Delhi District Court
Sc No. 41/2007 1 State vs Shahnawaz on 5 July, 2010
SC No. 41/2007 1 State Vs Shahnawaz
FIR No. 38/2007
PS Civil Lines
IN THE COURT OF SH. VINOD KUMAR
ADDITIONAL SESSIONS JUDGEI, NORTH DISTRICT, DELHI
Sessions Case no. 41/2007
FIR No. 38/2007
PS Civil Lines
U/s 302/397/34 IPC
State Vs Shahnawaz
S/o Sh. Nafeesh Khan
R/o H. No. 719, Gali No. 28,
Jafrabad, Seelampur, Delhi53.
Date of institution : 2.7.2007
Date of arguments : 25.5.2010
Date of judgement : 5.7.2010.
JUDGEMENT
1. Prosecution case in brief is that on 10.2.2007 an information (recorded as DD No. 6A about 7:48 am ) was received at police station Civil Lines that a person was lying unconscious at flyover near Monestry. SI Bhoop Singh and PCR Van Sugar8 reached at the spot and found a male aged about 52 years old lying dead. It appeared to be a case of fatal accident.
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FIR No. 38/2007
PS Civil Lines
2. During personal search of the deceased a driving license was recovered from his possession. From this driving license, the deceased was identified as Sadre Alam S/o Noor Alam R/o B 14/7/09 Chuahan Banger, Seelam Pur, Delhi. SI Bhoop Singh made endorsement Ex.PW11/B on the copy of DD and got the case registered under Section 279/304A IPC. SI Bhoop Singh summoned photographer at the spot and got the scene of occurrence photographed and seized the articles recovered from dead body vide memo EXPW11/F. The dead body was removed to Subzi Mandi Mortuary. SI Bhoop Singh prepared site plan with marginal notes which is Ex.PW11/C. The relatives of the deceased were informed. Abdul Kalam (PW6) the son of the deceased alongwith Allaudin (PW1) the owner of a three wheeler which used to be plied by the deceased, reached in the mortuary and they identified the dead body vide memo EXPW6/A. From these witnesses, police came to know that the deceased used to ply a three wheeler No. DL1RF7907, which he had taken on rent from Allaudin and that the three wheeler was missing. On that very SC No. 41/2007 3 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines day ie. 10.2.2007, Sub Inspector Bhoop Singh carried out inquiries and was informed by Ikram(PW2) and Anwar Ahmed (PW3), (both the three wheeler drivers who parked their three wheelers at TSR's Stand, Madrsa Zafrabad) that at about 6.30 am, one passenger had hired the TSR being driven by the deceased from Zafrabad Madarsa, TSR's Stand. On the next day ie 11.2.2007, the postmortem of the dead body was conducted and the dead body after postmortem examination was handed over to relatives of the deceased. As per postmortem report, it was found that the death was caused by a firearm injury and therefore it turned out to be a case of murder and on 13.2.2007, the case was entrusted to Inspector K.K. Upadhyay.
3. Prosecution alleges that on 12.2.2007, Sub Inspector Sunil Kumar ( the Incharge of police post Govindpuri, P.S Kalkaji)) alongwith HC Ombir, constable Abhay Raj and constable Narender was patrolling in the area of PP Govind Puri. At about 8.30 pm near Anandmai Marg, near Masjid, they apprehended the present accused on suspicion. On his search a country made pistol was SC No. 41/2007 4 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines recovered. SI Sunil Kumar got an FIR No 129/07 registered at P.S Kalkaji under Arms Act. This accused was arrested and interrogated and during interrogation he made disclosure statement that on 10.2.2007, he had hired a three wheeler scooter from Zafrabad and shot its driver dead and thereafter scratched the registration Number of three wheeler on its number plate and parked it at a mechanic's shop in Giri Nagar for changing its colour. The accused also led SI Sunil Kumar and other police officials to the shop No. 3A, Giri Nagar Market, Govindpuri, Kalkaji and pointed out to a three wheeler scooter No. DL1RF7907. Jitender ( PW9) the owner of the shop also reached there and identified the accused as the person who had given this three wheeler to him for changing its colour. Jitender told the police officials that he had asked the identity proof of the accused and ownership of the three wheeler scooter, to which accused replied that he would bring the same later on and left the shop. SI Sunil Kumar took the three wheeler scooter in possession, and Crime Team was called at the spot who lifted chance prints, photographed the TSR and SC No. 41/2007 5 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines inspected the same. Thereafter the case property was deposited in malkhana. SI Sunil Kumar sent the information about this fact to Duty Officer of P.S Civil Lines. He produced accused in Patiala House Court in muffled face where inspector K.K. Upadhyay met him.
4. On 13.2.2007 Inspector K. K. Upadhyay (PW33) took over further investigation. On examination of the file, Inspector K. K. Updhyay came to know that an information was received at police station vide DD No. 15A dt. 13.2.2007 in which it was mentioned that accused Shah Nawaz S/o Nafis R/o H. No. 719, Gali No. 28, Zafrabad, who was arrested in case FIR No. 129/2007 under Section 25 Arms Act PS Kalkaji had disclosed during the course of investigation regarding his involvement in this case and about commission of murder of three wheeler driver on 10.2.2007. It was also mentioned in the DD that accused Shah Nawaz will be produced in court no. 14, Patiala House. On this Inspector K. K. Upadhyay went to Patiala House Court and met the Sub Inspector Sunil Kumar P.S Kalkaji and took the documents i.e. copy of the SC No. 41/2007 6 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines disclosure statements, recovery memos and statements of the witnesses in case FIR No. 129/2007. Inspector K. K. Upadhyay requested SI Sunil Kumar to keep and produce the accused in muffled face in court. Thereafter Inspector K. K. Upadhyay went to the concerned court of PS Civil Lines and got issued production warrants of the accused for 14.2.2007. On 14.2.2007 Inspector K. K. Upadhyay along with HC Raj Kumar, Ct. Subhash went to court. Accused Shah Nawaz was produced in court. Accused was interrogated and arrested with the permission of the court vide arrest memo Ex.PW29/A. Disclosure statement of accused Shah Nawaz recorded vide Ex.PW29/C. The accused was sent JC in muffled face as his Test Identification Parade was to be conducted. Inspector K. K. Upadhyay along with Ct. Subhash, HC Raj Kumar went to the scene of the crime Ring Road, Flyover near Monestary leading to Shahdara. The previous IO SI Bhoop Singh was called at the spot and spot was minutely inspected and one deformed fired bullet was found at the spot. Inspector K. K. Upadhyay prepared the sketch of deformed fire bullet vide Ex.PW11/H. The SC No. 41/2007 7 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines same was kept in an empty match box and converted into sealed cloth parcel with the seal of KKU and seized vide seizure memo Ex.PW11/G. Exhibit was deposited in the Malkhana. On 16.2.2007 Inspector K. K. Upadhyay went to PS Kalkaji and collected a sealed cloth parcel of katta along with FSL form and TSR no. DL 1RF 7907 from Malkhana of PS Kalkaji vide RC No. 23/21. Inspector K. K. Upadhyay recorded the statements of the police officials/witnesses at PS Kalkaji. On the way to PS Civil Lines from PS Kalkaji, statement of a public witnesses namely Jitender Kumar Kukreja(PW9) was recorded as accused Shah Nawaz had gone to his shop for denting and painting work of TSR as per disclosure staement of accused. Inspector K. K. Upadhyay came back to PS Civil Lines and deposited the case property in PS Malkhana. Inspector K. K. Upadhyay also converted the case under Section 302/397/201 IPC.
5. On19.2.2007 Inspector K. K. Upadhyay along with witnesses Anwar and Ikram had gone to Tihar Jail for the TIP o the accused. But accused refused to participate in TIP proceedings. Production SC No. 41/2007 8 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines warrants of the accused were issued for 22.2.2007 and the accused was produced in the court and he was taken on one day police custody remand. Pursuant to his disclosure statement, accused Shah Nawaz led the police to his house No. 719, Gali No. 28, Zafrabad, Delhi where accused pointed out towards small drain in front of his house and got recovered a fired empty cartridge from the drain. The fired empty cartridge was cleaned and its sketch was prepared vide memo Ex.PW29/D. It was convertd into a sealed cloth parcel with the seal of KKU and seized vide seizure memo Ex.PW29/E. Thereafter accused led police to a room at the first floor of the house and he pointed out an iron almirah kept there. One polythene of white colour was kept on the almirah. At the instance of the accused said polythene was taken into possession and checked and it was found to contain 8 documents relating to TSR no. DL 1RF 7907. The said documents were seized vide seizure memo Ex.PW29/F. Accused also got one pant of dark gray colour recovered from inside the same almirah which he had stated to have worn at the time of offence and the same SC No. 41/2007 9 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines was blood stained. The pant was kept in a polythene and converted into a sealed cloth parcel sealed with the seal of KKU and seized vide seizure memo Ex.PW29/G. The seal after use was handed over to Ct. Subhash Chand. When the police officials were coming back to PS Civil Lines and reached at main road near Khatta, witnesses namely Anwar(PW3) and Ikram (PW2) met them and they identified the accused and stated that accused was the same person who had hired the TSR of Sadre Alam (deceased) on 10.2.2007 at about 6 am and had taken Sadre Alam with him in the said TSR. Inspector K. K. Upadhyay recorded the statements of these witnesses and deposited the case property in Malkhana of PS Civil Lines.
6. On 27.2.2007 Inspector K. K. Upadhyay sent the exhibits from Malkhana to FSL Rohini for examination through Ct. Chander Mohan. After depositing the exhibits in FSL Rohini, Ct. Chander Mohan came back to the PS and deposited the receipt in Malkhana. Inspector K. K. Upadhyay recorded the statement of Ct. Chander Mohan and MHC(M).
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FIR No. 38/2007
PS Civil Lines
7. On 8.3.2007 spot was inspected by Inspector Devender, Draftsman at the instance of Inspector K.K. Upadhyay and of SI Bhoop Singh. Later on Inspector K. K. Upadhyay collected the scaled site plan from Inspector Devender. Inspector K. K. Upadhyay sent the finger prints of accused to Finger Print Bureau Malviya Nagar for comparison and collected the result. Inspector K. K. Upadhyay filed the result of FSL which is Ex.PA, Ex.PB & Ex.PC. Inspector K. K. Upadhyay filed the photographs which are Ex.P3 to Ex.PE with details.
8. As per the report of Finger Prints Expert (PW27) the chance prints lifted from the TSR matched with the finger prints of accused. As per FSL report, the pant recovered at the instance of accused was found to have blood of human origin. Inspector K. K. Upadhyay completed the investigation and challan was filed.
9. After compliance of Section 207 CrPC the case was committed to Sessions Court. A charge under Section 302/397/201 IPC was framed against the accused to which he pleaded not guilty and SC No. 41/2007 11 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines claimed trial.
10. In order to prove its case prosecution examined following witnesses :
PW1 Allauddin is the owner of three wheeler no. DL1RF 7907. He testified that this three wheeler was being plied by Sadre Alam the deceased on rent. On 11.2.2007 he came to know that Sadre Alam had met with an accident and therefore he reached police station Civil Lines. Thereafter he went to mortuary where he identified his dead body. On the same night, he was informed by his neighbour that he had received a telephonic call from PP Kalkaji for him and on next day he along with two drivers, who were plying auto with Sadre Alam went to Kalkaji police chowki and there he identified the said three wheeler. In cross examination he stated that the information of recovery of auto was given to him on phone at 11:00 am on 11.2.2007. He further stated that on 12.2.2007 he went to police station and saw his three wheeler, which was parked in the back side of the chowki.
PW2 Ikram testified that he plies a three wheeler on rent. On 10.2.2007 at about 6:00 am he was waiting for passengers in his SC No. 41/2007 12 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines TSR at Jafrabad Madarsa. Sadre Alam (deceased) and Anwar along with TSR No. 7907 were also waiting for the passengers.
One passenger hired the three wheeler of Sadre Alam but this witness could not identify the accused as the same passenger.
PW3 Anwar Ahmad is also another three wheeler driver who saw one passenger hiring the three wheeler Sadre Alam but he could not identify the accused as the same person who hired the three wheeler of Sadre Alam.
PW4 Abdul Sattar, PW5 Ashif Khan, PW6 Abdul Kalam relatives of the deceased, identified the dead body of Sadre Alam.
PW7 Ct. Sanjay Kumar took the five photographs Ex.PW7/1 to Ex.PW7/5 of the scene of crime.
PW8 Ct. Narender Singh, PW23 Ct. Abhay Raj and PW34 SI Sunil Kumar of police station Kalkaji testified that they were on patrolling duty in the are and on suspicion they apprehended the accused and that he was found having in possession one country made pistol and the accused disclosed about this crime and got the TSR of the deceased recovered from the shop of Jitender SC No. 41/2007 13 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines (PW9).
PW9 Jitender Kumar is the owner of the shop Kalia Auto Works where he does the work of denting, painting of auto vehicles. He testified that on 10.2.2007 at about 9.30 am , accused brought a three wheeler scooter with registration No. DL1RF7909 for repairs. The registration number plate was scratched and there were other dents on the vehicle. Since number plate was found scratched, PW9 asked the accused to produce the I card and documents of the vehicle. The accused left the vehicle at the shop and said that he will come back with the identity proof and the documents. He further testified that on 13.2.2007, accused was brought to his shop by the police and three wheeler scooter was seized by the police vide seizure memo EXPW9/A. PW10 Ct. Jogender is police driver who took the dead body from the Flyover to the mortuary Subji Mandi.
PW11 SI Bhup Singh sent the initial Investigating Officer of P.S Civil Lines, at whose instance FIR U/S 279/304A IPC was SC No. 41/2007 14 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines registered. He conducted the initial investigation.
PW12 Kunal Chaudhary, at the time of passing through the Flyover, saw the dead body of the deceased and therefore he informed PCR from his mobile phone about this fact.
PW13 Dr. S. Lal, Junior Specialist, Forensic Medicine conducted postmortem. He observed as many as 8 injuries. Injury No. 1 was a firearm entry would on the back of upper neck of the deceased and he opined that this firearm injury was the cause of the death.
PW14 Retired Inspector Devender Singh was posted as inspector Crime Branch. On being called by the Investigating Officer, he reached at the Flyover Bridge on 8.3.2007, took rough notes and measurement and prepared scaled site plan EXPW14/A. PW15 ASI Beer Singh is the MHCM at P.S Kalkaji. He testified that SI Sunil Kumar deposited three wheeler scooter and other exhibits in malkhana.
PW16 HC Hoshiyar Giri was on duty at PCR Van. On
10.2.2007, on receiving a call, when he reached at the flyover
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FIR No. 38/2007
PS Civil Lines
where he found a dead body. He testified that since dead body was lying on the road, therefore, he presumed that the said person had expired in fatal accident. SI Bhoop Singh came at the spot. At that time it was raining.
PW17 ASI Suresh Rani was posted as Duty Officer in P.S Civil Lines on 13.2.2007. At about 12.20m pm, she was informed by SI Sunil Kumar the chowki incharge about the arrest of the accused in FIR No. 129/07 of PS Kalkaji and that this accused had also disclosed about the murder of TSR driver at the flyover and that accused would be produced in patiala House Court. This information was recorded in DD no 15 A which is EXPW17/A. She informed about this fact to the SHO and copy of DD was handed to SI Bhoop Singh.
PW18 Inspector R. S. Maan has testified that on 10.2.2007, he was posted as Duty Officer at P.S Civil Lines. He recorded FIR No. 38/07 U/S 279/304A IPC. Copy of which is EXPW18/A. PW19 Ct. Chander Mohan took six pulandas on 27.2.2007 from MHCM of PS Civil Lines and deposited the same in FSL SC No. 41/2007 16 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines Rohini.
PW20 Ct. Kashi Nath was posted in PCR van on 10.2.2007 and received a telephone call from one Kunal Chaudhary from his mobile phone about the person lying unconscious on Flyover. Said information was recorded in CRDD No. 3148, copy of which is EXPW20/A. PW21 Ct. Ravinder Singh joined in the investigation with initial Investigating Officer SI Bhoop Singh.
PW22 HC Ombir Singh recorded FIR No. 129/07 PS Kalkaji. Copy of FIR is EXPW22/A. PW23 constable Abhayraj accompanied SI Sunil Kumar ( PW34) in his investigation.
PW24 Raj Kumar is Assistant Ambulance Officer. He took the dead body in his ambulance from the spot to the hospital.
PW25 ASI Hira Singh ASI Hira Singh testified that on 10.2.2007, he recorded an information at serial No. 6A ( EXPW11/A) and handed over its copy to SI Bhoop Singh for investigation.
PW26 ASI Anoop Kumar Singh lifted four chance prints from SC No. 41/2007 17 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines the three wheeler scooter at the instance of SI Sunil Kumar on 13.2.2007. He proved his report EXPW26/A. PW27 Sh. Sheovraj Singh Finger print Expert proved his report EXPW27/A and testified that the chance prints picked up from the three wheeler scooter matched with the finger prints of the accused.
PW28 Ct. Yogesh Kumar took part in investigation with SI Bhoop Singh, the initial Investigating officer.
PW29 HC Raj Kumar joined investigation with inspector K.K. Upadhyay, the main Investigating Officer.
PW30 Ct. Subhash Chand also joined investigation with inspector K.K. Upadhyay.
PW31 Sh. Ashutosh Kumar, ACMM, Rohini testified that accused refused to take part in TIP. He proved his proceedings EXPW31/A. PW32 HC Surender Kumar is MHCM of PS Civil Lines. He proved the relevant entries to deposit the case property. He also testified that on 27.2.2007, he sent the case property to FSL SC No. 41/2007 18 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines through constable Chander Mohan.
PW33 Inspector K. K. Upadhyay Inspector KK Upadhyay is the main Investigating Officer.
PW34 SI Sunil Kumar, incharge Police Post Govind Puri, P.S Kalkaji effected recovery of the three wheeler scooter at the instance of the accused from the shop of Jitender.
PW35 HC Ombir Singh HC Ombir Singh had accompanied SI Sunil Kumar at the time of recovery of three wheeler scooter.
11. In statement under Section 313 CrPC accused denied all the accusations and examined DW1 Amiruddin in his defence. This witness is the brother of the accused and testified that on 10.2.2007 at about 11 am, accused Shahnawz had gone for some work but did not return till night. He went to P.S Seelampur on 12.2.2007 to lodge missing report. He again went to P.S Seelampur on 12.2.2007 and lodged missing report DD No. 32A dt. 12.2.2007, P.S Seelampur. Copy of which is EXPW11/A. He testified that on 10.2.2007, accused got up at about 8 am and since the intervening night of 9/10207 he remained with him in SC No. 41/2007 19 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines his house up to 11 am. Perusal of the testimony of this witness would show that he lodged the missing report of his brother on 12.2.2007 vide DD No. 32A although he testifies that accused did not return on the night of 10.2.2007. The accused had been arrested by the police station of Kalkaji on 12.2.2007. I have no reason to believe that this witness went to police station on 10.2.2007 to lodge the missing report. Furthermore his testimony that the accused had left his house at about 11 am on 10.2.2007 is not worthy of credence as it appears to be an after thought. I may point out that in his statement U/S 313 CrPC, accused does not state anywhere that before 11 am on 10.2.2007, he was available in his house with his brother Amiruddin ( DW1). Hence the testimony of DW1 is after thought and not believable.
12. Ld Defence counsel argues that there is no last seen evidence in the present case because PW2 and PW3 produced as last seen witnesses have not supported the prosecution case that accused had hired the three wheeler of the deceased. Ld defence counsel argues that even the country made pistol SC No. 41/2007 20 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines recovered from the accused could not be connected with the present crime and that is the reason that accused is facing a separate trial under 25 Arms Act for having in possession a firearm in the court of Ld Metropolitan Magistrate in FIR No. 129/07, P.S Kalkaji. Moreover the cartridge and the bullet could not be connected to the crime. Ld defence counsel argues that the only evidence against the accused is recovery of three wheeler from shop of Jitender and recovery of its documents from the possession of the accused. Ld defence counsel argues that the evidence of recovery of the three wheeler and its documents has been manufactured by the police. Ld defence counsel has drawn my attention to the testimony of PW1 Alaudin. He testified that on 11.2.2007 his three wheeler was being plied by the deceased. On the same night, he was informed by his neighbours about the telephone call from police post Kalkaji. On next day, he alongwith two drivers reached Kalakji Police chowki where he identified his three wheeler scooter. Ld defence counsel argues that this witness makes it clear in his cross examination that he had seen SC No. 41/2007 21 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines the three wheeler in police chowki on 12.2.2007. Ld defence counsel argues that as per prosecution case, the three wheeler scooter was recovered from Jitender ( PW9) on 13.2.2007. It is submitted that the three wheeler scooter was already in possession of the police before 13.2.2007 and it was planted by the police upon the accused and therefore the entire prosecution case that three wheeler scooter was recovered from the shop of PW9 has become highly doubtful.
13. On the other hand, Ld Addl. Public Prosecutor argues that the testimony of PW1 was recorded on 17.1.2008 ie after about one year and therefore, there are chances of forgetting a few details and the date and time and therefore, the testimony of police officials that the three wheeler scooter was recovered on 13.2.2007 should not be disbelieved especially in view of specific testimony of PW9 Jitender Kumar that on 13.2.2007, accused was brought to the shop by the police and TSR was recovered by the police.
14. I have considered the rival submissions. I agree that the SC No. 41/2007 22 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines prosecution has been unable to prove the last seen evidence and the investigation could not connect the pistol recovered from the accused and the empty cartridge recovered at his instance with present crime. However, I disagree with the submission of Ld defence counsel that the three wheeler had already recovered by the police prior to 13.2.2007. In order to understand the testimony of PW1,Allaudin, it is necessary to reproduce the relevant portion which is as under:
''On 11.2.07, I am the owner of the TSR No. DL1RF7907 which was plying by Sadray Alam on rent. On knowing that Sadray Alam met with an accident he was plying auto. I reached at P.S Civil Lines. There I was informed by police official to identify the dead body of Sadray Alam which was lying in the mortuary. I alongwith Abdul Kalam reached at mortuary. There I identified the dead body of Sadray Alam vide memo EXPW1/A bearing my signatures at point A. On the next day, the dead body was handed over to us after its postmortem. The dead body was handed over to us vide memo EXPW1/B bearing my signatures at point A. On the same night I was informed by my neighbour that he received a telephone call from PP Kalkaji for me. On the next day I alongwith two drivers SC No. 41/2007 23 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines who plying auto with Sadray Alam went to the Kalkaji police chowki in police vehicle here I identified the abovesaid TSR number.''
15. This shows that on 11.2.2007, he came to know that Sadre Alam had met with an accident and he went to mortuary and identified the dead body. Therefore he does not tell the dates. Rather he simply uses the expression like '' on the next date''. But in cross examination, he tells the date of going to police station as 12.2.2007, which may be out of forgetfulness. Had he remembered the date, he would have specifically stated it in his examination in chief. Therefore it appears that in cross examination his statement of dates is only a guesswork. I agree with the submission of Ld Addl. Public Prosecutor that after lapse of one year, there may be confusion about the date and time. PW9, Jitender Kumar, on the other hand is very specific about the date and testifies that on 13.2.2007 at about 10.30 am accused was brought to his shop by the police. He also testifies that photographs of the three wheeler were taken while it was in his possession ie at his shop. These photographs are on judicial file.
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PW34 SI Sunil Kumar and the other police officials have testified that they had arrested the accused on 12.2.2007 while he was having a firearm in his possession. During interrogation, accused made a disclosure statement and disclosed that on 10.2.2007, he had hired a TSR near Jafrabad and had killed the driver of the three wheeler and that after scratching the registration No. of the TSR, he had given the same at a mechanic shop for changing its colour. As per testimony of PW34, the accused led the police to shop No. 3A, Giri Nagar Market, Govind Puri and pointed out the three wheeler in question which was parked outside the shop. Jitender(PW9) the owner of the shop identified the accused as the same who had given three wheeler scooter to him for changing the colour. PW9 has testified that when he saw that the registration No. of the three wheeler scooter was scratched, he asked him to produce the ID card and documents of the vehicle but the accused left vehicle with him and said that he would come back with the documents but accused did not return on the said day, rather on 13.2.2007, at about 10.30 am, accused was brought to his shop by SC No. 41/2007 25 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines the police. The perusal of the evidence of witnesses i.e PW9 Jitender Kumar, PW34 SI Sunil Kumar, constable Abhay Raj (PW23) and constable Narender (PW8) have fully supported the prosecution case that the three wheeler scooter was recovered from the shop of Jitender ( PW9) on 13.2.2007. Therefore, testimony of PW1 Allaudin about the dates arises simply out of confusion due to lapse of time. I may point out that even the date 11.2.2007 as testified by this witness in his examination in chief to reach the police station Civil Lines on hearing the incident is not correct. In cross examination he denied that his statement was recorded in police station on 10.2.2007 and added that police had made some inquiries from him on 10.2.2007. As per the prosecution case itself, this witness was called on 10.2.2007 itself and had identified the dead body. I may point out that the identification memo EXPW6/A not only bears the signatures of Abdul Kalam the son of the deceased but also of Allaudin. This memo is dated 10.2.2007. Therefore, it is clear that even in examination in chief, instead of telling the date as 10.2.2007, this SC No. 41/2007 26 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines witness is stating that he reached police station Civil Lines and thereafter went to mortuary to identify the dead body. In such circumstances, when he is confusing about the dates, it would not be justified to accept his version that police had informed about the recovery of the three wheeler on 12.2.2007. I may add that this witness is aged about 60 years and had come to the court to testify after about one year.
16. Ld defence counsel had filed certified copies of the statement of Jitender recorded by Ld metropolitan Magistrate while trying case FIR No. 129/07, PS Kalkaji U/S 25 Arms Act. It is stated that this witness namely Jitender (PW9) was examined by Ld Metropolitan Magistrate in the said case as PW3. However, he stated that accused is not the same person who had parked the vehicle in his shop and that his signatures were taken on blank paper by the police. I have perused this testimony. PW9 Jitender was examined before this court on 2.6.2008 whereas he was examined by Ld Metropolitan Magistrate on 30.3.2010. In fact, the said case ie FIR No. 129/07, PS Kalkaji was registered U/S 25 Arms Act SC No. 41/2007 27 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines only for recovery of a firearm( which could not be connected with the present murder case ). The accused has filed the certified copies of the entire chargesheet, charge and evidence. This material would show that the question of recovery of three wheeler from the shop of Jitender is not a fact in issue in the said case. Further the said Jitender is not a witness to the recovery of firearm. Therefore, it is clear that the prosecution has unnecessarily cited him as a witness in that case. Nevertheless, a witness cannot be contradicted with his subsequent statement. As per Section 145 of Indian Evidence Act, a witness can be contradicted with his previous statement only. Since, the statement of Jitender was recorded in FIR No. 129/07, P.S Kalkaji, much later in time, therefore the same cannot be used to wash out the effect of testimony of Jitender before this court, which is well supported by the testimonies of the police officials. The testimony of PW9 Jitender before this court is truthful and worthy of credence.
17. PW33 Inspector K.K. Upadhyay has testified that an information SC No. 41/2007 28 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines was received in P.S Civil Lines that accused arrested in P.S Kalkaji had disclosed his involvement about the commission of murder of three wheeler driver and that he would be produced in Patiala House. PW33, Inspector K.K. Upadhyay has further testified that he arrested the accused in the court and recorded disclosure statement of accused which is EXPW29/C. Thereafter accused led the police ie Inspector K.K. Upadhyay and other police officials of P.S Civil Lines to his house and got recovered the documents of three wheeler scooter No. DL1RF7907 which was seized vide seizure memo EXPW29/F. Accused also got recovered one pant of dark grey colour from inside of the same almirah which he was stated to have worn at the time of offence and the same was found to be blood stained. This pant was also recovered and when sent to FSL, this pant was found to contain the blood of human origin vide FSL report EXPB & EXPC. The testimony of the police officials regarding the recoveries are consistent and I do not find any reason as to why their evidences should be disbelieved. Therefore, the submission of Ld defence SC No. 41/2007 29 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines counsel that the three wheeler and its documents were already in its possession is unworthy of credence.
18. As per prosecution case, the finger prints of the accused were found on the three wheeler. In this regard, the testimony of PW9 Jitender Kumar is to be seen. PW9 is the owner of the shop fromwhere the three wheeler was recovered. Ld Defence counsel argues that this witness does not state that any Finger Print Expert had picked up the finger prints from the three wheeler scooter. Ld defence counsel has also drawn my attention to the fact that the three wheeler scooter when parked in his workshop could have been touched by anyone. On the other hand, Ld APP has drawn my attention to the testimony of PW26 of ASI Anoop Kumar Singh of Finger Print Bureau that he lifted four chance prints from the three wheeler scooter. Testimony of PW27, Shoraj Singh, Finger Print Expert states that three chance prints were found identical with left thumb impression, first phalanges of left middle finger and right thumb impression of the accused. The report EXPW26/A of ASI Anoop Kumar Singh who lifted the finger prints SC No. 41/2007 30 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines would show that these finger prints were picked up from the rear view mirror right side and inner side of the TSR below right rear view mirror as well as the inner side of TSR below the right side mirror. Although there is no reason to disbelieve the testimony of the police officials regarding the lifting of the finger prints, but at the same time, the possibility cannot be ruled out that when the accused was produced at the shop of Jitender, the accused might have touched the three wheeler. In such circumstances, it would be safer to leave aside the evidence of Finger Prints Expert against the accused.
19. In view of above discussion, the following chain of circumstances have been proved by the prosecution:
A) Sadre Alam ( the deceased) was plying three wheeler scooter No. DL1RF7907 belonging to Alaudin (PW1) on rent and was last seen by PW2 and PW3 at about 6 am on 10.2.2007 while taking a passenger.
B) On 10.2.2007, Sadre Alam was found dead at about 7.48 am on flyover near Monastery Market, Civil Lines more specifically shown in site plan EXPW11/C. SC No. 41/2007 31 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines From the personal search of the deadbody, D.L of the deceased was found which revealed his name as Sadre Alam.
C) On 10.2.2007, at about 9.30 am, accused brought this three wheeler scooter No. DL1RF7907 for repairs to the shop of Jitender Kumar (PW9).
D) The postmortem which was conducted on 11.2.2007, by Doctor S. Lal (PW13) the cause of death was on account of the injury produced by projectile of firearm and therefore it is clear that it was a case of murder and not of accident. Since the firearm projectile has entered from the back side of neck, suicide is ruled out. E) On 12.2.2007, accused was arrested by the police of P.S Kalkaji and he disclosed about this offence and led the police to the shop of PW9 Jitender and got recovered the three wheeler scooter in question from the shop of PW9.
F) This fact was informed by the police of Kalkaji to police station Civil Lines. Consequent to it, inspector K.K. Upadhyay (PW3) who was already investigating the case, arrested the accused and recorded his disclosure statement EXPW29/C and at SC No. 41/2007 32 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines the instance of the accused, recovered the documents ie Registration Certificate of this three wheeler, copy of Insurance, Permit, fitness certificate etc of this three wheeler scooter which were recovered vide memo EXPW29/F. G) At the instance of accused, one pant was also recovered from the almirah vide memo EXPW29/G and as per FSL report EXPB,PC, the blood on this pant was of human origin.
H) This question was put to the witness in statement U/S 313 Cr.P.C in question No. 25 and 29. The accused did not give any explanation to this evidence.
20. To my mind, the above stated proved circumstances lead to an inescapable conclusion that it is the accused who had killed Sadre Alam. It is pertinent to note that the murder was committed between 6 am to 7.30 am on 10.2.2007 in the jurisdiction of P.S Civil Lines. The number of the three wheeler scooter was found scratched. This shows that the offender must have taken some time to do the scratching of the number of the auto. The accused brought the three wheeler scooter to the shop of PW9 at about SC No. 41/2007 33 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines 9.30 am ie shortly after the murder. Accused does not explain as to how he was in possession of the three wheeler scooter shortly after the murder of the TSR driver. Non explanation of this fact by the accused leads to only one conclusion ie the guilt of the accused in commission of the offence. It is not defence of the accused that when he came in possession of the three wheeler scooter, its driver had already been killed by some another person. The evidence that the documents of the vehicle were not shown by him to Jitender Kumar points out to malafide intention of the accused, because had he shown the actual documents, the shop owner PW9 must have come to know not only the actual number of the three wheeler scooter but also the name and address of the owner of the three wheeler. In fact, the conduct of PW9 Jitender Kumar in asking for the document is very natural in view of the fact that three wheeler scooter, which was produced in shop for repainting at had its number scratched. These documents of TSR recovered from the possession of the accused further corroborate the prosecution case. The cumulative effect of all SC No. 41/2007 34 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines these circumstances proves that the accused had committed murder of the driver with a view to commit robbery of the three wheeler scooter. Since the driver has been shot by a firearm, obviously with a view to commit robbery, therefore I hold that prosecution has been able to prove its case beyond reasonable doubt U/S 397 IPC as well as U/S 302 IPC. Accordingly, accused is convicted U/S 397/302 IPC.
Announced in open court
on 5.7.2010. VINOD KUMAR
ADDL. SESSIONS JUDGE01
NORTH DISTRICT, DELHI
SC No. 41/2007 35 State Vs Shahnawaz
FIR No. 38/2007
PS Civil Lines
IN THE COURT OF SH VINOD KUMAR ADDL. SESSIONS JUDGE 01 NORTH DISTRICT DELHI Session Case No. 41/07 FIR No. 38/07 PS Civil Lines U/S 302/397/34 IPC State Vs Shahnawaz 12.7.2010.
ORDER ON SENTENCE PRE: Ms Alka Goyal, Ld Addl. P.P. for State.
Convict from J.C with counsel Sh Mohd. Salim, advocate . Considering all facts and circumstances, I sentence the convict to rigorous imprisonment for seven years and a fine in the sum of Rs 1000/ U/S 397 IPC. In default of payment of fine, he shall undergo simple imprisonment for one month.
I have also considered the circumstances in which the murder was committed. In commission of the murder, no extraordinary cruelty has been shown by the convict. Therefore, the offence does not fall with the category of ''rarest of rare cases''. Hence, I sentence the convict to imprisonment for life and a fine in the sum of Rs 1000/ U/S 302 IPC. In default of payment of fine, he shall further undergo simple SC No. 41/2007 36 State Vs Shahnawaz FIR No. 38/2007 PS Civil Lines imprisonment for one month. Both the sentences shall run concurrently. Benefit U/S 428 Cr.P.C be given. Copy of judgment be supplied free of cost to the convict. File be consigned to Record Room. Announced in open court on 12.7.2010. VINOD KUMAR ADDL. DISTRICT JUDGE 01 NORTH DISTRICT DELHI