Delhi District Court
State vs . (1) Ibrahim @ Guddu on 9 July, 2010
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESISONS CASE NO. 107/2006
CASE ID: 02403R0378252006
State Vs. (1) Ibrahim @ Guddu
S/o Mohd. Ramzani
R/o 9/317, Dakshinpuri,
Ambedkar Nagar, Delhi.
(2) Mohd. Anis Ahmed
S/o Mohd. Yamin,
R/o Jhuggi No. A-722, Kirby place,
Delhi Cantt., Delhi.
(3) Virpal @ Raju @ Vira
S/o Lalman
R/o Village Dhanpur,
PO Dupta Kalan,
PS Rajpura, Badayun (U.P.)
(4) Mohd. Asgar
S/o Chidda
R/o Village Borawali, PP Rehra,
Police Station Adampur,
Distt. Jyotiba Phulle Nagar (U.P.)
(Acquitted)
(5) Brij Pal
S/o Lalman
SC No. 107/06 Page1/80
R/o Vill. Dhanpur,
PO Dupta Kalan, Police Station
Rajpura, Badayun (U.P.)
( Acquitted)
FIR No. 233/06
Police Station Malviya Nagar
Under Section 302/394/34 IPC and 216A/411/120B IPC
Date of Institution of the Suit : 10/07/2006
Date of Decision : 11/06/2010
Date of order on sentence : 09/07/2010
ORDER ON SENTENCE
By my judgment dated 11/06/10, accused Brijpal and Asgar
were acquitted of the respective charge framed against them and three
accused persons Ibrahim @Guddu, Virpal @Raju and Mohd. Anis
Ahmad were convicted under sections 394/302/34 IPC.
Ld. Addl PP has argued for deterrent punishment against
accused persons, keeping in view the serious nature of the crime
committed by them.
On behalf of the accused persons, Ld. Counsel for the
accused Ibrahim and ld Amicus Curie for convicted persons Virpal
and Mohd Anis have argued that the convicted persons are the sole
bread earners of their families and on account of poverty their families
SC No. 107/06 Page2/80
are facing hardship. So lenient view may be taken against them.
I have heard learned Additional Public Prosecutor and
learned Counsel for the accused persons and have gone through the
record of the case and the relevant provisions of law carefully.
For the offence u/s 302/34 IPC, the punishment prescribed
is death penalty or imprisonment for life besides the imposition of fine.
As per settled legal position with regard to sentence in murder cases
the death penalty can only be awarded to those convicts about whom it
can be said that their case fall amongst rarest of rare cases so the death
penalty alone is the appropriate punishment. In the present case, the
facts and circumstances of the case do not suggest that it is one of the
rarest of rare cases where extreme penalty of death should be awarded
to the convicted persons. Therefore, the three convicted persons are
awarded life imprisonment each for the offence under section 302/34
IPC. In addition, they are also directed to pay fine of Rs 2500/- each
convict, in default of payment of fine the defaulting convict(s) shall
undergo Simple Imprisonment for two months.
I further sentence the convicts Ibrahim @ Guddu, Mohd
Anis Ahmed and Virpal @ raju @ Vira under Section 394 IPC to
Rigorous Imprisonment for ten years and to pay fine of Rs 2500/- each
convict, in default of payment of fine the defaulting convict(s) shall
undergo Simple Imprisonment for two months.
The period of detention already undergone by the convicted
SC No. 107/06 Page3/80
persons during the period of investigation and trial of this case shall
be set off against the term of imprisonment imposed against the
convicts by this order, as provided under section 428 Cr.P.C.
Judgment and order on sentence be sent to
server(www.delhidistrict courts. nic.in). Copy of judgment and order
of sentence be supplied to convicts free of cost.
File be consigned to record room.
Announced in the
open court on 09/07/2010 (S.K. SARVARIA )
Additional Sessions Judge-01 South
Patiala House Courts/New Delhi
SC No. 107/06 Page4/80
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESISONS CASE NO. 107/2006
CASE ID: 02403R0378252006
State Vs. (1) Ibrahim @ Guddu
S/o Mohd. Ramzani
R/o 9/317, Dakshinpuri,
Ambedkar Nagar, Delhi.
(2) Mohd. Anis Ahmed
S/o Mohd. Yamin,
R/o Jhuggi No. A-722, Kirby place,
Delhi Cantt., Delhi.
(3) Virpal @ Raju @ Vira
S/o Lalman
R/o Village Dhanpur,
PO Dupta Kalan,
PS Rajpura, Badayun (U.P.)
(4) Mohd. Asgar
S/o Chidda
R/o Village Borawali, PP Rehra,
Police Station Adampur,
Distt. Jyotiba Phulle Nagar (U.P.)
SC No. 107/06 Page5/80
(5) Brij Pal
S/o Lalman
R/o Vill. Dhanpur,
PO Dupta Kalan, Police Station
Rajpura, Badayun (U.P.)
FIR No. 233/06
Police Station Malviya Nagar
Under Section 302/394/34 IPC and 216A/411/120B IPC
Date of Institution of the Suit : 10/07/2006
Date on which order was reserved : 25/05/2010
Date of Decision : 11/06/2010
JUDGMENT
The SHO of police station Malviya Nagar has challaned the accused persons to face trial for the commission of offences punishable under Sections 302/394/34 IPC and also 216A/411/120B IPC. The learned Metropolitan Magistrate in compliance of provisions under Section 207 Cr.PC. supplied the copies of documents to the accused persons and committed the case to the Court of Sessions for their trial, by invoking Section 209 CrPC.
BRIEF FACTS The prosecution case, in brief, is that on 28/02/2006 HC Bir Singh received DD No. 32-B, Police Station Malviya Nagar from AIIMS Hospital in which Duty Constable Ajit Kumar gave telephonic information to Police Station Malviya Nagar that one Rekha W/o Banarasi Dass Patil R/o J-4/72-B, Khirki Extension was admitted to SC No. 107/06 Page6/80 hospital in dead condition by one Manish Kumar S/o Madan Mohan and doctor has declared her dead. This DD entry was given to Inspector Nirmal Singh, Incharge Police Post Saket. He alongwith HC Jai Kishan departed from Police Station to AIIMS Hospital and received MLC of deceased Rekha in which doctor has endorsed the patient was brought dead. The dead body had been shifted to mortuary. Then the Inspector Nirmal Singh alongwith the police officers went to the place of incident at H. No. J-4/72-B, Khirki Extension where Manish came and gave the statement which, in brief, is that he was living at the ground floor at J-4/72-B, Khirki Extension at Malviya Nagar, alongwith his friend Roshan and was preparing for IIT entrance test. In the day time at about 11.30 to 12.00 PM he was in his room when he heard the strange noise from the first floor where his landlord lives. In the meantime he heard the voice of deceased Rekha from the said of their bathroom calling Roshan. On this he ran climbing upstairs and raised voice by calling 'auntie' but he heard strange type of noise from the bathroom which was bolted from inside. Then he unbolted the door of the bathroom and saw deceased Rekha lying on the floor with some broken bangles, her throat was tied up with a cloth and there were injuries on her throat from which the blood was flowing out. Deceased Rekha said 'Hospital'. Then he took her in the injured condition first to the Akash Nursing Home, Malviya Nagar with the help of Gaurav and Sanjay, the neighbourers by putting injured Rekha in Maruti car bearing No. DL 3 CA 8873 belonging to the SC No. 107/06 Page7/80 neighbourers and then on the advise of officials of Akash Nursing Home, Malviya Nagar, he took her to AIIMS Hospital where doctor reported her to be brought dead. In the room of the deceased Rekha the almirah was opened and articles were spread. Some unknown persons had killed her.
Inspector Nirmal Singh received the statement of the complainant and inspected the spot and found that the blood was spread in the bathroom. The broken bangles were also lying there, one blood stained electric wire was also lying at the spot and one handkerchief on which eagle (Baaz) was printed and 'Fly Eagle' was written on it. On the slab of kitchen one plastic toy pistol was lying on which made in China was written and below that the broken bangles were lying. In the bedroom, steel almirah was lying open and lockers were open and the whole of the articles were lying spread. Inspector Nirmal Singh made endorsement in statement of complainant and sent the rukka through HC Bir Singh for registration of the case. During investigation Inspector Nirmal Singh prepared site plan and got the spot inspected by crime team and dog squad. The sample blood, broken bangles, the broken piece of Mangal Sutra, PVC wire were seized by different seizure memos. Statement of witnesses were recorded. The inquest papers under Section 174 CrPC were filled and the postmortem of the deceased got done at AIIMS Hospital after which the dead body was handed over to the legal heirs of the SC No. 107/06 Page8/80 deceased. Total 6 samples and one sample seal were taken into possession of police and deposited in the Malkhana of the police station. Statement of witnesses were recorded. The deep search was made to arrest the accused persons. During investigation accused Ibrahim @ Guddu, Mohd. Anis and Virpal were arrested. Following looted and other property was recovered from the accused persons during investigation:-
Srl. Name of the accused Looted property Other property persons recovered recovered No. Ibrahim @ Guddu Rs. 18,000/- in Motorcycle cash and one bearing No. DL gold ring. 7 SL 2408 Hero Honda alleged to be used in committing crime, Mobile Phone Make Nokia 1100 No. 1 9899368413 Virpal Rs. 38,000/- in Knife, shirt cash, one gold worn by the coin, one accused at the Mangal Sutra, time of incident one gold necklace and 2 one gold chain SC No. 107/06 Page9/80 Srl. Name of the accused Looted property Other property persons recovered recovered No. Anees 8 Door Handle Shirt worn by and 6 Magnetic the accused at door closures, the time of Rs. 35000/- in incident, Mobile cash, 2 coins of Phone make silver metal, one Nokia No. gold ring, one 9312670781.
gold chain and one broken piece of Mangal Sutra of gold like metal with 3 black pearls.
The Test Identification Parade of the case property was got done from Sh. Banarasi Dass, husband of the deceased. Exhibits were deposited with FSL, Rohini. Result of which was awaited till the filing of the challan, on completion of the investigation. The accused persons were challaned, as referred before.
CHARGES AND PLEAS OF THE ACCUSED PERSONS:
Prima facie case for the offences under Section 302 IPC read with Section 34 IPC and under Section 394 IPC read with Section 34 IPC were found made out against accused Ibrahim @ Guddu, Anis Ahmed and Virpal, so the charges were framed accordingly against them on 30/03/2007 to which they pleaded not guilty and claimed trial.SC No. 107/06 Page10/80
Prima facie case for the offence under Section 216A IPC was found made out against accused Brij Pal and Asgar, so the charge was framed accordingly against them on 30/03/2007 to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case, the prosecution has examined 24 witnesses to have a reasonable view of the prosecution evidence, the relevant portions of the statements of witnesses are given below:-
PW1 is Banarasi Dass, husband of the deceased woman. He has stated that on 28.02.06 he was present on his duty at Hyatt Hotel, Bhikaji Cama Palace. At about 11.40 am, he received a telephonic call from his neighbourer that some one had committed murder of his wife. He was informed that his wife had been removed to AIIMS. He reached at AIIMS Hospital and came to know that the Doctor had declared her dead. Thereafter he came to his house. Police was present there. The articles were lying scattered in the house. The almirah was found open. Bangles were lying broken in the kitchen. The bathroom and outside the bathroom there was full of blood. On checking, jewellery lying in the almirah was found missing. Golden set of his wife, Mangal Sutra, two golden chains, two rings, one gold coin having words Hyat Regency written over it, two silver coins received by him as award from Hyatt Regency were found missing. Cash Rs. 91,000/- was also found missing. Six wall catcher/magnetic SC No. 107/06 Page11/80 catcher and eight handles of almirah which were purchased about 3-4 days prior to the incident on the instruction of the carpenter were also found missing. Mobile phone make Nokia No. 9818494277 of his wife was found missing.
Two gold bangles were also found missing from the person of his wife.
After the postmortem of his wife the dead body was released to him vide memo Ex.PW1/B. He had identified the dead body of his wife vide identification memo Ex.PW1/A. Accused Ibrahim @ Guddu was arrested by police. He had earlier worked as carpenter at his house prior to the incident. However, he was removed from his work about 5-6 days prior the incident. His disclosure statement is Ex.PW1/C. The accused disclosed the names of two associates ie. accused Virpal @ Raju and Anis Ahmed. He further told that both of them had called him to meet them at PTS, Press Enclave Road.
The accused Ibrahim took the police party to that place and got arrested both the accused Virpal and Anis Ahmed. On search of accused Anis one country made pistol was recovered from his pocket. Both the accused were arrested by the police and their personal search memos are Ex.PW1/D and E. Their disclosure statements are Ex.PW1/F and G. Accused Ibrahim @ Guddu took the police party to his house at Dakshin Puri and got recovered cash of Rs. 18,000/-, one SC No. 107/06 Page12/80 gold ring, one gold chain from the almirah lying at his house. All these articles were seized vide seizure memo Ex.PW1/H. Thereafter, accused Anis Ahmed took the police party to Kirbi Place at his jhuggi and got recovered cash Rs. 35,000/-, gold set, one gold coin, two silver coins, one mangal sutra. All these articles were put in separate pulandas, then sealed and seized vide seizure memo Ex. PW1/I. The accused also produced his blood stained shirt which was seized vide memo Ex. PW1/J. The accused also produced the magnet catchers and door handles lying in a polythene in the same condition in which PW 1 had kept in his almirah. All these articles were seized vide seizure memo Ex. PW1/K. The police also seized mobile phone from accused Anis vide memo Ex. PW1/L. Thereafter accused Virpal took the police party to his house. PW 1 Banerji Das did not accompany the police to the house of accused Virpal but PW 1 had participated in the TIP proceedings of the case property before the ld. MM. The witness PW 1 Banerjee Das identified Ibrahim @ Guddu, Virpal and Anis then present in the court. The witness identified golden set/ necklace as Ex.P1, gold coin as Ex.P2, silver coins as Ex.P3/1-2, Mangal Surtra Ex.P-4 as the same which were got recovered by accused Anis. The witness identified one gold chain as Ex.P-5 and gold ring as Ex.P-6 as the same which were got recovered by accused Ibrahim @ Guddu. The witness identified cash Rs.18,000/- as Ex.P7(Colly.) as the same which was got SC No. 107/06 Page13/80 recovered by accused Guddu. He identified cash Rs. 35,000/- as Ex.P- 8(Colly.) as the same which were got recovered by accused Anis. He identified all these articles except cash in the TIP proceedings before the ld. MM. He had also taken on superdari Rs.38,000/- Colly as Ex.P9 recovered from accused Virpal which he had brought in the Court on that day. He had also taken on superdari one gold chain and ring as Ex.P10 and Ex.P-11 which were got recovered by accused Virpal and were identified by him in TIP proceedings. The witness identified eight door handles and six door catchers as Ex.P12/1- 8(handles) and Ex.P13/1-6 (door catchers) as the same which were recovered from accused Anis Ahmed. He also identified one mobile phone and motorcycle recovered in this case.
PW2 is Gaurav who has stated that in the month of Oct. 06 at about 11:30 am one Sanjay came to him and informed that deceased Rekha was bleeding. He borrowed car from his neighbour and removed deceased Rekha in the car to Akash hospital, Malviya Nagar. They asked them to take the patient to AIIMS. Thereafter, they took her to AIIMS. There she was declared brought dead. He also stated that the incident was dt 28.2.06.
PW3 Amit Patyal has stated that on 28.2.06 at about 11:30 am he was present in his office. At that time, he received telephone call at his office disclosing that some thief had committed murder of his mother. He immediately reached at his home. He found the house ransacked. He found jewellery, cash, mobile phone missing from the SC No. 107/06 Page14/80 house. Police reached at the spot and inspected the site and seized some broken bangles, one broken piece of mangal sutra, blood and piece of PVC electric wire vide memo Ex. PW3/A. One toy pistol and some sample concrete slabs and one coloured handkerchief were also seized vide seizure memos Ex.PW3/B and Ex. PW3/C. PW4 is HC Bir Singh who has stated that on 28.02.06 he was posted as HC in PS Malviya Nagar. On that day, on receipt of DD No. 28, he along with Ct. Surender went to J4/72B Khirki Extn, Delhi. There was no eye witness. There was blood lying on the spot. As per the direction of Insp Nirmal Singh, he remained present at the spot. At about 4 pm, he handed over to him rukka for registration of case. He went to PS and came back to the spot with copy of FIR and original rukka and handed over the same to IO.
PW5 is Ct Jitender Kumar who has stated that on 27.4.06 as per the direction of IO he took 14 sealed pulandas of this case from MHCM PS Malviya Nagar vide RC No. 7/21 and deposited the same at FSL Rohini. After depositing the same he came back to Police Station and handed over receipt copy to MHCM. During his possession seals were intact and not tampered with.
PW6 is HC Surender Singh who has stated that on 1.3.06 he was posted as Constable in PS Malviya Nagar. The dead body of deceased Chander Rekha was under his supervision. After postmortem doctor handed over to him six sealed pulandas and one SC No. 107/06 Page15/80 sample seal. Later on he handed over the same to IO and IO seized the same vide memo as Ex. PW6/A. PW7 HC Des Raj is brother in law of deceased Chander Rekha and brother of PW1. He has stated that on 22/03/06 when he reached at his house his nephew Ashwani told him that telephone call was received from his father that the accused persons have been apprehended and he had gone to the Police Station. He also reached at the Police Station from there. Accused Ibrahim @ Guddu, Anis and Virpal were present at the Police Station. The accused persons led the police party to Dakshin Puri. The accused Ibrahim @ Guddu got recovered one golden ring, cash Rs. 18,000/-, one motorcycle and its key. All these articles were kept in pulandas and were seized by the police. Thereafter, accused Anis took the police party to his house at Kirbi Place and he got recovered one golden ring, one golden chain, one broken piece of Mangal Sutra, two silver coins of Hyatt and cash Rs. 35,000/-. All these articles were kept in pulandas and seized by the police. Accused also produced his shirt which was seized by the police. He also got recovered eight door handles and six magnet catchers which were also seized by the IO after sealing it. Thereafter they returned at Police Station. The witness identified a golden necklace as Ex.P1, gold coin Ex.P2, silver coins as Ex.P3/P1-3, Mangal Sutra as Ex.P4 as the same which were got recovered by accused Anis. He identified cash Rs. 35,000/- Collectively as Ex.P8.SC No. 107/06 Page16/80
He also identified a gold chain as Ex.P5, gold ring as Ex.P6, cash Rs. 18,000/- as Ex.P7 as the same which were got recovered by accused Ibrahim. He also identified the handles as Ex.P12/P1-8, catchers as Ex.PW13/P1-6 which were got recovered by accused Anis. He also identified the motorcycle No. DL 7SL 2408 black colour Hero Honda Splendour Ex.P14 outside the court as the same which was got recovered by accused Guddu. He identified all the accused persons.
PW8 is HC Suresh Kumar who was working as Duty Officer in PS Malviya Nagar on 28/02/2006. On that day at about 4.15 PM he received ruqqa from Inspector Nirmal Singh through HC Ct. Bir Singh on the basis of which he recorded FIR, carbon copy of which is Ex.PW8/A. After registration of the FIR, the original ruqqa and copy of FIR were sent back to the IO for further investigation. He also stated that copies of the FIR were sent to learned Metropolitan Magistrate and senior police officers through special messenger.
PW9 is Ct. Sunil Kumar who was given up by learned Additional Public Prosecutor.
PW10 is HC Jai Kishan who has stated that on 28/02/06, on receipt of DD No. 32B, he went to AIIMS and collected MLC No. 25768/06 wherein doctor declared Rekha brought dead. He gave the information about it to SHO and ASHO.
PW11 is Ct. Arvind who alongwith IO and SI Sanjay went to AIIMS. Doctor handed over to IO, two sealed parcels containing SC No. 107/06 Page17/80 the scalp hair of accused Anis and Ibrahim and IO seized the same vide memos Ex.PW11/A and B. PW12 is Ct. Deepak Tiwari who has stated that doctor collected the hair sample of accused and kept the same in pulanda, sealed with seal of forensic medicine and handed over the same to IO who seized the same vide memo Ex.PW12/A. PW13 is Sh. Vikas Dhull, learned Metropolitan Magistrate. He has stated that on 24/04/06, application Ex.PW13/A was assigned to him to conduct TIP of the case property. He proved the TIP proceedings conducted by him as Ex.PW13/B. Certificate Ex.PW13/C was given by him regarding correctness of the proceedings. IO moved an application for supply of the copy which was allowed and is Ex.PW13/D. PW14 is Dr. Vinit Kumar who prepared the MLC of the deceased Rekha and proved it as Ex.PW14/A. He has stated that he examined the patient/injured and declared her dead.
PW15 is SI Vinod Pal. He has stated that on 28/02/06, he was working as Incharge, Crime Team, South District. On that day after receiving information from SHO, Malviya Nagar, he alongwith his staff visited the spot i.e. J-4/72 B, Khirki Extension where he found the local police present there. He inspected the spot and prepared his report Ex.PW15/A. As per his direction his photographer took photographs at the spot from different angles.SC No. 107/06 Page18/80
PW16 is SI Madan Pal, Draftsman who had prepared the scaled site plan Ex.PW16/A. PW17 is Dr. B L Chaudhary who conducted the medical examination of accused Ibrahim and proved MLC as Ex.PW17/A. He also examined accused Mohd. Anis and proved his MLC as Ex.PW17/B. During examination he found a healed wound present on right index finger in terminal phalanyx over ventral aspect measuring in size about 2 x 1 cm. Wound was completely healed. As per him opinion the duration of the wound was likely to be more than one week. The possibility of the wound due to human bite could not be commented at that stage. The scalp hair of the accused was collected, sealed in a envelope and was handed over to the IO.
PW18 is Ct. Pavitra who recorded DD No. 28B, Police Station Malviya Nagar and proved the copy of the same as Ex.PW18/A. He recorded DD No. 32 and proved the copy of the same as Ex.PW18/B. PW19 is Sh. Manish Jha who stated that he was staying at house no. J-4/72B Khirki Extn. Malviya Nagar alongwith his friend Roshan. He was preparing for IIT entrance exam at that time. On that day, between 11.30 am/ 12 noon he was present inside his ground floor room, on the first floor of the house the house owner alongwith his family were staying. At that time he heard sounds from the house of his landlord and he heard a lean noise of Rekha aunti from the SC No. 107/06 Page19/80 bathroom side. She was calling Roshan. He went upstairs and called "Rekha Aunti- Rekha Aunti". He entered inside the house. He heard the lean sound of Rekha Aunti from the bathroom of the house. The kundi (bolt) was closed from the outside. He opened the kundi and found Rekha Aunti lying over the floor, some broken bangles were lying there. A cloth was tied over her neck. She was having injuries over her neck and blood was oozing out. Rekha Aunti uttered 'hospital'. He lifted her and took her downstairs and with the help of Gaurav and Sanjay, she was taken to Aakash Nursing home by the maruti car of their neighbour. As per the advise of the nursing home, she was shifted to AIIMS hospital where doctor declared her brought dead. When he entered inside the house, he saw the almirah was opened and the articles were scattered inside the house. His statement was recorded by the IO as Ex.PW19/A. PW20 is HC Giriraj who stated that on 25.03.2006, he was posted as constable at PS Malviya Nagar. On that day, he joined the investigation of this case. Accused Virpal @ Bhira was in police custody. He alongwith SI Dalip and Ct. Rajeev and accused Virpal went to Distt. Badayan. Accused took the police team to his village Chaupur. Accused took the police to his house and pointed towards a strips shirt and told the IO that he was wearing that shirt on the day of incident i.e. 28.02.2006. He also pointed out to a wooden box and told that the robbed jewelery and money were kept in that box. Accused SC No. 107/06 Page20/80 handed over the striped shirt to IO. IO prepared the pointing out memo Ex.PW20/A. IO also kept the shirt in a pllanda sealed with the seal of SB and seized the same vide memo Ex.PW20/B. The accused opened the wooden box and took out some gold coin of Hyatt Hotel, one golden mangal sutra, one gold necklace, one gold chain and one bundle of currency notes, on counting Rs. 38,000/- was found in that bundle. IO kept the currency notes and the gold articles in separate pullanda and sealed with the seal of SB and seized the same vide memo Ex.PW20/C. Accused Virpal further told that the knife which was used in the incident was kept underneath the wooden box. He lifted the box and took out the knife and handed over the same to the IO. IO prepared the sketch of the knife, vide memo Ex.PW20/D. The knife was kept in a pullanda and sealed with the seal of SB and seized it vide memo Ex.PW20/E. PW21 is Dr. Sunay who stated that he was directed by the medical Supdt AIIMS to depose on behalf of Dr. Rohit Saxena who was working in the hospital as JR, but has now left the hospital and his present whereabouts are not known to the hospital authority. Dr. Rohit has worked with him in the hospital and he has seen him writing and signing in the official course of his duty. He identified his writing and signature on the MLC of Birpal son of Lal Man and proved the MLC as Ex.PW21/A. He also stated that accused Birpal was brought to the hospital by the police and his scalp hair measuring 12 cm, 3 cm and 4 SC No. 107/06 Page21/80 cm on front and back and side respectively were taken by Dr. Rohit, sealed with the seal of hospital and handed over to the IO.
PW22 is Inspector Sanjay Bhardwaj who stated, in brief, that on 28.02.2006 he alongwith Inspector Nirmal Singh, HC Jai Kishan and Ct. Munesh went to AIIMS hospital. In the hospital, Inspector Nirmal Singh collected MLC of deceased Chandrekha and they went back to J-4/72-B, Khirki Ext., on the first floor of this flat, complainant Manish Jha met them, HC Bir Singh was also present there. In the bathroom and Kitchen there was blood and broken bangles were found scattered. A toy pistol was also lying on the slab of the kitchen. A PVC wire piece was lying around bathroom. A hanky on which figure of eagle was printed and 'Fly Eagle' was written was also lying there. Crime team also came there and inspected the scene of crime alongwith the dog squad and inspected the scene of crime. Inspector Nirmal Singh got recorded the statement Ex.PW19/A of Manish Jha and made his endorsement on the same and sent HC Bir Singh to the PS for the registration of the case. IO took blood lying in the bathroom with the help of cotton and also kept the same in a plastic container and converted in a cloth parcel and sealed with the seal of SB and labelled as serial no. 1. Bangel pieces were also collected and put into a plastic bottle and converted in a cloth parcel and sealed wth the seal of SB and labelled as serial no. 2. A broken piece of Mangal Sutra which was lying on the floor was also collected and put into a SC No. 107/06 Page22/80 plastic bottle and converted in a cloth parcel and sealed with the seal of SB and lebelled as serial no. 3. PVC wire was also collected and kept in a plastic transparent polythene and converted in a cloth parcel and sealed with the seal of SB and labelled as serial no. 4. These four articles were taken into possession by Inspector Nirmal Singh in one seizure memo Ex.PW3/A. PW23 is Inspector Nirmal Singh Ghumman who corroborated with the statement of PW 22 with regarding to the arrest of accused Anis and Virpal. He corroborated with the statement of PW1 Banarasi Das and PW22 Sanjay Bhardwaj regarding recovery of case property at the instance of accused Ibrahim and accused Anis. He corroborate statement of PW19 Manish Jha regarding recording of statement Ex.PW19/A and stated that he made his endorsement on the same Ex.PW23/B. He stated that on 01.03.2006, he alongwith police official went to AIIMS hospital for the postmortem of the deceased. He prepared inquest paper comprising of brief facts Ex.PW23/C. His application for postmortem is Ex.PW23/D. He filled up form 25/35 Ex.PW23/E. He recorded the statement of Amit Patial son of the deceased and Bansari Dass husband of the deceased for the dead body identification and after the postmortem was conducted, he handed over the dead body to the relatives vide receipt Ex.PW1/B. After the postmortem Doctor gave 6 exhibits and one sample seal sealed with the seal of "AIIMS hospital". It was taken into possession through SC No. 107/06 Page23/80 seizure memo. Seized exhibited were deposited in Malkhana at PS. He stated that on 22.03.2006, secret information was received about the one accused named Ibrahim regarding his involvement in this crime. A raiding party was prepared and the husband of the deceased was also informed about the secret information. As per information, he alongwith SI Sanjay Bhardwaj and the husband of the deceased went to the spot and about which the secret information was received, that accused Ibrahim will be available there. It was about 12 noon. As per their signals of the informer accused Ibrahim then present in the court was seen coming towards Sai Mandir in Khirki Extn. He was intercepted by SI Sanjay Bhardwaj in his presence and was questioned about the crime. During the questioning accused Ibrahim admitted the commission of crime on 28.02.2006 in company with other co-accused Anis and Virpal. Accused Ibrahim was arrested at the spot vide arrest memo Ex.PW22/A and his personal search was conducted vide memo Ex.PW1E. Accused was also interrogated and his disclosure statement Ex.PW1/E was recorded. It was also planned by them that the accused will call through his mobile to other co-accused Virpal and Anis at PTS Malviya Nagar gate. Accordingly, they reached at the PTS Malviya Nagar with accused Ibrahim. After about 1½ hours Anis and Virpal were noticed coming towards bus stop PTS Malviya Nagar where the accused as well as police team were present.
In the meantime, other force from the PS were summoned SC No. 107/06 Page24/80 at the spot. Accused Virpal and Anis were questioned about the commission of this crime and they were also arrested in this case vide their arrest memo and personal search memo. They were also interrogated and their disclosure statements were recorded. From the search of accused Anis and Virpal loaded weapons i.e Deshi Katta were recovered, about which separate action was taken by SI Dalip and SI Bharat. SI Bharat and SI Dalip kept investigation of their Arms Act cases. PW23 stated that he along with SI Sanjay Bhardwaj and others took the accused Ibrahim to his residence at Dakshinpuri, from where he volunteered to get the booty recovered. He corroborate statement of PW22 Inspector Sanjay Bhardwaj and PW1 Banarasi Dass regarding the recovery of Rs.18,000/- and a gold ring reportedly his share of loot in this case was got recovered by accused Ibrahim. He got the same converted into separate pulnda sealed with the seal of 'SB' and seized through seizure memo. The accused also pointed out a motorcycle parked at the ground which was, according to him, used during the commission of offence. Motorcycle was also seized through seizure memo. The case property was deposited in Malkhana.
The accused Anis, based on his disclosure was taken to his jhuggi at Kriby Place. On his pointing out a cash of Rs.35,000/-, a gold ring, a broken piece of mangalshutra, two silver coins of Hyatt Hotel, handles of the doors and a used shirt were recovered from his jhuggi. On the next date i.e 24-03-06 the accused Anis and Ibrahim SC No. 107/06 Page25/80 were taken to AIIMS where they were got medically examined and their hair sample were taken by the doctor. Hair samples were seized by him vide seizure memo EX.PW11/A & 11/B and later on deposited in Malkhana. The witness also stated that after the return of police team lead by SI Sanjay Bhardwaj he came to know that a cash of Rs.38,000/- and a gold coin of Hyatt Hotel were recovered from accused Virpal from his village along with a knife which was reportedly weapon of offence. The team also arrested another accused Asgar and Brij Pal. He deputed SI Sanjay Bhardwaj to obtain the opinion of the doctor who conducted postmortem in relation to the knife recovered from the accused. The reports of the FSL are EX.PW23/P-1,P-2 & P-3.
PW24 is Dr. Chittranjan Behera who stated that on 1.3.06 he was posted at AIIMS Department of Forensic Medicine and Toxicology. An application Ex.PW23/D was moved for conducting the postmortem on the body of Ms Chander Rekha Patial. It was an identified body of a female. Body was having total nine injuries which are as follows:
1) Incised wounds of the length 7.5 cm gapping 4 cm acute angle at both hand horizontally present over anterior neck in middle one third , 4 cm below mentum , 4.5 cm above suprasternal notch at anterior mid line neck, 8 cm below and anterior to right mastoid process and 8 cm below and anterior to left mastoid process.SC No. 107/06 Page26/80
Subcutaneous tissues muscles of anterior neck, both jugular veins ( billetarally), both carotid arteries are cut in the wound associated with haematoma. Trachea is cut at the level of cricoid cartilage associated with haematoma.
2) Incised wound of length 3 cm , gapping 5 cm horizontally present over left lateral neck at the level of injury no. 1, .3 cm lateral to injury no.1 with tailing towards left, muscle deep.
3) Superficial linear cut of length .75 cm present over lower lip, right part.
4) Contusion of size 2x 2 cm present over right upper face.
5) Contusion of size 2x 1 cm present over right mallar region.
6) Three linear superficial cuts present over dorsum of right hand of size 1.5 cm, 5 cm, and 2 cm.
7) Contusion of size .5x5 cm present over dorsum of right wrist.
8) Abrasion of size .5x.2 cm present over dorsum of left wrist.
9) Abrasion of size .5 x 2 cm present over dorsum of right wrist. After the postmortem the clothes, blood, vaginal swab and the hairs recovered from both hands and frontal part of scalp were separately sealed with the seal of hospital and handed over along with sample seal to the IO.
Cause of death was shock and hamerrohage as a result of injury no.1 caused by sharp edged weapon which is sufficient to cause death individually in ordinary course of nature. All the injuries were SC No. 107/06 Page27/80 ante-mortem in nature, time since death was about a day. The postmortem report is Ex. PW 24/A. The witness also stated that on 24/4/06 a sealed parcel sealed with the seal of SB along with postmortem report was produced for subsequent opinion. The parcel was opened and a knife was taken out. After examining the weapon and report he gave his opinion that injury no. 1,2,3 and 6 could have been caused by this weapon. His opinion along with the skecth is Ex. PW 24/B. The weapon in sealed condition sealed with the seal of hospital was handed over to the IO with sample seals. Knife is identified by the witnesses Ex. P X-1.
PW25 is SI Dalip Kumar who stated that on 22.3.06 he was posted in PS Malviya Nagar. On that day on receipt of DD 14A he along with SI Bharat Singh, Ct Munesh and Ct Arvind went to Press Enclave Road PTS Gate no.2 where Insp Nirmal Singh and SI Sanjay met them along with accused Guddu @ Ibrahim. Mr Banarsi Das and Ashwani Kumar were also with them. Insp Nirmal Singh told them that two other wanted accused persons were about to come. He with the help of Ct Arvind apprehended accused Anis. His personal search was taken and from his possession one country made revolver was recovered. Thereafter investigation of the case under Arms Act was conducted by SI Parmod Kumar. Insp Nirmal Singh interrogated accused Anis and Virpal. Thereafter on 24.3.06 he joined the investigation with the IO SI Sanjay and accused Virpal was in police SC No. 107/06 Page28/80 custody of SI Sanjay. Ct Giriaj and Ct Rajiv were also with them. Accused Virpal took them to Kashipur (Uttrakhand) and from there on 25.3.06 he took them to Distt Badayun in his village Chaupur, in his house. On his pointing out he got recovered one shirt which he was wearing at the time of incident. Witness correctly identified it the shirt in the court, was seized vide memo which is already Ex. PW 20/B. PLEA AND DEFENCE OF ACCUSED In the statement under section 313 Cr.PC, the accused persons have either denied the incriminating evidence emerging from prosecution case put to him or have expressed their ignorance about the same.
Accused Veerpal, Anis Ahmed, Brijpal and Asgar have stated that they are innocent and they have been falsely implicated in this case.
Accused Ibrahim @ Guddu has stated that he is innocent. He has been falsely implicated in this case. It was on the date of incident itself that the husband of the deceased and one Sh. Sachdeva his neighbour called him on his mobile phone and informed him about the unfortunate murder of Rekha Aunty. He reached the house of deceased between 4.30 to 5.00 pm on the same day. He went to the police station along with Sh Banarsi and Sh Sachdeva. Police interrogated him and detained him in the police station for the night and allowed him to go only on the next day. The police told him that when ever he is called for further inquiry and as soon as he get their SC No. 107/06 Page29/80 call/message, he must reach police station immediately. Subsequently after every 2-3 days the police would call him in police station and interrogate him for 1-2 hours and they used to let him go. He did not go to his job or leave Delhi from the date of incident till he was falsely implicated in this case. It was only on 22.3.2006 that he was called in the police station and falsely implicated in this case. His brother and other relatives had also come to police station on 22.3.06 and pleaded with them about his innocence but the police threatened them that in case they interfered they will also be involved in this case. He stated that he is innocent and has been falsely implicated in this case.
In his defence, the accused Ibrahim has examined himself as DW-1 and has stated that prior to the date of incident he knew complainant Sh Banarsi Dass and their family for two years. He used to call Sh Banarsai Dass as uncle and Smt Rekha as Aunty. On 28/2/06 He was working at Noida (U.P.). At about 3 PM Sh Sachdeva neighbour of Sh. Banarsi Dass called him on his mobile phone to reach his residence. He reached the house of Sh Sachdeva at about 6.30 PM where Sh Sachdeva and one police official of PS Malviya Nagar were present there he was shocked to hear that Rekha Aunty has been murdered. He was told by Sh Sachdeva that they have to go police station Malviya Nagar for investigation. He along with police official and Sh Sachdeva went to police station Malviya Nagar. At police station he was interrogated and beaten by lathis, fists and slaps. He SC No. 107/06 Page30/80 was detained for the entire night in the police station. Next day morning he was allowed to go with the direction that he will be called again in police station. He was called to police station after every 2-3 days. In the police station the police used to make him sit for 1-2 hours and then allow him to go. Then he was also called on 19-20-21/3/06. On 22/3/06 he was again called in police station at about 9.30 am and he was detained and not allow to go. On 22/3/06 he was made to sign certain written as well as blank papers. He pleaded his innocence before the police but they did not hear his vows and produced him in the Court on 23/3/06 and he was remanded to judicial custody. Police did not asked for his P.C. (police custody). On 22/3/06 his brother in law Sh Naeem Mohd and his father late Sh Ramjani came to police station and protested against his illegal arrest. They threatened false implication in this case, so they left police station. No recovery was made at his place as alleged. He stated that he has been falsely implicated in this case and the recovery has been planted on him.
DW2 Smt Shugufta has stated that accused Ibrahim was her husband. Her husband knew Sh Banarsi Dass and his wife Smt Rekha. He used to call them Uncle and Aunty respectively. On 28/2/06 when her husband did not return from his work, she called on his mobile phone which was answered by a police official from police station Malviya Nagar. Police official informed that her husband was in police station Malviya Nagar for investigation regarding the murder of Ms SC No. 107/06 Page31/80 Rekha. Her husband did not return back on 28/2/06 and came back only on 01/3/06 at about 1.00 PM. She was informed by her husband that he was detained by the police at police station Malviya Nagar. She was shocked to hear the unfortunate death of Ms Rekha. Her husband had gone to Noida for his job on 28/2/06. After every 2/3 days her husband was called to police station by the police. In the police station the police used to make her husband sit for 1-2 hours and then used to let him go. Her husband was also called on 19-20-21/3/06 in police station and allowed to go. On 22/3/06 her husband was again called in police station at about 9.30 am and he was detained and not allowed to go. When her husband was not allowed to go and he did not return till 7.30 PM, she became panicy. She called him on his mobile phone which was switched off. Finally her brother Naeem Mohd and her late father in law Sh Ramjani went to police station Malviya Nagar where they found that her husband was involved by the police in this case. Her father in law and her brother had pleaded before the police officials of police station Malviya Nagar and protested illegal arrest of her husband. But they were criminally intimidated by the police and threatened false implication in this case, so they left police station. She made frantic calls from her mobile no. 9312152148 to the control room as well as different police officials of police station Malviya Nagar whom they had come to know from 28/2/2006. She made a call on mobile no.9818078732 at 12.54 AM on 23/3/06 which was the SC No. 107/06 Page32/80 mobile number of one Parmod who was a police official in the police station. Sh Parmod told her that her husband was not in police station. She also made a call about the illegal apprehension of her husband to control room at No. 100 at about 1.31 AM. The control room people gave her phone No. of police station Malviya Nagar and she called Police Station Malviya Nagar at phone no. 26680424 at about 1.55 AM which was picked up by SI Jai Jai Ram. SI Jai Jai Ram called her back at about 2.44 AM on 23/3/06 and gave her mobile no. 9213558521 and instructed her to call this number to know the where abouts of her husband. She also received one call from control room at 2.40 AM and She spoke to one Sh Rajiv Ji who was in the control room at Ambedkar Nagar. She had also taken the channel no. from the control room. The police had also taken her signature on one paper on which 160 CrPC was written. She was called to the police station by the police for investigation around 15-16/3/06. After interrogation she along with her husband were allowed to go. At the relevant time they were residing in Dakshin Puri. No recovery ever was made from her residence nor police recovered anything from her residence. All the recovery had been planted on her husband in the police station itself. On 24/3/06 she went to meet DCP Hauz Khas and ACP Hauz Khas and made a complaint to them about false implication and illegal apprehension of her husband. The ACP who was a lady called police station Malviya Nagar where from she was informed that her husband SC No. 107/06 Page33/80 had been sent to jail by the ld M.M. ACP and DCP told her that since the case has gone to court they were helpless. Her husband was innocent. He has not committed any offence. On the unfortunate day of murder her husband was working at Noida. She has written in her hand writing all the details of her communication with the police. The details are Ex. DW2/A. ARGUMENTS AND FINDINGS I have heard the learned Additional Public Prosecutor for the State, learned counsel for the accused Ibrahim, learned amicus curie for accused Virpal and Anees, learned counsel for accused Brij pal and Asgar and have gone through the record of the case, written arguments filed on behalf of accused Ibrahim and relevant provisions of law.The present case is based on circumstantial evidence. The important aspects and circumstances emerging in this case are being dealt with under different headings for the sake of convenience and the proper understanding and appreciating the evidence on record. But before that it would be appropriate to have a glance at the legal position as to the cases based on circumstantial evidence.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
SC No. 107/06 Page34/80" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
In Venkatesan Vs. State of Tamil Nadu AIR 2008 Supreme Court 2369, it was held as under:
"2. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission.
The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from facum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed."
As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the SC No. 107/06 Page35/80 former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed. (See Dukhram Nath Vs. Commercial Credit Corpn Ltd. AIR 1940 Oudh 35, (1939) OWN 1114). No distinction has, therefore, to be made between circumstantial and direct evidence. (See Miran Baksh Vs. Emperor AIR 1931 Lah 529, 32 PLR 461; Thimma Vs. State of Mysore (1970) SCC (Cr) 320). The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shanker Bhaka Narsale Vs. State of Maharashtra AIR 1972 SC 1171, (1972) UJ 811 (SC); Chanan Singh Vs. State of Haryana AIR 1971 SC 1554).
In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, SC No. 107/06 Page36/80 such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In a recent pronouncement in Raju Vs. The State by Inspector of Police - AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the SC No. 107/06 Page37/80 incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC
316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v.
Sukhbasi and Ors. (AIR 1985 SC 1224);
Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v.
State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v.
State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances SC No. 107/06 Page38/80 must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all SC No. 107/06 Page39/80 the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent SC No. 107/06 Page40/80 only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, 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."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v.
State of Maharashtra, (AIR 1984 SC 1622).
Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible SC No. 107/06 Page41/80 hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC
180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
In Anil Kumar Singh Vs. State of Bihar (2003) 9 Supreme Court Cases 67 relied upon by learned counsel for the accused it was held as under:
"8. It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a SC No. 107/06 Page42/80 suspicion howsoever grave it may be cannot take the place of proof "
ACCUSED BRIJ PAL AND ASGAR The separate charges under section 216A have been framed against this to accused persons on 30/3/2007 alleging that they knowingly or having reason to believe that the three accused persons had committed robbery, harboured them at their house with the intention of facilitating the commission of said robbery or of screening them from any punishment. But there is no evidence against these two accused persons as to the said allegations of harbouring. None of the other three accused persons Ibrahim, Virpal and Anis Ahmad was arrested from the house of either accused Brij pal or accused Asgar. None of the other witnesses has stated that they have seen either of the said three accused persons living in the house of Brij pal or accused Asgar. Therefore, I have no hesitation to hold that the prosecution has failed to prove its case against accused Brij pal or Asgar for the respective charge under section 216 A beyond reasonable doubt.
ACCUSED IBRAHIM@GUDDU, VIRPAL@ RAJU AND MOHD. ANIS AHMAD
As already noticed the prosecution has failed to prove its case again the accused Brij pal and Asgar. It is to be seen whether the SC No. 107/06 Page43/80 prosecution has been able to prove its case against the remaining three accused persons Ibrahim @Guddu, Virpal @Raju and Mohd. Anis Ahmad beyond reasonable doubt. These three accused persons are charged with the offences under sections 302/34 and under section 394 read with section 34 IPC. It is alleged against them that they in furtherance of their common intention committed murder of the victim Rekha on 28/2/2006 at house No. J-4/72-B, First-Floor, Khirki Extension, Malviya Nagar Extension, New Delhi and have also jointly with the same intention committed robbery of different articles from the said house, referred before.
RECOVERY OF CASE PROPERTY The case of the prosecution is that following Case property, which includes the looted property and the other property, was recovered from the three accused persons Ibrahim @Guddu, Virpal @Raju and Mohd. Anis Ahmad. The following Table reflects the prosecution case in this regard.
Srl. No. Name of the accused persons Looted property Other property
recovered recovered
Ibrahim @ Guddu Rs. 18,000/- in cash Motorcycle bearing
and one gold ring. No. DL 7 SL 2408
Hero Honda alleged
to be used in
committing crime,
Mobile Phone Make
Nokia 1100 No.
1 9899368413
SC No. 107/06 Page44/80
Srl. No. Name of the accused persons Looted property Other property
recovered recovered
Virpal Rs. 38,000/- in cash, Knife, shirt worn by
one gold coin, one the accused at the
Mangal Sutra, one time of incident
gold necklace and
2 one gold chain
Anees 8 Door Handle and 6 Shirt worn by the
Magnetic door accused at the time
closures, Rs. 35000/- of incident, Mobile
in cash, 2 coins of Phone make Nokia
silver metal, one No. 9312670781.
gold ring, one gold
chain and one
broken piece of
Mangal Sutra of
gold like metal with
3 black pearls.
PW1 Banarsi Dass, the husband of the deceased, is an important witness who is joined by the investigating officer at the time of arrest of the said three accused persons and recovery of the case property from accused Ibrahim @Guddu and Mohd. Anis Ahmad. He proved the disclosure statement of accused Ibrahim as ExPW 1/C. He stated that accused Ibrahim @ Guddu took the police party to his house at Dakshin Puri and got recovered cash of Rs. 18,000/-, one gold ring, one gold chain from the almirah lying at his house. All these articles were seized vide seizure memo Ex.PW1/H. The witness identified one gold chain as Ex.P-5 and gold ring as Ex.P-6 as the same which were got recovered by accused Ibrahim @ Guddu. The witness identified cash Rs.18,000/- as Ex.P7(Colly.) as the same which SC No. 107/06 Page45/80 was got recovered by accused Guddu (Ibrahim).
This witness PW1 Banarsi Dass has also stated that the disclosure statements of accused Virpal and Anis are ExPW 1/F and G. He stated that accused Anis Ahmed took the police party to Kirbi Place at his jhuggi and got recovered cash Rs. 35,000/-, gold set, one gold coin, two silver coins, one mangal sutra. All these articles were put in separate pulandas, then sealed and seized vide seizure memo Ex. PW1/I. The accused also produced his blood stained shirt which was seized vide memo Ex. PW1/J. The accused also produced the magnet catchers and door handles lying in a polythene in the same condition in which PW1 had kept in his almirah. All these articles were seized vide seizure memo Ex. PW1/K. The police also seized mobile phone from accused Anis vide memo Ex. PW1/L. The witness identified golden set/ necklace as Ex.P1, gold coin as Ex.P2, silver coins as Ex.P3/1-2, Mangal Surtra Ex.P-4 as the same which were got recovered by accused Anis. The witness identified eight door handles and six door catchers as Ex.P12/1-8(handles) and Ex.P13/1-6 (door catchers) as the same which were recovered from accused Anis Ahmed.
The witness PW7 HC Des Raj is the brother of PW1 Banarsi Dass and like him is also witness of recovery of case property from accused Ibrahim and accused Anis. He also identified the case property recovered from these two accused persons and is also witness SC No. 107/06 Page46/80 of seizure of the said case property. PW 22 Inspector Sanjay Bharadwaj is also a witness of arrest of the said three accused persons and is also witness of recovery of case property from accused Ibrahim and accused Anis. He is also witness of recovery of part of the case property from accused Virpal also. He has also proved the motorcycle DL 7 SC 2408 got record by accused Ibrahim @Guddu as ExPW 22/P 5. PW23, the investigating officer Inspector Nirmal Singh Gumman, is also an important witness of arrest of the said three accused persons and recovery of case property from accused Ibrahim, accused Anees and accused Virpal.
PW 20 HC Giriraj has stated that he joined the investigation in this case on 25/3/2006. Accused Virpal @ Bhira was in police custody. He alongwith SI Dalip and Ct. Rajeev and accused Virpal went to Distt. Badayan. Accused took the police team to his village Chaupur. Accused took the police to his house and pointed towards a strips shirt and told the IO that he was wearing that shirt on the day of incident i.e. 28.02.2006. He also pointed out to a wooden box and told that the robbed jewellery and money were kept in that box. Accused handed over the striped shirt to IO. IO prepared the pointing out memo Ex.PW20/A. IO also kept the shirt in a pllanda, sealed it with the seal of SB and seized the same vide memo Ex.PW20/B. The accused opened the wooden box and took out some gold coin of Hyatt Hotel, one golden mangal sutra, one gold necklace, SC No. 107/06 Page47/80 one gold chain and one bundle of currency notes, on counting Rs. 38,000/- was found in that bundle. IO kept the currency notes and the gold articles in separate pullanda and sealed it with the seal of SB and seized the same vide memo Ex.PW20/C. There is an important witness of arrest of accused Virpal and recovery of Case property from him who is PW22 Inspector Sanjay Bharadwaj. He has also identified the case property recovered from accused Virpal as cash of Rs. 38,000/- Ex.P9 collectively, gold chain Ex.P10 and ring Ex.P11 and necklace Ex.P1 and Mangalsutra, and one Hyat gold coin Ex.P2 as the same which were recovered from accused Virpal. PW 23 Inspector Nirmal Singh Gumman and PW25 SI Dalip Singh are also the key witnesses to the said recovery of case property from accused Virpal.
The recovery of case properties from the said three accused persons is proved by the above witnesses by their corroborated evidence coupled with the seizure memos prepared by the investigating officer and the case properties are identified by the witnesses in the court at the time of the deposition The contention on behalf of the accused Ibrahim is that the recovery of case property attributed to accused Ibrahim is not established by prosecution as there are major contradictions in the statement of witnesses. It is argued that the prosecution witnesses have introduced a false story of recovery of gold chain and Rs. 18,000/--
SC No. 107/06 Page48/80from the residence of the accused Ibrahim. The argument is that PW1 Banarsi Dass has stated that accused Ibrahim got recovered cash of Rs. 18,000/--, Goldring, gold chain from his Almirah further he has exhibited these articles also. But the recovery memo ExPW 1/H shows that only one gold ring was recovered. The recovery of gold chain is attributed to accused Anees and not Ibrahim, as per the prosecution story. It is also argued that PW1 stated that the recovery was got made by the accused Ibrahim from Almirah lying in his house, he has also stated in the cross-examination that the wooden box from near the articles were taken was not of a big size. The PW7 HC Des Raj has stated that the accused has got recovered these articles from an attachi lying at a Chaajja in the room. It was a wooden attachi. In the cross- examination he has stated that the accused Guddu himself got down wooden box from the shelf and opened it and got down out currency notes, ring and key of bike. PW 22 Inspector Sanjay Bharadwaj has stated that the attachi from which Guddu took out Rs. 18,000/-- and goldring was a plastic attachi similar to VIP baggage. Its colour is grey. The attachi size was about 2 feet. It was full of clothes. PW 23 the investigating officer Nirmal Singh Gumman has stated that attachi was not made of wood or steel but it was made of some soft material but he did not know what that material was. By soft material he meant either leather or raxene or clothe of plastic also. The other discrepancy pointed out by learned counsel for accused Ibrahim is that the recovery SC No. 107/06 Page49/80 of Rs. 18,000/-- falls on the ground because PW 22 Inspector Sanjay Bharadwaj has testified that only Rs. 10,000/-- was recovered while according to seizure memo Rs. 18,000/-- were recovered. These currency-notes are not identified by the PW1 Banarsi Dass on the basis of their numbers or series so, accused Ibrahim is entitled to be acquitted.
The contradictions and discrepancies pointed out by learned counsel for accused Ibrahim exist in the prosecution case and in statement of witnesses but the question is due to the said discrepancies pointed out by learned counsel for accused can it be held that the incriminating articles were not recovered from accused Ibrahim. It has to be understood that the witnesses of recovered articles examined by the prosecution are not witnesses of recovery of case property from accused Ibrahim alone. The recovery of case property is also effected from co-accused Virpal and Anis. There are a number of articles recovered from the three accused persons. The gold jewellery recovered from accused persons include the wearing gold ornament of the victim. These are precious articles and cannot be presumed to be planted upon accused Ibrahim or any other accused by husband of deceased Rekha or police. PW22 is the witness of recovery of gold ornaments and articles from more than one accused and were examined in the court after one year or more from the date of incident, there is likelihood of confusion in mind as to one or two items have SC No. 107/06 Page50/80 been recovered from one accused or the other. Therefore, such a contradiction as to one or two articles recovered being natural should not be taken as fatal to the prosecution case on the question of recovery of the case property from accused Although, PW 22 Inspector Sanjay Bharadwaj has stated in his statement under section 161 CrPC that Rs. 10,000/-- were recovered from accused Ibrahim and in the statement before the court he has stated that Rs. 18,000/-- were recovered at his instance from his house and he was confronted with his statement made to the investigating officer, in his cross-examination, but immediately he voluntarily said that it was a handwriting mistake. He also stated that he did not pay attention towards this mistake from the date of his statement on 22/3/2006. He also stated that it was correct that the amount of Rs. 10,000/-- mentioned in a statement under section 161 was erroneous. Therefore, the contradiction as to the amount got recovered from accused Ibrahim is there in the statement of PW 22 Sanjay Bharadwaj but he has been able to explain that the amount of Rs. 10,000/- mentioned in the statement under section 161 CrPC was erroneously recorded. The other witnesses PW1 Banarasi Das and PW7 HC Des Raj have correctly testified as to the amount recovered from accused Ibrahim as Rs. 18,000/-. Therefore, prosecution has been able to prove the recovery of Rs. 18,000/-- from the house of and at the instance of accused Ibrahim.
SC No. 107/06 Page51/80No doubt, the seizure memo prepared by the investigating officer does not contain the numbers and series of currency-notes nor the witnesses have given the numbers of the currency-notes for their identification in the court. But this fact in itself is not sufficient to create doubt in the recovery of or identity of the currency-notes recovered from the accused persons for the simple reason that the person having possession of number of currency-notes can never be expected to know the numbers of the said currency-notes it is neither if necessary nor feasible to give the denomination of the currency-notes. The witnesses have identified the currency-notes as per guesswork and have specifically given the amount of the currency-notes which, in my view, is sufficient to prove the recovery and identity of the currency- notes owing to the position that it is impossible for a person having such large sum of money at his house or with him to give or identify the currency-notes on the basis of the numbers of the currency-notes.
As regards the recovery of the case property from the house of accused Ibrahim at his instance, the fact that there is some variation in the statement of witnesses as to the size and description of the container out of which the case property was taken out by the accused Ibrahim and seized by investigating officer, this variation also seems probable on account of the fact that the witnesses were examined after lapse of more than 1 to 3 years in this court and the lapse of such a considerable time certainly affects the memory of a person.
SC No. 107/06 Page52/80In State of Haryana Vs. Ram Singh 2002 CRLJ 987 SC relied upon by learned counsel for accused Ibrahim no independent witness was joined at the time of recovery while in the present case PW1 Banarsi Dass and PW 7 HC Des Raj brother of PW1 Banarsi Dass are independent witnesses who witnessed recovery of articles from accused Ibrahim and Anees. Therefore Ram Singh's case (supra) does not help the accused persons. The authority Salim Akhtar alias Mota Vs. State of Uttar Pradesh 2003 CRLJ 2302 SC is entirely on different set of facts and so inapplicable to the present case. The authority Srikanth and another etc Vs. State, 2006 CRLJ 4126 Mad (DB) relied on behalf of accused persons lays down the law that the accused persons were taken into police custody and recoveries have been effected based on confessional statement of accused persons so much importance should not be attached to the recovery part put forth by the prosecution. With all regards the view taken by the Division Bench of Madras High Court does not seem to be appropriate as section 27 of the Indian Evidence Act is proviso to sections 25 and 26 of the same Act and any discovery of fact which is part of the confessional statement made by accused to the police while in custody of police is admissible under section 27 of the said Act. Therefore, Srikanth's case (supra) does not help the accused persons.
In view of the above discussion and also the fact that the gold articles and currency-notes recovered from which the accused SC No. 107/06 Page53/80 persons is part of the looted property taken together being valuable property and precious which cannot be presumed to be planted by the police or the husband of the victim upon the accused persons and by corroborated statement of the prosecution witnesses, referred before, notwithstanding some minor contradiction is and discrepancy in the prosecution case, I am of the considered view that the prosecution has been able to prove the said recovery of case property effected from the three accused persons beyond reasonable doubt. IDENTIFICATION OF CASE PROPERTY PW 13 Shri Vikas Dhull, learned Metropolitan Magistrate had conducted the Test Identification Proceedings (TIP) of the case property on the application of investigating officer. He has proved the proceedings conducted by him as ExPW 13/B and a certificate regarding correctness of proceedings as ExPW 13/C. The proceedings conducted by him show that the witness PW1 Banarsi Dass has correctly identified recovered articles gold chains, gold necklace, gold mangalsutra and gold ring. PW1 Banarsi Dass has also stated in his examination-in-chief that he identified the articles except the cash in the TIP proceedings before learned MM. This witness PW1 Banarsi Dass has also identified the case property recovered from the three accused persons Ibrahim @Guddu, Virpal @Raju and Mohd. Anis Ahmad , in the court. The other witnesses PW7 HC Des Raj, PW22 Inspector Sanjay Bharadwaj, PW 23 investigating officer Inspector SC No. 107/06 Page54/80 Nirmal Singh have also identified the case property recovered from the three accused persons , in the court.
Therefore, the case property recovered from the three accused persons is not only identified by PW1 Banarsi Dass in the court but also the gold articles out of the case property were identified by him in the Test Identification proceedings conducted by learned Metropolitan Magistrate. For the currency-notes there cannot be any particular identification is all currency-notes lookalike and as already discussed, it is not feasible and possible for a person having number of currency-notes to recognise their numbers or series. It is enough that the witnesses of prosecution have stated that the particular amount of currency-notes/cash was recovered from the respective accused persons and that particular amount is produced in the court and identified by the witnesses. Therefore, the identity of the case property recovered from the three accused persons as the one which was stolen from the house of PW1 Banarsi Dass is established, in this case.
RECOVERY OF WEAPON OF OFFENCE PW 20 HC Giriraj has stated that the accused Virpal, while in police custody, took the police party to his house at district Badayun and took the police team to his village Chaupur. He also, so far is relevant, stated that accused Virpal told that the knife which was used in the incident was kept underneath the wooden box. He lifted the box SC No. 107/06 Page55/80 and took out the knife and handed over the same to the IO. IO prepared the sketch of the knife ExPW 20/D. The knife was kept in pulanda and sealed with seal of SB and seized vide memo ExPW 20/C. The said knife recovered from accused Virpal is identified by this witness and by PW 22 Inspector Sanjay Bharadwaj as ExPW 22/P4. The statements of PW 20 HC Giriraj, PW 22 Inspector Sanjay Bharadwaj are corroborated by PW 25 SI Dilip Singh and Inspector Nirmal Singh regarding the recovery of the knife in question from the possession and at the instance of accused Virpal. Therefore, the recovery of weapon of offence, i.e., knife, from accused Virpal is proved by the prosecution. Further, the weapon of offence, the knife, so recovered from accused Virpal as per medical opinion of the doctor conducting post-mortem report may have been used for inflicting injuries on the person of victim, as discussed in the following heading 'Medical Evidence'. MEDICAL EVIDENCE The MLC of the victim Rekha ExPW 14/A shows that when she was brought to AIIMS hospital she was already dead. The post-mortem report of the victim proved by PW24 Doctor Chittarnjan Behera as ExPW 24/A shows seven injuries were present on the person of the victim as also indicated in the statement of PW24, referred before. The cause of death according to the PW24 Chittarnjan Behera was shock and hammerage as a result of injury No.1 caused by sharp edged weapon which is sufficient to cause death individually in the SC No. 107/06 Page56/80 ordinary course of nature. The injury No.1 shown in the post-mortem report is incised wounds of the length 7.5 cm gapping 4 cm acute angle at both hand horizontally present over anterior neck in middle one third , 4 cm below mentum , 4.5 cm above suprasternal notch at anterior mid line neck, 8 cm below and anterior to right mastoid process and 8 cm below and anterior to left mastoid process. Subcutaneous tissues muscles of anterior neck, both jugular veins ( billetarally), both carotid arteries are cut in the wound associated with haematoma. Trachea is cut at the level of cricoid cartilage associated with haematoma.
PW 24 Doctor Chittarnjan Behera has also given a report regarding the weapon of offence, the knife, got recovered by accused Virpal. He proved his opinion as ExPW 24/B in which he has opined that the injuries No.s 1,2,3 and 6 given in his post-mortem report ExPW 24/A and also in his examination-in-chief while deposing as PW 24 could be caused by said knife. This is very strong piece of evidence against accused Virpal.
PW 17 Doctor BL Choudhary has proved the MLC of accused Mohd Anis as ExPW 17/B. He has proved that there was healed wound present on the right index finger in terminal phalanyx over ventral aspect measuring in size about 2x1 centimetre. The duration of the wound was likely to be more than one weeks. The possibility of the wound due to human bite could not be commented at SC No. 107/06 Page57/80 that stage. Therefore, though the number of injuries shown in the post- mortem report ExPW 24/A show that victim put resistance and struggled with the persons who tried to overpower and kill her, PW 24 Doctor Chittarnjan Behera has also stated in the cross-examination that it was correct the deceased might have given the resistance to the assailants but the testimony of PW 17 Doctor BL Choudhary neither supports nor rules out the possibility of the victim woman biting the right index finger of accused Mohd Anis. This, perhaps, happened due to lapse of time between the date of the murder of the victim and arrest of the accused persons, the authentic medical opinion with regard to tooth bite by the victim on the index finger of the said accused was not possible.
RECOVERY OF BOODSTAINED SHIRTS AND FORENSIC REPORT PW 1 Banarsi Dass, PW7 HC Des Raj, PW 22 Inspector Sanjay Bharadwaj and PW 23 Inspector Nirmal Singh Gumman have proved that accused Mohd Anis Ahmad has produced one striped shirt which was worn by him at the time of incident. The shirt was seized by investigating officer vide memo ExPW 1/ J. PW1 Banarsi Dass has specifically stated in the examination-in-chief that accused Mohd Anis has produced his bloodstained shirt which was seized wide memo ExPW 1/J. Similarly, accused Virpal has also produced one striped SC No. 107/06 Page58/80 shirt when he took the police party to his house in village Chaupur in District Badayun which was seized by the investigating officer vide memo ExPW 20/B. The statements of PW20 HC Giriraj, PW 22 Inspector Sanjay Bharadwaj, PW 23 investigating officer Inspector Nirmal Singh and PW 25 SI Dilip Singh are corroborated in this regard. The said shirt is proved by PW 22 Inspector Sanjay Bharadwaj as ExPW 22/P2. The FSL report shows that on a number of articles seized by the investigating officer during investigation of the case from the spot and accused persons the human blood was found as indicated in FSL report ExPW 23/P2. Another FSL report of its Biology Division is proved by the prosecution as ExPW 23/P3 which shows that human blood of 'A' group was found on a number of articles seized from the spot by the investigating officer and the clothes of the victim leading to the inference that the victim was having blood group 'A'. At serial No. 12 and 13 of this report ExPW 23/ P3 the two shirts were found with human blood stains of 'A' Group. Therefore, inference can be drawn that the human blood found on the shirts recovered from accused Mohd Anis and accused Virpal may be of victim Rekha and these two accused accused persons were wearing the said shirts at the time of committing murder of the victim.
The hair were found in the hand of the deceased Rekha. The scalp hairs of the three accused persons Ibrahim @Guddu, Virpal @Raju and Mohd. Anis Ahmad were taken through doctors concerned SC No. 107/06 Page59/80 during investigation and were sent to FSL to know whether these match with the hair found in the hand of the victim. Although the FSL report ExPW 23/P2 shows that all the sample hair were found to be' Human' in origin but no opinion as to whether the hair of the three accused persons match with the hair found in the hand of the victim, was offered by CFL nor any reason is given as to why such an opinion is not possible. Therefore, this whole exercise has become futile. The CFL ought to have given proper reasons confirming whether or not the simple scalp hair of the accused persons match with the scalp hair found with the victim. The CFSL report ExPW 23/P2 is of no use and it is neither in favour or against either of the parties. MOTIVE The facts and the circumstances of the case show that the accused persons had the motive to commit robbery. As per statement of the PW1 Banarsi Dass the husband of the deceased Rekha the accused Ibrahim had worked as carpenter in his house and was removed from the work 5-6 days before the incident. This fact is not disputed on behalf of the accused Ibrahim also. PW1 has also stated in the cross-examination recorded on 19/7/2007 conducted on behalf of the accused Virpal and coaccused Brijpal that accused Virpal was known to him prior to the incident as he used to come along with accused Ibrahim at his house. He, however, did not work at his house. He had come along with the accused Ibrahim daily for about 4-5 days SC No. 107/06 Page60/80 during which accused Ibrahim worked in house. They used to come at about 9:30 AM and they both used to leave after getting the work started and he volunteered, however, they used to come in between. Therefore, the two of the said three accused persons were known to the PW1 Banarsi Dass and since they used to work in the house and come there they were known to the deceased victim also who was a housewife. Therefore, the motive for the murder seems to be the apprehension of accused persons that two of them would be identified by the victim woman after commission of robbery so the accused persons had a motive to silence her to avoid the possibility of being caught by police, later.
PRESUMPTION OF ROBBERY AND MURDER The recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well. {See Sanjay alias Kaka Vs. State (NCT of Delhi) (2001) CrLJ 1231 (SC); Baijur Vs. State of Madhya Pradesh AIR 1978 SC 522, (1978) CrLJ 646 (SC); Eara Bhadarappa Vs. State of Karnataka AIR 1983 SC 446, (1983) CrLJ 846 (SC)}. The presumption permitted to be drawn under illust 114 (a) of the Evidence Act has to be read alongwith 'important time factor'. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of killing may be permitted. The close proximity of the recovery with the murder as 'important time SC No. 107/06 Page61/80 factor' should not be lost sight of. {See Tulsiram Vs. State AIR 1954 SC 1, (1954) CrLJ 225; Gulab Chand Vs. State of Madhya Pradesh AIR 1995 SC 1598, (1995) 3 SCC 574, AIR 1995 SCW 2504} The question, whether a presumption under illust (a) to s 114 of the Evidence Act, should be drawn, is a matter which depends on the evidence and the circumstances of each case, the nature of the recovered articles, the manner of their acquisition, the nature of their identification, the manner in which the articles were dealt with by the accused, the place and the circumstances of their recovery, the length of the intervening period and the ability of the accused to explain the recovery {See Mohan Lal Vs. Ajit Singh AIR 1978 SC 1183, p 1195, 1978 CrLJ 1107; Baiju Vs. State of Madhya Pradesh AIR 1978 SC 522, 1978 CrLJ 646; Earabhadrappa Vs. State of Karnataka (1983) 2 SCC 330, 1983 CrLJ 846 (SC); State of Orissa Vs. Dayamidhi Bisoi 2003 CrLJ 123 (Ori) (DB)} Recent and unexplained possession of stolen articles can well be presumptive evidence of the charge even of murder committed at the robbery. {See Wasim Khan Vs. State of Uttar Pradesh AIR 1956 SC 400, ( 1956) 1 CrLJ 797; Alisher Vs. State of Uttar Pradesh AIR 1974 SC 1830, 1974 CrLJ 897; Ganga Singh Vs. State of Rajasthan 1977 CrLR 365 (Raj), 1977 Raj LW 178; Jangsingh Vs. State of Rajasthan SC No. 107/06 Page62/80 1984 CrLJ 1135 (Raj)} In Earabhadrappa alias Krishnappa v. State of Karnataka, 1983(1) R.C.R.(Criminal) 292 : A.I.R.1983 (SC) 446 following observations were made by Hon Supreme Court:
"11. This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under illustration
(a) to s. 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction. The prosecution has led sufficient evidence to connect the appellant with the commission of the crime. The sudden disappearance of the appellant from the house of P.W.3 on the morning of March 22, 1979 when it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments, coupled with the circumstance that he was absconding for a period of over one year till he was apprehended by P.W. 26 at village Hosahally on March 29, 1980, taken with the circumstance that he made the statement Ex. P-35 immediately upon his arrest leading to the discovery of the stolen articles, must necessarily raise the inference that the appellant SC No. 107/06 Page63/80 alone and no one else was guilty of having committed the murder of the deceased and robbery of her gold ornaments. The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under illustration (a) to s. 114 must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particulary when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property"
The learned counsel for accused Ibrahim has relied upon Ashok Kumar versus State (NCT of Delhi) 135 (2006) DLT 570 SC No. 107/06 Page64/80 (DB) wherein it was held that mere recovery of some incriminating material at the instance of accused does not lead to definite through the that he murdered the victim and no one else. But Ashok Kumar's case (supra) being in conflict with the above several authorities of Hon's Supreme Court and also distinguishable on facts, does not help accused Ibrahim.
In the backdrop of the above legal position it is to be judged whether the presumption of robbery and murder can be drawn against the three accused persons Ibrahim @Guddu, Virpal @Raju and Mohd. Anis Ahmad. In the present case the murder and robbery in question are the integral part of one and the same transaction like in Earabhadrappa's case (supra). The murder and robbery were committed in the house in question on 28/2/2006. The accused Ibrahim was arrested on 22/3/2006 and had undisputedly worked as carpenter in the house in question and as per statement of PW1 Banarasi Das was removed 5-6 days before the incident. PW1 Banarsi Dass has stated in the cross-examination that accused Ibrahim had brought with him coaccused Virpal for some days with him in the house in question. Cash, gold ornaments and other stolen articles are recovered from each of the said three accused persons Ibrahim @Guddu, Virpal @Raju and Mohd. Anis Ahmad, in less than one month of commission of robbery and murder in question. Therefore, in the light of the above legal position based on several judgements from Hon'ble Apex Court, the SC No. 107/06 Page65/80 presumption can be drawn that these three accused personsIbrahim @Guddu, Virpal @Raju and Mohd. Anis Ahmad not only committed robbery in question but also the murder of victim Rekha.
ADDITIONAL/MISSING LINK IN THE CHAIN OF CIRCUMSTANCES
It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. (See Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)) A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing 'a missing link' for completing the chain. (See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW 111.) Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of SC No. 107/06 Page66/80 circumstances to point out the guilt. (See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB)) In the backdrop of the above legal position it is to be seen whether the accused persons have accounted for the recovery of the case property effected from them.. PW20 SI Dilip, PW 22 Inspector Sanjay Bharadwaj and investigating officer PW 23 Inspector Nirmal Singh have proved by the corroborated statement that the accused Virpal took them to District Badayun and produced one bloodstained shirt which was worn by him at the time of alleged robbery and murder from his house and also got recovered looted jewellery and cash. But in answer to the questions No. 47 and 48 put to him under section 313 CrPC, accused Virpal has denied these facts. In response to question No. 50 in the statement under section 313 CrPC this accused has falsely denied that he got recovered the weapon of offence, i.e., the knife used in committing murder of the victim Rekha.
Accused Anis Ahmad in response to question No 12 in the statement in the section 313 CrPC has denied that he made disclosure a statement ExPW 1/F before the police. In response to question No. 50 he denied that he took the police party to his house and got recovered SC No. 107/06 Page67/80 cash of Rs. 35,000/--, gold set, one goal quite, two silver coins, one mangalsutra which were seized wide memo ExPW 1/1. He stated that nothing was recovered from his house or at his instance. In response to the next question put to him, he denied that he produced bloodstained shirt which were seized by police vide memo ExPW 1/J. Accused Ibrahim in response to question No. 29 and 14 has denied that the cash of Rs. 18,000/-- and gold ring were got recovered by him from his house. Therefore, the denial of accused Virpal of recovery of the knife which is weapon of offence at his instance from his house and denial of the three accused persons about the recovery of part of looted properties from them, instead of giving any reasonable and proper explanation as to how they were found in possession of the looted property, serves as additional/missing link in the chain of circumstances proved by the prosecution against the three accused persons.
CONCLUSION BASED ON PROSECUTION EVIDENCE In the light of above discussion the prosecution has failed to prove the charges against accused Brijpal and Asgar beyond reasonable doubt.
Regarding the three other accused persons the case of prosecution is quite strong. The learned counsel for accused Ibrahim has relied upon several authorities in support of his argument. He has relied upon Surinder Singh versus The State (NCT of Delhi) 2010 SC No. 107/06 Page68/80 (1) JCC 23 Delhi, in which following observations were made:
"21. This also appears to be a case where miscarriage of justice has arisen. The golden thread which runs through the web of administration of justice in criminal cases is that if there are two views on the evidence adduced in the case, the view favourable to the accused should be adopted; the paramount consideration of the court is to ensure that miscarriage of justice is prevented."
But in the present case, in view of the above discussion under different headings, it cannot be said that two views, one of innocence of accused Ibrahim and the other of his guilt emerge out of total prosecution evidence. The two views should be almost equally probable to give benefit of the view in favour of the accused to the accused. In the present case due to the fact that accused Ibrahim was employed as a carpenter and after his arrest it is he who led to the arrest of the other two accused persons, Mohd.Anis and Virpal and the case property was recovered in part from each of the three accused persons, so it cannot be said that there are two views which emerged from the prosecution case one in favour of prosecution another in favour of accused Ibrahim so that benefit of the view in favour of accused Ibrahim should go to him.
The learned counsel for accused Ibrahim has also relied upon State versus Nikhil@Rahul 2010 (1) JCC 220 Delhi wherein SC No. 107/06 Page69/80 the accused was the acquitted of the charge of murder. In that case there was no robbery committed like in the present case nor any recovery of any looted property from accused was there. Therefore Nikhil's case (supra) is distinguishable on facts. The learned counsel for accused Ibrahim has also relied upon the following authorities:
1. Shanti Lakara Vs. State 2010 II AD (Delhi) 19;
2. Gopal Singh and anr. Vs. State of Uttaranchal 2007 Cri.L.J. 1972;
3. Gulshan S/o Ahmed Ali Vs. State 119 (2005) Delhi Law Times 676 (DB);
4. Rammi @ Rameshwar Vs. State of M.P. 2000 Supreme Court Cases (Cri) 26;
5. Durga Prasad Vs. State 2009 (4) JCC 2533;
6. State through CBI Vs. Gurpal Singh 124 (2005) Delhi Law Times 282 (DB);
7. Kamal @ Pappu Vs. The State 2007 (4) JCC 3110;
8. Nissar @ Pappu Vs. State 1997 I AD (Delhi) 374;
9. Mohd. Navez Vs. State 38 (1989) Delhi Law Times 1 (DB);
10.Manjit Singh Vs. State 2009 V AD (Delhi) 347.
In Shanti Lakara's case (supra) the accused absconded from the date dead body was recovered up to the date of his arrest which was found to be a relevant fact probablising her guilt as per SC No. 107/06 Page70/80 section 8 of the Indian Evidence Act. In Gopal Singh's case (supra) the accused had good relations with the deceased and has stated to have come to the house of deceased on every next day. He had also gone to see dead body of deceased when it was recovered. It was held that had accused committed the murder it would be his natural conduct to flee from there and not to go to see the dead body of the deceased. This fact was taken one of the circumstances in favour of the accused. In Gulshan's case (supra) also non-absconding of the accused from the scene of crime was considered one of the circumstances in his favour . But in the present case what is proved in the defence evidence and also in the cross-examination of investigating officer PW 23 Inspector Nirmal Singh is that accused Ibrahim was interrogated on the date of incident in the evening in the police station. The PW1 Banarsi Dass has in his cross-examination on 16/9/2009 stated that it was wrong to suggest that accused Guddu had come to his residence for condolence on 28/2/2006 along with his neighbour Shri Sachdeva. Therefore, the fact that accused Ibrahim @Guddu came to the neighbour Shri Sachdeva or to the house of PW1 Banarsi Dass in the evening on the date of murder of deceased Rekha is not proved in the prosecution evidence.The fact that he was interrogated in the evening by the investigating officer in the police station does not necessarily absolve him of the liability. The Shanti Lakara's case (supra) and Ghopal Singh's case (supra) and Gulshan's case (supra) are SC No. 107/06 Page71/80 therefore distinguishable on facts and not applicable to the present case.
Rammi's case ( supra) relied upon on behalf of the accused Ibrahim to deal with post event conduct of witness and not of accused. It was also held in that case that the statement of the accused to the police leading to recovery of articles though admissible under section 27 of the Indian Evidence Act but admissibility alone would not render the evidence, reliable if the information given by the accused was not voluntarily given. But in the present case there is no convincing evidence emerging from prosecution evidence that any of the three accused persons was forced to give disclosure statement or any third-degree method was applied upon any of the accused persons including accused Ibrahim. Therefore Rammi's case (supra) does not help the accused persons. In Durga Prasad's case (supra) all the links in the chain of evidence were broken so benefit of doubt was given to the accused by our Hon'be High Court. But in view of the discussion made above, under different headings, it cannot be said that with regard to the three accused persons Ibrahim, Anees an accused Virpal all the links in the chain of circumstances have been broken. Therefore, Durga Prasad's case (supra) does not help the accused Ibrahim or the other accused persons. In Gurpal Singh's case (supra) there was confusion whether the death of the victim has occurred on account of accident or it was a murder. Here, in the present case there SC No. 107/06 Page72/80 is no such confusion with regard to death of victim Rekha. Therefore, Gurpal Singh's case (supra) also does not help the accused Ibrahim. Kamal's case (supra) , Nissar 's case (supra), Mohd.Navez's case (supra) and Manjit Singh's case (supra) relied on behalf of accused Ibrahim are also entirely on different facts, so inapplicable to the present case.
The arguments are addressed at length as to the contradiction in the statement of witnesses regarding arrest of accused Ibrahim and also time of the arrest. Similar arguments are addressed on behalf of other two accused persons Virpal @Raju and Mohd. Anis Ahmad. But there is no need to go into details of these arguments as there cannot be any dispute that these three accused persons were arrested by the investigating officer and were produced before learned Metropolitan Magistrate concerned and they are still in the judicial custody in this case. The recovery of case properties at the instance of the three accused persons while they were in custody is also proved. Hence, the discrepancy in the prosecution case or the contradictions in the statement of witnesses as to the time of arrest of the three accused persons and manner of arrest have no significant bearing on the fate of the case.
DEFENCE OF ACCUSED IBRAHIM In his defence accused Ibrahim has examined himself as DW1 to prove the plea of alibi that he was working at NOIDA (UP) on SC No. 107/06 Page73/80 the date of incident, i.e., 28/2/2006. He stated that he was called by Shri Sachdeva a neighbour of Shri Banarsi Dass (husband of the deceased) on his mobile phone to his residence. He reached at the house of Shri Sachdeva at about 6.30 p.m. where he and one police official from police station Malviya Nagar were present. He was shocked to hear that Rekha auntie had been murdered. He along with police official and Shri Sachdeva went to police station Malviya Nagar. He was interrogated and beaten by lathis, fists and slaps. He was detained for entire night in the police station. Next morning he was allowed to go. He was called in the police station again after every 2-3 days. Later on on 22/3/2006 he was called in the police station at about 9.30 a.m. and was detained. He was made to sign several written and blank papers. His brother-in-law and its late father came to police station to protest against illegal arrest but they were criminally intimidated by police and threatened false implication in this case, so they left the police station. He has stated that no recovery was made at his place as the light by the prosecution and he has been falsely implicated in this case and the recovery has been planted on him.
In the defence the accused Ibrahim has also produced his wife Mrs Shugufta was stated that her husband knew Shri Banarsi Dass and his wife Rekha and he used to call them uncle and aunti, respectively. On 28/2/2008 when her husband did not return from his work, she called on his mobile phone which was answered by a SC No. 107/06 Page74/80 police official from police station Malviya Nagar. Police official informed her that her husband was in the police station for investigation regarding the murder of Ms. Rekha. Her husband did not return on 28/2/2008 and came back only on 1/3/2006 at about 1.00 p.m. Her husband had gone to NOIDA for his job on 28/2/2006. After every 2/3 days her husband was called in the police station by police. On 22/3/2006 her husband was again called in the police station at about 9:30 AM and he was detained and not allowed to go. When her husband was not allowed to go and did not return till 7.30 p.m. she became panicky. She called him on his mobile phone which was switched off. Finally her brother and her late father-in-law went to police station Malviya Nagar where they found that husband was involved by the police in this case. When they protested about illegal arrest of husband, they were criminally intimidated by police and threatened false implication in this case, so they left the police station. She made frantic calls from her mobile phone No. 9312152148 to police control room, and to other different persons and received also call at her mobile phone. She stated that all the recoveries have been planted on her husband. This witness has also stated that she has written in her handwriting all the details of communication with the police and has proved the details as the ExDW 2/A. Although, the burden of proof on the accused to prove his defence is comparatively lighter to the burden of proof to prove the SC No. 107/06 Page75/80 guilt of the accused beyond reasonable doubt, required by the law, from the prosecution. But if the accused produces the defence he is required to put prove his defence to the level of preponderance of probabilities. The accused Ibrahim in his statement has stated that he was called by Shri Sachdeva neighbour of Shri Banarsi Dass, the husband of deceased Rekha. But he has not produced Shri Sachdeva as a witness in his defence nor any explanation is given as to why said Shri Sachdeva was not produced the witness. Surprisingly, in the cross-examination accused Ibrahim in answer to the first question has denied the suggestion that on 28/2/2006 he was called by Mr. Sachdeva at his residence. PW1 Banarsi Dass has stated in the cross- examination on 16/9/2009 that it was wrong to suggest that accused Guddu had come to his residence for condolence on 28/2/2006 along with his neighbour Shri Sachdeva.
Although, the investigating officer PW23 Inspector Nirmal Singh has stated that from the day of commission of the offence accused Ibrahim was under finger of suspicion. He has also admitted that on or around the date of commission of offence accused Ibrahim was called to police station for investigation and in this respect he was contacted by husband of the deceased and he had come to the police station. But the fact that on the date of incident, in the evening, the police has called accused Ibrahim in the police station for interrogation does not necessarily absolve him of his liability in the commission of SC No. 107/06 Page76/80 crime. If on the date of commission of offence there is not enough incriminating material against accused, there was no need for the police to arrest him in this case. Therefore, he was rightly not arrested and allowed to go after interrogation.
The plea of alibi of the accused Ibrahim that he was working at NOIDA is also not worth believing for the simple reason that he has not given the particulars of the place and of employer where he was working on 28/2/2008 at NOIDA. He has not produced any witness from NOIDA to prove that on the date of incident, i.e., 28/2/2006 he was working there in day time and with whom.
The statement of DW2, the wife of accused that she made mobile telephone conversation with Police Control Room and the Police Station Malviya Nagar with several police officials and got a response from them on her mobile is also not proved by any call details of her mobile phone from service provider company. The document ExPW 2/A is a document prepared by DW2 in her handwriting and is not coming out of any independent or official source. A wife would naturally try to save her husband irrespective of the fact whether he is guilty of a crime or not. Further, in the cross- examination DW2 has stated that it was correct that she had not made any representation before any court about the facts stated by her in her examination-in-chief. She also admitted it correct that she has no documentary evidence to show that on 28/2/2006 and thereafter on SC No. 107/06 Page77/80 subsequent dates accused attended his duty at any place. She also admitted that it was correct that she has not made any written complaint during the period from 28/2/2006 to 22/3/2006. These statements made by DW2 in the cross-examination make the statements made by him in the examination-in-chief, not worth believing. Therefore, the defence of the accused Ibrahim by producing himself and his wife as witness in support of his case is not worth believing to create any dent in the prosecution case.
The learned counsel for accused Ibrahim has relied upon AEG Carapiet versus A Y Derderian Aiyar 1961 Calcutta 359 (DB) wherein it was held that the party should put his case in the cross-examination of witnesses of opposite party, so much of his own case as concerns that particular witness or in which that witness had any share. He has also relied upon Babu lall Choukhani versus Caltex (i) Ltd, Aiyar 1967 Calcutta 205 wherein it was held that failure to question a witness leads to the presumption that his evidence is accepted by the opposite party who has cross-examined the witness. Further reliance is placed upon Traders Syndicate Versus Union of India a AIR 1983 Calcutta 337 in which it was held that the failure on the part of defendant's counsel to cross-examine the witness of plaintiff on the point in dispute and put his case to him will lead to inference that the defendant except plaintiffs case on the point in entirety.
SC No. 107/06 Page78/80On the strength of these three authorities the argument on behalf of accused Ibrahim is that since the prosecution has not put its case to the two defence witnesses in the cross-examination, the version of the defence of accused Ibrahim should be deemed as accepted. But I do not agree with learned counsel for accused Ibrahim as the above three authorities of Calcutta High Court relied upon by him pertain to civil cases and not criminal cases. Further, whatever may be the implication of non-putting the whole of the case by prosecution to the two defence witnesses, any implication of the statement to witnesses for not putting any particular question or the prosecution case should arise only when, the defence version and the statement of defence witnesses are reliable and proved also, which is not done in this case. Therefore, in my view, there is no adverse implication of not putting any particular question or prosecution version as a whole to the two defence witnesses , the accused Ibrahim and his wife as the defence version itself is not reliable and truthful. Therefore, AEG Carapiet's case (supra), Babu lall Choukhani 's case (supra) and Traders Syndicate's case ( supra) do not help the accused Ibrahim. RESULT OF THE CASE In the light of the above discussion, I hold that the prosecution has failed to prove its case against accused Brijpal and Asgar beyond reasonable doubt so these two accused persons are entitled to be acquitted of the respective charge framed against them.
SC No. 107/06 Page79/80As regards the remaining three accused persons Ibrahim @Guddu, Virpal @Raju and Mohd. Anis Ahmad the prosecution has been able to prove its case on the charges framed against them beyond reasonable doubt. Further, there is nothing in the defence of accused Ibrahim or in the statements under Section 313 CrPC of these three accused persons which may discredit the prosecution case or create any dent in the prosecution story. Therefore, the three accused persons Ibrahim @Guddu, Virpal @Raju and Mohd. Anis Ahmad are convicted under sections 394/302/34 IPC. Let they be heard separately on the question of sentence. The judgment be sent to the server (www.delhidistrictcourts.nic.in).
Announced in the
open court on 11/06/2010 ( S.K. SARVARIA )
Additional Sessions Judge-01/South
Patiala House Court/New Delhi
SC No. 107/06 Page80/80