution and declared hostile by Ld. APP for state.
Therefore, in view of the testimony of the aforesaid witness whose deposition have not supported the case of the prosecution on any occasion. They have not stated that when the deceased was last seen with the accused or the deceased has taken a dinner on the invitation of the accused.
26. PW15 Mohd. Haneef stated hat he came to know 38 about the death of the deceased Shafiq when his deadbody was brought in village Kansali, he has seen the deceased Shafiq last time in the Masjid of Sarai Khalil 23 days prior to the hearing the news of his death. One day Israil had told him that due to the relation between Amna and Shafiq they were defamed in the village. Israil however, told him that in case Shafiq and Amna understand themselves, it all right otherwise there is a great opposition from our side. He has also seen the deceased Shafiq in Delhi on 04.08.2004 and the deadbody of the deceased was brought on the next day in the village on 05.08.2004. This witness also does not inspire any confidence and cannot be relied upon and whatever he has stated in the court, he stated on the information as given to him by the Israil who is also hostile in this case.
27. In a criminal trial the degree of proof is sticker than what is required in civil proceedings. The charges against the accused must be proved beyond all reasonable doubts. The required proof cannot lie in the realm of surmises and conjecture. 39
28. Doubts would be called reasonable if they are free from a zest for abstract speculation, or free from an over emotional response. Doubts must be actual land substantial doubts as to the guilt he accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions.
In order to appreciate the evidence, the court is required to bear in mind the set up and environment in which the crime is committed. When the evidence adduced did not conclusively lead to the guilt of the accused and only pointed needle of suspicion towards the accused and nothing more, he cannot be convicted for murder because suspicion is no substitute for proof in criminal trial. This view is also taken in case titled as Jagga Singh Vs State AIR 1995 SC 135.
The test of creditworthiness or acceptability ought to be the guiding factor and if so, question of raising an eyebrow on the reliability of witness being an interested witness would be futile in the event the evidence is otherwise acceptable, there ought not to be any 40 hindrance in the matter of prosecutor's success. The evidence must inspire confidence, there is no justifiable reason to reject the same.
29. The circumstances from which an inference as to the guilt of 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. This view is taken in case titled as Bhagat Ram Vs State of Punjab AIR 1954 SC 621, where the case depends upon the conclusions drawn from circumstances, the cumulative effect of circumstances must be such as to negative the innocence of accused and bring the offences home beyond any reasonable doubt. Similarly in case titled as State of U.P. Vs Ashok Kumar Srivastava AIR 1992 SC 840, it is 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 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 41 must be consistent only with the hypothesis of guilt. What is important is that he possibility of the conclusions being consistent with innocence of accused must be ruled out altogether.
It has been consistently laid down by Apex 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.
Mere suspicion, however strong or probable it may be, is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between may be true and must be true and this basic and golden rule only helps to maintain the vital distinction between conjectures and sure conclusions to be arrived at one the touch stone of a dispassionate judicial scrutiny based upon a complete and 42 comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. 30 In this case all the public witnesses whatever relations with the accused or to the accused have not supported the case of the prosecution. They all have deposed in different manner and being also confronted from their statement recorded during the course of investigation. Their testimony based only on their personal knowledge or on information withdrawn or heard from other persons and also having material contradiction. In case titled as Sakatar Singh & Ors. Vs State of Haryana (2004) 11 SCC 291, Hon'ble Justice N. Santosh Hegde and B.P. Singh observed that based on the erroneous inferences drawn on unproved facts and placing reliance on statements of interested witnesses whose evidence as not stood the test of cross examination, the trial court came to a wrong conclusion as to the guilt of the accused persons. The three letters which though not very proximate in time clearly show that there was no demand as alleged by the prosecution by the accused and the contents of the said 43 letter clearly show that the allegation made after the death of the deceased of dowry demand or harassment leading to cruelty is unsubstantiated. For all these reasons the trial court committed serious error in coming to the conclusion that the prosecution had established its case against the appellants.
31 Therefore, in view of the aforesaid discussion and the facts and circumstances of the case and the material cited, the present case is based on circumstantial evidence. The last seen evidence alleged to be of PW15 Mohd. Haneef who on one point of time stated that he has last seen the deceased on 04.08.2004 and he had seen his deadbody of the deceased when it was brought to village on next date i.e. on 05.08.2009. In his examination, he has stated that " I had seen Shafiq last time in the Masjid of Sarai Khalil, 23 days prior to the hearing the news of his death". He further stated that ".... Israil had told me that due to the relation between Amna and Shafiq they were defamed in the village ...". In cross examination of defence counsel, he stated that there were 23 rooms in the Masjid where Rasheed was 44 living. He does not who was the Imam in the Masjid. He offered Namaj in the Masjid only 1 or 2 times. He does not remember the exact date on which he met with Israil. Similarly, he given the deposition with respect to the other question made by defence counsel stating that he does not remember. He is also declared hostile by prosecution.
32 With respect to the scientific and medical evidence, the PW17 Dr. Sanjeev Malhotra conducted the post mortem on the deadbody of the deceased Shafiq and examined the report of DNA finger prints and given his final opinion regarding the cause of death which was head injury as injury no. 1 which was ante mortem. The DNA report with respect to the blood sample and bones of the deceased was also compared with the blood samples of Idrish father of the deceased and of the mother of the deceased and opined that " the sources of the Exhibits '1' '2' & '3' were subjected to DNA isolation. The source of Exhibit '1' yielded degraded DNA which was amplified and did not give any DNA profile. Therefore, no opinion is offered 45 from this laboratory."
The another expert opinion is of Sri Narian, Senior Scientific officer of FSL who also ruled out the possibility of any poison etc. Therefore, all the three expert opinion does not supported the story as framed up by the prosecution. The prosecution in one hand stated that the deceased Shafiq was given poison in Mango Shake this fact has been ruled out by FSL report vide Ex.PW24/A and Ex.PW24/B. The another story is that Shafiq has been strangulated by throttling. But there is no mark of appraisan or bruises found around the neck, hands or legs nor any rope or wooden stick were recovered. There is no corroborative piece of evidence with respect to the alleged story nor the same is being corroborated by any other piece of evidence. The post mortem report shows that the injury no.1 on the skull bone was showing infiltration of blood. The brain matter was showing reddish colour and was dried. There was a contusion size 10 x 7 Cm on the right paritotamporral region. There is no evidence which corroborated the alleged injury neither the same has been with 46 the disclosure statement of the accused persons nor any circumstantial evidence proved that the said injuries were either caused by the accused or the same have been resulted when the body was kept in the grave yard with help of heavy stone slab which was kept on body of deceased Shafiq. The PW Mohd. Idrish father of the deceased stated that they gave the bath and removed the cloth and then they have gone for cremation. None of the witnesses who had cremated the deceased have observed any blood contusions as mentioned in the post mortem report.
33 Where a single blow is inflicted and does not proved that it was the intention of the accused to cause the death hitting blow on head but there is no evidence brought to this effect which shows that the blood as observed in the post mortem report is caused by which of the weapon and in which manner even in the disclosure statement of the accused there is no such story revived which corroborated with the medical evidence. The last seen evidence is that the deceased was seen with the accused, it itself is not sufficient to 47 held the accused guilty.
34 It is a fundamental principal in a criminal procedure that the accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubts. The burden never shifts and always left on the prosecution.
All view against the background of the case is of previous enmity between the accused and the deceased. But there is no occular evidence produced in this respect. All the material witnesses are hostile on all material aspects. There is no weapon of offence has been recovered by the police during the course of investigation. Even the case of the prosecution has not been supported with either to the disclosure statement of the accused or to the FSL results, post mortem report or either to the DNA fingerprints report. There is long delay from the date of the offence till the recovery of body of the deceased and there is no explanation given to this effect. There is no corroboration of any evidence to this effect. The circumstantial 48 evidence should be considered in its proper perspective. Where circumstantial evidence consists of a chain of continuous circumstances linked up with one another, the court has to take cumulative effect of the entire evidence led by prosecution before acquitting or convicting an accused. The court cannot truncate and break the chain of circumstances and consider them separately or in isolation. The circumstances as tried to establish by the prosecution through an evidence raised, to be an influence to be inconsistent either individually or jointly or conjoint. It commulatively lead only one irresistible consequence that the accused is the author or not.
27. In arriving at the conclusion about the guilt of the accused, the court has to judge the evidence by the yardstick of probabilities. Every case in the final analysis will depend upon its own facts and no rule of universal application can be laid down. The guilt of the accused has to be judged on the basis of evidence before the court.
The credibility and reliability of a witness primarily has to be decided by referring to their evidence and by finding out as to how 49 the witnesses have fared in cross examination and what impression has been created in the mind of the court.
The case of the prosecution is based on the last seen evidence and the circumstantial evidence. The last seen evidence said to be of Mohd. Haneef who also testified that he has heard the talks of the accused with the deceased Shafiq from some other sources. FIR was lodged after delay of more than three and a half months. The post mortem of the body of the deceased was conducted which is contrary to the disclosure statement of the accused persons as well as there is no such story nor any PW has corroborated to this effect and there is no inter connected found found in the case of the prosecution to this effect.
No motive for the murder of the deceased Shafiq has been proved by the prosecution by any oral or documentary evidence. The certified copy of the judgment wherein the alleged murder of the wife of the accused has also been unable to prove by the prosecution and is also supporting the defence of the accused and there is no reliability of 50 the prosecution witnesses since they are hostile.
The case of the prosecution had created double creep in the mind of the court as to whether an appropriate justice has been made available to an accused in the justice system of the country. There is no witness of the occurrence and in the manner of the occurrence or the circumstances in which the alleged occurrence has taken place. The witnesses appeared in their cross examination and turned hostile one after the other. There is no such deposition which can be relied upon any part of the evidence of such witnesses. The prosecution in one hand has stated that the deceased Shafiq was given poison in Mango Shake but the report of FSL is ruled out any poison, on the other hand it has also been alleged that the deceased was throttled by tie his legs and hands. There is no Lathi or Rope recovered nor any scientific or medical opinion to corroborate the said allegation against the accused.
28. As discussed above and the law as cited, I came to the definite conclusion that the evidence as led by the prosecution in 51 totality is conclusively inconsistent which lead to the innocence of the accused. The circumstances as put up before the court are not of the conclusive nature and tendency. The evidence produced by the prosecution did not conclusively lead to the guilt of the accused and only pin point needle of suspicion towards the accused and nothing more. Therefore, he cannot be convicted of murder because suspicion is not substitute or proof in criminal trial. The evidential standard of proof beyond reasonable doubt has not been established by the prosecution. There are actual and substantial doubts as to the guilt of the accused arising from the evidence or from the lack of it. If there is a substantial and reasonable doubt in the case of the prosecution, the benefit of the same will definitely goes in favour of the accused.
Accordingly, accused Abdul Rasheed is granted benefit of doubt and hereby acquitted from the charges levelled against him.
Dictated & Announced (SATINDER KUMAR GAUTAM) in the open court today ADDITIONAL SESSIONS JUDGE i.e. on 21.04.2009 (WEST04):DELHI