Delhi District Court
State vs . Mohd. Irfan & Anr. on 25 February, 2015
1
In the Court of Dig Vinay Singh
ASJ/Special Judge : NDPS(N-W) : Rohini Courts : Delhi
In the matter of :
SC No. 27/13
State Vs. Mohd. Irfan & anr.
FIR no. 46/10
PS Mukherjee Nagar
U/s 302/201/34 IPC
State
Versus
1) Mohd. Irfan Khan @ Pappan
S/o Sh. Mohd. Ayub Khan
R/o H.No. 320 of Hazi Sirazuddin,
Apar Kot near Water Tank, Loni,
Ghaziabad, U.P.
2) Mohd. Arshad @ Arshad
S/o Mohd. Shakeel
R/o House No. 189,
Gali no. 5, Guru Nanak Nagar near Brij Puri,
P.S. Gokal Puri, Delhi-94.
Date of receipt : 01.07.2010
(Received in this court) : 31.10.2013
Date of arguments : 25.02.2015
Date of announcement : 25.02.2015
JUDGMENT
1. The above mentioned two accused were sent for trial with the case SC no. 27/13 Page 1 of 48 2 of prosecution that, in furtherance of their common intention, they committed murder of one Hari Shankar in the night intervening 11 th
-12th February, 2010. The story of prosecution unfolds as follows:
1.1. On 12.2.2010 at 7.25 AM, an information was received in police station Mukherjee Nagar vide DD no. 11A, which revealed that one person informed the PCR through mobile no. 9958808796 about a dead body lying at Nirankari Samagam ground. ASI Madan Lal, Ct.
Rakesh and HC Dhoop Chand went to the spot. Upon reaching the spot the police officials found dead body of a 30-40 years old male, with his throat slit. The crime team was called at the spot. From the pocket of pants of deceased two paper slips, which were blood stained, were recovered. Those paper slips contained mobile telephone numbers of two persons namely Raja Bhati and Mukesh. On being contacted on telephone no. 9811268486, belonging to Rajbir Singh Bhati, he came to the spot and identified the body as that of Hari Shankar. The FIR was registered and the investigation was taken over by Inspector Krishan Lal. Evidence was collected from the spot which included tyre marks of some vehicle lifted with the help of POP.
1.2. During investigation, the wife and son of deceased were informed about the death. On the information given by the wife of deceased, who had lastly seen the deceased leaving the house in the company of the present two accused, a search was made for the two accused. The present two accused were later on apprehended on 24.02.2010. It came to be known that on the date of incident, the SC no. 27/13 Page 2 of 48 3 two accused called the deceased from his house in presence of his wife Kiran and his son Jitender, took the deceased with them and, thereafter together consumed liquor. The deceased was then taken to the spot in a TSR no. DL1RL 2949. At that spot, the deceased was murdered by slitting his throat with a knife which the two accused had brought in order to murder the deceased. The reason for the murder was that accused Mohd. Irfan had liking for wife of the deceased. The deceased used to object visit of Mohd. Irfan at his house in his absence. Mohd. Irfan sought help of Mohd. Arshad to do away with the deceased. After committing murder, the two accused took away the mobile phone, driving license and a sum of Rs. 30/- from the deceased. The driving license could never be recovered in the case. The TSR was recovered at the instance of accused Mohd. Arshad. The Mobile phone of deceased, but without battery, without back cover and SIM, was recovered at the instance of accused Mohd. Irfan. The knife used in the commission of crime was also recovered at the instance of Mohd. Irfan. It is also the case of prosecution that both the accused got recovered their blood stained clothes. Mohd. Irfan got recovered his blood stained clothes from his house, whereas, Mohd. Arshad was wearing the same clothes when he was apprehended on 24.2.2010, but his clothes were seized on 27.2.2010. When the TSR was recovered at the instance of accused Mohd. Arshad, from it the documents of TSR Viz., RC, Insurance, Pollution under control Certificate etc. were also recovered. Besides those documents, certain challans of the SC no. 27/13 Page 3 of 48 4 same TSR were also recovered which revealed that the driver of the said TSR was challaned for violation of traffic rules on 14.12.2009 at about 11.40-11.43 AM under Challan no. 604755 and 604756. On completion of investigation, charge sheet was filed.
2. Both the accused were charged for offence U/s 302 as well as 201 read with sec 34 IPC. They pleaded not guilty to the charge and claimed trial.
3. In support of its case, prosecution examined total 29 witnesses.
3.1. The wife and son of deceased have been examined as PW9 Kiran & PW10 Jitender, respectively, and those two witnesses are on the point of the deceased last seen in the company of two accused.
3.2. PW14 ASI Madan Lal, PW15 Ct. Rakesh Roshan and, PW17 HC Dhoop Chand deposed about the proceedings conducted by the investigating officer at the spot.
3.3. PW27 Inspector Kishan Lal the investigating officer, PW22 HC Nanhe Lal, PW19 Ct. Khushvedwan and, PW20 Ct. Rajender also deposed about the investigations conducted on various dates.
3.4. The other witnesses are more or less formal in nature.
3.5. PW1 Vishal discovered the dead body on 12.2.2010 and informed the PCR from his mobile at about 7.10 AM.
3.6. PW2 Woman ASI Santosh was the duty officer who recorded the FIR Ex.PW2/A and made endorsement on rukka Ex.PW2/B. This witness also proved DD no. 15A & 16A in respect of SC no. 27/13 Page 4 of 48 5 commencement and conclusion of FIR as Ex.PW2/C and D, respectively.
3.7. PW3 HC Satya Prakash was also the duty officer who proved recording of DD no. 11A at 7.25 AM upon receipt of information from the wireless operator, after the information was sent to PCR by PW1. The DD entry no. 11A is Ex.PW3/A. 3.8. PW4 HC Devender Kumar was the malkhana moharrar who deposed regarding deposition of case property in the malkhana by the investigation officer on various dates as also sending of the case property to the hospital for subsequent opinion qua the knife and sending the case property to the FSL.
3.9. PW5 SI Mahesh was the draftsman who prepared the scaled site plan Ex.PW5/A on 18.03.2010 after inspecting the site on 18.3.2010.
3.10. PW6 ASI Prem Kumar was the concerned police official from the traffic police who had challaned the accused Mohd. Arshad on 14.12.2009 for traffic violation. This witness identified Mohd. Arshad in the court as the same person who was found driving the TSR no. DL1R L 2949 on 14.12.2009. The challans were exhibited as Ex.PW6/A & B. This witness also categorically deposed that the challans were duly signed by accused Mohd. Arshad.
Accused Mohd. Arshad did not challenge his signatures on the challans Ex.PW6/A & B. Also, neither any question was asked to this witness nor any suggestion was given to this SC no. 27/13 Page 5 of 48 6 witness that the accused Mohd. Arshad was not driving the said TSR on that day or he was not challaned or that his signatures did not exist on the challans.
3.11. PW7 Vishal, the nodal officer from Bharti Airtel Ltd., proved that the mobile phone no. 9871778513 was registered in the name of Khan Chand vide customer application form Ex.PW7/A. This witness also exhibited the call detail records of this mobile for the period 1.1.2010 to 27.4.2010 as Ex.PW7/C. But unfortunately the Certificate U/s 65B of the Evidence Act qua the call detail records is absolutely lacking so far as the requirements of Sec. 65B of Evidence Act are concerned. It may also be mentioned that it is the case of prosecution that this mobile number registered in the name of Khan Chand was being used by the deceased. Unfortunately, Khan Chand has not been examined by the prosecution to prove this fact that this mobile was being used by the deceased. It may be reminded that at the time when the mobile of deceased was got recovered by the accused, there was no SIM card recovered. What will be the effect of not examining Khan Chand in absence of recovery of SIM Card, is being discussed hereinafter at the appropriate stage.
3.12. PW8 Ct. Parvinder was the photographer in the mobile crime team who proved 18 photographs obtained by him at the crime scene. The photographs are proved as Ex.PW8/A-1 to A-18.
3.13. PW11 Rajbir Singh Bhati was the person whose mobile no.
9811268486 was found written on a piece of paper in the pocket of SC no. 27/13 Page 6 of 48 7 deceased and he was called on the said number and was asked to come to the spot to identify the deceased. He went to the spot and identified the deceased stating that the deceased used to come to his shop for supply of toffees and also that the deceased used to reside nearby.
3.14. PW12 Lala Ram identified the dead body of the deceased in the mortuary before post mortem.
3.15. PW13 Meenakshi deposed that she knew the deceased as the deceased was her guru bhai for last 2-3 years. She used to talk to the deceased on telephone. She deposed that she spoke to the deceased, whose mobile number was "9871...8513". She specifically deposed that she spoke to the deceased on 11.2.2010 at about 8.15 PM.
Nothing material came out in the cross examination of this witness to show that she did not speak to the deceased at the relevant time on the above mentioned mobile. Though the witness could not recollect two numbers of the mobile phone falling in the middle of the number, but she rightly recollected and deposed the eight numericals, particularly of the beginning and the end.
3.16. PW16 ASI Narender Kumar carried copies of FIRs to the Ld. Concerned Magistrate and the senior police officers.
3.17. PW21 Ct. Amar Singh carried the exhibits of this case to the FSL from the malkhana of the police station on 29.03.2010 and SC no. 27/13 Page 7 of 48 8 deposited the same in the FSL.
3.18. PW23 Raj Kumar was the registered owner of the TSR in question, but this witness did not support the case of prosecution. He deposed that though he was registered owner of the said TSR but he did not know who used to ply that TSR. He did not identify accused Mohd. Arshad in the court. He denied that police ever met him during investigation of this case. He however identified the TSR in the photographs. The witness was subjected to cross examination by the Ld. Prosecutor, but even in the cross examination the witness stood the ground that some financer namely Deepak and Bablu purchased the TSR in his name and he was not given any kind of profit by the financer. Rather on few occasions, he even paid challans for the TSR from his own pockets.
3.19. PW24 Vinod Kumar was examined by the prosecution hoping to prove the mobile number of the deceased, but this witness also turned hostile to the case of prosecution and deposed that the deceased didn‟t normally use to carry mobile phone, although occasionally he used to bring mobile phone. He expressed ignorance that the mobile of deceased was of make Sony Ericsson or its number was 9871778513. He however at one place admitted that the mobile phone which the deceased used to carry occasionally had last two digits as '13'.
3.20. PW25 SI Devender was the Incharge of Mobile Crime Team who visited and inspected the crime spot.
SC no. 27/13 Page 8 of 48 93.21. PW26 Dr. V.K.Jha conducted post mortem of the deceased, during which he found the cut throat injury on front of right side of neck just above the level of Adam‟s apple of size 7 cm X 4 cm X Vertebra deep. On the dissection of the neck, it had cut skin muscle vessels, laryngeal apparatus about the cervical vertebra at C3 level and he found blood and clots present. In the internal examination of the stomach of deceased, digested food was present and there was alcohol like smell. The cause of death was opined as combined effect of asphyxia and hemorrhagic shock as a result of ante mortem cut throat injuries. This injury was found to be sufficient to cause death in the ordinary course of nature. The doctor opined that time since death was approximately six hours and the injury no. 1 could have been caused by the knife which was sent to him on 25.3.2010 for subsequent opinion. The subsequent opinion is proved as Ex.PW26/B. The witness identified the knife in the court as the possible weapon with which the injury could have been caused.
In the cross examination of this witness, once again the witness was asked as to the time since death of the deceased and the witness admitted that he had given the time of death approximately six hours before conduction of the post mortem.
3.22. Let it be mentioned here that Ld. Counsel for the accused laid a lot of stress on the point that time since death of deceased does not match with the prosecution‟s case. He argues that the postmortem of the deceased commenced on 13.2.2010 at about 1.00PM and if SC no. 27/13 Page 9 of 48 10 we go by the version of PW26 in the court, the deceased expired sometime at 7.00 AM on 13.2.2010. However the body, as per the case of prosecution, was discovered at about 7.00 AM on 12.2.2010 and not on 13.2.2010. This argument of accused is addressed by this court at appropriate stage. Suffice it to mention here that the time since death as deposed by PW26 in his deposition appears to be nothing but because of inadvertent error. The said error is not on account of typographical error in the evidence. It is because, in the hand written post mortem report, immediately after the word „approximately‟, the numerical „26‟ has been mentioned and numerical „2‟ and the alphabet „Y‟ are so close to each other that unless one pays good attention to the said words and numerical, at first glance it appears as if the time written is 6 hours and not 26 hours. It may be mentioned that the time since death opined by the doctor is in approximation and is not absolutely correct with mathematical precision.
3.23. PW9 Ms. Kiran, the widow of deceased, deposed that on 11.02.2010 at about 8.00 PM she was present in her house with her son Jitender. The deceased was also present in the house. Both the accused Mohd. Irfan and Mohd. Arshad came to the house and asked about the deceased. In the meantime, the deceased came downstairs. The two accused thereafter spoke to the deceased and then the deceased left with the two accused. At the time when the deceased left the house, he was carrying a mobile phone make Sony Ericsson of black colour which had a connection no.
SC no. 27/13 Page 10 of 48 119871778513. The deceased did not return to the house that night, and on the next day she was told that the deceased had sustained injuries. She along with her son went to the spot and then to the hospital. In the hospital she came to know that her husband was murdered. She then told the police that the deceased had gone with the two accused. During deposition this witness identified the clothes of her husband which her husband deceased was wearing at the time of incident. The witness also identified the mobile phone without battery, back cover and SIM card as the mobile phone of her husband.
3.24. Similarly PW10 Jitender @ Bunti the son of deceased also deposed that the deceased left with the two accused on 11.02.2010 and was not seen alive thereafter. This witness also identified both the accused in the court as the person who accompanied the deceased out of the house.
3.25. In the cross examination of these two witnesses, nothing material came out on record. Rather in the testimony of these two witnesses, it is very clear that the accused used to visit the house of the deceased. It has come in the evidence of these witnesses that both accused used to visit the house. The suggestions put to PW10 by the accused Mohd. Irfan rather reflects that Mohd. Irfan admits that he visited house of deceased on few occasions. Nothing material came out in the cross examination of these witnesses to show that these two witnesses were not present in the house at the time when the SC no. 27/13 Page 11 of 48 12 two accused took the deceased from the house on 11.02.2010.
3.26. PW14 ASI Madan Lal, PW15 Ct. Rakesh Roshan and, PW17 HC Dhoop Chand, deposed that on receipt of DD no. 11A, they reached the crime spot on 12.02.2010 where the dead body of a deceased male was found lying with its throat slit. Thereafter, crime team was called at the spot which inspected the spot. In the pockets of the deceased, two paper slips were recovered which were containing certain mobile numbers. One of those numbers was contacted in order to call that person to come and identify the body. Rajbir Singh Bhati came at the spot and identified the body as that of Hari Shankar. Thereafter, rukka was prepared and FIR was got registered through HC Dhoop Chand. The articles recovered from the body and nearby the place of crime were thereafter taken into possession by Inspector Kishan Lal who was the further investigating officer of the case and who had reached the spot. Those articles were taken into possession vide memo Ex.PW14/B. After completing the proceedings at the spot, the body was sent to BJRM Hospital mortuary through Ct. Rakesh Roshan who took the body to mortuary and remained there till post mortem was conducted on 13.02.2010.
3.27. It is deposed by ASI Madan Lal(PW14) and Inspector Kishan Lal (PW27) that thereafter exhibits were collected from the spot viz., blood sample from near the dead body, blood stained earth control, earth control without blood stains etc., and were taken into possession vide memo Ex.PW14/C. At the crime spot, certain tyre SC no. 27/13 Page 12 of 48 13 marks were also noticed. Those tyre marks were also lifted with the help of POP (Plaster of Paris) and were taken into possession vide memo Ex.PW14/D. 3.28. It is deposed by PW19 Ct. Khushvedwan, PW27 Inspector Kishan Lal and, PW22 HC Nanhe Lal, that on 24.02.2010, based on a prior information, the two accused were apprehended at about 8.15 PM from Gali no. 5 Bhagirathi Vihar, Delhi. The two accused were arrested and their personal search was conducted. They also made their respective disclosure statements.
3.29. It is deposed by PW18 Billu (the brother of deceased); PW20 Ct.
Rajender, PW22 HC Nanhe and, PW27 Inspector Kishan Lal that on 25.02.2010 the two accused were taken to the spot and then the two accused were again interrogated as to the weapon of offence. The accused led the police team to pulia nearby the spot on Shah Alam Bandh road. Accused Mohd. Irfan led the police team to bushes adjoining one nala and he got recovered one knife from the said bushes. Sketch of the knife was prepared and the knife was taken into possession after measuring it and sealing it with the seal of investigating officer vide memo Ex.PW18/C. 3.30. It may be mentioned that PW Billu deposed that on 25.02.2010 he on his own went to the police station Mukherjee Nagar in order to know the status of case and at that time the police team was about to leave the police station for the crime spot with the two accused and then he joined the proceedings and witnessed the recovery of knife at the instance of accused Mohd. Irfan, which recovery was SC no. 27/13 Page 13 of 48 14 affected in his presence. Billu identified the knife got recovered by the accused in the court in his deposition.
3.31. It is also deposed by PW20 Ct. Rajender Kumar, PW22 HC Nanhe Lal and, PW27 Inspector Kishan Lal that after obtaining the police custody of the two accused, the TSR in question was recovered at the instance of accused Mohd. Arshad from near Jal Board Office near Ambedkar College wall near Loni Fly over. At the time of the recovery of TSR auto rickshaw, documents viz., meter verification certificate, pollution under control certificate, two red colour traffic challan slips and, the insurance of the vehicle were also found. The TSR and documents were taken into possession vide memo Ex.PW20/A. The documents are proved as Ex.PW6/A and B and Ex.PW20/B1 to B3. It is also deposed that on the next day i.e. 26.02.2010 accused Mohd. Arshad made a supplementary statement as to his clothes which he was wearing at the time of incident. The accused allegedly disclosed that he was wearing the same clothes at the time of his apprehension also and told that it were the same clothes which he was wearing at the time of commission of crime. Since another set of clothes could not be arranged for Arshad that night, his clothes were subsequently seized on 27.02.2010 after offering him another set of clothes. Those clothes were seized vide memo Ex.PW18/E. PW18 Billu also witnessed the seizure of these clothes of accused Arshad as Billu again joined investigation on 27.02.2010. On 27.02.2010 accused Mohd. Irfan also led the police team to his house at Loni, SC no. 27/13 Page 14 of 48 15 Ghaziabad and from inside his house, he got recovered his set of clothes which he was wearing at the time of commission of crime. Those clothes were recovered from an open Almirah slab in the room. Those clothes were seized vide memo Ex.PW8/F. Thereafter, accused Mohd. Irfan also led the police team to a nearby place and from the bushes near his house he got recovered the mobile of the deceased which at the time of recovery was without SIM and without back cover and battery. The mobile was of Sony Ericsson. Billu was also witness of recovery of clothes of accused Mohd. Irfan and to the recovery of mobile phone of deceased at the instance of Mohd. Irfan.
3.32. The witness of the prosecution identified both the accused in the court; identified the exhibits recovered from the spot; identified the clothes of both the accused; the TSR; the knife and; the mobile phone of the deceased.
3.33. Subsequently, Sri Narain the Assistant Director (Chemistry), FSL Rohini, and Sh. Parshuram Singh, the Assistant Director (Physics), FSL Rohini, were also examined as PW28 & PW29, respectively. These witnesses proved the FSL report Ex.PW28/A and 29/A, respectively. In Ex.PW28/A, it is mentioned that the blood of the deceased was found to contain ethyl alcohol 168.7 mg per 100 ml of blood. In Ex.PW29/A, it is mentioned that upon examination of the tyre marks lifted from the spot with the help of POP, the marks matched with the rear left side wheel of the TSR, which TSR was recovered at the instance of accused Arshad.
SC no. 27/13 Page 15 of 48 16PW29 found those tyre marks similar in respect of width of ribs, design of ribs, design of grooves and, width of center line.
4. On completion of prosecution evidence, all the incriminating evidence was put to the two accused in their statements recorded under section 313 Cr.P.C. Pursuant to examination of PW28 & PW29 after recording the statement of accused initially, further supplementary statements of the two accused was recorded qua the incriminating evidence which came in the evidence of PW28 & PW29. The two accused generally denied the evidence against them and claimed that they have been implicated falsely in the present matter.
4.1. Accused Mohd. Irfan claimed that the FIR of this case is ante timed and he was picked up from his house and was not arrested in the manner as claimed by the prosecution witnesses. He claimed that his thumb impressions were taken by the police on blank papers which were manipulated into different documents of this case. He claimed that knife was planted upon him and it was not recovered at his instance. He also claimed that he did not get recovered any clothes in the manner deposed by the prosecution witnesses, instead those clothes were planted upon him. Similarly, he claimed that the mobile of deceased was not got recovered by him and was planted upon him. Accused Mohd. Irfan opted to lead defence evidence in his favour.
4.2. Accused Mohd. Arshad in his statement claimed that the documents of the TSR auto rickshaw were seized from his SC no. 27/13 Page 16 of 48 17 possession when he was arrested from his house, but the recovery of auto rickshaw was planted upon him. Thereby meaning that Mohd. Arshad claimed that TSR was not got recovered by him although the documents of those TSR viz., the pollution control certificates, the traffic challans, insurance etc. were recovered from his house. Accused Mohd. Arshad specifically admitted that the traffic challans Ex.PW6/A & B and other documents were recovered from his house at the time when he was arrested. He also claimed that he used to drive TSR prior to this incident but thereafter he left driving TSR and started working in a factory. Accused Arshad opted not to lead any evidence in his defence.
4.3. Accused Mohd. Irfan examined two formal defence witnesses in his favour. He examined DW1 S.N.Bhardwaj from BJRM Hospital in which he sought to prove application for preservation of dead body filed by the investigating officer for 72 hours as Ex.DW1/A and the original register maintained for records of bodies preserved in the mortuary as Ex.DW1/B. 4.4. DW2 HC Dhruv Raj was summoned with the DD registers, particularly, the DD entries made qua this case from 24.2.2010 to 26.2.2010 and the same were proved as Ex.DW2/A to Ex.DW2/F.
5. I have heard Ld. Prosecutor for the State and Ld. Counsel for the two accused. I have also perused the written submissions filed on behalf of both the accused persons.
SC no. 27/13 Page 17 of 48 186. As is clear from the above discussion, there is no eye witness to the commission of murder in the present matter and therefore, the case of prosecution is based upon circumstantial evidence. The circumstances sought to be proved against the two accused by the prosecution are :-
1) that the two accused were lastly seen in the company of deceased on 11.02.2.10 at about 8.15 or 8.30 PM when they left the house of deceased with the deceased;
2) at the instance of accused Mohd. Irfan one blood stained knife used in the commission of crime was recovered not far away from the crime scene during police custody;
3) at the instance of accused Mohd. Irfan the mobile phone instrument being used by the deceased was recovered during police custody;
4) the blood stained clothes of both the accused were recovered from their possession;
5) at the crime scene, tyre marks of a vehicle were found and lifted which were subsequently connected with the TSR got recovered by accused Mohd. Arshad.
7. Turning to the first circumstance sought to be proved against the two accused, i.e. the evidence of last seen together, the relevant testimonies to prove this point are testimonies of the wife and son of the deceased, who were examined as PW9 and 10, respectively. Both these witnesses categorically deposed that both of them were present in the house on 11.02.2010 and at that time SC no. 27/13 Page 18 of 48 19 the two accused came to their house, spoke to the deceased and, the deceased then went out of the house with both the accused. Thereafter, the deceased was never seen by them and was never heard of by them. Subsequently, on the next day i.e. on 12.2.2010 certain police officials along with Rajbir Singh Bhati came and informed that the deceased has met with an accident. They were then taken to the crime spot and then to the mortuary of the hospital. At the hospital they identified the dead body and then they also told the police that the deceased lastly went with the two accused, the previous evening.
7.1. In the cross examination of these two witnesses, nothing material could be brought out by the two accused in order to impeach their creditworthiness. In their testimony, these two witnesses categorically deposed that the accused earlier also visited their house on few occasions and therefore they recognise them well. In the cross examination of PW9 Kiran, the accused Mohd. Irfan himself suggested that on some occasions Mohd. Irfan used to visit the house of deceased to deliver the TSR after its repair as the deceased also used to drive TSR and used to get it repaired from Qayum, the brother of accused Mohd. Irfan. Accused Mohd. Irfan also suggested PW9 that on some occasions Mohd. Irfan took meals and consumed liquor in the house of PW9 with the deceased, and that earlier also on some occasions the deceased went outside the house with accused Mohd. Irfan, but had returned. Both these witnesses PW9 and 10 categorically identified the two SC no. 27/13 Page 19 of 48 20 accused in the court as the same persons who took the deceased out of the house, the previous evening.
7.2. Absolutely nothing has been suggested during cross examination of these two witnesses as to why these two witnesses would falsely name the two accused and would falsely depose about the fact of the deceased leaving with the accused, had it not been true? Neither in the cross-examination of these two witnesses, nor in the statement of accused any reason whatsoever has been suggested as to why these two witnesses would falsely depose about this fact.
7.3. Ld. Counsel for the two accused argued that despite the fact that the deceased did not return to the house the entire night and also on the next day, yet no complaint was filed by PW9 or PW10 about missing of deceased, which is an unnatural conduct and therefore they should not be believed.
7.4. I do not find any force in this contention. It has come in the cross examination of PW9 that the deceased used to remain missing during nights, sometimes. It has also come in the evidence that the deceased used to consume liquor. Even in the post mortem of deceased, smell of alcohol was present in his stomach. These facts suggest that the deceased used to consume alcohol. PW9 has claimed that it was not unusual for the deceased remaining missing during nights and therefore, she found no reason to become hyper and to lodge complaints. When the deceased did not return to the house in the night, she presumed that he must have gone to his job straightaway in the morning and would return.
SC no. 27/13 Page 20 of 48 217.5. It is also argued by the counsel for accused that both these prosecution witnesses PW9 and PW10 claimed that certain policemen along with Rajbir Singh Bhati came to their house on 12.02.2010 who informed them about the deceased having suffered accident. It is argued that neither Rajbir Singh Bhati nor any police witness deposed that they went to the house of deceased on 12.2.2010 and therefore presence of both these witnesses at their house is doubtful.
7.6. I do not find this contention acceptable. PW27 the investigating officer specifically deposed that he had sent certain police officials along with Rajbir Singh Bhati to the house of deceased to inform the family members of deceased. It is nobody‟s case that the family members of the deceased had any mobile telephone connection to the knowledge of Rajbir Singh Bhati or anybody else by that time. Besides Rajbir Singh Bhati no one else knew the address of deceased on 12.02.2010. Therefore, it was quite natural for the investigating officer to depute certain police officials with Rajbir to go and inform the family members. It is the usual method adopted in such cases. An investigating officer cannot be expected to visit the house of deceased personally leaving behind the crime scene or the other crucial investigation. The investigation at the initial stages of crime is particularly of vital importance and expecting the investigating officer to personally go to inform about death of deceased would not be in the interest of fair and complete investigation. Thus, I do not find anything abnormal when certain SC no. 27/13 Page 21 of 48 22 other police officials from the same police station were sent to the house of deceased to inform the family members.
7.7. Neither of the two accused asked a single question to Rajbir Singh Bhati whether he did not go to the house of deceased on 12.2.2010. Thus, when the accused failed to ask anything in this aspect of the matter to Rajbir Singh Bhati who had accompanied certain police officials to the house of deceased, now it does not lie in the mouth of accused to claim that Rajbir Singh and other police officials did not go to house of PW9 or that PW9 and PW10 were not present in the house. Had the accused wanted to really prove that, either Rajbir Singh Bhati did not go to the house of deceased, or that when he went, PW9 and PW10 were not present in the house, Rajbir Singh Bhati PW11 ought to have been questioned on those aspects of the matter. But it was not done.
7.8. Ld. Counsel for the accused also laid stress on the point that PW10 during his cross examination at one place claimed that he does not remember whether he was in the house on 11.02.2010 in the evening and whether he was present in the house on 12.2.2010 or 13.2.2010.
7.9. Not much can be read in this statement of PW10, particularly since before making such a statement in the cross examination this very witness specifically deposed in his examination in chief that he was physically present in the house on 11.02.2010 when the deceased left the house in the company of the two accused. He also specifically identified the two accused. If we peruse testimony of SC no. 27/13 Page 22 of 48 23 PW10, it is revealed that he was a child witness aged about 13 years at the time of his examination in the court, and he was aged about 12 years at the time of incident. In his examination in chief, he specifically named and identified the two accused as the person who took away his father and that thereafter his father never came back. The witness also specifically deposed that on the next day i.e. 12.2.2010 certain police officials came and informed about his father. He also specifically deposed that he knew both the accused since they used to visit his house. In the cross examination also, this witness denied the suggestion that he was not present in the house or he had gone to his maternal grandmother along with his mother on 11.2.2010. The witness even denied the suggestion that accused Mohd. Irfan did not visit house on 11.2.2010. Thereafter this witness was again questioned by the same advocate during the same cross examination, in which the witness initially was questioned about his presence on 11.2.2010 in the morning, which the witness claimed that he does not remember and in the next breath he was again questioned about his presence in the evening of 11.02.2010, which also the witness replied that he does not remember. Thereafter, the cross examination of this witness resumed after lunch and right at the beginning after resumption of his cross examination, the witness said that he was present in the house on 11.2.2010 as well as 12.2.2010. Ld. Counsel for the accused wants this court to disbelieve the version of the witness after resumption of his cross examination after lunch on the ground SC no. 27/13 Page 23 of 48 24 that the witness must have been tutored in between. But then even in the initial statement of the witness, prior to the cross examination, as well as during initial cross examination, the witness maintained the stand that he was present in the house in the evening of 11.02.2010 as well as on 12.2.2010. Presence of this witness is also established by his mother, PW9.
7.10. Presence of PW9 and 10 in the house on 12.2.2010 is also established by the testimonies of the investigating officer and others who admitted that indeed on 12.2.2010 these two witnesses came to the spot and mortuary to identify the body. Thus, merely because at one place PW10 mentioned that he does not remember about his presence in the house on 11 & 12.02.2010 cannot be read in favour of the accused. After all, that witness was of tender age and appears to have been got confused during cross examination. I do not attach any weight to such stray statement. If we read the entire statement of this witness PW10, it is clear that the witness was categorical that he was present on 11.02.2010 and also he saw the two accused taking his father out of his house.
7.11. It is also argued by the counsel for the two accused that in the brief facts Ex.PW26/B-4 submitted by the investigating officer for post mortem of the deceased, it is nowhere mentioned that the body was got identified from PW9 and PW10 on 12.2.2010 and therefore, the version of PW9 and PW10 that they came and identified the body, cannot be believed.
7.12. Brief facts were prepared by the investigating officer for the SC no. 27/13 Page 24 of 48 25 purposes of post mortem of the deceased on 13.2.2010. In the brief facts, the circumstances under which the dead body was found and the fact that it was got identified from Rajbir Singh Bhati after calling him on his mobile number found written on a paper slip in the pocket of the body, is only mentioned. Other details are not mentioned. There was no requirement to mention the other details in these brief facts for the purposes of post mortem. Mere absence of the fact that body was also got identified from PW9 and PW10 does not create any doubt about the fact that PW9 and PW10 went to the mortuary and identified the body. Before conduction of post mortem, witnesses Billu and Lala Ram were present and the body was got identified from them also. But then even that fact is not mentioned in the brief facts of the case Ex.PW26/B-4, and therefore it cannot be claimed that Lala Ram and Billu were not present since their statements of identification have been otherwise proved satisfactorily.
7.13. It is next argued on behalf of accused that the time gap, between the time when the accused were seen in the company of deceased and the time when the body was discovered, is about 12 hours and therefore, the circumstance of last seen is not enough to point guilt of the two accused.
7.14. No doubt the deceased was seen in the company of two accused at about 8 PM or 8.30 PM on 11.02.2010 and his body was discovered at about 7.10 AM on 12.2.2010, but then the deceased was not seen or heard by anybody else during this time. The onus SC no. 27/13 Page 25 of 48 26 was on the two accused to explain as to what happened to the deceased after he was in their company. In the present matter, the two accused have taken a stand of total denial. They never admitted that the deceased was in their company. From the testimony of PW9 and PW10, the stand of the two accused gets belied, meaning thereby that the two accused took a false stand to their knowledge. The false stand taken by the two accused points out towards their guilty mind. Did they anywhere explain that if the deceased was not killed by them, where did the deceased go or remained after these two accused brought the deceased with them? In this case, the last seen evidence is not the only evidence against the two accused as discussed below. It would be clear that there are other circumstantial evidences also against the accused and therefore merely because there was a time gap of 12 hours in the deceased seen lastly and when his body was discovered, no benefit can be given to the accused. After all, the place where body was found was a dark secluded ground. The body of the deceased could only have been discovered in the morning, and was so discovered. In the post mortem of the deceased, digested food with smell of alcohol was found thereby meaning that the death of deceased occurred after he consumed his night meals either after consuming alcohol or together with the meals, alcohol was consumed.
7.15. It is next argued on behalf of the accused that had the deceased been identified by PW9 & PW10, there was no need for the SC no. 27/13 Page 26 of 48 27 investigating officer to have got identified the body from Lala Ram and Billu on 13.02.2010, and after post mortem why the body of deceased was not handed over to Kiran who was present. It is argued that these facts indicate that Kiran was not available even on 13.02.2010. PW12 Lala Ram admitted that when the receipt Ex.PW9/A regarding handing over of the body after post mortem of the deceased was executed, Kiran was not present and she came there later on. Counsel for the accused points out that the name of Kiran on Ex.PW9/A appears to have been added between the name of Lala Ram and HC Nanhe Ram.
7.16. Even if that be so, the fact of adding name of Kiran on Ex.PW9/A alone does not create a doubt about her presence in the house on 11.02.2010 or 12.02.2010. This document Ex.PW9/A was prepared, admittedly, on 13.02.2010. Usually at the time of post mortem, it is the male relatives who remain present in the hospital and it is usually seen that female members of the family are not physically present during post mortem proceedings. It is quite obvious that PW9 Kiran was in a state of shock after the murder of her husband. She could not have been expected to physically remain present in the hospital on 13.02.2010 before, during or after post mortem. Thus, even if her name in the receipt was added by the investigating officer subsequently, still no doubt about her having seen the two accused with the deceased on 11.02.2010, or her presence in the house on 11 & 12.02.2010, is created.
7.17. It is next argued on behalf of accused that PW13 Ms. Meenakshi SC no. 27/13 Page 27 of 48 28 had spoken to the deceased on telephone of deceased on 11.02.2010 at about 8.15 PM and at that time the deceased had told her that he had not yet reached his house and therefore, the fact that PW9 & PW10 saw the deceased in the house in the company of the two accused at 8.15 PM gets doubted.
7.18. I do not see any force in this contention either. First of all PW-13 did not depose that she categorically remembered the exact time when she spoke to the deceased on telephone on 11.02.2010. She mentioned the time as tentative at about 8.15 PM. This witness was examined in the court in the end of November 2011 i.e. after one year and nine months of the incident. A witness cannot be expected to recollect the timings when the witness spoke to someone such a long period ago with mathematical precision. Even otherwise assuming that the deceased had told this witness at that time that he was leaving his office and would make his wife talk to her on reaching his house, it cannot be said that at that time the deceased was not present in his house. A large number of factors can explain such a statement. One of them being that the deceased did not want this lady to talk to his wife and therefore, did not apprise her of the actual location. There can be other reasons also to explain the statement.
7.19. Presence of Kiran at mortuary on 12.2.2010 is also doubted by the counsel for the accused claiming that when PW15 Ct. Rakesh Roshan admitted that the dead body remained in the mortuary and it was not removed for any purpose except for post mortem on SC no. 27/13 Page 28 of 48 29 13.02.2010, then how come the body was identified by Kiran and Bunty on 12.02.2010 in the evening.
7.20. There is absolutely no force in this contention. The words removal of body from the mortuary as asked to PW15 Ct. Rakesh Roshan means something else. When the accused asked this question to the witness, the witness might have thought about physical removal of body from inside the mortuary to some other place and accordingly he replied. If the accused really wanted the witness to reply whether the body was seen or not seen by Kiran and Bunty in the mortuary, a specific question should have been asked to this witness whether Kiran and Bunty did or did not visit the mortuary and identify the body. In absence of any such specific question to PW15, no benefit can go to the accused on this aspect of the matter.
7.21. From the above discussion of facts, one thing is clear that the deceased was last seen in the company of the two accused on 11.02.2010 at about 8.15 PM. Thereafter, the deceased was never seen alive by anybody. The two accused did not offer any explanation whatsoever that when the deceased accompanied them from his house, what happened to him thereafter. Instead they chose to state a lie on that aspect of the matter by totally denying the fact that the victim was with them.
7.22. In the case of State of Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263] it is held that a false answer offered by the SC no. 27/13 Page 29 of 48 30 accused when his attention was drawn to any inculpating circumstance would render such circumstance as capable of inculpating him. The Court also held that in such a situation a false answer can also be counted as providing "a missing link" in completing the chain.
7.23. The first circumstance of last seen together is therefore convincingly proved by the prosecution against both the accused persons.
8. The next circumstance sought to be proved against accused Mohd.
Irfan is that pursuant to disclosure statement of accused Mohd. Irfan, the knife used in the commission of crime was recovered.
8.1. In this regard, PW27 Inspector Kishan Lal, PW22 HC Nanhe Lal, PW20 Ct. Rajender and, PW18 Billu all deposed that on 25.2.2010 accused Mohd. Irfan led to the recovery of knife not far from the place of occurrence. Sketch of that knife was prepared and thereafter the knife was measured and sealed with the seal of investigating officer. The said knife is identified by the witnesses in the court as the same which was got recovered by accused Mohd. Irfan. The knife was taken into possession vide memo Ex.PW18/C. Thereafter, the said knife was sent to the doctor on 25.03.2010 for seeking further opinion of the doctor whether the injury on the neck of the deceased was possible with the knife. Vide report Ex.PW26/D of Dr. V.K.Jha (PW26), the doctor opined that indeed SC no. 27/13 Page 30 of 48 31 the injury on the neck of the deceased was possible with the knife recovered. The doctor also identified the knife in the court. The said knife was also sent to the FSL authorities. The FSL result Ex.PW27/M-1 & M-2 reveals that the knife was found to be containing human blood. No conclusion as to the blood group on the knife however could be specified by the FSL authorities. It may be mentioned that the knife and other articles were examined in the FSL more than three months after the date of incident.
8.2. Ld. Counsel for the accused argued that since the blood group could not be specified on the knife by the FSL authorities, therefore, recovery of the said knife at the instance of accused Mohd. Irfan is inconsequential.
8.3. Though blood group of the blood stains on the knife could not be ascertained, but indeed one fact is clear that the knife got recovered by Mohd. Irfan was containing human blood. How and in what circumstances, Mohd. Irfan knew about the existence of that knife, particularly with human blood stains, at the place of recovery, is not explained. That place of recovery is far away from the house of accused. There is no material contradiction in the testimonies of recovery witnesses creating any kind of reasonable doubt as to recovery of knife or to impeach their creditworthiness. The accused persons were arrested on 24.2.2010 and on the very next day the knife was got recovered by accused Mohd. Irfan.
8.4. Ravi Kumar & Ors. Vs. State Crl.Appeal no. 819/2011 decided on 30.05.2014, Hon‟ble Delhi High Court observed that merely SC no. 27/13 Page 31 of 48 32 because the CFSL report did not give the group of blood/semen, it cannot be said that CFSL report was negative. All that can be said is that CFSL report is inconclusive but not negative which would not provide the accused with any material benefit.
8.5. Recovery of knife against accused Mohd. Irfan is also convincingly proved by the prosecution.
9. The next circumstance sought to be relied by the prosecution against the two accused is that the two accused got recovered their respective clothes which they were wearing at the time of incident and those clothes were having blood stains.
9.1. It is deposed by the prosecution witnesses of recovery that initially accused Mohd. Arshad disclosed that his blood stained clothes were kept in the house of sister of accused Mohd. Irfan at Meerut, but subsequently on 26.2.2010 accused Arshad made another disclosure statement informing that the clothes which he was wearing at that time of his apprehension were the same clothes. The clothes of accused Mohd. Arshad were thereafter seized on 27.02.2010. It is claimed by the investigating officer that since it was too late on 26.2.2010 and there were no other set of clothes available to be provided to the accused Mohd. Arshad, therefore, his clothes were seized on 27.2.2010.
9.2. The clothes of this accused Mohd. Arshad i.e. one pant, one T-shirt and one sweater were sent to the FSL. In the FSL result Ex.PW27/M-1 & M-2, it is mentioned that on these three clothes, SC no. 27/13 Page 32 of 48 33 blood was detected. The blood was of human origin. On the T- shirt of Mohd. Arshad, the blood group detected was 'O'. Similarly, on the pant the blood group detected was 'O'. The blood group of blood stains on the sweater, however, could not be ascertained. The blood stained gauze recovered from the spot and the clothes of deceased, particularly his pant, inner warmer and underwear were all found to be having „O‟ blood group, thereby meaning that the deceased had „O‟ blood group. Under what circumstances the clothes of accused Mohd. Arshad came to be having 'O' blood group blood stains is not explained. It is not claimed by either of the accused that they also had blood group 'O' or that their clothes got blood stains because of their own injuries or someone else's injuries. The said fact that blood stains of human origin with 'O' group of blood were found on the clothes of Mohd. Arshad indicates that he was present at the time of commission of crime at the crime scene and was involved in the crime. At the time of recovery of clothes of accused Mohd. Arshad, brother of deceased Billu was present who also witnessed the recovery of clothes.
9.3. Ld. Counsel for the accused Mohd. Arshad argues that accused Arshad was apprehended on 24.2.2010, he remained with the police till 28.2.2010 yet his clothes were recovered only on 27.2.2010 and this fact creates doubt, as had there been blood stains on the clothes of this accused, the same would have been noticed by the policemen and witnesses and also that the accused SC no. 27/13 Page 33 of 48 34 would not continue to wear his clothes for such a long period.
9.4. The investigating officer has explained as to why the clothes of accused Mohd. Arshad were not taken into possession on 24.02.2010 itself, when he was apprehended. Initially the accused had disclosed that the clothes which he was wearing at the time of incident were kept at Merrut. It was only on 26.2.2010 that the accused again disclosed that his clothes were on his body at the relevant time. Thereafter, on 26.2.2010 in absence of substitute clothing, his clothes were not seized and were seized on 27.02.2010. It is nobody‟s case that the blood stains on the clothes of Mohd. Arshad were so prominently visible that the stains could not have escaped notice of witnesses, as to create doubt that why the clothes were not seized on 24.2.2010 itself. The time gap between the commission of crime and arrest of accused was about 12 days. In this process, the accused might have tried to wash his clothes. After 12 long days, the blood stains appearing on clothes would not be of red colour. Due to gathering of dust and other substance, the colour of stains might have changed thereby escaping the attention of investigating officer. The FSL result Ex.PW27/M-1 mentions only a few dark brown stains. In such circumstances, merely because the clothes of Arshad were recovered after few days of his arrest cannot create any doubt in view of the explanation offered by the witness that they did not notice the blood stains till the time accused Mohd. Arshad made further disclosure.
SC no. 27/13 Page 34 of 48 359.5. It is also argued by the counsel for the accused that in the recovery memo Ex.PW18/E qua the clothes of Mohd. Arshad, there is no mention of recovery of pant. Indeed in Ex.PW18/E, the other two clothes are mentioned but pant of accused is not mentioned. But then the recovery witnesses Inspector Kishan Lal, HC Nanhe Lal and Ct. Rajender specifically deposed that pant of accused Mohd. Arshad was also recovered. In the cross examination of these three witnesses the accused did not draw attention of these three witnesses specifically towards Ex.PW18/E, to question as to why pant was not mentioned in the recovery memo. It may be a case where bonafidely the pant of accused Mohd. Arshad was not mentioned in the memo, although it was recovered.
9.6. This fact was required to be specifically put to the witnesses, however the same has not been put to them. In State of U.P v. Nahar Singh, AIR 1998 SC 1328 the Supreme Court noted observation of Lord Herschell, L.C in Browne v. Dunn.
"14. The oft quoted observation of Lord Herschell, L.C in Browne v. Dunn, (1893) 6 The Reports 67 clearly elucidates the principle underlying those provisions. It reads thus:
"I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter SC no. 27/13 Page 35 of 48 36 altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses."
This aspect was unfortunately missed by the High Court when it came to the conclusion that explanation for the delay is not at all convincing. This reason is, therefore, far from convincing."
9.7. Even otherwise, even if it is assumed that pant of Mohd. Arshad was not recovered, still his other two clothes had human blood stains, one of which was of the same blood group which the deceased had.
9.8. The recovery witnesses also deposed that accused Mohd. Irfan also got recovered his clothes from his house on 27.2.2010. It is deposed that from an open almirah shelf in the house of Mohd. Irfan, he got recovered his clothes which were taken into possession vide memo Ex.PW18/F. The clothes of Mohd. Irfan recovered were one full sleeves T-shirt, one jeans pant and one jersey. These clothes were sent to the FSL for examination. In the FSL examination, human blood was found on two of the clothes of SC no. 27/13 Page 36 of 48 37 Mohd. Irfan i.e. T-shirt and sweater. No human blood was detected on his pant. The blood stains on sweater and T-shirt of Mohd. Irfan were of human origin but the examination as to the blood grouping remained inconclusive.
9.9. It is argued by the counsel for accused Mohd. Irfan that since the blood grouping on the clothes of accused were either inconclusive or no blood was detected, therefore, the recovery of clothes of Mohd. Irfan cannot be connected with the crime.
9.10. I do not find any reasonable ground to suspect recovery of clothes of Mohd. Irfan. All the witnesses of prosecution to the recovery consistently deposed that Mohd. Irfan got his clothes recovered from his house from an open almirah. Even if blood could not be detected on his pant and the blood stains on other clothes remained inconclusive for grouping, the fact remains is that his clothes were having human blood stains. Mohd. Irfan did not offer any explanation at any stage of trial as to how come his clothes were having human blood stains. Because of examination of clothes after a long gap, it was quite possible that blood grouping could not be established.
9.11. It is also contended on behalf of accused Mohd. Irfan that his clothes were recovered from an open almirah shelf from his house in which other family members were also residing. On the basis of this fact, it is argued that recovery was made from an open accessible place and therefore Mohd. Irfan cannot be connected with the crime.
SC no. 27/13 Page 37 of 48 389.12. Though the almirah shelf was indeed open at the time of recovery, but then Mohd. Irfan did not claim at any stage of trial that the clothes proved in the present matter did not belong to him or were not of his size. He also did not claim that any other male member in his house was also having the same size of clothes which were recovered. House of accused is not an open and accessible place to all & sundry. It was an open place only for the family members of the accused. In absence of any claim that any other male member of family of accused Mohd. Irfan had similar cloth size, only one inference can be drawn that the clothes were of Mohd. Irfan.
9.13. It is proved by the prosecution beyond doubt that clothes of both the accused were having human blood stains. Clothes of Mohd. Arshad were having same blood group which the deceased had. Accordingly, even the circumstances of recovery of blood stained clothes of both the accused is convincingly proved against both the accused.
10. The argument of the two accused that besides Billu, no other independent witness was joined at the time of recovery of knife, clothes or other recoveries cannot be given any weightage. Billu had no axe to grind against the two accused. No such possible reason for false implication is even remotely suggested. He has no reasons to falsely depose against the two accused. It is even otherwise settled that merely because independent witnesses are not joined, testimonies of police officials otherwise found convincing and reliable cannot be discarded. The testimonies of recovery SC no. 27/13 Page 38 of 48 39 witnesses of this case indeed are convincing and reliable and therefore merely because independent witnesses were not joined cannot be a reason to disbelieve the recovery witnesses.
11. The next circumstance sought to be proved in the matter is recovery of mobile phone of the deceased at the instance of accused Mohd. Irfan.
11.1. Inspector Kishan Lal, HC Nanhe, Ct. Rajender and Billu all deposed about the fact that accused Mohd. Irfan also got recovered the mobile phone of deceased from a little distance away from his house. He got it recovered from bushes. At the time of recovery, the mobile phone was without battery, SIM card and back cover. The mobile phone was of Sony Ericsson make. The IMEI number of this recovered mobile phone is 356325018518713, as mentioned in the recovery memo Ex.PW18/G. The said mobile phone was proved in the court as Ex.P1. The said mobile instrument was also identified by the recovery witnesses as the same which was being used by the deceased. I have already discussed above that the mobile number of the deceased was 9871778513. Even wife of deceased Kiran identified the mobile in the court as Ex.P1.
11.2. In the testimony of Nodal Officer PW7 Vishal Gaurav, the call detail records of the mobile were exhibited. In the CDR Ex.PW7/C, the IMEI number mentioned is 356325018518710.
11.3. Ld. Counsel for the accused claims that the last digit of IMEI number in the CDR and the IMEI number of the instrument as SC no. 27/13 Page 39 of 48 40 mentioned in the recovery memo differs. But then the last digit of IMEI number of an instrument keeps changing as per the cell tower location. Once the instrument was identified by the wife of deceased as the same which the deceased was using, and all other digits of IMEI number matches, there is no doubt left that the mobile instrument was indeed of the deceased. Identification of the instrument by the wife of deceased is sufficient to hold that the mobile was of deceased. Absence of examination of Khan Chand, in whose name the mobile was registered also pales into insignificance in such circumstances. It has not been explained by accused Mohd. Irfan as to how he came to know about the existence of the mobile phone at the place of recovery.
11.4. It is also argued on behalf of Mohd. Irfan that in the disclosure statement dated 24.2.2010, it is mentioned as to where the mobile was thrown by the accused then why that mobile was recovered only on 27.2.2010. The said fact alone cannot create doubt. It is nobody‟s case that the accused was taken to the place of recovery between 24.2.2010 to 27.2.2010. No specific question was asked to Inspector Kishan Lal to explain as to why he did not visit the place of recovery prior to 27.2.2010. In absence of giving an opportunity to investigating officer to explain this fact, no benefit can go to the accused.
11.5. Thus, even the fact of recovery of mobile of deceased at the instance of Mohd. Irfan is satisfactorily proved.
12. The last circumstance sought to be proved against the accused is SC no. 27/13 Page 40 of 48 41 that at the crime scene certain tyre marks were notice by the investigating agency, which tyre marks were lifted. Subsequently, the TSR was recovered at the instance of accused Mohd. Arshad and that the TSR tyres were sent to the FSL for examination and the FSL result received was positive matching the tyre marks at the crime scene with the tyres of the recovered TSR.
12.1. In this regard, initially the FSL result was not exhibited by the prosecution, but pursuant to orders U/s 311 Cr.P.C PW29 was examined. This FSL expert proved that the tyre marks lifted from the spot where the dead body was found, matched with the rear left tyre mark of the TSR got recovered by accused Arshad.
12.2. Mohd. Arshad denied that he was in possession of TSR on the date of commission of crime or thereafter or that the TSR was recovered from his possession. However, accused Mohd. Arshad admits that he had driven that TSR earlier and that documents of that TSR were recovered from his house.
12.3. If the accused Mohd. Arshad was not using the TSR in question on the date of occurrence of crime or at the time of his arrest then how come documents of the TSR were recovered from his house is not explained by him. Had he not been using the TSR at that time the documents would not have been recovered from his possession. In the challans Ex.PW6/A & B proved by the traffic policeman PW6, signatures of Mohd. Arshad exists. This witness identified accused Mohd. Arshad as the person who was found driving the TSR in question on 14.12.2009 i.e. prior to the occurrence. Accused Mohd.
SC no. 27/13 Page 41 of 48 42Arshad did not challenge his signatures on the traffic challans issued by this witness on that day in the cross examination of this witness or anywhere else. These facts satisfactorily prove that accused Mohd. Arshad was driving the TSR during the relevant time, particularly, at the time of commission of crime and he was in possession of the TSR even thereafter. The challans were recovered from the dickey of TSR as per the case of prosecution at the time when the TSR was got recovered by accused Mohd. Arshad. Thus, Mohd. Arshad cannot claim that he was not using the TSR at the relevant time and that he did not get the TSR recovered. The recovery witnesses proved satisfactorily that the TSR was recovered at the instance of Mohd. Arshad during police custody. This court has no reason to view the testimony of recovery witnesses doubtful in any manner. The recovery witnesses have no reason to falsely depose against the accused.
12.4. The contention of accused that the ground where the dead body was found was being used by public persons as a driving learning place and therefore, many vehicles used to be plied at the ground and therefore the tyre marks are inconsequential, has to be rejected. In the evidence of the expert witness it has come categorically that one of the tyres of the TSR got recovered by accused Arshad, matched with the tyre marks lifted from the spot. The tyre marks were lifted at the time of recovery of dead body. Perusal of siteplan would reveal that the place from where body was recovered in the ground was a secluded place and from very SC no. 27/13 Page 42 of 48 43 near the place from where the body was found the tyre marks were lifted. Siteplan would also reveal that the said tyre marks and body were not on any particular stretch of the road or passage on which vehicles normally used to be plied. The tyre marks were present off the road near the temporary toilet which reveals that the said vehicle of which the tyre marks were, was specifically taken to that place off the road.
12.5. Accordingly, even this last circumstance is satisfactorily proved against accused Mohd. Arshad.
13. Additionally, it was contended on behalf of two accused that there is no motive in commission of the crime and in a case of circumstantial evidence, motive is of extreme vital importance, the absence whereof would break the chain of circumstances.
13.1. Indeed in a case of circumstantial evidence motive is of vital importance, but it is not that in absence of motive a case based on circumstantial evidence cannot result in conviction even if all the circumstances are proved beyond reasonable doubt.
13.2. In Mulakh Raj v. Satish Kumar, (1992) 3 SCC 43 it was held;
"17. ........... Undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is SC no. 27/13 Page 43 of 48 44 never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case. ..............."
13.3. In Mani Kumar Thapa v. State of Sikkim, (2002) 7 SCC 157, it was held;
"4. ........ if the prosecution is able to establish beyond all reasonable doubt from other circumstantial evidence that it is the accused (including the appellant) alone who could have committed the murder, the absence of the motive will not hamper a safe conviction. ......"
14. It is also argued by the accused that the body when sent to mortuary was given token no. 49 and in the application by the investigating officer to preserve dead body for 72 hours Ex.PW22/DA, the FIR number was mentioned which FIR was registered at about 12.45 PM but the body was received at 11.00 AM in the mortuary.
14.1. Application to preserve the body could have been sent to the mortuary later on also. It is also not unusual that FIR numbers are being asked by the investigating officers from the spot or other places on telephone before or during registration of FIR and mentioning FIR number on the documents cannot create any suspicion. Even otherwise, attention of the investigating officer was SC no. 27/13 Page 44 of 48 45 not drawn towards this fact specifically during the cross examination and the investigating officer was not given opportunity to explain this fact.
15. The argument of accused that PW26 Dr. V.K.Jha claimed that time since death was six hours from the time of post mortem, creating doubt about the case of prosecution, is without force.
15.1. I have already discussed above that in the post mortem report, time since death mentioned is 26 hours. Because the last letter of word „approximately‟ and the first letter of numerical „26‟ are too closely written in the hand written post mortem report, it appears that when the witness testified after looking at his post mortem report, he missed the numerical 2 and saw only the numerical 6 and deposed as to the time since death as 6 hours. Indeed a person having a first look on this post mortem report would initially notice only numerical 6, but on a careful perusal, numerical 2 is clearly visible. Thus no force is found even in this contention.
16. The contention that PW9 Kiran mentioned the time morning instead of evening when deceased went with the two accused is nothing but an inadvertent error. This witness was otherwise categorical in deposing that the time when the accused came to her house on 11.02.2010 was 8 PM. PW10 has also given time of evening.
17. The claim that Kiran deposed that on the date of incident deceased went to Tronika City for his work indicates that deceased was not with the accused is also without force. The witness was here SC no. 27/13 Page 45 of 48 46 referring to the fact that in the morning deceased went to his work and then returned.
18. Ld. Counsel for the two accused has also referred to minor contradictions in the testimony of prosecution witnesses which are too trivial to create any kind of doubt about the involvement of the two accused or to create doubt about the veracity of the witnesses. These contradictions do not affect the roots of the matter and have to be ignored.
19. In the case of Ravi Kumar & Ors. Vs. State Crl.Appeal no.
819/2011 decided on 30.05.2014, Hon‟ble Delhi High Court observed that minor discrepancies are bound to occur due to normal errors of perceptions and observation, errors of memory due to lapse of time and, mental disposition etc. and that those discrepancies are inevitable and such discrepancies cannot materially affect the core of the prosecution case.
20. Reliance placed by the counsel for the accused upon following ten cases is also futile :-
1. Jitender Mahawar @ kalu @ Pawan Vs. State 2014 [4] JCC 2583 High Court of Delhi;
2. Deepak Chadha Vs. State 2012 [1] JCC 540 High Court of Delhi;
3. Ram Mohan Vs. State of NCT of Delhi 2012 CRI.L.J. 745 (Delhi High Court) Cri.A.Nos. 1040 and 1013 of 2010 decided on 17.10.2011;
4. Mahadev Vs. State 2012 [2] JCC 926 High Court of Delhi;SC no. 27/13 Page 46 of 48 47
5. Arun @ Khadak Singh Vs. State 2010 [4] JCC 2482 High Court of Delhi;
6. Kansa Behera Vs. State of Orissa 1987 CRI.L.J. 1857 = AIR 1987 SC 1507;
7. Satish Kumar Vs. State (Delhi)(DB) 1995(3) C.C.Cases 252 (HC);
8. Ram Singh Vs. State of Himachal Pradesh 1998(2) C.L.R. 549 High Court of Himachal Pradesh Cr. Appeal No. 105 of 1996;
9. Ramji Singh Vs. State 1999(3) C.C.Cases HC 435 Crl. A.No. 167/95 and;
10. Prithvi Pal Singh @ Munna Vs. State 2000 II AD (Cr.) DHC 61 Crl. A.No. 56/96.
21. All these above mentioned ten cases have been perused by this court and all these ten cases are materially distinguishable on the facts & circumstances and have no application on the facts and circumstances of the present case.
22. The circumstantial evidences proved against the two accused by the prosecution are all proved beyond reasonable doubt. All the circumstances are proved convincingly. All the circumstances if taken together indicates only one theory that the deceased was killed by the two accused and no one else. The circumstance proved on record rules out the innocence of the two accused.
23. The sum & substance of the above discussion is that the prosecution has succeeded in proving its case against the two accused beyond reasonable doubt. The act of the two accused in taking the deceased in the dark of night to a secluded place and SC no. 27/13 Page 47 of 48 48 then slashing his throat with a kind of knife used in this case clearly reveals that they intended to kill the deceased. After slashing the throat of deceased, the deceased was left behind at the spot to bleed to death with no possible help available to him. The kind of weapon used, the place where the injury was inflicted and the place as well as manner of the commission of crime reflects that there was prior planning to do away with the deceased. These circumstances take the crime committed by the two accused within the four corners of definition of murder.
24. Both the accused are thus found guilty and convicted of having committed murder of deceased Hari Shankar and are thus convicted U/s 302 of IPC r/w Sec. 34 of IPC.
25. Both the accused also tried to cause disappearance of evidence after commission of crime by throwing away the knife, throwing away the SIM card of mobile and the mobile of deceased, and therefore, the two accused are also guilty U/s 201/34 of IPC.
Announced in the open court on 25th day of February, 2015. Dig Vinay Singh ASJ/Spl.Judge:NDPS(N-W) Rohini Courts/Delhi SC no. 27/13 Page 48 of 48