Delhi District Court
State vs . Nasir Etc. on 25 September, 2009
1
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act
State Vs. Nasir etc.
IN THE COURT OF SH. B.S. CHUMBAK, ADDITIONAL SESSIONS
JUDGE : DELHI
Case ID Number 02402R0042532006
Session Case No. 67/09
Assigned to Sessions 01/03/06
Arguments heard on 02/09/09
Date of order 25/09/09
FIR NO. 368/05
Police Station Bhajan Pura
Under Section U/s 302/120B/34 IPC &
25/27/54/59 A.Act
Outcome of judgment Conviction
State VS 1. NASIR S/O NISAR KHAN
R/O B-8 NEW SEELAMPUR
NEAR JAMA MASJID, DELHI
2. RASHID S/O JAMIR AHMED
R/O HOUSE NO. 62, GALI
NO.3, JAFRABAD,
NEW SEELAMPUR
NEAR CHAND WALI MASJID,
DELHI
Present: Ms. Neelam Narang Ld. Addl. PP for state.
Sh. Pradeep Sharma Ld. Counsel for accused.
JUDGMENT
1. On 03.09.05 a case u/s 302 IPC was registered at PS Bhajan Pura vide FIR No. 368/05 on the basis of statement of Smt. 2 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. Hasiba w/o Majhar Hussain R/o gali no.7, Vijay Park, Delhi against unknown persons.
2. In brief the prosecution case is that on 02.09.05 an information that a man was lying dead in main gali no.1, Noor-E-Elahi Colony vide DD no.25A through lady constable Babita. On receipt of this information SI Beghraj, HC Jagbir Singh and constable Bhim Singh reached at the spot. Inspector Ombir Singh with driver Kiran Pal and Ct. Digamber also reached at the spot i.e gali no.1 Noor-E-Elahi in a vehicle bearing no. DL- 1CG-6401. On reaching there they found a red colour motor cycle make Hero Honda Splender bearing no. DL-7SL-7186 in front of house no. 95. Blood was also found lying at the spot and left foot floater (Chappal) was also lying there. An empty used cartridge was lying at some distance. They also came to know that injured had already been taken to GTB hospital by PCR van. HC Jagbir Singh was directed to guard the spot and Inspector Om Vir Singh alongwith other police officials reached at GTB hospital in a Government vehicle and obtained 3 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. the MLC bearing no. B-3262/05 of unknown person wherein it was opined that patient was brought unconscious with alleged history of Gun Shot and was also found brought dead. Smt. Hasiba met at GTB hospital and identified the deceased as her husband. Her statement was got recorded wherein she stated as under :-
"She has been residing at V-1409 Gali no.7, Vijay Park with her husband and children. Her husband was doing the business of handicraft at Seelampur. Her husband was earlier married with one Shahida Begum, her real sister and now she has been residing separately. On 2.9.05 she alongwith her husband and children returned from the house of her sister-in-law Praveen at her house at about 10:00 p.m. Her husband had received a call on his mobile and on receiving the said call he immediately left the house on his motor cycle bearing no. DL-7SL-7186. When her husband did not come back she started making inquiry from Azhar Hussain brother of her husband, to that he told her that "in gali no.1, Noor-E-Elahi KE PASS EK LAL RANG KEE MOTOR CYCLE WALE KO GOLI MAAR DEE HAI" Thereafter she alongwith her brother in law (jeth) reached there and saw a motor cycle bearing no. DL-7SL-7186 and left foot floater belonging to her husband found lying there.
Blood was also lying at the spot and she also came to know that her husband/injured had already been taken to GTB hospital and on 4 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. reaching there she came to know that her husband died due to receiving gun shot injuries."
3. In view of the statement of wife of deceased Majhar Hussain investigation was initiated, photographs of the spot were taken, crime team was called at the spot. Rough site plan was prepared, motor cycle bearing no. DL-7SL-7186, one chappal (floater), one purse brown colour, one identify card bearing no. 013, one driving license, Rs. 110/- currency notes and some misc. papers which were found available at the spot were taken in possession. A wrist watch bearing ARCH impression on the dial, 24/- rupees currency notes, one registration certificate bearing no. RC. No. 463055 of the motor cycle bearing no. DL-7SL-7186, three pollution control certificates, one insurance certificate bearing no. 62515 were recovered from the possession of the dead body of the deceased and were handed over to duty constable Jasbir Singh. Postmortem of the dead body was got conducted on 3.9.05 at GTB hospital and dead body was handed over to the legal heirs of 5 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. the deceased.
4. During course of investigation and on 21.10.05 Ajhar Hussain (brother of deceased) made an extra judicial confession as follows:
"On 21.10.05 when he was returning after offering Namaj Nasir s/o Nisar Khan r/o 38, New Seelam Pur met him and disclosed that after having been fed up he had got Majhar Hussain murdered by paying supari of Rs.1,00,000/-."
5. Pursuant to the aforesaid extra judicial confession accused Nasir was arrested and interrogated. He also made a disclosure statement which is as under:-
"He is the resident of house no. B-8, New Seelampur near Jama Masjid, Delhi and running a plastic pipe fitting factory at gali no. 17, North Ghonda. In the month of January 2004 when he went to take medicine from Dr. Sanjeev Clinic, Charas Wali Gali, Brahampuri, met with Ashma who had also come there for taking medicines for her 6½ years old daughter. Due to her good looking he developed intimacy with her. Thereafter, she told that she was divorcee, therefore, he put a 6 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. proposal of his marriage with her. He also disclosed the factum of his second marriage and having children from his first wife. After seeking the consent of parents of Ashama he got married with her on 30.4.04 and started residing at house no. 95/224 DDA Quarters, Seelampur. After few days of the said marriage his father-in-law (deceased herein) used to demand money from him offenly. His father-in- law was doing work of making Tawiz and was indulging in Zadoo Tona activities. His wife Ashama was step daughter of Majhar Hussain (deceased herein) and was real daughter of Hasiba with her first husbad. He further disclosed that he purchased a house at Vijay Park, gali no.7 five months ago and that house was also got transferred by Majhar Hussain (deceased) in his own name and he also used to give some unwholesome/ addictive substance due to that severe headache developed and also made him unable to think about himself. He also used to visit his house in his absence. After being fed up with the behavior of Majhar Husain (deceased herein) in the month of August 2005, he narrated this incident to one Rashid s/o Jahir (son of jeth of his sister) and had hatched a conspiracy to kill Majhar Hussain for that he was directed to make arrangement of Rs.1,00,000/- and accordingly, he made the arrangement of the said amount in the first week of August 2005 and paid the same to Rashid. On receiving the said amount Rashid and his friend started executing their work on this aspect. Rashid also used to tell the progress with regard to 7 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. this deal on his mobile phone. He further disclosed that on 2.9.05he made a telephonic call from his mobile phone bearing no. 9810234935 to mobile phone bearing no. 9810254326 and told him that "Majhar Hussan Ka Kaam Tamam Kar Diya Hai"(Majhar Hussain has been killed). He also narrated this fact to one Sh. Azhar Hussain elder brother of his father-in-law (taoo sasur) and he can get arrest Rashid from his village Agwanpur, Meerut."
6. Pursuant to the disclosure statement of accused Nasir and at his instance accused Rashid was arrested on 22.10.05 . He was interrogated, his disclosure statement was recorded wherein he stated as under:
"He has been residing at house no. 62, Gali no.3, Jafrabad, Near Chand Wali Masjid, Delhi and has been running a factory of embroidery with his father. His maternal uncle Nasir was very much fed up due to the behavior of his father in law Majhar Hussain (deceased). His father-in-law used to beat the wife of his maternal uncle who was the real daughter of Hasiba and step daughter of deceased. He used to compel his maternal uncle Nasir to divorce with his wife Ashama. He was indulging in Jadoo tona and used to make Tawiz etc. When his maternal uncle Nasir fed up and frighten with the act of deceased he met him in the month of August 2005 and narrated the 8 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. whole story to him while weeping. He also raised a demand of money for purchasing katta etc and accordingly in the first week of August his maternal uncle made payment of Rs. 1,00,000/- to him. He also got involved his friend Javed who was residing in a jhuggi in front of PS Usman Pur in executing the said deal. He also used to disclose about the movements of Majhar Hussain on the mobile phone. He also purchased a katta from near his village and made a plan to execute this deal on or before 15th August. He further disclosed that in the last week of August Majhar Hussain was seen him coming from Ghonda side, stopped him near Brahampuri Pullia and tried to make him understand but he behaved with him rudely and also extended threat of killing Nasir and his supporters. He also felt aggrieved with the conduct of Majahar Hussain. He further disclosed that on 2.9.05 Nasir continuously remained in touch with him about the movement of Majhar Hussain and he and Javed used to follow the direction given by Nasir. He further disclosed that he saw Majhar Hussain in gali no.1 Noor-E-Elhai, he stopped him and fired a shot from a country made katta. He attempted to run away on his motor cycle, Javed caught hold of him, he reloaded his katta and again fired a shot on him. Many people gathered there, he and Javed reached at North Ghonda through Yamuna Vihar Road while pointing country made katta to the persons who were 9 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. gathered there. He also disclosed that he had thrown the country made katta in a nala near Brahampuri Pullia and he can got recovered the country made katta and can arrest accused Javed."
7. Accused Rashid also disclosed that out of Rs. 1,00,000/- he gave Rs. 30,000/- to Javed and at his instance Rs.25,000/- were recovered from a box kept in his house bearing no. 62 Gali no.3, Jaffarabad, New Seelampur which were seized with the seal of BSP. At the instance of Rashid a country made katta .315 bore and one used cartridge and a live cartridge were recovered from the ground floor of his house. Sketch of the katta was prepared. The exhibits were sent to the office of FSL, Rohini. Statement of witnesses were recorded and after completion of necessary investigation challan u/s 302/120B IPC r/w section 25/27 of Arms Act was filed in the court of Ld. MM.
8. Ld. MM after taking cognizance for the offence u/s 302/120B/34 IPC r/w section 25/27 of the Arms Act, supplied 10 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. the copies of the challan as required u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial.
9. Arguments on the point of charge heard. After hearing arguments and on the basis of material placed on record charge for the offence u/s 302/34 IPC r/w section 25/27 of Arms Act was framed against accused Rashid and charge for the offence u/s 120B r/w section 302 IPC was framed against accused Nasir and Rashid to which they pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.
10.Smt. Hasiba w/o deceased appeared as (PW1), Ajahar Hussain brother of deceased as (PW2), HC Suraj Pal as (PW3), Ghanshyam Rastogi as (PW4), Saiyad Iqrar Hussain Naqvi nephew of the deceased as (PW5), Inspector V.S. Punia as (PW6), SI Rakesh Kumar as (PW7), Ct. Jasbir Singh as (PW8), ASI Patra Slakara as (PW9), HC Satbir Singh as 11 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. (PW10), SI Mukesh Kumar Jain as (PW11), HC Jagbir Singh as (PW12), Ct. Kiran Pal as (PW13), Ct. Jagbir Singh as (PW14), Ct. Mangel Sen as (PW15), Ct. Ram Gopal as (PW16), SI Begh Raj (retired) as (PW17), Dr. S. Lal, Specialist Forensic Medicine, Sabzi Mandi Mortuary as (PW18), Ms. Anita Chhari as (PW19), Sh. Puneet Puri, Sr. Scientific Asstt. Balllistic FSL, Rohini as (PW20), HC Raghuvir Singh as (PW21), Sh. R.K. Singh, Nodel Officer as (PW22), Inspector Ombir Singh IO as (PW23), Dr. R. Dayal, CMO GTB hospital as (PW24). Brief testimony of all the aforesaid PW's are as follows :
i) PW1 deposed that about three years ago she alongwith her deceased husband and children had gone to Brij Puri at the house of her nanad. After taking Niaz (feast) they returned to their house on the same day. After returning to her house her husband received a call on his mobile phone and immediate on receiving the call her husband left the house on his motor cycle and after an hour of his leaving house, she received an 12 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. information through Ajahar Hussain (elder brother of her husband) that her husband has been shot dead by some unknown person. On receipt of this information she accompanied him and reached at gali no. 1, near Noor-E-Elahi and saw the motor cycle and chappal of her husband were lying there. She also came to know that her husband had been removed to GTB hospital. She alongwith Ajahar Hussain (jeth) went to GTB hospital and identified the dead body of her husband. Police officails made inquiries from her about this incident and also obtained her thumb impression on the blank paper.
After her examination in chief Ld. Addl. PP for state sought permission to cross examine the witness on certain points. Permission was granted and during cross examination of Ld. Addl. PP for state she clarified that after feast she alongwith her husband and children returned at her house at about 10:00 p.m and murder of her husband had taken place in the night of 2.9.05 but she denied that police had ever recorded her statement marked PW1/A and thereafter she had put her thumb 13 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. impression on the same.
ii) PW2 deposed that on 2.9.05 at about 10:00 p.m after receiving the telephonic message from his relative he reached at the spot i.e gali no.1, Noor-E-Elahi and came to know that a motor cycle bearing no. DL7SL-7186 belonging to his brother Majhar Hussain was lying at the spot. He went to the house of his brother Majhar Hussain and made inquiries from his wife and came to know that her husband had left the house at about 1 and 1½ hour earlier. He further deposed that he took Hasiba (wife of deceased) at the spot on his scooter. On reaching there they came to know that injured had already been taken to GTB hospital. They both went to GTB hospital and identified the dead body of deceased Majhar Hussain vide identification memo/statement Ex. PW2/A bears his signature at point A. He also stated that he knew accused Nasir present in the court. Ld. Addl. PP for state sought permission to cross examine the witness on certain points and during his cross examination he denied that he had ever made any such 14 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. statement to the police official on 21.10.05, that when he was coming after offering Namaz, Nasir son of Nissar Khan r/o B-8, New Seelampur Near Jama Masjid, Delhi had informed him that after having been fed up he got Majhar Hussain murder by paying supari of Rs.1,00,000/-. While deposing so he confronted with portion A to A of the statement mark Ex. PW2/A wherein it was so recorded.
iii) PW3 is the formal witness. He only deposed that on 2.9.05 he was working as duty officer at PS Bhajan Pura from 12 midnight till 8 a.m. On the basis of ruqqa brought by Ct. Bhim Sain he recorded formal FIR bearing no.368/05. FIR Ex. PW3/A bears his signature at point A.
iv)PW4 is the photographer. He deposed that in the intervening night of 2/3.9.05 he was called by the police official at the spot i.e at gali no.1 near Noor-E-Elahi and on the direction of SI Rakesh Khari, Incharge Crime Branch he took nine photographs of the spot from different angles through digital 15 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. camera. He handed over positives to the IO of this case which are Ex. PW4/A to J. During his cross examination he reiterated the testimony as submitted by him during examination in chief.
v) PW5 deposed that on 3.9.05 he had gone to GTB Hospital Mortuary and identified the dead body of his maternal uncle Majhar Hussain. His statement is Ex. PW5/A bears his signature at point A.
vi)PW6 deposed that on 21.10.05 he was posted as SI at PS Bhajanpura and on that day he joined the investigation of this case alongwith Inspector Om Vir Singh Bhatti IO of this case. They went to the house of Azhar Hussain (brother of deceased) at North Ghonda and found him present there. His statement was recorded wherein he stated that when he was returning after offering Namaj, Nasir made a confession before him that he had got murdered his father-in-law through some person. They have conducted the raid at the house of accused Nasir who is present in the court. On seeing police official 16 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. accused Nasir became perturbed, he was interrogated about the extra judicial confession made by him before Ajahar Hussain ( brother of deceased). Disclosure statement of Nasir was recorded by IO which is Ex. PW6/A bears his signature at point A. Nasir was arrested by the IO vide arrest memo Ex. PW6/B and his personal search was conducted vide memo Ex. PW6/C. They also conducted the raid alongwith accused Nasir at the house of accused Rashid at gali no.2, Chand Wali Masjid Jaffrabad, Seelampur but Rashid was not found present at his house. Accused Nasir was sent to the lock up and on the next day on the directions of the SHO accused Nasir was produced in the court and his three days PC remand was obtained and thereafter SHO had made inquiries from him. After making inquiries accused was taken out at 8:00 p.m by the IO Inspector Omvir Singh Bhatti. Inspector V.S. Punia and Ct. Kiran Pal had accompanied the SHO/IO. They alongwith accused Nasir again went to the house of Rashid near Chand wali Masjid, Jaffarabad, New Seelampur. Accused Rashid was found present there, he was arrested vide arrest memo on Ex. 17
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. PW6/D. His personal search was conducted vide memo Ex. PW6/E. Thereafter both the accused were taken to PS. Accused Rashid was also interrogated and during interrogation he made a disclosure statement which is Ex.PW6/F (which has already been reproduced).
(a) In pursuant to the disclosure statement of accused Rashid efforts were made to search the accused Javed but he could not be arrested. Accused Rashid was again interrogated by the IO on 23.10.05 and his supplementary disclosure statement Ex. PW6/G was recorded in his presence. Pursuant to the disclosure statement of accused Rashid, he led them to his house and from the first floor of his house a cash amount of Rs.25,000/- was recovered from a box kept in his room. Accused Rashid also led them to ground floor portion and got recovered a katta from underneath the clothes with one live cartridge. On opening the katta it was found to contain one fired cartridge. Cash amount of Rs. 25,000/-, country made katta, empty cartridge and live cartridge were converted into sealed parcel, with the seal of VSP and were seized by the IO vide seizure 18 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. memo Ex. PW6/H. Sketch of the katta and cartridge Ex. PW6/J was prepared in his presence. Currency notes of Rs. 25,000/- were counted wherein 20 notes of Rs.500/- denomination, 100 notes of Rs. 100/- denomination and 100 notes of Rs.50/- denomination were taken in possession. He also identified the case property when shown to him. The currency note are collectively Ex. P.1. Country made katta, two used cartridge and one bullet are collectively Ex.P.2.
(b) During his cross examination he admitted that at the time of recording disclosure statement of accused Nasir many public persons and family members of deceased were present and statement of Azahar Hussain(PW2) was recorded at his house. He also stated that his statement was recorded by the IO three times. He also stated that they reached at the house of Nasir at about 9:00 or 9:15 p.m and remained there till 11:00 p.m night and during this period none from the house of Nasir reached there. During this period the intimation regarding arrest of accused was not delivered to any of the relative of accused 19 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. Nasir. He also stated that Ct. Kiran Pal besides him also signed the disclosure statement. When disclosure statement Ex. PW6/A was shown to the witness it does not bearing the signature of Ct. Kiran Pal. He also stated that accused Rashid had made a disclosure statement Ex. PW6/F and in the said statement he stated that he had thrown the country made katta in the nala near pulia of Bharam Puri and can got the same recovered. They remained at the spot i.e at ganda nala for about half and hour and tried to search the weapon with the help of danda but weapon could not be traced from the nala. He also stated that he did not know whether IO was having his own seal or not however, he was having his own seal among the members of the raiding party and the sealing work was done by him at the instance of IO and seal after use was handed over to Ct. Kiran Pal but he could not tell the exact date of returning him his seal vol. stated it might be returned within 15 days. Rest of his testimony is reiterated by him as submitted by him during his examination in chief.
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FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc.
vii)PW7 is a formal witness. He only deposed that on 2.9.05 he was posted as Incharge Crime Team, North East District and on that day on receipt of an information he visited the place of incident. No chance print were found there. Photographs of the place of incident had already been taken. On further inquiry he came to know that injured has already been taken to GTB hospital. He prepared his crime team report Ex. PW7/A. During his cross examination he stated that one motor cycle, one cartridge, one chapal were found lying at the spot. IO Inspector Om Bir Singh was also present there.
viii)PW8 deposed that on 02.09.05 he was posted as duty constable at GTB hospital. On that day at about 11:30 p.m one PCR van got admitted an unknown injured in the hospital. Doctor opined him as brought dead. On search of the dead body Rs.24/-, one wrist watch and one registration certificate of motor cycle, one pollution certificate were recovered by the doctor and handed over to him and he handed over the same to IO. IO prepared possession memo which is Ex. PW8/A in 21 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. his presence. He further deposed that in the intervening night of 2/3.9.05 wife of deceased(PW1) reached there and identified the dead body of her husband Mazhar Hussain.
ix)PW9 deposed that on 2.9.05 he was posted as ASI Incharge PCR van B-37. He further stated that on that day at about 10:32 p.m he received an information that a man was lying dead in Noor-E-Elahi Gali no.1, Bhajan Pura. On receipt of this information he reached at the spot i.e in front of house no. D- 94, Bhajan Pura and saw a man was lying dead and blood was coming out from his body. He with the help of other staff members took him to GTB hospital and got him admitted there. During his cross examination he stated that he also examined injured and found that he was not respirating and appearing to be dead. He only noticed one motor cycle at the spot. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
x) PW10 deposed that on 2.9.05 he was working as duty officer 22 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. from 4 p.m to 1 a.m at PS Bhajan Pura. On that day at about 10:50 p.m he received a PCR call through wire less operator beta 53 informing thereby that one unknown person was lying dead at Noor -E-Ellahi colony main gali Bhajan Pura and the said information was also received through a telephone bearing no. 22910076. He reduced the information into writing vide DD no. 25A which is Ex. PW10/A bears his signature at point X. He handed over the aforesaid DD to SI Begh Raj. On receipt of this information SI Beg Raj alongwith ct. Bhim Singh left the PS for spot in his presence. During his cross examination he stated that IO did not record his statement u/s 161 Cr.P.C.
xi)PW11 is the Draftsman NE District and deposed that on 8.11.05 on the request of IO Inspector Ombir Singh SHO PS Bhajan Pura he alongwith IO visited the spot i.e main market road Noor E-Elahi, near D-94, Bhajan Pura, Delhi and prepared rough notes and measurements on the pointing out of IO. On the basis of rough notes and measurements he 23 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. prepared scaled site plan which is E. PW11/A bears his signature at point X. During his cross examination he stated that when he visited the spot none from the deceased family was present there and in his presence IO did not summon any witness from the nearby area and the endorsement on the site plan Ex. PW11/A was not made in his presence.
xii)PW12 deposed that on 2.9.05 he alongwith SI Begh Raj and Ct. Bhim Singh reached at main gali no.1, Noor E-Elahi, Bhajan Pura, Delhi. On reaching there they saw a person lying dead on main road having blood stained clothes in front of house no. D-94, near Baba Poly Clinic. A red colour motor cycle bearing no.DL-7SL-7186 with key, a left foot floater and an empty cartridge were also lying in front of Baba Poly Clinic. Many public persons were gathered at the spot. PCR van reached at the spot and took the dead body to GTB hospital. SHO Ombir Singh reached at the spot and formally inspected the spot and thereafter left for GTB hospital alongwith SI Begh Raj and Ct. Bhim Singh. He remained at the spot and at about 24 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. 1:00 p.m SHO alongwith other police officials reached there. Site was inspected. Ct. Bhim Singh reached at the spot alongwith copy of FIR, same was handed over to SHO. Crime team and photographer also reached at the spot. Photographer took photographs from different angles and crime team took the chance prints from the spot. Blood smeared earth and dry earth was lifted in his presence and sealed with the seal of JS. Empty cartridge were taken in possession and sealed with the seal of JS. Motor cycle was also taken in possession in his presence and all the six memos are Ex. PW12/A to Ex. PW12/F were prepared in his presence bears his signature at point X. A pen and brown colour purse containing an old driving license belonging to Mazhar Hussain was also taken in possession, visiting card Hindi Sapthahik Press were also found in the purse were seized vide memo Ex.PW12/G.
(a) On 3.9.05 at about 9:55 a.m he alongwith SHO Ombir Singh, driver Dhanraj and operator Ct. Ravinder reached at mortuary of GTB hospital. Ct. Ram Gopal was already posted 25 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. there. Brother of deceased Azhar Hussain and his nephew were present with Ct. Ram Gopal and they identified the dead body of deceased. Postmortem of the dead body was got conducted and after postmortem dead body was handed over to his brother and nephew. Receipt of the dead body was prepared in his presence.
(b) During his cross examination it is submitted that some of the public persons who were interrogated by the IO disclosed that two young boy came on motor cycle, fired a shot upon the deceased and run away with their motor cycle but they have not disclosed the number of motor cycle of the assailants. He also stated that none of the family members of the deceased was present at the spot at first instance. He also stated that deceased was wearing a pant and shirt but he failed to tell the colour of the clothes worn by him. Rest of his testimony is reiterated by him as submitted by him during his examination in chief.
xiii)PW13 deposed that on 22.10.05 he produced accused Nasir 26 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. in the court and from there accused Nasir took them to Jaffarabad and got co-accused Rashid arrested who is also identified by him in the court. He also joined the investigation with IO SI Virender Singh Punia (PW6) and he corroborated the testimony of PW6 and his testimony is not required to be reproduced. During his cross examination he admitted that in case they would go to PS from the court through Noor E-Ellahi to the house of accused person the spot would fall in way but he failed to disclose the route which was followed by them for reaching to the PS. He also stated that disclosure statement of the accused was recorded but he failed to explain when and where it was recorded and what action was taken by the IO on the basis of statement recorded by him. Rest of his testimony is reiterated as submitted by him during examination in chief.
xiv)PW14 is the formal witness. He only deposed that on 21.11.05 he received eight pullandas duly sealed with the seal of MHC(M) vide RC no. 86/21 and deposited the same to FSL Rohini and receipt of depositing the exhibits from the FSL 27 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. office and handed over to the same to MHC(M).
xv)PW15 is again a formal witness. He only delivered the copy of the FIR to concerned Senior Officer.
xvi)PW16 is again a formal witness. He deposed that on 04.09.05 he went to the mortuary of GTB hospital and received one sealed envelope, one sealed pullanda and one sealed bottle sealed with the seal of SL alongwith one sample seal and handed over all the exhibits alongwith sample seal to the duty officer HC Satvir Singh and same were seized vide seizure memo Ex. PW16/A bears his signature at point A. xvii)PW17 deposed that on 2.9.05 he was posted as SI at PS Bhajan Pura and was on duty from 8:00 p.m to 8:00 a.m. On that day at about 10:22 p.m he received a DD bearing no. 25A which is already Ex. PW10/A. On receipt of information he alongwith HC Jagbir Singh, Ct. Bhim Singh reached at the place of occurrence i.e gali no. 1, Noor E-Elahi. On reaching 28 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. there they found one person lying in injured condition in front of a house bearing no. D-95 one motor cycle was lying near the dead body. Injured was removed to GTB hospital in the PCR van. SHO PS Bhajan Pura also reached at the spot. HC Jagbir remained at the spot and he alongwith Ct. Bhim Singh and SHO went to GTB hospital. He also deposed that one lady met them at GTB hospital and revealed her name as Hasiba wife of injured and also identified her husband. Her statement Ex. PW1/A was recorded by the SHO and after making endorsement he sent a ruqqa to the PS through Ct. Bhim Singh. All the belongings of the injured i.e one purse, one pen, a cash amount of Rs. 40/- and some documents were seized by the SHO vide memo Ex. PW12/G while deposing before this court he corroborated the testimony of PW1, PW12 and IO Inspector Ombir Singh, therefore, not required to be reproduced for the sake of brevity. During his cross examination he reiterated the testimony as submitted by him during his examination in chief and also corroborated the cross examination of PW12 and PW23. He also stated that on the 29 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. day of incident it was disclosed by the public persons who were present at the spot that two persons came on motor cycle and shot dead the deceased and run away from the spot but the public persons have not disclosed their identity. He further stated that during the period of 20 minutes wife of deceased namely Hasiba reached at the spot but she has not disclosed the fact about ownership of the motor cycle and the left foot floater found present at the spot vol. Stated that she disclosed all these facts before the IO in the hospital. He also stated that Hasiba wife of deceased also accompanied the SHO to the spot after making the statement but he failed to explain for how long time she remained at the spot. He also identified the case property when shown to him which is Ex. P.1, P.2, P.3 and P4. He also identified the accused present in the court and rest of his testimony is reiterated by him as submitted by him during his examination in chief.
xviii)PW18 deposed that on 03.09.05 he was posted as Senior Demonstrator at GTB hospital and conducted postmortem of 30 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. Mazahar Hussain s/o late Nazar Hussain brought by SHO Ombir Singh with alleged history of gun shot injury. He was examined vide MLC bearing no. B-3262/05 at 11:35 p.m and was opined as brought dead. He also described the general observation as follows :
General Observation :
A dead body of adult male average built wrapped in plastic sheet wearing yellow shirt stained with blood, sandow baniyan, blue jeans with belt and green underwear.
Shirt open in front having gun shot torn mark in front corresponding to injury present over chest. Same was also present over sandow baniyan.
Torn mark was surrounded by blackening and singering of fibres of clothes, both eyes were closed, cornea hazy and state of all others natural orifices were NAD.
Rigormortis present all over body and well developed. Postmortem staining present on back and ixed.
Following antimortem injuries were present:
(i) Fire arm entry lacerated wound 0.7 x 0.5 cm x cavity deep present in front of chest in midline over sternum associated with tattoing in area 31 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. of 13 x 10 CM over chest with blackening.
(ii)The wound was placed 14 Cm below the sternum notch and 10 cm left and right both nipples respectively. The wound entered the chest cavity by perforating the sternum and then pericardium and then perforate the diaphragm and stomach respectively through and through and finally the blood lodge in para vertebral area in relation to T 12 and L1 vertebral body. The direction of wound was left side down ward and back ward direction.
About 200 ml of blood seen in the pericardium and one and a half ltr. Blood mixed with gastic material seen in abdominal cavity, total length of the track was about 30 cm. The margin of the wound was reddish contused and abraded. Fire arm entry lacerated wound size 9 x 6 cm x cranial cavity deep present on left temporal area. The wound is placed 10 cm left to midline and 5 cm above the tragus of pinna. The wound entered the cranial cavity by making the entry whole in tempo - parietal bone of size 1.5 x 1.5 cm from left to right side and slightly backward direction. In the cavity contusion and laceration of cerebral - hemisphere (brain) seen and finally the bullet lodged in right temporal causing the fracture of bone and recovered and marked no.2 blackening and pieces of bone seen in track and total length of the track was about 15 cm. Subdural and subarrachnoid hemorrhage same on both side temporal - parietal area with fracture base of 32 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. skull in anterior cranial fossae. No other visible injury seen over body.
Internal Examination : Head & Neck :
Scalp, skull and brain - injury as mentioned in injury no.2.
Neck NAD Chest bonyage - injury as mentioned in injury no.1.
Lungs right and left were pale,.
Heart and pericardium injury as mentioned in injury no.1.
Stomach injury as mentioned in injury no.1. Grayesh black colour semi digested food material seen.
Wall NAD Liver, spleen and kidneys - Pale Bowel and urinary bladder - NAD The article preserved
i) All clothes
ii) blood on gauge piece
iii)Two nos of bullets recovered from the body.
All item sealed under seal of SL and handed over to IO alongwith sample seal.
Opinion-cause of death was shock due to antimortem injury to head and chest, produced by projectile of fire arms. Both injuries were sufficient to cause death in ordinary course of nature individually and collectively both. Time since death about 12 to 16 hours. His report is Ex. PW18/A which bears his signature at point A. 33 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc.
(a) During cross examination he reiterated his testimony as submitted by him during his examination in chief except the fact that blackening, singeing and tatoing as similar to the present case shall be possible only by close range fire. xix)PW19 is the Scientific Officer who deposed that on 07.12.06 four sealed parcels bearing no. 1,2,5 & 6 were received in Biological Division out of which three were sealed in a cloth pullanda and one was sealed in an envelope. Parcel no.1 was sealed with the seal of JS and was opened in the court which found to contain a plastic container having cotton wool swab with blackish brown stains. Parcel no.2 was sealed with the seal of JS containing exhibit 2 i.e blood stained earth kept in a plastic container. Parcel no. 5 sealed with the seal of SL found to contain brown gauze cloth piece described as blood on gauze of the deceased. Parcel no.6 was sealed with the seal of SL containing exhibits (6a) i.e one jean pant with belt having brown stains, (6b) found to contain one shirt having brown stains, exhibit (6c) found to contain one baniyan having brown 34 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. stains and exhibit (6d) found to contain one underwear having brown stains.
(a) She further deposed that:
"on analysis Ex. 1, 2, 5, 6a, 6b, 6c and 6d the blood group O was detected. Serological analysis was also conducted wherein Ex.1 i.e cotton wool swab gave no reaction, Ex.2 blood stained earth gave no reaction, Ex.5 i.e Blood stained gauze cloth piece gave 'O' group and all the exhibits bearing '6a' i.e Jeans pants with belt, '6b' shirt, '6c' Baniyan and '6d' underwear all gave 'O' group and both the reports are Ex.
PW19/B and PW19/A."
She further deposed that after examination remnants of the exhibits were sealed with the seal of ACFSL, Delhi. xx)PW20 is Senior Scientific Assistant Ballistics, FSL, Rohini, Delhi and deposed that on 21.11.05 eight sealed parcels of case FIR no. 368/05 PS Bhajan Pura were received in his office. At the time of depositing all the exhibits the seal of each parcel were intact and as per the specimen seals parcel no.1,2,5 and 6 were sent to Biological Division for Biological examination and were received with the seal of ACFSL, Delhi. 35
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. Parcel no.3 returned unexamined. On opening parcel no.4 one 8 mm/.315 cartridge case was found and subsequently marked as Ex.EC1. On opening parcel no. 7 two bullets(one intact and one deformed) were taken out and subsequently marked Ex. EB1 and EB2 respectively . On opening parcel no. 8 one country made pistol 8mm/.315 inch bore, one 8mm/.315 cartridge and one 8mm/.315 cartridge case were found and subsequently marked as Ex.F1, Ex.Al and Ex. EC2 respectively.
(a) On examination it was found that country made pistol ..315 inch bore marked EX.F1 was in working order. Test fire was conducted successfully by using 8 mm/.315 inch marked Ex. A1 and one 8mm cartridge taken from laboratory stock, the test fired cartridge cases were marked as TC1 and TC2 and two recovered test fired bullets were marked as TB1 and TB2 respectively. He further deposed that 8mm/.315 inch cartridge cases marked Ex. EC1 and EC2 were fired empty cartridge and had been fired through the country made pistol .315 inch bore marked Ex.F1. On examination he opined that : 36
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. "the individual characteristics of firing pin marks and breech face marks present on exhibits EC1 and EC2 and test fired cartridge cases marked as TC1 and TC2 were found identical when examined under comparison by microscope".
He further opined that:
"the bullets marked Ex. EB1 and EB2 corresponds to the bullet of 8mm/.315 inch cartridge and no further opinion can be given on exhibits EB1 and EB2 as the individual characteristics of striations present on Ex. EB1 and EB2 are insufficient for comparison and opinion whether these have been discharged through the country made pistol .315 bore marked Ex.F1 or not".
It is further opined that :
"the country made pistol .315 inch bore cases marked Ex. F1 was a fire arm and 8mm/.315 inch cartridge cases marked Ex. A1/EC1 and EC2 were ammunition as defined in Arms Act 1959".
(b) He further deposed that exhibits then were resealed with the seal of PP FSL Delhi and his report in this regard is Ex. PW20/A bears his signature at point A. (c ) During his cross examination by Ld. Counsel for accused he took out the deformed bullet from a glass bottle duly 37 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. sealed with the seal of PP FSL, Delhi and shown to the witness and on seeing the same he deposed that he cannot tell if the bullet deformed due to hitting twice. He further stated that it is correct that deformation of the bullet like the present one (EB2) could be deformed after striking against the hard surface. He further stated that he cannot say if the bullet EB1 and EB2 were having any blood residue at the time of their scientific examination vol. Stated that query regarding blood on the bullets were not asked for examination as such he had not opined as it was not his job to examine the blood on the bullets. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
xxi)PW21 deposed that on 21.11.05 he handed over eight sealed pullandas out of which four pullandas were duly sealed with the seal of JS, three pullandas were sealed with the seal of SL and one pullanda sealed with the seal of VSP to Ct. Jagbir vide RC no. 86/21 for depositing the same in the office of FSL Rohini. On the same day ct. Jagbir after depositing the same in 38 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. the office of FSL Rohini came back to PS and handed over a copy of RC and receipt vide which he deposited the same in the office of FSL Rohini were deposited by him in the malkhana. He further deposed that till the case property remained in his possession no one had tampered with it. He also brought register no. 19 of year 2005 part 2 wherein the entry of handing over the above said eight pullandas to ct. Jagbir were made on the back page of page no. 65 of the register which was in his handwriting and bears his signature at point A. Copy of the same is Ex. PW21/A (original seen and returned).
(a) He further deposed that on 19.2.07 he received the result of all the exhibits alongwith exhibits of the present case through Ct. Chander Prakash and deposited the same in the Malkhana and the entries of the same were made by him at point B to B1 on the back page of page no. 65 at sl. no. 2497 bearing his signature at point A, same is Ex. PW21/B. Copy of the same is Ex. PW21/B (original seen and returned).
(b) During his cross examination he admitted that portion 39 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. from X to X1 on Ex. PW21/A was in his hand and the portion from B to B1 on Ex. PW21/B was in the hand of his munshi but it also bears his signature at point A. He also deposed that over writing at point A on Ex. PW21/DA was done by his munshi ct. Banwari and he denied the suggestion that initially it was written "one" at point A which was later on manipulated as "two" and he also admitted that at point C word "bullet" was written and not "bullets". Rest of his testimony is reiterated by him as submitted by him during examination in chief.
xxii)PW22 is the Nodel Officer from Bharti Airtel Ltd and deposed that he had seen the record of mobile no. 9810254326 w.e.f 1.8.05 to 12.10.05. Mobile number was in the name of one Nasir B-8, New Delhi, Seelam Pur. He had supplied the call details to the police on the request of police official consisting of 21 pages, same are Ex. PW22/A1 to A21. He further deposed that as per record mobile phone no. 9810234935 was in the name of Rashid s/o Jahir Ahmed r/o 62A, Gali no.116 Jafarabad and he had submitted the call details to the 40 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. police officials of the aforesaid phone w.e.f 1.8.05 to 15.9.05 running into eight pages and call details are Ex. PW22/B1 to B8. He further deposed that Airtel prepaid enrolement form in the name of Rashid is Ex. PW22/C and photocopy of the voter ID card is Ex. PW22/D. He also supplied the attested copy of name and address of subscriber of mobile no. 9810254326 same is Ex. PW22/E. During his cross examination he stated that detail of calls of a particular phone can be delivered to the IO only on the written request of ACP as per our rules but he had not brought the letter of ACP. He further stated that he cannot say with regard to the activation and deactivation of mobile phone no. 9810234935 and 9810254326 without consulting the records and he also deposed that he cannot tell about the conversation which had taken place through the said telephone numbers. On the basis of request of ld. Addl. PP for state the Nodal Officer was recalled for his re- examination and accordingly on 24.8.09 he appeared and produced site ID Chart (location chart) of Bharti Airtel Ltd.in the court and as per the site ID chart, on 2.9.05 from 2.35 p.m 41 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. to 11.27 pm the impugned mobile phone no. 9810234935 remained in the locations of towers no. 3441 installed at New Seelam Pur, tower no. 5351 installed at East Gokul Puri, tower no. 2802 installed at Gautam Puri, tower no. 3441 and 3443 installed at New Seelam Pur, tower no. 9051 installed Braham Puri, tower no.2762 installed at Subhash Mohalla, Ghonda and copy of all the relevant pages from the said ID chart are Ex. PW22/X running into five pages (original seen and returned).
(a) He further deposed that as per site ID chart on 2.9.05 from 2:33 p.m to 11:38 p.m mobile phone bearing no. 9810254326 remained in the location of tower no. 2802 installed at Gautam Puri, 40851 installed in the area of New Seelam Pur, 3441 installed at New Seelam Pur. He further deposed that on 2.9.05 at about 2:33 p.m the call was made from the said phone number through tower no. 28202 in the area of Gautam Puri and it was ended through tower no. 40851 at New Seelam Pur. He also deposed that in the year 2005 one tower covered the range of 2 to 3 km from all the sides from its central point. 42
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc.
(b) During cross examination by Ld. Counsel for accused a question was put to the witness as due to the change of air waves/directions into particular side a mobile may show the location of two towers one by one to which he replied that it is not possible. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
xxiii)PW23 is the IO. He deposed that on 2.9.05 he had received an information on his wireless set that one person was lying dead at Noor Ilahi Main Gali. On receipt of this information he alongwith other police officials reached at the spot. SI Begh Raj alongwith HC Jagbir Singh and Ct. Bhim Singh were found already present at the spot. SI Begh Raj informed him that PCR had removed the injured to the hospital. One motor cycle bearing no. DL-7SL-7186, one chappal, one empty cell was found at the spot. Blood was lying near the spot. HC Jagbir Singh was left to guard the spot. Crime team was informed. He left the spot alongwith other police officials for GTB hospital and collected the MLC of unknown person wherein he was 43 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. declared as brought dead by the doctor. One Hasiba wife of deceased met him in the hospital and got her statement recorded. He made his endorsement on the back of statement of Hasiba which is mark Ex. PW1/A (now exhibited as PW23/A) was recorded by him and bears his signature at point point B. His endorsement on the statement Ex. PW23/B bears his signature at point A. He further deposed that ruqqa was handed over to Ct. Bhim Singh for registration of the FIR. Thereafter, he again reached at the spot alongwith other police officials.
(a) The seen of the crime was photographed by the private photographer and the crime team has inspected the spot and handed over to him which is Ex. PW7/A. Motor cycle lying at the spot was seized vide seizure memo Ex. PW12/B bearing his signature at point Z. One purse was lying under the motor cycle containing 110 rupees currency notes, registration certificate of motor cycle, insurance papers and one pen and these all articles were taken in possession vide seizure memo Ex. PW12/G bears 44 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. his signature at point Z. Chappal which was lying at the spot were also seized vide memo Ex. PW12/C, empty cartridge were also lifted from the spot and converted into sealed pullanda sealed with the seal of JS (Jagbir Singh) and seized vide seizure memo Ex. PW12/A. Blood stained earth was lifted and converted into sealed pullanda and sealed with the seal of JS and seizure memo is Ex. PW12/E. Blood was also lifted from the spot with the help of cotton swab and converted into sealed pullanda sealed with the seal of JS and seized vide seizure memo Ex. PW12/D. Earth control was lifted from the spot and converted into sealed pullanda sealed with the seal of JS and seized vide seizure memo Ex. PW12/F. He also prepared a rough site plan which is Ex. PW23/C bears his signature at point A.
(b) He further deposed that when he had gone to the hospital at first instance, Const., on duty handed over him one driving license of Majahar Hussain , one identity card of press, Rs.24/- and wrist watch belonging to Majhar Hussain which were taken into possession vide Ex. PW8/A. 45 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. (c ) He further deposed that on 3.9.05 postmortem of the dead body of Majhar Hussain was got conducted. Inquest papers and brief facts mentioned therein are Ex. PW23/D, DD no. 25A, Ex. 10/A, form 25-35(1B) is Ex PW23/E, identification statement of dead body is Ex. PW5/A and statement of Ajahar Hussain in this regard is Ex. PW2/A and request of postmortem is Ex. PW23/F. After conducting postmortem dead body was handed over to the relatives of deceased vide receipt Ex. PW23/G.
(d)He further deposed that on 04.09.05 Ct. Ram Gopal produced three sealed pullandas alongwith sample seal before the duty officer which was seized by the duty officer vide memo Ex. PW16/A. He further deposed that during investigation draftsman was taken to the spot who took rough notes and measurements on his pointing out and thereafter he had prepared the scaled site plan and handed over to him which is Ex. PW1/A. He also collected the postmortem report of the deceased and the photographs which are already Ex. PW4/A 46 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. to PW4/J.
(e) During course of investigation of this case he came to know through Ajahar Hussain (elder brother of deceased) that Nasir had made extra judicial confession about the factum of commission of murder of Majahar Hussain. On receipt of this information he alongwith other police officials including SI Virender Punia, Ct. Kiran Pal,driver and operator reached at the house of Nasir on 21.10.05. He was found present there . He was interrogated and arrested in this case. Personal search was conducted. His disclosure statement was also recorded by SI Virender Punia in his supervision. Arrest memo, personal search memo are Ex. PW6/D and E and disclosure statement is Ex. PW6/F. In his disclosure statement he disclosed name of one Rashid who had taken part in commission of murder of Majahar Hussain. He also disclosed that he gave Rs.1,00,000/- to Rashid to kill Majhar Hussain. Accused Rashid was also arrested. On 22.10.09 he made a disclosure statement which was reduced in writing by SI Virender Singh under his supervision. In his 47 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. disclosure statement he also disclosed that he can got recovered a weapon of offence which he had thrown in the nala of Jafarbad after committing the murder. He also disclosed the name of other accused Javed but could not get him arrested. Pursuant to his disclosure statement he was taken to ganda nala Braham Puri to find out the weapon of offence but it could not be traced. During course of investigation he was further interrogated and he made supplementary disclosure statement which was again reduced in writing by him vide Ex. PW6/G. In the said disclosure statement accused Rashid disclosed that weapon of offence which was used by him was lying in his house. He also disclosed that currency notes which he had received to kill Majahar Hussain from Nasir also kept at his house bearing no. 62, Gali no.3, Jafrabad, New Seelampur. Pursuant to his disclosure statement he was taken to his house by the police official and he got recovered one country made katta and live cartridge from the first floor of his house. He also got recovered currency notes from the ground floor of the house. On opening the dessi katta one used cartridge was taken out of which sketch was prepared. Sketch of 48 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. live cartridge, used cartridge and dessi katta was prepared by him which have already been exhibited as Ex. PW6/J and these articles were also sealed with the seal of VSP vide Ex. PW6/H. Accused got recovered Rs.25,000/- from a box kept in the ground floor of his house and handed over the same to him in lieu of balance amount of Rs. 1,00,000/- received from Nasir to kill Majahar Hussain. The currency notes were also sealed with the seal of VSP and seized vide seizure memo Ex. PW6/H.
(f) During course of investigation all the exhibits were sent to FSL, Rohini. He recorded statement of all the PW's and after completion of all the necessary investigation he presented the challan to the court of Ld. MM. He further stated that result of FSL were submitted in the court during trial. FSL result of ballistics expert is Ex. PW20/A and FSL result is Ex. PW20/A and FSL result of serology and biology is Ex. PW19/A and B. He correctly identified both the accused persons in the court. Sealed parcel no.5 duly sealed with the seal of FSL opened out of which two envelope are taken out. One envelope found to contain one 49 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. blood gauge shown to the witness which he correctly identified. One unsealed polythene pack was also opened and a chappal which were recovered from the spot by the IO were taken out which were correctly identified by him, same is Ex. P.3. He also identified earth control, blood stained cotton, blood smear earth, country made pistol, two cells, two used cartridge, one bullet (lead) identified by him which are collectively Ex. P2. He also identified the currency note worth Rs. 25,000/- which were recovered on the pointing out of accused collectively Ex. P.1.
(g) During his cross examination he testified that on both the sides of the street where the offence was committed there were many shops and dhabas which remained opened till late night upto 12 mid night or 1:00 a.m. He also stated that during his first visit he did not come to know as to how the incident had taken place, from the persons who were gathered at the spot. He also testified that neither he tried nor it was revealed during his first visit as to who was the owner of the motor cycle which was lying at the spot as he had reached to the hospital after 50 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. directing police official to guard the spot and the articles lying there including motor cycle on the ground that injured had already been removed from there to hospital. He also stated that crime team did not lift any finger prints from the spot as the same were not available at the spot and purse could not be seen as the same was found beneath the motor cycle. He also testified that in the rough site plan Ex. PW23/C the situation of the motor cycle is shown in front of house no. D-95 and the scaled site plan Ex. PW11/A the situation of motor cycle is shown in front of house no. D-94 but further stated that premises no. D-94 and D- 95 are adjoining to each other. He also testified that name of Babu Miya as shown in the site plan was disclosed when he reached at the spot first time and before preparation of site plan Ex. PW23/C he had not inquired about the names of occupants/owners of the property no.D-91, D-94 and D-95 . He also testified that till 3.9.05 he could not made him aware a to how the incident had taken place. He also testified that seal after use was handed over to SI Begh Raj however, this fact was not mentioned in Ex. PW12/A, B,C,E, F and G. He further testified 51 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. that he met number of times to the brother of deceased Ajhar Husain between 3.9.05 to 21.10.05 as he used to come the police station but he could not meet Hasiba as she observed Iddat during said period. He also testified that Hasiba (wife of deceased) stated before him that before leaving the house by her husband at about 10:00 p.m one call was received on his mobile phone by him. He also testified that he made inquiries to this fact wherein it was revealed that one Shafiq @ Mohd. Shafiq r/o 2278, Chatta Mom Gram, Chitali Kabar, Jama Masjid, Delhi had made a telephonic call on 2.9.05 and he also collected that call detail of mobile number of the deceased i.e 9312394145 but he has not placed on record the call detail of this phone number. He further testified that neither the mobile nor the sim-card were recovered during the investigation. He further testified that Ajhar had not raised suspicion on any person during 3.9.05 to 21.10.05 and also not furnished any relevant information with regard to this case and only on 21.10.05 Ajhar (elder brother of deceased) made a call to him at PS at about 6:00 p.m revealing him about some relevant information with regard to this case. On 52 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. receipt of this information he alongwith police officials reached at the residence of Ajhar. Three four family members and Ajhar met them there. Statement of Ajhar was recorded by SI Virender Puniya in his supervision but factum of receiving the information was not recorded by him in his case diary. He further testified that wife of deceased told him that he was involved in some Jadu Tona activities and also in making Tawiz etc. He also testified that when he reached at the house of Nasir at about 9 or 9:15 p.m no one was present except one tenant of Nasir and on seeing police party many mohalla peoples gathered there and they stayed there for two hours and till they remained there for two hours none from the family of accused Nasir came to his house. Rest of his testimony is reiterated by him as submitted by him during his examination in chief.
xxiv)PW24 deposed that on 2.9.05 at about 11:35 p.m one male aged about 40 years (unknown) was brought to the causality of GTB hospital for his medical examination with alleged history of gun shot injury. Patient was examined by Dr. Sujjan Singh the 53 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. then ACMO. Dr. Sujjan Singh has know left the services of hospital and his present whereabouts were not known as per hospital record. He can identify the signature of Dr. Sujjan Singh as he had seen him writing and signing the documents on the ground that he had worked under him. MLC Ex. PW24/A bearing the signature of Dr. Sujjan Singh at point A. MLC also bears his name at point B. He further deposed that as per MLC the final impression given by Dr. Sujjan Singh that patient was brought dead. During his cross examination he testified that he had no personal knowledge about the contents of MLC and had not examined the injured. Thereafter, prosecution evidence was closed and case was fixed for examination of accused u/s 313 Cr.P.C.
11.During course of examination of accused Nasir u/s 313 Cr.P.C he controverted all the allegations as alleged against him and also submitted that infact the deceased was having criminal records and was doing the job of Tantrik as such he was having enmity with several people who might have killed him. 54
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. He further stated that deceased was having strained relations with his brother Azhar Hussain who is a witness in this case and wife of deceased Smt. Hasiba Begum has lodged a DD against him at PS Bhajanpura regarding extension of threat of murder of her as he had committed murdered of the husband of Hasiba. He submitted that after knitting a false story he has been implicated in this case alongwith other co-accused Rashid.
12.Co-accused Rashid also controverted all the allegations as alleged against him and stated the same facts which were stated by accused Nasir. They both desired to lead defence evidence, therefore case was fixed for defence evidence.
13.Ct. Amit Kumar of PS Bhajan Pura appeared as DW1 and brought the summoned record of DD no. 21 A dated 8.8.06 which was got registered by one Smt. Hassiba w/o late Majhar Hussain r/o gali no.7, Noor-E-Ilahi Colony, Bhajan Pura, Delhi. The said DD was registered in the register A and the entry 55 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. bears thumb impression of Smt. Hasiba which was duly attested by the then DO ASI Krishan Dutt. True copy of DD no. 21A is Ex. DW1/A (original seen and returned). The brief facts of DD no. 21 A are as follows:
"On 8.8.06 at about 6:50 p.m she stated that her jeth Ajahar who used to live at Ghonda is a witness in a case in which his husband was got murdered. Her jeth used to quarrel with her and also used to demand money from her. He also used to extend threat that in case she would not give money he shall not depose in the court correctly and you would face the same consequences which your husband had faced. She fed up with the behaviour of her jeth."
RO&AC RTI Hasiba
14.Thereafter, DE was closed and case was fixed for final arguments.
15.I have heard the arguments on behalf of Ld. Counsel for both the parties.
16.Ld. counsel for accused submitted that before convicting the 56 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. accused under any penal law it is duty of the prosecution to prove its case beyond reasonable doubt and in the present case neither corroborative incriminating evidence nor unbreakable chain of circumstances to prove the case against the accused persons are placed on record.
(a) In support of his contention he submitted that initially accused Nasir was arrested on the basis of extra judicial confession marked Ex.PW2/A made by PW2 Majhar Hussain wherein he stated that accused Nasir had made extra judicial confession to him stating that his father-in-law Majhar Hussain (deceased herein) was harassing his wife and compelling her to desert him and on being fed up by the activities of the deceased he got murdered him through co-accused Rashid. But during examination of PW2 before this court he only deposed that deceased Majhar Hussain was his younger brother. On 2.9.05 at about 10:00 p.m after receiving the telephonic message from his relative he reached at the spot i.e gali no.1, Noor E-Elahi and came to know that motor cycle 57 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. bearing no. DL7SL-7186 was lying at the spot. He went to the house of his brother Majhar Hussain and made inquiry from his wife wherein it was revealed that her husband had left the house at about 1 and 1½ hour earlier. He also took his sister in law (wife of deceased) at the spot on his scooter and came to know that injured had already been taken to GTB hospital. In the hospital they identified the dead body of deceased Majhar Hussain vide his statement Ex. PW2/A which bears his signature at point A and except the aforesaid fact he had not stated anything else to the police official. During his cross examination by Ld. Addl. PP for state he clearly stated that he had not stated to the police in his statement dated 21.10.05 that :
"when he was returning after offering Namaz, Nasir (accused herein) disclosed before him that after being fed up with the Zadoo Tona activities and interference in his family matters by Majhar Hussain he got him murdered on paying supari of Rs.1,00,000/-."
While deposing so, PW2 has confronted from his statement 58 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. Ex. PW2/A thereby he turned hostile on the point of making extra judicial confession by accused Nasir. Ld. Counsel for accused also placed his reliance on a decided case cited as Jaspal Singh @ Pali Vs. State of Punjab 1997(2) RCR 702 SC wherein it is observed as under:
"Accused had no reason to go to the witness and confess the guilt by reposing confidence in him, not safe to convict the accused."
Ld. Counsel for accused also placed his reliance on a decided case cited as Khiali Ram Vs. State of Haryana 1998(1) Crimes 418 (DB) wherein it is observed as under:
"When prosecution case rested on evidence of last scene, extra judicial confession and recovery of wrist watch, purse and scooter of deceased at the instance of accused/appellant. Statement of witness about last scene was recorded by the police after a month of incident though dead body had been recovered on the next day of murder. Other material witness who had accompanied deceased was given up. No reason on record why accused/appellant would make confession to PW6 after two months of incident when PW6 was not even resident of village of accused/ appellant. Recovery of 59 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. articles of deceased was also doubtful. In such circumstances it was held that conviction could not be sustained ."
(b) It is further pleaded that PW1 wife of deceased on the day of incident had gone to Brij Puri at the house of her nanad with her husband and children and after having Niaz (feast) they returned back on the same day. She also deposed that her husband received a telephonic call from some one on his mobile phone and soon thereafter he left his house on his motor cycle and when he was passing through gali no. 1, near Noor E-ElIlahi Masjid unknown person shot him dead. The investigation was initiated only on the basis of extra judicial confession allegedly made by PW2 and the disclosure statement Ex. PW6/A made by co-accused Nasir. The factum of receiving a call on the mobile of deceased in the night of 02.09.05 and on receiving the call he left his house and thereafter he was shot dead is a very material and important circumstance which is required to be looked into by the court. 60
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. (c ) The person who had made a call to the deceased immediate before his death, neither arrested nor interrogated to reach to right conclusion of the investigation. The person who had made a call well prior to commission of murder of the deceased might having hand in glove to commit the offence.
(d) He further pleaded that as per prosecution in the disclosure statement Ex. PW6/A accused Nasir disclosed that they were checking movement of the deceased and he was intimating to co-accused Rashid which is totally unbelievable on the ground that once the deceased finally returned to his house in the night at about 10 O'clock and thereafter he came out only on receiving a call from other person. In such circumstances the person who made the last call to the deceased might have been the person who had made a call is solely responsible to commit the offence as he was the person well known to the fact that deceased would come out and would go through a certain way.
61
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. (e ) It is further submitted that PW23 Inspector Ombir Singh during his cross examination admitted the fact that he ascertained the last call made to the deceased on the day of incident and it was revealed that call was made by one Mohd. Shafiq of Chatta Magram, Chitri Kabra, Jama Masjid, Delhi but the prosecution failed to investigate any nexus of the accused with Shafiq who had made last call to the deceased which create a serious doubt on the prosecution version and also sufficient to break the chain of circumstances allegedly collected by the IO during investigation of this case.
(f) It is further pleaded that it is case of the prosecution that accused Rashid was arrested on 21.10.05 at about 11:00 p.m and alleged recovery has been shown by the prosecution on 23.10.05 from the house of accused Rashid and his house was admittedly not locked meaning thereby house of the accused Rashid was free for all to have access in his house. The alleged recovery of Rs. 25,000/- from the house of accused Rashid on 23.10.05 and country made pistol, one empty and 62 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. one live cartridge appears to be doubtful and in such circumstances possibility of plantation of alleged recovery cannot be ruled out .
(g) It is further submitted that PW6 Inspector V.S. Punia stated in his cross examination that pursuant to the disclosure statement of accused Rashid he led them in a room at first floor of his house and produced cash of Rs.25,000/- taken out from a box and thereafter he led them to ground floor and from a room he produced a katta from underneath the cloth and one live cartridge and on checking the katta was found to contain one fired cartridge in it and this fact was contradicted by PW23 who had stated that country made katta and live cartridge was recovered from the first floor of his house and currency notes of Rs.25,000/- were recovered from the ground floor of the house and these discrepancies in the testimony of PW6 and PW23 create a serious doubt on the recoveries as alleged by the prosecution and also placed his reliance on a decided case cited as Niranjan Lal Vs. State of Haryana 1994(2) RCR 620 63 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. wherein it is observed as under :
"In the absence of eye witness, wrist watch belonging to deceased recovered from accused is not sufficient to connect the accused with the offence as wrist watch is not as such a valuable commodity that accused would keep it concealed in his house and create evidence against him."
(h) Resham Singh Vs. State of Punjab 1994(3) RCR 622 P & H wherein it is observed as under:
"recovery of spear from hut of accused on his disclosure, recovery cannot believed as accused would not keep concealed spear in his hut at the risk of creating evidence against him.
(i) Bahadul Vs. State of Orisa AIR 1979 SC 1262 wherein it is observed as under:
"Weapon merely taken out by accused from beneath his cot and handed over to police without any statement made by him and the place of recovery was also accessible to all, the factum of recovery is barred u/s 27 and weapon cannot be relied on as admissible in the evidence."64
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc.
(j) Ld. counsel further pleaded that prosecution has claimed that hammer impression on the test fired cartridge cases (TC-1 and TC-2) and empty fired cartridge (EC-1 and EC-2) were found identical when examined under comparison microscope.
(k) On the other hand PW20 Puneet Puri, Senior Scientific Officer, Ballistics Expert, FSL Rohini categorically stated that the bullet mark Ex.EB-1 and EB-2 corresponds to the bullet of 8mm/.315 inches cartridge and no further opinion can be given on Ex. EB1 and EB2 as the individual characteristics of stariation present on Ex. EB-1 and EB-2 were insufficient for comparison and opinion and thereby it is proved that bullet which was found in the body of the deceased was not fired from the alleged country made katta Ex. F1 which was recovered from the house of accused Rashid at his instance and this fact is again sufficient to break the link of chain of circumstances collected during the investigation of this case.
65
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc.
(l) Prosecution also relied on the testimony of PW22 R.K. Singh, Nodal officer to prove the call details of phone no. 9810254326 belonging to Nasir and 9810234935 belonging to Rashid to establish the conversation and follow up the movements of the deceased Majahar Hussain, but during his cross examination he stated that he could not tell what conversation had taken place through the above said telephone numbers. He also deposed that tower containing three signal device and all the three signal devices covered all the four directions of the area but he was not dealing with the subject of the determination from which direction the call was made. He also stated that this fact can be explained by the network department of the company, who were not examined. In such circumstances, it is established that prosecution has failed to prove the location of the accused persons on the day of incident or at the time of incident again is a missing link in the chain of the circumstances placed on record by the prosecution.
66
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc.
(m) It is further pleaded that as per the prosecution version, the seal of JS was used by the IO at the time of sealing the parcels on the day of incident at the spot as well as on the date of recovery of the alleged fire arm, empty and live cartridge alongwith case. The seizure memo of empty cartridge dated 3.9.05 was witnessed by SI Beg Raj and HC Jagbir Singh but HC Jagbir Singh who had examined as PW12 is silent with regard to seal belonging to whom and he had not stated that seal of JS was belonging to him. On the other hand PW23 IO stated in his cross examination that seal after use was handed over to HC Jagbir Singh which is totally in contradiction of Punjab Police Rules. PW8 Jasbir Singh who was the duty officer at GTB hospital and PW14 Jagbir Singh who took parcels to FSL also not testified that seal was belonging to any of them which clearly goes to show that seal used was not of any member of investigating agency involved in this case and was a fictitious seal used by the IO and said seal after use was kept by the IO in his possession and in such circumstances the possibility and probability of planting similar 67 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. fire-pin Ex. EC-1 and EC-2 and TC-1 and TC-2 cannot be ruled out. The delay in sending the parcel to FSL has also not been properly explained in any manner which creates serious doubt on the investigation conducted by the IO and also placed his reliance on a decided case cited as Ten Singh Vs. State (Delhi Administration) 1996 (1) RCR 343 Delhi wherein it is observed as under :
"In case of in-ordinate delay in sending the sealed case property for expert opinion, there were other suspicious features throwing doubt on bonafides of the investigation, accused entitled to benefit of doubt."
(n) Ld. Counsel for accused also placed his reliance on a decided case cited as Baldev Singh Vs. State of Punjab 1991 SCC (Crl.) 61 and Devi Prasad Sharma Vs. The State 1996 (2) Crimes 254 Delhi.
(o) It is further pleaded that there was an over writing at point A of Ex. 21/DA thereby replacing it by two bullets without having any initial of MHCM or of his munshi.
68
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc.
(p) It is further pleaded that no public person was joined by the IO at the time of recovery of articles from the spot despite of the fact that spot was a thickly populated area and many public persons were gathered at the spot. It is further pleaded that prosecution has not examined Mst. Ashama wife of accused and step daughter of deceased to prove any motive on the part of accused Nasir to commit the alleged crime. It is further pleaded that Mohd. Shafiq who made the last call to the deceased on the day of incident was neither examined as witness nor made an accused in this case which also raises a serious doubt on the investigation.
(q) It is further pleaded that IO PW23 during his cross examination stated that intimation regarding arrest of accused Nasir was given to his father but on perusal of arrest memo Ex. PW6/B in column no. 8 the arrest of information was mentioned to be given to Ashama (wife of accused) and no name of father of Nasir is mentioned therein which again raises a serious doubt with regard to arrest of accused and 69 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. intimation to this effect.
(r) In view of the aforesaid discussion it is pleaded that there are material contradictions and confrontations in the statement of PW's examined by prosecution which raises a serious doubt on the prosecution version and also failed to establish an unbreakable chain of circumstances and submitted that benefit of doubt should be extended to the accused persons and placed his reliance on a decided case cited as Balu Sonba Sinde Vs. State of Maharashtra 2002 (4) RCR 95 SC wherein the following guidelines have been summed up :
(i) There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
(ii) Circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the 70 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. innocence of the accused and is consistent only with his guilt.
(iii) There should be no missing links but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts.
(iv) On the availability of two inferences, the one in favour of the accused must be accepted.
(v) It cannot be said that prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise."
(s) Ld. counsel for accused also placed his reliance on a decided case cited as Swinder Singh Vs. State of Punjab AIR 1992 SC 669 wherein it is observed as under:
"It is no doubt true as we have pointed out earlier that there is a strong suspicion against the appellant, but as pointed out by this court in Pabitar Singh Vs. State of Bihar (1972) 3 SCC 354 : (AIR 1972 SC 1899) although there may be grave suspicion against an accused person, 71 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. still the prosecution is bound to establish facts from which the court can reasonably arrive at a conclusion that the offence was committed by the accused. It may be recalled that this court repeatedly observed that the suspicion however grave cannot take the place of legal proof."
(t) Ld. Counsel for accused also placed his reliance on a decided case cited as Shingara Singh Vs. State of Haryana and another 2004(2) RCR (Criminal) SC wherein it is observed as under :
"it is well settled that where two views are reasonably possible on the basis of evidence on record, one that favours the accused shall be accepted."
(u) Ld. Counsel for accused also placed his reliance on a decided case cited as State of UP Vs. Ashok Kumar 1992(3) RCR 63 wherein it is observed as under:
"While appreciating circumstantial evidence the court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in 72 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. 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."
(v) It is further pleaded that it is the case of the prosecution that during examination of accused u/s 313 Cr.P.C they both denied that they had any conversation on their mobile phones on the day of incident. On the other hand PW22 Nodal officer placed on record the call details establishing thereby that such conversion on the day of incident and prior to that in rebuttal to the said plea taken by the prosecution Ld. Counsel for accused placed his reliance on a decided case cited as Babudas Vs. State of M.P 2003(2) RCR (Criminal) 871 SC wherein it is observed as under:
"When case based on circumstantial evidence and the plea of alibi taken by accused found to be false, in such circumstances accused cannot be convicted only on the basis of false plea of alibi against when other evidence produced by prosecution was not believed."
17. On the contrary Ld. Addl. PP for state submitted that prosecution has produced 23 witnesses in support of its case 73 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. and succeeded in establishing an unbreakable chain of circumstances against the accused. In support of her contentions she submitted that initially case was registered on 2.9.05 on the basis of information received at PS Bhajan Pura vide DD no.25A that a person was lying dead at Noor Elahi Colony, gali no.1, Delhi. On receipt of this information PW17 SI Beghraj and PW12 HC Jagbir Singh alongwith constable Bhim Singh reached at the spot and found a person lying dead there. PCR van also reached at the spot. Inspector Ombir Singh PW23 IO of this case alongwith other police officials also reached at the spot in a Government vehicle. On reaching there they found a red colour motor cycle bearing no. DL-7SL- 7186, blood came out from the dead body, left leg floater, an empty used cartridge were found lying there at the spot. Injured had already been taken to GTB hospital by PCR van. HC Jagbir Singh (PW12) remained there to guard the spot and Inspector Om Vir Singh (PW23) alongwith other police officials reached at GTB hospital and obtained the MLC bearing no. B-3262/05 of unknown person wherein it was 74 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. opined by doctor that patient was brought unconscious to the casualty with alleged history of Gun Shot injury and it was also opined that he was brought dead. PW1 and PW2 both wife and brother of deceased identified the dead body. PW1 Hasiba also identified the motor cycle bearing no. DL-7SL-7186 and left leg floater of her husband which were found lying at the spot, thereby it is established that PW1 and PW2 identified the dead body of deceased Majahar Hussain however, they both confronted from their statement recorded by the IO after showing a little light to the investigating officer.
(a) It is further pleaded that investigation was initiated, crime team was called at the spot, rough site plan was prepared, motor cycle bearing no. DL-7SL-7186, one chappal (floater), one purse brown colour, one identify card bearing no. 013, one driving license, Rs. 110/- currency notes and some papers were taken in possession from the spot. Duty constable Jasbir Singh took in possession a wrist watch bearing ARCH impression on the dial, 24/- rupees currency 75 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. notes, one registration certificate bearing no. RC. No. 463055 of the motor cycle bearing no. DL-7SL-7186, three pollution control certificates, one insurance certificate bearing no. 62515 were took from the possession of deceased at GTB hospital which clearly proved the identity of the dead body and factum of commission of his murder at the spot shown on the site plan Ex. PWPW23/C. Postmortem of the dead body was got done on 3.9.05 and was handed over to PW1 and PW2.
"The cause of death is shock due to antimortem injuries to the head and chest produced by projectile of firearms and both the injuries are sufficient to cause death in ordinary course of nature individually and collectively both." is proved by PW18 vide his report Ex. PW18/A and both the above said injuries were antimortem thereby it is established that deceased was murdered on 2.9.05 at the spot shown on the site plan Ex.PW23/C.
(b) It is further pleaded that it is the case of the prosecution that Nasir was initially arrested on 21.10.05 and he 76 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. made disclosure statement to the fact that he put a proposal of marriage to one Ashama step daughter of deceased Majahar Hussain and daughter of Hasiba (PW1) and with their consent he was got married with Ashama on 30.4.04 and started residing at house no. 95/224 DDA Quarters, Seelampur. Deceased Majahar Hussain (his father-in-law) used to do work of making Tawiz and firmly believing in Zadoo Tona activities. He further disclosed that he purchased a house at Vijay Park, gali no.7 five months ago and that house was also got transferred by deceased in his own name and also used to gave some toxic substance due to that severe headache and other problems developed . After being fed up with the conduct of Majhar Husain (deceased herein) he narrated his problems to one Rashid (son of jeth of his sister) and has hatched a conspiracy to kill Majhar Hussain to which he was directed to make arrangement of Rs. 1,00,000/- and accordingly, he made payment of the said amount in the first week of August 2005. After receiving the said amount co-
accused Rashid and his friend started executing their work and 77 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. co-accused Rashid also used to tell him the progress with regard to the execution of said deal on mobile phone. He also disclosed that on 2.9.05 he made a telephonic call from his mobile phone bearing no. 9810234935 to his mobile no. 9810254326 and informed him that Majhar Hussan had been killed. In support of disclosure statement so recorded PW22 Nodal Officer has placed sufficient evidence on the fact that accused Nasir and co-accused Rashid had made telephonic conversation on 2.9.05 and the disclosure statement to prove this fact has become admissible in evidence as provided u/s 27 of the Indian Evidence Act which reads thus:
"How much of information received from accused may be proved-Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
(c ) It is further the admitted fact that accused Nasir was got married with Ashama step daughter of deceased. It has 78 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. also come on record that deceased was doing the business of making Tawiz and also believing in Zadoo Tona due to which accused Nasir fed up, this fact clearly establishes a motive to commit the murder of Majahar Hussain by the accused persons. The factum of recovery of country made katta, cartridge and currency notes of Rs.25,000/- at the instance of co-accused Rashid from his house is proved as the same has been corroborated by PW20 Senior Scientific Assistant Ballistics, FSL, Rohini, Delhi as in his opinion he had clearly stated that:
"individual characteristic or firing pin marks and breech face marks present on evidence fired cartridge cases marked exhibits 'EC1 and EC2' and on test fired cartridge cases marked 'TC1 and TC2' were examined and compared under the Comparison Microscope Model Leica DMC and were found identical. Hence exhibits "EC1' I 'EC2' have been fired through the country made pistol .315" bore marked exhibit 'F1' above which clearly goes to show that country made kata, live cartridge and one empty cartridge which were recovered from the house of co-accused Rashid and one used empty cartridge 79 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. 8mm which were recovered from the spot were fired through country made katta which were recovered from the house of co-accused Rashid and seized vide seizure memo Ex. PW6/H and sketch of country made katta is proved vide Ex. PW6/J, therefore, the factum of recovery of country made katta from the house of Rashid has become admissible in evidence as provided u/s 27 of the Indian Evidence Act being discovered facts.
(d) It is further pleaded that factum of individual characteristic of striations marks present on evidence bullets marked exhibits "EB1 and EB2' were insufficient for comparison and opinion as to whether these have been discharged through the country made pistol .315" bore marked exhibit 'F1' shall not prove fatal to the prosecution as the fact that Ex. EC1 and EC2 have been fired through the country made pistol Ex. F1 is proved and therefore is admissible in evidence as provided u/s 27 of Indian Evidence Act and placed her reliance on a decided case cited as State Vs. NCT of 80 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. Delhi Vs. Navjot Sandhu @ Afsan Guru 2005 (4) Criminal Court Cases 294 (SC) wherein it is observed as under:
" The interpretation of Section 27 of the Evidence Act has loomed large in the course of arguments. The controversy centered round two aspects:
i) Whether the discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to certain things-concrete or non-concrete.
ii) Whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance? The subsequent event of discovery by police with the aid of information furnished by the accused- whether can be put against him under section 27?
It is held that :
"The application of the section is not contingent on the recovery of a physical object. Section 27 embodies the doctrine of confirmation by subsequent events. The fact investigated and found by the police consequent to the information disclosed 81 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. by the accused amounts to confirmation of that piece of information. Only that piece of information, which is distinctly supported by confirmation, is rendered relevant and admissible u/s 27."
and also placed her reliance on a decided case cited as Earabhadrappa Vs. State of Karnataka AIR 1983 Supreme Court 446 wherein it is observed as under:-
For the applicability of Section 27 two conditions are pre-requisite namely
(i) The information must be such as he has caused discovery of the fact and
(ii)the information must relate distinctly to the fact discovered. U/s 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word fact means some concrete or material fact to which the information directly relates"
(e) It is further pleaded that both the accused during their examination u/s 313 Cr.P.C denied that they had any conversation on their mobile phone on the day of incident or prior to the day of incident. On the other hand it has been proved by scientific evidence produced by PW22 (Nodal 82 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. Officer Bharti Airtel) that they had conversation on the day of incident and were present near the area of place of commission of murder which establishes a conduct and motive to commit the crime.
(f) Ld. Addl. PP for state further submitted that the factum of receipt of information vide DD no. 25A was proved by PW10 HC Satbir Singh who has clearly stated that on 2.9.05 he was working as duty officer from 4 p.m to 1 a.m at PS Bhajan Pura and on that day at about 10:50 p.m he received a PCR call through wire less operator beta 53 informing thereby that one unknown person was lying dead at Noor E-Elahi colony main gali Bhajan Pura. He also deposed that said information was received through a telephone bearing no. 22910076 and he reduced the same into writing vide DD no. 25A which is Ex.
PW10/A. He further deposed that he handed over the said DD to SI Begh Raj and on receipt of this DD SI Beg Raj alongwith ct. Bhim Singh left the PS for spot in his presence and this fact is further corroborated by PW12 HC Jagbir Singh and PW17 SI 83 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. Begh Raj as they both in their testimony clearly stated that on receipt of the said information they reached at the spot and their detailed testimony is already discussed as PW12 and PW17.
(g) Factum of taking injured from the spot to the hospital is further corroborated by PW9 ASI Patra Slakara who stated that on 2.9.05 he was posted as ASI Incharge in PCR van and received an information at about 10:32 p.m that a man was lying dead in Noor E-Elahi Gali no.1, Bhajan Pura and accordingly he reached at the spot in front of house no. D-94, Bhajan Pura and saw a man was lying dead and blood was coming out from his body. He alongwith the help of his other staff members took injured to GTB hospital and got him admitted there and handed over in the safe custody of duty ct. Jagbir Singh (PW8) and PW8 further corroborated the testimony of PW9 while deposing that one PCR van got admitted an unknown injured in the hospital and doctor opined him as brought dead. He also proved that on the search of 84 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. dead body Rs.24/-, one wrist watch and one registration certificate of motor cycle, one pollution certificate were handed over to him by doctor and he handed over the same to the IO which were taken in possession vide Ex. PW8/A in his presence. He also corroborated the factum of reaching the wife of deceased at the hospital and identifying the dead body of her husband by her.
(h) Factum of conducting postmortem of the dead body is proved by PW18 doctor S.Lal who gave his detailed report with regard to general observation, antimortem injuries, internal examination and cause of death wherein he specifically opined that cause of death was shock due to antimortem injury to head and chest, produced by projectile of fire arms and both injuries were sufficient to cause death in ordinary course of nature individually and collectively both. His report is Ex. PW18/A. Factum of recovery of country made katta i.e fire arm from the house of co-accused Rashid at his instance is proved by PW6 Inspector V.S. Punia, PW23 IO Virender Singh Bhatti, 85 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. PW13 Ct. Kiran Pal.
(i) Factum of depositing all pullandas is proved by PW21 HC Raghuvir Singh and PW14 Jagbir Singh. He deposed that on 21.11.05 he was posted as MHCM and on that day he handed over eight sealed pullandas out of which four pullandas were duly sealed with the seal of JS, three pullandas were sealed with the seal of SL and one pullanda sealed with the seal of VSP to Ct. Jagbir vide RC no. 86/21 for depositing the same in the office of FSL Rohini. He also deposed that till the case property remained in his possession same was not tampered with it and remained intact. He also produced register no. 19. Copy of the same is Ex. PW21/A (original seen and returned). He also proved that on 19.2.07 he received the result of all the exhibits alongwith exhibits of the present case through Ct. Chander Prakash and deposited the same in the Malkhana, copy of the same is Ex. PW21/B. Testimony of PW14 and PW21 is further corroborated by PW19 Ms. Anita Chhari, Senior Scientific Assistant and PW20 Puneet Puri, 86 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. Senior Scientific Asst. Ballistics FSL, Rohini. The serological and biological reports are Ex. PW19/A and Ex. PW19/B and detailed report of remaining exhibits proved by PW20 is Punit Puri vide Ex. PW20/A and PW20 in his report clearly opined that country made pistol recovered from the possession of accused marked F1 live cartridge Ex. A1 both recovered from the house of co-accused Rashid were in working order and test fired successfully and the opinion given on the basis of EC1 and EC2 fired empty cartridge and bullet marked Ex. EB1 and deformed bullet marked Ex. EB2 it was opined that the individual characteristics of firing pin marks and breech face marks present on exhibits EC1 and EC2 and test fired cartridge cases marked as TC1 and TC2 were found identical. It is also opined that Ex. EB1 and EB2 through country made pistol .315 inch mark Ex. F1 which clearly goes to show that fired cartridge cases EC1 and EC2 were fired through the country made katta Ex. F1. It is also opined that Ex. F1, A1, EC1, EC2, EB1 and EB2 are firearm/ammunition as defined in the Arms Act 1959.
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(j) PW3 proved the factum of registration of the case vide FIR no.368/05. PW4 is the photographer who took the photographs of the site from different angles on the directions of SI Rakesh, Incharge Crime Team who had proved nine photographs which are Ex. PW4/A to J. PW7 Rakesh further corroborated the factum of visit to the place of incident on 2.9.05 and he corroborated the testimony of PW4 and stated that photographs of the place of incident has been taken. PW7 SI Rakesh proved the crime team report Ex. PW7/A. PW11 SI Mukesh kumar is the draftsman. He corroborated the fact that on 8.11.05 on the request of IO Inspector Ombir Singh (PW23) he reached at PS Bhajan Pura and from there went to the spot with IO PW23 at main Market road Noor E-Elahi, near D-94, Bhajan Pura, Delhi and prepared rough notes and measurements on the pointing out of IO and on the basis of rough notes and measurements he prepared scaled site plan Ex. PW11/A.
(k) PW14 Ct. Jagbir Singh proved the factum of 88 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. depositing all the exhibits to the office of FSL Rohini. Ct. Mangal Sen (PW15) proved the factum of registration of FIR and distribution of copy of FIR to senior officers. PW16 Ram Gopal proved the factum of receiving the exhibits i.e one sealed pullanda, one sealed envelope and one sealed bottle sealed with the seal of SL alongwith one sample seal from the mortuary of GTB hospital and handed over the same to duty officer HC Satvir Singh and same were seized vide seizure memo Ex. PW16/A.
(l) PW22 proved the factum of having conversation between accused Nasir and co-accused Rashid on the day of occurrence. He also filed on record the identify proof of both the mobile numbers used by accused Nasir and Rashid. PW22 also placed on record Site ID Chart (Location Chart) of Bharti Airtel Ltd. wherein it establishes that mobile no. 9810234935 on 2.9.05 from 2:35 p.m to 11:27 pm remained in the locations of towers no. 3441 remained in the locations of towers no. 3441, 5351, 2802, 3441 and 3443, 9051 and 2762 i.e in the 89 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. area of New Seelam Pur, East Gokal Puri, Gautam Puri, New Seelam Pur, Brahm Puri and Subhash Mohalla, Ghonda respectively and the place of conversation and the place of making call among both the co-accused is corresponding and after the last call i.e about near the time of commission of offence no call was ever made by any of the accused. Factum of denying having conversation during their examination u/s 313 Cr.P.C again establishes serious conduct in the involvement of both the accused to commit the crime. PW23 IO has corroborated the testimony of all the police officials and he has not confronted from his statement except some minor variations. PW24 CMO GTB hospital proved the factum of receiving one unknown male aged about 40 years on 2.9.05 at about 11:35 p.m and he also proved the MLC prepared by Dr. Sujjan Singh Ex. PW24/A and in view of the aforesaid discussion and the evidence adduced by the prosecution an unbreakable chain of circumstances is established against both the accused persons and submitted that prosecution has succeeded in proving its case beyond reasonable doubt. 90
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc.
18. In view of the discussion held above I carefully perused the facts of the decided cases upon which Ld. Counsel for accused placed his reliance and the facts of this case qua the observations given by their lordships, the brief of the discussion is as follows :
(a) As per the facts of Jaspal Singh's case accused had no reason to go to the witness and confess the guilt by reposing confidence in him but in the present case PW2 was the brother of deceased and wife of accused was step daughter of deceased thereby it is established that PW2 was the (Taya Sasur) of the accused and they were well known to each other and possibility of making extra judicial confession in view of their established relationship cannot be ruled out. However, PW2 has not supported the factum of making extra judicial confession by the accused in his presence therefore, it is not the issue before this court to be looked into and in Khiali Ram's case also there was no reason on record why accused/appellant would make confession to PW6 when he was not even the resident of village 91 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. of accused, therefore, aforesaid both the judgments have no relevancy to determine the true facts of this case.
(b) In Niranjan Lal's, Resham Singh's and Bahadul's cases the recovery of wrist watch and spear were disbelieved on the ground that the wrist watch is not as such a valuable commodity that accused would keep it concealed in his house and create evidence against him and also would not keep concealed spear in his hut at the risk of creating evidence against him and in Babdul's case the weapon was recovered without making any statement by the accused but in the present case there was a recovery of arm i.e the country made katta, live cartridge and currency notes of Rs.25,000/- on the basis of disclosure statement made by accused himself. The factum of presence of eye witness is not denied but the police official cannot compel them to show their presence at the time of investigation conducted by him, therefore, non joining of public witnesses at the time of recovery in the present case cannot prove fatal to the prosecution as the articles were recovered from 92 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. the house of accused Rashid on the basis of his own statement, therefore, the facts of the present case cannot be put at par with the facts of the aforesaid cases.
(c ) As observed in Balu Sonba Sinde's case I am in agreement with the contention of ld. Counsel for accused and on careful perusal of the evidence adduced by the prosecution it has come on record that cartridge Ex. EC1 and EC2 were fired through the country made katta Ex. F.1 as opined by PW20 Senior Scientific Officer and Insufficiency of striation marks on the bullet which were fired through a countrymade katta have no relevancy at all due to the reason that fire arm was a country made katta and was local made. It is also proved that said country made katta Ex. F1 and cartridge Ex. EC2 were recovered from the house of accused and cartridge EC1 was recovered from the spot and both these were fired through the country made katta recovered from the house of co-accused Rashid. The factum of their conversation on the day of incident is also proved by PW22 Nodal Officer and the 93 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. remaining facts of the case are proved by other PW's from PW1 to PW24. For the factum of relationship between the deceased and co-accused Nasir is not denied rather admitted. Non examination of wife of accused Nasir either in favour of her husband Nasir or in favour of the prosecution has no relevancy at all on this juncture on the ground that she has not come forward to depose in favour of accused Nasir also. Factum of plantation of impugned arm and amuniation by the police official is not properly explained by the accused person as what were the reasons of falsely implicating the accused in the present case by way of plantation of the arms and amuniation at the house of co-accused Rashid. However, all the PW's/police witnesses have placed on record sufficient corroborative evidence on this point and in view of the principle that "illegalities vitiate trial irregularities not" I am of the considered view that the mere irregularity conducted by police officials in their testimonies cannot prove fatal to the prosecution if the same are not illegal .
94
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. In view of the evidence adduced by the prosecution all the guidelines as mentioned by their lordships in the aforesaid decided cases have been completely followed up.
(d) In Babudas's case the false plea of alibi was taken by the accused but in the present case no plea of alibi was taken however, both the accused persons denied that they have had conversation on the day of incident i.e 2.9.05 despite of the fact that it is proved by scientific evidence that they had the conversation on telephone, therefore, the observation of Babudas's case has no relevancy at all in the present case.
19. After hearing arguments on behalf of both the parties and on perusal of the evidence discussed above and the observations given by their lordships in the aforesaid decided cases upon which Ld. Counsel for both the parties placed their reliance, following facts appears to have been established :- 95
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc.
(a) The deceased was found lying dead at Noor-E-Elahi, Bhajan Pura with two injuries caused by firearm and both these injuries were antimortem and were sufficient to cause the death in ordinary course of nature individually and collectively, therefore, the case is squarely covered within the purview of the provisions of Section 300 IPC.
(b) Pursuant to the disclosure statement of accused Nasir accused Rashid was arrested and pursuant to his disclosure statement a country made katta, one live cartridge, one used cartridge and Rs.25,000/- were recovered, one used cartridge was recovered from the spot and all were sent to the office of CFSL, scientific investigation was conducted by the Ballistic Expert wherein he opined that the used cartridge recovered from the spot was fired through the country made katta recovered from the house of accused Rashid, therefore, this part of the disclosure statement made by co-accused Rashid has become 96 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. admissible in evidence by virtue of the observation given by their lordships on the interpretation of section 27 of the Indian Evidence Act.
c) The factum of conversation between accused Nasir and co-
accused Rashid on the day of incident i.e on 2.9.05 from 2:35 p.m to 11:27 p.m and their presence near the place of commission of offence is also established. Factum of ownership of both the mobile phones bearing no. 9810234935 and 9810254326 belonging to co-accused Rashid and Nasir respectively is also established.
(d) Factum of marriage of Ashama step daughter of deceased Majahar Hussain and real daughter of PW1 Hasiba is also established. Accused Nasir during his examination u/s 313 Cr.P.C stated that deceased was having criminal record and was doing the job of Tantrik as such he was having enmity with several people and who might have murdered him, but no such evidence except the fact that last call was made on the 97 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. mobile phone of deceased by one Shafiq is brought on record by the accused persons in their defence. However, the last call made by Shafiq was duly investigated by IO and he was released during the course of investigation. Over all appreciation of the statement of accused u/s 313 Cr.P.C again establishes a grudge /evil motive against the deceased.
20. In view of the aforesaid discussion and after having been taken into consideration the nature of evidence adduced by the prosecution, I am of the considered view that a complete chain of the circumstances to prove the ingredents for the offence u/s 302/120B IPC are placed on record by the prosecution against accused Nasir and a complete chain of circumstances is placed on record for the offence u/s 302/120B/34 IPC r/w section 25 and 27 of the Arms Act. Accordingly, I hold guilty accused Nasir for the offence u/s 302/120B IPC and accused Rashid for the offence u/s 302/120B/34 IPC r/w Section 25 and 27 of Arms Act. (Co- accused Javed not arrested). He will be separately tried as and 98 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. when he will be arrested and supplementary challan will be filed against him. Let both the accused namely Nasir and Rashid be heard on the point of sentence.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 25.09.09 99 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. FIR NO. 368/05 PS BHAJAN PURA 25.09.09 Present: Ms. Neelam Narang Ld. Addl. PP for state.
Accused Nasir on bail.
Accused Rahid in JC.
Arguments already heard.
Vide separate detailed judgment of today accused Nasir hold guilty for the offence u/s 302/120B IPC and accused Rashid hold guilty for the offence u/s 302/120B/34 IPC r/w section 25 and 27 of Arms Act. Accused Javed is not arrested and he be tried separately on production of supplementary challan.
Let both the accused be heard on the point of sentence on 30.09.09. Bail bond of accused Nasir forfeited. He be taken into custody and be produce on 30.09.09.
(B.S. CHUMBAK) ASJ-3/NE DISTRICT DELHI/25.09.09 100 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. IN THE COURT OF SH.B.S.CHUMBAK: ADDL. SESSIONS JUDGE 3 (North East): KARKARDOOMA : DELHI SC No. 67/09 FIR NO.:368/05 PS Bhajan Pura State Vs. Nasir etc. State Vs. 1. NASIR S/O NISAR KHAN R/O B-8 NEW SEELAMPUR NEAR JAMA MASJID, DELHI
2. RASHID S/O JAMIR AHMED R/O HOUSE NO. 62, GALI NO.3, JAFRABAD, NEW SEELAMPUR NEAR CHAND WALI MASJID,DELHI ORDER ON SENTENCE
1. Vide separate judgment dt. 25/9/09 I convicted accused Nasir s/o Nisar Khan for the offence u/sec. 302/120B IPC and accused Rashid s/o Jamir Ahmed for the offence u/sec. 302/120B/34 IPC r/w sec. 25 & 27 Arms Act.
2. Today I have heard the arguments on behalf of Ld. Addl. P.P for State as well as on behalf of Ld. Counsel for the convicts on the point of quantum of sentence.
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FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc.
3. Ld. Counsel for the convict Nasir submitted that he is aged about 38 years having two wives and five school going children, old aged parents having various ailments. No other family member is in earning position and he is only bread earner in his family. On behalf of Rashid it is submitted that he is unmarried having three unmarried sisters and old aged parents. None of his family member is earning and he is the sole bread earner in his family. Brother of convict is living abroad and he is the only person to look after the day today affairs of his family members and requested for taking lenient view on the point of sentence.
4. It is further pleaded that there is no direct evidence of the commission of offence by the convicts and conviction is totally based on the circumstantial evidence. It is further pleaded that conduct of both the convicts during trial remain appreciable. Convict Rashid is in J/C since 23/10/05 and there is no previous involvement reported against any of the convict nor there is any bad conduct reported by the jail authorities during this period and requested for taking lenient view on the point of sentence against both the convicts.
5. On the contrary Ld. Addl. PP for the state argued that after taking undue advantage of the admitted relationship of son in law and father in law between the convict and the deceased, deceased was got murdered with the help of other co-accused Rashid on making 102 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. payment of money is a serious crime and in the circumstances under which the murder was committed it is a fit case in which capital punishment should be awarded by the courts.
6. Ld. Addl. PP for the state further pleaded that the court dealing with an offender in respect of his offence, must have taken into consideration the following purposes of the sentence:
a) The punishment of the offenders
b) The reduction of crime(including its reduction by
deterrence )
c) The reform and rehabilitation of the offenders
d) The protection of public and
e) "The making of reparation by offenders to the persons
effective by their offences" and also placed a reliance on a decided case cited as " BACHAN SINGH VS STATE OF PUNJAB 1980(2) SCC 684 AND MACHI SINGH & ORS VS STATE OF PUNJAB (1983) 3 SCC 470" wherein the following illustration of the murder which fall within the category of rarest of rare cases and deserves death penalty were given:
i) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
ii) When the murder is committed for a motive which 103 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. evinces total depravity and meanness; e.g murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-
vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course of betrayal of the motherland.
iii) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of bride-burning "or dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again to marry another woman on account of infatuation.
iv)When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
v) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."
7. In the present case the murder is committed for a motive which evinces total depravity and meanness i.e murder by hired assassin for money or reward vis a vis the convict was a dominating position and also in position of trust qua the deceased. It is further pleaded that it was preplanned calculated murder and always been regarded as one of an aggravated kind and also placed her reliance on a 104 FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc. decided case cited as "Holiram Bordoloi Vs. State of Assam 2005 (3) SCC 793" it was held as under:
"that pre-planned, calculated, cold-
blooded murder has always been regarded as one of an aggravated kind. A murder diabolically conceived and cruelty executed would justify the imposition of the death penalty on the murderer."
8. It is further pleaded that accused Rashid is involved in another criminal cases i.e one u/sec. 451/506/34 IPC registered at P.S Seelam Pur vide FIR no. 483/99 and in another case u/sec. 302/34 IPC registered at P.S Seelam Pur vide FIR No. 185/00 and requested for awarding capital punishment to convict Rashid.
9. In view of the rival contentions of ld. counsel for both the parties I also carefully perused the observations given by their Lordships in the aforesaid case and also on considering the relationship between the convict and deceased and also the circumstances, and the manner in which the offence was committed coupled with the established fact placed on record by the prosecution I am of the considered view that this case does not fall within the category of rarest of rare cases.105
FIR NO.:368/05, P.S. Bhajan Pura, U/s 302/120B/34 IPC & 25/27/54/59 A.Act State Vs. Nasir etc.
10.Accordingly, convict Nasir s/o Nisar Khan is sentenced to a term of imprisonment for life and also to pay a fine of Rs.5000/- in default of payment of fine he shall further undergo SI for six months for the offence u/sec. 302/120B IPC and convict Rashid s/o Jamir Ahmed sentenced to a term of imprisonment for life and also to pay a fine of Rs.5000/- in default of payment of fine he shall further undergo SI for six months for the offence u/sec. 302/120B/34 IPC and he is also further sentenced to undergo RI for three years and also to pay a fine of Rs.3000/- and in default of payment of fine he shall further undergo SI for three months for the offence u/sec. 25 & 27 of Arms Act.
10.Benefit of Section 428 Cr.P.C shall be given to the convicts as per law. Copy of the judgment and this order be given to the convicts free of cost. File be consigned to the Record Room.
ANNOUNCED IN OPEN COURT (B.S. CHUMBAK)
DELHI DT 30.09.09 ASJ-3 (North-East) KKD,
DELHI