Delhi District Court
State vs 1. Arshad Ali @ Munna Khan on 28 February, 2018
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No.54/2014
Unique Case ID No.660/2016
FIR No.366/2014
U/S: 302/506/498A/34 IPC
P.S: Nand Nagri
State Versus 1. Arshad Ali @ Munna Khan
S/o. Late Sh. Tabib Ahmad
R/o. K285, Gali No.5, Sunder Nagri,
Delhi.
2. Ibne Ali S/o. Arshad Ali @ Munna Khan
R/o. K285, Gali No.5, Sunder Nagri,
Delhi.
Date of Institution : 23.08.2014
Date of Arguments : 29.01.2018
Date of Judgment : 28.02.2018
J U D G M E N T
FIR No.366/14, PS. Nand Nagri Page 1 of 36 St. Vs. Arshad Ali @ Munna Khan etc.
Case of Prosecution
1.Brief facts of the case are that on 08.04.2014, DD No. 7A regarding murder of a lady was recorded at PS Nand Nagri, pursuant to which SI Gaurav Kumar, alongwith ASI Ashok Tirkey and Ct. Charan Pal reached at the spot i.e H.No. K285, Gali No.5, Sunder Nagri, where in a room situated at the first floor, dead bodies of a lady and one girl child were lying. On enquiry, name of the lady was revealed as Nagma wife of Dildar @ Dillu and that of girl child as Sofia aged about 2022 days. Blood was lying on the floor and was also present in the nostrils of deceased Nagma and ligature marks were also present on the neck of both the deceased. Crime team was called at the spot, who inspected and photographed the same. Senior officers were also informed. Parents of deceased Nagma were informed. On having come to know that deceased Nagma was married only about one year prior to the incident, SDM was also informed. On enquiry, it was revealed that father inlaw of Nagma namely Arshad and his son Nihal were sleeping outside the room of deceased. It was also learnt that husband of deceased was languishing in Tihar Jail and mother inlaw of deceased Nagma namely Bilkish had left the company of her husband Arshad Ali about 34 months back. No signs of force to break open the door were found. SI Gaurav Kumar prepared rukka and got the case FIR registered. Further investigation was entrusted FIR No.366/14, PS. Nand Nagri Page 2 of 36 St. Vs. Arshad Ali @ Munna Khan etc. to Inspector Kishan Kumar. Site plan was prepared. Exhibits were lifted. Dead bodies were sent to mortuary GTB hospital. Abid Ali @ Nihal, devar of deceased, who was aged about 910 years was enquired, who disclosed that " he, Chacha Arshad Ali, his bhabhi Nagma and baby Sofia live on 1 st floor of the house and he sleeps with Chacha Arshad Ali on the bed. He further disclosed that on hearing the noise of "Dham" (falling something) and also the cries of Baby Sofia, he woke up and saw that light in the room was on. He went inside the room and saw that Chacha Arshad Ali was killing his Bhabhi Nagma by strangulating her and when he tried to make Baby Sofia stop crying, Chacha killed her also by strangulating her neck with a rope. He disclosed that Chacha asked him to sleep and not to disclose anything to anyone or else he would kill him also in the same way. Thereupon, he lied on the bed after closing his eyes and fell asleep." Thereafter, Arshad Ali was interrogated, who confessed his guilt. Accused Arshad Ali was arrested, who got recovered blood stained rope with which he had strangulated both the deceased. Blood stained clothes, which accused Arshad Ali was wearing at the time of incident were also seized. On 11.04.2014 parents of deceased came from Bihar and their statements were got recorded by SDM, who levelled allegations against accused Arshad Ali and Ibne Ali, Devar of deceased Nagma. Postmortem on the dead bodies was got conducted and after postmortem dead bodies were handed over to their relatives. Statement of eye witness Abid Ali u/s. 164 FIR No.366/14, PS. Nand Nagri Page 3 of 36 St. Vs. Arshad Ali @ Munna Khan etc. Cr.P.C was got recorded. Exhibits were sent to FSL. Statement of witnesses was recorded. Further investigation was carried out. Since there was only oral evidence u/s. 498A IPC against accused Ibne Ali and there was no substantial documentary proof against him, he was placed under column No.11 without arrest. After completion of investigation, chargesheet was filed before the Court.
2. On appearance, in compliance of section 207 IPC, copies were supplied to accused persons, and as offence punishable u/s. 302 IPC is triable by the Court of Sessions, present case was committed to Sessions Court.
Charge framed against the accused persons
3. Charge u/s. 302/506 IPC was framed against accused Arshad Ali @ Munna Khan and charge u/s. 498A/34 IPC was framed against both the accused. Both the accused pleaded not guilty and claimed trial.
Witnesses examined
4. Prosecution examined 29 witnesses to prove its case. The brief summary of the deposition of Prosecution Witnesses is as under: FIR No.366/14, PS. Nand Nagri Page 4 of 36 St. Vs. Arshad Ali @ Munna Khan etc.
5. PW1 HC Rakesh is the duty officer, who had received information regarding murder of a lady and recorded the same vide DD No.7A Ex.PW1/A. He, on the basis of rukka brought by Ct. Charan Pal had also recorded the FIR Ex.PW1/B.
6. PW2 Asabuddin is the father of deceased Nagma, who deposed that his daughter Nagma was married to Dildar about three years ago and was having a small girl child. He deposed that accused Arshad Ali is the father inlaw and accused Ibne Ali is brother inlaw of his deceased daughter Nagma. He deposed that one day prior to her murder, his daughter Nagma telephonically informed him that her father inlaw was threatening her to leave the house and also used to tell her not to close the door of her room. He deposed that she also talked with her mother on phone and that at that time her husband was in Jail. He deposed that his statement Ex.PW2/A was recorded in SDM office.
In his crossexamination by Ld. Addl. PP, he admitted that his daughter Nagma informed him that her father inlaw Arshad Ali used to molest her and also removed her Parda. He further admitted that his daughter informed him that both accused used to beat her and volunteered that she told these facts to her mother and not to him.
FIR No.366/14, PS. Nand Nagri Page 5 of 36 St. Vs. Arshad Ali @ Munna Khan etc.
7. PW3 Murshida is the mother of deceased Nagma. She deposed that one day prior to murder, at about 9 pm, her daughter Nagma told her on telephone that accused Arshad was having an evil eye on her and asked her not to put kundi on the door of her room. She also told her that her father inlaw used to molest her and Devar used to threaten her to leave the house and that her husband was in Jail.
She was also crossexamined by Ld. Addl. PP, wherein she admitted that SDM recorded her statement Ex.PW3/A. In her crossexamination by Ld. Defence Counsel, PW3 deposed that the phone call was received from Nagma at the mobile phone of her Mami, one day prior to her murder.
8. PW4 Sh. Arshad Ali is the brother of deceased Nagma, who deposed that on 7th day of month in the year 2014, at around 9.30 pm, one telephone call was received from his sister Nagma and he alongwith his mother and father had talked to her. He deposed that next day, they came to know that his sister expired.
9. PW5 is child witness Abid Ali @ Nihal aged about 9 years whose statement was recorded after being satisfied regarding his competency to depose. PW5 deposed that the date was 5 th but he does not remember the month or year. He further deposed that on that day, he was FIR No.366/14, PS. Nand Nagri Page 6 of 36 St. Vs. Arshad Ali @ Munna Khan etc. sleeping and when he got up, he saw that his father Arshad Ali, put a rope around the neck of his sister inlaw Nagma, then pulled it & killed her. He saw this in the night at about 3 am. He deposed that his father told him to sleep, failing which he would kill him. He further deposed that his sister in law Nagma had a small daughter and that his father had put foot on her head and killed her also. He deposed that he also call his father as Chacha. In his crossexamination by Ld. Defence Counsel, he denied the suggestion that he deposed at the instance of his mother and volunteered that he told what he knew. He deposed that there is one window in the room, where he sleep and that he does not switch off the light or close the window during night. He deposed that he, Nagma, Munni & accused used to sleep in the room and that he can understand the time in the clock.
10. PW6 is Smt. Bilkish @ Ujma, who deposed that accused Arshad Ali is her husband and that Nagma was second wife of her son Dildar, who gave birth to a daughter named Sofia. She deposed that talaq between Dildar and his first wife Yasmeen took place because Yasmeen alleged that her father inlaw Arshad Ali had molested her. She deposed that accused Arshad Ali is not of good character and that his son Dildar was in Tihar Jail for about two months prior to the incident. She deposed that accused Arshad Ali used to tease his daughter inlaw Nagma, due to which she left the house and went to her parental house. She deposed that Nagma used to FIR No.366/14, PS. Nand Nagri Page 7 of 36 St. Vs. Arshad Ali @ Munna Khan etc. wear Burqa and that she informed her on telephone that accused Arshad Ali forced her to remove the parda/burqa. She deposed that there is only one room in the house and that Nagma used to sleep inside the room while the remaining family members used to sleep outside. She further deposed that as long as she was staying in the house, Nagma used to close the door from inside, however, later on she informed her on telephone that accused Arshad Ali forced her to keep the door of the room open. She deposed that after the marriage of Nagma, she had informed her about the character of her husband i.e accused Arshad Ali and warned her to be cautious of him. She deposed that on 04.08.2014, she came at the house of neighbour Anwar with a view to take Nagma with her because her husband was in Jail. Anwar went to the house of accused Arshad Ali to call Nagma but accused did not allow her to leave the house. She deposed that on the day of incident, accused Arshad Ali, her daughter inlaw Nagma, daughter of Nagma namely Sofia and her younger son Nihal were present in the house. She deposed that in her presence, accused Arshad Ali brought out a rope lying under the cot from the second floor of the house, which was seized by the police. She deposed that disclosure statement of accused was recorded and the same bears her RTI at point A.
11. PW7 is SI Etender Swaroop, Incharge Mobile Crime Team, who alongwith photographer Ct. Zile Singh and proficient Surender Prasad FIR No.366/14, PS. Nand Nagri Page 8 of 36 St. Vs. Arshad Ali @ Munna Khan etc. had reached the spot and examined the same. He deposed that blood was lying there and he had also noticed ligature mark on the dead bodies of Nagma and her daughter. He proved the crime scene report prepared by him as Ex.PW7/A.
12. PW8 HC Zile Singh is photographer from Mobile Crime Team. He had taken 8 photographs of the dead bodies and of scene of crime. He proved the photographs as Ex.PW8/A1 to A8 and negative thereof as Ex.PW8/A9 to A16.
13. PW9 is Dr. Neha Gupta, who on 12.04.2014 had conducted the postmortem on the body of deceased Nagma & Sofia. She proved the postmortem reports prepared by her as Ex.PW9/A & Ex.PW9/B. She deposed that time since death was about five days and cause of death is asphyxia as a result of antemortem strangulation by a ligature. She further deposed that injury no.1 on the body of deceased Nagma was sufficient to cause death in ordinary course of nature. The cause of death of Baby Sofia is also asphyxia as a result of antemortem strangulation by a ligature. She gave her subsequent opinion Ex.PW9/B with regard to rope and deposed that injury no. 1 mentioned in postmortem report Ex.PW9/A is possible by the rope, which was produced before her for examination.
FIR No.366/14, PS. Nand Nagri Page 9 of 36 St. Vs. Arshad Ali @ Munna Khan etc. In his crossexamination by Ld. Defence Counsel, she deposed that by fresh antemortem injuries, we can infer that the injuries were caused within 6 hours prior to death.
14. PW10 is Sh.Nisar Ahmad, neighbour of accused Arshad Ali. He deposed that he does not remember date, month or year but at about 3 midnight when he was sleeping in his house, he heard the cries of accused Arshad. He came out of his house and saw that accused Arshad was lying outside his house on a slab with a rope tide on his knees and his hands were also at his knees inside the rope. On being asked as to what happened, accused Arshad told him that his son Kismat Ali and Dillu after giving him beatings and tying with rope left and asked him to go upstairs and see what has happened. He first of all untied the rope with which accused Arshad was tied. He deposed that when he untied Arshad, he did not notice any injury on his body. On the asking of accused, one lady, named Lambo, who was a tenant was sent upstairs to see what has happened, who after coming down told that Nagma and her minor daughter had died. He called PCR at 100 number and thereafter, went upstairs and saw Nagma and her daughter dead. He deposed that he noticed that the clothes of Nagma were in improper/disturb condition. He deposed that at that time husband of deceased Nagma was in Jail in some case and that wife of accused Arshad Ali was not residing with him for about 23 months prior to the incident.
FIR No.366/14, PS. Nand Nagri Page 10 of 36 St. Vs. Arshad Ali @ Munna Khan etc. In response to a leading question put by Ld. Addl. PP, he admitted the date of incident as 07.04.2014. He also admitted that accused Arshad Ali was flirt kind of person and there used to be complaints of eve teasing against Arshad and therefore, his wife left him.
15. PW11 is Sh. Anwar Ali, who at the time of incident was residing in front of house of accused Arshad Ali. He deposed that he had old relations with the family of accused Arshad Ali and that he is a driver by profession. He deposed that two months prior to incident occurred on 08.04.2014, Bilkish, wife of accused Arshad had left the house of Arshad Ali. He deposed that at the time of incident Dildar was lodged in Tihar Jail and that Nagma wife of Dildar @ Dillu alongwith her 27 days old daughter was residing in the house of accused Arshad Ali on the first floor. He deposed that accused Arshad Ali also resided on the same floor alongwith his son Nihal and used to sleep on the same floor. He deposed that he used to wake up at about 3 am due to non entry of commercial vehicles as he was driving Vikram Carrier Vehicle. He further deposed that on 08.04.2014 at about 3.15 am, he heard the noise of crying and also heard the noise of " Mujhe Maar Dala Mujhe Bacha Lo." He came out from his house and saw that the hands of accused Arshad were tied with a rope near his knees and he told that he was thrown from the stairs, beaten by someone and his cash and mobile phone were robbed. At that time, he was FIR No.366/14, PS. Nand Nagri Page 11 of 36 St. Vs. Arshad Ali @ Munna Khan etc. lying on the slab constructed outside his house. He deposed that he alongwith other neighbours untied accused and that when his wife Mobina asked about Nagma, accused informed that she is on the first floor. They went to first floor and found Nagma and her daughter lying dead and there were ligature marks on the neck of Nagma. He informed the police at 100 number. He further deposed that one day prior to the incident, accused Arshad asked him to call Bilkis, upon which he called Bilkis to his house and Bilkis came to his house at about 10 pm. He deposed that on the instruction of Bilkis, he went to the house of Arshad to bring Nagma as Bilkis wanted to take Nagma, however, accused Arshad Ali refused to allow Nagma to go with her mother inlaw. He deposed that he also tried to make Arshad Ali understand but he refused to send Nagma with Bilkis and after some time, Bilkis left his house.
In response to leading questions put by Ld. Addl. PP, he admitted that he told the police that Arshad was a person of bad character. In his crossexamination by Ld. Defence Counsel, he deposed that he heard about the incident of eve teasing by Arshad Ali and volunteered that the earlier daughter inlaw of Arshad Ali complained of having been teased by accused Arshad Ali. Admitting that Nagma was called so that she may request Bilkis and take Bilkis back to her home, where Arshad was residing, he volunteered that when he asked Nagma to come, she refused stating that she would be killed by Arshad.
FIR No.366/14, PS. Nand Nagri Page 12 of 36 St. Vs. Arshad Ali @ Munna Khan etc.
16. PW12 is Mohd. Yameen, who was residing as a tenant in the house of accused Arshad Ali from 1 ½ year prior to incident. He deposed that Arshad Ali is a bad character/Ayyash person and that wife of accused Arshad Ali left for her village before 15 days of the incident after quarreling. He deposed that prior to incident Nagma and one small girl child aged about one month were also residing with accused Arshad Ali. He deposed that accused Arshad Ali tried to call his wife Shabana for establishing sexual relation by alluring her for giving some money and therefore, he manhandled Arshad Ali. He deposed that neighbour pacified the matter and Arshad Ali beg his pardon and the matter was closed. He deposed that on the day of incident, Arshad Ali, his son Nihal and Nagma alongwith her minor daughter were present in the house.
17. PW13 Sh. Kamal Deep Gupta is the SDM, who had recorded the statements of father and mother of deceased Ex.PW2/A and Ex.PW3/A. He deposed about recording of statement of Arshad and Ibne Ali regarding identification of dead bodies and also about filling up of form for postmortem.
18. PW14 is SI Ashok Tirkey, who on receiving of DD No.7A regarding murder of a lady alongwith SI Gaurav and Ct. Charan Pal reached at the spot, where dead bodies of a lady and a child aged about 20 FIR No.366/14, PS. Nand Nagri Page 13 of 36 St. Vs. Arshad Ali @ Munna Khan etc. 22 days were lying. He noticed ligature marks on the neck of the body. He had prepared an application and sent the dead bodies at Mortuary GTB Hospital for preservation through Ct. Charan Pal.
19. PW15 is Ct. Ankit, who on 27.04.2016 after taking one sealed pullanda from MHC(M) had handed over the same to Dr. Neha Gupta for obtaining subsequent opinion. He proved the acknowledgment as Ex.PW15/A.
20. PW16 HC Hari Mohan is the MHC(M), who deposed about depositing of sealed parcels in the malkhana by Inspector Kishan Kumar on various dates and about sending the sealed viscera peti and other sealed parcels to FSL Rohini. He deposed that on 08.09.2014 one sealed viscera box alongwith sealed report from FSL Rohini was received.
21. PW17 is Dr. Adesh Kumar, Senior Scientific Officer (Chemistry), FSL Rohini. He had examined the sealed wooden box received in FSL Rohini. He deposed that the contents i.e Ex.1A, 1B, 1C & 1D as detailed in his report were examined by him and as per his examination on chemical microscopic and TLC examination, metalic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, FIR No.366/14, PS. Nand Nagri Page 14 of 36 St. Vs. Arshad Ali @ Munna Khan etc. barbiturates, tranquilizers and pesticides could not be detected in above exhibits. He proved his detailed report as Ex.PW17/A.
22. PW18 is Sh. Saleem Javed, who is residing as a tenant in the house of accused Arshad Ali. He deposed that Nagma who was the wife of son of accused was living at the first floor of the house alongwith her daughter. He deposed that accused Arshad Ali is of "Ashiq Mizaz" and perhaps for this reason, his wife left his company about two months prior to the incident. He deposed that Nagma alongwith her daughter used to sleep inside the room, while Arshad and his son Nihal used to sleep outside the room in varandah and that accused never used to allow Nagma to bolt the door from inside. He deposed that the incident is of intervening night of 07/08.04.2014 at about 3.30 am when he while sleeping heard some noise and when he came out, he saw neighbours present in the gali. On enquiry, he came to know that somebody has murdered Nagma and her daughter. He went to the first floor and saw that dead body of Nagma having ligature mark over neck alongwith dead body of her daughter. He deposed that police made enquiries from him and recorded his statement and that he had told the police that accused might have committed the said incident.
23. PW19 is Ct. Charanpal, who alongwith IO/SI Gaurav had reached the spot, remained associated with him throughout the day of FIR No.366/14, PS. Nand Nagri Page 15 of 36 St. Vs. Arshad Ali @ Munna Khan etc. incident and deposed about the investigation conducted by IO at the spot. He was handed over rukka by IO/SI Gaurav, on the basis of which he got the FIR registered.
24. PW20 HC Faiyaz Ahmad joined the investigation of this case alongwith Inspector Kishan Kumar on 09.04.2014. He deposed that on being enquired by IO in the PS, suspect Arshad Ali first of all told that murder was committed by his son Kismat Ali with the help of his friends Murad and Budhiya, whereafter, IO called Kismat Ali, Murad, Budhiya & wife of accused namely Bilkis and accused was confronted with them, thereafter accused confessed to have committed the murder of Nagma and her daughter. He deposed that accused was arrested, his personal search was conducted and disclosure statement was recorded. He deposed that pursuant to his disclosure statement, accused Arshad Ali led the police party to first floor of H.No.K285, Gali No.5, Sunder Nagri and there from under the dari of Charpai/cot, he got recovered one rope, which was having some stains of blood, which was seized by IO. He deposed that wearing clothes of accused were also seized by the IO and accused also provided his other clothes, which were also seized by the IO.
25. PW21 is Ct. Amritraj, who on 09.04.2014 had joined the investigation of the present case with IO/Inspector Kishan Kumar and HC FIR No.366/14, PS. Nand Nagri Page 16 of 36 St. Vs. Arshad Ali @ Munna Khan etc. Faiyaz Ahmad. His deposition is similar to that of PW20 HC Faiyaz Ahmad regarding the investigation carried out on that day.
26. PW22 Inspector Mahesh Kumar is the draftsman, who had prepared the scaled site plan Ex.PW22/A.
27. PW23 is ASI Prem Kumar, who on 24.04.2016 was posted as MHC(M). He deposed that on 24.04.2016, Ct. Ravinder had deposited 17 sealed parcels and one sealed report of FSL Rohini in the malkhana. On 27.04.2016, he had given one sealed pullanda containing rope to Ct. Ankit for producing the same before HOD Department of Forensic GTB Hospital for seeking subsequent opinion. He deposed that on 06.05.2016, Ct.Ankit had deposited one sealed pullanda and subsequent opinion of doctor. He deposed that so long as case property remained in his possession, same remained intact.
28. PW24 SI Gaurav Kumar is the first IO of the case. He deposed about his reaching the spot and investigation conducted at the spot. He also deposed about registration of FIR and lifting of exhibits from the spot. He deposed that on checking, no signs of force to break open the door were found and that during investigation, it was revealed that deceased Nagma FIR No.366/14, PS. Nand Nagri Page 17 of 36 St. Vs. Arshad Ali @ Munna Khan etc. used to sleep after opening the latch of the door from inside on the asking of accused Arshad Ali.
29. PW25 is Ms. Shashi Bala Pahuja, Sr. Scientific Officer (Biology) from FSL Rohini. She had examined the 17 sealed forensic parcels received at FSL. She deposed that DNA profiling (STR analysis) performed on the source of exhibits 1 (blood in gauze cloth piece), 7 (Rope), 8a (Kurta of accused), 12 (blood stained gauze of deceased Nagma), 15c (Shawl) & 16 (blood stained gauze of deceased Sofia) are sufficient to conclude that biological stains i.e blood stains present on the source of exhibits 1 (blood in gauze cloth piece), 7 (Rope), 8a (Kurta of accused), 12 (blood stained gauze of deceased Nagma), 15c (Shawl) are from the same source. She proved her detailed report as Ex.PW25/A.
30. PW26 is Sh. Sunil Beniwal, the then Ld. ACMM, Shahdara. He deposed that on 11.04.2014 an application Ex.PW26/A for recording of statement of child witness Abid Ali @ Nihal was moved by IO/Inspector Kishan Kumar, which was marked to him by Ld. CMM. He deposed that witness was produced before him and he put preliminary questions to the witness but since he was not appearing in fit state of mind to give statement that day, his statement was not recorded and application was disposed off accordingly. He proved the proceedings as Ex.PW26/B. FIR No.366/14, PS. Nand Nagri Page 18 of 36 St. Vs. Arshad Ali @ Munna Khan etc.
31. PW27 Dildar Ali is the son of accused Arshad Ali and husband of deceased Nagma. He deposed that at the time of incident, he was languishing in Tihar Jail in connection with a case of theft of PS. Bhajanpura. He deposed that in the year 2010, he performed marriage with a girl named Yasmeen and the marriage continued for about 67 months and thereafter, talaq took place. He deposed that the reason behind the talaq was that his father Arshad Ali used to keep bad eye on Yasmeen. He further deposed that in the year 2013, he married Nagma (since deceased) and that after about 89 months of his marriage with Nagma, he went to Jail, where after about 4 months, he came to know about murder of Nagma. He deposed that on 10.04.2014, his father accused Arshad Ali was lodged in Tihar Jail and he went there to meet him. He asked accused Arshad Ali as to why he did so, on which accused told that he did nothing and that "Gaali Guptar Ke Peechhe Jo Ho Gaya, Wo Ho Gaya, Apni Maa Se Kehna Ke Chhuda Le Mujhe."
He was crossexamined by Ld. Addl. PP, wherein he deposed that he is in fit state of mind and understanding the proceedings. In answer to a specific question that when on 10.04.2014 he went to meet his father i.e accused Arshad Ali and asked about the incident, accused told that Nagma was abusing him and for that he strangulated both of them with the rope and committed their murder, he replied in affirmation stating that his father told so.
FIR No.366/14, PS. Nand Nagri Page 19 of 36 St. Vs. Arshad Ali @ Munna Khan etc. In his crossexamination by Ld. Defence Counsel, he confirmed that a quarrel on the issue of property was going on between his parents. He further deposed that his father did not disclose him anything that he committed murder of his wife and daughter.
32. PW28 is Sh. Muneesh Garg, Ld. MM, THC, who had recorded the statement of child witness Abid Ali u/s. 164 Cr.P.C, which is Ex.PW28/A.
33. PW29 is Inspector Kishan Kumar, who on 08.04.2014 on the direction of duty officer at about 5 am reached the spot, where SI Gaurav Kumar, ASI Ashok Tirkey, Ct. Charanpal and Crime Team staff were present. He deposed that inside the first floor room, there was a dead body of one lady Nagma and of one girl child Sofia. He deposed that blood was oozing out from the nose of Nagma and strangulation marks were present on the neck of both the dead bodies. He got the spot photographed and lifted the exhibits. He recorded the statement of witnesses. He deposed that on suspicion, accused Arshad Ali was taken to police station and was enquired. He deposed that there were blood stains on the kurta of accused and on enquiry, he told that blood came out from his nose (naksir) and that blood is appearing on his kurta. He arrested accused Arshad Ali and recorded his disclosure statement. He deposed that accused Arshad Ali got FIR No.366/14, PS. Nand Nagri Page 20 of 36 St. Vs. Arshad Ali @ Munna Khan etc. recovered one piece of blood stained rope from beneath the cot stating that with the help of that piece of rope, he committed the murder of Nagma and Sofia by strangulation, which was seized. Blood stained Kurta and Tehmad worn by accused were also seized as the accused disclosed that said clothes were worn by him at the time of commission of offence. He deposed about recording of statements of parents of deceased by SDM and got recorded the statement of witness Abid Ali @ Nihal u/s. 164 Cr.P.C. He deposed that during investigation, he came to know that accused Ibne Ali (brother inlaw of deceased Nagma) used to beat deceased Nagma in connection with dowry demand. He further deposed about recording of statement of Dildar, husband of deceased and various steps taken by him during investigation.
Statement and Defence of accused persons
34. Statements of both the accused persons were recorded u/s. 313 Cr.P.C. wherein they denied the case of prosecution and claimed themselves innocent. Pleading false implication, accused Arshad Ali stated that his son Kismat Ali, wife Bilkish, Shahid Kabari and Murad committed murder of Nagma & Sofia and they tied his hands and put clothes over him. None of the accused opted to lead any defence evidence.
FIR No.366/14, PS. Nand Nagri Page 21 of 36 St. Vs. Arshad Ali @ Munna Khan etc. Arguments and conclusion
35. Arguments have been addressed by Sh. Ashok Kumar, Ld. Addl. PP for the State as also by Sh. Mohd. Hassan, Ld. Amicus Curiae for both the accused.
36. Ld. Addl. PP for the State argued that ocular evidence of child witness Abid Ali @ Nihal, extra judicial confession and forensic evidence prove beyond reasonable doubt that accused Arshad Ali committed murder of Nagma and her daughter aged about 22 days. It has been submitted that past conduct of accused Arshad Ali as proved on record shows that he is a sexual pervert and had a bad eye on his daughter inlaw Nagma, due to which his own wife had left him. Ld. Addl. PP further argued that accused Arshad Ali did not allow Nagma to bolt the door from inside during night hours due to his lust.
37. Per contra, Ld. Amicus Curiae for both the accused argued that child witness Abid Ali @ Nihal was living separately with his mother Bilkish @ Ujma and his evidence carries no weightage as he is a tutored witness. It has been argued that Bilkish wife of accused Arshad Ali was living with one Shahid Kabari (scrap dealer) and in order to grab the property of accused Arshad Ali, she got him falsely implicated in the FIR No.366/14, PS. Nand Nagri Page 22 of 36 St. Vs. Arshad Ali @ Munna Khan etc. present case. Ld. Defence Counsel further argued that after the arrest of accused Arshad Ali, his wife Bilkish is now residing in the house of accused and also receiving rent from the tenants, which show that she had a motive to falsely implicate the accused.
38. On 08.04.2014 at about 3 am, PW10 Sh. Nisar Ahmad & PW11 Sh. Anwar Ali both neighbours of accused Arshad Ali, after hearing his cries "mujhe maar dala mujhe bacha lo" reached at the spot. As per PW10 Sh. Nisar Ahmad when he came out of his house, he saw that accused Arshad Ali was lying outside his house on a slab with a rope tied on his knees. When PW10 asked accused Arshad Ali as to what happened, he replied that his son Kismat Ali and his another son Dillu after giving beatings to him and after tying him with rope left and accused Arshad Ali asked them to go upstairs and see what has happened. As per PW11 Sh. Anwar Ali, accused Arshad Ali told that he was beaten by someone and his mobile phone and cash were robbed. Both these witnesses went upstairs and found Nagma and her daughter Sofia lying dead and they made call to police at 100 number. PW10 Nisar Ahmad deposed that when he untied accused Arshad Ali, he did not notice any injury on his body.
39. PW9 Dr. Neha Gupta, who conducted postmortem on the body of deceased Nagma W/o. Dildar, 22 years old female, proved her report as FIR No.366/14, PS. Nand Nagri Page 23 of 36 St. Vs. Arshad Ali @ Munna Khan etc. Ex.PW9/A. She noted ligature marks completely around the neck above the thyroid cartilage and opined the cause of death as asphyxia as a result of antemortem strangulation by a ligature and that injury no.1 is sufficient to cause death in ordinary course of nature. PW9 also conducted postmortem on the dead body of Sofia D/o. Dildar, aged 22 days and noted ligature marks present completely around that neck and above the thyroid cartilage and opined the cause of death as asphyxia as a result of antemortem strangulation by a ligature. Thus, as per postmortem report Ex.PW9/A & Ex.PW9/B, it has been proved that death of Nagma W/o Dildar & Sofia D/o. Dildar was homicide caused by antemortem strangulation.
40. In order to prove that accused Arshad Ali committed murder of his daughter inlaw Nagma and grand daughter Sofia, who was aged about 22 days, prosecution has examined younger son of accused Arshad Ali i.e PW5 Abid Ali @ Nihal as an eye witness of the incident, who at the time of incident was aged about 910 years.
41. Testimony of Child Witness Abid Ali @ Nihal: It is settled law that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring, however, it is not the law that if a witness is child, his evidence shall be rejected even if it is found reliable.
FIR No.366/14, PS. Nand Nagri Page 24 of 36 St. Vs. Arshad Ali @ Munna Khan etc. Hon'ble Supreme Court in Dattu Ramrao Sakhare & Ors. Vs. State of Maharashtra, Manu/SC/1185/1997 observed as under: " 5..... A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction In other words even in the absence of oath the evidence of a child witness can be considered Under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the Court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this wellsettled principle we may proceed to consider the evidence of Sarubai (PW2)."
42. Witness Abid Ali @ Nihal was examined by the Court after being satisfied about his competency to make statement. PW5 Abid Ali @ Nihal deposed that he calls his father as Chacha also. As per PW5 Abid Ali @ Nihal, he was sleeping and when got up, he saw that his father FIR No.366/14, PS. Nand Nagri Page 25 of 36 St. Vs. Arshad Ali @ Munna Khan etc. Arshad Ali put a rope around the neck of his sister inlaw Nagma & pulled it and killed her. He saw this in the night at about 3 am. PW5 further deposed that his father told him to sleep, failing which he would kill him. As per PW5, his father Arshad Ali had put foot on the head of small daughter of Nagma and killed her also. Regarding time of incident in his crossexamination by Ld. Defence Counsel, he deposed that there is one clock in the room and he can understand the time in the clock. The evidence of child witness Abid Ali @ Nihal appears to be reliable and trustworthy.
43. Ld. Defence Counsel disputing the presence of PW5 Abid Ali @ Nihal on the spot at the time of incident argued that he was residing separately with his mother Bilkish. In this regard, PW6 Bilkish @ Ujma deposed that on the day of incident, accused Arshad Ali, her daughter in law Nagma, daughter of Nagma namely Sofia and her younger son Abid Ali @ Nihal aged about 9 years were present in the house. PW11 Sh. Anwar Ali, neighbour of accused Arshad Ali & PW18 Sh. Saleem Javed, tenant in the same house corroborated the testimony of PW6 Bilkish to the effect that Abid Ali @ Nihal was living with his father accused Arshd Ali on the same floor where the incident occurred. Furthermore, accused Arshad Ali in his statement u/s. 313 Cr.P.C in reply to question no.16 stated that Nihal was sleeping at the time of incident, which can also be read u/s. 313 (4) Cr.P.C. Therefore, I do not find any force in the FIR No.366/14, PS. Nand Nagri Page 26 of 36 St. Vs. Arshad Ali @ Munna Khan etc. contention of Ld. Defence Counsel that on the day of incident child witness Abid Ali @ Nihal was not living with his father i.e accused Arshad Ali.
44. Extra Judicial confession: It is settled law that extra judicial confession is a weak piece of evidence. Before acting upon it, the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. As per prosecution case, accused Arshad Ali while in Judicial Custody made extra judicial confession regarding the murder of Nagma and baby Sofia to his Son Dildar Ali, who was also in JC in a theft case. Unfortunately, PW27 Dildar Ali is also husband of deceased Nagma and father of child Sofia. As per PW27 Dildar Ali, present incident took place when he was languishing in Tihar Jail in connection with a theft case of PS Bhajanpura. As per PW27 Dildar Ali, on 10.04.2014 his father i.e accused Arshad Ali was lodged in Tihar Jail in connection with present case FIR and he went to meet him at Tihar Jail and asked him as to why he did so. As per PW27, his father i.e accused Arshad Ali told him that he did nothing and " Gaali Guptar ke peechhe jo ho gaya, wo ho gaya, apni maa se kahna ke chhuda le mujhe". Thus, the extra judicial confession made by accused Arshad Ali to his son Dildar Ali is inculpatory as well as exculpatory. To a specific question as put to PW27 Dildar Ali that on 10.04.2014 on his asking about the incident, his father admitted and told him that Nagma was abusing him and for that he strangulated both of them with the rope and committed murder, the witness confirmed in affirmative FIR No.366/14, PS. Nand Nagri Page 27 of 36 St. Vs. Arshad Ali @ Munna Khan etc. while saying that his father told so, however, in his crossexamination by Ld. Amicus Curiae, he took somersault and deposed that his father did not disclose him anything that he committed murder of his wife and daughter and that he deposed before the court at the instance of police officials. Although, no suggestion was given to this witness that in his meeting with accused Arshad Ali in Jail, he did not say that " Gaali Guptar ke peechhe jo ho gaya, wo ho gaya, apni maa se kahna ke chhuda le mujhe" but still this witness in crossexamination has admitted that his father did not disclose him anything about the murder of his wife and daughter. As such, the extra judicial confession made by accused Arshad Ali to his son PW27 Dildar Ali is not helpful to the case of prosecution.
45. Motive and previous conduct of accused Arshad Ali: Section 8 of Indian Evidence Act 1872 provides that any fact which constitutes the motive or preparation as well as conduct of a person is relevant for any fact in issue. As per case of prosecution, accused Arshad Ali was keeping a bad eye upon his daughter inlaw Nagma and for that reason his own wife had left him. It has also come in evidence that Yasmeen, who was the first wife of PW27 Dildar Ali took divorce as accused Arshad Ali used to keep a bad eye on her.
Hon'ble Supreme Court in Ravinder Kumar and another Vs. State of Punjab, 2001 (7) SCC 690, has laid down following in paragraph FIR No.366/14, PS. Nand Nagri Page 28 of 36 St. Vs. Arshad Ali @ Munna Khan etc. 18: "18........It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. In this connection we deem it useful to refer to the observations of Hon'ble Apex Court in State of Himachal Pradesh Vs. Jeet Singh {1999 (4) SCC 370}:
"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."
46. PW6 Smt. Bilkish @ Ujma wife of accused Arshad Ali deposed that accused Arshad Ali is not of good character and talaq between her son Dildar Ali (PW27) and Yasmeen (first wife of Dildar Ali) took place because Yasmeen alleged that her father inlaw i.e accused Arshad Ali had FIR No.366/14, PS. Nand Nagri Page 29 of 36 St. Vs. Arshad Ali @ Munna Khan etc. molested her. She further deposed that accused Arshad Ali used to tease her daughter inlaw Nagma (since deceased), due to which she left the house and went to the house of her parents. PW6 Smt. Bilkish further deposed that Nagma used to wear Burqa and she informed her on telephone that accused Arshad Ali forced her to remove parda/burqa and also forced her to keep the door of the room open, although till she was staying in the house Nagma used to close the door from inside. Not only this, PW6 Smt. Bilkish deposed to the extent that she told Nagma about the character of her husband i.e accused Arshad Ali and warned her to be cautious of him. The fact that accused was a flirt kind of person (Ashiq Mizaz) has also been corroborated by neighbours as well as tenants, who were residing in the house of accused Arshad Ali. PW10 Sh. Nisar Ahmad confirmed that accused was flirt kind of person and there used to be complaints qua eve teasing against accused and therefore, his wife left him. Not only this, PW 12 Mohd. Yaseen, who was residing as tenant in the house of accused Arshad Ali deposed that once accused Arshad Ali tried to call his wife for establishing sexual relations by alluring her for giving some money, on which he manhandled with accused Arshad Ali. Thereupon, neighbours pacified the matter and accused Arshad Ali begged pardon from him. PW18 Sh. Saleem Javed, who was also residing as tenant in the house of accused Arshad Ali deposed that accused Arshad Ali is ' Ashiq Mizaz' and perhaps for this reason, his wife left his company about two months prior FIR No.366/14, PS. Nand Nagri Page 30 of 36 St. Vs. Arshad Ali @ Munna Khan etc. to incident. Thus, the evidence of PW6 Smt. Bilkish wife of accused Arshad Ali that accused Arshad Ali is not of good character, is corroborated by independent witnesses i.e neighbours and tenants, who were residing in the house of accused Arshad Ali. No explanation has come on behalf of accused Arshad Ali as to why all these public witnesses deposed regarding his character.
Regarding motive, prosecution has also examined two material witnesses i.e PW2 Asabuddin & PW3 Murshida, parents of deceased Nagma. Both PW2 & PW3 deposed that deceased Nagma was their daughter and one day prior to her murder, she gave a telephone call and informed that her father inlaw i.e accused Arshad Ali was threatening her to leave the house and also used to tell her not to close the door of her room. This fact is also deposed by PW6 Smt. Bilkish & PW18 Sh. Saleem Javed, which also indicates towards the motive of accused Arshad Ali as to why he was not allowing deceased Nagma to bolt the door of the room from inside. Another crucial evidence, which shows the motive of accused Arshad Ali as deposed by his wife Smt. Bilkish is that one day before the incident, she came at the house of her neighbour Anwar Ali (PW11) with a view to take Nagma with her because her husband was in Jail. Anwar went to the house of accused Arshad Ali to call Nagma but accused Arshad Ali did not allow her to leave the house and thereupon, she went back to the house of her daughter at Zafrabad. This evidence is FIR No.366/14, PS. Nand Nagri Page 31 of 36 St. Vs. Arshad Ali @ Munna Khan etc. corroborated by the testimony of PW11 Anwar Ali, who has also deposed that one day prior to the incident, accused Arshad asked him to call Bilkis, upon which he called Bilkis to his house and he went to the house of accused Arshad Ali to bring Nagma as Bilkis wanted to take Nagma but accused Arshad Ali refused to allow Nagma to go with her mother inlaw. This witness further deposed that he also tried to make accused Arshad Ali understand but he refused to send Nagma with Bilkis. Thus, prosecution has successfully proved the following three facts:
(i) Accused Arshad Ali was not of good moral character and he used to keep bad eye on his daughter inlaw Nagma;
(ii) Accused Arshad Ali did not allow Nagma to bolt the room from inside although her husband was in Jail and;
(iii) One day prior to the incident, he did not allow his wife Bilkish to take Nagma with her.
47. Forensic Evidence: As per case of prosecution, accused pursuant to his disclosure statement Ex.PW6/B got recovered a piece of blood stained rope, which he used while strangulating Nagma and child Sofia. The said blood stained piece of rope was seized vide memo Ex.PW6/A dt. 09.04.2014. PW29 Inspector Kishan Kumar deposed that there were blood stains on the Kurta of accused Arshad Ali and on enquiry he told that blood came out from his nose (naksir) and the same blood is appearing on his kurta, which was also seized vide memo Ex.PW20/C. FIR No.366/14, PS. Nand Nagri Page 32 of 36 St. Vs. Arshad Ali @ Munna Khan etc. PW25 Ms. Shashi Bala Pahuja, Sr. Scientific Officer (Biology), FSL, Rohini, who performed DNA profiling on the source of exhibits proved her report as Ex.PW25/A and deposed that DNA profiling performed on the source of exhibits i.e blood in gauze cloth piece, rope, kurta of accused Arshad Ali, blood stained gauze of deceased Nagma are from the same source. No explanation has come on record on behalf of accused Arshad Ali as to how the blood of deceased Nagma was appearing on his kurta, which is a strong piece of evidence against him.
Reliance is placed upon the judgment of Hon'ble Supreme Court in Krishna Alias Krishnan vs State of Karnataka on 12 January, 2000:
2001 CriLJ 2696, ILR 2000 KAR 4845, 2001 (1) Kar LJ 24, wherein it was held that " once the prosecution establishes the presence of blood on the clothes of the accused which tallies with the blood group of the deceased the law enjoins upon the accused to explain how blood of that group was found on his garments and in the absence of any such explanation which is not forthcoming in this case, the irresistible conclusion is that the presence of blood belonging to the same group as that of the deceased heavily incriminates the accused."
48. Defence of accused Arshad Ali: Accused Arshad Ali in his statement u/s. 313 Cr.P.C has taken the defence that his son Kismat Ali, wife Bilkish, Shahid Kabari and Murad committed murder of Nagma and FIR No.366/14, PS. Nand Nagri Page 33 of 36 St. Vs. Arshad Ali @ Munna Khan etc. baby Sofia and that they tied his hands and put clothes over him. The defence as put to prosecution witnesses by Ld. Defence Counsel is that there was a property dispute between accused Arshad Ali and his wife Bilkish and in order to grab the property, she falsely implicated accused Arshad Ali.
Admittedly, PW27 Dildar Ali, husband of deceased Nagma was in Judicial Custody at the time of incident. PW10 & PW11 who reached at the spot after hearing cries of accused Arshad Ali have also deposed about what accused told them just after the incident. PW10 Sh. Nisar Ahmad deposed that when he asked accused Arshad Ali as to what happened, he told that his son Kismat Ali and another son Dillu after giving beatings to him and after tying him with rope left and asked him to go upstairs and see what had happened, which statement of accused Arshad Ali appears to be a sheer lie on the face of it as his son Dildar Ali @ Dillu was admittedly in Judicial Custody at the time of incident. PW11 Sh. Anwar Ali, who also reached at the spot just after the incident deposed that accused Arshad Ali told him that he was thrown from the stairs and that he was beaten by someone and his mobile phone alongwith cash was robbed. Both these witnesses deposed that they did not notice any injury on the body of accused Arshad Ali. In this way, accused Arshad Ali did not stick to one defence and keep changing his defence time to time. Further, PW 29 Inspector Kishan Kumar deposed that during investigation witnesses Sh.
FIR No.366/14, PS. Nand Nagri Page 34 of 36 St. Vs. Arshad Ali @ Munna Khan etc. Nisar Ahmad (PW10) and Sh. Anwar Ali (PW11) told him that accused Arshad Ali was pretending as his hands were tied with rope but same could have been easily taken out from the knot of the piece of rope so arranged by the accused. Ordinarily, no woman would give evidence regarding character of her husband merely to grab his property. Thus, in view of above, the different defences taken by accused Arshad Ali at different points of time do not appear to have a ring of truth and therefore, are not believable at all.
49. Charge u/s. 498A/34 IPC: Although charge u/s. 498A/34 IPC was also framed against accused Arshad Ali as well as his son Ibne Ali but no reliable evidence to prove that both the accused ever committed cruelty upon deceased Nagma in respect of demand of dowry, has been brought on record by prosecution. PW2 Sh. Asabuddin, father of deceased Nagma, PW3 Murshida, mother of deceased Nagma & PW4 Arshad Ali brother of deceased Nagma all have deposed regarding the conduct of accused Arshad Ali and the fact that deceased Nagma made a telephone call one day prior to the incident and informed that accused Arshad Ali was having an evil eye on her and had asked her not to put kundi on the door of her room but none of them deposed anything regarding the demand of dowry, therefore, prosecution has failed to prove charge u/s. 498A/34 IPC against both the accused. As such, both the accused are acquitted of the offence punishable u/s. 498A/34 IPC.
FIR No.366/14, PS. Nand Nagri Page 35 of 36 St. Vs. Arshad Ali @ Munna Khan etc.
50. Regarding charge u/s. 302/506 IPC against accused Arshad Ali, the ocular evidence of child witness Abid Ali @ Nihal is reliable and trustworthy and is corroborated by the forensic evidence. Accused Arshad Ali has failed to furnish any explanation regarding presence of blood of deceased Nagma on his wearing kurta. It has also been proved on record that accused was having a bad eye upon deceased Nagma and was not allowing her to bolt the door of her room from inside. It has also been duly proved that accused Arshad Ali committed the murder of Nagma and baby Sofia, who was aged about 22 days by strangulating them with a rope and has also threatened his son i.e child witness Abid Ali @ Nihal to kill him if he disclosed about the incident to anyone. Accordingly, accused Arshad Ali is held guilty and convicted u/s. 302/506 IPC.
SANJEEV KUMAR MALHOTRA Digitally signed by Announced in the open court SANJEEV KUMAR MALHOTRA Location: Karkardooma Courts, Delhi Date: 2018.02.28 16:50:25 +0530 on 28.02.2018 (Sanjeev Kumar Malhotra) ASJ/FTC/ECOURT Shahdara/KKD/Delhi FIR No.366/14, PS. Nand Nagri Page 36 of 36 St. Vs. Arshad Ali @ Munna Khan etc.