Delhi District Court
State vs . 1) Narender on 19 July, 2016
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Case ID No. 02403R0342552010
Sessions Case No. 56 of 2013
State vs. 1) Narender
Son of Sh. Rishi Prakash
Resident of 819A, Village Bakkarwala,
DDA Flats, Delhi.
2) Lalit Sharma
Son of Rajender Sharma
Resident of D-36C, Mohan Garden,
Uttam Nagar, Delhi.
3) Raj Rani Sharma
Wife of Rajender Sharma
Resident of D-36C, Mohan Garden,
Uttam Nagar, Delhi.
4) Rajender Sharma
Son of Sh.Hans Raj Sharma
Resident of D-36C, Mohan Garden,
Uttam Nagar, Delhi.
5) Shashi Bala
Wife of Narender
Resident of 819A, Village Bakkarwala,
DDA Flats, Delhi.
FIR No. 411 of 2009
PS: Special Cell
U/s: 302/365/201/202/120B IPC
Date of institution of the case : 06.04.2010
Date when the case reserved for judgment : 12.07.2016
Date of announcement of judgment : 19.07.2016
JUDGMENT
1. Narender, Lalit Sharma, Raj Rani Sharma, Rajender Sharma and Shashi Bala are facing trial in this Court for the following offences:-
State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 1/52
(a) Narender, Lalit Sharma and Raj Rani Sharma are
jointly charged for the offences punishable under Section 120B of the Indian Penal Code (IPC) read with Sections 364 and 302 of the IPC; Sections 364, 302 and 201 all read with Section 120B of the IPC.
(b) Rajender Sharma and Shashi Bala are individually charged for the offence punishable under Section 202 of the IPC.
2. Before proceeding further it will be pertinent to describe the relationship between the accused persons. Rajender Sharma is a Sub-Inspector in Delhi Police. Raj Rani Sharma is the wife of Rajender Sharma and Lalit Sharma is the son of Rajender Sharma and Raj Rani Sharma. Narender is the nephew of Rajender Sharma (being the son of sister of Rajender Sharma). Shashi Bala is the wife of Narender.
3. The case set up by the prosecution is that Rajender Sharma was working in the Delhi Police. The deceased Sazia Urus was residing as a tenant at House No.642B, Mundka Village, Delhi of which Ajit Singh was the landlord. Sazia Urus was a student of JRN Institute of Aviation Technology Mundka and was pursuing Aircraft Maintenance Engineering Course. Sazia Urus had a dispute with her landlord in January, 2009 and had called the PCR which was assigned for inquiry to accused Rajender Sharma Sub-Inspector who was then posted in PS Nangloi. Rajender Sharma kept in touch with Sazia Urus and both developed a relationship. Sazia Urus started blackmailing Rajender Sharma and demanded Rs.1,00,000/- from him in September, 2009 and threatened him that if he did not meet her demand, she would reveal their relationship in the media and make a complaint to the police. Rajender Sharma paid Sazia Urus Rs.35,000/- by way of a cheque and handed over cash of Rs.65,000/- after withdrawing it from an ATM. Raj Rani Sharma and Lalit Sharma on 16.09.2009, came to know about the State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 2/52 cheque for Rs.35,000/- having been given to Sazia Urus and protested about the payment. In the night of 16.09.2009, Rajender Sharma, Raj Rani Sharma and Lalit Sharma went to the tenanted premises of Sazia Urus and took back the cheque for Rs.35,000/-.
4. It is further alleged that Sazia Urus thereafter started pressurizing Rajender Sharma for money and Rajender Sharma paid some money to her including Rs.35,000/- which he withdrew from an ATM without informing his family. On 20.09.2009, Rajender Sharma went to Kerala for official work and left behind his mobile handset having number 9213977139 in his house. On 23.09.2009, Sazia Urus made a call from her mobile number 9891594750 to the mobile number of Rajender Sharma. The said call was attended by Narender. Sazia Urus told Narender that she wanted to talk to Rajender Sharma and Narender informed her that Rajender Sharma was not in Delhi and had left his mobile phone at home. Sazia Urus told Narender that she had an altercation with her landlord and requested Narender to help get her belongings out of her room and to drop her to the house of her brother. Narender then went to the tenanted premises of Sazia Urus on his Hero Honda motorcycle bearing registration no. DL-4SAZ-1867 at about 8pm. He picked Sazia Urus who had a suitcase with her on his motorcycle and took her to Peeragarhi Chowk and asked her to get down but she started insisting to go to the house of Rajender Sharma with him. Narender however convinced Sazia Urus and took her to his own tenanted premises at House No. 382, Pocket G-6, Sector 16, Rohini, Delhi.
5. It is further alleged that in the morning of 24.09.2009, Narender went to the house of Rajender Sharma and informed Raj Rani that he had taken Sazia Urus to his house. At that time, Narender, Raj State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 3/52 Rani and Lalit Sharma had a discussion of the threats of Sazia Urus of destroying their family and blackmail on her part. All of them decided to get rid of Sazia Urus by killing her. On 25.09.2009, Sazia Urus informed Narender that she was not well and sensing an opportunity, Narender administered a diazapam injection to her and called Raj Rani and Lailt Sharma to his house. At 11:30pm on 25.09.2009, Narender, Raj Rani and Lalit Sharma took Sazia Urus with them in their Maruti Swift car bearing registration no. DL-9CQ-5986 and departed for Bhadra, District Hanuman Garh, Rajasthan. Shashi Bala also accompanied them but she was told that Sazia Urus would recover from her ailment after dharshan and blessing Gaurakh Tilla Mandir.
6. It is further alleged that Narender took a tank full of petrol and also four liters of petrol separately in two bottles. On the way, he administered another diazapam injection to Sazia Urus when she started regaining consciousness. Thereafter Narender killed Sazia Urus by throttling her by using her own chunni. Shashi Bala had protested due to which a fight took place between her and Narender. After crossing the Bhadra Railway Line, Narender and Lalit Sharma stopped at a remote location, took out the body of Sazia Urus from the car and took it at a distance of 20 feet from the road. Narender burnt the body of Sazia Urus by using petrol and other articles to ensure that the body could not be recognized. Thereafter all of them went towards Ghorakh Tilla Temple and performed dharshan and came back to Delhi. Narender, Raj Rani and Lalit Sharma then informed Rajender Sharma that they had convinced Sazia Urus to go back to her brother and that she had gone back to her brother.
7. It is further alleged that in October, 2009, Rajender Sharma had been called to PS Nangloi for questioning regarding Sazia State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 4/52 Urus being missing. Thereafter Rajender Sharma had asked Raj Rani, Lalit Sharma and Narender about Sazia Urus and they then revealed to him that they had killed Sazia Urus and disposed her body after burning it on the way of Ghorakh Tilla Mandir. Rajender Sharma had got annoyed with them and then hatched a story and explained it to them to claim their innocence. He told Narender to take the stance that. He had dropped Sazia Urus at Madhubhan Chowk. He told Raj Rani and Lalit Sharma to claim that they had gone to Vaishno Devi between 22.09.2009 to 26.09.2009 and that Narender had been called by Raj Rani to her house to take care of her daughter in her absence.
8. It is in this manner that the State seeks to prosecute Narender, Lalit Sharma and Raj Rani for having conspired to abduct and murder Sazia Urus and then to destroy evidence of their crime. Rajender Sharma and Shashi Bala are sought to be prosecuted for having concealed knowledge of commission of the said offence.
9. The manner in which the offences came to light are explained in the police report under Section 173 (2) of the Cr.P.C. as per which on 13.10.2009, a written complaint was made by Shams Tanveer Ahmad, brother of Sazia Urus to PS Nangloi in which it was stated that on 12.10.2009, he was informed by the classmate of Sazia Urus that she was not attending classes for the past few days and had also missed her exams on 06.10.2009. Shams Tanveer Ahmad further stated that he then went and met Ajit Singh, landlord of his sister who told him that in the night of 24.09.2009 at about 8pm, one man aged about 40 years had deceitfully taken Sazia Urus with him on his Maruti Swift LXI DL-9CR-5986 and Hero Honda Splendor motorcycle DL- 4SAZ-1867 and that she had not come back till then. Shams Tanveer Ahmad requested the police of PS Nangloi to trace his sister. On the State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 5/52 basis of the complaint of Shams Tanveer Ahmad, FIR No. 411 of 2009 was registered in PS Nangloi, Delhi.
10. During the course of investigation, suspects and witnesses were questioned. Messages were flashed to the NCRB / SCRB and hue and cry notices about Sazia Urus were also published. On 01.12.2009 investigation of the case was transferred to the Special Cell Northern Range Rohini. Call Detail Records (CDRs) of the number of Sazia Urus 9891594750 were analyzed and it was found that the location of the said mobile phone was at Sector 16 Rohini on 25.09.2009. Earlier Narender had stated that he had dropped Sazia Urus at Madhubhan Chowk but after analysis of the said CDR, Narender and Lalit Sharma were interrogated who then disclosed that they had murdered Sazia Urus along with Raj Rani. Narender and Lalit Sharma were arrested on 07.12.2009 and their detailed disclosure statements were recorded. Thereafter Raj Rani Sharma was arrested on 08.12.2009 and she also gave a disclosure statement. The Hero Honda motorcycle and Maruti Swift car were seized. Police custody of the accused persons had been granted. Narender and Lalit Sharma individually pointed out the place near the road leading to Bhadra Dhani Kohkran at Bhadra District Hanuman Garh Rajasthan where they had burnt the dead body of Sazia Urus which was recorded vide separate pointing out memos. Inquiry was made from PS Bhadra from where it came to light that vide case no. 22 of 2009, inquiry had been conducted under Section 174 Cr.P.C. about a dead body having been found. The case file was perused which revealed that postmortem examination had been conducted and the viscera had been preserved after lifting DNA sample of the deceased. The viscera was lying deposited in SP Medical College at Bikaner Rajasthan. The Viscera examination report was collected and cause of death report of the doctor was also obtained which however State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 6/52 recorded that due to body being severely burnt, cause of death could not be given but it was opined that the burns were postmortem and the body of an adult female.
11. It is further stated in the police report that DNA sample of the deceased was obtained and blood samples of Shams Tanveer Ahmad and Smt. Rabeya Khatoon, brother and mother of the deceased were drawn and sent to CFSL CBI for DNA Profiling. AS per the report of the CFSL, the body of the deceased was that of the daughter of Rabeya Khatoon i.e. it was that of Sazia Urus. During the course of investigation, Narender pointed out his flat in Sector 16 Rohini where Sazia Urus had stayed with him. The park in Sector 16 Rohini where he had thrown the belongings of Sazia Urus including her mobile phone and the spot at Najafgarh Ganda Nalla where he had thrown the suitcase of the deceased. The articles of the deceased however could not be recovered. Narender then pointed out a petrol pump in Sector 16 Rohini from where he had purchased petrol in two bottles used by him to burn the body of the deceased. He pointed out M/s J.P. Medicare in Sector 7 Rohini from where he had purchased diazapam injection and two syringes used by him in the incident. The same were recorded vide separate pointing out memos. Statements of bank account of Rajender Sharma and Sazia Urus were collected. After recording statements of the witnesses, police report was filed.
12. By order dated 23.07.2010, charges as above were framed against all the accused persons to which they pleaded not guilty and claimed trial. In all the prosecution has examined 44 witnesses to bring home its charges against the accused persons. The brief description of witnesses examined in the course of the trial are tabulated as under:-
State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 7/52
SRL. NO. NAME RELEVANCE
PW1 Ajit Singh He is the landlord of the deceased
who had last seen the deceased with
accused Narender in the evening of
23.09.2009.
PW2 Shams Tanveer He is the informant of this case and is
Ahmed the brother of the deceased.
PW3 Shams Tarbez Alam He is another brother of the
deceased.
PW3A HC Pardeep He is the Duty Officer of PS Nangloi
Kumar who recorded DD No.28A Ex.PW3/A.
PW4 HC Suresh He is the Duty Officer of PS Nangloi
who recorded DD No.4A Ex.PW4/A.
PW5 Sachin Kumar He is the landlord of accused
Narender to whom he let out second
floor of property H.No. G-6/382,
Sector-16, Rohini.
PW6 Sher Singh He is a resident of village Khokran
Dhani and was the person who had
noticed the body of the deceased on
27.09.2009.
PW7 Jai Singh He is a resident of village Khokran
Dhani and was the person who had
noticed the body of the deceased on
27.09.2009.
PW8 Monu He is a resident of village Khokran
Dhani and was the person who had
noticed the body of the deceased on
27.09.2009.
PW9 Jorawar Singh He is a resident of Village Khokran
Dhani and was witness to the pointing
out memos of Lalilt and Narender
Sharma.
PW10 Insp. Nand Ram He was posted at PS Bhadra. He had
Bahadur gone to the spot where the body of
the deceased was found by Jai Singh
and had conducted the inquest
proceedings. He had also handed
over the documents and case
property to the IO of this case.
State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 8/52
PW11 Kumari Neelima She was studying with the deceased
at JRN Institute Mundaka, Delhi in the
same course.
PW12 Jai Narain He is a neighbour of PW1 Ajit Singh
and had last seen the deceased in the
company of Narender.
PW13 Gori Shanker He had provided the records of bank
Sanghi, Branch account no. 10492964481 in the
Manager, SBI East name of Rajender Sharma.
Patel Nagar.
PW14 Sushma Sharma She had furnished the records of
from Transport motorcycle no. DL-4SAZ-1867.
Authority, Janak Puri,
Delhi.
PW15 Raj Kumar from He produced the records of
Transport Authority, motorcycle no. DL-4SAZ-1867. Janak Puri, Delhi.
PW16 R. Ramanandan He produced the records of from Transport motorcycle no. DL-9CQ-5986.
Authority, Burari,
Delhi.
PW17 Kuldeep Nara He had received messages on his
mobile no. 9910100121 from no.
9891594750 of the deceased and
was in touch with her on the said
number.
PW18 Vishal Wadhawa He on the request of Shiv Dutt had
arranged accommodation for accused
Narender at G-6/382, Sector-16,
Rohini.
PW19 HC Lal Bahadur He was posted at PS Bhadra and had
assisted Insp. Nand Ram in his
proceedings after the discovery of
body of the deceased.
PW20 HC Kartar Singh He is the Duty Officer of PS Nangloi
who has registered the present FIR.
PW21 Pawan Kumar, Nodal He produced the records of no.
Officer of M/s Idea 9891594750.
Cellular.
PW22 ASI Balwan Singh He had been assigned DD No. 28A
State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 9/52
on 17.09.2009 for inquiry and had
also recorded DD No.57B.
PW23 Alka Saran, Official She produced the records of account
of AXIS Bank, Sector no. 120010100592666 of accused 44, Noida. Rajender Sharma.
PW24 Amit Kumar He was the landlord of the deceased at Plot No. 934, Shishuwala Talab, Mundka, Delhi and had given to the deceased SIM Card of mobile no.
9891594750 which was in his name.
PW25 Madan Vijayan, He provided the records of nos.
Nodal Officer, TATA 9213977139, 9268291157, Tele Services Ltd. 9278650109, 9268490289 and 9289201945.
PW26 Bhagat Singh, He produced the records of account Branch Manager no. 20038890658 of the deceased.
SBI Mundka
PW27 Ashok Kumar He produced the records of JRN
Singh, PRO, Institute where the deceased was
JRN Institute of studying.
Aviation Technology
Mundka
PW28 Dr. B.K. Mohapatra He had examined the blood samples
SSO, Biology, of Shams Tanveer and Rabeya
CFSL, CBI Khatoon, brother and mother of the
deceased and compared it with the
DNA profile of the deceased vide his
report Ex.PW28/A as per which it
matched with that of Rabeya
Khatoon.
PW29 ASI Shiv Narayan He had been assigned inquiry of DD
No. 71/B on 22.09.2009.
PW30 SI Pratap Singh He is the registered owner of
motorcycle no. DL-4SAZ-1867 which
he had sold to accused Rajender.
PW31 Narender Rana He was known to accused Narender
and had given SIM Card of no.
9268490289 of his wife Sandhya
Kumari to Narender for use.
PW32 HC P. Murlidhar He had accompanied accused
State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 10/52
Rajender Sharma to Kerala on
22.09.2009.
PW33 W/Ct Renu She was the subscriber of mobile no.
9968558806 which she had given to
deceased Sazia Urus for use.
PW34 SI Ajit Singh He had prepared the rukka
Ex.PW34/A on the complaint of
Shams Tanveer Ahmed on the basis
of which the present FIR was
registered.
PW35 Dr. Suresh Chandra He had conducted the postmortem
Swami, Medical examination on the body of the
Officer, Government deceased and had given reports
Hospital Bhadra, Ex.PW35/A, Ex.PW35/B and
Hanuman Garh, Ex.PW35/C.
Rajasthan.
PW36 W/ASI Nirmala She had joined the investigation on
Kumari 08.12.2009.
PW37 HC Shivbir Singh He had collected exhibits / parcels
from PS Special Cell and deposited
the same with CFSL CBI.
PW38 ASI Khem Singh He had collected documents from PS
Nangloi on 07.12.2009.
PW39 HC Jasbir Singh He had collected the DNA report from
CFSL CBI and three sealed exhibits
which he deposited with the MHCM
PS Special Cell. He handed over the
report to the IO.
PW40 SI Pankaj Kumar He was part of the investigation on
07.12.2009, 08.12.2009, 09.12.2009,
10.12.2009, 12.12.2009, 15.02.2010
and 27.02.2010.
PW41 ASI M. Baxla He is the MHCM, PS Special Cell who
produced registers no.19 and 21.
PW42 Dr. Vanita Kumar, She had prepared her report
Assistant Professor, Ex.PW42/A after examining the Department of tissues of the body of the deceased. Pathology, SP Medical College, Bikaner, Rajasthan.
State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 11/52
PW43 Insp. Brahmjeet He is the IO of the case.
Singh
PW44 Smt. Rabeya She is mother of the deceased. The
Khatoon DNA from her blood samples were
matched with the DNA that of the
deceased
13. After closure of evidence of the prosecution, statements of the accused persons under Section 313 of the Cr.P.C. were recorded.
The accused denied the incriminating evidence put to them. None of the accused persons desired to lead any evidence in defence.
14. Arguments were addressed on behalf of the accused persons by Sh. S. C. Bhuttan, appearing for Raj Rani Sharma, Lalit Sharma and Rajender Sharma and by Sh. Hari Dutt, appearing on behalf of Narender and Shashi Bala.
15. It was submitted that the case of the prosecution was based on conjectures and surmises. There was no witness to the incident of murder. The statement of Ajit Singh PW1 regarding the deceased having been seen last in the company of Narender was full of contradictions and improvements. It had come on record that there were several disputes between the deceased and Ajit Singh due to which she had called the police on several occasions. The other witness relied on to prove that the deceased was last seen with Narender was PW12 Jai Narain who has not supported the version of the prosecution. It was submitted that there was considerable gap between the time when the deceased was last seen with Narender and the time of her death.
16. It was further submitted that the cause of death of Sazia State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 12/52 Urus was not proved. The entire case of the prosecution was based on the disclosure statements of the accused persons which were inadmissible in evidence. There is nothing discovered on the basis of the disclosure statements so as to bring the same within the ambit of Section 27 of the Evidence Act. It was submitted that the case of the prosecution was based on the evidence of "last seen" as well as circumstantial evidence. The circumstances sought to be relied upon have not been proved individually and there is no chain of proved circumstances which could establish the guilt of the accused persons. It was further submitted that evidences were planted to somehow link Rajender Sharma with the deceased. The room of Sazia Urus was allegedly searched in which photograph of Rajender Sharma was found but there is no explanation as to how the said room was opened. It was submitted that several witnesses were examined to prove the use of mobile number 9891594750 by the deceased but the statements of these witnesses were unreliable.
17. On the other hand, it was submitted by Ld. Addl. PP for the State assisted by Sh. Nasir Aziz, counsel for the complainant that there was sufficient evidence on record to prove the charges framed against the accused persons. He submitted that it was on the pointing out of Narender and Lalit Sharma that the body of the deceased was traced. In other words it was submitted that it was these two accused persons which led the police team to District Bhadra and identified the place where they had disposed the body of the deceased. It was upon there disclosure statements that inquiries were made from PS Bhadra which led to the recovery of the body parts of the deceased and upon evaluation of DNA, the body of the deceased was identified to be that of the daughter of Rabeya Khatoon, mother of Sazia Urus. It was further submitted that a plea of alibi had been taken in the second bail State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 13/52 application of Raj Rani Sharma as per which she had gone to Vaishno Devi for a pilgrimage between 22.09.2009 to 26.09.2009 which was found to be false upon verification. It was submitted that there are observations to this effect in the order dated 23.07.2010 of the Ld. Predecessor of this Court by which charges were framed. It was submitted that raising a false plea alibi will lead to an adverse inference and would be a circumstance incriminating the accused.
18. I have heard the counsel for the accused persons and the Ld. Addl. PP for the State. I have gone through the written submissions filed on behalf of the parties as well as the evidence led on record.
19. Broadly put, the case set up by the prosecution against the accused persons is as under:-
(a) That the deceased Sazia Urus was a tenant of PW1 and had developed intimate relations with Rajender Sharma; Sazia Urus started demanding money from Rajender Sharma by blackmailing him which was paid on certain occasions and the family of Rajender Sharma viz.
Narender, Lalit Sharma and Raj Rani Sharma became aware about the same and decided to eliminate the deceased;
(b) That Narender had picked Sazia Urus from her tenanted premises in the evening of 23.09.2009 and kept her with him at his tenanted premises till 25.09.2009 at house no. 382, Pocket G6, Sector 16, Rohini;
(c) That Narender, Lalit Sharma, Raj Rani Sharma and Shashi Bala had taken Sazia Urus in the night of 25.09.2009 to District Bhadra Rajasthan and on the way Narender murdered Sazia Urus by strangling her with her dupatta and thereafter they disposed her body after burning it which was within the knowledge of Shashi Bala who concealed it; and
(d) That during the inquiry relating to Sazia Urus being missing, the accused persons Narender, Lalit Sharma, Raj Rani Sharma and Shashi Bala disclosed the offence to State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 14/52 Rajender Sharma who concealed it.
20. There is no direct evidence of the murder of Shazia Urus in this case. The case of the prosecution hinges on circumstantial evidence as well as the evidence of the deceased having been last seen in the company of Narender.
21. The law in regard to circumstantial evidence has been the subject matter of several decisions of the Hon'ble Supreme Court as well as the Hon'ble High Court. In the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116 and as reiterated in the case of Vasanta Sampat Dupare v. State of Maharashtra reported in (2015) 1 SCC 253, the Hon'ble Supreme Court was pleased to lay down that chain of circumstantial evidence has to be complete in all respects with the following conditions required to be fulfilled:-
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
22. As regards the theory of an accused being 'last seen' with State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 15/52 the deceased, in the case of Nizam v. State of Rajasthan, (2016) 1 SCC 550 the Hon'ble Supreme Court while considering the said principle observed that the provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. It was held that if a person is last seen with the deceased, he must offer a probable and satisfactory explanation as to how and when he parted company. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. It was further observed that in a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. It was observed that Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution but it lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain.
23. In the case of Muhibur Rahman vs. State of Assam (2002) 6 SCC 715 it was held that the circumstance of last seen together does not by itself and necessarily lead to the interference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime as there may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 16/52 deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the case of Bodhraj vs. State of J&K (2002) 8 SCC 45, the Hon'ble Supreme Court observed that it would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.
FINDINGS CAUSE OF DEATH
24. The remains of the body of the deceased were examined by PW35 Dr. Suresh Chandra Swami. In the postmortem report of the deceased Ex.PW35/A opinion on the cause of death was reserved stating that the same would be given after receipt of the histopathological examination and DNA Study. Subsequently when the said examinations were conducted, vide report Ex.PW35/C, PW35 stated that opinion regarding cause of death could not be given due to the body being severely burnt. The burns were however postmortem in nature and the body was that of an adult female.
25. Postmortem examination report records that examination commenced at 10:30am on 27.09.2009 and the time of death is opined to be within 48 hours of the commencement of the postmortem examination. In other words the death is stated to have occurred within 48 hours of 10:30am 27.09.2009.
FIR No. 411 of 2009, PS: Special Cell 17/52
26. From the evidence of PW35, it is clear that the cause of death of the deceased could not be given as the body was severely burnt. However, death is stated to have occurred within 48 hours of 10:30am 27.09.2009. Therefore, the cause of death of Sazia Urus could not be established.
DECEASED BEING LAST SEEN IN THE COMPANY OF NARENDER ON 23.09.2009 AT 8.00 PM
27. The witnesses to this circumstance are PW1 Ajit Singh and PW12 Jai Narain.
28. PW1 in his examination in chief has stated that he had let out a room to the deceased on 10.08.2009 and another student by the name Ravi of the same institute where the deceased was studying was also living on rent in another room of his house. He stated that on 15.09.2009 after taking dinner, he was going to close the main gate at about 9pm as per routine. At that time, Ravi came to him and told him that one person was sitting with Sazia Urus in her room for quite sometime and he should be asked to leave before the door is closed. PW1 then went into her room and saw a man sitting there with his back towards the door. PW1 asked him to leave and when he insisted the said man went towards the door and told PW1 in irritated voice that he was about to go. At that time the deceased told PW1 that she was not feeling well and that the visitor was her relative and would stay overnight with her. PW1 did not allow her request as deceased was a female tenant and he did not want to allow a male visitor to stay overnight with her in the room. PW1 again insisted that man to left. Then deceased told PW1 that she is not feeling and she would have to go to hospital and deceased had left with that man. This man was identified in the Court by PW1 to be Rajender Sharma.
FIR No. 411 of 2009, PS: Special Cell 18/52
29. PW1 further stated that Sazia Urus then left with Rajender Sharma on 15.09.2009. In the next morning i.e. 16.09.2009, Rajender Sharma came back and dropped Sazia Urus there. PW1 further stated that at about 11pm on 16.09.2009 itself, Rajender Sharma again came with his son aged about 25 years to his premises. The tenant Ravi had informed PW1 about their arrival and wanting the door to be opened. PW1 then went to the door and asked Rajender Sharma as to why he had come again and on their instigation, he opened the door. PW1 stated that the person with Rajender Sharma asked him whether Rajender Sharma had ever stayed overnight in the house to which PW1 told that person what had happened on 15.09.2009. He then demanded to see where Sazia Urus was staying and PW1 showed him the room. This person with Rajender Sharma was identified by PW1 to be Lalit Sharma (son of Rajender Sharma).
30. PW1 further stated that he then took Rajender Sharma and Lalit Sharma to the room of Sazia Urus and Rajender Sharma demanded the return of cheque of Rs.35,000/- from Sazia Urus. She took out the same from a box and gave it to Rajender Sharma. Lalit Sharma then took the cheque and confirmed that it was the cheque of Rs.35,000/- which he put in his pocket and both then left and went outside. PW1 saw a Maruti Swift car parked at the end of road. PW1 had asked Lalit Sharma as what was the relation between Rajender Sharma and Sazia Urus since on previous day i.e. 15.09.2009, both claimed to be related to each other but that person did not give any answer. When PW1 reached near the said vehicle, he saw a lady sitting on the front left side and he asked her what the matter was. PW1 deposed that said lady said that Rajender Sharma belonged to village Mandhela and was posted in PS Nangloi and while Lalit Sharma was State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 19/52 their son, Rajender Sharma was her husband. She told her that "IS HARAMJADE NE BARBAAD KAR DIYA HAI". He stated that she had another child i.e. daughter and both children were of marriageable age and that she advised PW1 to throw out Sazia Urus from his premises. PW1 identified that lady as to be Raj Rani Sharma in the Court.
31. It is further stated that Raj Rani Sharma told her that there was some 'SAMBANDH' between Sazia Urus and Rajender Sharma. He stated that in the morning of 17.09.2009, he asked Sazia Urus to vacate the premises and went to the bank for his work. Lateron his wife, informed him that Sazia Urus had called the police. He came back and informed the police officials about the facts but they told him to permit her to stay till 06.10.2009 because she was to appear in her examination to which PW1 agreed.
32. PW1 further stated that at about 5pm on 22.09.2009, Sazia Urus again called the police alleging that he had broken the lock of her room and removed her goods and police came but in the evening the matter was settled before the SHO of PS Nangloi that Sazia Urus would stay in the premises till 06.10.2009. He further stated that on 23.09.2009, at about 7 or 8pm, one male person aged 40 years, partially bald came to his premises on a motorcycle Hero Honda DL- 4SAZ-1867 of red colour and Sazia Urus left with him carrying a suitcase with her about four feet in length. He identified the said person as accused Narender in the Court.
33. PW1 further stated that after few days, one person claiming to be brother of Sazia Urus namely Tanveer had called him and taken his address. Tanveer told PW1 that college mates of Sazia State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 20/52 Urus had informed him that she had not been coming to college and appearing in exams. PW1 told him all the incidents which had happened. He stated that after two days of visit of Tanveer, he was called to PS Nangloi and questioned about Sazia Urus. Police then came to his premises and entered room of Sazia Urus after opening its lock and checked the goods lying inside. He stated that some photographs including one of Rajender Sharma in police uniform, Sazia Urus in Kashmiri dress and of the deceased with some other person were found. Police had also seized one diary from the said room. He stated that Tanveer, brother of Sazia Urus was also present when the room was being searched. He further stated that during Deepawali in 2009, he was called to the office of ACP at Tikri Border where he was shown accused Rajender Sharma to whom he identified as the person visiting Sazia Urus. He had also called to PS Nangloi where he had identified Narender as the person to whom Sazia Urus had left on a motorcycle.
34. Before proceeding to consider the cross examination of PW1, it is necessary to mention at this stage that four statements of PW1 have been recorded under Section 161 of the Cr.P.C. on 16.10.2009, 02.12.2009, 02.12.2009 and 08.12.2009. His statement was also recorded under Section 164 of the Cr.P.C. on 08.01.2010.
35. The first statement under Section 161 of the Cr.P.C. of PW1 was recorded when the matter was still under investigation with PS Nangloi. The said statement at the first line mentions that Ajit Singh reiterated his statements 'previously recorded' under Section 161 of the Cr.P.C. and then in addition, it is recorded that he had joined the investigation that day when Inspector Investigation and other police officials in the presence of Shams Tanveer Ahmad, inspected the room State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 21/52 of Sazia Urus on 16.10.2009. This statement is Ex.PW1/DA. Even though this statement makes a mention of 'previous statement' of Ajit Singh having been recorded under Section 161 of the Cr.P.C., there is no statement of Ajit Singh on record prior to 16.10.2009. Either the statement Ex.PW1/DA is incorrectly recorded or that there were previous statements which have not been attached with the police report / charge-sheet. If this statement was the first statement of Ajit Singh then it does not make any mention of accused Rajender Sharma having been coming to his premises on 15.09.2009 as well as on 16.09.2009 in the morning and in the evening with his son and wife to take back any cheque of Rs.35,000/-.
36. Now coming to the cross examination of PW1 conducted by counsel Sh. S.C. Bhuttan. In cross examination, PW1 stated that Sazia Urus was staying in one room and in other three rooms tenants Ravi, Naveen and Akhtar were residing. He had let out two rooms on the upper floor in which families were residing. He admitted as correct that tenants had also seen what had happened on all the dates starting from 15.09.2009 till 22.09.2009. Other tenants were questioned by the police but he did not know whether their statements had been recorded or not. He was contacted for investigation by the police for the first in October, 2009 when his statement was recorded. However when his statement dated 16.10.2009 under Section 161 of the Cr.P.C. was put to him, it was found that facts recorded on 16.10.2009 vide Ex.PW1/DA mentions facts only regarding search of the room of Sazia Urus and seizures made. He could not remember whether his statement was recorded on 16.10.2009. He admitted that he was upset because Sazia Urus was in the habit of calling police. Voluntarily, he stated that he was also upset with Rajender Sharma on account of his visits. He admitted as correct that he wanted Sazia Urus to vacate the room on account of State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 22/52 said reasons.
37. During cross examination, when statements of PW1 recorded under Section 161 of the Cr.P.C. and under Section 164 of the Cr.P.C. were put to confront him with his statement made in the Court in his examination in chief, the following improvements were found:-
(i) That Raj Rani Sharma had told him that "IS HARAMJADE NE BARBAAD KAR DIYA HAI";
(ii) That on 15.09.2009 when he ad seen a person in the room of Sazia Urus, that person had his back towards the door;
(iii) That when he told that person to leave on 15.09.2009, that person answered him in an irritated voice that he was about to leave;
(iv) That there was other tenant Ravi who had informed that Rajender Sharma and another person had come to his house on 16.09.2009 and he had questioned, Rajender Sharma as to why he had come again;
(v) That in the evening of 16.09.2009, the person (Lalit Sharma) who had come with Rajender Sharma had asked him whether Rajender Sharma had come and had stayed overnight and that he had told that person about the incident which had taken place in the night of 15.09.2009;
(vi) That he had asked Lalit Sharma about relationship of Rajender Sharma with Sazia Urus but Lalit Sharma evaded from giving any answer;
(vii) That Raj Rani Sharma had told him that she two children of marriageable age; and
(viii) That Raj Rani Sharma had told him that Rajender Sharma and Sazia Urus were involved in some 'SAMBANDH'.
FIR No. 411 of 2009, PS: Special Cell 23/52
38. PW1 was cross examined by Counsel Sh. Hari Dutt on behalf of the accused Narender and Shashi Bala in which he was also confronted with two documents which he admitted to be in his handwriting. They were then exhibited as Ex.PW1/DF and Ex.PW1/DG. Ex.PW1/DF reads as under:
"Shrimanji Main Ajit Singh, s/o Sh. Goverdhan Singh, pata 642B Mundka Gaon Delhi par rahta hu. October 2009 main mainay apnay makkan ka ek kamra Sazia putri Ajijullah Rampuri ko 1000 rupay mahina kiraya par rehnay kay liye diya tha.
Ajit Singh s/o Goverdhan Singh 642 B Mundka Delhi 2/12/09"
39. Ex.PW1/DG reads as under:-
"Shrimanji Main Ajit Singh s/o Sh. Goverdhan Singh, pata 642B Mundka Gaon Delhi par rahta hu. August 2009 main mainay apnay makkan ka ek kamra Sazia putri Ajijullah Rampuri ko 1000 rupay mahina kiraya par rehnay kay liye diya tha.
Ajit Singh s/o Goverdhan Singh 642 B Mundka Delhi"
40. PW1 in his further cross examination on behalf of counsel Sh. Hari Dutt stated that he had handed over these documents i.e. Ex.PW1/DF and Ex.PW1/DG in the police station. Voluntarily, he stated that he was asked to write the same by someone in the police station whose name, he could not remember. He admitted that he told police that Sazia Urus had gone out of her own free will.
41. PW1 further stated that he had never seen Narender prior to 23.09.2009 and that when he came, Narender was wearing a helmet. He had parked his motorcycle outside his house and entered in the State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 24/52 room of Sazia Urus. He had seen Narender when he came out and stayed with Sazia Urus for about 30-45 minutes. He had not told Shams Tanveer Ahmed that one motorcycle and one Swift vehicle had come to his house on 23.09.2009 and that Sazia Urus had gone away in these two vehicles. He stated that one of his tenants possessed motorcycle but he could not sate registration number of the same. He never noticed motorcycle of Rajender Sharma. He had not noted down the registration number of the motorcycle of Narender on any paper on 23.09.2009. He stated that Jai Narain and Balraj his neighbours had also seen Narender when he was taking Sazia Urus on the motorcycle. He stated that when they had seen Narender, he was wearing a helmet. He came to know about the name of Narender only at PS Nangloi from the police.
42. As already referred above, four statements of PW1 were recorded under Section 161 of the Cr.P.C., out of which two separate statements were recorded on 02.12.2009 vide Ex.PW1/DC and Ex.PW1/DB. In his statement Ex.PW1/DC, Ajit Singh has stated that he had seen, Sazia Urus going away with a person on a motorcycle in the evening of 24.09.2009 at 8pm. A supplementary statement of PW1 was recorded on 02.12.2009 itself in which it is recorded that PW1 had earlier told the IO that he had seen Sazia Urus coming from her room on 24.09.2009 at 8pm, now CDRs were shown to him and he also tried to remember hard, could recall that Sazia Urus had gone from his house in the evening of 23.09.2009 and not in the evening of 24.09.2009. Regarding the said contradiction of the date on which he had last seen Sazia Urus at his premises, PW1 had stated that it was correct that he had first told the police that Sazia Urus had gone from his premises on 24.09.2009. Voluntarily, he stated that he had under some confusion and he later told the police that she had gone on 23.09.2009. PW1 has not explained in his cross examination any reason and circumstance in State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 25/52 which he could correct his previous statement i.e. after being confronted with CDRs of Sazia Urus.
43. PW12 is Jai Narain. He has stated in his examination in chief that one day when he was sitting outside, at about 8pm, he had seen one motorcycle rider who was wearing a helmet having stopped the motorcycle in front of the house of Ajit Singh. Sazia Urus came out of her room and was carrying a suitcase and sat on the motorcycle and motorcycle rider went away of Sazia Urus. Ld. Addl. PP put a leading question to PW12 regarding the date on which Narender had come i.e. 23.09.2009 but PW12 could not state whether it was 23.09.2009.
44. The FIR was registered on the statement of PW2 Shams Tanveer Ahmed, brother of the deceased. PW2 has made a written complaint Ex.PW2/A in his own handwriting. In his complaint Ex.PW2/A, PW2 has stated that on 12.10.2009, he was informed on phone by a classmate of Sazia Urus that she was not coming to class and had not appeared on 6th October in one exam. He therefore went to meet her landlord Ajit Singh who had told him that one person aged about 40 years by deceitful means taken her on a Swift LXI DL-9CR-5986 and Hero Honda Splendor motorcycle DL-4SAZ-1867 at about 8pm on 24.09.2009. PW2 stated that she had not come back since then. Even in the Court PW2 has deposed that Ajit Singh had told him that one male person had taken his sister away in the evening of 24.09.2009 at 8pm. However in the Court, PW2 stated that he had been informed that his sister had been taken away on a Hero Honda Splendor motorcycle and that person had also come in a Swift LXI car. In cross examination, PW2 has stated that he had never given his mobile number to any of the friends of his sister. He stated that one Arvind Kumar, a classmate of his sister had given information on 2.10.2009 about his sister at his house State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 26/52 which was attended by Nakki Imam, brother-in-law of PW2. Nakki Imam then informed Abdul Kasim, another brother-in-law of PW2 who had informed PW2 about his sister being missing. At that time Nakki Imam was residing in Patna whereas Abdul Kasim was residing at Fulwari at Bihar while PW2 was himself residing at Delhi. He did not know how Arvind Kumar got knowledge about telephone number of Nakki Imam. He stated that as correct that Arvind Kumar have his i.e. PW2 number. He deposed that he had himself received a call from Abdul Kasim. At that stage, a question (recorded in the evidence-sheet) was put to PW2 that as per his examination in chief, he stated that one of her classmate (Arvind Kumar) had phoned up PW2 about Sazia being missing while in cross examination, he stated that Abdul Kasim had informed him about it. PW2 was asked to which of his statements were correct. Then PW2 answered that his correct statement was that her classmate Arvind Kumar had telephoned him. He then deposed that he could not say whether Arvind had his telephone number or not because had not given his number to Arvind. He further deposed that he made a call to accused Rajender Sharma to his landline phone. He had taken phone number of Rajender Sharma from Ajit Singh. He further stated that Arvind Kumar had given to him the telephone number of Ajit Singh. Arvind Kumar had also given to him the address of his sister Sazia Urus.
45. Shams Tarbez Alam, another brother of the deceased was examined as PW3. He stated that on 25.09.2009 his sister had called him about 10:30pm on his mobile number 9501527078 from her mobile number 9891594750 and had talked with him for about 5-6 minutes. He afraid that she was not feeling well and asked about her health to which she stated that she was having a headache. He deposed that she inquired about health of his mother and that he had asked about her State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 27/52 studies and examination. The phone call was disconnected and he tried to call her back but the mobile was found switched off. In cross examination PW3 deposed that he had received a telephone call from his sister 4-5 days before 25.09.2009. His sister did not disclose him about her address or name of the owner of the house where she was living. He did not know any friends of his sister and he had never visited the place where his sister was residing. He then again deposed that he received a phone call from his sister on 25.09.2009 at about 10:30pm and at that time, he himself was in Ludhiana.
46. The testimonies of PW1 and PW12 have been referred to. These are the witnesses relied upon by the prosecution to prove that Sazia Urus was last seen with Narender on 23.09.2009 at 8pm. PW12 has stated that he had seen a motorcycle rider who came in front of the house of Ajit Singh and Sazia Urus came out of her room with her suitcase, sat on the motorcycle and went away. PW12 thus did not see the face of the motorcycle rider with whom Sazia Urus left. Further as per PW12, the motorcycle rider did not go inside the house of Sazia Urus and rather it was she who came out and went away with the said person. PW12 was not declared hostile by the prosecution. Only a leading question was put to him regarding the date when Sazia Urus had left with the said person but he could not state whether it was 23.09.2009.
47. What PW12 has stated is in stark contrast to the testimony of PW1. As per PW1, he saw a forty year old bald man who had come to his premises on the said motorcycle on 23.09.2009 with whom Sazia Urus left. PW1 identified that person as accused Narender. In cross examination, he has stated that when Narender had come, he was wearing a helmet and Narender parked his motorcycle and went inside State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 28/52 the room of Sazia Urus where he remained for about 45 minutes. He has further stated that Jai Narain and Balraj had seen Narender when he was taking Sazia Urus on the motorcycle and at that time, Narender was wearing a helmet. PW12 has not stated that he had only seen Sazia Urus going with the person on the motorcycle. PW12 has stated that he has seen the motorcycle rider coming and stopping outside the house of Ajit Singh after which Sazia Urus came and left with him. Thus there is a major contradiction between the versions of PW1 and PW12 and a doubt arises as to whether PW12 had actually seen the face of Narender.
48. It is further to be seen that the testimony of PW1 by itself is of such a nature that this Court finds it difficult to rely on his version. The reasons for the same are summarized as under:-
a) There are four statements of PW1 recorded under Section 161 of the Cr.P.C. In his statement dated 02.12.2009 Ex.PW1/DC, PW1 has stated that he saw Sazia Urus going away from his premises on a motorcycle on 24.09.2009 whereas in another statement recorded on the same day Ex.PW1/DB, he stated that she had gone from his premises on 23.09.2009 which he could recall after CDRs of the phone of Sazia Urus were shown to him by the IO. In cross examination, PW1 has not explained as to how he recalled the correct date but only stated that he was under some confusion;
b) The date of 24.09.2009 being the date when Sazia Urus was last seen with Narender is also mentioned in the complaint Ex.PW2/A of PW2 Shams Tanveer Ahmad. The said complaint is in the handwriting of PW2 in which it is stated that he was informed by Ajit Singh that some person aged about forty years had taken Sazia away on 24.09.2009. Even in his examination in chief, PW2 has deposed that Ajit Singh had told him that his sister had been taken away on 24.09.2009. While the IO has recorded a supplementary statement of PW1 to change the date of 24.09.2009 to 23.09.2009, no such supplementary statement of PW2 has been recorded and in the testimony State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 29/52 of PW2, the date of last seen remains that to be 24.09.2009;
c) In the complaint Ex.PW2/A of PW2 Shams Tanveer Ahmad it has been mentioned that he had been informed by Ajit Singh that his sister had been taken away by one man aged about 40 years on his Maruti Swift LXI DL-9CR- 5986 and Hero Honda Splendor motorcycle DL-4SAZ- 1867. PW1 in his examination however does not mention the presence of any Maruti Swift LXI DL-9CR-5986 when Sazia Urus had gone on 23.9.2009. Even PW2 has not stated anything about the said vehicle in his statement in the Court. There is no explanation as to why PW2 had mentioned the presence of the said car in his complaint Ext.PW2/A which is in his own handwriting;
d) Two documents Ex.PW1/DF and Ex.PW1/DG were admitted by PW1 to have been written by him in his own handwriting and which he handed over in the police station. The contents of both these documents have been reproduced above. While as per Ex.PW1/DF, PW1 has stated that he had given his premises on rent to Sazia Urus in October, 2009, in Ex.PW1/DG the month of the tenancy is stated to be August, 2009. If the premises were given on rent by PW1 to the deceased in October 2009 then it could not have been possible for the deceased to have been present in the premises of PW1 in September 2009. Further it has not been explained as to in which circumstances, PW1 wrote these documents and for what purpose, he gave it in the police station;
e) There are several improvements made by PW1 when he gave his statement on oath before the Court when compared to his statements recorded under Section 161 of the Cr.P.C. The same have been elaborated above.
49. In the case of Paramjeet Singh vs. State of Uttarakhand (2010) 10 SCC 439 it was held that the burden of proof is on the prosecution to prove its case beyond reasonable doubt and that the more serious the offence, stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 30/52 present case is one of murder and the degree of punishment in the event of punishment is not in doubt. In view of the circumstances noted above the testimony of PW1 is not found to be reliable or up to the degree of proof required to convict the present accused persons.
50. Hence for the reasons recorded above, I am of the view that the prosecution has been unable to prove that the deceased Sazia Urus was last seen in the company of Narender on 23.09.2009 at 8pm.
SEARCH OF THE ROOM OF THE DECEASED ON 16.10.2009
51. As per case of the prosecution while case was being investigated by PS Nangloi, the room of Sazia Urus was searched on 16.10.2009 in the presence of SI Ajit Singh and Shams Tanveer Ahmed. Ex.PW1/DA is the statement of Ajit Singh recorded under Section 161 of the Cr.P.C. In the same, it is recorded that he had joined the investigation with Shams Tanveer Ahmed, Inspector Investigation Sanjay and Ct Resham, PS Nangloi. The SHO was also present. Shams Tanveer Ahmed opened the room of Sazia Urus with a key which he was having and in the presence. Of all the persons, the room was searched and the articles were checked. One executive diary, two passport size photographs of Rajender Sharma in police uniform, two photographs of Sazia Urus, one postcard dated 15.08.2009 etc. were found in the room. All these articles were seized vide seizure memo Ex.PW1/A which bears the signatures of Ajit Singh at point A and of Shams Tanveer Ahmed at point B. The said memo has been prepared by SI Ajit Singh of PS Nangloi on 16.10.2009.
52. In respect of the said search of the room on 16.10.2009, PW1 has stated in his examination in chief that the lock of the room was State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 31/52 opened and goods were checked inside in the present of Shams Tanveer Ahmed. In cross examination, PW1 has stated that Sazia Urus left her room on 23.09.2009. She had left the room locked and she had not given keys of the room to him. In cross by counsel Sh. Hari Dutt, PW1 has stated that when police had searched the room of Sazia Urus, lock had been broken. He did not know whether broken lock had been seized by the police.
53. In this regard, PW2 Shams Tanveer Ahmed in examination in chief has stated that he had gone with the police to the room of Sazia Urus on 16.10.2009 and after search several articles were searched. In cross examination PW2 stated that he could not recollect whether lock was opened or broken but reiterated that room was opened. SI Ajit Singh who conducted the proceedings on 16.10.2009 has been examined as PW34. He stated that in his examination in chief that he had searched the room of Sazia Urus on 16.10.2009 in the presence of amongst others, Ajit Singh (PW1) and Shams Tanveer Ahmed (PW2). In cross examination, PW34 stated that room of Sazia Urus was locked and was opened by her brother Shams Tanveer Ahmed who had key of the room with him. He stated that he did not make any inquiry from Shams Tanveer Ahmed as to how he had key of the room of Sazia Urus with him. He did not make any inquiry from Ajit Singh (PW1) as to whether Sazia Urus used to take key with her or she used to handover the same to landlord or his family. He stated that room of Sazia Urus was not sealed when he reached there. He did not seal the room.
54. None of the witnesses have been able to explain as to how the room of Sazia Urus was opened on 16.10.2009. As per the seizure memo Ex.PW1/A, it was Shams Tanveer Ahmad, PW2 who had the keys of the room with him and he opened it using that key. However State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 32/52 PW2 has not stated in Court that it was he who had opened the room with the key. In cross examination, he could not recollect whether the lock was opened or broken. SI Ajit Singh PW34 who was then investigating the case has stated that it was opened by Shams Tanveer Ahmed. In these circumstances as the person who is attributed to have had the key with which the room was opened himself has shown ignorance, the recoveries made from the said room cannot be relied upon.
55. In this regard in the case of Gopal Singh vs. State of M.P. reported in AIR 1972 SC 1557 and as followed in the case of Jaiveer Singh vs. State, reported in (1995) 57 DLT 479, it had been held that where there is no explanation about a key having surfaced for gaining access to any property, the recoveries made from such property cannot be relied upon.
56. In the present case the prosecution has been unable to explain as to from where the key of the room of the deceased was obtained. Hence the recovery of photographs of Rajender Sharma from the said room cannot be relied upon.
MONETARY TRANSACTIONS
57. As regards monetary transaction, PW13 an official from the SBI Bank, PW23, an official from the AXIS Bank Ltd. have been examined and PW26, an officials from SBI Mundka have been examined. PW13 has brought the statement of bank account no. 10492964481 in the name of Rajender Sharma. PW23 has produced the records of account no. 120010100592666 of accused Rajender Sharma. PW26 has produced the records of account no. 20038890658 of the deceased. There are no banking transactions between the State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 33/52 accounts of Rajender Sharma and that of the deceased. The case of the prosecution was that the accused had withdrawn cash from his own bank account via ATM and handed over the money to the deceased. There is no witness to payment of any money by Rajender Sharma to Sazia Urus at any point of time even though money has been withdrawn from his account. As regards case of the prosecution that cheque for Rs.35,000/- was handed over by Rajender Sharma to the deceased which was taken back by him in the evening of 16.09.2009 in the presence of his son Lalit Sharma. The said cheque has not been recovered.
58. There is therefore no documentary evidence of any financial transaction between the deceased and Rajender Sharma. This was the stated cause on the part of the prosecution which had led to the family of Rajender Sharma gaining knowledge of a relationship between the deceased and him. The same has not been proved.
TENANCY OF ACCUSED NARENDER AT H.NO. G-6/382, SECTOR- 16, ROHINI
59. PW5 Sachin Kumar is the owner of property H.No. G- 6/382, Sector-16, Rohini. He has stated that in September / October, 2008, he had let out second floor of the said property to one Narender through a property dealer Vishal on a monthly rent of Rs.5,000/-. Narender was residing there with his family and vacated it after eleven months. PW5 could not identify accused Narender as the person to whom he had given his premises on rent. He was cross examined by Ld. Addl.PP for the State after being granted permission by the Court. Even after attention of PW5 drawn towards the accused Narender, PW5 could not identify him and stated that it was so because of lapse of time. In cross examination by counsel for the accused, he stated that he could State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 34/52 not state the exact date when Narender vacated his premises. He stated that he had not handed over the rent agreement with Narender to the police. He had not even brought it to the Court.
60. PW18 Vishal Wadhawa has stated that he had on the request of his friend Shiv Dutt shown flat no. G-6/382, Sector-16, Rohini to Narender which was taken on rent by Narender. However PW18 could not identify the accused Narender in the Court as the person to whom he had provided the said premises on rent. Even after being his attention was specifically drawn towards accused Narender, PW18 could not identify him in the Court. He was cross examined by Ld. Addl. PP for the State. In cross examination also he did not identify Narender as the person from whom he had arranged the said flat.
61. As per the prosecution, Narender had kept Sazia Urus at these premises at Rohini between 23.09.2009 to 25.09.2009. PW5, owner of the said property and PW18 the person who had arranged for the said accommodation have not identified Narender to be the person who was a tenant in the said room. There is no documentary evidence in the form of any rent agreement or identity card to link Narender with the said premises. The prosecution has therefore failed to prove that Narender had any kind of association with the said premises.
CALL DETAIL RECORDS
62. Reliance was placed on the mobile phone records of deceased Sazia Urus bearing number 9891594750 to show that location of this phone from 23.09.2009 to 25.09.2009 was that in Sector 16, Rohini.
63. As per case of the prosecution, the mobile number State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 35/52 9891594750 was being used by Sazia Urus at the time of her death.
64. PW21 Nodal Officer of Idea Cellular produced the record of this number which was in the name of Amit, son of Kartar Singh, resident of 434, Mundka Gaon, Nangloi, Delhi-41. The CDRs of the siad phone are Ex.PW21/A which when compared with Cell ID Chart Ex.PW21/C reflect its presence at Rohini Sector 16 between 23.09.2009 to 25.09.2009.
65. PW24 is Amit Kumar, son of Kartar Singh in whose name the said mobile number was issued. He stated that he knew the deceased Sazia Urus who was tenant in their house for about four months. He stated that the number 9891594750 was in his own name and on the request of Sazia Urus, he had given this number to her as she had no proof of residence of Delhi, she was unable to get any connection in her name. He stated that he used to talk with Sazia but there was no friendship between them, however he and Sazia went to Haridwar together at one occasion. He stated that thereafter a quarrel took place between Sazia and his mother after which the police was called. The dispute was settled and Sazia vacated the premises. PW24 identified his signatures at point A and his photograph at point B on the CAF Ex.PW24/A. He also identified his voter ID card which was given by him while taking the said number. In cross examination, PW24 stated that he had given his SIM card and mobile phone temporarily to Sazia Urus but she had not returned. He denied the suggestion that he had not given the said SIM card to Sazia.
66. PW17 is Kuldeep Nara. He stated that in June 2009, he was using mobile number 9910100121 and had received messages on his mobile phone from another mobile phone number 9891594750. He State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 36/52 stated that as he did not know the sender of the messages, he had made a call on the said number which was not picked up. He called that number for about 10-15 days but was not responding. He then called on the said number from a STD booth and the phone was picked up by a girl who told her name as Sazia and when he asked her why she was sending messages to him and she told that he had not given any his number to any Sazia and asked her who had given his number to her, that girl to him that the number was given by one Renu, a relative of PW17. He stated that Sazia offered friendship to him for which he said that he had no problem. He then started talking with Sazia. He stated that in August, 2009, Sazia had accompanied him to Kangra Devi. He stated that on 25.09.2009 at about 9/9:30pm, she had given a miss call to PW17. He called her back and she was weeping on phone. She stated that her mother was not well. He asked her that if she was feeling homesick, she should go to her parent's house. She also told him some irrelevant facts such as she had to taken revenge and the people were selfish. He stated that after 25.09.2009, he tried to contact Sazia on phone but her phone had been switched off.
67. In cross examination, PW17 has stated that Sazia never given her residential address. He did not have any knowledge about Sazia having any dispute either with Ajit Singh or her son but voluntarily deposed that she had told him that she wanted to change her room. He did not know whether she had changed her room.
68. The CDRs have been relied upon by the prosecution to prove that the location of Sazia Urus was at Sector 16 Rohini between 23.09.2009 to 25.09.2009. The CDR Ex.PW21/A read with the Cell ID Chart Ex.PW21/C does reflect the presence of mobile phone number 9891594750 at Sector 16 Rohini Delhi. However this evidence alone State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 37/52 cannot be relied upon to give any conclusive finding that Sazia Urus was with Narender at his premises at Rohini during this period. As recorded above, the prosecution has failed to prove the association of Narender with premises no. G-6/382, Sector 16, Rohini, Delhi. Had the same been proved, the CDRs and Cell ID charts would have corroborated the version of the prosecution. However since the association of Narender with said premises could not be proved, the CDRs and the Cell ID Charts by themselves are of no value.
DISCOVERY OF A DEAD BODY AT BHADRA, DISTRICT HANUMAN GARH, RAJASTHAN ON 27.09.2009
69. Witnesses relevant to this aspect are PW6 Sher Singh, PW7 Jai Singh, PW8 Monu and PW10 Insp. Nand Ram Bahadur.
70. PW6 Sher Singh is a resident of village Khokran Dhani, PS Bhadra, District Hanuman Garh, Rajasthan. He has not supported the version of the prosecution. Even in cross examination, he denied having seen any partially burnt body on 27.09.2009.
71. PW7 Jai Singh is also a resident of the same village. He has stated that he was going to Bhadra on 27.09.2009 and when he reached about 1.5 kms from his village, he saw a half burnt body lying about 30 feet from the road and he and Beg Raj, grandson of his brother went near the body and found it to be a human skeleton. They reported the matter to the police after which the police came to the spot. Police found some burnt pieces of cloth of salwar and other pieces of clothes from which they concluded that it was body of a female. Photographs had been taken by the police. The said photographs at that stage were shown to the witness who identified the same to be the same photographs which had been taken. He stated that the police had called State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 38/52 a person who was probably a doctor who examined the spot and told that the body was of a female. Police had recorded his statement.
72. PW7 in cross examination on behalf of the accused persons stated that on both sides of the road, there was earth and grass and if any vehicle go there, the marks of tyre would appear on the grass and similarly foot marks of any person would also appear. He stated that he was passing through th said place at about 7am. He did not call any other person after seeing the dead body. He had made a call to the police from his mobile phone number 9928573614. He could not remember the number of Police Control Room. He denied the suggestions made to him to the contrary.
73. PW8 Monu is another resident of the same village. He has stated that on 27.09.2009, he was coming back with his friends and saw the police present there. Police asked him to sign certain papers leading to discovery of a dead body vide Ex.PW8/A and he signed the same. He had identified his signatures at point A.
74. PW10 Insp. Nand Ram Bahadur from Rajasthan police had stated that on 27.09.2009, he was posted as SHO of PS Bhadhra. Jai Singh (PW7) had given him a complaint Ex.PW10/A mentioned that he had seen a half burnt human body. On the same, he had made his endorsement marked as Ex.PW10/B. He then with his staff inspected the place of the said place and prepared a site plan Ex.PW10/C and made a brief summary Ex.PW10/D. He prepared a memo regarding condition of the body Ex.PW10/E and panchnama Ex.PW10/F. He had found two iron lids, one burnt blanket piece and burnt pieces of clothes which he had seized vide memo Ex.PW10/G. He called a Medical Officer at the spot and got the postmortem conducted. He got the spot State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 39/52 photographed Ex.PW7/A to Ex.PW7/C. He had recorded the statements of the witnesses including Jai Singh. After conducting of postmortem, the Medical Officer had given two containers containing viscera and remains of the body which were sealed. The container containing viscera was sent to Medical College Bikaner while another container sent to FSL, Jaipur. The container from FSL Jaipur was received back with a request to prepare sample of the parents of the deceased.
75. PW10 in cross examination stated that he had reached the place with Jai Singh in his official vehicle but could not remember the time but it could be about 9/9:30am. He stated that 2-3 persons had stopped there. He could remember the names of Begh Raj and Zahida. The Medical Officer reached at 10:30 am and conducted the postmortem examination at the spot of discovery of the body itself but the report was handed over to him lateron. He had no information prior to 09.12.2009 that the deceased from Delhi. He denied the suggestion that on 24.11.2009, he had mentioned in his record that the deceased belonged to Muslim community and missing from Nangloi, Delhi. Voluntarily, he had mentioned that it was probable. He was given a suggestion to which he stated that he could not state without seeing the case diary whether he had mentioned in the case diary of 24.11.2009 that the deceased was a Muslim and missing from Nangloi Delhi. At that stage, counsel for the accused asked the witness if he wanted to see the case diary of 24.11.2009. PW10 stated that he wanted to see it. The request of the witness was allowed by the Court. After seeing the case diary, PW10 had stated that on 24.11.2009, he received a secret information that one girl was missing from Nangloi, Delhi. He stated that since the name and other particulars were not furnished by the secret informer, no inquiry was made from PS Nangloi. He denied the suggestion that Insp. Brahmjeet Singh was in contact with him from prior State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 40/52 to 09.12.2009.
76. Except for PW6 (who did not support the version of the prosecution and was declared hostile), PW7, PW8 and PW10 in their testimonies have all stated that the body of the deceased was found in the morning of 27.09.2009. Their versions are independently corroborated by PW35 Dr. Suresh Chandra Swami who had examined the body of the deceased and conducted the postmortem at the very place of its discovery. It is therefore proved by the prosecution that the body of the deceased was found in the morning of 27.09.2009 within the jurisdiction of PS Bhadra.
POINTING OUT OF PLACE BY NARENDER AND LALIT SHARMA OF THE PLACE WHERE THEY DISPOSED OFF THE BODY
77. The witnesses relevant to this part of the investigation are PW9 Jorawar Singh, PW19 HC Lal Bahadur, PW40 SI Pankaj Kumar and PW43 Insp. Brahmjeet Singh.
78. As per case of the prosecution on 09.12.2009, the IO PW43 had constituted a police team after the disclosure statements of Narender and Lalit Sharma were recorded. This police team went to Bhadra, District Hanuman Garh, Rajasthan as the accused had stated that they could point out the place where they disposed off the body of the deceased. The pointing out proceedings of both the accused were recorded separately vide Ex.PW9/A qua Lalit Sharma and Ex.PW9/B qua Narender. Witnesses to the pointing out memos are Jorawar Singh PW9 and HC Lal Bahadur PW19 while both were prepared by PW43 Insp. Brahmjeet Singh.
79. PW9 Jorawar Singh, a resident of village Dhani, Khokhran, State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 41/52 PS Bhargran, District Hanuman Garh. In his examination in chief, he deposed that on 09.12.2009, he was going to his village from Bhadra and saw a vehicle stationed with some police officials. They were accompanied with the accused Narender and Lalit Sharma to whom he identified correctly in the Court. He stated that the police had stopped him and informed him that these two have burnt the body of a person and they also pointed out the said place to the police which was located at about 20-25 feet away from the road. He had gone with the police officials and the accused persons to the spot where both the accused one by one pointed the said place. He stated that nothing was found there as the dead body was stated to be burnt about 1½ years ago. He stated that the police had prepared the pointing out memos on which he identified his signatures at point A.
78. At that stage, he was cross examined by Ld. Addl. PP for the State on his request being allowed by the Court. PW9 in cross examination by Ld. Addl. PP for the State stated that the police had informed him about the names of the accused persons being Narender and Lalit Sharma. He stated as correct there were burnt marks at the place which was pointed out by the accused persons. Narender had led the police team to the spot and thereafter Lalit Sharma has done so. He could not say whether the body was burnt 1½ years ago and stated that it could be three months ago. He denied the suggestion that he had stated the date of burning of body as 26.09.2009 in his statement given to the police.
79. In cross examination by the accused persons, PW9 stated that he could not remember the number registration number of the police vehicle but stated that it was a silver coloured Qualis. He stated that no officials of Rajasthan police was present and all where Delhi State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 42/52 Police officials who were in plain clothes. He stated that he was alone at that time. He stayed there for about half an hour. He stated that even though the road was a common road but no person had passed through that time. He could not stated at what time the police had come. He denied the suggestions given to him by counsel for the accused.
80. PW19 is HC Lal Bahadur from Rajasthan police. He had stated that on 09.12.2009, he was posted at PS Bhadra, District Hanuman Garh, Rajasthan and on that day, he was informed by SHO of PS Bhadra Insp. Nand Ram and went to Dhani Khokran road where he met Insp. Brahmjeet Singh and one person Jorawar Singh, resident of Dhani Khokran. He stated that the accused persons Narender and Lalit Sharma were in custody of Insp. Brahmjeet Singh. He identified both the accused persons in the Court correctly. He stated that both one by one and firstly Narender pointed out the place where they had burnt the dead body. He had signed on the pointing out memos prepared and he identified his signatures on the same.
81. In cross examination, PW19 stated that he had reached the said place on a motorcycle who registration number, he could not recollect. There were 2-4 public persons but he could not recollect their names. Insp. Brahmjeet Singh recorded their statements but he could remember their names. He stayed there for about one hour and forty five minutes. He had not noticed any tyre marks or foot print marks near the place which was pointed out. He could not recollect the registration number or make of the vehicle of Delhi Police. He denied the suggestions to the contrary.
82. With respect to the investigation on 09.12.2009, PW40 SI Pankaj Kumar in examination in chief has stated in the manner as put State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 43/52 by the prosecution. He identified both the accused who had pointed out the place where they had burnt the body of the deceased. In cross examination, he has stated that they had started from the office of Special Cell at 6am on a government Qualis vehicle bearing no. DL- 1CJ-9796. He stated that the permission to travel outside Delhi was given but there is no written permission on the judicial file. He stated that he could not state how many tolls were on the way to Bhadra Rajasthan. He stated that they had reached Bhadra at about 12 or 12:30 in the afternoon. He stated that one police Head Constable and a public person had reached there and joined the investigation. He stated that there was sign of burnt earth but nothing was found. The burnt earth was not lifted by the IO. After the pointing out proceedings, they had gone Bhadra police station. They had collected a sealed jar and a unsealed box contained two steel lids and some burnt blanket pieces from the police officials of the said PS. He stated that a departure entry was recorded by them in the PS but is not found on the judicial record. He stated that no photographs of the spot were taken.
83. PW43 Insp. Brahmjeet Singh in his cross examination regarding this part of the investigation stated that they had reached Bhadra at about 12noon. HC Lal Bahadur came there from the local police station after which public witness Jorawar had come. He had not lifted any earth control from the place which was pointed out. He did not try to take any foot prints. He stated that Narender firstly pointed out the place where they had burnt the body and thereafter Lalit Sharma had done so. He stated that he had made a DD entry at PS Bhadra but had not placed it in the judicial file.
84. One public person PW9 and a police official from local PS Bhadra PW19 were associated with PW40 and PW43 in the pointing out State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 44/52 proceedings. All these four witnesses have been consistent regarding the fact that the said place was pointed out by the accused persons on 09.12.2009. Thus the pointing out proceedings carried out on 09.12.2009 have been proved by the prosecution beyond any reasonable doubt.
PROCEEDINGS AT PS BHADRA ON 09.12.2009
85. As per case of the prosecution, after the accused persons pointed the place where they had burnt the body of the deceased, a police team led by the IO PW43 Insp. Brahmjeet Singh had gone to PS Bhadra and had made inquiries. During inquiry, it came to light that on 26.09.2009, PS Bhadra had received a call regarding discovery of a human body in burnt condition. SHO Insp. Nand Ram, PS Bhadra had attended the said call and inspected the spot which he got photographed. He had found two iron lids, one burnt blanket piece and burnt pieces of clothes which were collected by him. He had also preserved bones which he had found at the spot. These articles were handed over to PW43 by SHO Insp. Nand Ram along with file containing the inquest report and postmortem report.
86. In this respect PW10 Insp. Nand Ram, SHO PS Bhadra has stated that he had handed over all the documents and case property to PW43 on 09.12.2009.
FINDINGS QUA ACCUSED NARENDER, LALIT SHARMA AND RAJ RANI SHARMA
87. As observed above, the case of the prosecution hinged largely upon the circumstance of the deceased being last sent in the company of Narender and pointing of the place by Narender and Lalit Sharma where they disposed the body of Sazia Urus. The circumstance State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 45/52 of deceased being last seen in the company of Narender has not been proved. This leaves this Court with the pointing out by Narender and Lalit Sharma of the place where they disposed off the body of the deceased. The same has been satisfactorily proved by the prosecution.
88. The question which arises is what value is to be attributed to the pointing of the place of disposal of the body of the deceased. The pointing out proceedings are basically an extension of the disclosure statements given by both these accused persons. Section 25 of the Indian Evidence Act bars any statement given to a police officer from being admissible in evidence. However the said bar is inapplicable when such a statement lead to the discovery of an unknown fact by virtue of provisions of Section 27 of the Indian Evidence Act. Whether discovery of body of Sazia Urus was a result of the pointing out of place of disposal off her body by these two accused persons?
89. As the prosecution would have it, it was only what these two accused persons pointed out the place of disposal of the body of the deceased that the police went to police station Bhadra, made inquiries and came to know about the discovery of a dead body at that place in the morning of 27.9.2009. The parts of the said body had been preserved and sent for DNA examination. Blood of Rabeya Khatoon PW44 mother of the deceased was drawn from which DNA was extracted and compared with the DNA of the body remains found in the jurisdiction of PS Bhadra. As per report of PW28 Dr. B.K. Mahapatra, the DNA profile of Rabeya Khatoon matched with that of parts of the discovered body and it established that the said body which had been discovered within the jurisdiction of police station Bhadra on 27.09.2009 was that of Sazia Urus.
FIR No. 411 of 2009, PS: Special Cell 46/52
90. However one has to see and consider the testimony of of PW10 Insp. Nand Ram, SHO of PS Bhadra. In his cross examination, he after going through his case diary has stated that on 24.11.2009, he had received secret information that a girl was missing from Nangloi, Delhi. He stated that since the name and other particulars of the missing person were not furnished, he did not try to make any inquiry from PS Nangloi, Delhi. From this statement of PW10 in cross examination, a doubt does arise that as on 24.11.2009, information had been received at PS Bhadra from some source about a girl from Nangloi having gone missing. The pointing out proceedings with respect to Narender and Lalit Sharma were conducted on 09.12.2009. It is therefore very much possible that the investigating officer of this case had prior knowledge of the place of disposal of body of the deceased and the pointing out proceedings as such did not lead to discovery of any fact which was not known to the IO. This is a possible inference which arises out of the testimony of PW10 in his cross examination. Thus the pointing out proceedings would be of no value as they did not lead to the discovery of a fact, i.e. the identity of the discovered body, which was not previously known to the police. Accordingly, the said part of the disclosure statements of these two accused persons could not bring the same within the ambit of Section 27 of the Evidence Act.
91. Even if it was to be stated that it was the pointing out of the accused persons that actually led to the discovery of body of the deceased, at best it can be said that the pointing out by Narender and Lalit Sharma would show that they were aware about place of disposal of body of the deceased. In the absence of any other evidence of the fact that they were responsible for the murder of Sazia Urus, knowledge of the place of disposal of the body of the deceased by itself cannot permit this Court to raise an inference that they had committed the State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 47/52 murder of the deceased. This is the manner in which Section 27 of the Evidence Act has been interpreted by the Hon'ble Supreme Court in the case of Musheer Khan v. State of M.P. reported in (2010) 2 SCC 748 in which Hon'ble Supreme Court was pleased to hold as under:
"55. Section 27 starts with the word "provided". Therefore, it is a proviso by way of an exception to Sections 25 and 26 of the Evidence Act. If the facts deposed under Section 27 are not voluntary, then it will not be admissible, and will be hit by Article 20(3) of the Constitution of India. (See State of Bombay v. Kathi Kalu Oghad.)
56. The Privy Council in Pulukuri Kotayya v. King Emperor held that Section 27 of the Evidence Act is not artistically worded but it provides an exception to the prohibition imposed under the preceding sections. However, the extent of discovery admissible pursuant to the facts deposed by the accused depends only on the nature of the facts discovered to which the information precisely relates.
57.The limited nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 can be illustrated by the following example:
Suppose a person accused of murder deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, but as a result of such discovery no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused."
(Emphasis supplied)
92. As observed above, this is a case based on circumstantial evidence. In order to establish such a case, the prosecution is required to prove each incriminating circumstance individually beyond any reasonable doubt and such circumstances so proved ought to form a chain so complete which would point only out towards the guilt and be not open to any other interference.
93. In the present case as the prosecution has failed to prove that the deceased was last seen in the company of Narender. The State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 48/52 intervening circumstances claimed by the prosecution about Narender, Lalit Sharma and Raj Rani Sharma having been taken the deceased Maruti Swift car bearing registration no. DL-9CQ-5986 and on the way Narender being administered diazapam injection twice on the body of the deceased and thereafter finally strangling her and burning her body with petrol are part of the disclosure statements of the accused persons which are hit under Section 25 of the Evidence Act. The chain of circumstances relied upon by the prosecution to prove the guilt against these accused persons is thus incomplete.
94. Thus in the opinion of this Court, the prosecution has failed to prove that it was Narender who had committed the murder of Saiza Urus in conspiracy with Lalit Sharma and Raj Rani Sharma after abducting her and thereafter disposed her body by burning it. Narender, Lalit Sharma and Raj Rani are acquitted for the offences punishable under Section 120B of the Indian Penal Code (IPC) read with Sections 364 and 302 of the IPC and Sections 364, 302 and 201 all read with Section 120B of the IPC.
FINDINGS QUA RAJENDER SHARMA AND SHASHI BALA
95. The charge against Rajender Sharma and Shashi Bala is that of offence under Section 202 of the IPC i.e. concealing knowledge of the commission of the said offence. This charge is based only on the disclosure statements of the accused persons. There is no independent evidence to prove any knowledge on their part of the commission of the murder of Saiza Urus. In the absence of any evidence in this regard, both the accused i.e. Rajender Sharma and Shashi Bala are acquitted for the offence punishable under Section 202 of the IPC.
96. Before parting, I must note that Sh. Nasir Aziz, Ld. State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 49/52 Counsel for the complainant had submitted that in the second bail application of Raj Rani Sharma a plea of alibi had been raised as per which she had gone to Vaishno Devi for a pilgrimage between 22.09.2009 to 26.09.2009 which was found to be false upon verification. Therefore this circumstance be considered by this Court qua the accused persons. In other words, he submitted that since Raj Rani Sharma has taken false plea of alibi in her bail application, it was a circumstance which ought to have been considered.
97. It may be noted that the plea of alibi was taken only in the bail application. No such plea has been taken in cross examination of the prosecution witnesses or in the statements recorded under Section 313 of the Cr.P.C. No evidence has been led in defence. Thus plea of alibi has not been taken by Raj Rani Sharma in her defence during the course of this trial charges had been framed against her.
98. Even otherwise it must be kept in mind that falsity of plea of alibi by itself cannot be the basis on which a Court draw a conclusion of guilt. It is the task of the prosecution to first prove its case beyond any reasonable doubt against the person accused of an offence. Once that burden is discharged by the prosecution, a false plea of alibi would be an additional link in the chain of circumstances against the accused persons. However, it the prosecution has failed to prove its own case, then the falsity of a plea of alibi by itself cannot form the sole basis of conviction of an accused. In the case of Darshan Singh vs. State of Punjab, reported in (2016) 3 SCC 37 in which the Hon'ble Supreme Court was pleased to hold that the plea of alibi taken by the defence is required to be proved only after the prosecution has proved its case against the accused. Further in the case of Surendra vs. State of Rajasthan (2011) 15 SCC 78, the Hon'ble Supreme Court was pleased State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 50/52 to observe that even if a false plea has been taken by an accused, that itself will not be able to maintain their conviction and that shortcomings and inconsistencies in the case of the prosecution cannot be filled up by a false plea of alibi.
99. In the present case the prosecution has not been able to prove its case against the accused persons beyond any reasonable doubt. Therefore even if a false plea of alibi had been taken by the accused, the same cannot be relied upon by the prosecution to prove its case against the said accused.
CONCLUSION
100. The net result of the above discussion is as under:-
(1) Narender, Lalit Sharma and Raj Rani are acquitted for the offences punishable under Section 120B of the Indian Penal Code (IPC) read with Sections 364 and 302 of the IPC and Sections 364, 302 and 201 all read with Section 120B of the IPC.
(2) Rajender Sharma and Shashi Bala are acquitted for the offence punishable under Section 202 of the IPC.
Announced in the open Court (REETESH SINGH)
on 19th July, 2016 ASJ-02/FTC, PHC/NDD
19.07.2016
State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 51/52
State vs. Narender & Ors.
FIR No. 411 of 2009
PS : Special Cell
19.07.2016
Present: Sh. Irfan Ahmad, Ld. Addl. PP for the State.
Accused Narender, Lalit Sharma are present
on interim bail.
Accused Raj Rani Sharma, Rajender Sharma and Shashi Bala are present on bail.
Sh. Hari Dutt, Counsel for the accused persons.
Vide separate judgment, all the accused are acquitted for all the charges which have been framed against them.
Accused persons furnished bail bonds in terms of Section 437A of the Cr.P.C. which are accepted. The same shall remain in force for a period of six months from today.
File be consigned to the record room.
(Reetesh Singh) ASJ-02/FTC, New Delhi District, Patiala House Courts, New Delhi 19.07.2016 State vs. Narender & Ors.
FIR No. 411 of 2009, PS: Special Cell 52/52