Delhi District Court
State vs Sher Khan on 19 August, 2017
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE (PILOT COURT)
WEST: TIS HAZARI COURTS: DELHI
SC No.57328/16
FIR No. 153/13
U/s. 302/114/201/120B/34 IPC
P.S Ranjit Nagar
In the matter of :
State
versus
1. Sher Khan
S/o Mohd. Jamal Master
R/o Jhuggi No.A-386, Bihari
Camp, Kathputli Colony,
New Patel Nagar, Delhi.
Permanent address:
Village Jorpura, PS Tajpur
District Samasti Pur, Bihar.
2. Farid @ Bhutwa
S/o Mohd. Abdul Gafur
R/o Jhuggi No. E-445, Bihari
Camp, Kathputli Colony,
Delhi.
Permanent Address:
Village Madhopuri, PS Behra,
District Darbhanga, Bihar.
3. Md. Raza
S/o Mohd. Abdul Gafur
Sessions Case No. 57328/16 Page 1/113
Jhuggi No. E-445, Bihari
Camp, Kathputli Colony,
Delhi.
Permanent Address:
Village Madhopuri, PS Behra,
District Darbhanga, Bihar.
Date of Institution : 30-10-2013
Date of reserving Judgment : 11-08-2017
Date of pronouncement : 19-08-2017
Appearances
For the State : Ms. Reeta Sharma,
Additional Public Prosecutor.
For the Accused persons : Shri Praveen Dabas, Advocate.
JUDGMENT
Accused persons namely, Sher Khan son of Mohd. Jamal Master, aged 21 years,Farid @ Bhutwa son of Mohd. Abdul Gafur aged 35 years and Mohd. Raza son of Mohd. Abdul Gafur, aged about 18 years 5 months were sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) submitted on 19.10.2013 upon conclusion of investigation into First Information Report (FIR) no. 153/2013 of police station (PS) Ranjit Nagar for the offences Sessions Case No. 57328/16 Page 2/113 punishable under Sections 302/114/201/120B/34 of the Indian Panel Code, 1860 (IPC).
Prosecution Version
2. According to the prosecution story, vide DD No. 8A dated 19.07.2013, an information regarding two dead bodies lying under Shadipur flyover, was received. A copy of above DD entry, was handed over to SI Sumit Kumar through Ct. Rajbir and accordingly, SI Sumit Kumar alongwith Ct. Kirori Mal and Ct. Rajbir reached at the place of occurrence i.e. under Shadipur flyover where they found two male dead bodies lying near the railway lines. Neither any eye witness nor the person, who made call to the PCR could be met on the spot. Both the deceased persons were identified by one Mohd. Moti S/o Amirul Hasan R/o A-235, Bihari Camp, Kathputli Colony, Delhi as his son Mehtab @ Dhanne and Noor Alam @ Gaira as his relative. There were injuries on the head, face and stomach of deceased Mehtab @ Dhanne and blood was oozing out of right ear while deceased Noor Alam had injuries on his head and left leg. There were dragging marks on the grass near the dead bodies, giving rise to suspicion that both the deceased Sessions Case No. 57328/16 Page 3/113 persons had been murdered somewhere else and later on, their dead bodies were brought at the place of incident. Two red coloured slippers and one grey coloured slipper were also found lying near the battery boxes of Railway on the spot.
3. After sometime on being informed, SHO, other senior police officials, crime team, photographer as well as dog squad team also reached at the spot. The place of incident was got inspected and photographed by the crime team. Both the dead bodies were sent to DDU hospital for postmortem examination through constable Kirori Mal. SI Sumit Kumar got the FIR no. 153/2013 under Section 302 IPC registered by sending Tehrir through Ct. Rajbir Singh. After registration of the FIR, further investigation was handed over to Inspector Arjun Singh, the Investigating Officer (IO). During further investigation, site plan was prepared by the IO and exhibits were lifted from the place of incident and were seized. Inquest papers were prepared and on 20.07.2013, postmortem examination of both the deceased persons was got conducted. The Viscera, blood stained clothes and blood sample of both the Sessions Case No. 57328/16 Page 4/113 deceased persons were preserved by the doctors for further examinations. After postmortem examination, both the dead bodies were handed over to their relatives.
4. Further, I.O recorded the statements of father, mother and wife of deceased Mehtab @ Dhanne as well as mother and brother of deceased Noor Alam @ Gaira whereby it was revealed that one day prior to Holi festival in the year 2013, a quarrel had taken place between deceased Mehtab @ Dhanne and one Khurshid, brother of accused Sher Khan on the issue of chewing Gutkha. During the said quarrel, accused Sher Khan and accused Farid @ Bhutwa (relative of accused Sher Khan) had beaten Mehtab @ Dhanne (deceased). Later on, due to the intervention of local residents, the matter was got compromised between both the parties in the police station. However, at that time accused Farid @ Bhutwa had threatened Mehtab @ Dhanne (deceased) to face dire consequences.
5. During the course of investigation, when the search for accused Sher Khan and accused Farid @ Bhutwa was being made, two persons namely, Chhote Lal S/o Sattan Mahto and Danish @ Dillagi Sessions Case No. 57328/16 Page 5/113 residing in the jhuggi of Sher Khan were traced and interrogated. Chhote Lal and Danish @ Dillagi disclosed that both of them alongwith Kalim, Suresh, Mohd. Munir @ Pappu, Mustafa, Imran, Khursheed and Shahid used to reside in the jhuggi of accused Sher Khan. In the intervening night of 18/19.07.2013, when all of them were about to sleep, they had seen accused Farid @ Bhutwa with 3 unknown persons outside the gali near the jhuggi. At about 11 p.m-12 midnight accused Farid @ Bhutwa and those three unknown persons had entered the jhuggi dragging and beating Mehtab @ Dhanne and Noor Alam @ Gaira. Door of the jhuggi was closed and all of them started beating both Mehtab @ Dhanne and Noor Alam @ Gaira mercilessly with fists and blows and when both of them fell on the ground, accused Farid @ Bhutwa and his associates assaulted both of them with rods and knives, which were kept in a blanket. Mehtab @ Dhanne and Noor Alam @ Gaira died on the spot. Thereafter, accused Farid @ Bhutwa and his associates wrapped both the dead bodies in the said blanket and took them away. They had threatened them to Sessions Case No. 57328/16 Page 6/113 remain quiet and to clean the place. Accused Sher Khan also instructed to clean the jhuggi.
6. During further investigation of the case, on 23.07.2013 on a secret information, accused Sher Khan was apprehended near Shadipur flyover at Moti Nagar Industrial Area side. On interrogation, accused Sher Khan revealed that a quarrel had taken place between Mehtab @ Dhanne and his brother Khursheed one day prior to Holi festival. In that quarrel, accused Farid @ Bhutwa was also hit by Mehtab @ Dhanne and for taking revenge of the same, accused Farid @ Bhutwa had made a plan and involved accused Sher Khan in the same. Accused Sher Khan further told that on 18.07.2013 at about 11 p.m-12 midnight, Farid @ Bhutwa alongwith his 2-3 associates came to the jhuggi of accused Sher Khan dragging and beating Mehtab @ Dhanne and Noor Alam @ Gaira. All of them had beaten Mehtab @ Dhanne and Noor Alam @ Gaira mercilessly with fists and blows and assaulted them with rods and knives. Both Mehtab @ Dhanne and Noor Alam @ Gaira died on the spot and thereafter accused Farid @ Bhutwa and Sessions Case No. 57328/16 Page 7/113 his associates wrapped the dead bodies in the blankets and took them away.
7. On the basis of his disclosure statement and sufficient evidence, accused Sher Khan was arrested and Sections 114/120B IPC were also added to the FIR of the present case. On 24.07.2013, accused Sher Khan was sent to judicial custody and statements of eye witnesses namely Chhote Lal and Danish @ Dillagi were got recorded under Section 164 Cr.P.C.
8. Further on 02.08.2013, on a secret information, accused Farid @ Bhutwa was apprehended from Satya Park, Naraina Road, Delhi. On interrogation, he disclosed the same facts as disclosed by accused Sher Khan except the fact about his associates. Accused Farid @ Bhutwa also disclosed about the involvement of his brother Mohd. Raza, his brother-in-law Feroz and Irshad (brother of Sher Khan). He also disclosed the fact of informing the police through his mobile number 9899619179 in the next morning just to show sympathy to the family members of both the deceased persons, but ran away from there when the dog squad arrived. Hence, accused Farid @ Sessions Case No. 57328/16 Page 8/113 Bhutwa was also arrested in the present case. At his instance, weapon of offence i.e. one iron pipe having blood stains was recovered by the IO from the bank of a drain under Shadipur flyover.
9. During the course of investigation, eye witnesses namely, Chhote Lal and Danish @ Dillage were examined again wherein they disclosed that Mohd. Raza, Irshad and Feroz were also involved in the commission of the present offences.
10. On 03.08.2013, on another secret information, accused Mohd. Raza was apprehended from railway track under Shadipur flyover. He had also disclosed the same facts as disclosed by accused Farid @ Bhutwa. He had also disclosed about throwing the iron rod used in commission of the offence, under the Shadipur flyover in the garbage. Accused Mohd. Raza was also arrested in the present case. Disclouser statement of accused Mohd. Raza was recorded and at his instance, weapon of offence i.e. one iron pipe having blood stains was recovered from garbage under Shadipur flyover opposite DMS premises.
Sessions Case No. 57328/16 Page 9/11311. Efforts were made to arrest remaining two co-accused namely, Irshad and Feroz, but they could not be arrested and were absconding.
12. Further, the postmortem examination reports of deceased Mehtab @ Dhanne and deceased Noor Alam @ Gaira were obtained. According to the postmortem examination report of Mehtab @ Dhanne (deceased), he had sustained four external injuries and the cause of death was opined as hemorrhagic shock caused by laceration of multiple vital organs as a result of compression of chest and abdominal part by exerting hard and heavy force upon the affected parts. The manner of death was opined to be homicidal. According to the postmortem examination report of Noor Alam @ Gaira (deceased), he had sustained five external injuries and cause of death was opined to be hemorrhagic shock caused by laceration of multiple vital organs as a result of compression of chest and abdominal part by exerting hard and heavy force upon the affected parts. The manner of death was opined as homicidal.
13. After concluding the investigation, the I.O came to a conclusion that sufficient evidence were Sessions Case No. 57328/16 Page 10/113 collected against the accused persons qua commission of offences under Section 302/114/201/120B/34 IPC and thereafter, he prepared chargesheet and filed in the court on 19.10.2013.
14. On the basis of charge-sheet and the documents submitted with it, the learned Additional Chief Metropolitan Magistrate (West), Tis Hazari Courts took cognizance of offences under Section 302/114/201/120-B/34 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 26.10.2013 committed the case to the Court of Session for 30.10.2013.
15. During the course of proceedings before farming of charge against the accused persons, to ascertain the age of accused Sher Khan, Amina Khatoon, mother of accused Sher Khan (CW-1), Shri Sunil Kumar, Block Statistical Supervisor (CW-1A), Mohd. Jamal, father of accused Sher Khan (CW-2) and Dr. Rakesh Kumar, Chairperson of Age Determination Board, DDU hospital were examined by the court. Vide order dated 11-7- Sessions Case No. 57328/16 Page 11/113 2014, accused Sherkhan was held not to be juvenile on the date of offence.
Charge
16. On 06.08.2014, after hearing the learned Additional Public Prosecutor for the State and the counsel for the accused persons, charge was framed against the accused persons namely, Sher Khan, Farid @ Bhutwa and Mohd. Raza for commission of offences punishable under Section 302/201/120B/34 IPC. The charge so framed was read over and explained to the accused persons to which they all pleaded not guilty and claimed trial. Prosecution Witnesses
17. To bring home the afore-mentioned charges to the accused persons, the prosecution got examined SI Sumit Kumar (PW-1), Smt. Akbari Khatoon (PW-2), HC Tara Chand (PW-3), SI Pankaj (PW-4), Shri Narpat @ Chhotu (PW-5), Razina Khatoon (PW-6), Parveen Khatoon (PW-7), HC Sube Singh (PW-8), HC Pratap Singh (PW-9), Mohd. Mushtaq (PW-10), Shri Chhote Lal (PW-
11), Shri Danish @ Dillagi (PW-12), Ct. Bijender Singh (PW-13), Shri Sunil Kumar Sharma, learned MM (PW-14), Mohd. Moti (PW-15), Dr. B.N Sessions Case No. 57328/16 Page 12/113 Mishra (PW-16), Shri Barbar Ali (PW-17), Inspector Mahesh Kumar (PW-18), ASI Jai Chand (PW-19), Ct. Sukhbir Singh (PW-20), HC Surender (PW-21), Ct. Chander Bhan (PW-22), Shri Israr Babu (PW-23), SI Amit Tyagi (PW-24), Ct. Rajbir Panwar (PW-25), Ct. Ravinder Kumar (PW-26), SI Harpal (PW-27), Ct. Kirori Mal (PW-28), Shri Amit Rawat (PW-29), Shri Indresh Kumar Mishra (PW-
30), SI Harish Chander Pathak (PW-31), HC Kuldeep (PW-32) and Inspector Arjun Singh (PW-
33).
Documentary Evidence
18. The prosecution also relied on following documents, tendered into evidence i.eTrue copy of DD entry no. 8A dt. 19/07/2013 (Ex.PW- 1/A),Rukka (Ex.PW-1/B),Site plan of the place of occurrence (Ex.PW-1/C),Seizure memo of blood stained earth, earth control without blood from the earth and two pairs of hawai chappals lifted from the spot (Ex.PW-1/D),Seizure memo of cash amount of Rs. 135/-, one mobile phone make Micromax alongwith SIM found from the search of Noor Alam @ Gaira (deceased) (Ex.PW-1/E), Seizure memo of exhibits (Ex.PW-1/F),A pair of Sessions Case No. 57328/16 Page 13/113 red colour chappals having black strip (Ex.P-1) (colly),A pair of grey colour chappals (Ex.P-2) (colly), 22 negatives of the photographs of the spot including dead bodies from different angles (Ex.PW-3/A-1 to Ex.PW-3/A-22), Photographs of the spot (Ex.PW-3/B-1 to Ex.PW-3/B-22),Mobile crime team report (Ex.PW-4/A), One blood stained shirt of light pink colour checkered, one blood stained pant of dark brown/ blackish colour with belt, one blood-stained baniyan of deceased Mehtab (Ex.P-1) (colly), one blood stained blue colour jeans, blood stained white colour shirt having check designing on collar and cuffs and one blood stained under wear worn by Noor Alam (Ex.P-2) (colly),Statement u/s 161 Cr.P.C (Ex.PW-7/A), Copy of FIR (Ex.PW-9/A), endorsement on the rukka regarding the registration of the present FIR (Ex.PW-9/B),certificate U/s 65 B Indian Evidence Act (Ex.PW-9/C), copy of Roznamcha bearing DD no. 12 A dt. 19.07.2013 qua the registration of the FIR (Ex.PW-9/D),Statement before the Magistrate (Ex.PW-1/A), Statement before the Magistrate (Ex.PW-12/A), confrontation with the statement u/s 161 Cr.P.C (Ex.PW-12/B), Sessions Case No. 57328/16 Page 14/113 confrontation with the statement U/s 161 Cr.P.C (Ex.PW-12/C), application for recording statement U/s 164 Cr.P.C of Chotey Lal and Md. Danish @ Dillagi (Ex.PW-14/A), application for supply of copies of statements of both the said witnesses (Ex.PW-14/B), Identification of dead body of deceased Mehtab (Ex.PW-15/A), identification of dead body of deceased Noor Alam (Ex.PW-15/B), receipt of above said dead body of both the deceased persons (Ex.PW-15/C),Postmortem report no. 974/13 of deceased Mehtab (running into five pages) (Ex.PW-16/A), postmortem report no. 975/13 of deceased Noor Alam (running into 5 pages) (Ex.PW-16/B), subsequent opinion (Ex.PW- 16/DA), identification of dead body of Noor Alam (Ex.PW-17/A), scaled site plan of the spot (Ex.PW- 18/A), copy of DD no. 32 A (Ex.PW-19/A), copy of DD no. 7B (Ex.PW-19/B), copy of entry at serial no. 533 in register no. 19 (running into two pages) (Ex.PW-21/A), Copy of entry at serial no. 534 in register no. 19 (running into three pages) (Ex.PW- 21/B), Copy of entry at serial no. 536 in register no. 19 (running into two pages) (Ex.PW-21/C), Copy of entry at serial no. 542, in register no. 19 (running Sessions Case No. 57328/16 Page 15/113 into two pages) (Ex.PW-21/D), copy of entry at serial no. 543, in register no. 19 (running into two pages) (Ex.PW-21/E), photocopy of RC no. 74/21/13 in register no.21(Ex.PW-21/F),photocopy of RC no. 89/21/13 in register no. 21 (running into two pages) (Ex.PW-21/G), Photocopy of RC no. 88/21/13 in register no. 21 (Ex.PW-21/H), attested photocopy of customer application form of mobile no. 9899619179 issued by Md. Mustaq (Ex.PW- 23/A), photocopy of driving license attached to the customer application form (Ex.PW-23/B), attested photocopy of call detail record of above mentioned mobile phone for the period of 15.07.13 to 20.07.13 (Ex.PW-23/C), Certificate U/s 65-B Indian Evidence Act in respect of the CDR of the aforesaid mobile phone (Ex.PW-23/D), seizure memo of gunny bag (Ex.PW-24/A), Brick pieces, cemented material andsandy material (Ex.P-5) (colly), pointing out memo of accused Sher Khan (Ex.PW- 26/A), arrest memo of accused Sher Khan (Ex.PW- 26/B), personal search memo of accused Sher Khan (Ex.PW-26/C), disclosure statement of accused Sher Khan (Ex.PW-26/D), arrest memo of accused Farid @ Bhutwa (Ex.PW-26/E), personal search Sessions Case No. 57328/16 Page 16/113 memo of accused Farid @ Bhutwa (Ex.PW-26/F), disclosure statement of accused Farid @ Bhutwa (Ex.PW-26/G), pointing out memo of accused Farid @ Bhutwa (Ex.PW-26/H), seizure memo of one pipe (Ex.PW-26/I), arrest memo of accused Raza (Ex.PW-27/A), personal search memo of accused Raza (Ex.PW-27/B), disclosure statement of accused Raza (Ex.PW-27/C), pointing out memo of accused Raza (Ex.PW-27/D), seizure memo of pipe (Ex.PW-27/E), identification of iron pipe recovered at the instance of accused Farid @ Bhutwa (Ex.P-
3), Identification of iron pipe recovered at the instance of accused Raza (Ex.P-4), viscera examination report (Ex.PW-29/A), detailed biological report (Ex.PW-30/A), detailed serological report (Ex.PW-30/B), computerized copy of PCR form (Ex.PW-31/A), certificate U/s 65 B Indian Evidence Act (Ex.PW-31/B), confronted with the statement (Ex.PW-32/DA), inquest form no. 25.35 (1) (b) for deceased Mehtab @ Dhanne (Ex.PW-33/A), Request letter for postmortem of the dead body of deceased Mohd. Nabi (Ex.PW- 33/B), identification of the dead body of Noor Alam by Mohd. Nabi (Ex.PW-33/C), inquest form Sessions Case No. 57328/16 Page 17/113 no. 25.35 (1) (b) for deceased Noor Alam (Ex.PW- 33/D), request letter for postmortem of the dead body of deceased Noor Alam (Ex.PW-33/E), site plan of the jhuggi (Ex.PW-33/F), carbon copy of application for recording of statement U/s 164 Cr.P.C (Ex.PW-33/G), carbon copy of application for obtaining the copy of the statements recorded U/s 164 Cr.P.C (Ex.PW-33/H), certified copy of the statement of witness Chotey Lal (Ex.PW-33/J), certified copy of the statement of witness Mohd. Danish @ Dillagi (Ex.PW-33/K), application written to FSL, Rohini for inspection of the crime spot (Ex.PW-33/L), site plan of the place of recovery of the iron pipe at the instance of accused Farid @ Bhutwa (Ex.PW-33/M), site plan of the place of recovery of the iron pipe (Ex.PW-33/N), request letter for subsequent opinion (Ex.PW- 33/O), copy of the forwarding letters to the FSL for chemical & biological examination respectively (Ex.PW-33/P and Ex.PW-33/Q), request letter to the Nodal Officer, Vodafone to provide the copy of the customer application form and call detail record from 15.07.13 to 20.07.13 of the mobile phone no. 3899619179 (Ex.PW-33/R), above said documents Sessions Case No. 57328/16 Page 18/113 which were received from the Nodal Officer of Vodafone (Ex.PW-33/X) (colly), identification of blood stained earth control (Mark P-6), identification of earth control (Mark P-7), identification of blood stained earth control (Mark P-8) and identification of earth control (Mark P-9) Statement of Accused
19. After conclusion of prosecution evidence, on 11.04.2017, statements of accused persons under Section 313 Cr.P.C were recorded wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they were falsely implicated in the present case.
20. Accused Sherkhan denied his involvement in any quarrel between Mehtab @ Dhanne and Khurshid one day prior to Holi festival in the year,2013. He further stated that there was a quarrel between Noor Alam @ Gaira and Khurshid, however, he was not present at the spot as he was on his duty in Moti Nagar.
21. Accused Farid @ Bhutwa stated that he never had a quarrel with the deceased persons at Sessions Case No. 57328/16 Page 19/113 any point of time and had no concern with the deceased persons. He also stated that he had made a call to the police when the dead bodies were found near railway line, however, he denied that he had run away from the spot when the dog squad had arrived. He further stated that both Danish @ Dillagi and Chhotey Lal were tortured and pressurised to falsely implicate him in the present case. He denied about the recovery of any iron pipe at his instance. He further stated that the family members of the deceased persons used to demand money from him and his family and falsely deposed against him in the present case when no money was paid to them.
22. Accused Mohd Raza stated that he was falsely arrested by the police and his signatures were obtained on some blank papers in the police station. He denied about recovery of any iron pipe at his instance.
23. None of the accused persons desired to lead evidence in his defence and accordingly, case was listed for final arguments.
Final Arguments Sessions Case No. 57328/16 Page 20/113
24. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for the State and Shri Parveen Dabas, learned Counsel for accused persons. I also perused the entire material available on record.
25. During the course of arguments, learned Additional Public Prosecutor submitted that the case of the prosecution is based on direct as well as circumstantial evidence. Further, though the eye- witnesses namely Chhotey Lal (PW-11) and Danish @ Dillagi (PW-12) resiled from their statements, but their contentions about the use of torture and force by the police officials could not be established. Further, all the remaining prosecution witnesses supported the prosecution version and there are no material contradiction in their testimonies. She further submitted that the difference in size of jhuggi of accused Sherkhan and difference in time pointed out by the learned counsel for the accused persons was not material contradiction. The recovery of iron pipes at the instance of the accused persons could not be contradicted and the proposed manipulation in the documents by the I.O was not clear. Further, the Sessions Case No. 57328/16 Page 21/113 prosecution succeeded in establishing motive of commission of crime by examining the family members of the deceased persons whose testimony remained unshattered. She further submitted that with regard to the recovery of weapon of offence, the law is clear that the knowledge of place and fact discovered is admissible under Section 27 of the Evidence Act. She further argued that the prosecution succeeded in establishing the motive for commission of offences and identity of accused persons who also got recovered the weapon of offence and therefore, the prosecution succeeded in establishing beyond reasonable doubt that the accused persons had committed murder of Mehtab @ Dhanne and Noor Alam @ Gaira and accordingly they deserve conviction.
26. Per contra, learned Counsel for the accused persons argued that both the eye-witnesses examined by the prosecution turned hostile and therefore, their testimonies cannot be taken into consideration. Further, during the investigation recovery of knife and burnt blanket could not be effected though the accused Sherkhan was arrested within 3 days from the date of incident. Further, Sessions Case No. 57328/16 Page 22/113 with regard to recovery of two iron pipes, there is discrepancy in the testimonies of witnesses about depositing the same in the police Malkhana. There is a marked difference in the size of the iron pipes which were alleged to have been recovered at the instance of the accused persons and the iron pipes which were produced before the examining doctor for taking his subsequent opinion about consistency. Further, as per the postmortem examination report, there was no sharp edged injury though prosecution eye -witnesses alleged multiple knife injuries. He further argued that the scene of crime i.e jhuggi of accused Sherkhan was not secured for evidence collection which indicates a defective investigation. Further, there is no explanation why Noor Alam @ Gaira was killed as no motive on the part of the accused persons in this regard could be ascribed. He further argued that the dog squad which had arrived at the spot, did not give any lead nor any clue regarding iron pipes, blanket or any knife could be found to indicate the involvement of accused persons. Learned counsel for the accused persons, therefore, argued that in view of material contradictions in the testimonies Sessions Case No. 57328/16 Page 23/113 of prosecution witnesses, the prosecution failed to establish its case beyond all reasonable doubts to connect the accused persons with commission of offences and all the accused persons deserve acquittal.
27. I have given my thoughtful consideration to the submissions of both sides.
Statutory Provisions
28. The substantive offences which the accused persons have been charged with are referred as under:
120B. Punishment of criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2). xxxxxxxxxxxxx
302. Punishment for Murder- Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.
The relevant part of Section 300 IPC which defines 'Murder' reads as follows:
Sessions Case No. 57328/16 Page 24/113300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused , or -
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury is aforesaid.
Further, the relevant part of Section 299 IPC which defines "Culpable homicide", having reference in the definition of 'Murder' reads as follows:
299.Culpable homicide-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.
201. Causing disappearance of evidence of offence, or giving false information to screen offender - Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;Sessions Case No. 57328/16 Page 25/113
if a capital offence. - shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years , and shall also be liable to fine;
Points for Determination:
29. In view of the above-mentioned provisions of law and the submissions advanced on both sides, following points for determination are emerging in the present case :-
1. Whether Mehtab @ Dhanne S/o Mohd. Moti and Noor Alam @ Gaira S/o Mohd. Gannaur died in the intervening night of 18/19-07-2013 ?
2. Whether both Mehtab @ Dhanne and Noor Alam @ Gaira had suffered such injuries on their persons which were sufficient to cause their death in ordinary course of nature ?
3. Whether the death of both Mehtab @ Dhanne and Noor Alam @ Gaira was homicide ?
4. Whether the accused persons entered into conspiracy with each other to cause the death of Mehtab @ Dhanne and Noor Alam @ Gaira ?
5. If so, whether in pursuance of such conspiracy the accused persons caused injuries on the person of Mehtab @ Dhanne and Noor Alam @ Gaira ?Sessions Case No. 57328/16 Page 26/113
6. Whether the accused persons caused the evidence of the present case to disappear to screen themselves from legal punishment.
7. Whether the accused persons had a motive to commit murder of Mehtab @ Dhanne and Noor Alam @ Gaira ?
Testimonies of prosecution witnesses:
30. To prove the afore-mentioned charges against the accused persons, the prosecution got examined 33 witnesses in all. The testimonies of the prosecution witnesses and analysis thereof in sequential order, are referred as under :
Information about two dead bodies lying near railway track and subsequent proceedings
31. SI Harish Chander Pathak (PW-31) deposed that on 19.07.2013 at about 6.41 a.m, a call was received from mobile number 9899619179 and the same was attended by Ct. Madhu Sudan Singh. The information was "Yaha per do admiyo ki hatya kar ke faik diya hai" and the place was informed as "Sadi pur depot." Ct. Madhu Sudan filled the information in PCR form on computer as CPCR DD No. 19 JUL 131250050 and forwarded the Sessions Case No. 57328/16 Page 27/113 same to console operator for further necessary action. PW-31 identified the computerized copy of said PCR form and certificate U/s 65-B of Indian Evidence Act as Ex.PW-31/A and Ex.PW-31/B.
32. In his cross-examination, PW-31 stated that the call was not received by him nor the PCR form was filled in his presence. PW-31 further stated that he was working as Nodal Officer w.e.f 01.04.2015 and the computer wherein the entries were made on 19.07.2013 was not in his custody nor he was incharge prior to 01.04.2015.
33. HC Sube Singh (PW-8) had recorded the call regarding throwing of two dead bodies under Shadipur flyover in Roznamcha vide DD No.8A (Ex.PW-1/A). HC Sube Singh had handed over the call (DD No. 8 A) to SI Sumit Kumar for investigation.
34. PW-8 was not cross-examined by the Ld. Counsel for the accused persons.
35. SI Sumit Kumar (PW-1) deposed that on 19.07.2013 on receiving DD No. 8 A, he alongwith Ct. Kirori Mal and Ct. Rajbir had reached near railway track near Shadipur fly over where they found two male dead bodies. There, one Mohd.
Sessions Case No. 57328/16 Page 28/113Moti identified the dead bodies to be of Mehtab @ Dhanne and Noor Alam @ Gaira. There were injury marks on both the dead bodies. SI Sumit had informed the senior officers, crime team and photographer. No eye witness was said to be found on the spot. SI Sumit Kumar had prepared rukka (Ex.PW-1/B) and sent the same to police station Ranjit Nagar through Ct. Rajbir for registration of the FIR. He had taken search of clothes worn by the deceased persons. Cash amount of Rs. 135/-, one mobile phone make Micromax with SIM card was recovered from Noor Alam @ Gaira (deceased), which were taken into possession by SI Sumit vide memo Ex.PW-1/E. Nothing was recovered from the search of Mehtab @ Dhanne (deceased). Thereafter, SI Sumit sent the dead bodies to DDU hospital for postmortem examination through Ct. Kirorimal. The further investigation was handed over to Inspector Arjun Singh.
36. SI Sumit further deposed that IO Inspector Arjun Singh had prepared the site plan (Ex.PW- 1/C) at his instance. Further, on 20.07.2013, he had accompanied the IO to DDU hospital mortuary Sessions Case No. 57328/16 Page 29/113 where Ct. Kirori Mal handed over six sealed parcels to the IO vide memo Ex. PW-1/F . SI Sumit had identified the case property i.e. chappals, which were found lying near the dead bodies (Ex.P-1 and Ex.P-2) (colly).
37. In his cross-examination, PW-1 stated that when he reached at the spot 25-30 public persons were present there. He had given message to the Crime Team at about 9 a.m which arrived at the spot at around 10 am and remained there for about 30-45 minutes. Further, the Crime Team tried to find out the clues in the nearby area of 300 to 400 meters where the dead bodies were lying. PW-1 further stated that there was a nala (drain) near the spot at a distance of about 200 meters. PW-1 further stated that SHO PS Ranjeet Nagar had arrived at the spot at around 7.15 a.m and remained at the spot till around 11 a.m. PW-1 further stated that on the instructions of the SHO, he handed over the investigation to ATO Inspector Arjun Singh who arrived at the spot at around 8 a.m. Further, Inspector Arjun Singh and he (PW-1) had not made any investigation in the jhuggies situated near the spot during his stay. On further cross-examination, Sessions Case No. 57328/16 Page 30/113 PW-1 stated that the Dog Squad was called at the spot by the SHO through wireless message which arrived at about 9 a.m and remained there for about 30 to 45 minutes. The Dog Squad consisted of three police officials and two dogs. He (PW-1) had remained present at the spot till the Dog Squad remained there, however, the Dog Squad could not find any weapon of offence or any other clue at the spot or in nearby area and left after about 30-45 minutes. During this period, the Dog Squad had also gone in the jhuggies and other nearby areas. PW-1 further stated that IO Inspector Arjun Singh was carrying his IO's kit and had lifted the earth control samples and other samples from the spot with the help of 'Khurpi' after wearing the gloves. Further, the seal was not handed over to anyone by Inspector Arjun Singh after its use. On further cross-examination PW-1 stated that on 20.07.2013 he had reached at the DDU hospital around 10 a.m alongwith Inspector Arjun Singh where the doctor concerned handed over six parcels to Inspector Arjun Singh which were sealed with the seal of DDU hospital.
Sessions Case No. 57328/16 Page 31/11338. Ct. Rajbir Panwar (PW-25) deposed that on 19.07.2013, he had handed over DD No. 8A to SI Sumit Kumar and accompanied him to Shadipur flyover, where they saw two dead bodies lying near the wall at a distance of 300 meters from the railway track. One persons namely, Moti had identified one dead body to be of his son Mehtab and the other to be of his brother-in-law (sala) Noor Alam. PW-25 deposed that there were injuries on the legs and heads of dead bodies and there were sign of dragging the dead bodies. He had taken tehrir to police station Ranjit Nagar for registration of FIR and after registration of FIR, the further investigation was handed over to Inspector Arjun Singh. Thereafter, PW-25 had come to the spot with Inspector Arjun Singh where exhibits were lifted from the spot and taken into possession vide seizure memo (Ex.PW-1/D). IO recorded statement of PW-25 in this regard in the police station.
39. In his cross-examination, PW-25 deposed about the presence of Dog Squad at the spot wherein there were about 2-3 dogs which remained at the spot for about 30-45 minutes. PW-25 could not remember the colours of the dogs. He further Sessions Case No. 57328/16 Page 32/113 stated that after registration of the FIR, he had left the police station with Inspector Arjun Singh at about 8.30 a.m and reached at the place of recovery of dead bodies. He further stated that the seal after use was handed over to him which he deposited in the Malkhana.
40. Constable Kirori Mal (PW-28) deposed that on 19.07.2013, Ct. Rajbir had handed over DD No. 8A to SI Sumit Kumar and thereafter he alongwith SI Sumit Kumar and Ct. Rajbir reached near Shadipur flyover. They saw two male dead bodies lying near the railway line. PW-28 had noticed injuries on the several parts of the dead bodies. PW-28 further deposed that during the enquiry, one person namely, Moti identified the dead body to be of his son namely, Mehtab @ Dhanne and the other one of Noor Alam @ Gaira, both aged about 20-22 years. He had also deposed about recovery of Rs. 135/- and one mobile phone (Micromax) from search of deceased Noor Alam, which were seized by SI Sumit Kumar vide seizure memo (Ex.PW- 1/E). In the presence of PW-28, SI Sumit Kumar had prepared the rukka and handed over the same to Ct. Rajbir for registration of the FIR. On the Sessions Case No. 57328/16 Page 33/113 direction of SI Sumit Kumar, PW-28 had taken both the dead bodies to the mortuary of DDU hospital. On 20.07.2013, after the postmortem examination of both the dead bodies, doctor had given six sealed pullandas duly sealed with the seal of DFMT/DDU hospital to constable Kirori Mal(PW-28). He handed over the said sealed pullandas to SI Sumit Kumar which were seized vide seizure memo (Ex.PW-1/F).
41. In his cross-examination PW-28 stated that when he reached at the spot, 150 to 200 persons were present there and senior officers like SHO, Inspector and ACP reached at the spot after 15 to 20 minutes thereafter. The Crime Team reached at the spot after 8 a.m. PW-28 had left the spot before 9 a.m after shifting of the dead bodies. When he left the spot, the Dog Squad was present there.
42. On 19.07.2013 at about 10.05 a.m, HC Pratap Singh (PW-9) had got registered the FIR (Ex.PW-9/A) of the present case on the basis of rukka prepared by SI Sumit and brought by Ct. Rajbir. He also issued certificate U/s 65 B of the Indian Evidence Act (Ex.PW-9/C) regarding registration of FIR in the present case. After Sessions Case No. 57328/16 Page 34/113 registration of FIR, HC Pratap Singh (PW-9) had handed over the original rukka and copy of FIR to Ct. Rajbir to deliver the same to IO Arjun Singh. He had also got exhibited the copy of Roznamcha bearing DD No. 12 A dated 19.07.2013 as Ex.PW- 9/D.
43. PW-9 was not cross-examined by the Ld. Counsel for the accused persons.
44. Constable Sukhbir Singh (PW-20) deposed that on 19.07.2013, duty officer HC Pratap Singh (PW-9) had given him four envelopes containing copies of FIR of the present case. PW-20 had delivered one envelope to the residence of the learned ACMM, Karkardooma Courts residential complex, one in the office of Joint CP, Central Range, one envelope in the office of DCP, Central District and lastly in the office of ACP, Patel Nagar.
45. PW-20 was not cross-examined by the Ld. Counsel for the accused persons.
46. Next, on 19.07.2013, after receiving information from District Control Room, photographer HC Tara Chand (PW-3) alongwith SI Pankaj had reached at the railway track near Shadipur flyover, where they found two male dead Sessions Case No. 57328/16 Page 35/113 bodies lying there. After inspection, HC Tara Chand had taken 22 photographs (Ex.PW-3/B-1 to Ex.PW-3/B-22) of the spot as well as of the dead bodies. IO had recorded his statement in this regard.
47. In his cross-examination PW-3 stated that he alongwith other members of team had reached at the spot at about 7.40 a.m on receiving the information from Control Room at about 7.15 a.m. PW-3 had taken photographs at the instance of Incharge of Crime Team as well as the other police officials present at the spot.
48. SI Pankaj (PW-4) deposed that on 19.07.2013, after receiving information from District Control Room, he alongwith HC Tara Chand (photographer) and other staff had reached at railway track near Shadipur flyover, where they found two male dead bodies lying over there. SI Pankaj had prepared the mobile crime team report (Ex.PW-4/A) and handed over the same to the IO.
49. In cross-examination, PW-4 stated that the information was received at about 7.15 a.m from control room and thereafter he with other members Sessions Case No. 57328/16 Page 36/113 of the team directly reached at the spot at about 7.30 a.m.
50. Inspector Mahesh Kumar (PW-18) had deposed about his reaching at police Station Ranjit Nagar on 06.08.2013 on the request of Inspector Arjun Singh, IO of the case. From the police station, PW-18 alongwith the IO had gone to the place of incident i.e. Jhuggi no. A-386, Bihari Camp, Katputli Colony, Delhi as well near the railway track, from where two dead bodies were recovered. At the instance of IO, Inspector Mahesh Kumar (PW-18) had taken rough notes and measurements of the spot and prepared site plan (Ex. PW-18/A), which he later on handed over to the IO.
51. PW-18 was not cross-examined by the Ld. Counsel for the accused persons.
Analysis
52. It is established from the testimonies of above-mentioned prosecution witnesses that on 19.07.2013 on receiving DD No.8A (Ex.PW-1/A), SI Sumit Kumar (PW-1), Constable Rajbir Kanwar (PW-25 and Constable Kirori Mal (PW-28) had Sessions Case No. 57328/16 Page 37/113 reached at the spot i.e railway tracks, near Shadipur Flyover, where two dead bodies of male persons namely Mehtab @ Dhanne and Noor Alam @ Gaira were found lying. Consequently, FIR Ex.PW- 9/A was registered, photographs Ex.PW-3/B-1 to Ex.PW-3/B-22 of the spot as well as of the dead bodies were taken. The spot was inspected by the mobile crime team vide report Ex.PW-4/A and site plan Ex.PW18/A was prepared. The physical evidence were also lifted and seized from the spot. Dog squad was also called at the spot, however, no clue or any weapon of offence could be traced out.
Testimonies of Eye Witnesses
53. The case of the prosecution is primarily predicated upon the eye-witness account of Sh. Chhote Lal (PW-11) and Danish @ Dillagi (PW-
12).
54. Shri Chhote Lal (PW11), one of the two eye witnesses, correctly identified accused Sher Khan and stated that jhuggi no. 386, Bihari Camp, Kathputli Colony, Delhi, where he had been earlier residing was owned by one Shri Chhotu and was Sessions Case No. 57328/16 Page 38/113 taken on rent by accused Sher Khan at a monthly rent of Rs. 1400/-. He also stated that including him, total 8-9 persons i.e. accused Sher Khan, his wife Ravina, Khurshid, Ibrahim , Pappu, Suresh, Danish and Kalim were residing in the said jhuggi.
He knew deceased Mehtab @ Dhanne and deceased Noor Alam as both were friends of Khurshid and used to visit their said jhuggi.
55. Since PW-11 was not disclosing the whole facts, the Ld. Addl. PP for the state cross-examined him after seeking permission of the court and confronted him with his statement (Ex.PW-11/A) recorded under Section 164 Cr.P.C. In his cross- examination, he stated that police officials had beaten and pressurized him to name accused Farid @ Bhutwa and accordingly, he gave his statement (Ex.PW-11/A) before the learned Metropolitan Magistrate. PW-11 had denied the suggestion if on 18.07.2013, he had seen accused Farid @ Bhutwa consuming Ganja with three other persons or that in the night of 18.07.2013, accused Farid @ Bhutwa and his three associates had brought Mehtab @ Dhanne and Noor Alam in the above-said jhuggi and beaten both of them. He further denied the Sessions Case No. 57328/16 Page 39/113 suggestion that accused Sher Khan had shown knife to all the persons present in the jhuggi while they tried to intervene. PW-11 also denied the suggestion that accused Farid @ Bhutwa and accused Sher Khan and other associates assaulted Mehtab @ Dhanne and Noor Alam with the help of iron pipe and knife and shut their mouth with hand. He further denied that blood was spread on the floor which was cleaned by accused persons with blanket and both the dead bodies were wrapped in the said blanket and taken from there by accused persons. PW-11 denied the suggestion if Irshad, brother of accused Sher Khan, Mohd. Raza, brother of accused Farid @ Bhutwa and Firoz, brother-in- law (sala) of accused Farid @ Bhutwa were also involved in the present offence. He could not identify accused Mohd Raza. He volunteered to say that he was lifted by the police from bus stand, Moti Nagar when he was returning from Bawana. PW-11 further denied that accused Sher Khan had threatened him to name only accused Farid @ Bhutwa, if apprehended by the police.
56. PW-11 was also cross-examined by the learned Counsel for all the accused persons wherein Sessions Case No. 57328/16 Page 40/113 he admitted it to be correct that no incident had taken place on 18.07.2013 in his presence and he was lifted by the police and was pressurized to make a statement in the present case. He admitted it to be correct that on 18.07.2013 all of them were sleeping peacefully in the above-said jhuggi and no such incident had happened. He further admitted it to be correct that he was severally beaten by the police officials in the police station and was asked to name accused persons. On further cross- examination, PW-11 stated that he was apprehended by the police on 20.07.2013 and was kept on the first floor of police station Ranjeet Nagar till 29.07.2013. Further, his mouth was closed by a cloth, he was laid down on railway track by the police and was threatened that he would be crushed on the railway track. PW-11 further admitted it to be correct that on the day of recording of his statement under Section 164 Cr.P.C, he was brought to the court in police vehicle and throughout the journey he was pressurized and threatened to depose as per police version and to name the accused persons before the Magistrate otherwise he would be again beaten.
Sessions Case No. 57328/16 Page 41/113PW-11 further stated that his statement under Section 161 Cr.P.C recorded by the police officials was never read over and explained to him.
57. Danish @ Dillagi (PW-12), the second eye- witness deposed that in the year 2013, he had been living at Jhuggi no. 386, Bihari Camp, Kathputli Colony, Patel Nagar, Delhi. The above-said jhuggi was owned by one Chhotu. Accused Sher Khan, Khurshid, Chhote Lal, Sahid and Kalim also used to reside with him in the said jhuggi. PW-12 had correctly identified accused Sher Khan, however, he did not know if parental house of wife of accused Sher Khan was also in the same locality. He stated that he had never met deceased persons namely, Mehtab @ Dhanne and Noor Alam @ Gaira and was not aware about the incident which happened with them.
58. Again, as Danish @ Dillagi (PW-12) was not disclosing the whole facts, the learned Additional Public Prosecutor for the State cross-examined him after taking the permission of the court wherein he deposed that he had stated before the learned Metropolitan Magistrate that on 18.07.2013 at about 11.30 a.m-12.00 midnight, accused Farid @ Sessions Case No. 57328/16 Page 42/113 Bhutwa alongwith three other persons had brought Mehtab @ Dhanne and Noor Alam @ Gaira while beating them. However, he volunteered to say that he was pressurized by the police officials to depose in the said manner before the learned Metropolitan Magistrate. He also voluntarily stated that he was pressurized by the police officials to say before the learned Metropolitan Magistrate that mouth of Dhanne and Gaira was muzzled with the palm by accused persons and both were assaulted with iron pipe and knife and that accused Bhutwa and his accomplices kept on stabbing Gaira and Dhanne and both of them died on the spot. He further voluntarily deposed that he was pressurized by the police officials to say before the learned Metropolitan Magistrate that Bhutwa and his accomplices wiped out the blood splattered on the floor of the jhuggi and wrapped both dead bodies in a blanket and that all the persons present in the jhuggi were threatened by the accused persons not to disclose the incident to anyone. Further, he was pressurized to say that Bhutwa threatened Chhote Lal and Khurshid to wipe out remaining blood and accordingly, both of them wiped the blood stains Sessions Case No. 57328/16 Page 43/113 with water, or that Bhutwa threatened them not to follow them while removing dead bodies in the blanket or that both the dead bodies were found at railway track and they were apprehended by the police from their jhuggi at the instance of dog squad. PW-12 further deposed that he had not lodged any complaint against the police officials, who had pressurized him to depose in the above- mentioned manner before the learned Metropolitan Magistrate. He failed to identify accused persons namely, Mohd. Raza and Farid @ Bhutwa.
59. PW-12 also stated that he had told the police that accused Bhutwa had gone to jail prior to the present incident as he had heard about the same from others. He deposed that he had not stated to the police that accused persons were saying that the dead bodies should be thrown on railway track so that it could be taken as an accident or that Mohd. Raza, Irshad and Firoz were also involved in the present incident.
60. PW-12 was also cross-examined by the Ld. Counsel for all the accused persons wherein he admitted it to be correct that no incident had taken place on 18.07.2013 in his presence and he was Sessions Case No. 57328/16 Page 44/113 lifted by the police and was pressurized to make a statement in the present case. He further admitted it to be correct that on 18.07.2013 all of them were sleeping peacefully in the above-said jhuggi and no such incident had happened. Further, he was severally beaten by the police officials in the police station and was asked to name accused persons. On further cross-examination, PW-12 stated that he was apprehended by the police on the next day and was kept in police station Ranjit Nagar for about 10-12 days. He further admitted it to be correct that police had pressurized him after beating and threatening him to depose as per police version and no incident of beating the persons namely Dhanne and Noor Alam by iron pipe and knife had happened in the jhuggi. He further admitted it to be correct that no such incident had taken place in his presence on 18.07.2013 and he was threatened and pressurized by the police officials to depose against the accused persons before the Magistrate at the time of recording of his statement under Section 164 Cr.P.C otherwise he would face dire consequences.
Sessions Case No. 57328/16 Page 45/11361. Shri Sunil Kumar Sharma, learned Metropolitan Magistrate (PW-14) deposed that on 24.07.2013, he had recorded the statements of witnesses namely Chhotey Lal and Mohd. Danish @ Dillagi vide detailed proceedings Ex. PW-11/A and Ex.PW-12/A respectively. PW-14 had also appended one certificate at the end of both the statements certifying that the above-said statements of both the witnesses contained full and true account of the statements and nothing was added or subtracted therefrom.
62. In his cross-examination by the Ld. Counsel for accused persons, PW-14 stated that before recording the statements of the witnesses he had satisfied himself that the witnesses give their statements without any fear and influence and the procedure adopted by him in this regard was duly mentioned in the proceedings (Ex.PW-11/A) and (Ex.PW-12/A).
Analysis
63. It is clear from the testimonies of Chhote Lal (PW-11) and Danish @ Dillagi (PW-12) that both the purported eye-witnesses of the incident completely resiled from their statements recorded Sessions Case No. 57328/16 Page 46/113 under Section 164 Cr.P.C by Shri Sunil Kumar Sharma, learned Metropolitan Magistrate (PW-14).
64. In his cross-examination by learned Additional Prosecutor for the State, PW-11 was confronted with his statement Ex.PW-11/A recorded under Section 164 Cr.P.C, however, he denied each and every averment mentioned in his statement Ex.PW-11/A. PW-11 categorically stated that police officials had beaten and pressurised to name accused Farid @ Bhutwa and under pressure of the police officials, he gave his statement Ex.PW-11/A before the learned Metropolitan Magistrate. PW-11 was also cross-examined by the learned counsel for the accused persons wherein he stated that he had not witnessed any incident on 18.7.2013 and in fact, he was pressurised by the police to make a statement in the present case. He further stated that he was confined in police station Ranjit Nagar and was threatened with his life or to make statement before the learned Metropolitan Magistrate. He could not identify the accused Mohd. Raza.
65. Similarly, Danish @ Dillagi (PW-12) was also confronted with his statement recorded under Sessions Case No. 57328/16 Page 47/113 Section 164 Cr.P.C on which he stated that he was pressurized by the police officials to state in the said manner before the learned Metropolitan Magistrate. He also failed to identify the accused persons namely Mohd. Raza and Farid @ Bhutwa.
66. Here, it is pertinent to refer the testimony of Dr. B.N. Mishra (PW16) who had conducted the postmortem examination on the dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira.
67. Dr. B.N Mishra, Medical Officer-cum- Medico Legal Expert and Criminologist, DDU Hospital was examined as PW-16. He deposed that on 20.07.2013, he had conducted the postmortem examination on the dead body of deceased Mehtab @ Dhanne. On external examination of the dead body, Dr. B.N Mishra had observed four external injuries in the form of laceration, bruisings and stab wounds on different parts of the body. On internal examination, it was observed that the left parietal boe of skull was fractured. The multiple ribs i.e. 3rd to 7th on left side and 4th to 6th ribs on right side of chest were fractured. Both lungs were contused and left lower lobe of left lung was lacerated. The right lobe of liver was lacerated with collection of Sessions Case No. 57328/16 Page 48/113 blood into peritoneum. After completion of postmortem examination, Dr. B.N Mishra (PW-16) had prepared the postmortem examination report no. 974/13 (Ex. PW-16/A) and opined that the cause of death was hemorrhagic shock caused by laceration of multiple vital organs (lung, liver,kidney and multiple ribs) as a result of compression of chest and abdomen by exertion of hard and heavy force upon the affected parts. The external injury no.2 was opined to be sufficient to cause death in ordinary course of nature. The external injury no. 1&3 were postmortem in nature. The manner of death was opined to be homicidal and time since death was approximately one and half days prior to the postmortem examination of dead body.
68. PW-16 further deposed that on the same day, he had also conducted the postmortem examination on the dead body of Noor Alam @ Gaira. On examination of the dead body, he had observed five external injuries on different parts of the body in addition to associated with internal injuries. On the basis of autopsy findings, PW-16 had prepared postmortem examination report (Ex.PW-16/B) and Sessions Case No. 57328/16 Page 49/113 opined that cause of death was hemorrhagic shock caused by laceration of multiple vital organ (spleen, lung, liver and multiple ribs etc) as a result of compression of chest and abdomen by exertion of hard and heavy force upon the affected parts. The external injury nos. 4&5 were opined to be postmortem in nature. External injury no.1 was opined to be perimortem in nature. Injury nos. 2 & 3 were opined to be ante-mortem in nature and were sufficient to cause death in ordinary course of nature. The manner of death was opined to be homicidal and time since death was approximately one and half days prior to the postmortem.
69. In cross-examination, PW-16 stated that no specific opinion could be given about the weapon used for the purpose of inflicting injuries on the body of deceased Mehtab. However, it was opined in the postmortem report that the injuries sustained could have been caused by compression of chest and abdomen by hard heavy objects/force (pertaining to ante-mortem injuries). He further stated that the injury no.1 was post-mortem in nature and could have been caused by blunt force exerted upon head by some blunt object or due to Sessions Case No. 57328/16 Page 50/113 forcibly fallen on the hard surface after death. Further, injury no.2 pertaining to chest injury which caused multiple ribs fracture on both sides of chest in addition to laceration of lungs, could have been caused by kneeling or compression by some hard heavy objects on the chest. PW-16 further stated that the weapon used could be knees, elbow, hard objects like stones, wooden blocks or similar kind of object. No injury suggestive of any defence wounds were observed on the body of deceased Mehtab. To further clarify about the degree of force applied for the purpose of infliction of injuries, PW-16 stated that in vague terms it could be inferred that the force was sufficient to compress the chest and abdomen. Further, with regard to external injury no. 3 on the dead body of deceased Mehtab, PW-16 stated that the same was postmortem in nature and could have been inflicted by some blunt object like rods or other similar kind of articles or even by falling upon some projecting objects but certainly was not caused by knife or other sharp edged weapon. Further, the external injury no. 4 on the dead body of deceased Mehtab could have been inflicted by some blunt object like Sessions Case No. 57328/16 Page 51/113 danda or hollow pipe etc. PW-16 further stated that any heavy blunt object like rod, danda and metallic pipe could have been used for causing scalp fracture as mentioned as external injury no.1 on the body of Mehtab. He further clarified that the internal injuries related to head injury pertaining to this case could only occur in postmortem conditions. On subsequent examination, PW-16 stated that the time since death could be more by 8 to 12 hours and in the present case, he ascertained the time since death based upon the passing off rigour mortis and early stage of decomposition of both bodies (greenish discolouration of large intestine). On further cross-examination regarding subsequent opinion qua the weapon of offence, PW-16 stated that the timing of blood staining on the surface of metal object/ weapon of offence could not be ascertained accurately or even tentatively on the basis of its appearance or colour changes. He had not got the blood staining chemically examined because such facility was not available in the hospital.
70. Since both PW-11 and PW-12 resiled completely from their statements recorded before Sessions Case No. 57328/16 Page 52/113 the learned Metropolitan Magistrate Sh. Sunil Kumar Sharma (PW-14) while deposing before this Court and also levelled allegations regarding pressure exercised on them by the police officials, the sanctity of their statements under Section 164 Cr.P.C stands violated. In view of grave allegations of their torturous treatment by the police officials to depose in a particular manner before the learned Metropolitan Magistrate (PW-14), the truthfulness of their statements becomes doubtful and cannot be relied upon for consideration of incriminating nature of their statements against the accused persons, more-so, when both PW-11 and PW-12 failed to identify accused Farid @ Bhutwa and accused Mohd. Raza while deposing in the court.
71. Furthermore, the statements of both PW-11 and PW-12 recorded under Section 164 Cr.P.C are not substantiated with the other material on record. For instance, both PW-11 and PW-12 had deposed about the infliction of repeated knife injuries on the person of Mehtab @ Dhanne and Noor Alam @ Gaira by the accused Farid @ Bhutwa and his three other associates, but there are no incised sharp Sessions Case No. 57328/16 Page 53/113 edged injuries observed in postmortem examination report (PW-16/A).
72. Further,.Dr. B.N. Mishra (PW-16) categorically opined that the injuries sustained by both the deceased persons could have been caused by compression of chest and abdomen by hard heavy object. With regard to external injury no.3 on the dead body of deceased Mehtab @ Dhanne, PW-16 stated that the same was postmortem in nature and could have been inflicted by some blunt object or even by falling upon some projecting object, but was certainly not caused by knife or other sharp edged weapon. Therefore, the postmortem examination report Ex.PW-16/A does not substantiate the version of PW-11 and PW-12.
73. Furthermore, even the names of other accused persons except accused Farid @ Bhutwa and accused Sherkhan were not disclosed by PW-11 and PW-12 before the learned Metropolitan Magistrate (PW-14) at the time of recording of their statements Ex.PW-11/A. Both of them had also stated about the repeated assault by accused Farid @ Bhutwa and his other associates on Mehtab @ Dhanne and Noor Alam @ Gaire with iron rods and Sessions Case No. 57328/16 Page 54/113 fist and leg blows around midnight on 18.07.2013. However, the immediate neighbour of the jhuggi belonging to accused Sherkhan, where the alleged incident had occurred, could not notice any commotion or could not hear any screams etc. at that hour of night, when there is complete silence all around and a little voice also travels far and wide. Then according to the statement of Danish @ Dillagi (PW-12) one black colour dog of dog squad had entered in his room, consequent upon which the police officials had caught them, whereas Chhote Lal (PW-11) did not state any such fact before the learned Metropolitan Magistrate (PW-
14). On the other hand, PW-33 I.O of the case deposed that both PW-11 and PW-12 were subsequently contacted on 22.07.2013 during the investigation.
74. Next, the testimony of Narpat and Chottu Shri Narpat @ Chhote Lal (PW-5) also casts some doubts over the actual occupants of the jhuggi no. A-386. Shri Narpat @ Chotte Lal (PW-5) deposed that he was the owner of Jhuggi no. A-386, Bihari Camp, Katputli Colony, Shadipur, Delhi, which he had given on rent to one Mustafa, brother of Sessions Case No. 57328/16 Page 55/113 accused Sher Khan at a monthly rent of Rs. 1500 and the said Mustafa alongwith accused Sherkhan was residing in the said jhuggi with family members. PW-5 was cross-examined by the learned Additional Public Prosecutor for the State with the permission of the court as he was not disclosing the complete facts. In his cross-examination, PW-5 stated that at the time of incident, Imran, Khurshid, Shahid, Kalim, Suresh, Pappu, Chhotu Lal and Dillagi were also residing in the above-said jhuggi alongwith accused Sher Khan and his brother Mustafa.
75. PW-5 was also cross-examined by the counsel for accused persons wherein he stated that he had not got the police verification done about the tenants. He further stated that the jhuggi no. A- 386 measures around 15/20 feet X 8 feet in size. PW-5 admitted about not knowing the names of persons other than Mustafa and Sherkhan on which a court question was put to him to the effect that at one place he had stated the names of the persons residing with Sherkhan and Mustafa while on the other he denied about having knowledge about their names so which of the statement was correct. PW-5 Sessions Case No. 57328/16 Page 56/113 reiterated about not knowing the names of the persons other than Sherkhan and Mustafa. He further clarified that he had admitted the names during the cross-examination by learned Additional Public Prosecutor as he was having some idea about the other persons but he was not sure about their names. On further cross-examination, PW-5 stated that the police had met with him only once in respect of the present case.
76. In the light of above-discussed circumstances, the testimonies of PW-11 and PW- 12 do not inspire any confidence and are not trustworthy. Accordingly, the purported eye- witness account of both PW-11 and PW-12 is of no help to the prosecution.
Spot Inspection of Scene of Crime
77. In this regard, prosecution examined SI Amit Tyagi (PW-24) and Ct. Ravinder (PW-26).
78. SI Amit Tyagi (PW-24) deposed that on 24.07.2013, he had delivered a letter, written by the IO of the case, in the office of FSL, Rohini. At FSL Rohini, a team of experts under the supervision of Dr. Dhruv Sharma was constituted and he (PW-24), Sessions Case No. 57328/16 Page 57/113 alongwith the said expert team reached at Jhuggi no. A/386, Bihari Mohalla, Kathputli Colony, Pandav Nagar, Delhi. On instructions of the expert team, he (PW-24) had cut some piece from the right side wall of gate of the jhuggi and kept the same in three plastic containers, which were duly sealed with the seal of RTNGR-II. PW-24 also deposed about preparing pullandas of upper layer of the floor and sand mixed soil and keeping the same in a gunny bag, which was taken into possession vide seizure memo (Ex.PW-24/A). PW- 24 had identified the case property i.e. the brick pieces, cemented material and sandy material all collectivity (Ex.P-5).
79. In his cross-examination, PW-24 stated that he alongwith three FSL officials had reached at the spot around 1.50 p.m on 24.07.2013 and remained there for about one hour. PW-24 had also asked Ct. Ravinder Singh to bring some instruments, plastic boxes, gunny bags and other articles at the spot, which were arranged by Ct. Ravinder. On further cross-examination, PW-24 stated that jhuggi no. A/386, Bihari Mohalla, Kathpulti Colony, Pandav Nagar was not sealed but was lying locked and the Sessions Case No. 57328/16 Page 58/113 key of the lock of the jhuggi was with Ct. Ravinder. Further, PW-24 called up at police station at about 1.45 p.m and asked them to send seal of RTNGR- II. He handed over the said seal to Ct. Ravinder on that day after sealing the pullandas. PW-24 had not obtained the signatures of officials of FSL Rohini or any other public persons on the seizure memos of pullanda, which were taken from the spot on that day.
80. Constable Ravinder Kumar (PW-26) had deposed that he had joined the investigation in the present case on 24.07.2013. He alongwith SI Amit Tyagi and FSL team went to the jhuggi in the area of Kathputli Colony, pointed out by accused Sher Khan. FSL team inspected the spot and lifted the exhibits.
81. In his cross-examination, PW-26 stated that on 24.07.2013, he joined the investigation and alongwith SI Amit and FSL team visited the jhuggi of accused Sherkhan. The jhuggi was locked which was opened by PW-26 after taking the key of the lock from Malkhana. PW-26 stated the area of the said jhuggi to be about 13-14 meter, there being no bed or cot in the jhuggi. PW-26 further stated that Sessions Case No. 57328/16 Page 59/113 on the left side of jhuggi of accused Sherkhan there was one jhuggi belonging to one doctor and on the right side there was a jhuggi of one person namely, Raju. However, the occupants of the adjoining jhuggies were not asked to join the investigation. Analysis
82. It is not clear from the testimonies of both PW-24 and PW-26 why the portions of wall and floor of the jhuggi and the sand mixed soil were lifted from the jhuggi. Neither PW-24 nor PW-26 deposed about any blood stains having been found in the said jhuggi. Similarly, none of the members of the FSL expert team was examined, nor any FSL result of exhibits lifted from the jhuggi of Sherkhan were brought on record by the prosecution. Therefore, it is not clear at all what the purpose of lifting the exhibits from the jhuggi of accused Sherkhan was. It is also clear that the produced case property i.e the brick pieces, cemented material and sandy material Ex.P-5 (collectively) were not blood stained. Then, there is no material to indicate if the aforesaid case property was sent for forensic examination wherein some traces of human blood could have been found. Admittedly, Sessions Case No. 57328/16 Page 60/113 PW-24 had not obtained signatures of any official of FSL expert team on the seizure memo of the pullandas prepared at the said jhuggi. Furthermore, PW-24 and PW-26 deposed in contradictory manner about their arrival at the said jhuggi as PW-24 deposed that when he alongwith FSL team reached at the spot, constable Ravinder (PW-26) was found present there, whereas constable Ravinder Kumar (PW-26) deposed that he alongwith SI Amit Kumar (PW-24) and the FSL team had visited the said jhuggi. Therefore, the testimony of PW-24 and PW-26 with regard to the forensic examination of the scene of crime i.e Jhuggi no. A-386, Bihari Mohalla, Kathputli Colony, Delhi, remained inconclusive and do not establish any circumstance favouring the prosecution.
Arrest of accused persons and recovery of weapon of offence
83. To establish these circumstances, the prosecution examined following witnesses:
84. Constable Ravinder Kumar (PW-26) deposed that on 23.07.2013, he again joined the investigation in the present case alongwith SI Sessions Case No. 57328/16 Page 61/113 Harpal, HC Yudhvir, HC Mahender and Ct. Rajbir. They all went to Shadipur flyover in search of accused persons. On pointing of a secret informer, accused Sher Khan was apprehended near railway line under the flyover of Shadipur. On interrogation by SI Harpal, accused Sher Khan confessed his guilt and disclosed that he had taken revenge of earlier quarrel, which had taken place between him and deceased persons. Accused Sher Khan had taken them to a jhuggi in the area of Kathputli colony and pointed out the place where murder of Mehtab @ Dhanne and Noor Alam @ Gaira was committed. IO prepared pointing out memo (Ex.PW-26/A). Accused further disclosed about throwing the rod used in the murder in ganda nala (drain) near railway line. He further disclosed about taking the dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira in a blanket near railway line. He further deposed that IO arrested accused Sher Khan vide arrest memo (Ex.PW-26/B). Personal search of accused Sher Khan was conducted vide personal search memo (Ex. PW-26/C). IO recorded disclosure statement (Ex.PW-26/D) of accused Sher Sessions Case No. 57328/16 Page 62/113 Khan. After medical examination, accused Sher Khan was sent up to lock-up.
85. PW-26 further deposed about again joining the investigation in the present case on 02.08.2013. On that day, he alongwith SI Harpal, HC Yudhvir, HC Mahender and another Ct. Ravinder went to Kathputli colony in search of accused persons. At about 7.45 p.m, on the information of the secret informer, accused Farid @ Bhutwa was apprehended from railway line side, Satya Park, Naraina road, Delhi. On interrogation, accused Farid @ Bhutwa confessed about his guilt in the present case and was arrested vide arrest memo (Ex. PW-26/E). His personal search was conducted vide personal search memo (Ex.PW-26/F) and his disclouser statement (Ex.PW-26/G) was recorded. PW-26 further deposed that accused Farid @ Bhutwa disclosed that he alongwith accused Sher Khan, accused Firoz and Mohd. Raza had committed the murder of Mehtab @ Dhanne and Noor Alam @ Gaira in the jhuggi of Sher Khan. Accused Farid @ Bhutwa pointed out the place of murder i.e. jhuggi of accused Sher Khan situated in the area of Kathputli colony vide pointing out Sessions Case No. 57328/16 Page 63/113 memo Ex.PW-26/H. Accused Farid @ Bhutwa also disclosed that they had given thick and fist blows and had thrown the rod used in a ganda nala (drain) near railway line and had also taken the dead bodies in a blanket from the jhuggi to the railway line. Accused Farid @ Bhutwa took them to ganda nala (drain) near railway line towards Kirti Nagar where one pipe was recovered at the instance of accused Farid @ Bhutwa, which was seized by the IO vide seizure memo (Ex.PW-26/I). Thereafter, after medical examination, accused Farid @ Bhutwa was sent up to lock-up.
86. In his cross-examination, PW-26 stated that on 23.07.2013 he alongwith SI Harpal Singh left the police station for the investigation of the present case at about 5.30 p.m. Further, the secret information was received by SI Harpal Singh in his presence at about about 6 p.m below the Shadipur Flyover. PW-26 further stated that the secret informer remained with them till apprehension of accused Sherkhan. He again said that the secret informer remained with them till he pointed out the accused Sherkhan. PW-26 further stated that the place where the accused Sherkhan was Sessions Case No. 57328/16 Page 64/113 apprehended was a busy place and number of public persons were present there who refused to join the investigation when asked by the IO to do so.
87. On further cross-examination PW-26 stated that he again joined the investigation on 02.08.2013 and left the police station for investigation with SI Harpal Singh at around 6 p.m on foot. He further stated that the distance between Shadipur flyover and PS Ranjeet Nagar being about 600 meters, they reached at Shadipur flyover within 15-20 minutes. The secret informer had met SI Harpal Singh in his presence. PW-26 further stated that SHO had not sent any other staff for their assistance. He further clarified that he and SI Harpal Singh were in one team and remaining officials were in other team and both the teams proceeded towards different sides in the Satya Park. Further, 4-5 persons from the nearby residential locality were asked to join the investigation but none of them agreed. PW-26 further stated that there was darkness in the park and they were having torch as the things were not very clear due to darkness. He further stated that the secret informer was left at the Shadipur flyover Sessions Case No. 57328/16 Page 65/113 by the IO before proceeding toward Satya Park. They remained in the park for about 15 to 20 minutes. Further, from the said park they had gone to Pandav Nagar police booth where again IO had requested some persons from the nearby residential area to join the investigation but no one agreed. Further, the distance between Pandav Nagar Police booth and the place of recovery of rod was about 15 meters and there were houses in between. Further, they reached at the place of recovery at about 9.15 p.m. On further cross-examination, PW- 26 stated that on 02.08.2013 when they left the police station, SI Harpal was having his pistol and IO kit whereas other officials including himself (PW-26) were having dandas. PW-26 could not tell if SI Harpal had sent any information to the police station after their departure on 02.08.2013 till the time they returned back at around 10 p.m. PW-26 furhter stated that the seal which was used to seal the pullandas was kept by the IO after sealing the pullandas and was not handed over to anyone else.
88. SI Harpal (PW-27) deposed that on 23.07.2013, he joined the investigation in the present case alongwith Inspector Arjun Singh, HC Sessions Case No. 57328/16 Page 66/113 Yudhvir, HC Mahender and Ct. Rajbir and Ct. Ravinder. They all reached near Shadipur flyover where on the information of secret informer, they apprehended accused Sher Khan at railway track under Shadipur flyover. On interrogation, accused Sher Khan confessed his guilt. IO arrested the accused vide arrest memo (Ex.PW-26/B), conducted his personal search vide personal search memo (Ex.PW-26/C) and recorded his disclosure statement (Ex.PW-26/D). PW-27 deposed that accused Sher Khan pointed out the place i.e. jhuggi no. A-386, Bihari Camp, Kathputli Colony, Delhi vide pointing out memo (Ex.PW-26/A) where he alongwith his associates committed murder of Noor Alam @ Gaira and Mehtab @ Dhanne.
89. PW-27 further deposed that on 02.08.2013, he again joined the investigation in the present case alongwith IO/Inspector Arjun Singh. Ct. Ravinder. HC Yudhvir, HC Mahender and Ct. Rajbir. On the information of the secret informer, they apprehended accused Farid @ Bhutwa from railway line side, Satya Park, Shadipur flyover, Naraina road, Delhi. Accused Farid @ Bhutwa was interrogated by the IO. IO arrested accused Farid Sessions Case No. 57328/16 Page 67/113 @ Bhutwa vide arrest memo (Ex.PW-26/E) and conducted his personal search vide personal search memo (Ex.PW-26/F). After interrogation, disclouser statement of accused Farid @ Bhutwa (Ex.26/G) was recorded. Accused pointed out the place of incident i.e. A-386, Bihari Camp, Kathputli Colony vide pointing out memo (Ex.PW26/H). Accused Farid @ Bhutwa disclosed about weapon of offence i.e. iron pipe used in the murder of Mehtab @ Dhanne and Noor Alam @ Ghaira lying near nala (drain) under Shadipur flyover, which was seized vide seizure memo (Ex.PW-26/I).
90. PW-27 further deposed that on 03.08.2013, he again joined the investigation in the present case alongwith IO/Inspector Arjun Singh, HC Mahender, Ct. Ravinder and Ct. Rajbir. At the instance of secret informer, they reached at Shadipur flyover and apprehended accused Mohd. Raza. On interrogation, accused Mohd. Raza confessed his involvement in the crime. Accused Raza was arrested vide arrest memo (Ex.PW27/A), his personal search was conducted vide personal search memo (Ex.PW-27/B) and his disclouser statement (Ex.PW-27/C) was recorded. Accused pointed out Sessions Case No. 57328/16 Page 68/113 the place of occurrence i.e. Jhuggi no. A-386, Bihari Camp, Kathputli colony where he alongwith his associate had committed the murder of Noor Alam @ Gaira and Mehtab @ Dhanne vide pointing out memo (Ex.PW-27/D). Accused Mohd. Raza disclosed about the iron pipe used in commission of crime, which he had thrown under Shadipur flyover opposite DMS depot. The iron pipe was recovered from the said spot at his instance and seized vide seizure memo (Ex.PW- 27/E). Further, on the directions of IO, PW-27 had gone to mortuary of DDU hospital and collected subsequent opinion and two sealed pipes and handed over the subsequent opinion to the IO and deposited the pipes in Malkhana. PW-27 also identified the case property i.e two iron pipes shown to him, as Ex. P-3 and Ex.P-4.
91. PW-27 was cross-examined by the counsel for the accused persons. In his cross-examination PW-27 stated that on 23.07.2013 he joined his duties around 8-9 a.m. He was asked by the IO to join the investigation at around 4 p.m. PW-27 remained with IO Inspector Arjun Singh from 4 p.m to 12 midnight. Further, around 5 p.m they left Sessions Case No. 57328/16 Page 69/113 the police station for investigation of the present case. PW-27 further stated that he had not got issued the weapon from the police station nor any other police officials got issued the same in his presence. Further, after leaving the police station, they had gone to Sangam Colony, Pandav Nagar and Kathputli Colony. He further stated that the secret informer met them at about 7.30 p.m near Shadipur flyover i.e. at the edge of the flyover near Kathputli Colony, who remained with them till arrest of accused Sherkhan around 8.15 p.m. the secret informer pointed at the accused Sherkhan from a distance of 20-25 meters. On further cross- examination, PW-27 stated that the place of arrest of the accused Sherkhan was a busy place. The IO had asked HC Yudhvir and Ct. Rajbir to take position towards Patel Nagar near railway track whereas PW-27, IO and the secret informer had taken position on the opposite side. All of them were in uniform. On further cross-examination, PW-27 stated that they had reached at the jhuggi of accused Sherkhan at around 9.30 p.m and remained in the area of Kathputli colony for about 75 minutes. Further, the jhuggi of accused Sherkhan Sessions Case No. 57328/16 Page 70/113 was found locked when they reached there and the lock of the jhuggi was got opened by the owner of the jhuggi who was called telephonically by the IO as he would reside in nearby area. PW-27 further stated that the lock and key of the said jhuggi was returned to the owner.
92. On further cross-examination, PW-27 stated that he had joined the investigation on 02.08.2013 at around 4 p.m. They had left the police station around 6 p.m to reach at Kathputli Colony around 6.30 p.m. They remained at Kathputli Colony for about 1 hour and during this period no telephonic conversation had taken place with any person. Further, they reached at Shadipur flyover at around 7.45 p.m and remained there till 8 p.m. Further, the secret informer met them at 7.45 p.m who remained with them till the arrest of accused Farid @ Bhutwa. He further stated that they all entered into Satya Park from the main gate situated at Naraina road. On that day, IO Arjun Singh and PW-27 were in police uniform whereas other police officials were not in uniform. PW-27 further stated that a secret informer was with them when they entered into the Satya Park. However, he left the Satya Park Sessions Case No. 57328/16 Page 71/113 immediately after pointing towards the accused Farid @ Bhutwa from a distance of about 10 meters. Further, PW-27 stated that they reached at Kathputli Colony again at around 11 p.m and remained there for about 10 minutes. None of the persons at Kathputli Colony agreed to join the investigation. PW-27 further stated that the jhuggi was found locked when the accused Farid was taken over there and the said lock was got opened by the owner of the jhuggi, who was called telephonically by the IO. Thereafter, the lock and key of the said jhuggi was returned to the owner. Further, they left the Kathputli Colony at around 11.15 p.m and had gone to shrub area after crossing the railway track towards Kirti Nagar and remained there for about 20-25 minutes. PW-27 further stated that he was carrying IO's kit while they were going towards place of recovery from Kathputli colony. The measurement of recovered iron pipe was done by the IO in his presence. The IO had mentioned the actual length and width/diameter of the recovered pipe. PW-27 admitted that the pipe which was recovered on that day was having mud on it and was sealed in the Sessions Case No. 57328/16 Page 72/113 same condition as such. Further, during the investigation on that day from 4 p.m till 11.45 p.m, public persons were asked to join the investigation, who refused to join the same.
93. PW-27 further stated that he again joined the investigation on 03.08.2013 at around 5 p.m. On that day, they used government gypsy to visit the nearby area in search of accused persons. They remained present in Sangam Colony for about half an hour and had gone to Shadipur flyover on foot alongwith secret informer. They had reached at Shadipur flyover at about 9 p.m and remained present there till 11.30 p.m. PW-27 further stated that the secret informer had left after pointing out the accused Raza. Further, after 11.30 p.m they had come back to the police station where PW-27 was discharged by the IO after recording his statement.
94. HC Kuldeep (PW-32) deposed that on 03.08.2013, he had joined the investigation in the present case alongwith IO/Inspector Arjun Singh, SI Harpal, HC Yudhvir, HC Mahender and Ct. Ravinder. On the information of secret informer, they all reached at Sahadipur flyover and apprehended accused Mohd. Raza, who was sitting Sessions Case No. 57328/16 Page 73/113 on the stairs of Shadipur flyover. On interrogation by the IO, accused Mohd. Raza disclosed that he alongwith his brother Farid @ Bhutwa, Irshad and Firoz took Mehtab @ Dhanne and Noor Alam @ Gaira to the jhuggi of accused Sher Khan, where they committed murder of Mehtab @ Dhanne and Noor Alam @ Gaira by causing injuries with iron rod and knife. Thereafter, they had thrown their dead bodies after wrapping the same in blanket at the railway line. Disclouser statement of accused Mohd. Raza (Ex.PW-27/C) was recorded by the IO. IO arrested the accused vide arrest memo (Ex.PW- 27/A) and also conducted his personal search vide personal search memo (Ex.PW-27/B). PW-32 further deposed that thereafter accused Mohd. Raza took the police officials to the jhuggi of Sher Khan in the area of Kathputli Colony, where he pointed out the place of occurrence and IO prepared pointing out memo (Ex.PW-26/D). Further, accused Mohd. Raza led all the police officials opposite DMS booth at Khatta, where he had thrown the iron rod, used in murder of Mehtab @ Dhanne and Noor Alam @ Gaira and got it recovered. IO prepared the pullanda of said iron rod and seized Sessions Case No. 57328/16 Page 74/113 the same vide seizure memo (Ex.PW-27/E). PW-32 identified the case property i.e. iron rod (Ex.P-4) when shown to him.
95. In his cross-examination, PW-32 stated that he was asked to join the investigation at around 7 p.m. He alongwith SI Harpal and IO left the police station at around 7.10 p.m. they reached at Sangam Colony within 5 to 10 minutes though he could not tell by what mode they had gone to Sangam Colony. PW-32 further stated that the secret informer remained with them for 5-7 minutes at Sangam Colony and thereafter he accompanied them to the Shadipur flyover. PW-32 further stated that the secret informer had left from Shadipur flyover after the accused Raza was overpowered. On further cross-examination, PW-32 stated that the recovered rod was measured by the IO. He could not remember if the door of the jhuggi of accused Sherkhan was locked or opened when they were taken there by the accused. PW-32 denied the suggestions about being present on the spot when the accused Raza was arrested or recovery was effected at the instance of accused Raza. PW-32 Sessions Case No. 57328/16 Page 75/113 further denied the suggestions regarding other investigation.
96. Inspector Arjun Singh (PW-33), IO of the case deposed about the proceedings at the spot on 19.07.2013 after the investigation of the case was assigned to him. He further deposed about preparing the site plan (Ex.PW-1/C), lifting and seizing physical evidence from the spot and about recording of statement of the witnesses. Further, PW-33 deposed that on 20.07.2013, he had gone to the mortuary of DDU hospital for postmortem examination of the dead bodies of deceased Mehtab @ Dhanne and Noor Alam @ Gaira. He had filled the inquest form (Ex.PW-33/A) and made request for postmortem examination vide letter (Ex.PW- 33/B). PW-33 also recorded the statements of relatives of deceased persons.
97. Further, on 21.07.2013, PW-33 visited the house of deceased Mehtab @ Dhanne and Noor Alam @ Gaira and examined their family members. On 22.07.2013, eye witnesses namely, Danish @ Dillagi and Chotte Lal were examined by PW-33. On 23.07.2013, on the basis of secret information, PW-33 arrested accused Sherkhan Sessions Case No. 57328/16 Page 76/113 vide arrest memo (Ex.PW-26/B). He also conducted his personal search vide personal search memo (Ex.PW-26/C). PW-33 also interrogated and recorded the disclouser statement of accused Sherkhan (Ex.PW-26/D) and prepared the pointing out memo (Ex.PW-26/A) of scene of crime at his instance. PW-33 further prepared site plan (Ex.PW- 33/F) and recorded the statements of witnesses. Further, on 24.07.2013, statements under Section 164 Cr.P.C of both the eye witnesses were recorded by the learned Link Metropolitan Magistrate on an application (Ex.PW-33/G). Further, PW-33 deposed that on 24.07.2013, he moved a request letter to FSL Rohini for inspection of scene of crime and consequently, a team of exert inspected the spot in the presence of SI Amit Tyagi and lifted the exhibits from there. He further stated that on 02.08.2013, accused Farid @ Bhutwa was arrested vide arrest memo (Ex.PW-26/E). Accused Farid @ Bhutwa was arrested from Satya Park, Shadipur flyover Naraina road where he was found lying on a bench inside the park. He was apprehended on the identification of Ct. Ravinder, the beat constable. He recorded disclouser statement of accused Farid Sessions Case No. 57328/16 Page 77/113 @ Bhutwa vide memo Ex. PW-26/G consequent upon which the accused had taken them to the place of occurrence to point out the spot vide pointing out memo (Ex.PW-26/H). PW-33 further stated that accused Farid @ Bhutwa also led them to Shadipur flyover for recovery of weapon of offence and pointed out an iron pipe lying on the other side of the drain situated near the Industrial area underneath the Shadipur flyover. The said iron pipe was measured and seized vide seizure memo (Ex.PW-26/I). The said pipe was also sealed with the seal of RTNGR I. The site plan (Ex.PW-33/M) of the place of recovery of the iron pipe was also prepared by PW-33. He further stated that accused had also taken all of them to the houses of co- accused persons namely, Firoz and Mustafa, who could not be found in their houses. Further, PW-33 stated that on 03.08.2015, accused Mohd. Raza was arrested vide arrest memo (Ex.PW-27/A) on the basis of secret information while he was found sitting on the staircase of Shadipur flyover. The disclosure statement (Ex.PW-27/C) of accused Mohd. Raza was recorded and thereafter, the accused had taken them to the place of occurrence Sessions Case No. 57328/16 Page 78/113 where PW-33 prepared the pointing out memo (Ex.PW-26/D). Further, accused Mohd. Raza had taken them opposite DMS premises near Shadipur flyover and pointed out the place where he had thrown the iron pipe, which was used as weapon of offence. The said place was searched and one iron pipe was recovered from the said place which was measured and sealed in a cloth pullanda with the seal of RTNGR I. PW-33 also prepared the site plan (Ex.PW-33/N) of the place of recovery of the iron pipe. He had also recorded the statements of SI Harpal and HC Kuldeep.
98. On his further examination-in-chief, PW-33 stated about the receipt of postmortem examination reports (Ex.PW-16/A) and (Ex.PW-16/B), preparation of scaled site plan (Ex.PW-18/A) by Inspector Mahesh Kumar, sending of the weapon of offence to DDU hospital to obtain the subsequent opinion of Dr. B.N Mishra, sending of viscera boxes of deceased Mehtab @ Dhanne and Noor Alam @ Gaira to FSL Rohini for chemical analysis, sending the request letter to the Nodal Officer, Vodafone to provide the copy of CAF and CDR of mobile number 9899619179 vide letter (Ex.PW-
Sessions Case No. 57328/16 Page 79/11333/R) and examining Mohd. Mustaq, the subscriber of the said phone as well as owner of jhuggi where the accused Sherkhan was residing as tenant.
99. PW-33 further stated about obtaining NBWs in the name of accused Irshad and Firoz, who were absconding. He also identified the entire case property while deposing before the court.
100. PW-33 was cross-examined at length by the counsel for accused persons.
Anaysis
101. An analysis of the testimonies of afore- mentioned prosecution witnesses reveal that all the three accused persons namely Sherkhan, Farid @ Bhutwa and Mohd. Raza were arrested on pointing out by one secret informer. Both accused Sherkhan and Mohd. Raza were arrested from Shadipur flyover, whereas accused Farid @ Bhutwa was arrested from Satya Park, Naraina Road, near Shadipur flyover. PW-26 did not depose about the presence of the I.O at the time of making arrest of accused Sherkhan and as per his testimony, besides him, only SI Harpal, HC Yudvir, HC Mahender and constable Rajbir were the members of the team which had arrested accused Sherkhan. He further Sessions Case No. 57328/16 Page 80/113 deposed that it was SI Harpal who had interrogated accused Sherkhan after the arrest, however, the I.O had prepared the pointing out memo Ex.PW-26/A and arrested the accused Sherkhan vide arrest memo Ex.PW-26/B. Even the secret informer had informed to SI Harpal and not to the I.O regarding presence of accused Sherkhan. PW-26 in his cross- examination, further stated that it was SI Harpal who had formed two teams which again goes to indicate that there was no mention about the presence of the I.O at the time of making arrest of accused Sherkhan. Therefore, it becomes doubtful if the I.O was present at the time of making arrest of accused Sherkhan or the documents pertaining to his arrest were prepared by the I.O on the spot.
102. Further, constable Ravinder Kumar (PW-26) who was present at the time of arrest of accused Sherkhan deposed that accused Sherkhan had disclosed about throwing the rod used in the murder in ganda nala (drain), near railway line, whereas none of the other prosecution witnesses deposed about this fact.
103. As far as the recovery of weapon of offence i.e iron pipes at the instance of accused Farid @ Sessions Case No. 57328/16 Page 81/113 Bhutwa and accused Mohd. Raza are concerned, as per seizure memo Ex.PW-26/I, the total length of recovered iron pipe was 19.5 inch (49.53 cm) with 2 cm diameter and as per seizure memo Ex.PW- 27/E, the total length of recovered iron pipe was 25 inch (63.5cm) with 2 cm diameter. Both the recovered iron pipes Ex.P-3 and Ex.P-4 were produced before Dr. B.N. Mishra (PW-16) by the I.O for obtaining subsequent opinion regarding consistency of weapon used in the crime. Dr. B.N. Mishra (PW-16) gave his subsequent opinion vide opinion Ex.PW-16/DA, whereby first iron pipe was found to be 59.2 cm in length and 2.2 cm in diameter and the other pipe was found to be 50 cm in length and 2.1 cm in diameter. It is, therefore, clear that there is marked difference in the length of iron pipes which were stated to have been recovered at the instance of accused Farid @ Bhutwa and accused Mohd. Raza and the iron pipes which were produced before Dr. B.N. Mishra (PW-
16) for obtaining his subsequent opinion regarding consistency of offence with the said pipes. The submissions of learned Additional Public Prosecutor for the State to the effect that the Sessions Case No. 57328/16 Page 82/113 measurement of iron pipes Ex.P-3 and P-4 were not done by the I.O in a controlled atmosphere is not meritorious to cover the lapses on the part of the I.O in handling such a crucial piece of evidence. Even in his testimony, PW-33, I.O of the case could not explain about the difference in length of the iron pipes which makes the recovery of iron pipes Ex.P-3 and Ex.P-4 doubtful. As mentioned earlier, Constable Ravinder (PW-26) deposed that the iron pipe was got recovered at the instance of accused Farid @ Bhutwa at around 9.15 p.m, whereas SI Harpal (PW-27) deposed that the same was recovered at around 11.15 p.m. Constable Ravinder (PW-26) did not even identify any such iron pipe while deposing in the court which further raises doubt on the prosecution version regarding recovery of weapon of offence i.e iron pipe at the instance of accused Farid @ Bhutwa.
Motive
104. To establish the motive of the accused persons for commission of offences in the present case, the prosecution got examined the family members of both Mehtab @ Dhanne and Noor Sessions Case No. 57328/16 Page 83/113 Alam @ Gaira (since deceased) whose testimonies are as under:
105. Smt. Akbari Khatoon (PW-2), who is mother of deceased Mehtab @ Dhanne deposed that her son Mehtab @ Dhanne (since deceased) had been working at Moti Nagar, Delhi in a denting-painting workshop. In 2013, one day prior to Holi festival, a quarrel had taken place between her son Mehtab and Khursheed brother of accused Sherkhan regarding chewing of Gutkha. During the quarrel, accused Sher Khan and accused Farid @ Bhutwa caught hold of Mehtab @ Dhanne and accused Bhutwa assaulted him with beer bottle. After the intervention of persons of the locality, the matter was got compromised. At that time, accused Bhutwa threatened them by saying "ek do mahine me he jhagde ka natija dikha dega". She deposed that after about 10-15 days of the said incident, accused Farid @ Bhutwa had started roaming near her house and started making enquiries from her daughter-in-law namely, Razina Khatoon wife of Mehtab @ Dhanne (since deceased) about the timings of departure and arrival of Mehtab @ Dhanne. However, they did not inform the police Sessions Case No. 57328/16 Page 84/113 about the same. She further deposed that on 18.07.2013 at about 9 p.m, when she reached her home after finishing her work in kothies, she enquired from her daughter-in-law about her son Mehtab @ Dhanne (since deceased) as he had not returned home till then. On the same day when her son Mehtab @ Dhanne did not return to home till 11 p.m, they searched for him in the locality and made enquiry from one person namely, Pappu , but did not get any clue about Mehtab @ Dhanne. She further deposed that during that time, family members of in-laws of Mehtab @ Dhanne also reached her house and informed that Noor Alam @ Gaira, brother-in-law (sala) of Mehtab @ Dhanne had also not returned home. They all kept on searching Mehtab @ Dhanne and Noor Alam @ Gaira, but could not trace them.
106. PW-2 further deposed that on 19.07.2013, at about 7 a.m, one child from the locality had come and informed them that her son Mehtab @ Dhanne and Noor Alam @ Gaira are lying dead near railway line. They reached at the spot and found dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira. They also found accused Farid @ Bhutwa Sessions Case No. 57328/16 Page 85/113 sitting near the railway line, who informed the police and thereafter ran away from the spot. Akbari Khatoon (PW-2) deposed that both the accused persons Farid @ Bhutwa and Sher Khan were residing in her neighbourhood. She correctly identified both of them. She also correctly identified accused Mohd. Raza as brother of accused Farid @ Bhutwa.
107. PW-2 was cross-examined by the Ld. Counsel for the accused persons wherein she reiterated about the quarrel between Khurshid and Mehtab @ Dhanne one day prior to the Holi festival. Her husband Mohd. Moti and her daughter-in-law Razina Khatoon had also reached at the spot of quarrel where accused persons namely, Farid @ Bhutwa and Sherkhan were present with Khurshid. PW-2 further stated that accused Farid @ Bhutwa had hit Mehtab @ Dhanne with beer bottle and had also caught hold of her husband by neck. She further stated that a complaint was made to the police, however, with the intervention of locality person, the matter was settled. She further stated that the compromise was made in writing which was signed by her son Sessions Case No. 57328/16 Page 86/113 Mehtab @ Dhanne and Sherkhan. On further cross- examination PW-2 stated that all of them had gone to the police station and the police had also reached at the spot after about 10-15 minutes and at that time the accused persons had fled away from the spot. She further stated that after settlement when all of them had come back from the police station, the accused persons had extended threats. PW-2 further denied to have named accused Farid @ Bhutwa in the present case due to the doubt as he had quarreled with her son one day prior to Holi in the year 2013. She further denied that a sum of Rs. 10,000/- was given to her towards settlement.
108. Razina Khatoon (PW-6) wife of deceased Mehtab @ Dhanne deposed that one day prior to Holi festival in the year 2013, an altercation had taken place between her husband and Khurshid and after beating Mehtab @ Dhanne, Khurshid started running. During that time, accused Sher Khan and accused Farid @ Bhutwa also reached there and accused Farid @ Bhutwa gave a beer bottle blow on the head of Mehtab @ Dhanne while accused Sher Khan gave him beatings. However later on, the matter was compromised in the police station Sessions Case No. 57328/16 Page 87/113 on the intervention of public persons of the locality as it was festival time. Accused Farid @ Bhutwa had threatened them by exhorting words "Mai do tin mahine me dono ko dekh lunga". PW-6 further deposed that after that incident, accused Farid @ Bhutwa started making enquiry from her about duty timings of her husband Mehtab @ Dhanne and her mother-in-law. Further, on 18.07.2013, her husband Mehtab @ Dhanne had left the house at about 6.10 p.m saying that he would be coming back within 10-15 minutes, but did not return upto 9 p.m. She told her mother-in-law about the same and they searched for Mehtab @ Dhanne whole night, but no clue was found about him. On 19.07.2013, at about 6 a.m, one child from the locality came and informed that dead bodies of her husband Mehtab @ Dhanne and her brother Noor Alam @ Gaira were lying near railway line, Shadipur flyover depot. She reached there and found dead bodies of her husband Mehtab @ Dhanne and her brother Noor Alam @ Gaira. PW-6 had also identified the clothes of deceased Mehtab @ Dhanne (Ex.P-1).
109. PW-6 was cross-examined by the Ld. Counsel for accused persons wherein she stated that Sessions Case No. 57328/16 Page 88/113 no police complaint was made regarding the threats given by the accused. PW-6 could not tell the dates on which accused Bhutwa had made enquiries from her regarding her husband and her mother-in-law. On further cross-examination PW-6 stated that on 18.07.2013 her husband i.e. Mehtab @ Dhanne (deceased) had gone to his work with one of his friends namely, Pappu and enquiries were also made from Pappu when her husband did not come back in the night. Further, after returning from his workshop in the evening, her husband (deceased) had gone alone in the evening stating that he would return after sometime. On her further cross- examination, PW-6 stated that she had tried to contact her husband (deceased) on telephone on 18.07.2013 but he did not reply the call. PW-6 had also accompanied other family members for searching her husband (deceased) during the whole night of 18.07.2013 and first of all search was made near the flyover which is near to their house. She further stated that it takes about five minutes to reach the house of accused Farid @ Bhutwa from their house. PW-6 further stated that the accused Farid @ Bhutwa was named in the present case on Sessions Case No. 57328/16 Page 89/113 the basis of doubt arising out of the quarrel which had taken place one day prior to Holi. She also volunteered to say that accused Bhutwa had threatened to see her husband within a month or two at that time.
110. Praveen Khatoon (PW-7), mother of deceased Noor Alam @ Gaira deposed that on 17.07.2013, her son Noor Alam @ Gaira had returned home from his work place in the evening. On that day, at about 9 p.m, her son left the house for purchasing vegetables from the market and did not return back. While she was searching her son Noor Alam @ Gaira in the locality, she found accused Farid @ Bhutwa standing in the gali with one more person. During the time, she came to know that Mehtab @ Dhanne, son of her Samdhan namely, Akbari Khatoon had also not returned home. PW-7 further deposed that on 19.07.2017, one child of the locality came and informed that her son Noor Alam @ Gaira and Mehtab @ Dhanne were lying dead near railway line under Shadipur depot flyover. After reaching there, she found accused Farid @ Bhutwa present at the spot, who ran away after reaching of police officials. PW-7 Sessions Case No. 57328/16 Page 90/113 had identified the clothes of deceased Bhutwa (Ex.P-2).
111. PW-7 was cross-examined wherein she stated about making search for her son Noor Alam (deceased). She also denied the suggestion that accused Farid @ Bhutwa was named in the present case only on the basis of doubt arising out of quarrel which occurred one day prior to the Holi in the year 2013. No complaint was lodged about the threats given by accused Farid @ Bhutwa. PW-7 was also confronted with her statement (Ex.PW- 7/A) recorded under Section 161 Cr.P.C wherein she stated to have told to the police about the accused Bhutwa running away from the spot when the dog squad of Delhi Police had arrived. However, in her statement (Ex.PW-7/A) the word 'Dog Squad' was not found mentioned.
112. On 20.10.2013, Mohd. Moti (PW-15) had identified the dead body of his son Mehtab @ Dhanne vide identification statement Ex.PW-15/A and dead body of Noor Alam @ Gaira vide statement Ex. PW-15/B in DDU hospital. After postmortem, PW-15 also received the dead bodies of both the deceased persons vide receipt Ex.PW-
Sessions Case No. 57328/16 Page 91/11315/C. PW-15 was cross-examined by the learned Additinal Public Prosecutor for the State after taking permission of the court as he was not disclosing the complete facts. When cross- examined by learned Additional Public Prosecutor for the State, PW-15 deposed that on 18.07.2013, after coming from his work place, his son Mehtab @ Dhanne again left the house and did not return till late night. They searched for Mehtab @ Dhanne but could not trace him despite efforts. Next day i.e. 19.07.2013 at about 6a.m - 6.15 a.m, one boy came and informed that dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira were lying near the railway line. When they reached there, they found the dead bodies lying at the spot and accused Farid @ Bhutwa was also present there, who informed the police. However, before the arrival of police officials, accused Farid @ Bhutwa fled away from the spot. PW-15 further deposed that in the year 2013, one day prior to the Holi festival, a quarrel had taken place between his son Mehtab @ Dhanne and Khurshid on the issue of Gutkha. At that time, accused Sher Khan gave beatings to his son Mehtab @ Dhanne. Accused Farid @ Bhutwa Sessions Case No. 57328/16 Page 92/113 hit the head of his son Mehtab with a beer bottle. Later on, the matter was got compromised in the police station on the interrogation of neighbourers. At that time, accused Farid @ Bhutwa had threatened his son Mehtab @ Dhanne to see him later. PW-15 also deposed that after that incident, accused Farid @ Bhutwa threatened Farid @ Bhutwa 2-3 times and also abused him. PW-15 had also raised suspicion towards accused Farid @ Bhutwa and accused Sher Khan for committing murder of his son Mehtab @ Dhanne and Noor Alam @ Gaira. He also deposed about identifying the dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira on 20.07.2013 and receiving the dead bodies of both on the same day after postmortem examination.
113. PW-15 was also cross-examined by the Ld. Counsel for accused persons wherein he stated that neither he nor his daughter-in-law had made any complaint to the police regarding the threats given by accused Farid @ Bhutwa. On further cross- examination, PW-15 admitted that they had not made any complaint to the police on 18.07.2013 raising suspicion over accused persons. On Sessions Case No. 57328/16 Page 93/113 18.07.2013, PW-15 had not gone to the houses of the accused persons alongwith the neighbourers. He further denied the suggestion about the accused persons extending threats to him or his family members or to have named the accused persons under the pressure of the police.
114. Babar Ali (PW-17), brother of deceased Noor Alam and brother-in-law (sala) of deceased Mehtab @ Dhanne deposed that on 18.07.2013, his brother Noor Alam had left the house at about 9 p.m but did not return till 11 p.m. He alongwith his mother searched for Noor Alam, but could not find him. Next morning, at about 6 a.m - 6.15 a.m, one boy came and informed them that dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira were lying at railway track near Shadipur flyover. When they reached there, dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira were lying there and accused Bhutwa and family members of Mehtab @ Dhanne were also present there. Accused Bhutwa informed the police at number 100 from his own mobile. However, PW-17 had seen accused Bhutwa leaving the spot before arrival of police officials. He also deposed about Sessions Case No. 57328/16 Page 94/113 the quarrel, which had taken place between accused Farid @ Bhutwa and Mehtab @ Dhanne one day prior to the festival of Holi. The matter was reported to the police and was settled thereafter. However, accused Farid @ Bhutwa had threatened Mehtab @ Dhanne to see him in future.
115. In his cross-examination, PW-17 stated that no police complaint was made about the quarrel prior to 18.07.2013 and on 18.07.2013 also, he had not made any complaint to the police when he could not find his brother. PW-17 also denied the suggestions regarding extension of threats by the accused Farid @ Bhutwa or about any quarrel not taking place between accused Farid @ Bhutwa and Mehtab. He further denied the suggestion that the accused persons were named in the present case only on the basis of suspicion due to earlier quarrel between the accused persons and Mehtab (deceased).
116. On 25.03.2013, on receipt of DD No. 32 A (Ex.PW-19/A) regarding quarrel and snatching, ASI Jai Chand (PW-19) had reached at Shadipur flyover depot where he met one person namely Aftab. On enquiry, ASI Jai Chand came to know that there Sessions Case No. 57328/16 Page 95/113 was petty quarrel between Khurshid and Aftab. Later on, on the intervention of their parents, the matter was amicably settled. After returning to police station, PW-19 lodged DD No.7B (Ex.PW- 19/B) in this regard.
117. PW-19 was not cross-examined by the Ld. Counsel for accused persons.
Analysis
118. On perusal of the testimonies of afore- mentioned prosecution witnesses, it is revealed that in the year,2013, one day prior to Holi festival, some quarrel had taken place between Mehtab @ Dhanne and Khurshid, brother of accused Sherkhan wherein accused Sherkhan and accused Farid @ Bhutwa also got involved, however, with the intervention of the persons of the locality and the police officials, the matter was compromised between them. As per the above-mentioned prosecution witnesses, accused Farid @ Bhutwa started nursing grudges against Mehtab @ Dhanne due to the said quarrel and had also threatened to take revenge within 2-3 months.
119. As is clear from the testimonies of afore- mentioned prosecution witnesses, the initially Sessions Case No. 57328/16 Page 96/113 quarrel had taken place between Mehtab @ Dhanne and Khurshid, brother of accused Sherkhan. After the said quarrel, no further quarrels were deposed by any of the prosecution witnesses involving Mehtab @ Dhanne and Noor Alam @ Gaira (since deceased) and the accused persons. No report about any threat extended by accused Farid @ Bhutwa was ever lodged with the police authorities by any of the afore-mentioned prosecution witnesses which goes to indicate that the threats, if are assumed to be there, were not of such a gravity so as to raise alarm to any of the prosecution witnesses or even to Mehtab @ Dhanne (deceased). Even otherwise, no family member of the deceased persons visited the houses of the accused persons situated nearby in the same locality, to enquire their whereabouts when they were making search for them. It again goes to indicate that the suspicion raised over the accused persons was not justified and was not warranted. Further, Razina Khatoon (PW-6) categorically deposed that the accused Farid @ Bhutwa was named in the present case merely on the basis of doubt which was entertained due to said quarrel. It also does not appeal to Sessions Case No. 57328/16 Page 97/113 common sense, if the said quarrel had taken place between Mehtab @ Dhanne and Khurshid, brother of accused Sherkhan, why said Khurshid was not got involved by the accused persons for eliminating Mehtab @ Dhanne (deceased). Moreover, there is not an iota of evidence to indicate towards any grudge entertained by the accused persons towards Noor Alam @ Gaira (deceased). No explanation is coming forward out of testimonies of any prosecution witnesses including PW-33, I.O of the case why Noor Alam @ Gaira (deceased) could have been murdered by the accused persons. Furthermore, there is no witness who might have seen both Mehtab @ Dhanne and Noor Alam @ Gaira (since deceased) together on that fateful night. As observed above, the testimonies of both the eye-witnesses namely Chhote Lal (PW-11) and Danish @ Dillagi (PW-12) are not trustworthy in this regard who even failed to identify the accused Farid @ Bhutwa and accused Mohd. Raza. Therefore, in view of the above-discussed testimonies of prosecution witnesses, in my considered opinion, the prosecution failed to establish any motive on the part of the accused Sessions Case No. 57328/16 Page 98/113 persons for commission of offence of murder of Mehtab @ Dhanne and Noor Alam @ Gaira. Forensic Witnesses
120. Shri Amit Rawat, Assistant Director, Chemistry, FSL, Delhi (PW-29) deposed that on 03.09.2013, two sealed parcels sealed with the seal of DDU hospital alongwith sample seal of case FIR No. 153/13 PS Ranjit Nagar were marked to him. On opening parcel no.1, three exhibits pertaining to viscra of Mehtab @ Dhanne i.e. Ex.1A, Ex.1B and Ex.1C were found and on opening parcel no.2, three exhibits pertaining to viscera of Noor Alam @ Gaira i.e. Ex.2A, Ex.2B and Ex. 2C were found. On chemical and GCHS examination, exhibits 1A, 1B,1C, 2A, 2B and 2C were found to contain ethyl alcohol while exhibits 1C and 2 C were found to contain ethyl alcohol 196.5 mg/110 ml of blood and 33.4 mg/100 ml of blood respectively. PW-29 proved his report (Ex.PW-29/A).
121. PW-29 was not cross-examined by the counsel for accused persons.
122. Shri Indresh Kumar Mishra, Director Biology, FSL, Rohini, Delhi was got examined as (PW-30). He had deposed that on 03.09.2013, 13 Sessions Case No. 57328/16 Page 99/113 sealed pullandas pertaining to case FIR No. 153/13 PS Ranjit Nagar were assigned to him for biological and serological examination. He mentioned the details of exhibits, contained in the pullandas in his report (Ex.PW-30/A). On biological examination of exhibits, he prepared his detailed biological report (Ex.PW-30/A) and on serological examination, he prepared his detailed serological report (Ex. PW-30/B), wherein human blood was detected on all exhibits except Ex.2 and 4 (Earth Control).
123. In his cross-examination, PW-30 stated that he received the pullandas for the purpose of examination, however, he could not tell the time and date when the same were received. He further stated that he could not tell without seeing the concerned FSL file.
124. It is clear from the viscera examination of dead bodies of both Mehtab @ Dhanne and Noor Alam @ Gaira that ethyl alcohol was found present. There is no material to show if the blood group of both the deceased persons matched with the blood group found on the afore-mentioned exhibits.
Sessions Case No. 57328/16 Page 100/113Electronic Evidence
125. Shri Israr Babu (PW-23), Alternate Nodal Officer, Vodafone Mobile Service Ltd. deposed that prepaid connection of mobile phone number 9899619179 was issued to one Mohd. Mustak son of Mohd. Gufur R/o F-441, Kathputli Colony, Pandav Nagar, Delhi on the basis of driving license. PW-23 identified the Customer Application Form of above-said mobile number (Ex.PW-23/A) and driving license attached with the Customer Application Form (Ex.PW-23/B). He filed the attested copy of call details of above-said mobile number for the period w.e.f 15.07.2013 to 20.07.013 (Ex.PW-26/C). PW-23 deposed about issuing a certificate under Section 65B of the Indian Evidence Act (Ex.PW-23/D) in respect of CDR of mobile phone number 9899619179.
126. PW-23 was not cross-examined by the Ld. Counsel for accused persons.
127. Mohd. Mushtaq, brother of accused Farid @ Bhutwa was examined as (PW-10). He deposed that Sessions Case No. 57328/16 Page 101/113 he had given mobile number 9899619179, which was in his name, to his mother in the year 2006. He deposed that he had left his house about 6-7 years ago and had been living at Pandav Nagar, Delhi. PW-10 was cross-examined by the learned Additional Public Prosecutor for the State with the permission of the court as he was not disclosing the complete facts. In his cross-examination by the learned Additional Public Prosecutor for the State he denied the suggestion that he had given the SIM pertaining to Vodafone number 989961 9179 to his brother accused Farid @ Bhutwa. However, he stated that his brother accused Farid @ Bhutwa was residing with his mother.
128. In his cross-examination by the learned Counsel for accused persons, PW-10 stated that he never stated to the police that he had given the above-mentioned SIM number to his brother Farid @ Bhutwa.
129. As is clear from the testimony of Sh. Israr Babu (PW-23), the mobile phone number 9899619179 was subscribed in the name of Mohd. Mushtaq. PW-23 deposed about the call details record Ex.PW-26/C pertaining to the said mobile Sessions Case No. 57328/16 Page 102/113 number, whereby a call at 100 number was made from the said mobile number. However, as per the testimony of Mohd. Mushtaq (PW-10), it could not be established if mobile number 9899619179 was being used by accused Farid @ Bhutwa on the relevant date.
Deposition of case property
130. HC Surender (PW-21), the MHC(M) deposed about deposition of case property in Malkhana on various dates. On 19.07.2013, IO/Inspector Arjun Singh had deposited 6 pullandas duly sealed with the seal of RTNGR-I about which PW-21 made an entry at serial no. 533 in register no.19 (Ex.PW- 21/A). Again on 24.07.2013, IO/Inspector Arjun Singh deposited 7 parcels sealed with the seal of DDU hospital in the Malkhana. PW-21 had deposited the same and made entry at serial no. 534, register no. 19 (Ex. PW-21/B). On 24.07.2013, SI Amit Tyagi had deposited 3 parcels sealed with the seal of RTNGR-II, which PW-21 deposited and made entry at serial no. 536 in register no. 19 (Ex.PW-21/C). On 02.08.2013, IO/Inspector Arjun Singh had deposited 2 parcels sealed with seals of RTNGR-I, which were deposited by PW-21 vide Sessions Case No. 57328/16 Page 103/113 entry made at serial no.542 and 543 respectively in register no.19 (Ex.PW-21/D). Further, on 19.08.2010, on the directions of the IO, one sealed parcel of iron pipe was got deposited in DDU hospital through Ct. Bijender vide RC No. 74/21/13 (Ex.PW-21/F). Again, on 03.09.2013 on the directions of IO, 14 sealed parcels were got deposited with FSL Rohini through Ct. Chander Bhan vide RC No. 89/21/13 (Ex.PW-21/G). On the same day, two sealed parcels were also got deposited with FSL Rohini vide RC No. 88/21/13 (Ex.PW-21/H).
131. In his cross-examination, PW-21 could not tell the time when the case properties were deposited in the Malkhana by the IO on 19.07.2013 and on the other dates. He further stated that on 19.08.2013 one sealed pullanda deposited on 02.08.2013 was given to Ct. Bijender for sending to DDU hospital against RC no. 74/21/13. He further stated that as per record, Inspector Arjun Singh had not taken the pullandas on 19.08.2013 for sending it to DDU hospital. On further cross-examination, PW-21 stated that Inspector Arjun Singh had not deposited the pullandas in the Malkhana on Sessions Case No. 57328/16 Page 104/113 26.08.2013. PW-21 also stated that the IO could access the Malkhana at any point of time and between 19.07.2013 to 03.09.2013 Inspector Arjund Singh used to visit Malkhana.
132. Constable Chander Bhan (PW-22) deposed that on 03.09.2013, he received the case property i.e. two sealed Viscera and 13 sealed biological exhibits alongwith forwarding letter from the MHC(M) PS Ranjit Nagar vide RC No. 88/21/13 dated 03.09.2013 & R.C No.89/21/13 dated 03.09.2013 for depositing the same in FSL, Rohini. Accordingly, PW-22 deposited the above- mentioned case property in FSL, Rohini and handed over the copy of road certificate and receipt of FSL, Rohini to the MHC(M) PS Ranjit Nagar.
133. PW-22 was not cross-examined by the Ld. Counsel for accused persons.
134. Constable Bijender Singh (PW-13) deposed that on 19.08.2013, on the directions of IO, he had taken two pullandas sealed with the seal of RTNGR 1 from Malkhana vide RC No. 74/21/13 with one request letter and other documents to the mortuary of DDU hospital and handed over the same to Dr. B.N Mishra, Medical Officer of DDU hospital. He Sessions Case No. 57328/16 Page 105/113 had received a receipt in this regard, which he handed over to MHC(M).
135. In his cross-examination, PW-13 stated that he had received the pullandas and documents at around 10.30 a.m and the said pullandas were handed over to Dr. B.N Mishra at around 12 noon. He had also given the receipt/acknowledgment given by the doctor to the MHC(R).
Lapses in Investigation
136. In the light of afore-discussed testimonies of prosecution witnesses and facts and circumstances of the case, various lapses in conduct of investigation by the I.O have surfaced which affect the prosecution case adversely. For instance, the presence of dog squad on the spot where the dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira were found lying could not be established though one of the contentions of the prosecution was that accused Farid @ Bhutwa had fled away from the spot after arrival of the dog squad fearing that the dogs may lead upto him. Any such dog handler was not even cited or got examined by the prosecution. Even the photographs taken on the Sessions Case No. 57328/16 Page 106/113 spot do not show the presence of any dog squad on the spot.
137. Further, according to the prosecution version, the accused persons had wrapped the dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira in one blanket to carry them from the jhuggi of accused Sherkhan to the spot near railway tracks and afterwards in order to destroy the evidence, the said blanket was burnt on the railway tracks. However, on perusal of photographs Ex.PW-3/B- 4,B-6,B-8,B-9,B-10, B-17 and B-22, one blanket is clearly visible lying near the dead bodies. The said blanket was not seized by the I.O, nor is there any explanation about the said blanket, rather, it was proposed that the blanket was burnt on the railway tracks. Non-seizure of said blanket which could have proved to be a crucial piece of evidence in the chain of circumstances sought to be established by the prosecution was not explained by the I.O for the reason best known to him.
138. Next, in personal search of Noor Alam @ Gaira (deceased), one mobile phone with SIM card was recovered vide memo Ex.PW-1/E, however, the I.O did not bother to obtain the call details Sessions Case No. 57328/16 Page 107/113 record or location chart of the said mobile number so as to ascertain the presence of Noor Alam @ Gaira on the fateful night.
139. Further, according to the prosecution version, besides Chhote Lal (PW-11) and Danish @ Dillagi (PW-12), there were other persons also who had witnessed the incident, however, none of them was interrogated or examined. Nor there is any explanation furnished by the I.O for not doing so.
140. As observed earlier, not a single evidence about prior meeting of mind to enter into a criminal conspiracy between the accused persons to commit murder of both Mehtab@ Dhanne and Noor Alam @ Gaira could be obtained by the I.O during investigation. It could not be even established, if both Mehtab @ Dhanne and Noor Alam @ Gaira were together on the fateful night, though there was considerable gap between both of them leaving their respective houses and the unfortunate incident which happened with them.
141. It was also discussed earlier how the presence of the I.O became doubtful at the time of making arrest of accused Sherkhan and preparation of documents in this regard.
Sessions Case No. 57328/16 Page 108/113Conclusion
142. As per the settled prepositions of the law, it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. In Sharad Birdhichand Sarda v. State of Maharashta (1984) 4 SCC 116, which is considered a locus classicus on circumstantial evidence, it was laid down that the facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. Further, the circumstances should be of a conclusive nature and tendency and 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. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the Sessions Case No. 57328/16 Page 109/113 accused should be adopted. (Reliance placed on Kali Ram v. State of Himachal Pradesh (1973), 2 SCC, 808 and Upender Pradhan v. State of Orissa (2015), 11 SCC, 124).
143. From the entire facts and circumstances, it has been established that Mehtab @ Dhanne Son of Mohd. Moti and Noor Alam @ Gaira Son of Mohd. Gannuar died in the intervening night of 18/19.7.2013. Their dead bodies were duly identified by PW Mohd. Moti (PW-15). As per postmortem examination report Ex.PW-16/A, both Mehtab @ Dhanne and Noor Alam @ Gaira had suffered injuries on their persons which were found sufficient to cause the death in ordinary course of nature. Their death was also homicidal. The points for determination no.1,2 and 3 are accordingly decided.
144. In the light of afore-discussed testimonies of prosecution witnesses and other material available on record, it is also clear that there is no evidence to show if the accused persons entered into a criminal conspiracy with each other to cause the Sessions Case No. 57328/16 Page 110/113 death of both Mehtab @ Dhanne and Noor Alam @ Gaira. Similarly, there is no evidence available on record to establish that the accused persons caused the evidence of commission of murder to disappear in order to screen themselves from the legal punishment. As discussed earlier, the prosecution miserably failed to establish the existence of motive on the part of accused persons to commit the murder of Mehtab @ Dhanne and Noor Alam @ Gaira. Further, both the eye-witnesses namely Chhotey Lal (PW-11) and Danish @ Dillagi (PW-
12) resiled from their statements recorded under Section 164 Cr.P.C which makes their testimonies unreliable and not credit-worthy. The arrest of the accused persons and the recovery of weapon of offence at their instance was also doubtful, particularly, in view of difference in size of recovered iron pipes Ex.P-3 and Ex.P-4 and the iron pipes which were sent to Dr. B.N. Mishra (PW-16) for his subsequent opinion regarding consistency of weapon of offence. On the whole, the prosecution story is not free from doubt and the chain of circumstances put forward by the prosecution is not complete, pointing unerringly Sessions Case No. 57328/16 Page 111/113 towards the accused persons and only the accused persons who can be held liable for commission of offences alleged.
145. The points for determination no.4, 5, 6 and 7 are accordingly decided against the prosecution.
146. In the given facts and circumstances as discussed above, I extend the benefit of doubt to the accused persons namely Sherkhan son of Mohd. Jamal Master, Farid @ Bhutwa and Mohd. Raza, both son of Mohd. Abdul Gafur and acquit them.
147. Bail bonds under Section 437-A Cr.P.C were furnished by the accused persons with photograph and residential proof of their respective sureties.
148. Family members of Mehtab @ Dhanne and Noor Alam @ Gaira (deceased persons) are hereby referred to District Legal Service Authority, West, for consideration of suitable compensation amount.
Sessions Case No. 57328/16 Page 112/113149. In view of Section 365 Cr.P.C, a copy of the judgment be also sent to District Magistrate concerned for his information.
150. A copy of the judgment be also sent to worthy Commissioner of Police, Delhi, for his perusal and necessary action.
(Pronounced in the open (Kuldeep Narayan) Court on 19-08-2017 ). Addl. Sessions Judge (Pilot Court) West : Court No. 33: Tis Hazari Courts Delhi Sessions Case No. 57328/16 Page 113/113