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Delhi District Court

56. Recently In Ram Niwas vs State, Crl. Appeal No. on 25 November, 2013

                                                                  1

  IN THE COURT OF SH. SANJEEV  KUMAR: ASJ­01, NORTH: ROHINI 
                                                   COURTS: DELHI
                                                                                                       SC No.113/2011.
                                                                                          U/S.365/// IPC.
                                                                                                         FIR No.09/2011.
                                                                                         PS­ K.N. KATJU MARG.

STATE 
                                                                  VERSUS
(1)         SHAHNAZ  W/o Mukhtiar Ali,
            R/O. F­2/98, Sector­16, Rohini, Delhi.
(2)         SHAKIL @ BHURA S/o Late Bundu Khan,
            R/O. A­37, Shahbad Dairy, Delhi.
(3)         SHAHEED @ KALU S/o Late Bundu Khan,
            R/O. H.NO.302, Barola Village, Near Azadpur Mandi, 
            Delhi.                                                                      ... Accused
                                                                             Date of Institution:03.05.2011.
                                                                              Date of Argument:06.11.2013. 
                                                                           Date of Judgment :25.11.2013.
JUDGMENT:

1. The brief facts of the prosecution case are that, on 18.10.2010, Shahnaz (accused no.1) has filed a complaint in the PS K.N. Katju Marg regarding missing of Rakesh Gupta (victim) and on the basis of said complaint DD no.34 was recorded by the duty State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 1 of 86 2 officer and the said DD was assigned to SI Murki Lal (PW23). He sent the said information to Zip­Net and also got issued hue and cry notice. Photograph s of the victim was sent at Doordarshan and wireless message were sent all over India, but police did not get any information about the victim Rakesh.

On 06.01.2011, statement of complainant Prempal (PW3) was recorded by SI Murki Lal in which he had stated that his brother in law namely Rakesh Gupta was residing with one Shahnaz since last two years in Delhi and also working with her and about five/six days prior to Raksha Bandhan his brother in law Rakesh came to him and thereafter he had not visited to him and in the month of October 2010 he has received a phone call from Shahnaz and she had informed that Rakesh Gupta had left her house fifteen days ago after quarreling and in the quarreling she had broken hands and legs of Rakesh Gupta. Shahnaz had also informed her in laws house on phone number 9919881346 and informed that Rakesh Gupta had gone somewhere else after taking money and due to this his brother in law Laxmi Shankar Gupta came to him and they went to the house of Shahnaz, but she was not found there. They met with mother of Shahnaz, but she also did not give any State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 2 of 86 3 satisfactory reply to him and on 18.10.2010 Shahnaz came with him to report about missing of Rakesh Gupta. Thereafter they also tried to contact Shahnaz but she had switched off her mobile phone and he further stated that once or twice Rakesh had offered him he had strained relationship with Shahnaz and her two brothers and therefore, he suspect that Shahnaz and her brothers Shahid @ Kalu and Shakeel @ Bhura have killed Rakesh Gupta.

SI Murki Lal made endorsement on the said statement and got registered the FIR of the present case. On 07.01.2011 SI Anuj Nautiyal, Special Crime Team received secret information that after committing murder of the victim Rakesh Gupta, dumped his dead body somewhere and he arrested accused Shahnaz and her brother Shakeel @ Bhura u/s. 41.1(a) Cr.P.C. SI Anuj Nautiyal lodged DD No.19A in this regard at PS - K.N. Katju Marg on 07.01.2011 after which investigations of the present case transferred to Inspector Yashpal Singh.

2. Inspector Yashpal Singh had interrogated both the accused persons Shahnaz and Shakeel @ Bhura and arrested them. Both the accused persons have confessed their involvement in the crime of murder of victim Rakesh Gupta and dumped his dead body State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 3 of 86 4 in a septic tank gutter near MCD Sauchalaya and pointed out the said place and from the said place one dead body was recovered, which was identified by Rahul Gupta, brother of victim Rakesh Gupta as the said dead body was of Rakesh Gupta. IO had prepared the site plan of the spot of recovery and sent the dead body for postmortem examination at BJRM hospital. Accused also got the recovered the cricket wicket by which they killed the victim from the house i.e. Flat No. G­6/97, Sector­15, Rohini. He seized the said the rent agreement of taking of the said flat No. G­6/97, Sector­15, Rohini, Delhi on rent from Meena Handa. He got conducted the postmortem examination of dead body and also obtained subsequent opinion regarding the weapon of offence i.e. cricket wicket.

On 03.01.2011 he arrested the accused Shahid @ Kalu and he sent the exhibits to the FSL. Collected the customer application form of mobile phone number 9958758437 of victim Rakesh Gupta and 9871559455 of accused Shahnaz. Finally after completion of the investigation filed the chargesheet u/s. 365/302/201/34 IPC against the accused persons Shahnaz & Shakeel @ Bhura and u/s. 201/34 IPC against accused Shahid @ State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 4 of 86 5 Kalu.

3. After compliance of provisions of Section 207 Cr.P.C., ld. MM has committed the case to the court of Sessions, which in turn was assigned to the predecessor of this court.

4. Vide order dated 14.07.2011, by my ld. Predecessor, charges for offence punishable u/s.365/302/201/34 IPC were framed against all accused persons, to which they pleaded not guilty and claimed trial.

5. In order to prove its case, prosecution has examined 27 witnesses i.e. PW1 Meena Handa, PW2 Hari Om, PW3 Prem Pal, PW4 Dr. K. Goel, PW5 Rahul Gupta, PW6 Naman Sharma, PW7 Raj Kamal Handa, PW8 Ct. Sushil Kumar, PW9 Ct. Dinesh, PW10 Vikas @ Vicky, PW11 Krishan Dahiya, PW12 Mukesh Kumar, PW13 Ct. Satish, PW14 HC Surender Pal, PW15 Ct. Giriraj,PW16 ASI Narender Singh, PW17 HC Shiv Ram, PW18 SI Manohar Lal, PW19 SI Vishesh Kumar, PW20 HC Surender Singh, PW21 Poonam Sharma, PW22 SI Anuj Nautiyal, PW23 SI Murki Lal, PW24 Inspector Yashpal Singh, PW25 WASI Radha Rani, PW26 Ravinder and PW27 Vishal Gaurav

6. Thereafter statement of accused persons u/s. 313 State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 5 of 86 6 Cr.P.C. were recoded in which they pleaded their innocence and denied all the incriminating evidence. Accused Shahnaz has stated that accused Rakesh was her employee and he has gone somewhere after settling his account and she do not know where he has gone. Accused Shahnaz consented for leading evidence in her defence Accused Shahnaz in support of her evidence had examined DW1 Dharampal.

7. Accused Shahid and Shakeel denied all the incriminating evidence in their statement and claimed themselves innocent and did not prefer to lead any evidence in their defence.

8. Arguments heard from Shri A.K. Gupta , Ld. Addl. PP for the State and Shri Gurmit Singh Hans, ld. Counsel for accused Shahnaz and Shri Sudhir Shokeen, ld. Amicus Curiae for accused persons Shahid @ Kalu and Shakeel @ Bhura.

9. It is argued by Ld. Add.PP for the State that from the testimonies of PW1 and PW7 R it is proved that accused Shahnaz and victim were residing in illicit relationship at their flat. From the testimony of PW5 it is proved that Shahid and Shakil caught hold victim Rakesh and Accused Shahnaz beaten victim with cricket wicket on 05.10.2010 thereafter victim went missing. And later on his State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 6 of 86 7 dead body 0f victim Rakesh and the cricket wicket by which victim was beaten was recovered at the instance of accused Shahnaz and Shakeel. Hence prosecution has proceeded complete chain of incriminating circumstances therefor all the accused are liable to be convicted.

10. On the other other hand Ld. Counsel of accused Shahnaz and Ld. Amicus Curie has argued that testimony of PW5 is highly unreliable because prior to his deposition in the court he had not stated that on 05.10.2010 he saw accused persons giving beating to victim. He further argued that prosecution has failed to proved that recover dead body is of Rakesh as DNA report is inconclusive and body was highly decomposed hence was beyond identification. He further argued that no disclosure statement was made by accused persons and same is manipulated and no dead body was recovered at their instance and same has been planted. Ld. Counsel further argued that testimony of witnesses is full of contradiction and improvement hence highly unreliable. Hence in these circumstances accused are entitle to be acquitted.

11. I have heard the argument and gone through the record.

As stated above the prosecution has examined 27 witnesses and the State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 7 of 86 8 case of the prosecution is mainly based upon the circumstantial evidence as there is no eyewitness who had seen the accused persons committing murder of Rakesh Gupta. In order to prove its case prosecution examined witnesses.

12. PW1 Meena Handa is the landlord of Flat No. G­7/97, Ground Floor, Sector­15, Rohini, Delhi and she further deposed that on 16.09.2010 the said flat was taken on rent by Ajay on a monthly rent of Rs.6,000/­ and for which a rent agreement Ex.P1/1 was executed. She further deposed that on 10.10.2010 her husband had gone to Ajay to collect the balance rent of Rs.2000/­ and there Anita wife of Ajay met and told that accused had gone from the house after quarreling with her and she assured to vacate the premises after some day. PW1 further deposed that the actual name of Anita is Shahnaz and that of her husband is Rakesh Gupta. She further deposed that on the next day, she again visited to the house of Anita and noticed about changing her conduct and asked her to vacate the house at the earliest. She identified the said Anita as accused Shahnaz. She further deposed that on 08.11.2012 she along with her husband gone to PS­KN Katju Marg and there police made inquiries and they supplied rent agreement, copy of application, State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 8 of 86 9 Identity card and copy of tenant verification. She further deposed that on 15.01.2011 police came to their flat and conducted proceedings and clicked some photographs and also taken measurements of the flat.

In her cross examination, she admitted that she had gone through the contents of Ex.PW1/3 i.e. rent verification form and stated that the form was deposited at the PS by property dealer Pawan Kumar and her husband. She further stated that, Ajay had taken this house for himself, wife and two children and did not disclose any other person might be residing in the said flat. Since no suggestion has been given to the witness that his tenant Ajay was not Rahul and his wife Anita is not Shahnaz or that Ajay and Anita were not residing in the house, hence, it remained unrebutted that victim Rakesh and accused Shahnaz were residing in the said house No.G7/97 Sector 15 Rohini as husband and wife and accused Shahnaz told that victim Rakesh had left the house after quarreling with her.

13. PW2 Hari Om is the witness of recovery of dead body.

He had deposed that on 07.10.2010, he was posted as safai karamchari at MCD Center, Daulatpur and on that day, police took State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 9 of 86 10 him to Septic Tank in Sector­26, Rohini. Satish and Vijay safai karamcharis of their department were also with him and their officer Krisan Dahiya. He further deposed that accused Shahnaz and Shakeel correctly identified by him, were leading to the Septic Tank of Sector­26, Rohini. They told that the dead body was lying in the septic tank. He broken the said septic tank and brought out one dead body kept in a gunny bag and said dead body was identified by Rahul Gupta as of his brother Rakesh Gupta.

In his cross examination, he stated that gunny bag was opened in his presence and nothing was found from the said bag except the dead body of his brother. He further stated that police officials came to his office at about 4pm and he accompanied with the police officials as per the directions given by his senior officers namely Krishan Dahiya. He denied the suggestion that accused persons were not present at the time of recovery of dead body.

14. PW3 Prempal is the complainant and he deposed that in the month of October 2010 he had gone to his native village at Chandpur, District­Etah, U.P., and received a telephone call from Rahul Gupta that Rakesh Gupta was missing and then he replied him that, he is coming to Delhi. Thereafter on 06.10.2010 he reached State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 10 of 86 11 at Delhi and contacted Dharampal friend of Rakesh Gupta, then, he came to know that Rakesh Gupta was residing with a lady Shahnaz at G­6/97, Sector­15, Rohini, Delhi. Thereafter, he reached at the said house and met with accused Shahnaz, but she did not allow her to enter in the house and told them that, she had broken the legs and hands of the Rakesh Gupta and had thrown him out of the house and she will inform if Rakesh Gupta will return to her house. Thereafter, he returned back to his house, but when he did not receive any call from accused Shahnaz, he again went to her house, but she was not at her house. He also met mother of accused Shahnaz and who had also not given any satisfactory answer. Thereafter, he tried to search Rakesh Gupta, but he could not be traced. Dharampal also told the name of brothers of accused Shahnaz as Shahid @ Kalu and Shakeel @ Bhura, who used to live with accused Shahnaz. Thereafter, he went to the PS and police recorded his statement Ex.PW3/A and he also stated that on 07.01.2011 police called him at PS and accused persons Shahnaz and Shakeel @ Bhura were present in the PS and police interrogated them and accused Shahnaz made her disclosure statement that she had committed murder of Rakesh Gupta along State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 11 of 86 12 with her brothers Shakeel @ Bhura and Shahid @ Kalu. Police recorded her statement Ex.PW3/C and also interrogated accused Shakeel @ Bhura and recorded his disclosure statement Ex.PW3/D and both the statements were signed by him. Thereafter, both the accused persons led the police party and him and Rahul Gupta to Sector­26, Rohini, MCD Public toilets and one gunny bag was taken out from the Septic Tank with the help of MCD sweepers and at the instance of accused persons Shahnaz and Shakeel and same was checked and dead body of Rakesh Gupta was found in a gunny bag. He and Rahul Gupta identified the dead body of Rakesh Gupta and thereafter dead body was sent to mortuary. After postmortem examination of dead body was handed over to him and Rahul Gupta vide memo Ex.PW3/F. He further deposed that on 09.01.2009, he along with Dharampal, Rahul Gupta and police officials and accused Shahnaz reached at house No. F­2/98, Sector­16, Rohini, Delhi. There one cricket wicket was recovered at the instance of accused Shahnaz by which she had committed murder of Rakesh Gupta with her brothers. Police seized the same vide memo Ex.PW3/G. He further deposed that one lining cream colour shirt and one jeans pant of blue colour were recovered from the bathroom of the said house State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 12 of 86 13 at the instance of accused Shahnaz, which were of victim Rakesh Gupta, which were taken out from his body after committing his murder and accused Shahnaz told that she washed off the same. He identified the said jeans pant and shirt as that of victim. In his cross examination, he had stated that he does not remember the particular date on which he had gone to his native village in October 2010. He further stated that he received telephone call from his brother in law Rahul Gupta at about 8/9pm and the telephone call was lasted for about five minutes and Rahul Gupta informed him that Rakesh Gupta had been killed. He further stated that he reached at his house at about 5/6am on 06.10.2010. Dharampal told him that Rakesh Gupta was residing with Shahnaz in Sector­15, Rohini. He went to meet the Dharampal alone. He further stated that he reached at the house of Shahnaz at about 8/9pm with Dharampal. He further deposed that after visiting to the house of Shahnaz second time on 08.10.2010 he visited many times to the house of accused Shahnaz, but same was found locked. He further deposed that on 08.10.2010 he along with his brother in law Lakshmi Shankar, Rahul Gupta and Dharampal and Udai went to the PS - K.N. Katju Marg for lodging the complaint about missing of his brother in law Rakesh Gupta, but State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 13 of 86 14 police finally did not lodge the complaint as they were asking to prove of murder of his brother in law Rakesh Gupta by accused Shahnaz. He further deposed that on 18.10.2010 they remained present all day in the PS and also called their lawyer, thereafter only police recorded report regarding missing of his brother in law Rakesh Gupta. He further stated that police did not record his statement on 18.10.2010. He admitted that his statement Ex.PW3/A is recorded by the IO on 18.10.2010. He further deposed that on 18.10.2010 he handed over photographs of the Rakesh Gupta to the police which is affixed on Ex.PW3/B. He further deposed that on 07.01.2011 he reached at PS - K.N. Katju Marg at about 3/4 pm with his brother in law Rahul Gupta and after reaching at the PS they went in one room, where police interrogated the accused persons and they remained there about two minutes and they were asked to sit in another room where they remained for two hours and in their presence no statement of any person was recorded in the room, where accused persons Shahnaz and Shakeel were inquired. He was sown document Ex.PW3/C and said document was signed by him at point A at the place of recovery of dead body. He further deposed that he reached at Sector­26, Rohini near MCD toilet at about 5/6 pm. State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 14 of 86 15 Accused persons Shahnaz and Shakeel were already present in the police Gypsy. His signatures was taken on some documents. He further stated that dead body was identified by him not by Rahul. He denied the suggestion that the dead body was highly decomposed and it cannot be identified and also denied the suggestion that he identified the dead body at the instance of police officials.

15. PW4 Dr. K. Goel, conducted the postmortem examination on the dead body of deceased Rakesh Gupta and on external examination there were communitted fracture of both bones (tibia and febula) of both legs at about junction of upper and middle rd 1/3 . Fracture ends showed bruising. Any other external ante mortem injury could not be made out due to advance stage of decomposition.

He further stated on external examination that, there was depressed fracture of right parietal bone in area 6X4cm at middle part placed slightly oblique with fisher fracture right temporal and right frontal bone extending from there depressed fracture. On examination bruised area was seen at fracture side of the bones. The meninges were decomposed. Brain matter was liquified and poured out. Only little amount of the brain matter was found adhere State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 15 of 86 16 to cranial walls. He further deposed that, all the chest and abdominal viscera were hight putrefied with stage of colliquative necrosis. Stomach was empty with fragile walls.

He further opined that, the cause of death was cranio­ cerebral injury as a result of blunt force impact over head. Cranial injury and fracture of leg bones were ante mortem in nature caused by blunt force impacts. The definite opinion regarding time since death cannot be opined. However, approximately it is 2 to 3 months. The gunny bag and two teeth of the deceased were preserved, sealed and handed over to the police. His detailed report is Ex.PW4/A. He further deposed that on 05.02.2011 Inspector Yashpal Singh tendered an application through Ct. Dinesh Kumar regarding opinion of weapon of offence along with one sealed pullanda inscription of which was YP at four places. On opening the pullanda it was found to contain one wooden danda tapering at one end, used in the game of cricket as wicket. The length of the wicket was about 31 inches and circumference was about five inches. One of the end was round and other one was tempered into blunt pointed tip. There were national flag picture of different countries affixed over State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 16 of 86 17 it with paper and at few places at upper part light brownish are was seen. Further, he had opined that the injury over skull and both legs mentioned in the PM Report Ex.PW4/A were possible by this object or by similar such other object. The wicket was resealed and handed over to Ct. Dinesh Kumar along with sample seal and the opinion is Ex.PW4/B. He has also identified the weapon of offence as Ex.P1. He was not cross examined.

PW5 Rahul Gupta is the brother of victim. he had deposed that on 05.10.2010 his brother Rakesh Gupta called him on his mobile phone and informed that he was abducted by one Shahnaz and his brothers Shakeel @ Bhura and Shahid @ Kalu and on the same day at about 7.30am he reached at G­6/97, Sector - 15, Rohini, Delhi and saw that accused Shahnaz was hitting cricket wicket on the head and other part of the body of his brother Rakes Gupta and remaining accused persons hold his brother by his legs and hands and due to fear he ran away from there and came at the house of his brother in law Prem Pal and he informed him by phone as PW3 Prempal had gone to his village Chandpur, District Etah, U.P. On the next day, his brother in law Prempal reached at Delhi and he also called his brother Laxmi Shankar Gupta from the village State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 17 of 86 18 and they along with two/three persons gone to the house of accused Shahnaz and she told that Rakesh Gupta had gone somewhere after quarreling with her on 05.10.2010 itself and she told that she had broken the hands and legs of Rakesh Gupta. Thereafter on 07.1.2011 police called him and reached at Sector­26, Rohini, Delhi, where accused persons were in custody and at the instance of accused persons, they reached near MCD toilets, Sector­26, Rohini, where one gunny bag was recovered from the septic tank gutter in which dead body of his brother was found and he identified the same and police recorded his statement Ex.PW5/A. He further stated that police recorded disclosure statement of Shahnaz as Ex.PW3/C and that of accused Shakeel Ex.PW3/D. He further deposed that after postmortem examination, dead body was handed over to him vide memo Ex.PW3/F. Accused Shahid also pointed out the place i.e. G­6/97, Sector­15, Rohini, Delhi where they have committed murder of Rakesh Gupta with co­accused Shakeel and Shahnaz. He further deposed that on the next day of the postmortem examination, accused Shahid led them to Flat No. F­2/98, Sector­16, Rohini, Delhi and from where at the instance of Shahnaz one cricket wicket was recovered from the room and she informed that, with the help of said State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 18 of 86 19 cricket wicket, she had committed murder of deceased Rakesh Gupta and same was seized. He identified all the case properties and all the three accused persons.

In his cross examination he had deposed that his brother was doing the job of embroidery at Sector­18 with Sanjay till his death. He further stated that had not told to the police on 05.10.2010 that his brother had made a call to him and informed that he has been kidnapped by the accused persons. He further stated that he received the said call from the mobile number 9958758437 on his mobile number 8860540516 at about 7.30pm when he was at the house of his brother in law at Nand Nagri. He told to the police that accused Shahnaz was hitting his brother with cricket wicket and accused Shahid was holding his hands and accused Shakeel was hold his legs. He was confronted with his statement Ex.PW5/DA, where the said facts were not recorded.

In his cross examination, he stated that, his brother was living in Delhi when he was 8­9 years old. He further stated that he has met only once with his brother during his stay in Delhi about 2­3 months prior to his death. He met him in the shop of Embroidery at Sector­18, Rohini, where he was working. He admitted the State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 19 of 86 20 suggestion that, he does not know where his brother was residing prior to his death. He further stated that his brother made call to him on 05.10.2010 at about 7.30 pm and he left the house just after ten months of receiving the call and reached at Sector­15, Rohini by auto after one hour he went to Sector 15 as his brother was probably working with Shahnaz, who was residing at Sector­18. He saw the incident of beating of his brother inside the flat, which was situated at the ground floor, but he did not try to save his brother, as he was under fear that if he will save his brother and enter inside the flat, he might be also given beatings. His brother was raising alarm. The accused persons did not see me. His brother also had not seen him. Accused had put cloth in the mouth of his brother at the time when he saw him. He had seen his brother from the distance of about 8­10 feet. But he did not go to police nor he made call on 100 number and only when he reached at the spot, he discloses the entire incident to his sister and Jija through phone. He denied the suggestion that no such incident dt.05.10.2010 happened and therefor he had not told the said facts to police.

He denied the suggestion that he had accompanied accused Shahnaz along with his brother Laxmi Shankar Gupta and State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 20 of 86 21 his Jija for recording complaint of missing of his brother Rakesh Gupta. He volunteered that Shahnaz engaged an advocate for lodging the complaint of missing of his brother. He came to know about missing report lodged by Shahnaz on 18.10.2010. he further deposed that on 06.01.2011 he was called by the Police officials by phone and thereafter they came to know about Rakesh Gupta and he reached at the PS on 07.01.2011 and found that accused persons Shahnaz and Shakeel were present there. He received the telephone call from the PS in the evening time on 06.01.2011. He cannot tell the name of the caller. But the caller asked him to reach Delhi immediately. He boarded on bus on the same day i.e. 06.01.2011 at 7 pm and reached at Sector­26 where the dead body was recovered and when he reached at the spot, he noticed that accused Shahnaz and Accused Shakeel were sitting inside the police gypsy and villagers were gathered there. He further stated that he reached at New Delhi Railway Station at 8 am on 07.01.2011 and he went to the house of Jija at Nand Nagri and he reached at PS K.N. Katju Marg at about 11 am and remained there for about two/three hours. He volunteered that accused Shakeel and Shahnaz were remained there. He further stated that they reached at the spot State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 21 of 86 22 where dead body was recovered at about 4/4.30 pm by police gypsy. The dead body of his brother was recovered from the gutter near the public toilet. The gunny beg was opened by the sweepers. Just after opening the gunny beg and seeing the dead body he identified the dead body he identified the dead body. He denied the suggestion that dead body was not of his brother. He further stated that he had singed on some documents at the place of recovery of dead body. But he does not remember the number of documents, which were prepared there. He denied the suggestion that photographs Ex.PW6/1 to Ex.PW6/6 are not the photographs of dead body of his brother.

16. PW6 Naman Sharma is the videographer engaged by police for recording the proceeding of recovery of dead body of victim Rakesh Gupta. He deposed that on 07.01.2011 he reached at MCD Sulabh Sauchalaya, Sector­26, Rohini, where he found that police officials and public persons and accused persons Shahnaz and Shekeel. Both the accused persons step down from the police gypsy and went to the gutter in the back side of Sauchalaya and pointed out the place where is the dead body. Two persons from the municipality were also present they opened the opening of the State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 22 of 86 23 gutter, same was very small and body could not be brought out from the gutter, so two persons from the municipality had broke open the same and dead body of one Rakesh Gupta was taken out. One Rahul who is the brother of Rakesh Gupta had identified the dead body. He made video film of the whole proceedings and later on handed over CD to police, which was seized by the police vide memo Ex.PW6/A. In is cross examination he had stated that he stopped the camera many times and for each break separate clip was prepared and he put the same into the CD and he had done videography for about 10 minute. He also stated that when he reached at the spot public person and few police person were present. The accused person were brought after 5­10 minute. He further stated that he know only one person as relative of deceased namely Rahul and he noticed him when on seeing dead body he started weeping vehemently. He further stated that he gave four CDs to police. He denied the suggestion that CD EXPW6 is not related to the incident of recovery of dead body.

17. PW7 Raj Kamal Handa is the husband of the PW1 Meena Handa the landlord of house number G­6/97, Sector ­15, State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 23 of 86 24 Rohini, Delhi and almost deposed the same facts as deposed by PW1 Meena Handa. He has also identified the accused Shahnaz as Anita who was residing in his house with his tenant Ajay. Besides this he also deposed that on 08.01.2001 police called him at flat no.G6/97 and he met with police and accused Shahnaz there and he opened the flat and accused pointed out the inner room and told that she along with her brother had murdered Ajay @ Rakesh Gupta by beaten him with the cricket wicket on the head on 05.10.2010 and pointed out memo EXPW5/C was prepared.

In his cross­examination he denied the suggestion that Ajay and Rakesh are different person. He deposed that he returned the security amount of Rs 20,000/­ to Shahnaz.

18. PW8 Ct. Sushil Kumar is a formal witness as he has only entered the particulars of rukka into the computer and typed the FIR of this case, which is Ex.PW8/A.

19. PW9 Ct. Dinesh is a formal witness as he deposed that on 24.1.2011 one Naman Sharma handed over him video recorded cassette and he gave the same to the IO vide memo Ex.PW6/A and also deposed that, on 05.02.2011 he collected one pullanda sealed with the seal of YP from the MHC(M) and IO handed over me one State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 24 of 86 25 application for taking the opinion from BJRM hospital. He went to BJRM hospital and produced the same before the doctor concerned and doctor have his opinion and handed over to him sealed pullanda sealed with the seal of KG BJRM Hospital Mortuary. He was not cross examined.

20. PW10 Vikas @ Vicky has deposed that he does not remember the month, but it was 7th of the month in the year 2010, near the Navratra. He had come to the house at 3.30pm. Police along with accused Kalu came to his house and called him outside his house and made inquiries from him and he told that, he knew accused Shahid @ Kalu for sometime, after making inquiry from them allowed to go.

Thus he did not support the prosecution case and was declared hostile and was cross examined by LD. Addl.PP. In his cross examination he admitted that he knew accused persons Shahnaz, Shahid and Shakeel. He denied the suggestion that on 07.10.2010 at about 3.30 am when he was going to his house he reached in the gali in Sector - 26, near his house and there accused Kalu, Bhura and their sister Shahnaz met them and Bhura asked him to help them in lifting one gathri lying near their house in the gali and State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 25 of 86 26 when he inquired to them as what is there in the gathri and on this accused Bhura and his sister accused Shahnaz stated that gathri is carrying some dirty cloths and waste and since Navratra to begin from tomorrow they are cleaning the house and wanted to throw the same behind the Sauchalaya. He helped them for doing so. He was not cross examined by defence. Thus his testimony is not useful to prosecution.

21. PW11Krishan Dahiya has deposed the same facts ad deposed by PW2 Hariom.

22. PW12 Mukesh Kumar deposed that deceased Rakesh Kumar was working in a boutique at sector­18, Rohini, Delhi and was residing with accused Shahnaz as husband and wife and Rakesh Gupta has also made his ID proof in the name of Ajay Kumar and he started residing at Flat number G­6/97, Sector­15, Rohini, Delhi. He further deposed that on 10.10.2010, brother of Rakesh i.e. Rahul, his jija Prempal reached at G­6/97, Sector­15 Rohini. He was found locked and later on they contacted him and inquired from about Rakesh Gupta. He further deposed that after one week, all the aforesaid persons came to him and they went to PS to lodge missing report. They met accused Shahnaz and she told that a quarrel had State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 26 of 86 27 taken place between her and Rakesh and she had broken his legs and Rakesh had gone from there. He was declared hostile by Ld. Addl. PP for the State.

In his cross examined by ld. Addl. PP he denied the suggestion that on 05.10.2010 he received a telephone call from Shahnaz and she told that a quarrel had taken place with Rakesh Gupta and she had broken his legs. Further he was drawn attention to statement Ex.PW12/A and then he admitted that date of receiving of call was 05.10.2010.

In is cross examined by Ld. Defence counsels he stated that on 18.10.2010 accused Shahnaz did not disclose that there was a quarrel between her and Rakesh Gupta and she had broken his legs and he vol. stated that said fact was told to him by Shahnaz th th on phone in between 5 to 10 October 2010 at about 10 pm and they did not disclose said fact to police while lodging complaint on 18.10.2010.

23. PW13 Ct. Satish is a formal witness and he only took the exhibits to the FSL.

24. PW14 HC Surender Pal is also a formal witness as he had only recorded the FIR of this case, which he proved as State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 27 of 86 28 Ex.PW14/A.

25. PW15 Ct. Giriraj, had participated in the investigation of this case with the IO on 09.01.2011 and deposed that on that day they with accused Shahnaz and Shakil @ Bhura went to F2 block sector 16 Rohini and accused Shahnaz pointed out flat no. F2/98 and produced one cricket wicket, blue jeans pant and lining shirt of deceased Rakesh Gupta which were seized by IO and he also deposed that on 13.01.2011 he along with IO were present at CNG Pump, Sector­11, Rohini and went in also with regard to the arrest of accused Shahid @ Kalu jhuggi and arrested one boy whose name was revealed as Shahid @ Kalu. He proved the arrest memo of accused Kalu as Ex.PW15/A, that of personal search memo as Ex.PW15/B and that of disclosure statement Ex.PW15/C and pointing out the place of recovery of dead body by accused Kalu as Ex.PW15/D. In his cross examination he had stated that joined the investigation at about 8.55am on 09.01.2011 with Inspector Yashpal, Ct. Mamta, Dharampal and Prempal were present in the PS. He further stated that accused Shahnaz was also present there and they reached at the flat at 10am and wicket was lying on the left side of State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 28 of 86 29 the entrance.

26. PW16 ASI Narender Singh is a formal witness as he was the MHC(M) and proved the various entries regarding the depositing the various pullandas in the malkhana and sending the same to the FSL.

27. PW17 HC Shiv ram is also MHC(M) and he deposed that on 01.03.2011 he handed over pullanda to Ct. Prem for depositing the same in the FSL, Rohini, Vide RC No.22/2/11 and same is Ex.PW17/A and he also obtained the receipt and copy of receipt is EPW17/B. He was not cross examined.

28. PW18 SI Manohar Lal is a formal witness as he only prepared the scaled site plan of the place from where dead body was recovered and proved same as Ex.PW18/A and also that of place where deceased Rakesh Gupta was murder and prepared site plan and proved as Ex.PW18/B. In his cross examination he denied the suggestion that scaled site plan Ex.PW18/A and Ex.PW18/B were not prepared according to the rough notes and measurements.

29. PW19 SI Vishesh Kumar is the Incharge--Mobile Crime Team and deposed that on 07.01.2011 he along with his staff reached at spot i.e. Septic Tank, near Sulabh Sauchalaya, State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 29 of 86 30 Sector­26, Rohini, where they met with IO Inspector Yashpal along with his other staff and accused has already pointed out the towards the septic tank that they had thrown the dead body there. IO got broken the said tank from the MCD officials and from that one gunny bag was recovered and from inside the said bag one dead body of male was found. Thereafter, he prepared his report Ex.PW19/A. In his cross examination he had stated that they received a message to reach at Sector­26, Rohini and they started from there at about 4.15pm and reached at the spot at about 4.30/5pm.

30. PW20 HC Surender Singh is a formal witness and he only recorded DD No.34A EXPW20/A.

31. PW21 Poonam Sharma, Senior Scientific Officer (Biology), FSL, Rohini, Delhi and proved her FSL Report as Ex.PW21/A.

32. PW22 SI Anuj Nautiyal had deposed that on 07.01.2011 he was posted as SI in Special Team, Crime Branch and at about 8am a secret informer came to his office and informed him that one Shahnaz got recorded the missing report of Rakesh Gupta in October 2010 in PS K.N.Katju Marg, but said Shahnaz along with her brother had killed Rakesh Gupta and disposed off the dead State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 30 of 86 31 body. But the said informer told that one brother of Shahnaz had already left the Delhi and Shahnaz and her brother Bhura is also trying to leave Delhi and if raided they can be apprehended. He confirmed the facts from PS K.N.Katju Marg and lodged this information in DD register and informed to senior officers and senior officers instruct him to take the necessary action. Thereafter he along with WASI Radha Rani, HC Jai Bhagwan, HC Hari Kishan and secret informer left the office in government gypsy and he gathered the information and came to know that Shahnaz and Bhura would come near Rithala Metro Station and thereafter at about 3pm they reached at Rithala metro station and at the instance of secret informer apprehended the accused Shakeel @ Bhura and Shahnaz vide arrest memo Ex.PW22/A and Ex.PW22/B. He recorded their disclosure statement Ex.PW22/E and Ex.PW22/F and thereafter they reached at PS­K.N. Katju Marg and informed to the SHO. He along with Shakeel and Shahnaz reached at MCD Sauchalaya, Sector­26, Rohini, where SHO, IO and other staff of PS - K.N. Katju Marg were also reached. Thereafter accused had pointed out towards the septic tank behind the MCD Sauchalaya and told that they had dumped the dead body of Rakesh in the intervening night of 7/8.10.2010. MCD State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 31 of 86 32 officials were called and they had taken out the dead body of a male from inside the septic tank after breaking the same from outside and the dead body was wrapped in a bed sheet and gunny bag. One Rahul Gupta brother of the deceased had identified the dead body.

In his cross examination he had stated that he reached at the Rithala metro station at about 2.45/3pm, secret informer informed them that accused persons Shahnaz and Shakeel @ Bhura would reach at Rithala metro station. They remained at Rithala metro station for about 45/50minutes. He prepared documents Ex.PW22/A to Ex.PW22/F at the spot. He has recorded the disclosure statement of accused Shahnaz. He denied the suggestion that Ex.PW22/A to Ex.PW22/F were prepared at PS K.N.Katju Marg itself.

33. PW23 SI Murki Lal is the initial IO as well as witness of the recovery of dead body and has deposed that same facts with regard to the recovery of dead body as deposed by the other witnesses. He has also deposed that initially on 18.10.2010 one missing report vide DD No.34A Ex.PW20/A was assigned to him. He sent the information on the Zip­net and got issued hue and cry notice and sent wireless messages. He further deposed that on 06.01.2011 Prem Pal came to the PS and he suspect upon the accused persons State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 32 of 86 33 that they have kidnapped his brother in law Rakesh Gupta. Thereafter, recorded the statement of Prempal Ex.PW3/A and prepared the rukka Ex.PW23/B and got registered the FIR.

In his cross examination, he stated that he was present in the PS on 07.01.2011 and SHO directed him to join the investigation and at about 4.15pm, SI Anuj Nautiyal had recorded the DD at PS K.N. Katju Marg. He handed over the case file to Inspector Yashpal Singh at about 4.30/4.45pm and he alogn with Inspector Yashpal Singh went to Sulabh Sauchalaya, Sector­26, Rohini, Delhi on official vehicle i.e. Tata - 407. He further deposed that he remained at the spot of recovery for about two hours.

34. PW24 Inspector Yashpal Singh is the IO.

35. PW25 WASI Radha Rani has deposed the same facts as deposed by PW22 SI Anuj Nautiyal.

36. PW26 Ravinder, Assistant Commandant, BSF, 103 Batallion, Tripura was posted posted as Constable/photographer in the Mobile Crime Team. He has deposed that, on 07.01.2011 he went to the spot i.e. Sector­26, MCD toilet Block on the back side of toilet there was a septic tank having one gutter hole. There MCD employees broken the gutter hole and taken out one dead body and State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 33 of 86 34 same was cleaned with water and he took the photographs of the said dead body on different angles and the positive of the same are already Ex.PW5/1 to Ex.PW5/6 and the negatives of the same are Ex.26/1 to Ex.PW26/6. In his cross examination he had deposed that, he is not sure whether accused Shahnaz was present at the spot or not.

37. PW27 Vishal Gaurav, Nodal Officer, Bharti Airtel Limited, and he proved the customer application form of mobile phone number 9958758437 as Ex.PW27/A, which issued in the name of Ajay Kumar and proved the Election I Card of Ajay as Ex.PW27/B and forms sent by the distributor as Ex.PW27/C. He also proved the customer application form of mobile phone number 9717385783 issued in the name of Ajay Kumar and same is proved as Ex.PW27/D and also customer application of mobile phone number 9717559455 issued in the name of accused Shahnaz as Ex.PW27/G. He was not cross examined.

38. From the evidence discussed above it is evident that initially case of prosecution was based on circumstantial evidence as there is no eyewitness to the incident. Though later on in his testimony PW5 has deposed that he saw accused person giving State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 34 of 86 35 beating to his brother Rakesh on 5.10.2010. The prosecution has primarily relied upon following circumstances to prove the guilt of accused persons :­

i)That accused Shahnaz and victim were having illicit relationship and they were residing together as husband and wife at the house no. G6/97 sector 15 Rohini by the name of Anita and Ajay.

ii)That victim Rakesh went missing on 05.10.2010 and thereafter did not return.

iii)That accused were the last person who seen victim alive and failed to explained where the victim has gone.

iv)That victim had informed that she had quarrel with victim and broken the leg and hand of victim.

v)That PW5 Rahul had seen the accused persons giving beatings to victim on 05.10.2010

vi)The recovery of dead body of victim Rakesh in pursuance of disclosure statement of accused Shahnaz and Shakeel @ Bhura.

vii)The recovery of weapon of offence i.e. Cricket Wicket in pursuance of disclosure statement of accused Shahnaz and Shakeel @ Bhura.

State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 35 of 86 36

39. The conviction can be based solely on circumstantial evidence. It should be tested by the principles relating to circumstantial evidence. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. 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 closely connected with the principal fact sought to be inferred from those circumstances. Where the case depends upon the conclusions drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offender home beyond any reasonable doubt.

40. In Sharad Birdhichand Sards V State of Maharashtra, AIR1984SC1622 while dealing with circumstantial evidence, it was held that onus is on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. Before conviction based on circumstantial evidence, the following condition precedent must be established :­­ State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 36 of 86 37

i) 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;

ii) 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;

iii)the circumstances should be of a conclusive nature and tendency;

iv)they should exclude every possible hypothesis except the one to be proved; and

v) 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.

41. The Hon'ble High Court in Rakesh & Ors. V State of NCT of Delhi, Crl. Appl. 19/2007 Dt.27.08.2009, held as under :­­

136. The well known rule governing circumstantial evidence that :­­

(a) the circumstances from which the inference of 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;

(b) the circumstances are of a determinative State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 37 of 86 38 tendency unerringly pointing towards the guilt of the accused; and

(c)the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him, is fully applicable in cases of proof of conspiracy. The courts have added two riders to aforesaid principle; namely, (i) there should be no missing links but it is not that every links must appear on the surface of the evidence, since some of these links can only be inferred from the proved facts and (ii) it cannot be said that the prosecution must meet any and every hypothesis put forward by the accused however far fetched and fanciful it may might be (see the decision of Supreme Court reported as Gagan Kanojia v State of Punjab (2006) 13 SCC 516).

42. Now in the light of aforesaid circumstance I shall examined the evidence produce by prosecution to ascertain whether Prosecution has been able to establish complete chain of incriminating circumstances or not.

43. The first incriminating circumstances relied upon by prosecution is accused is that both accused Shahnaz and victim/deceased Rakesh Gupta were having illicit relationship and they were residing together as husband and wife by changing their name as Ajay and Anita. In order to prove their case prosecution has State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 38 of 86 39 mainly relied upon testimonies of PW1 Meena Handa landlord of house no. G6/97 sector 15 Rohini and PW7 Raj Kamal Handa who is husband of Meena Handa.

44. PW1 Meena Handa has testified that she owned flat no.

G6/97, Sector 15, Rohini and on 16.09.2010 the said flat was taken on rent by Ajay on a monthly rent of Rs.6,000/­ and Rs 20,000 was taken as security for which a rent agreement was executed Ex.P1/1. She further deposed that on 10.10.2010 her husband had gone to Ajay to collect the balance rent of Rs.2000/­ and there Anita wife of Ajay met and told that Ajay had gone from the house after quarreling with her and she assured to vacate the premises after some day. PW1 further deposed that the actual name of Anita is Shahnaz and that of her husband is Rakesh Gupta. She further deposed that on the next day, she again visited to the house of Anita and noticed about changing her conduct and asked her to vacate the house at the earliest. She identified the said Anita as accused Shahnaz. She further deposed that on 08.11.2012 she along with her husband gone to PS­K.N. Katju Marg and there police made inquiries and they supplied rent agreement, copy of application, Identity card and copy of tenant verification. She further deposed that on 15.01.2011 State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 39 of 86 40 police came to their flat and conducted proceedings and clicked some photographs and also taken measurements of the flat. She has correctly identified the accused Shahnaz as Anita who was residing in her flat. She has also proved rent agreement as EXPW1/1, election card of Ajay ExPW1/2 and tenant verification form EXPW1/3 .

Nothing much has come out in her cross­examination. In her cross examination, she admitted that she had gone through the contents of Ex.PW1/3 i.e. rent verification form and stated that the form was deposited at the PS by property dealer Pawan Kumar and her husband. She further stated that, Ajay had taken this house for himself, wife and two children and did not disclose any other person might be residing in the said flat. Since no suggestion has been given to the witness that his tenant Ajay was not Rahul and Ajay wife Anita is not Shahnaz or that Ajay and Anita were not residing in the house, hence, it remained un­rebutted that victim Rakesh and accused Shahnaz were residing in the said house No.G7/97 Sector 15 Rohini as husband and wife and accused Shahnaz told that victim Rakesh had left the house after quarreling with her.

45. PW7 Raj Kamal Handa who is husband of PW1 and was State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 40 of 86 41 actually dealing with victim on behalf of PW1has also deposed in similar line as deposed by PW1. He has also deposed that Flat no.G6/97 Sector 15 Rohini was given on rent to Ajay and he was residing in that house with his wife Anita and two children. And Ajay was Rakesh and Anita is accused Shahnaz.

46. On perusal of copy of tenant verification farm EXPW1/3 and election card of Ajay ExPW1/2 and photograph EXPW3/B of Rakesh Gupta given with the complaint by accused Shahnaz I found that both photograph are of same person. No suggestion has been given said photograph is not of victim Rakesh. Hence it also corroborate that victim Rakesh and the Ajay who took house of PW1 on rent are the same person.

47. On perusal of complaint EXPW24/Q given by accused Shahnaz regarding missing of Rakesh I found that address of G6/97 sector 15 has been given. Accused had admitted in 313 Cr.P.C that said complaint was given by her. If she is not Anita how she was residing in said house. No suggestion has been given to PW1 and PW7 that accused Shahnaz has herself taken the said house on rent from them. Hence from the testimonies Of PW1 and PW7 and aforesaid facts and circumstances it is proved that accused Shahnaz State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 41 of 86 42 and victim Rakesh were living together as husband and wife and suddenly accused told to her that Ajay left the house after quarreling with her. Hence her illicit relationship with victim is proved.

48. In a case based upon circumstantial evidence motive become very material to establish the guilt of accused. Motive is the inducement for doing an act. People do not act wholly without motive. The evidence of motive becomes important once a crime is committed. Motive is sometime difficult to unlock. Motive always locks up in the mind of the accused. The existence of motive assumes significance but the absence of motive does not necessarily discredit the prosecution case. The proof of motive is never an indispensable for conviction. The absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.

49. It was observed in case State of U.P. V Babu Ram, 2000 (11) AD 285 as under :­­ No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 42 of 86 43 commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered.

50. Though no specific motive of murder has been alleged by prosecution. But as per confessional statement of accused Shanaz EXPW22/F victim used to collect money which she earned by supplying girls for prostitution and has become a liability and he was opposing her relationship with one Raheesh therefor she thought to remove her by killing her cannot be ruled out once prosecution is able to prove that accused Shahnaz and victim have illicit relationship. Even otherwise failure to prove motive is not always fatal to prosecution particularly in case like present one where victim was residing with accused Shahnaz therefor it is only accused who know why she murdered victim Rakesh.

51. The accused had falsely denied in her statement U/S 313 Cr.P.C. that she was residing with victim Ajay as his wife and falsely State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 43 of 86 44 claimed that victim was his employee is also an incriminating circumstances against her.

52. In her complainant EXPW24/Q accused Shahnaz has mentioned that Rakesh(victim) went from her house on 05/10/2010. Thereafter no one had seen the victim hence accused Shahnaz herself has admitted she was last person who seen victim alive. Last seen evidence is very material in a case based upon circumstantial evidence.

53. Supreme Court noted general principles with reference to the principles of last seen together in Bodhraj V State of J&K (2002) 8 SCC 45 as under:

"The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were together, it would be hazardous to come to a conclusion of guilt in those cases."

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54. In Ramreddy Rajesh Khanna Reddy (2006) 10 SCC 172 this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."

55. The observation of Supreme Court in 'Muhibur Rahman V State of Assam. (2002) 6 SCC 715 are also relevant on the circumstance of last seen :

State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 45 of 86 46

"The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place."

56. Recently in Ram Niwas Versus State, Crl. Appeal No. 1317/2011 Dt 27.09.2013 where in Divison Bench consist of Hon'ble Justice P.K. Bhasin and Hon'ble Justice V.P. Vaish has held in para 11 as under:­ "11. With the development of law, the theory of last seen has become a definite tool in the hands of prosecution to establish the guilt of the accused. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. But this theory should be applied by taking into consideration the case of prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen."

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57. As stated above it is proved that victim was residing with accused. And as per her own Complaint EXPW24/Q accused Shahnaz has admitted that victim went missing on 05.10.2010. As per PM report EXPW4/A of victim the timing of death approximately is 2 to 3 month. Thus it matches with the timing when deceased went missing hence in these circumstances it can be infer that victim might have been murdered on or around the day when he went missing i.e. 05.10.2010. No body has seen alive the victim thereafter, hence she was the last person who seen victim alive. She was residing with victim as his wife therefor onus is on her to explain where he has gone. The onus is on her to prove that when victim Rakesh left the house he was alive. But she had failed to discharge the said burden. Hence this is an incriminating circumstance against the accused Shahnaz.

58. Despite the fact that she was residing with victim as his wife and victim was missing since 05.10.2010 she did not lodge any complainant till 18.10.2010 create suspicion that she was very well aware where victim had gone as she had killed the the victim Rakesh that is why she did not lodged the complaint of missing of victim. And further from her complaint EXPW24/Q it is evident that State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 47 of 86 48 she had lodged the complaint of missing of accused only because brother of victim reached at her house and asked from her where her brother had gone and it appear due to their pressure she was forced to lodged the complaint EXPW24/Q. Hence the conduct of accused not to lodged the complaint immediately also is an incriminating circumstance against her.

59. The other incriminating circumstances against the accused person is the recovery of dead body of victim at the instance of accused persons Shahnaz and Shakeel @ Bhura in pursuance of their confessional statement . PW22 SI Anuj Nautiyal had deposed that on 07.01.2011 he was posted as SI in Special Team, Crime Branch and at about 8am a secret informer came to his office and informed him that one Shahnaz got recorded the missing report of Rakesh Gupta in October 2010 in PS K.N.Katju Marg, but said Shahnaz along with her brother had killed Rakesh Gupta and disposed off the dead body. But the said informer told that one brother of Shahnaz had already left the Delhi and Shahnaz and her brother Bhura is also trying to leave Delhi and if raided they can be apprehended. He confirmed the facts from PS K.N.Katju Marg and State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 48 of 86 49 lodged this information in DD register and informed to senior officers and senior officers instruct him to take the necessary action. Thereafter he along with WASI Radha Rani, HC Jai Bhagwan, HC Hari Kishan and secret informer left the office in government gypsy and he gathered the information and came to know that Shahnaz and Bhura would come near Rithala Metro Station and thereafter at about 3pm they reached at Rithala metro station and at the instance of secret informer apprehended the accused Shakeel @ Bhura and Shahnaz vide arrest memo Ex.PW22/A and Ex.PW22/B. He recorded their disclosure statement Ex.PW22/E and Ex.PW22/F. In his cross examination he had stated that he reached at the Rithala metro station at about 2.45/3pm, secret informer informed them that accused persons Shahnaz and Shakeel @ Bhura would reach at Rithala metro station. They remained at Rithala metro station for about 45/50minutes. He prepared documents Ex.PW22/A to Ex.PW22/F at the spot. He has recorded the disclosure statement of accused Shahnaz first. He denied the suggestion that Ex.PW22/A to Ex.PW22/F were prepared at PS K.N.Katju Marg itself or he did not go to Rithala metro station and not conducted the aforesaid proceedings. No suggestion has been given to witness accused State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 49 of 86 50 Shahnaz and Shakeel were not arrested by him on 7.01.2010 or from where they were arrested if not arrested from Rithala metro station. Hence there is nothing in the cross­examination which could led to discard his testimony. PW25 W/SI Radharani had also corroborated his testimony. On perusal of arrest memo of accused Shahnaz and Shakeel, I find timing of her arrest has been mentioned as 3 pm on 7.01.2010. Whereas Ld. counsel for accused persons has drawn my attention toward the testimony of PW5 Rahul who has deposed in the cross­examination had stated that he reached at PA KN Katzu Marg at 11am and remained there for about 2­3 hours and Shahnaz and Shakeel were present there hence he contended that testimonies of PW22 cannot be relied upon. And further contended that from the testimony of PW5 it is proved that accused were arrested much prior to 3am and they were in PS at about 11am therefor recording of confessional statements of accused Shahnaz and Shakeel which were recorded after their arrest is also forged and fabricated but I do not find force in the contention of Ld. Counsel for accused. PW5 had admitted that he came to the PS with his brother in law Prem Pal. PW3 Prem Pal has stated in the cross­ examination that they came to PS at about at about 3­4pm. Hence, it State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 50 of 86 51 cannot be ruled out that PW5 might have not recollected the correct timing of his arrival at PS and merely because of this minor contradiction testimony of PW22 cannot be discarded. Therefore I held that prosecution has been able to prove that accused Shahnaz and Shakeel were arrested on 07.01.2010 by PW22 at about 3pm and accused Shakeel @ Bhura has made confessional statement EXPW22/E and accused Shahnaz has made confessional statement EX PW22/F.

60. As per section 25 and section 26 of the Indian Evidence Act a confessional statement given to the police or in police custody is not admissible in evidence but Section 27 of the Indian Evidence Act is the exception to the section 25 and 26. By virtue of section 27 of Indian Evidence Act portion of confessional statement given by an accused in the presence of police or when a person is in police custody is admissible in evidence which lead to discovery of fact.

61. Section 27 of the Indian Evidence Act, is reproduced hereunder:­ Section 27. How much of information received from accused may be proved:­ Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 51 of 86 52 offence, in the custody of a police officer, so much of such information, whether it amounts to confession or not, as relates distinctly to the fact thereby discovered, may be proved.

62. The scope of 27 was explained by the Privy Council in Pulukuri Kottaya V Emperor, AIR 1947 PC 67. My Lordship has observed that, "Section 27 which is not artistically worded provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The Section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as, a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 52 of 86 53 accused."

63. Further in this case what would be admissible in a disclosure statement has been explained by the Privy Council giving illustration as under :

"The statements to which exception is taken in this case are first a statement by accused No. 6 which he made to the police sub­inspector and which was reduced into writing, and is Exhibit "P." It is in these terms :

'The mediatornama written at 9 a.m. on 12.1.1945, in front of Maddineni Verrayya's choultry and in the presence of the undersigned mediators.

Statement made by the accused Inala Sydayya on being arrested. About 14 days ago, I Kotayya and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank. We, all beat Beddupati China Sivayya and Subayya, to death. The remaining persons, Pullayya, Kotayya and Narayana ran away. Dondapati Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kotayya.' The whole of that statement except the passage "I hid it (a spear) and my stick in the rick of Venkatanarasu in State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 53 of 86 54 the village. I will show if you come" is inadmissible. In the evidence of the witness Potla China Mattayya proving the document the statement that accused 6 said "I Mattayya and others went to the corner of the tank­ land. We killed Sivayya and Subayya" must be omitted.

A confession of accused 3 was deposed to by the police Sub­Inspector, who said that accused 3 said to him :

'I stabbed Sivayya with a spear, I hid the spear in a yard in my village. I will show you the place.'The first sentence must be omitted. This was followed by a Mediatornama, Ex. Q.I, which is unobjectionable except for a sentence in the middle, 'He said that it was with that spear that he had stabbed Boddapati Sivayya,'which must be omitted." Thus, the part of the disclosure statement, namely, that he was ready to show the place where he had concealed the clothes of the deceased is clearly admissible under Section 27 of the Evidence Act because the same relates distinctly to the discovery of the clothes of the deceased from that very place."

64. Now coming to the confessional statement of accused persons. The confessional statement EXPW22/E and EXPW22/F are almost similar but since as per testimony of PW22 he recorded statement of accused Shahnaz first I am taking her statement. In her statement she has stated that :­­ State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 54 of 86 55 " to earn the livelihood she started supplying girl. Her known to Rakesh started living with him and helped her in her illicit profession. He used to bring customer and she used to supply girl. He used to take his share. He used to drink liquor and she also started taking liquor. Since one year one Rahis used to come and she used to have quarrel with Rakesh over Rahis as he used to say I should not allow Rahis at home. I want to get rid off Rakesh as he was against her relation with Rahis and take share in the earning and started living in her house. On 05.10.2010 at about 9pm she Rakesh came in drunken condition and started quarreling. And when she said house is her,and her will will be prevailed he slapped her. She came in anger and thought to kill him and hit Rakesh with cricket wicket of her son on his head and other part of body many time he fell down and died. .... in the morning she went to her brother house at sector 26, Rohini and told everything to her brother Shahid @ Kalu and Shakil @ Bhura. They prepared bundle(Gathri) of the dead body and brought to her brothers house in the evening in the Rikshaw of Bhura and kept there for one day and thought to throw in nullah but then think body will come above water and then thought to throw the body in the gutter of MCD Scholaya. ....One day they kept body in house and on the night of 7/8 at about 3.30 am they proceeded toward shochalaya with dead body. Their neighbour Vikas @ Vicky saw them and asked what they are taking. They told they are going to throw waste article in gutter. Since bundle was heavy Vicky also helped and they through State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 55 of 86 56 the body in gutter behind MCD Schochalaya.....She can identify the gutter."

65. Hence in view of section 27 only portion of accused Shahnaz statement that she thrown the dead body of victim in the gutter of MCD near schochalaya at Sector 26, Rohini is admissible in evidence and rest of the portion is to excluded.

66. Now coming on to recovery of dead body of Rakesh is concerned prosecution has examined number of witness to prove dead body of Rakesh was recovered from the gutter of MCD situated at Sector 26, Rohini.

67. PW22 SI Anuj Notiyal has testified that he along with Shakeel and Shahnaz reached at MCD Sauchalaya, Sector­26, Rohini, where SHO, IO and other staff of PS - K.N. Katju Marg were also reached. Thereafter accused had pointed out towards the septic tank behind the MCD Sauchalaya and told that they had dumped the dead body of Rakesh in the intervening night of 7/8.10.2010. MCD officials were called and they had taken out the dead body of a male from inside the septic tank after breaking the same from outside and the dead body was wrapped in a bed sheet and gunny bag. One Rahul Gupta brother of the deceased had identified the dead body. State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 56 of 86 57 In his cross­examination he stated that his team reached at sector 26 Rohini at 4.30 pm and police officer of PS KN Katju Marg reached at 5­7 minute later and before going to sector 26 he remained at PS at about 10 minute. At the time of taking out the body from septic tank SHO, Inspector Yashpal, 5­7 other police official, 3­4 employee of MCD who had taken out the dead body many public persons, crime team official and brother of deceased were present. The face of dead body was in a position to identify after washing. Hence nothing much has come out in his cross­examination.

68. PW24 Inspector Yashpal/ IO has also deposed that he along with SI Murkilal, Ct.Pardeep and Ct.Dharmender reached at MCD shulabh scholaya sector 26 Rohini. SHO and ACP were already present there. SI Anuj Nautial along with Shahnaz and Shakil were also present there. Rahul Gupta brother of deceased and Prempal also came there. Crime Team also reached there. MCD staff was called at the spot by the SHO. He also called Naman Sharma Videographer to video graph the proceeding. Accused Shahnaz and Shakeel pointed out the septic tank behind the MCD Shochlaya and told that they with their brother Shahid had dumped the body of Rakesh Gupta on 7.10.2010. The septic tank was broken State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 57 of 86 58 from outside by MCD official and from inside one dead body was taken out which was wrapped in a gunny bag. Same was got washed with water and after seeing face of the dead body Rakesh Gupta started weeping and identified the dead body as of his brother Rakesh. He prepared the site plan of the spot of recovery of dead body EXPW24/A ans send the dead body to BJRM Hospital. In his testimony the CD EXP1 prepared by PW Naman was also played and he identified accused Shahnaz, accused Shakeel, SI Anuj Nautiyal MCD official Vicky and Hariom.

In his cross­examination he stated that they reached at Public Toilet at 5.30 pm. He remained there for about 3 ½ hours. He denied the suggestion that dead body was already recovered prior to his reaching at spot. Hence nothing much has come out in his cross­examination.

69. PW2 Hari Om is another witness of recovery. He had deposed that on 07.10.2010, he was posted as safai karamchari at MCD Center, Daulatpur and on that day, police took him to Septic Tank in Sector­26, Rohini. Satish and Vijay safai karamcharis of their department were also with him and their officer Krisan Dahiya. He further deposed that accused Shahnaz and Shakeel correctly State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 58 of 86 59 identified by him, were leading to the Septic Tank of Sector­26, Rohini. They told that the dead body was lying in the septic tank. He broken the said septic tank and brought out one dead body kept in a gunny bag and said dead body was identified by Rahul Gupta as of his brother Rakesh Gupta.

In his cross examination, he stated that gunny bag was opened in his presence and nothing was found from the said bag except the dead body of his brother. He further stated that police officials came to his office at about 4pm and he accompanied with the police officials as per the directions given by his senior officers namely Krishan Dahiya. He is an independent witness and has no motive to deposed falsely as he no where concerned with success and failure of the case. Hence there is no ground to disbeleive his testimony.

70. PW6 Naman Sharma had testified that on 07.01.2011 Ct Prem came to his shop and asked him to prepare a videography of dead body at at MCD Sulabh Sauchalaya, Sector­26, Rohini, he reached there and found that police officials and public persons and accused persons Shahnaz and Shekeel. Both the accused persons step down from the police gypsy and went to the gutter in the back State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 59 of 86 60 side of Sauchalaya and pointed out the place where is the dead body. Two persons from the municipality were also present they opened the opening of the gutter and same was very small and body could not be brought from gutter, so two persons from the municipality had broke open the same and dead body of one Rakesh Gupta was taken out. One Rahul who is the brother of Rakesh Gupta had identified the dead body. He made video film of the whole proceedings and later on handed over CD to police, which was seized by the police vide memo Ex.PW6/A. Since CD on record could not be played he prepare new CD from the record which was in his laptop and said CD was EXP5 and corrupted CD as P6.

In his cross examination he had stated that he stopped the camera many times and for each break separate clip was prepared and he put the same into the CD and he had done videography for about 10 minute. He also stated that when he reached at the spot public person and few police person were present. The accused person were brought after 5­10 minute. He further stated that he know only one person as relative of deceased namely Rahul and he noticed him when on seeing dead body he started weeping vehemently. He further stated that he gave four CDs State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 60 of 86 61 to police. He denied the suggestion that CD EXP6 is not related to the incident of recovery of dead body. I do not found any ground to disbelieve his testimony. He is also an independent witness and has no interest in success or failure of the case.

71. PW3 has also testified that both the accused persons led the police party and him and Rahul Gupta to Sector­26, Rohini, MCD Public toilets and one gunny bag was taken out from the Septic Tank with the help of MCD sweepers and at the instance of accused persons Shahnaz and Shakeel and same was checked and dead body of Rakesh Gupta was found in a gunny bag. He and Rahul Gupta identified the dead body of Rakesh Gupta and thereafter dead body was sent to mortuary. After postmortem examination of dead body was handed over to him and Rahul Gupta vide memo Ex.PW3/F. In his cross­examination he stated that he reached at Sector­26, Rohini near MCD toilet at about 5/6 pm. Accused persons Shahnaz and Shakeel were already present in the police Gypsy. His signatures was taken on some documents.

72. PW5 Rahul has testified that on 07.1.2011 police called him and reached at Sector­26, Rohini, Delhi, where accused persons State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 61 of 86 62 were in custody and at the instance of accused persons, they reached near MCD toilets, Sector­26, Rohini, where one gunny bag was recovered from the septic tank gutter in which dead body of his brother was found and he identified the same and police recorded his statement Ex.PW5/A. In his cross examination he stated that they reached at the spot where dead body was recovered at about 4/4.30pm by police gypsy. The dead body of his brother was recovered from the gutter near the public toilet. The gunny beg was opened by the sweepers. Just after opening the gunny beg and seeing the dead body he identified the dead body he identified the dead body.

73. PW11 Krishan Dahiya, PW19 SI Vishesh Kumar, PW23 SI Murki Lal, PW25 WASI Radha Rani, PW26 Ravinder then Constable who took photograph of the spot,have also deposed the same facts with regard to recovery of dead body and thus corroborated the testimonies of aforesaid witnesses. Nothing much has come out in the cross­examination aforesaid witnesses except some minor contradiction regarding timing of arrival at spot which is not much material as when testimonies is recorded after a time gap some contradiction are bound to appear as human memory get State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 62 of 86 63 faded after passage of time. Almost similar facts has been deposed by aforesaid witnesses in their statements recorded under section 161Cr.P.C. Hence I find testimonies of aforesaid witness reliable and cogent to the extent that both the accused pointed out the septic tank/gutter near MCD public toilet at sector 15 Rohini and from where one dead body was recovered.

74. The prosecution has claimed that the dead body which was got recovered at the instance of accused Shahnaz and Shakeel @ Bhura is of Rakesh Gupta, brother of PW­5 Rahul Gupta. Ld. Counsel for accused persons has strongly argued that since the body was highly decomposed therefore same was not identifiable, hence the dead body has been wrongly identified by the PW­3 and PW­5 as of victim Rakesh Gupta. Ld. Counsel has argued that from photograph of dead body EXPW5/1 to EXPW5/6 it is evident that body is highly decomposed and unidentifiable. Ld. Counsel has further argued that the DNA report ExPW24/PX is inconclusive as it is mentioned in the report that no opinion is offered from this due to non availability of DNA from the source of exhibits. Hence from the DNA report, it is not proved that the recovered body was of Rakesh Gupta. I have considered the arguments. But I am not agree with State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 63 of 86 64 the contention of Ld. Counsel for the accused persons that dead body is not of Rakesh Gupta. PW­5 Rahul Gupta who is brother of victim Rakesh Gupta had identified the dead body as of his brother Rakesh Gupta. It is known fact that the person who are closed can identify the person by even seeing the smaller portion of the body. All the aforesaid witness of recovery has testified that PW5 identified the dead body as of his brother and immediately after seeing dead body started weeping. The action of PW5 starting weeping appear to be spontaneous and natural and led to inference that dead body was of his brother that is why he started weeping. The testimony of aforesaid witness cannot be discarded merely because PW3 has stated in cross­examination that only he identify the dead body. I do not see any reason that PW3 and PW­5 will identify the dead body of somebody else as the body of his brother Rakesh Gupta. PW4 Dr. K. Goel who conducted Postmortem was the best person who could say how much dead body was decomposed and whether same was identifiable or not On perusal of testimony of PW4 I found that he was not cross­examined.

75. In Ashok Vishawakarma @ Surji Vs State Crl. Appeal no. 1052/2010 Dt 09.07.2013 Division Bench of our own High Court State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 64 of 86 65 consist of Hon'ble Justice Reva Khetrapal And Hon'ble Justice Sunita Gupta dealing with similar issue of identification of dead body has held that:­ "23. It is the submission of learned counsel for the appellant Ashok that identity of the dead body as that of Pawan is not established since as per the post mortem report Ex. PW16/A, dead body was in highly decomposed condition and recovery was effected after a lapse of about one month and seven days, as such it was not identifiable. This submission is devoid of merit. Smt. Durgawati Devi, mother of the deceased has deposed that she as well as her husband Jaglal identified the dead body to be of their son Pawan. Beside her, Yogesh Dua and Ramesh Chand Ojha had also identified the dead body vide identification statements Ex. PW1/A and Ex. PW2/A respectively. It was suggested to PW2 Ramesh Chand Ojha that since the dead body was disintegrated, it was not in identifiable condition, however, he denied the suggestion. No such suggestion was given to PW1 Yogesh Dua.

Moreover, the best person to depose about this fact was Dr. L.K. Barua. Although there is a mention in the post mortem report that the body was in high state of decomposition, however, it was not taken from him that the decomposition was such as to render the identification difficult or impossible. As State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 65 of 86 66 stated above, the entire proceedings were conducted in the presence of various police officials, ADM, Doctor and all these witnesses have deposed that the dead body was identified by Jaglal, Yogesh Dua, Ramesh Chand Ojha to be that of Pawan. On perusal of evidence, there is no difficulty in finding that the dead body that was recovered was of Pawan and that was sufficient proof of corpus delecti. Kaju and Anr. Etc. Vs. State, 1985 Crl. LJ, 367 relied upon by learned APP for the State was also a case where it was held that in criminal prosecution one of the essential factors to be proved to a moral certainty is the corpus delecti. In that case, photographs of the dead body were not taken in order to get him identified in court. It was held that despite the fact that the dead body was in a high state of decomposition there was nothing to show that the decomposition rendered identification difficult or impossible. Son and son­in­law of the deceased had identified the dead body, therefore, it was held that there was sufficient proof of corpus delecti. In such a case, it was not necessary for the prosecution to have taken photographs of the dead body and then get them identified in the court. The present case stands on much better footing in as much as, as many as 23 photographs Ex. PX24 to PX46 were taken by HC Ajeet Singh and the entire proceeding was also videographed. The cassette State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 66 of 86 67 Ex. PX was even displayed before learned Addl. Sessions Judge when the evidence was being recorded before him. Under the circumstances, the identification of the dead body is proved by clinching evidence."

76. Hence considering the aforesaid fact and circumstances in my view prosecution has been able to prove that dead body was of victim Rakesh.

77. Moreover, the said dead body has been recovered at the instance of accused Shahnaz and Shakil @ Bhura. Ld. Counsel has failed to explain how they were aware that the dead body is lying in septic tank. Hence inference can be drawn that since they had thrown the dead body of Rakesh Gupta therefore they were aware that the dead body was lying in the septic tank. Further the Postmortem report ExPW4/A proved by PW­4 Dr. K.Goel it is evident that the time since death was approximately 2 to 3 months though doctor has mentioned that definite opinion regarding time of death cannot be given. The victim went missing on 05.10.10. The dead body was recovered on 07.01.2011. Hence the report since victim went missing is also approximately three months and thus it corroborates the testimony of PW­5 that the dead body is of victim. State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 67 of 86 68 The recovery of dead body of victim on the disclosure statement of accused is a strong incriminating circumstances against them. In this regard I rely upon Ashok Vishawakarma @ Surji Vs State (Supra) Division Bench while discussing importance of recovery of dead body while quoting Judgments of Supreme Court held as under:­

34.Facts were substantially similar in Ningappa Yallappa Hosamani & Ors. Vs. State of Karnataka & Ors., (2010) 1 SCC (Cri) 1460 relied upon by learned APP for the State where it was held that where on the basis of statement made under Section 27 of the Evidence Act, dead body of deceased was recovered in furtherance of voluntary information furnished by two accused, the natural presumption in absence of explanation was that it was these two accused persons who had murdered the deceased and buried his body. Reliance was placed on State of Maharashtra vs. Suresh (2000) 1 SCC 471, where it was observed as follows:­ "Three possibilities may be countenanced when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 68 of 86 69 possibilities, the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well justified course to be Crl. A. Nos. 1052/2010 & 845 /2010 Page 36 of 45 adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."

35.Relying upon this authority, it was held in the case of Ningappa (supra) that the evidence conclusively proved that the accused had buried the gunny bag containing the dead body of deceased and it was detected in furtherance of voluntary information furnished by them.

36.In State vs. Damodar 2000 Cri LJ 175, it was observed by Supreme Court that;­ "Where in a charge of kidnapping, murder and then concealing the body of the victim, the prosecution evidence was that the deceased was seen in the company of the accused on the fateful day, the accused took the investigating team to his house and dug out portion of the room from where the body of the deceased was exhumed and the failure of the accused to give explanation as to how the body came to be exhumed in his house, the chain of the circumstances was complete to uphold the accused guilty under State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 69 of 86 70 Section 300, 364 and 201 IPC. "

37.In State of Andhra Pradesh vs. Gangula Satya Murthy, 1997 Crl.J 774, the Apex Court observed that:­ "Where the fact that the dead body was found on the cot inside the house of the accused, it was held to be a telling circumstance against him. It was further held that the accused owed a duty to explain as to how a dead body, which was resultant of a homicide, happened to be in his house. In the absence of any such explanation from him, the implication of

78. In State of Andhra Pradesh vs. Gangula Satya Murthy, 1997 Crl.J 774, the Apex Court observed that:­ "Where the fact that the dead body was found on the cot inside the house of the accused, it was held to be a telling circumstance against him. It was further held that the accused owed a duty to explain as to how a dead body, which was resultant of a homicide, happened to be in his house. In the absence of any such explanation from him, the implication of the said circumstances is definitely adverse to the accused."

79. In. Gyano @ Gyanwati Vs. State of U.P, 1995 Cri LJ 1016, it was held:­ "Where the accused killed the deceased and concealed the dead body inside the house in a room where nobody had access except the accused persons, the conviction was held proper."

State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 70 of 86 71

80. In the present case also the accused persons have failed to offer any explanation as to how they came to know of such concealment of dead body . The evidence on record amply proves that the accused persons had buried the plastic bag containing the dead body of deceased and it was detected in furtherance of information furnished by them."

81. Hence in these circumstances recovery of dead body of victim is a strong circumstances against the accuse Shahnaz.

82. Though the counsel for accused Shahnaz had strongly argued that recovered dead body is not of victim. Even for the sake of argument if I accept the contention of Ld. Counsel for accused Shahnaz that dead body is not of victim even that it does not absolve the accused from murder. The recovery of dead body is not essential if the prosecution is able to prove from other circumstances that the victim has been murdered. In this regard I rely upon Ram Niwas Versus State Crl. Appeal No.1317/2011 Dt 27.09.2013 where in Division Bench consist of Hon'ble Justice P.K. Bhasin and Hon'ble Justice V.P. Vaish has held in para 36 as under:­ "Initially though the DNA report was not put to the appellant under Section 313 Cr.P.C. However, as per order of this Court dated 6th March, 2013, the matter was remanded State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 71 of 86 72 back to the trial Court for recording of additional statements of the appellants under Section 313 Cr. P.C. Before the trial Court on 15th May, 2013,all the appellants in their statements under Section 313 Cr.P.C. have stated that the said report to be false and manipulated. Even if we presume that the DNA is not conclusive proof of the identity of the deceased, non recovery of dead body is of no consequence. In Prithipal etc. vs. State of Punjab and Ors., (2012) 1 SCC 10, the Supreme Court observed that: 51. In Mani Kumar Thapa v. State of Sikkim [(2002) 7 SCC 157 :

2002SCC (Cri) 1637 : AIR 2002 SC 2920] this Court held (SCC p. 163, para 4) that in a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delictiâ. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without any trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case, the accused would manage to see that the dead body is destroyed to such an extent which would afford the accused complete immunity from being held guilty or from being punished. What is, therefore,required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced."

83. As stated above prosecution has proved number of State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 72 of 86 73 other incriminating circumstances against the accused Shahnaz besides recovery of dead body of victim which itself are sufficient to proved that victim was murdered by accused Shahnaz as he is missing till date and no body had seen him since he allegedly went from her house on 05.10.2010.

84. Despite the fact that prosecution has proved aforesaid incriminating circumstances against her, she had not given any proper explanation in her statement U/S 313 Cr.P.C. except either denying the same or taking false defense like victim was her employee but she had not led any evidence to prove the same, more ever she had not explained what was her source of earning that she kept victim as her employee. She had falsely denied that she was not residing at flat no.G6/97, Sector 15, Rohini though in her complaint EXPW24/Q she herself had mentioned the said address. In a case of circumstantial evidence, where no eye witness is available there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offer no explanation or offer an explanation which is found to be untrue. Then the same become an additional link in the chain of circumstances to make it State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 73 of 86 74 complete. This view has been taken in Catena of decision of the Hon'ble Supreme Court [State of T.N. V Rajendran, AIR 1999 SC 3535; State of U.P. V Dr. Ravinder Parkash Mittal (1992) 3 SCC 300; State of Maharashtra V Suresh (2000) 1 SCC 471, Ganeshi Lal V State of Rajasthan, 1999 VII AD SC 558=[(2002) 1 SCC 231 and Gulab Chand V State of M.P. (1998) 3 SCC 574. In Ashwani @ Sonu Vs State (supra) it is held that :­ The object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or in the alternative to explain his version and reasons for his alleged involvement in State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 74 of 86 75 the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross­examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain.

85. In Hirabhai Babubhai Patel V State of Gujrat, Crl.

Appeal No.1044/2010 dt.01.07.2013, the Supreme Court in para 22 has held "though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 Cr.P.C. except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances."

86. The another circumstance proved by the prosecution is that PW­5 Rahul Gupta had seen the accused Shahnaz, Shakeel State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 75 of 86 76 and Shaid giving beatings to victim Rakesh Gupta. PW­5 deposed that on 05.10.2010 his brother Rakesh Gupta called him on his mobile phone and informed that he was abducted by one Shahnaz and his brothers Shakeel @ Bhura and Shahid @ Kalu and on the same day at about 7.30pm he reached at G­6/97, Sector­15, Rohini, Delhi and saw that accused Shahnaz was hitting cricket wicket on the head and other part of the body of his brother Rakesh Gupta and remaining accused persons hold his brother by his legs and hands and due to fear he ran away from there and came at the house of his brother in law Prempal and he informed him by phone as PW3 Prempal had gone to his village. But I do not find his testimony reliable to that extent that Rakesh made phone call to him on 05.10.2010 or that he had seen the accused persons gave beatings to victim because in his statement ExPW5/DA he has not stated the said fact hence same is improvement and liable to be rejected. Further in his examination in chief he stated he received call from his brother at 7.30 pm but in his cross­examination he stated that his brother made call at 7/7.30 pm and at that time he was at Nand Nagri and left the house in 10 minute. The distance between Nand Nagri and Rohini sector 15 is more than15/20 km. In my view one State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 76 of 86 77 need at least one hour to reach there. More ever PW5 admitted that he was not aware where his brother was residing prior to his death. Hence in this circumstances it is very difficult to find the flat where his brother was residing as there might be hundred of flat in sector

15. Further prosecution has not placed on record call details of mobile phone either victim or PW5 to corroborate said part of his testimony. Neither PW­3 in his statement ExPW3/A given to police had stated the said that his brother in law i.e PW­5 had told him that he had seen the accused persons gave beatings to victim. Hence PW­5 had made the said facts first time in the court therefore, same is improvement and cannot be relied upon. Hence I reject his testimony to the extent that he has seen the accused persons gave beatings to victim on 05.10.10.

87. Now when I reached at the conclusion that the dead body which was recovered at the instance of accused Shahnaz is of victim Rakesh. Next question comes is whether death of victim is homicidal. Though it is undisputed fact that the victim had died homicidal death. Even otherwise from the testimony of PW4 Dr. K. Goel, he conducted the postmortem examination on the dead body of deceased Rakesh Gupta and prepared PM report EXPW4/A. PW4 State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 77 of 86 78 has testified that on external examination there were communitted fracture of both bones (tibia and febula) of both legs at about junction rd of upper and middle 1/3 . Fracture ends showed bruising. Any other external ante mortem injury could not be made out due to advance stage of decomposition.

He has further testified that on external examination that, there was depressed fracture of right parietal bone in area 6X4cm at middle part placed slightly oblique with fisher fracture right temporal and right frontal bone extending from there depressed fracture. On examination bruised area was seen at fracture side of the bones. The meninges were decomposed. Brain matter was liquified and poured out. Only little amount of the brain matter was found adhere to cranial walls. He further deposed that, all the chest and abdominal viscera were hight putrefied with stage of colliquative necrosis. Stomach was empty with fragile walls.

He further opined that, the cause of death was cranio­ cerebral injury as a result of blunt force impact over head. Cranial injury and fracture of leg bones were ante mortem in nature caused by blunt force impacts.

He was not cross­examined hence his testimonies State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 78 of 86 79 remained unrebutted. Hence from his testimony it is proved that victim has died homicidal death and considering the number of injuries and part of body on which injury was caused in my view the injury was caused with the intention to cause the death of victim.

He further deposed that on 05.02.2011 Inspector Yashpal Singh tendered an application through Ct. Dinesh Kumar regarding opinion of weapon of offence along with one sealed pullanda inscription of which was YP at four places. On opening the pullanda it was found to contain one wooden danda tapering at one end, used in the game of cricket as wicket. The length of the wicket was about 31 inches and circumference was about five inches. One of the end was round and other one was tempered into blunt pointed tip. There were national flag picture of different countries affixed over it with paper and at few places at upper part light brownish are was seen. Further, he had opined that the injury over skull and both legs mentioned in the PM Report Ex.PW4/A were possible by this object or by similar such other object. Hence from the testimony of PW4 it is proved that death of victim was homicidal and caused by blunt force weapon probably by cricket wicket.

88. Another circumstance relied upon by the prosecution is State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 79 of 86 80 the recovery of weapon of offence i.e. cricket wicket at the instance of accused Shahnaz. PW­24 IO Inspector Yashpal Singh has deposed that on 07.01.2010 accused Shahnaz and Shakeel made disclosure statement EXPW3/C and EXPW3/D respectively. In her disclosure statement ExPW3/C accused Shahnaz had confessed that she could recover cricket wicket by which she killed Rakesh.

PW24 further testified that on 09.01.2011 accused Shahnaz and Shakeel were taken out from the police lock up and thereafter he alongwith Ct. Giriraj, Ct. Mamta, Ct. Jayender Prempal Dharampal and Rahul reached to F­2/98, Sector­16, Rohini, Ground Floor where the mother of accused has opened the lock of the door as she was having the key. Thereafter accused Shahnaz went inside in the eastern side room and produced a cricket wicket which was lying in the north eastern corner of the said room and IO seized the said cricket wicket vide ExPW3/G and accused also produced one cream colour shirt having strips and blue colour jeans which were tying on the khunti near bath room in the western side. Prempal told that these clothes were of Rakesh Gupta and he was wearing the same on the day of Raksha Bandhan when he visited with accused Shahnaz and same were seized by IO vide ExPW3/H. State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 80 of 86 81

89. PW­3 Prem Singh and PW­5 Rahul, and PW6 Ct. Giriraj with regard to the recovery.

90. As far as recovery of cricket wicket is concerned, same is not much material because I am agree with the contention of ld. Counsel for accused that such kind of cricket wicket are easily available in the market. As per prosecution case no blood stains were found on the said cricket wicket to link with murder of victim more ever in her confessional statement EXPW3/C accused Shahnaz had not deposed that where she kept the wicket. Hence in these circumstances it cannot be ruled out that wicket has been planted.

91. As far as recovery of clothes of victim are concerned, though PW3 had deposed in his testimony that accused Shahnaz had stated that the said cloth were taken out from victim Rakesh body after committing his murder and he stated that he identified said cloth as victim was wearing the said cloth when he visited in his house on Raksha Bandhan. No blood stain has been found on the said cloth to link with the murder. As far contention of PW3 that victim was wearing said cloth on Raksha Bandhan there is nothing to corroborate his testimony. It cannot be ruled out to implicate the State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 81 of 86 82 accused he falsely identified those cloth. Hence in these circumstances I am agree with the contention of Ld. Counsel that there appear no reason for the accused to keep this cloth in her house as same has no value and she was very well aware that those cloth could implicate her in murder case. Hence it cannot be ruled out that same has been planted.

92. In view of aforesaid discussion, I held that prosecution has been able to prove the following chain of circumstantial evidence against accused Shahnaz:­­ i. That accused Shahnaz and victim were residing as husband and wife in H.NoG6/97 sector 15 Rohini, ii. That the said house was taken on rent by the victim Rakesh Gupta by the name Ajay and accused Shahnaz was residing in the said house as his wife with the name of Anita, iii. From the testimony of PW­1 and PW­6 it is proved that accused Shahnaz has told to them that the victim left the house after quarreling with her, iv. The complaint ExPW24/Q given by the accused Shahnaz proved that she was residing at H.NoG6/97 sector 15 Sector­ Rohini on 18.10.10 when she had given the said complaint on the basis of which DD no. 34A ExPW20/A was recorded hence she falsely denied in her statement U/S 313 Cr.P.C that she was not residing at the flat no. G6/97 sector 15 Rohini. v. The admission of accused Shahnaz in complaint State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 82 of 86 83 EXPW24/Q that victim left the house on 05.10.2010 b. vi. The failure of accused to explain where victim has gone from her house on 05.10.2010 and thereafter no body seen him alive though she was the last person who seen victim alive, vii. The false statement of accused U/s 313 Cr.P.C that accused was her employee though he was residing with her as her husband.

viii.Failure of victim to report to police about missing of victim till18.10.2010 though she was living with him as his wife and even thereafter lodging complaint under pressure of victim brother, ix. The testimony of PW22 proved that she made the confessional statement EXPW22/F in which she confessed that she had thrown the dead body in the gutter/septic tank of Sulabh Shochalaya Sector­26, Rohini.

x. Recovery of dead body at her instance from the aforesaid place in pursuance of disclosure statement of accused Shahnaz ExPW22/F .

xi. The identification of dead body by PW­3 and PW­5 as of victim Rakesh Gupta.

xii. The opinion of PW4 that the time since death is approximately 2 to 3 months prior to postmortem which corroborate with the timing of missing of victim Rakesh. xiii.The cause of death as is as per the opinion of PW4 is cranio cerebral injury as a result of blunt force impact over head and fracture of leg bone. Hence death of victim was homicidal.

93. Therefore, in view of above said facts and State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 83 of 86 84 circumstances, in my view, the prosecution has been able to prove the complete chain of incriminating circumstantial evidence which proved that accused Shahnaz has committed the murder of victim Rakesh Gupta and ruled out the hypothesis that except her any other person committing the murder of victim and thrown his body in the gutter/ septic tank near MCD Scholaya sector 26 Rohini thus she committed offence of destruction of evidence in order to conceal the murder. Hence l convict her for offence punishable U/s 302/201 IPC.

94. As far as offence of Kidnapping of victim is concerned since it is proved that victim was residing in the house no.G6/97 with his own consent and prosecution has failed to proved that he was taken against his consent somewhere or after kidnapping confined somewhere, I fond that prosecution has failed to prove the offence of kidnapping of victim Rakesh, hence I acquit accused Shahnaz for offence U/S 365 IPC.

95. As far as accused Shakeel @ Bhura is concerned PW22 has admitted in the cross­examination that he first recorded the disclosure statement of accused Shahnaz first hence when disclosure statement of accused Shakeel was recorded PW22 was already aware where the dead body of victim has been thrown hence State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 84 of 86 85 disclosure statement of accused Shakeel did not lead to discovery of any new fact therefor same is not admissible being hit by section 25 & 26 of Indian Evidence Act and Shaheed @ Kalu are concerned, the only evidence against accused Shakeel @ Bhura is recovery of dead body at his instance, in pursuance of his disclosure statement ExPW22/E. Since the disclosure statement was recorded after the disclosure statement of accused Shahnaz therefore said fact was already known to the police where the dead body has been thrown. Hence said disclosure statement is not admissible in evidence being hit by Section 25 and 26 Indian Evidence Act, as no new fact was discovered. Further there is no other evidence to connect the accused Shakeel except his disclosure statement and recovery of dead body of victim in pursuance of said disclosure to connect him with the commission of crime. As discussed above I did not find testimony of PW5 reliable to the extent that he saw accused Shahid and Shakil had caught hold the hands and leg of victim and saw accused Shahnaz giving beating victim with cricket wicket. Hence in my view complete chain of incriminating circumstance not establish against him to establish either he aided accused Shahnaz in commission of murder or disposing of body of victim or State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 85 of 86 86 destruction of evidence.

96. Further in view of the aforesaid discussion I held that the prosecution has failed to produce any reliable evidence at all against the accused Shahid @ Kalu to connect accused Shaheed @ Kalu with either committing the murder of victim Rakesh or aided the accused Shahnaz in throwing the dead body of victim in gutter.

97. Hence in view of aforesaid discussion I give benefit of doubt to the accused Shakeel @Bhura and accused Shahid @ Kalu and acquit them from all the charges.

Announced in the open court                                                    (SANJEEV KUMAR)
On 25.11.2013                                                          ASJ­01, North Rohini : Delhi.




State V Shahnaz & ors.              SC No.113/11      FIR no.9/11       PS KN Katju Marg                                Page 86 of 86
                                                                  87



                                                                                               State V  Shahnaz etc.
                                                                                                         FIR No.9/11
                                                                                                      PS KNK Marg 
25.11.2013

Present : Shri A. K. Gupta, Ld. APP for the State.

Accused Shahnaz and Shakil @ Bhura in JC.

Accused Shahid @ Kalu on bail.

File taken up today as 24.10.13 was holiday being Sunday. Vide separate detailed judgment accused Shahid @ Kalu and Shakeel @ Bhura are acquitted from all the charges and accused Shahnaz is convicted for offence u/s 302 and 201 IPC. Accused Shakil @ Bhura is in custody, he be released, if not required in any other case.

Accused Shakil @ Bhura submits that he is already convicted in FIR no.208/11 in some other case and is in JC and still more than one year is left for his sentence to be completed. In these circumstances, only personal bond is taken. Concerned Jail Superintendent is directed to file the report in which case he is in custody and till when by next date of hearing.

Previous bail bond and surety bond of accused Shahid @ Kalu is extended till 30.11.13. The articles, if any, seized in the personal search of the accused persons be released to them. Original documents, if any, be released and endorsement, if any, be canceled. State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 87 of 86 88

­2­ However the accused Shahid @ Kalu are directed to furnish personal bond in the sum of Rs.10,000/­ with one surety of like amount in compliance of Section 437A of Cr.P.C. within one week.

Now to come up for order on sentence on 30.11.13.

(Sanjeev Kumar) ASJ­01,North, Rohini, Delhi.

25.11.2013 State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 88 of 86 89 IN THE COURT OF SH. SANJEEV KUMAR: ASJ­01, NORTH: ROHINI COURTS: DELHI SC No.113/2011.

U/S.365/302/201/34 IPC.

FIR No.09/2011.

PS­ K.N. KATJU MARG.

STATE 
                                                                  VERSUS
(1)         SHAHNAZ  W/o Mukhtiar Ali,

R/O. F­2/98, Sector­16, Rohini, Delhi. ... Convict ORDER ON SENTENCE Shri A.K. Gupta, APP for the State and Shri Akhilesh Kumar, Advocate, proxy counsel for convict Shahnaz. Heard on quantum of sentence.

2. Vide judgment dated 25.11.2013, convict Shahnaz was convicted for offence u/s 302 and u/s 201 IPC.

3. The convict Shahnaz is aged about 45 years. She has two minor children i.e daughter aged about 8 yrs. and son aged about 15 yrs. She is in JC since 07.01.2010. Ld. Proxy counsel submits that convict is not involved in any crime previously and her antecedents are clear and offence of accused does not fall within the category of State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 89 of 86 90 rarest of rare, hence lenient view be taken.

4. The APP stated that the convicts is not entitled for any leniency as she has committed murder of victim Rakesh Gupta with whom she was residing as his wife and then dispose off his dead body by throwing the same into the gutter to destruct the evidence to avoid detection of murder of victim Rakesh. Hence the act of convict is quite grave and prayed that maximum sentence i.e death penalty be awarded to the convict under given facts and circumstances.

5. The protection of society by stamping out criminal proclivity is essential function of state. It can be achieved by imposing appropriate sentence. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts for imposing appropriate sentence. Any definite formula relating to imposition of sentence cannot be laid down. The object of sentencing is that the offenders does not go unpunished and the justice be done to the victim of crime and the society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 90 of 86 91 in which it was executed or committed etc. The measure punishment in a given case must depend upon the gravity of the crime; the conduct of the offender and the defence less and unprotected state of the victim. Imposition of appropriate punishment is the way adopted by the courts for responding the society's desire for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.

6. It was held in the case of Siddarama & Ors. V State of Karnataka, (2007) 1 SCC (Cri) 72 :­­ the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotic State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 91 of 86 92 drugs or psychotropic substances which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.

7. In case State of Punjab V Prem Sagar and Ors. (2008) 7 SCC 550 it was observed that the Indian Judicial System has not been able to develop legal principles as regards sentencing. It was further observed that whether the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality would depend upon the facts and circumstances of each case and while doing so nature of offence said to have been committed by the accused plays an important role. A wide discretion is conferred on the court but said discretion must exercise judicially while sentencing an accused. It would depend upon the circumstances in which the crime has been committed and the mental state and the age of the accused is also State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 92 of 86 93 relevant.

8. Section 302 IPC prescribed death or life imprisonment as a penalty for murder. The Indian Penal Code has under gone multi dimensional changes for the last three decades which indicates that the Parliament has taken note of contemporary criminological thought and movement. The Indian Penal Code reflects a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354 (3) Cr.P.C. It indicates that reformation and rehabilitation of offenders and no deterrence, are now among the foremost objects of the administration of criminal justice in the country. Section 354(3) Cr.P.C. is a part of emerging picture of acceptance by the legislature of the new trends in criminology. The personality of a offender revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed. The former rule that the normal punishment for murder is death is no longer State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 93 of 86 94 operative and it is now within the discretion of the court to pass either of the sentence prescribed in the Section 302 IPC.

9. In case Bachan Singh V State of Punjab, AIR 1980 SC 898 it was observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

10. In case Machhi Singh V State of Punjab, AIR 1983 SC 957, the guidelines are laid down which are to be kept in view, considering the question whether the case belongs to the rarest of rare category. It was observed that the following questions may be asked and answered as a test to determine the 'rarest of the rare' case in which death sentence can be inflicted:--

a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

11. In case Machhi Singh, the guidelines were culled out which are to be applied to the facts of each individual case where the State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 94 of 86 95 question of imposition of death sentence arises. The following preposition emerges from the Bachan Singh's case:­­ i. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

ii. Before opting for the death penalty the circumstances of the 'offender' also required to be taken into consideration along with the circumstances of the 'crime'.

iii. Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

iv.A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

12. In case Bablu @ Mubarak Hussain V State of Rajasthan, AIR 2007 SC 697, the Supreme Court observed as under :- State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 95 of 86 96

In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:

i. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

ii. When the murder is committed for a motive which evinces total depravity and meanness; e.g murder by hired assassin for money or reward or a cold­blooded murder for gains of a person vis­ a­vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.

iii. When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

iv.When the crime is enormous in proportion. For instance when multiple murders, say of all or State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 96 of 86 97 almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. v. When the victim of murder is an innocent child, or helpless woman or old or infirm person or a person vis­a­vis whom the murder is in a dominating position or a public figure generally loved and respected by the community.

13. Recently in Sushil Sharma V State of NCT of Delhi, Crl.

Appeal No.693/07 dt.08.10.13, the Hon'ble Supreme Court observed as under :­­

79. We notice from the above judgments that mere brutality of the murder or the number of persons killed or the manner in which the body is disposed of has not always persuaded this Court to impose death penalty. Similarly, at times, in the peculiar factual matrix, this Court has not thought it fit to award death penalty in cases, which rested on circumstantial evidence or solely on approver's evidence. Where murder, though brutal, is committed driven by extreme emotional disturbance and it does not have enormous proportion, the option of life imprisonment has been exercised in certain cases. Extreme poverty and social status has also been taken into account amongst other circumstances for not awarding death sentence. In few cases, time spent by the accused in death cell has been taken into consideration along with other circumstances, to commute death sentence into life State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 97 of 86 98 imprisonment. Where the accused had no criminal antecedents; where the State had not led any evidence to show that the accused is beyond reformation and rehabilitation or that he would revert to similar crimes in future, this Court has leaned in favour of life imprisonment. In such cases, doctrine of proportionality and the theory of deterrence have taken a back seat. The theory of reformation and rehabilitation has prevailed over the idea of retribution.

80. On the other hand, rape followed by a cold­ blooded murder of a minor girl and further followed by disrespect to the body of the victim has been often held to be an offence attracting death penalty. At times, cases exhibiting premeditation and meticulous execution of the plan to murder by levelling a calculated attack on the victim to annihilate him, have been held to be fit cases for imposing death penalty. Where innocent minor children, unarmed persons, hapless women and old and infirm persons have been killed in a brutal manner by persons in dominating position, and where after ghastly murder displaying depraved mentality, the accused have shown no remorse,death penalty has been imposed. Where it is established that the accused is a confirmed criminal and has committed murder in a diabolic manner and where it is felt that reformation and rehabilitation of such a person is impossible and if let free, he would be a menace to the society, this Court has not hesitated to confirm death sentence. Many a time, in cases of brutal murder, exhibiting depravity State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 98 of 86 99 and sick mind, this Court has acknowledged the need to send a deterrent message to those who may embark on such crimes in future. In some cases involving brutal murders, society's cry for justice has been taken note of by this court, amongst other relevant factors. But, one thing is certain that while deciding whether death penalty should be awarded or not, this Court has in each case realizing the irreversible nature of the sentence, pondered over the issue many times over. This Court has always kept in mind the caution sounded by the Constitution Bench in Bachan Singh that judges should never be bloodthirsty but has wherever necessary in the interest of society located the rarest of rare case and exercised the tougher option of death penalty.

81. In the nature of things, there can be no hard and fast rules which the court can follow while considering whether an accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. Therefore, the various factors like the age of the criminal, his social status, his background, whether he is a confirmed criminal or not, whether he had any antecedents, whether there is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and become a threat to the society are factors which the criminal court will have to examine independently in each case. Decision whether to impose death penalty or not must be taken State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 99 of 86 100 in light of guiding principles laid down in several authoritative pronouncements of this Court in the facts and attendant circumstances of each case.

14. In the instant case, the prosecution has proved that convict Shahnaz was residing with deceased Rakesh Gupta as his wife in flat no.G6/97, Sector­15, Rohini, despite the fact that she was previously married and was having children. She committed the murder of deceased by giving him beatings and then thrown his dead body into a gutter near MCD Shochalaya, Sector­26, Rohini. The act of the convict is quite grave as she had broken the trust of the deceased who was a young man and taken out a precious life. But the fact that victim/deceased himself was living in illicit relationship with convict. Nothing is on record what circumstances has led the convict to murder the victim/deceased. The convict is a young woman of 45 yrs. and was having two minor children to look after. As per PM report, the victim/deceased has been murdered by some blunt object which as per his opinion could be a cricket wicket, hence the act of convict is not so gruesome or diabolical. Hence taking into account all the incriminating and mitigating circumstances, in my view, the case does not fall within the category of rarest of rare case as explained in the judgment mentioned above. State V Shahnaz & ors. SC No.113/11 FIR no.9/11 PS KN Katju Marg Page 100 of 86 101

15. After considering the facts and circumstances of the case together, the convict Shahnaz is sentenced to life imprisonment along with fine of Rs.20,000/­ in default SI for six months for offence u/s 302 IPC and RI for five years along with fine of Rs.5,000/­ in default SI for three months for offence u/s 201 IPC.

16. Both the sentences shall run concurrently. The case property is confiscated to the State. Benefit of Section 428 IPC be given to the convict. Committal warrant be issued against the convict. A copy of the judgment and order on sentence be supplied to the convict free of cost forthwith. The file be consigned to the record room.

Announced in open court                                                   (Sanjeev Kumar)
on 30.11.2013                                               ASJ­01 (North) Rohini, Delhi. 




State V Shahnaz & ors.              SC No.113/11      FIR no.9/11       PS KN Katju Marg                                Page 101 of 86