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Delhi District Court

State vs Jamir on 6 January, 2024

        IN THE COURT OF SH. PANKAJ ARORA:
     ADDITIONAL SESSIONS JUDGE-04: NORTH-EAST:
            KARKARDOOMA COURT: DELHI

SESSIONS CASE NO. 44755/15
CNR No. DLNE01-000204-2011
FIR No:  235/2011
P.S.     Seema Puri
U/s :    302/364/201/120B IPC

STATE
                                  Versus


1. JAMIR
s/o Sh. Masooq Ali
r/o H. No. E-6/37A, Sunlight Colony
Old Seema Puri, Delhi

2. RAJIA @ SABBO
w/o Jamir
r/o H. No. E-6/37A, Sunlight Colony
Old Seema Puri, Delhi

Date of Institution      :        30-09-2011
Date of Argument         :        01-12-2023
Date of Judgment         :        06-01-2024

JUDGMENT

1. Brief facts of this case are that on 17-06-2011, one Saleem s/o Naz Mian had left his home at about 3:30 pm and thereafter, he did not return back home. His father Naz Mian had tried to contact him telephonically but his mobile phone was not responding and after about 4-5 minutes, the mobile phone was switched off. Search was made in the relations and other places but Saleem could not be traced. On 18-06-2011, a missing report was got lodged by his father namely Naz Mian at PS Seemapuri, FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 1 of 70 which was reduced into writing vide DD no. 64B (Ex. PW29/A). On 20/06/2011, the complainant Naz Mian came at PS Seemapuri and had given a written complaint stating that his son Saleem, aged 25 years had left his home without informing anyone on 17-06-2011 at about 3:30 pm and he has already got lodged one missing report in this regard on 18-06-2011. However, he has not received any clue about his whereabouts nor his son reached back home. He got to know from some neighbors that his son Saleem had taken on rent one room in the house of Jamir at E-6/37, Sunlight Colony, Delhi which was being used as godown for keeping clothes. Jamir was having suspicion about illicit relation of his wife with Saleem. Therefore, Naz Mian had strong suspicion that Jamir had made his son to disappear and might have killed him. While leaving from home, his son was wearing yellow colour vest, blue colour pant and black slippers. On the basis of said information, FIR was registered against accused for the offence punishable u/s 364 of IPC and investigation was entrusted to Inspector K. S. Rawat (hereinafter referred to as first IO). Thereafter, IO with the assistance of Naz Mian made efforts to trace Saleem and Jamir.

2. On 20-06-2011, on the basis of secret information, opposite petrol pump, near bus stand for buses going towards Ghaziabad at Apsara Border, accused Jamir and his wife Rajia @ Sabbo were overpowered and interrogated. Upon sustained interrogation, they had confessed that on 17-06-2011 they had made plan to call Saleem at their house and in execution of the plan, they had called him and committed his murder with a sharp weapon. Thereafter, they had cut the dead body of Saleem into pieces and packed the same in plastic bags. On the basis of their FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 2 of 70 interrogation, both accused persons were arrested. Their disclosure statements were recorded. Thereafter, accused Jamir led the investigating team to a place in front of St. Francis School, Abhay Khand, PS Indirapuram and pointed out one place after crossing the slope which was situated 15 meters from the main road. One plastic bag, lying near the bushes, was pointed out by accused Jamir. The said plastic bag was brought on plain surface and untied. One torso was found therein, which was identified and claimed by the brother of deceased. The UP Police was immediately informed to conduct inquest proceedings. Crime Team officials were called. One SI Mohar Pal of UP police inspected the recovered torso and completed the inquest proceedings. Crime Team officials were called from Delhi and they had inspected the torso and took photographs thereof. The torso was seized vide seizure memo Ex. PW1/B. Thereafter, accused persons led the investigating team to a place in the area of Shakti Khand, 3-4 km ahead from the place of recovery of torso. The accused persons pointed out towards one plastic bag from which bad smell was emanating. The bag was lifted and it was found containing left leg, head, right arm, forearm, left arm, small piece of thigh, which were identified and claimed by Naim to be body parts of his brother Saleem. Photographer took photographs and Crime Team inspected the place. The above- said body parts were seized vide seizure memo Ex. PW1/D. The above-said body parts were taken to mortuary by the UP police officials for the purpose of postmortem examination. Thereafter, accused persons had pointed out the place where they had committed murder on 17-06-2011 i.e. 2 nd Floor of H. No. E- 6/37A, Sunlight Colony, Delhi. On the next day, at the instance FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 3 of 70 of accused Jamir, weapon of offence i.e. one gandasa and two chhuris were recovered from the house of one Kallan, which were seized vide seizure memo Ex. PW21/6. Thereafter, at the instance of accused Jamir, one key of motorcycle, which was used in the commission of crime to throw away the bags of dead body, was recovered, which was lying over the TV in his room. One mattress lying in the room of the accused persons was also taken into possession, upon which deceased Salim was lying when he was murdered as claimed by the accused Jamir, and one piece thereof was taken as sample for comparison whether any blood stain was available therein or not. The above said mattress and sample thereafter were seized vide seizure memo Ex. PW21/8. Thereafter, at the instance of accused Jamir, one underwear of violet colour having various white colour stripes which had been worn by him at the time of incident was recovered from almirah of his room, which was seized vide seizure memo Ex. PW21/9. On the pointing out of accused Jamir, the motorcycle along with two ropes which was used by the accused in disposing of the dead body of deceased was seized vide seizure memo Ex. PW21/10. Thereafter, 7 parts of body of deceased were brought from the mortuary at Ghaziabad, where postmortem was conducted, for the purpose of DNA analysis, which were seized vide seizure memo Ex. PW17/3. Identity of the accused was also established by DNA report. Thereafter, on 22.06.2011 during PC remand, accused Jamir got recovered burnt clothes of deceased from a place which was situated at a distance of 15 meters from the place of recovery of body parts i.e. head, leg, arms of deceased. The burnt clothes of deceased were seized vide seizure memo Ex. PW21/12.

FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 4 of 70

3. On 06-08-2011, place of offence i.e. house of accused persons at E-6/37, Sunlight Colony, Delhi was got inspected through FSL expert namely Umesh Kumar Mishra. Some blood stains on the bed which was lying in the room of accused were detected. Blood was scratched from the bed and seized vide seizure memo Ex. PW29/D.

4. On 01-09-2011, subsequent opinion Ex. PW3/C with regard to use of recovered weapon of offence in killing of deceased was obtained from FSL expert doctor D. K. Jain.

5. On 08-09-2011, sealed parcel containing 7 pieces of bones of deceased was sent to FSL Rohini along with sample seal of MMG Hospital, Ghaziabad. During the course of investigation, it was discovered that one mobile SIM connection no. 9953677454 was being used by accused Rajia, one another mobile having SIM no. 9818326314 was being used by accused Jamir and one mobile phone SIM no. 9289649282 was being used by the deceased. The CDRs of the above-stated numbers were called from the concerned network service provider.

6. On 06-07-2012, the above-stated burnt clothes of deceased were subjected to TIP proceedings wherein the wife of deceased namely Smt. Farah Begum correctly identified the clothes.

7. During investigation, brother of deceased namely Naim had told the IO that his brother i.e. deceased was also using one secret mobile phone no. 9599341566. Upon analysis of the CDR of phone of accused persons as well as of deceased, it was transpired that phone used by accused Rajia was in constant touch with phone of deceased. On the date of incident also, accused Razia had made call to deceased Saleem and Saleem had also made call to accused Rajia.

FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 5 of 70

8. During trial, biological and serological reports prepared by Dr. Seema Nain was obtained wherein it was opined that torso, legs, head and hands, which were recovered during investigation were of one dead body. Human blood was also found on the burnt clothes of deceased, plastic bag (in which clothes of deceased were kept), belt of deceased, weapon of offence i.e. Gandasa. After completion of necessary formalities, chargesheet was filed in the court of Ld. Ilaqa Metropolitan Magistrate. COMMITTAL

9. After taking cognizance and compliance of section 207 Cr. PC, present case was committed to the court of sessions vide order dated 26-09-2011 of ld. MM/(NE)/KKD. Thereafter, the then Ld. District and Sessions Judge, KKD Courts allocated this case to the ld. Predecessor of this court.

CHARGE

10. On the basis of facts emerging from the chargesheet and after hearing the arguments, Ld. Predecessor of this court framed charges against both the accused persons vide order dated 19-01- 2013 for the offences punishable u/s 120B/364/302/201 of IPC, to which both the accused persons pleaded not guilty and claimed trial. Thereafter, prosecution got examined as many as 31 witnesses.

PROSECUTION EVIDENCE

11. PUBLIC WITNESS/ EYE WITNESS

(i) PW1 Naim deposed that deceased Salim was his younger brother. He was residing with them at E-6/320, Gali no. 4, Sunlight Colony, Old Seemapuri, Delhi. His brother Salim was having a shop of garment at Gandhi Nagar. He was having a godown in the house of Jameer. PW1 had correctly identified FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 6 of 70 accused Jameer. He further deposed that house of Jameer is located on the backside of their house in the another street. He did not remember the house number of Jameer. He testified that on 17.06.2011, his brother Salim had left home around 3.30 pm and thereafter he did not return home. His father had lodged missing report on 18.06.2011. They searched for his brother Salim at all possible places but he was not found. During search they came to know from some persons that accused Jameer was suspecting his brother for having relations with his wife Razia. PW1 had correctly identified accused Razia. On 20.06.2011, his father had lodged FIR suspecting Jameer. His father fell ill. He remained present in the police station. After lodging the report, he along with 3-4 police officials reached the house of Jameer. One lady police officer was also with them. The house of Jameer was found locked. Thereafter, they reached Seemapuri Golchakkar while searching Jameer. One informer informed the IO Inspector K.S. Rawat about the presence of Jameer and Razia near Apsara border. Accordingly, they reached Apsara border. He noticed presence of accused Jameer and Razia at Apsara Border near liquor shop. Both tried to run away from the spot but they were overpowered by the police. He was directed to remain separate by the police. The police officials started questioning both the accused. After about 1-1.15 hour, he was called by the police and he was informed by the police that his brother had been murdered and his body had been cut into pieces by Jameer. He conveyed this fact telephonically to his relations also. Thereafter, he along with his relatives, police officials and both the accused persons Jameer and Razia went to Indirapuram, Ghaziabad. One school in the name of St. Francis was there.

FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 7 of 70 After reaching there, accused Jameer led the police party and pointed out a place saying that trunk of dead body of Salim was lying there in a plastic bag. That place was in front of the road. Police officials opened the said bag. He saw that there was trunk of dead body in that plastic bag. IO of this case informed the UP police in this regard. The police officials prepared the site plan of that place where dead body was lying. Media persons and news reporters also reached there. Police officials from UP police also reached the spot. IO of this case prepared site plan of the place from where gunny bag was lying which is Ex. PW-1/A. He became very perplexed. He claimed that he had signed some documents but he did not recollect what it was. However, he could identify his signature on that document. Recovery memo of trunk of Salim was proved as Ex.PW-1/B. Thereafter, accused Jameer led the police party to a place near NH no. 24. At the instance of accused Jameer police recovered a plastic bag in which head of his brother Salim was found. At that stage PW1 started weeping bitterly. He claimed that police prepared site plan of that place which is Ex. PW-1/C. Police recovered the plastic bag containing head of his brother vide seizure memo Ex. PW- 1/D. UP police officials prepared punchnama of the recovered body pieces. The punchnama is Ex. PW-1/E. His relatives Kadim, Raja, Suheb and Baney Miyan had also reached that place. Photographs of the places from where gunny bags containing pieces of dead body were recovered, were taken. He identified the photographs placed on judicial record which are of the same places from where gunny bags containing pieces of dead body of his brother were recovered which are marked PW1/A1 to A14. After postmortem examination which was got FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 8 of 70 conducted by UP police, he had taken the remains of dead body of his brother and performed last rites.

In his cross-examination, he affirmed that it was emanating a very strong foul smell and maggots had set in. He denied the suggestion that the smell was so strong that even a person standing on the other side of the road could smell. Even the persons who would have been traversing the service land would not have felt that smell. He denied the suggestion that immediately on reaching the place, the police took out the sac and placed it on road. He volunteered that both accused were leading in front and took them to the sac. They remained at the place where sac was found for around 1 ½ to 2 hours. Within 10 minutes, that sac was opened. He could not tell how decomposed the body was because he was not able to look at that body but it was infested with maggots.

(ii) PW2 Sh. Naaj Miyan is the father of the deceased. He deposed that Mohd. Salim was his son. Salim was having a garment shop at Gandhi Nagar. On 17.6.2011, at about 3.30 p.m., his son Salim left home. Thereafter, he did not return. He tried to contact him telephonically. Mobile phone of Salim was ringing but none responded and thereafter after about five minutes, the phone was switched off. He had rung Salim around 4 p.m. They searched Salim in their relations and other places but he was not traceable. They became anxious. On the following day, he lodged missing report about Salim with the police at about 5-6 p.m. They kept on searching Salim. During search, they came to know that one Jamir was suspicious about relations of his wife with Salim. PW2 had correctly identified accused Jamir. Thereafter, they went to the house of Jamir which is located on the back side FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 9 of 70 of their home in another street No.3. Accused Razia responded and opened the door and only responded that Salim was not there. He came to know that Salim had taken a premises in the house of accused Jamir which he was using as godown. He came to know that this godown was taken by his son Salim two days ago. He sensed something unusual on face of Razia and he became suspicious. He further deposed that on 20.6.2011, he visited police station and lodged report raising suspicion on both the accused Jamir and Razia. His son was wearing yellow colour clothes when he left home but he did not recollect exactly at that time. He stated that the wife of Salim may tell exactly. PW2 proved the report lodged by him as Ex.PW2/A. One Kalim and some other persons had accompanied him when he had gone to lodge the report. After lodging the report, he became very sick and his condition deteriorated. He did not know what had happened thereafter on that day. On the following day, when his condition became normal he was told by his children that Salim had been murdered by Jamir and Razia.

In his cross-examination, he denied the suggestion that since four years he used to take the room of Jamir on rent during winter season and he pressurized Jamir to sell that room to him forever. He denied the suggestion that the matter concerning suspicion raised by accused Jamir concerning illicit relations of his wife with his son is false. He further denied the suggestion that no person had informed him regarding this fact. He further denied the suggestion that no such fact had come to his notice on 18.6.2011 i.e. why he did not lodge report in P.S. on that very day. He further denied the suggestion that he had lodged complaint Ex.PW2/A falsely. He denied the suggestion that he FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 10 of 70 had falsely implicated the accused persons to grab his house. He volunteered that he was already having three houses. He denied the suggestion that his son Salim was having enmity with several persons in business connection. He denied the suggestion that someone else had committed murder of his son Salim.

(iii) PW4 Farha Begum is the wife of the deceased. She deposed that her husband was into a garment business and used to supply garment shops in Gandhi Nagar. She had been married to his husband Salim about 3½ years prior to his death. She was a housewife. On 17.06.2011, it was a Friday, when at around 03.30 pm her husband had left home. When her husband had left home, he was carrying a black colour purse. Her husband was wearing two t-shirts one half sleeves greenish black colour and above that t-shirt she was wearing yellow colour t-shirt. He was also wearing a blue colour jeans trouser. Her husband's purse had a few slips relating to his business regarding supplies and payments and keys of his motorcycle. Thereafter, her husband did not return home. His usual time of returning home was 09.00 p.m. She became worried and tried calling his mobile but it was switched off. She could identify the clothes which her husband was wearing on that day because it was with her own hands that she had given these clothes to her husband to wear. Her husband was wearing black colour sandals and black colour belt. She could also identify the articles about which had deposed. She further deposed that on 23.06.2011, she came to know that dead body of her husband had been found in pieces. PW4 had correctly identified sandals, belt and pieces of clothes to be the part of t-shirts to be the ones worn by the deceased the last time he had left his house. The sandals are Ex.P-4, belt is Ex.P-5, one FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 11 of 70 half burned t-shirt of greenish colour stated by the witness to be worn by the deceased as an undergarment is Ex.P-6. The other piece of cloth which was of yellow colour and in burned condition was identified by the witness to be worn by the deceased as Ex.P-7; one purse as Ex.P-8; the motorcycle key as Ex.P-9 and two keys with key ring as Ex.P-10.

In her cross-examination, she deposed that her husband used to keep his goods in a room in the house of Jamir i.e. accused. Police had met her on 23.06.2011 and had recorded her statement. Police never took her to the house of Jamir. She did not make any inquiries in the locality to find out whether on that day, her husband had gone to Jamir's house on that day or whether he was seen in that locality on that day.

(iv) PW5 Raja is the cousin of deceased. He deposed that on 20.06.2011, at afternoon, he received telephone call of his cousin Naeem. Thereafter, he reached at Apsara Border. Thereafter, he received a call when Naeem told him that they were going to Indira Puram and he also reached Indira Puram. He was told to reach near a school at Indira Puram whose name he could not recall. When he reached that school, he saw accused Jamir and his wife who walked in front of police and he and Naeem alongwith police followed them. He could not tell whether there were other relatives of him because there was a crowd and he was very nervous. Then, at the bottom of the slope on the left side of road in front of school, a plastic bag was recovered and from the bag, a torso of a male was taken out with its legs, head and hands missing. Police then prepared certain documents related to that recovery. Thereafter, they went towards High way no. 124.

FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 12 of 70 On court query at to what he meant by highway no. 124, PW5 replied that the highway that goes towards Noida. On further clarification sought by the court with regard to no. Of highway, he stated that it could be 24.

PW5 further deposed that on that highway, at around 03 kms from the place of first recovery, from a ditch near the road, another bag was recovered. That bag was found containing hands, legs and head. The police again prepared documents regarding that recovery. These body parts were then taken to a place where the post mortem on dead bodies was conducted. This place is near Hindon river. PW5 identified his signatures on shown panchnama Ex.PW1I/E and stated that this document was prepared at the time of recovery of body parts.

In cross-examination of Ld. Addl. PP for the State, he affirmed that the torso which was recovered from Indira Puram was recovered from a place in front of St. Francis School, Abhay Khand, Indira Puram.

In his cross-examination by ld. Defence counsel, he affirmed that face/ head had also decomposed and was having maggots. The smell was so foul that one would not like to have look on it. Few of the hair from the scalp had fallen away. He did not look at the face very minutely and thus cannot say that whether eyes were missing or not. He denied the suggestion that he never joined investigation of this case on the dates, time and place mentioned by him.

(v) PW6 Sh. Kallan was the person from whom, as per the prosecution case, accused Jamir has procured weapons employed in commission of offence i.e two chhuries and a gandasa. However, PW6 has failed to support the case of prosecution and FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 13 of 70 thus, declared hostile.

(vi) PW12 Sh Lal Miyan is an independent public witness got examined by the prosecution. He deposed that he knew the accused persons as they were resident of Sunlight Colony where his nephew Salim (deceased) was running a godown for his cloth business. He had taken this premises on rent about a year prior to the date of incident. He had been to that godown 8 to 10 times. The accused persons were residing on the floor upon the godown. The access to premises of accused was through the godown under the tenancy of deceased. On 17.06.2011, at around 3/3.30 p.m, he was returning after offering Namaz, he saw Salim standing at the corner of the street in which the house of Jamir was situated. He had a chat with him and he told that he was going to his house at Jamir's house. Thereafter, he had not seen Salim. About 15 days prior to the 17.06.2011, he had seen accused Sabbo and Salim talking to each other in the market as well as gali a few times. He then talked to Salim's father and told him about this fact and that he suspected some illicit relations between Salim and Shabbo. On 20.06.2011, at 12 a.m. (21.06.2011), his son Raja came home and told him that Salim had been murdered. On 23.06.2011, he was at the house of his brother i.e. father of deceased. Police came there and recorded his statement.

In his cross-examination, he denied the suggestion that he had not seen Shabbo and deceased talking in market. He further denied the suggestion that he had been introduced as a witness by the police later on just to frame accused in this case. He denied the suggestion that he had not met the deceased Salim on 17.06.2011 on the alleged time and place. He denied the FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 14 of 70 suggestion that he had been deposing falsely at the instance of the father of the deceased who is his brother.

(vii) PW22 Banne Mian is another cousin of deceased. He deposed that on 20.06.2011, at about 3.30 or 4.00 P.M., he received phone call from his cousin Naeem and he told him that dead body of Salim was found near one school whose name he did not remember. The said school was on highway at Ghaziabad. He reached in front of aforesaid school where U.P police officials and Delhi Police officials met him. He reached at place of recovery of torso which had been recovered from the place which was after crossing the road and slope from aforesaid school. The torso was in a plastic bag which had been opened in his presence. Several public persons were present there. PW22 pointed out towards accused namely Jamir who was present in court saying that he was also present near the place of recovery near the vehicles and at that time he was not having beard. At that time, one lady wearing burka was also with accused Jamir and one lady Constable was also present. Ghaziabad police and Delhi police completed proceedings at a place where torso in bag was recovered. He had identified torso of Salim before police. He was his son in law in relation. Thereafter, accused Jamir who was sitting in police vehicle led to police and them one and half kilometer ahead from place of torso and he pointed out towards one bag. From that bag, head, arms and legs of Salim were recovered where U.P police and Delhi Police had completed some proceedings. U.P police officials had completed panchnama of both the aforesaid places. He, Raja, Naeem and two other persons had signed the panchnama. Panchnama Ex.PW1/E which runs upto 3 sheets was shown to witness. On seeing the same, FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 15 of 70 witness admitted his signatures therein. He further claimed that thereafter, parts of dead body were sent for postmortem examination at Ghaziabad.

In his cross-examination, he deposed that he had identified torso of Salim before police. He was his son-in-law in relation.

(viii) PW28 Shoaib is another public witness. He deposed that in the year 2011 and before, he was residing alongwith his family on rent at H.No. E-66, Shaheed Nagar. On 20.06.2011, he had received phone call of Naeem and he told him that dead body of Salim was found in the area of Abhay Khand, Indirapuram, Ghaziabad, U.P. He alongwith Kadim reached at a place near St. Francis School, Abhay Khand by motorcycle. One Raja, Banne Mian, and Naeem had met them there. Police officials were also present in front of St. Francis School, NH-24, Ghaziabad, U.P. From the place at some distance from slope in front of aforesaid school, torso of Salim was found. Some public persons were also present there. Both the accused persons namely Jamir and his wife present in court were also present there. Remaining part of aforesaid dead body was also recovered by Police at a distance of 3-3½ km towards NH 24 from aforesaid school. Police officials had completed proceedings pertaining to aforesaid recovery. UP police officials had prepared documents pertaining to recovery of torso and other part of dead body of deceased. He had put his signatures at point D on panchnama Ex.PW1/E which runs upto four sheets. Aforesaid parts of dead body were sent to mortuary of concerned hospital of District Ghaziabad. He had attended burial of aforesaid dead body on next day.

Witness was cross-examined but nothing material came out in his cross-examination.

FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 16 of 70

12. FORMAL/ EXPERT WITNESSES

(i) PW3 Dr. D.K. Jain is the doctor from Combined District Hospital, who had conducted the postmortem of the deceased whereby the cause of death was opined as hemorrhagic shock due to ante mortem injury. The postmortem report prepared by him was proved as Ex.PW3/A. PW3 has also proved his subsequent opinion dated 01.09.2011 wherein he opined that the weapons i.e. one gandasa and two knives under examination may be used in cutting the body of Salman into 7 pieces. The subsequent opinion was proved as Ex.PW3/C. PW3 has duly identified the weapons examined by him.

In his cross-examination, he denied the suggestion that he had expressed his opinion on the asking of police without application of mind. He denied the suggestion that he had not seen the weapons of offence Ex.P1 to Ex.P3 and i.e. why he had not prepared any diagram. He denied the suggestion that he was deposing falsely. He denied the suggestion that he had not specialization in conducting postmortem. He had been conducting postmortem for last 4-5 years when he conducted postmortem in the aforesaid case.

(ii) PW7 Israr Babu is the Nodal Officer from Vodafone Mobile Services Ltd. He has brought the record pertaining to mobile No. 9953677454, which was issued in the name of Jamar Miyan s/o Masuk Ali. With regard to the above-stated mobile number, he has proved relevant customer application form as Ex.PW7/1; copy of subsciber identity proof which is a driving license as Ex.PW7/2; CDR(call detail records) from 10.06.2011 to 20.06.2011 as Ex.PW7/3; certificate u/s 65 B of the Indian Evidence Act with regard to computer generated record of CDRs FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 17 of 70 as Ex.PW7/4 and Cell ID Chart as Ex.PW7/5.

Witness was not cross-examined despite having given the opportunity.

(iii) PW8 HC Dinesh was the MHC(M) posted at PS Seema Puri at the relevant time. He has proved the entries with regard to the deposit of exhibits in the malkhana; dispatch of exhibits to FSL, and relevant road certificates. The record brought by him was proved as Ex.PW8/1 to Ex.PW8/19.

Witness was cross-examined but nothing material came out in his cross-examination.

(iv) PW9 SI Shakun Devi was the duty officer who has proved the factum of registration of present FIR as Ex.PW9/2; the endorsement made by him on the rukka as Ex.PW9/1.

Witness was cross-examined but nothing material came out in his cross-examination.

(v) PW10 Insp. Mukesh Kumar Jain was the official draftsman got engaged by the IO during the investigation of the present case. He has proved the scaled site plan of various places where parts of the dead body were recovered and clothes of deceased were recovered. The site plan is proved as Ex.PW10/1 to Ex.PW10/3.

Witness was cross-examined but nothing material came out in his cross-examination.

(vi) PW14 Sh. Gaurav Gupta was the Ld. MM who conducted TIP of recovered burnt clothes of deceased. As per his deposition, witness Farah Begum(wife of deceased) has correctly identified the burnt clothes of deceased during TIP proceedings held on 08.07.2011. The entire record pertaining to TIP proceedings conducted by him was proved as Ex.PW14/1 to FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 18 of 70 Ex.PW14/5.

Witness was cross-examined but nothing material came out in his cross-examination.

(vii) PW15 HC Ashok Kumar was the police official who deposited eight sealed parcels to FSL Rohini for analysis on 12.09.2011. He deposed correctly about the role performed by him.

Witness was not cross-examined despite having given the opportunity.

(viii) PW16 Vishal Gaurav is the Nodal Officer from Bharti Airtel Ltd. He has brought the record pertaining to mobile No. 9818326314, which was issued in the name of Jamar Miyan. With regard to the above-stated mobile number, he has proved its customer application form as Ex.PW16/1; copy of subscriber identity proof i.e driving license as Mark PW16/A; CDR(call detail records) from 10.06.2011 to 20.06.2011 as Ex.PW16/2; certificate u/s 65 B of the Indian Evidence Act with regard to computer generated record of CDRs as Ex.PW16/3and he has also brought fresh certificate u/s 65 B of Indian Evidence Act, which was proved as Ex.PW16/4.

Witness was not cross-examined despite having given the opportunity.

(ix) PW18 Retd. SI Mohar Pal Singh is the official of UP police who had conducted inquest proceeding upon receiving information about the recovery of body parts of deceased at in front of St. Francis School, Indira Puram, Ghaziabad. He has proved the panchnama prepared by him as Ex.PW1/E; photo of parts of deceased body (photonass) as Ex.PW18/2; report prepared by him to get the postmortem conducted as Ex.PW18/3;

FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 19 of 70 report prepared by Reserve Inspector District Police Line as Ex.PW18/4; sample seal document (namuna mohar) as Ex.PW18/5. Thereafter, he alongwith panch witnesses police official reached at the place towards west side slope in the area of green belt near Gaur Green Apartment, Shipra Mall from where another bag containing pieces of dead body of deceased was recovered. He conducted inquest proceedings at that place as well and prepared the photo of part of dead body (photonass) as Ex.PW18/6. Request for conducting postmortem addressed to CMO as Ex.PW18/7. Requests made to Reserve Inspector to send the parts of dead body for postmortem examination which are Ex.PW18/9 and Ex.PW18/10. He has also proved DD No. 39 dated 29.06.2011 recorded at PS Indira Puram as Ex.PW18/11.

In his cross-examination, he deposed that he had noticed one bag containing pieces of dead body at a place towards West side slope in the area of green belt near Gaur Green Apartment, Shipra Mall.

(x) PW23 Ct. Hafiz Khan is another police official from PS Indirapuram who assisted SI Mohar Pal Singh in conducting the inquest proceedings. He deposed on the same lines on which SI Mohar Pal Singh (PW18) had deposed.

Witness was cross-examined but nothing material came out in his cross-examination.

(xi) PW24 SI Ram Kumar Singh is also police official from PS Indirapuram who assisted SI Mohar Pal Singh in conducting the inquest proceedings. He deposed on the same lines on which SI Mohar Pal Singh (PW18) had deposed.

Witness was not cross-examined despite having given the opportunity.

FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 20 of 70

(xii) PW25 Ct. Ram Narain is also police official from PS Indirapuram who assisted SI Mohar Pal Singh in conducting the inquest proceedings. He deposed on the same lines on which SI Mohar Pal Singh (PW18) had deposed.

Witness was not cross-examined despite having given the opportunity.

(xiii) PW26 Sh. Neeraj Kumar was the police official who took the photographs at Abhay Khand, Ghaziabad where torso of the deceased was recovered. Photographs taken by him were proved as Ex.PW20/A-1 to Ex.PW20/A-14 and the negatives thereof were proved as Ex.PW26/A-1 to Ex.PW26/A-14.

Witness was not cross-examined despite having given the opportunity.

(xiv) PW30 Ms. Seema Nain is the Assistant Director, Biology, FSL. She was an expert from FSL, Rohini who had carried out biological and serological examination of exhibits which were seized during investigation. The exhibits which were seized are underwear (Ex.1), piece of mattress (Ex.2), burnt cloth piece of deceased (Ex.3a to Ex.3f), clothes of accused persons (Ex.4a to Ex.4c), weapons used in commission of offence i.e. one gandasa, two knifes, and one gauze cloth piece (Ex.5 to Ex.8). She proved her serological report as Ex.PW29/E-1 and biological report as Ex.PW29/E-2. As per her report, blood was detected on burnt clothes and on weapon of offence i.e. gandasa and two gauze cloth pieces described as blood stains prepared from bed. However, she could not detect blood on underwear. As per her report, blood was detected on exhibits 3a was dirty burnt piece of cloth described as burnt cloth, 3b was dirty belt, 3c was a pair of dirty burnt/ partially burnt sandals, 3d was one dirty keyring with FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 21 of 70 three keys, 3e was one dirty burnt/partially burnt purse, 3f was one dirty burnt/ partially burnt plastic bag, 4c was one dirty dupatta having few brownish stains, 5 one gandasa having dirty cloth on handle and 8 two gauze cloth pieces described as blood stains prepared from bed. However, blood could not be detected on Ex.1 underwear, 2 pm one dirty piece of cloth described as piece of gadda, 4a was dirty salwar, 4b was one dirty ladies shirt, 6 one all metallic knife described as big chhura and 7 one all metallic chhura. On serological examination, human blood was detected on exhibits 3a dirty burnt piece of cloth described as burnt cloth, 3b was dirty belt, 3f was one dirty burnt/ partially burnt plastic bag, 5 one gandasa having dirty cloth on handle and 8 two gauze cloth pieces described as blood stains prepared from bed, but these exhibits gave no reaction regarding blood group. She has correctly identified all the exhibits examined by her.

Witness was cross-examined but nothing material came out in her cross-examination.

(xv) PW31 Ms. Shashibala Pahuja is an FSL expert who had carried out DNA analysis of exhibit. She has proved her DNA report No. 2011/DNA-5114/1042 dated 30.10.2012. As per her report, she found that the allells from the source of exhibits 1a i.e. black stands of hair, 1b i.e. one broken skull with teeth, 1d i.e. lower jaw with teeth, 1e i.e. one long bone and 1f i.e. one long bone were similar and were found to be of single male origin.

Witness was cross-examined but nothing material came out in her cross-examination.

13. POLICE OFFICIALS

(i) PW11 SI E.S. Yadav was the In-charge of mobile crime team. He deposed that on 20.06.2011, he alongwith photographer FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 22 of 70 Ct. Neeraj and ASI Madan Lal, finger print expert reached at spot i.e. Opp. St. Francis School, Abhay Khand, Indirapuram, Ghaziabad about 8.30 p.m, on receiving information from Control Room. Insp. K.S. Rawat alongwith other police officials met them. Some public persons were also present there. They inspected the aforesaid spot where decomposed parts of dead body were lying in a plastic bag. He inspected the same, photographer took photographs. Thereafter, they inspected the parts of dead body which were lying in a bag at a place after a slope near green belt on NH-24, Indirapuram, Ghaziabad. Photographer had taken photographs of the part of dead body. He prepared SOC report and advised that postmortem of the dead body be got conducted. They left the spot at about 10 p.m. alongwith crime team staff. Witness admitted his signatures on SOC report as Ex.PW11/1 at point A. 14 photographs available on judicial file Mark A-1 to A-14 were shown to witness and he stated that these were photographs of the spots wherefrom the parts of dead body were recovered.

In his cross-examination, he deposed that he had specifically not mentioned words NH24 in his SOCR but as he had started from Abhaykhand and reached the green belt at NH24 where further body parts were recovered. He had stated in his SOCR that the area in which body parts were found was spread in 06 to 07 kms.

(ii) PW13 SI Vikas Kumar is the investigating police official who accompanied IO Insp. K.S. Rawat during investigation conducted on 20.06.2011 till the arrest of accused persons. He has correctly identified both the accused persons. He deposed on the same lines on which Insp. K.S. Rawat (PW29) has deposed FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 23 of 70 till the arrest of accused and consequent recovery of body parts of deceased at the instance of accused.

Witness was cross-examined but nothing material came out in his cross-examination.

(iii) PW17 SI Manoj is the investigating police official, who was assigned the task of collecting sealed parcel of bone sample of deceased from mortuary of district hospital Ghaziabad. He deposed correctly about the role performed by him.

Witness was cross-examined but nothing material came out in his cross-examination.

(iv) PW19 W.C. Sarda Rani is the investigating official who had accompanied the IO/Insp. K.S. Rawat during investigation conducted by him on 20.06.2011 till the arrest of accused persons. He has correctly identified both the accused persons. He deposed on the same lines on which Insp. K.S. Rawat (PW29) has deposed till the arrest of accused and consequent recovery of body parts of deceased at the instance of accused.

Witness was not cross-examined despite having given the opportunity.

(v) PW20 Ct. Manjeet is the investigating police official who had accompanied the IO/Insp. K.S. Rawat during investigation conducted by him on 20.06.2011 till the arrest of accused persons. He has correctly identified both the accused persons. He deposed on the same lines on which Insp. K.S. Rawat (PW29) has deposed till the arrest of accused and consequent recovery of body parts of deceased at the instance of accused.

Witness was cross-examined but nothing material came out in his cross-examination.

(vi) PW21 HC Shokender is the investigating police official FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 24 of 70 who had accompanied the IO/Insp. K.S. Rawat during investigation conducted by him on 20.06.2011 till the arrest of accused persons. He has correctly identified both the accused persons. He deposed on the same lines on which Insp. K.S. Rawat (PW29) has deposed till the arrest of accused and consequent recovery of body party of deceased.

Witness was cross-examined but nothing material came out in his cross-examination.

(vii) PW27 Ct. Sewa Singh is the investigating police official who had accompanied the IO/Insp. K.S. Rawat (PW29) during investigation conducted by him on 20.06.2011 till the arrest of accused persons. He has correctly identified both the accused persons. He deposed on the same lines on which Insp. K.S. Rawat (PW29) has deposed till the arrest of accused and consequent recovery of body party of deceased.

Witness was cross-examined but nothing material came out in his cross-examination.

(viii) PW29 Insp. K.S. Rawat deposed that on 20.06.2011, he was posted at PS Seemapuri as Inspector Investigation. On that day at about 11 a.m., rukka Ex.PW 9/3 and copy of FIR Ex.PW 9/2 were delivered to him by DO ASI Shakun Devi for investigation. It came into his notice from the rukka that endorsement for registration of FIR was made by SHO Inspector Jaipal Singh for getting the FIR registered for offence u/s 364 IPC and investigation may be assigned to him. Aforesaid FIR was registered on the basis of complaint made by complainant Nazmia dated 20.06.2011. After going through the complaint of the complainant Ex.PW2/A, it came into his notice that son of the complainant Mohd. Salim aged about 25 years left his residence FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 25 of 70 at about 3.30 p.m. on 17.06.2011 and he did not return. It also came into his notice that one missing report for Mohd. Salim was lodged at PS on 18.06.2011 vide DD no.64 B. It also came into his notice from the complaint that Mohd. Salim was running his work/business in one tenanted room of house no.E-6/37, Sun Light Colony of accused Zamir. Complainant had suspected that his son Mohd. Salim was abducted/confined by Zamir as Mohd.Salim had illicit relation with wife of Zamir. Complainant Naaz mia was interrogated by him at PS. He also told the same facts which were mentioned in the complaint Ex.PW 2/A. He constituted a raiding team comprising of complainant alongwith his son namely Naim, SI Vikas, HC Shokender, Ct. Seva Singh, Ct. Manjit, W/Ct., whose name she did not remember at PS and started investigation to find out any clue about missing/abducted person Mohd Salim. Their team left the PS and reached at work place of Mohd. Salim i.e. room of H.No E-6/A-37, Sun Light Colony, Old Seemapuri, Delhi. Main gate of ground floor of house was found locked. There was separate staircase to go to the first and second floor of the house. Their team reached at first floor of the house. Complainant and his son pointed out one room of first floor of the house saying that it was in tenancy of Mohd. Salim and same was being used as godown to run his business/work. He was attached with cloth business. Door of the room belongs to Mohd. Salim was also locked from outside. Thereafter, they visited second floor of the house and found room of Jamir locked from outside. He made inquiry to procure the presence of Jamir and his family as both were not available in their room. He made inquiry to find out any clue about missing/abducted person Mohd. Salim, but no clue could come FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 26 of 70 forward in the nearby area. Persons interrogated by him had not properly responded about the presence of Jamir. During search of Jamir as well as missing/abducted Mohd. Salim, he reached at Seemapuri Gol Chakkar at Old Seemapuri and made search of them. Complainant had gone to his house from the Sun Light Colony. During search at about 1.00 p.m. or 1.30 p.m., secret informer met him. He briefed him about the facts of the case. He(the secret informer) told him that Jamir and his wife had been seen by him at Afsara Border and they were in wait of bus for going outside Delhi. He asked 2-3 passers-by available at Gol Chakkar to join the raiding team, but none became ready and went away without disclosing their names and addresses. Their team proceeded to Afsara Border at the instance of secret informer. On reaching at some distance prior to wine shop, they took their position there. Secret informer pointed out towards Zamir and his wife who were standing at a distance of 10/15 metres away from their position. Son of complainant who accompanied them had identified accused Jamir and his wife Smt. Razia @ Sabbo. They over-powered the accused persons who were interrogated one by one. The accused persons did not co-operate him in investigation as they did not tell him about missing/abducted person. He remained busy in investigation with them for long time then accused Zamir told him that he suspected Mohd. Salim had an illicit relations with his wife and due to this reason, he alongwith his wife made a plan to commit murder of Mohd. Salim on 16.06.2011 as he was facing defamation in the society due to aforesaid illicit relations. In execution of plan, accused Zamir arranged weapon from the house of Kallan Qureshi and brought weapon (two chhuri and one meat cutter i.e. FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 27 of 70 gandasa) on 17.06.2011. In execution of aforesaid plan, accused Zamir called Mohd. Salim through his wife. Mohd. Salim came at around 4/4.15 p.m.on 17.06.2011. He was taken by him and his wife in their room at 2nd floor of the house. There they committed murder with aforesaid weapon. They had also cut the dead body of Mohd. Salim in pieces. In the process of causing injury to Mohd Salim, Zamir had also sustained injuries on his hand and thigh. They put torso of dead body of Mohd Salim in one plastic bag and other parts of dead body i.e. both arms and legs in another bag and the said bag was again put in another bag. Bags were tied and they concealed the same inside the bathroom of the house. They cleaned the floor of the room in question. They also washed the mattress, bed sheet and wearing clothes to remove the blood stains of the deceased. They had also cleaned the weapon of offence. Accused Zamir took the aforesaid bags one by one containing parts of dead body in the area of Indrapuram, Ghaziabad, UP by his motorcycle to throw them with an intention to destroy the evidence. Immediately, facts which came into his notice during course of interrogation of both the aforesaid persons, he passed on the same to SHO and SHO directed him to arrest them. He arrested both the accused persons vide their arrest papers Ex.PW13/1 and Ex.PW13/2 of accused Zamir, and Ex.PW13/3 and Ex.PW13/4 of accused Sabbo @ Razia. He further deposed that whatsoever, accused told him during investigation after their arrest, he recorded the same in their disclosure statements Ex.PW13/5 and Ex.PW13/6 respectively. Personal search of lady accused was taken by W/Ct. Sharda on his direction. PW29 has correctly identified both the accused persons. He further deposed that it was told to him by FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 28 of 70 accused that they could get recovered bags containing parts of dead body from the place in front of St. Francis School, Abhaykhand, Indrapuram and from the place in the area of Shakti Khand near Green Belt which goes towards NH-24. When he had constituted raiding team, HC Shokender had joined them on his request. Earlier, he was dealing missing report bearing no.64B dated 18.06.2011 which was delivered to him by HC Shokender alongwith carbon copy of message form running into 3 sheets and missing report as Ex.29/A and carbon copy of missing forms as Ex.PW29/B-1, Ex.PW29/B-2 and Ex.PW29/B-3 respectively. In pursuance of disclosure statement, both the accused led their police team and brother of deceased to place for recovery. They reached in the area of Abhay Khand at the instance of accused Zamir. They stopped their private car and motorcycles near St. Francis School. Accused Zamir led them at a place in front of St. Francis School, Abhay Khand, Indrapuram, Ghaziabad and he pointed out one place after crossing the slope which was at a distance of 15 meters from the main road. One plastic bag was lying near the bushes which was pointed out by accused Zamir and same was brought on plain surface and untied it. One torso was found in a double bags which was identified and claimed by brother of Mohd. Salim. They immediately informed to UP police to conduct the inquest proceedings. He further deposed that he remained in wait of arrival of U.P. Police to complete the inquest proceedings for about 30-45 minutes. But U.P. police official did not come at spot. Then he reached at Police Post Indirapuram (Ghaziabad) for the aforesaid purpose. He lodged DD entry there in this regard. Copy of DD No.53 dated 20.06.2011 is Ex.PW18/1. One Sub Inspector and 3-4 constables FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 29 of 70 accompanied him to the spot to complete the inquest proceeding. SI Mohar Pal Singh inspected torso and completed inquest proceeding. PW29 was not joined in the inquest proceeding conducted by aforesaid SI. He further claimed that he had taken torso in his custody. Crime team official was called by him from Delhi. They reached at spot. SI E.S. Yadav/Crime Team In-charge and Photographer Const. Neeraj had also inspected the torso and site. Const. Neeraj had taken photographs of torso. He prepared seizure memo cum pointing out memo pertaining to recovery of torso as Ex.PW1/B. He had also prepared site plan of the aforesaid place as Ex.PW1/A. Accused persons led them for recovery of other part of body of deceased in the area of Shakti Khand, 3-4 kilometer ahead from the recovery of torso. They reached at green belt situated on the way to NH-24 in the area of Indirapuram, Ghaziabad. The accused persons took them towards down side upto 10-12 meter from the green belt and pointed out one place. They further pointed out towards one plastic bag (katta) from which bad smell was coming out. At that time UP Police Official and Delhi Police Official from crime team were also with them. At that time the said bag was already opened and a part of body were visible to him. Left leg of the dead body was visible from the aforesaid bag. He lifted aforesaid bag and found containing left leg, head, right arm, right forearm, left arm, small piece of thigh. Same were identified and claimed by Naeem to be the parts of dead body of his brother Saleem. Photographer Const. Neeraj had taken photographs of aforesaid parts of dead body and bag. Crime Team In-charge also inspected the same. He prepared pointing out cum seizure memo of aforesaid parts of dead body as Ex.PW1/D. He also prepared site plan of the FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 30 of 70 aforesaid place of recovery of parts of dead body. Same is Ex.PW1/D. Photographs Ex.PW20/A-1 to Ex.PW20/A-7, Ex.PW20/B-1 to Ex.PW20/B-7 available on file were shown to witness. On seeing the same, PW29 submitted that these were the photographs which were clicked by Const. Neeraj and same as depicting torso with bag and parts of dead body with bag and places from there recovery was effected. SI E.S. Yadav prepared SOC report and had advised to get postmortem examination conducted to ascertain the cause of death. Same is Ex.PW11/1, same was delivered to him. UP Police Officials had taken aforesaid parts of dead body in his custody and they took the same to concerned mortuary for postmortem examination. He recorded statement of Naeem, SI E.S. Yadav, Const. Neeraj (photographer). Thereafter, both the accused persons led them at spot where murder had taken place i.e. H.No. E-6/37A Sunlight Colony, Old Seemapuri, Delhi. The police officials reached at place of murder i.e. house no. E-6/37A Sunlight Colony, Old Seemapuri at the instance of both the accused persons at about 10:30 pm on 20.06.2011. Accused persons led them at second floor of the aforesaid house and pointed out that room where they had committed murder of Mohd. Salim. He prepared pointing out memo at the instance of both the accused persons of aforesaid place, as Ex.PW21/I and Ex.PW19/I. Thereafter, he had prepared site plan of the aforesaid place at the instance of both the accused persons as Ex.PW13/7. Thereafter, they left the spot due to late night hours and reached at PS. Both accused persons were put in lock up and he recorded statement of SI Vikas, HC Shokender, Lady Const. Sharda u/s 161 Cr.P.C. He narrated the aforesaid facts of investigation to SHO. He deposited personal search FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 31 of 70 articles which had been found in possession of both accused persons to MHC(M) at PS. Both the accused persons were sent to hospital for their medical examination in custody of two police officials including one lady constable after taking them out from lockup. He further deposed that on 21.06.2011, he again started investigation of present case. It was told to him by lady constable from GTB hospital that doctor had admitted one accused namely Smt. Razia as she was feeling unwell. Accused Zamir was brought at PS from GTB hospital and he was put in lockup by the constable. Accused Zamir was produced before Duty MM and he was taken on PC remand for one day and he was brought at PS. On the same day three days JC remand was also granted for co- accused Razia by the Ld. MM when she was admitted in GTB hospital. He had deputed lady police official for the custody of aforesaid accused Razia in GTB hospital. In pursuance of disclosure statement, accused Zamir led them to New Seemapuri, Delhi at the house of one Kallan to get recovered weapon of offence i.e. one Gandasa and Two Chhuries. The team of police officials reached at the house of Kallan at the instance of accused Zamir at about 1-2 pm on 21.06.2011. Kallan met them at his house, he was interrogated by him. Accused Zamir was also identified by Kallan. He had presented facts before Kallan which had been disclosed to him by the accused pertaining to weapon of offence. Kallan took out one Gandasa and Two Chhuries from the Perchhatti of his room which was at the ground floor of his house. Same were checked by him. He took measurement. Gandasa was made of iron and total length of Gandasa was 29 cm. Its width was 8.8 cm. One Chhuri was 30 cm long and its width was 2.5 cm, it was also made of iron. Another Chhuri was FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 32 of 70 35.7 cm long and its width was 4.2 cm, it was also made of iron. He prepared sketches of aforesaid recovered weapons which are Ex.PW21/5, Ex.PW21/3 and Ex.PW21/4 respectively. He had converted aforesaid three weapons in three separate cloth parcels which were sealed with the seal of 'KSR' and seized vide joint seizure memo Ex. PW21/6. Thereafter, they had gone to the house of accused Zamir at E-6/37-A Sunlight Colony, Old Seemapuri, Delhi. From there he got recovered one key of motorcycle from his house. The said key belonged to his motorcycle which had been used in crime to throw away the parts of dead body. Accused had lifted key of his motorcycle from the top of his TV which was lying in his room. He checked the key of motorcycle and seized the same vide seizure memo Ex. PW21/7 in presence of SI Vikas and HC Shokender Singh. The aforesaid key was not kept in a sealed (gadda) lying on the bed inside the room of accused persons was also taken into possession. He had also taken out one piece of gadda as sample for the purpose of comparison whether any blood stain is available there or not as same had already been washed off. He prepared two sealed parcels pertaining to mattress and sample of mattress which were sealed with the seal of 'KSR' and seized vide seizure memo Ex.PW21/8. Accused Zamir produced his underwear of violet colour having various white stripes from his Almirah of his room which had been worn by him at the time of incident. The said underwear was already washed off by the accused person. He took the same into possession vide seizure memo Ex.PW21/9 after converting the same into parcel and sealed with the seal of 'KSR'. Thereafter, they went to the car parking for taking into possession the motorcycle of accused FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 33 of 70 Zamir as same had been parked by him in parking at a some distance from his house. On the pointing out of motorcycle by accused Zamir, he took into possession the motorcycle (CRD of Red Colour bearing Registration no. DL-7S-Y-5172 again said 7251). Two ropes were also recovered from the place under the seat of motorcycle at the instance of accused as same had been kept by him there. Both the ropes had been used to tie the back containing part of body of deceased when same was taken for throwing. Out of which one rope was about 61 cm, made of Nylon having hook on both sides while the other rope was about 68 cm, having knot on one side. This rope was made of Jute and which was bounded by three separate rope. He prepared one sealed parcel for both the aforesaid ropes which was sealed with the seal of 'KSR'. He seized motorcycle and sealed parcels containing both the aforesaid ropes vide seizure memo Ex.PW21/10. Thereafter, they returned to PS, accused Zamir was put in lockup. Sealed parcels and other case property were deposited with MHC(M) in intact position. On the same day, he sent SI Manoj Kumar to mortuary at Ghaziabad to bring the sealed parcels from there pertaining to postmortem examination of deceased. On the same day, he returned to PS and delivered one sealed parcel containing seven parts of body of deceased as sample for the purpose of DNA analysis. He seized aforesaid sealed parcels on production of SI Manoj at PS vide seizure memo Ex.PW17/3. He deposited aforesaid sealed parcels containing part of bone of deceased Salim to MHC(M) in intact condition. He recorded statement of SI Manoj Kumar in this regard. On following day, accused Zamir was produced before concerned court and from there he was again taken on PC for one FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 34 of 70 day. Accused Zamir was brought at PS. He was again interrogated by him. Accused again led them at Shakti Khand, Indirapuram Ghaziabad (UP) for the purpose of recovery of clothes of deceased which had been thrown by him earlier. Accused pointed out place at a distance of about 15 meter away from the place of recovery of parts of the body i.e. head, leg and arms. He checked the aforesaid place pointed out by accused where he noticed burnt clothes pieces which were identified by accused Zamir saying that these belongs to deceased which had been put in fire by him earlier. He checked the aforesaid burnt clothes / articles and found one pair of partly burnt black sandal, one partially burnt T-shirt, Baniyan, one Jeans with leather belt, one Wallet containing some papers, one key ring having three keys and one partially burnt plastic bag. He lifted the same and converted the same in a polythene bag and thereafter, said plastic bag containing aforesaid articles was converted in a cloth parcel which was sealed with the seal of 'KSR' and seized vide seizure memo Ex.PW21/12. They returned to PS and deposited the sealed parcels with MHC(M) in intact condition. He recorded statement of SI Vikas, HC Shokender at PS. Accused was put in lockup. On next day i.e. 23.06.2011 accused Zamir was produced before court and from there he sent to JC on his written request. On the same day, he had also recorded statement of UP police officials. They remained busy in the inquest proceedings in this case. He had also recorded statement of Panch witnesses on the same day. He had also recorded statement of Smt. Farah Begum who is wife of deceased. On 24.06.2011, he moved production warrants before concerned court for appearance of accused Razia @ Shabbo as she was in Tihar Jail and was not produced before FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 35 of 70 court on 24.06.2011. It came into his notice on 24.06.2011 that after discharge from the doctor of GTB hospital she was kept in Tihar Jail as she was in Judicial Custody while medical treatment in GTB hospital. He further deposed that on 27.06.2011 accused Razia appeared before concerned Ld. MM on production warrant. He moved application for PC and accused Razia was taken on PC for one day from concerned court and she was brought at PS in custody of lady constable. He interrogated her at PS. He took step in pursuance of disclosure statement made by her at the time of arrest. Accused Razia led him and SI Vikas and W/Const. Sharda at her house for recovery of her clothes which had been worn by her at the time of committing of murder of deceased Salim. They police officials reached at the room of second floor of accused Razia bearing no. E-6/37A, Sunlight Light Colony, Old Seemapuri, Delhi at about 2-3 pm at her instance. She took out one salwar and lady shirt (dark chery colour) and one dupatta (light yellow and Chery colour having cream colour spot print) from the iron Almirah which was lying in her room and produced the same before him saying that these clothes were wearing by her at the time of committing murder. He checked the same and found that same has already been washed off. He kept the aforesaid three clothes in a parcel which was sealed with the seal of 'KSR' and seized vide seizure memo Ex.PW19/2. On completion of aforesaid recovery proceedings, they returned back to PS Seemapuri where he put accused Razia in lockup and he deposited aforesaid sealed parcel with MHC(M) in intact condition. He recorded statement of PWs namely lady Const. Sharda and SI Vikas u/s 161 Cr.P.C. On following day accused Razia was produced before concerned court and she was FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 36 of 70 sent to JC on his written request. PW29 correctly identified both the accused.

He further deposed that on 29.06.2011, Const. Manjeet was sent to mortuary of MMG Hospital, Ghaziabad to collect the PM report and inquest papers. He brought the PM report Ex.PW3/A and inquest proceedings Ex.PW1/E, Ex.PW18/1 to Ex. PW18/10, Ex.PW17/1, Ex.PW17/2 and Ex. PW18/11, same were delivered to him and he placed the same on file. He further deposed that on 06.07.2011, he moved application for TIP of articles belongs to deceased which had been recovered at the instance of accused Zamir. Same is Ex.PW14/2 which was marked to Ld. Link MM and on 08.07.2011 he had produced case file with aforesaid application before Ld. Link MM. He had also produced one sealed parcel containing aforesaid belongings of deceased before concerned court after taking out from the custody of MHC(M). He had also produced wife of deceased Smt. Farah Begum to identify the belonging of her husband. He had identified aforesaid witness before Ld. MM and left the chamber. TIP proceedings were completed by Ld. Link MM Sh. Gaurav Gupta and same is Ex.PW14/3 and Ex. PW14/4. He moved application to provide copy of TIP proceedings Ex.PW11/A. He collected copy of TIP proceedings from the Ahlmad of the court. It came into his notice that Smt. Farah Begum had identified belongings of deceased. He received sealed parcel containing aforesaid belongings of deceased duly sealed with the seal of court which was again deposited by him with MHC(M) in intact condition on return to PS. On 01.09.2011, he had taken out three sealed parcels containing weapon of offences from the custody of MHC(M) and took the same to Surgeon who had conducting FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 37 of 70 postmortem examination, for getting subsequent opinion. On the same day, he had presented written request for getting subsequent opinion regarding weapon of offence which were used to kill the deceased or not. Carbon copy of application is Ex.PW3/B. On the same day aforesaid weapons used in commission of offences were examined by Dr. D.K. Jain who expressed subsequent opinion Ex.PW3/C which was collected by him and placed on file. Sealed parcels of weapon of offences were resealed by the aforesaid doctor with his seal, same was brought and again deposited by him to MHC(M) PS Seemapuri in intact condition. He further deposed that on 06.08.2011, he visited office of FSL Rohini, Delhi and moved an application for physical inspection of place of occurrence i.e. house of accused persons E-6/37A Sunlight Colony, Old Seemapuri, Delhi before Director FSL, copy of application is Ex. PW29/C. Senior Scientific Officer Sh. Umesh Kumar Mishra came with him and he visited place of murder and he noticed some blood stains on the bed which was lying in the room of accused persons. Blood was scratched from the bed and same was kept in envelope which was sealed by him with the seal of 'KSR' and seized vide seizure memo Ex.PW29/D which bears name of aforesaid scientific officer at point A and same bears his signature at point X. He returned to PS from the spot and aforesaid scientific officer went to his office from spot. He deposited aforesaid sealed envelope containing blood as sample taken out by aforesaid scientific officer to MHC(M) in intact condition. On 06.09.2011, one sealed parcel containing seven pieces of bones of deceased was taken out by him from the custody of MHC(M) and same were taken to FSL Rohini by him alongwith forwarding letter and RC No. 128/21/11. He could not FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 38 of 70 deposit the same to dealing clerk of FSL as objection was raised. Copy of RC 128/21/11 is Ex.PW8/D-1. Same was placed on file. Later on, on 08.09.2011, he again took the aforesaid sealed parcel vide RC No.129/21/11 to deposit in FSL Rohini for analysis but on that day, same could not be deposited there as objection was again raised. Copy of RC no.129/21/11 is Ex. PWE8/D-5 which bears his signature at point X. Concerned official of FSL had raised objection to deposit sample seal on both the aforesaid occasion. On the same day, he visited the mortuary of MMG Hospital Ghaziabad and brought the sample seal which had been used to seal the aforesaid sealed parcel by the concerned doctor. On the same day, he again visited the office of FSL and presented RC no.129/21/11 Ex. PW8/D-2 which includes detail of sealed parcel as well as sample seal. He deposited the aforesaid sealed parcel to dealing clerk with sample seal vide RC no. 129/21/11 Ex. PW8/D-2. So long as aforesaid sealed parcels remained in his custody same were not tampered. He had received acknowledgement from the concerned clerk pertaining to deposit of the aforesaid sealed parcel there for analysis and same was handed over to MHC(M) on return at PS. He had recorded statement of MHC(M) on that day as he had issued aforesaid RC to deposit the case property and he had collected sealed parcel containing exhibit from his custody. On the same day 06.09.2011, he called draftsman SI Mukesh Kumar Jain at PS. He was taken to place of recovery of Torso, Head and other part of body of deceased, there he had taken rough note and measurement at his instance and prepared scaled site plan of both the aforesaid placed, thereafter he was taken by at place of murder i.e. house of accused person in Sunlight Colony, Old Seemapuri, Delhi. He FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 39 of 70 had pointed out room, bathroom and kitchen of accused persons. He had also taken rough note and measurement at his instance there to prepare scaled site plan. Thereafter, he was freed. Later on, he prepared three separate scaled site plan of aforesaid three places in his office on 12.09.2011 which are Ex.PW10/2, Ex.PW10/3 and Ex. PW10/1 respectively. Same were collected from the office of draftsman by him and placed on file. On 12.09.2011, eight sealed parcels containing exhibits of this case, two sample seal were sent to FSL through HC Ashok by the MHC(M) on his directions vide RC No.131/21/11. Same were deposited to dealing clerk of FSL against receipt. Copy of aforesaid RC is Ex.PW8/8. He had recorded statement of MHC(M) HC Naveen and HC Ashok on that day. It was told to him by HC Ashok that aforesaid sealed parcels were not tampered by anyone during his custody. During course of trial on 17.02.2013, he had submitted supplementary charge-sheet before concerned court pertaining to three expert opinion dated 30.03.2012, 30.03.2012 and 30.10.2012 which had been received by him time to time and same are Ex.PW29/E-1, Ex.PW29/E-2 and Ex.PW29/E-3 respectively. It came into his notice from DNA report Ex.PW9/D-3 that all the bone parts seized by the autopsy surgeon were of one male dead body. During course of investigation, he collected photographs from the photo section which are exhibit Ex.PW20/A-1 to Ex.PW20/A-7 and Ex.PW20/B-1 to Ex.PW20/B-7. Same were placed on file which are depicting the place of recovery of Torso and Torso of deceased. Photographs are also depicting place of recovery of head and other part of dead body and place from there head etc. was recovered. He also collected missing report of deceased FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 40 of 70 Ex.PW29/A from HC Shokender alongwith carbon copy of steps taken regarding missing person which are Ex.29/B-1 to Ex. PW29/B-3. Same were placed on file. During course of investigation, he had recorded statement of witnesses Nazmiyan (father of deceased), Naiem (brother of deceased) Smt. Farah Begum (wife of deceased), Panch witnesses namely Rana, Kadim, Bale Miyan, Mohd. Suaib, recovery witness namely Kallan and other police witnesses and crime team officials time to time. During course of investigation it came into his notice that deceased was using mobile phone having SIM connection of Vodafone bearing no.9953677454 and same phone was missing. He had made efforts to trace the mobile phone of deceased Salim at the instance of accused but same could not be recovered as it was told to him by accused Zamir that it was thrown by him in Drain (nala) of Sunlight colony, old Seemapuri, Delhi. He had moved application to collect the CDR of the aforesaid phone of deceased before Nodal officer. It also came into his notice that deceased was also using some other mobile phone having SIM connection no.9599341566 and he was using the aforesaid phone SIM Connection to talk with accused Razia @ Shabbo as he had illicit relation with her. It came into his notice during course of investigation that one mobile SIM connection no.9953677454 was being used by Razia (accused). One another mobile SIM no.9818326314 was being used by Jamir (accused) and other mobile SIM no.9289649282 was being also used by deceased. He collected CDR of the aforesaid three mobile phone numbers. Photo copy of CAF, ID proof, certificate and CDR running upto 2 sheets Ex.PW7/1 to Ex.PW7/3 are pertaining to phone connection no.9953677454 which has been issued in the name of FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 41 of 70 Jamir Miyan and the said phone was being used by Razia (accused). Photo copy of CAF, ID proof, certificate and CDR running up to 2 sheets Ex.PW16/1 to Ex. PW16/4 are pertaining to phone connection no.9818326314 which has been issued in the name of Jamir Miyan and the said phone was being used by Jamir (accused). CDR of the other phone no. 9289649282 is not on file. He analyzed the aforesaid CDR and it came into his notice that both the aforesaid phone were being used by the aforesaid accused persons. On 20.06.2011 accused Jamir was sent to GTB hospital for his medical examination in the custody of Ct. Manjit. He was medically examined by Dr. Lalit Mohan vide MLC Ex.PW29/C. Four injuries were noticed on his person. During course of investigation brother of the deceased namely Naeem had told to him that his brother Salim (deceased) was also using one secret mobile SIM number 9599341566. The CDR of the aforesaid number could not be arranged as aforesaid facts were disclosed by him by the aforesaid witness Naeem after filing the charge-sheet. He analyzed CDR of the phones of the aforesaid both accused persons and it came into his notice the phones used by accused Razia was in constant touch with the aforesaid phone of deceased. Deceased and accused Razia were in touch to each other on their phones at relevant time. On the day of incident accused Razia had made call to Salim (deceased) and Salim had also made call to Razia by using their aforesaid mobile phones. During course of investigation, he collected photographs from the photo section of their department and placed the same on file. He also recorded statement of PWs Najim Miyan, Naeem, Smt. Farha Begum, Rana, Kadim, Bale Miyan, Md. Suaib, Kallan besides police officials HC Dinesh, SI FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 42 of 70 Mohar Pal Singh, Ct. Ram Kumar. Ct. Ram Narain, Ct. Hanif Khan, Ct. Manjit, Ct. Sewa Singh, L/Ct. Sharda, HC Shokender, Sl Manoj Kumar, SI Vikas Kumar, SI Mukesh Jain, Ct. Neeraj, SI E.S. Yadav, HC Ashok Kumar time to time. He completed investigation and prepared charge-sheet against accused Zamir and his wife accused Razia for offence u/s 364,302,201 r/w 120- B IPC. During course of trial, he had collected biological report and serological report dated 30.03.2012 prepared by Ms. Seema Nain already Ex. PW29/E-1 and Ex. PW29/E-2 and other DNA finger print report dated 30.10.2012 prepared by Ms. Shashibala Ahuja Ex.PW9/D-3 and same were placed on file. From the aforesaid DNA report it came into his notice that the torso, legs, hands and head were of one dead body of deceased Salim. Identity of deceased was also established by DNA report. It also came into his notice from the biological and serological report that human blood was found on the burnt clothes of deceased, plastic bag (in which clothes of deceased were kept and taken to throw) and belt of deceased recovered at the instance of accused Jamir. Human blood was also found on the weapon of offence (Gandasa). PW29 correctly identified Gandasa (Daw) Ex.P-1, long Chhura Ex.P-2, small chhura Ex.P-3, one key having word LML Ex.P-9 and two ropes (one cloth rope and another rubber /synthetic stretchable rope) as Ex.P-15 (colly), one red colour CRD motorcycle bearing registration no. DL-7SY-7251 as Ex.P- 14, one underwear as Ex.P-13, one lady shirt, salwar and chunni as Ex.PX-1, Ex. PX-2 and Ex. PX-3, one plastic bag which further contains another plastic polythene bag contain partially burnt pieces of baniyan, T-shirt, belt, plastic sandle, wallet, one plastic bag, one very small piece of jeans pant of size 3x4 inches FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 43 of 70 besides one key ring having three keys. Same are Ex.P-4 (sandle), P-5 belt, Ex.P- 6 burnt T-shirt, Ex.P-7 burnt baniyan and pieces of other clothes including piece of jeans, Ex.P-8 burnt wallet, Ex.P10 bunch of keys, part of Mattress (gadda) as Ex.P- 11, one mattress (gadda) with red cover (from which piece of cover having blood stain as Ex.P-12, photographs Ex.PW20/A-1 to 14 and one other cloth sealed parcel duly sealed with the seal of FSL produced by MHC(M), it is stated that it contained the bones of the deceased. It is observed that the parcel is not required to be opened as such it remains sealed.

In his cross-examination, he affirmed that as per the missing report lodged by the complainant Naaz Miyan, he had not suspected on anyone with regard to the missing of his son/ deceased. There is no document which shows that the deceased was carrying any mobile with him at the time of leaving his house finally in the documents delivered by the HC Shokender to him. He affirmed that to leave the station for the investigation of a case to be sought from the concerned ACP and not to the SHO. He affirmed that he had not contacted the concerned ACP to get permission to go out of state in respect of the investigation of the present case. He volunteered that he had sought the permission from SHO who had sought permission from ACP. He had requested number of passerby to join the investigation of this case but due to the foul smell coming out from the torso, none had joined the investigation. The witness namely Naeem accompanied them in their vehicles from the place of arrest of accused to the place of recovery of torso. He affirmed that in the photographs Ex.PW20/A1 to Ex.PW20/A7 and Ex.PW20/B1 to Ex.PW20/B7, does not show the picture of accused persons and FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 44 of 70 witness Naeem. He denied the suggestion that the accused persons were not present at the time of recovery of dead body. He denied the suggestion that the accused persons had been falsely implicated in the present case. He denied the suggestion that all the recovery in the present case were falsely planted upon the accused persons. He denied the suggestion that there is no concrete proof whether Saleem is dead or missing. He denied the suggestion that no proper investigation was conducted in the present case.

STATEMENT OF ACCUSED

14. After completion of prosecution evidence, the statement of accused Jamir and Rajia @ Sabbo was recorded under Section 313 Cr.P.C. wherein incriminating facts emerging from testimony ofthe prosecution witnesses were put to the accused persons, which were denied by them. They stated that they have been falsely implicated in this case by the family member of complainant in connivance with IO. The police officials also implicated them in another murder case in which they had been acquitted. Accused persons also preferred to lead evidence in defence. However, on 07.06.2023, accused persons submitted that they do not want to examine any witness in defence. FINAL ARGUMENTS

15. This court has heard has heard the arguments and perused the record.

16. It is submitted by Sh. Shikhar Mahajan, Ld. Addl. PP for the State that the present case is based on circumstantial evidence, dying declaration of deceased and on 'last seen' theory. The last seen theory witnesses got examined by the Prosecution are PW2 Naaz Miyan, PW4 Farah Begum and PW12 Lal Miyan.

FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 45 of 70 The missing report was lodged by the father of deceased on 18- 06-2011 as deposed by PW2. Thereafter, he went to the house of accused Jamir where accused Rajia met and responded that Saleem was not there. He also sensed some unusual on the face of Rajia and therefore, he became suspicious. Thereafter, on 20- 06-2011, he again visited the police station and lodged report raising strong suspicion against accused Jamir and Rajia, which was exhibited as Ex. PW2/A. The accused persons were arrested on the basis of secret information from opposite petrol pump, near bus stand for buses going towards Ghaziabad at Apsara Border from where they had tried to abscond. Thereafter, at the instance of accused persons following incriminating pieces of evidence in the presence of relatives of deceased and UP police officials were collected:

(i) One torso of body of deceased was recovered from in front of St. Francis School, Abhay Khand, PS Indirapuram seized vide seizure memo Ex.PW1/B;

(ii) Remaining body parts were recovered from Shakti Khand, 3-

4 km ahead from the place of recovery of torso seized vide seizure memo Ex.PW1/D;

(iii) Pointing out of place where the murder of Mohd. Salim was committed i.e. 2nd floor of H.No. E6/37A, Sun Light Colony, Old Seemapuri at the instance of accused persons which are Ex.PW21/I and Ex.PW19/I.

(iv) Recovery of weapons used in the commision of offences i.e. one gandasa and two chhuries, at the instance of accused jamir which were seized vide seizure memo Ex.PW21/6.

(v) Recovery of key of motorcycle, which was used in disposal of parts of dead body of deceased, from the house of accused FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 46 of 70 Jamir, which was seized vide seizure memo Ex.PW21/7.

(vi) Recovery of mattress upon which deceased Salim was lying when he was murdered which was seized vide seizure memo Ex.PW21/8.

(vii) Recovery of underwear of accused Jamir, which was worn by him at the time of commission of alleged offence, which was seized vide seizure memo Ex.PW21/9.

(viii) Recovery of motorcycle bearing No. DL7SY5172 and two ropes at the instance of accused Jamir, which was seized vide seizure memo Ex.PW21/10.

(ix) Recovery of burnt clothes of deceased from a place which was situated at a distance of 15 meters from the place of recovery of body party which was seized vide seizure memo Ex.PW21/12;

(x) Recovery of clothes worn by accused Rajia at the time of commission of alleged offence which was seized vide seizure memo Ex.PW19/2.

17. On 06.07.2011, IO had moved an application for TIP of articles belonging to the deceased and during TIP proceedings, the wife of deceased namely Farah Begum had correctly identified all the articles/ belongings of deceased, which were recovered during investigation at the instance of accused jamir..

18. The FSL report Ex. PW9/D3 reveals injuries on the body of deceased. Subsequent opinion of FSL report prepared by Ms. Shashibala Pahuja proves that various body parts recovered from places are of one person namely Saleem. During inspection of place of incident by the FSL experts on 06-08-2011, Senior Scientific Officer Sh. Umesh Kumar Mishra had noticed some blood stains on the bed which was lying in the room of accused persons. Subsequent opinion of FSL expert i.e. Ex.PW3/C also FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 47 of 70 proves that recovered weapons at the instance of accused persons got used in cutting the body into pieces. Recovery of blood stained dupatta seized vide seizure memo Ex.PW19/2 at the instance of accused Rajia indicate the involvement of accused Rajia in commission of alleged offence of murder of Mohd. Saleem. It is further submitted that UP officials were also got involved in recovery process which shows that there is no possibility of manipulation.

19. CDR of mobile phone of accused jamir Ex.PW16/1 to Ex.PW16/4 proves the fact that deceased was in constant touch with accused Rajia.

20. PW12 and PW4 have proved the dying declaration of deceased wherein the deceased had reported to them about proceedings towards rented godown in house of accused Jamir. PW12 also proved the motive of commission of alleged offence by the accused persons i.e. factum of illicit relationship between accused Shabbo @ Rajia and the deceased.

21. The fact that house of accused Jamir was locked on 20-06- 2011 proves the subsequent conduct that on the date of registration of FIR, the accused persons had attempted to flee from their home. There is no contradiction and discrepancy in the testimony of recovery witnesses i.e. PW1, PW5, PW22 and PW28. It is submitted that there is sufficient material on record to bring home the guilt of accused persons in commission of alleged offences.

22. On the other hand, Ld. Counsel for accused persons has submitted that there is no evidence regarding the illicit relationship between the deceased and accused Rajia. There is no evidence that recovered body parts are of deceased Saleem.

FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 48 of 70 There is neither any last seen theory witness nor any eyewitness got examined by the prosecution. The entire case of prosecution is based on surmises and conjectures. It is urged that accused persons are entitled for benefit of doubt in the prosecution case and therefore, it is prayed that accused persons be acquitted. FINDINGS OF THIS COURT

23. Before analyzing the evidence led by the Prosecution in the present case, this court deems it proper to refer to some provisions of law and citations of Superior courts, which are found to be applicable to the facts of the present case.

300. Murder--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or - Secondly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- Fourthly--If the person committing the act knows that it is so imminently dangerous that is must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

302. Punishment for murder-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.

364A. Kidnapping for ransom, etc--Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or [any foreign State or international inter- governmental organization or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.

201. Causing disappearance of evidence of offence, or giving false information to screen offender--Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 49 of 70 legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;

34. Acts done by several persons in furtherance of common intention--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

24. Perusal of the record would show that this case is totally based upon the circumstantial evidence and there is no direct evidence against any of the accused persons that they committed murder of the deceased Mohd. Saleem. Before deciding this case, it is necessary to ascertain legal parameters of proving such a case based upon the circumstantial evidence. The first leading case setting down the principles of circumstantial evidence is titled Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, in which, it is held that the onus to prove the circumstances is on the prosecution and the complete chain of circumstances must be proved beyond doubt. In a recent judgment titled Gargi v. State of Haryana, (2019) 9 SCC 738, the Hon'ble Supreme Court has summarized the law of circumstantial evidence as under:

"18. It remains trite that in judicial proceedings, proof is made by means of production of evidence, which may be either oral or documentary. As regards its nature, the evidence is either direct or circumstantial. The direct evidence proves the existence of a particular fact that emanates from a document or an object and/or what has been observed by the witness. The circumstantial evidence is the one whereby other facts are proved from which the existence of fact in issue may either be logically inferred, or at least rendered more probable. [A Text Book of Jurisprudence by G.W. Paton, 4th Edn., p. 598.] 18.1. In umpteen number of decisions, this Court has explained the essentials before a particular fact could be held proved by way of the proof of other fact or facts; and has expounded on the principles as to how circumstantial evidence need to be approached in a criminal case. We need not multiply on the case law on the subject; only a brief reference to the relevant decisions would suffice.

FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 50 of 70 18.2. In Chandmal v. State of Rajasthan [Chandmal v State of Rajasthan, (1976) 1 SCC 621 : 1976 SCC (Cri) 120], this Court said : (SCC p. 625, para 14) "14. It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. That is to say, the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused's guilt."

18.3. In Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487], The Hon'ble Supreme Court of India laid down the golden principles of standard of proof required in a case sought to be established on circumstantial evidence with reference to several past decisions, including that in Hanumant v. State of M.P. [Hanumant v. State of M.P., AIR 1952 SC 343 : 1953 Cri LJ 129] , in the following : (SCC p. 185, paras 153-54) "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"

established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033] where the observations were made : [SCC p. 807, para 19 : SCC (Cri) p. 1047] '19. ... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.' (2) 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, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 51 of 70 (5) 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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

18.4. In the decision cited by the learned counsel for the appellant in Sonvir [Sonvir v State (NCT of Delhi), (2018) 8 SCC 24 : (2018) 3 SCC (Cri) 486] , this Court, after taking note of the other cited decisions, pointed out the principles as under :

(SCC p. 52, para 82) "82. ... Law of conviction based on circumstantial evidence is well settled. It is sufficient to refer to the judgment of this Court in Ramesh v. State of Rajasthan [Ramesh v. State of Rajasthan, (2011) 3 SCC 685 : (2011) 2 SCC (Cri) 54] where in para 17 the following has been held : (SCC p. 693) '17. Before we proceed with the matter, it has to be borne in mind that this case depends upon circumstantial evidence and, as such, as per the settled law, every circumstance would have to be proved beyond reasonable doubt and further the chain of circumstances should be so complete and perfect that the only inference of the guilt of the accused should emanate therefrom.

At the same time, there should be no possibility whatsoever of the defence version being true.'"

18.5. Thus, circumstantial evidence, in the context of a crime, essentially means such facts and surrounding factors which do point towards the complicity of the charged accused; and then, chain of circumstances means such unquestionable linking of the facts and the surrounding factors that they establish only the guilt of the charged accused beyond reasonable doubt, while ruling out any other theory or possibility or hypothesis. 18.6. Incidental to the principles aforesaid, which are neither of any doubt nor of any dispute, profitable it would be to keep in view the caveat entered by G.W. Paton [A Text Book of Jurisprudence by G.W. Paton, 4th Edn., p. 598.] as regards circumstantial evidence thus:

"On the other hand, circumstances may mislead or false clues may have been laid by the wrongdoer to cast suspicion on another." [ This has been stated with reference to 514 in Criminal Law by C.S. Kenny wherein, it is cautioned that: though 'circumstances cannot lie', they can mislead. They may even have been brought about for the very purpose of misleading, as when Joseph's silver cup was placed in Benjamin's sack, or when Lady Macbeth 'smeared the sleeping grooms with blood'.]"

25. Now the case in hand has to be adjudicated in light of the above-stated guidelines. As per case of the prosecution, on 17- FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 52 of 70 06-2011, one Saleem had went missing, who reportedly left his home at about 3:00 pm and did not return. After searching Saleem in the relations and other places, on the following day, his father namely Naaz Miyan got lodged a missing report Ex.PW29/A at PS Seema Puri. Thereafter, PW2 Naaz Miyan got to know that accused Jamir was suspicious about relations of his wife Rajia with Saleem. He went to the house of accused Jamir which was located on the back side of his home in other street no. 3 where accused Rajia responded and opened the door and simply stated that Saleem was not there. He came to know that Saleem had taken a premises in the house of accused Jamir which he was using as godown. He sensed something unusual on the face of Rajia and became suspicious. Thereafter, on 20-06-2011, he lodged another missing report Ex.PW2/A raising strong suspicion on accused Jamir and Rajia. He alleged that accused Jamir had got disappeared his son and killed him. On the basis of said further missing report, present FIR Ex.PW9/2 got registered for the offence punishable u/s 364 of IPC. Efforts were made to trace the missing person Saleem, his tenanted godown was searched but the same was found locked from outside. The house of accused Jamir was also found locked from outside. A secret information was received that the accused Jamir and Rajia were waiting for bus at Apsara Border for going out of Delhi. Record indicates that immediately after registration of FIR, both accused Jamir and Rajia had tried to flee from their house situated at H.No. E6/A37, Sun Light Colony. The accused persons were overpowered at Apsara Border and interrogated one by one. Both the accused persons did not cooperate in the investigation and did not reveal anything about missing/ abducted Saleem. After FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 53 of 70 sustained interrogation, accused Jamir had opened up by stating that he suspected missing person Mohd. Saleem for having illicit relation with his wife and due to this reason, he alongwith his wife made a plan to commit murder of Mohd. Saleem on 16-06- 2011 as he was facing defamation in the society. In execution of plan, accused Jamir procured weapons of offence from the house of one Kallan. Thereafter, on 17-06-2011 at about 4/4:15 pm, Mohd. Saleem came at their house and he was taken to 2 nd floor of the house where they both committed his murder. They had also cut dead body of Mohd. Saleem in pieces and packed the same in several bags. The place where the murder was committed was cleaned thoroughly. On the basis of their respective disclosure statements and on their conduct of fleeing from their home after registration of FIR, both the accused persons were arrested.

26. Ld. Addl. PP for state has claimed that the prosecution got examined two 'last seen theory' witnesses namely PW4 Farah Begum and PW12 Laal Miyan, who have established the fact that the deceased was heading towards the house of accused Jamir on the date he went missing i.e. on 17-06-2011. However, in the opinion of this court, both PW4 and PW12 doesn't appear to be 'last seen' theory witness as both the above-stated witnesses have nowhere claimed that they had seen the deceased in the company of accused persons. Nevertheless, PW12 had deposed about the circumstances of the transaction which resulted in the death of deceased saleem as revealed by deceased saleem to him. PW12 Lal Miyan had categorically deposed that On 17.06.2011, at around 3/3.30 p.m, he was returning after offering Namaz, he saw Salim standing at the corner of the street in which the house FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 54 of 70 of Jamir was situated. He had a chat with him and he told that he was going to his house at Jamir's house. Thereafter, he had not seen Salim. PW4 has corroborated the version of PW12 by stating the place where the deceased used to keep his goods. In her cross-examination by Ld. defence counsel, PW4 Farah Begum, wife of deceased saleem, stated that her husband used to keep his goods in a room in the house of Jamir. Thus, PW12 Lal Miyan has established dying declaration of deceased Saleem when deceased stated to him that he was going at Jamir's house at around 3/3:30 pm of 17.06.2011, which is an important piece of evidence in view of section 32(1) of the Indian Evidence Act, 1872 indicating the involvement of accused persons.

27. With regard to evidentiary value of dying declaration u/s 32 (1) of the Indian Evidence Act, it has been held by Hon'ble Supreme Court of India in case of Nanhar Vs. State of Haryana, JT 2010 (6) SC 196 that, "dying declaration should be such, which should immensely strike to be genuine and stating true story of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts. Further, it should not be result of tutoring"

28. Further, in the case of Khushal Rao Vs. State of Bombay, AIR 1958 SC 22 that, "Once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration"

29. Admittedly, the above-stated dying declaration of the deceased with accused is a material circumstance against the accused and put a burden upon the accused to explain as to what they were doing or where they were present at the relevant time.

FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 55 of 70 The failure of any explanation of accused to this circumstance leads to an adverse inference against the accused. In this case, both accused persons have not tendered any explanation as to what they were doing at the relevant time.

30. Further, Section 106 of Evidence Act has put a burden upon the accused persons to tender a plausible explanation about their whereabouts when the deceased approached towards the house of accused Jamir to rebut this presumption of the facts within their personal knowledge. To ascertain the extent of burden, it is necessary to see section 106 of Evidence Act as under:

[Section 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the bur- den of proving that intention is upon him.

(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket on him.]

31. This above-said section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. The Hon'ble Supreme Court of India had occasion to deal with this presumption of section 106 of Indian Evidence Act in State of Rajasthan v. Thakur Singh VI (2014) SLT 260 where death of wife was unnatural and witnesses turned hostile. The burden of proof was fixed upon the accused to explain the death of his wife took place within the four corners of the house. Prior to it, the Hon'ble Supreme Court of India had interpreted this section in Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 that the section is not intended to shift the burden of proof (in respect of a crime) on the accused FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 56 of 70 but to take care of a situation where a fact is known only to the accused and it is well high impossible or extremely difficult for the prosecution to prove that fact. It was observed by the court as under:

"This [section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve if of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The work "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. It the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than that he whether he did or did not."

32. The observation of the Hon'ble Supreme Court made in State of West Bengal vs. Mir Mohammad Omar, (2000) 8 SCC 282 is also relevant. The court cited an example to explain the principle behind section 106 of the Evidence Act in following words:

"During arguments we put a question to learned senior counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."

33. In view of the above-said interpretation of presumption of Section 106 of Evidence Act, the burden of proof to prove the facts establishing the guilt of accused does not dispense with by the prosecution, however prosecution may not prove those facts FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 57 of 70 which are exclusively within the knowledge of the accused and the burden to rebut this presumption has been put upon him. If the facts established the case to raise a presumption against the accused, then the failure to discharge this presumption would cost the accused.

34. Further, both accused Jamir and Rajia were supposed to put forward some explanation not only during cross examination of the witnesses, who have proved the dying declaration of deceased indicating the movement of deceased towards the house of accused Jamir, but also during their statement u/s 313 Cr.P.C. However, they just replied to all incriminating facts emerging from the evidence as "it is incorrect" or "I do not know". Nowhere they have explained as to what they were doing at the relevant time i.e. on 17.06.2011 at around 3:30 pm (the time when the deceased Saleem went missing). Both accused were supposed to tender a satisfactory explanation to the fact which was within their personal knowledge in terms of section 106 of Evidence Act. No doubt, accused were not supposed to examine any witness to prove this fact, but they were definitely supposed to put forward some defense during prosecution evidence and also to put forward some explanation u/s 313 Cr.P.C. to rebut this presumption, which is not done by them. In question No. 29 of their respective statement u/s 313 Cr.P.C. recorded on 11.05.2023, it was specifically put to both the accused persons the fact that PW12 deposed that on 17.06.2011 at about 3:30 pm, deceased Saleem told him that he was going towards Jamir's house to which they simply stated that "it is incorrect". In question No. 30 the factum of illicit relationship between Shabbo @ Rajia and deceased Saleem as deposed by PW12 was also FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 58 of 70 specifically put to the accused persons to which they simply replied by stating, "it is incorrect".

35. The Hon'ble Apex Court has held in case titled Jagroop Singh vs. State of Punjab, (2012) 11 SCC 768 that if accused failed to tender any plausible explanation to incriminating evidence, it would serve the purpose of fulfilling the missing link of the circumstances. The relevant observation is as under:

"36. Another aspect is to be taken note of. Though the incriminating circumstances which point to the guilt of the accused had been put to the accused, yet he could not give any explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial."

36. In State of Maharashtra v. Suresh [(2000) 1 SCC 471 :

2000 SCC (Cri) 263], it has been held that, "when the attention of the accused is drawn to such circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for completing the chain of circumstances. We may hasten to add that we have referred to the said decision only to highlight that the accused has not given any explanation whatsoever as regards the circumstances put to him under Section 313 of the Code of Criminal Procedure."

37. In view of the facts, it stands proved that accused Jamir and Rajia were in the company of the deceased, and have failed to tender any explanation and shall be presumed that they were involved in the incident in which deceased was killed. Thus, there is no possibility that accused persons have left the company of deceased Saleem.

38. From the analysis of call details records of mobile No. 9599341566, belonging to the deceased Saleem and mobile No. 9953677454, which was being used by accused Rajia and issued in the name of accused Jamir and mobile no. 9289649282, used FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 59 of 70 by deceased Saleem, carried out by investigating officer PW 29 Insp. K.S. Rawat, it is established that the mobile phone used by accused Rajia was in constant touch with the mobile phone of deceased Saleem. The relevant record proved in this regard are Ex.PW7/1 to Ex.PW7/3 and Ex.PW16/1 to Ex.PW16/4. Apart from the unimpeachable testimony of star witnesses of prosecution i.e. PW2, PW4 and PW12, the prosecution has also proved following incriminating pieces of evidence collected by the investigating team during the course of investigation which connects the accused persons with the commission of alleged offence of conspiracy and murder of deceased Saleem in the present case:

(i) Seizure memo Ex.PW1/B whereby torso of body of deceased was recovered at the instance of accused Jamir and in presence of PW1 Naeem (brother of the deceased) at in front of St. Francis School, Abhay Khand, PS Indirapuram.

(ii) Seizure memo Ex.PW1/D whereby remaining body parts of deceased were recovered from Shakti Khand, 3-4 km ahead from the place of recovery of torso at the instance of accused Jamir.

(iii) Pointing out of place of commission of murder i.e. 2 nd floor of H.No. E6/37A, Sun Light Colony, Old Seemapuri which is Ex.PW21/I prepared at the instance of accused Jamir.

(iv) Pointing out of place of commission of murder i.e. 2 nd floor of H.No. E6/37A, Sun Light Colony, Old Seemapuri which is Ex.PW19/I prepared at the instance of accused Shabbo @ Rajia.

(v) Seizure memo Ex.PW21/6 whereby weapons used in commission of offence i.e. one gandasa and two chhuries recovered at the instance of accused Jamir.

(vi) Seizure memo Ex.PW21/7 whereby key of motorcycle, FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 60 of 70 which was used in disposal of parts of dead body of deceased, was recovered from the house of accused Jamir at his instance.

(vii) Seizure memo Ex.PW21/8 whereby mattress upon which deceased Salim was lying when he was murdered was recovered at the instance of accused Jamir.

(viii) Seizure memo Ex.PW21/9 whereby underwear of accused Jamir, which was worn by him at the time of commission of alleged offence, was recovered at the instance of accused Jamir.

(ix) Seizure memo Ex.PW21/10 whereby motorcycle bearing No. DL7SY5172 and two ropes were recovered at the instance of accused Jamir.

(x) Seizure memo Ex.PW19/2 whereby clothes i.e. one salwar, shirt and duppatta worn by accused Rajia @ Shabbo were recovered at the instance of accused Rajia @ Shabbo from her house.

(xi) Seizure memo Ex.PW21/12 whereby burnt clothes of deceased Saleem and other belongings were recovered at the instance of accused Jamir at a place which is situated at a distance of 15 kms from the place where the body parts of the deceased were recovered i.e. NH24, Ghaziabad, UP Indrapuram.

(xii) PM report Ex. PW3/A mentions multiple injuries on the recovered body parts established the fact that the deceased was murdered.

(xiii) Subsequent Expert opinion Ex.PW3/C whereby it was opined by Dr. D.K. Jain (PW3) that the recovered three weapons i.e. one chhura and two gandasa may be used in cutting the body of deceased Saleem into seven pieces.

(xiv) Inspection of place of incident i.e. the house of accused persons by the FSL expert on 06.08.2011, during which Senior FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 61 of 70 Scientific Officer Sh. Umesh Kumar Mishra had noticed blood stains on the bed which was lying in the room of accused persons.

(xv) Identification of recovered clothes and other belongings of deceased by the wife of deceased namely Farah Begum during TIP proceedings held on 06.07.2011. The entire record pertaining to TIP proceedings was proved as Ex.PW14/1 to Ex.PW14/5. (xvi) Opinion of FSL Expert PW31 Shashibala Pahuja that all the recovered body parts are of one person.

(xvii) Detection of blood on various articles collected during investigation of the present case viz. dirty burnt piece of cloth described as burnt cloth, dirty belt, one dirty burnt/ partially burnt plastic bag, one gandasa having dirty cloth on handle and two gauze cloth pieces, described as blood stains prepared from bed, by FSL Expert Ms. Seema Nain vide her report Ex.PW29/E2.

(xviii) FSL report Ex.PW9/D3 proves the fact that the DNA of various body parts of deceased recovered during the investigation to be of single male origin.

39. All the above-sated recoveries vide seizure memo Ex.PW1/B, Ex.PW1/D and Ex.PW21/12 have been effected in the presence of relative of the deceased as well as in the presence of officials of UP police, who were examined as PW18 Retd. SI Mohar Pal Sigh, PW23 Ct. Hafiz Khan, PW24 SI Ram Kumar Singh and PW25 Ct. Ram Narain. All the above-stated incriminating facts are admissible in evidence being 'fact discovered' as per section 27 of Indian Evidence Act, which reads as follows:

"Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 62 of 70 information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

40. It is well settled that confession made before the police is not admissible in evidence. However, there are certain exceptions to this principle. One such exception is section 27 of Indian vidence Act. Section 27 is also called as doctrine of confirmation by subsequent events because every part of the statement, made at the instance of the accused, in a police custody should necessarily be confirmed by the subsequent events of discovery, to make it admissible in court. The provision is couched in the form of a proviso, an exception, though it is not clear from its terms as to which provisions it qualifies.

41. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The theory of confirmation by subsequent facts means the statements made in custody are admissible to the extent they can be proved by the subsequent discovery of facts.

42. It is quite possible that the content of the custodial statement could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence, such statements could also be described as those which furnish a link in the chain of evidence needed for successful prosecution. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information.

FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 63 of 70

43. The decision in Pulukuri Kottaya & Ors. vs. Emperor [AIR 1947 PC 67] is a leading judgment of Privy council on the aspect of 'discovery of fact' in a confessional statement of accused recorded by the police.

44. The Hon'ble Supreme court of India in State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600 has considered the question of discovery of a fact referred to in section 27. The Hon'ble Supreme Court has considered plethora of decisions and explained the decision in Pulukuri Kottaya & Ors. V. Emperor [AIR 1947 PC 67] and held thus :

"125. We are of the view that Kottaya case [AIR 1947 PC 67] is an authority for the proposition that "discovery of fact" cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place.

126. We now turn our attention to the precedents of this Court which followed the track of Kottaya case. The ratio of the decision in Kottaya case reflected in the underlined passage extracted supra was highlighted in several decisions of this Court.

127. The crux of the ratio in Kottaya case was explained by this Court in State of Maharashtra v. Damu. Thomas J. observed that: (SCC p. 283, para 35) "The decision of the Privy Council in Pulukuri Kottaya v. Emperor (supra) is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect." In Mohd. Inayatullah v. State of Maharashtra [1976 1 SCC 828], Sarkaria, J. while clarifying that the expression "fact discovered" in Section 27 is not restricted to a physical or material fact which can be perceived by the senses, and that it does include a mental fact, explained the meaning by giving the gist of what was laid down in Pulukuri Kottaya case (supra). The learned Judge, speaking for the Bench observed thus: (SCC p. 832, para 13) "Now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this."

FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 64 of 70

45. Next circumstance against the accused persons is their inter-se disclosure statements recorded by the police. Section 30 of Evidence Act has specified that the confession of co-accused may be used against other accused. The disclosure statements of co-accused are admissible against each other to some extent and may be used as additional circumstance to rope them in, provided those statements be proved in view of section 30 of Evidence Act. Section 30 of Evidence Act came into interpretation before the Hon'ble Supreme Court of India in land mark judgment titled Kashmira Singh vs. State Of Madhya Pradesh, 1952 AIR SC 159 and has held as under:

"The confession of an accused person against a co-accused is not evidence in the ordinary sense of the term. It does not come within the meaning of evidence contained in sec. 3 of the Indian Evidence Act in as much as it is not required to be given on oath, nor in the presence of the accused and cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities. Such a confession can only be used to tend assurance to other evidence against a co-accused. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept".

46. In view of the above-said, it is clear that the disclosure statements of co-accused may be used for limited purpose of corroboration. In this case, the disclosure statements of both the accused persons have disclosed that they have committed this murder. To rely upon such disclosure statements, it is necessary FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 65 of 70 that the contents of disclosure statements must be corroborated by the other independent evidence and in this case, most of the facts of the disclosure statements have been duly corroborated by the evidence proved by other witnesses or by circumstances, due to such statements may be definitely used as an additional circumstance against the accused. The facts which have been duly corroborated by the disclosure statements like pointing out memo of place where the alleged murder was committed,, pointing out memo of place of recovery of dead body etc. have duly proved that the informations furnished by accused in their disclosure statements have been duly corroborated. As such, this circumstance may be used against the accused persons and has proved their involvement to this case.

47. Not only this, respective replies of the accused persons to these disclosure statements under section 313 Cr.P.C. have proved that their replies are "I don't know" or "It is incorrect". In fact, they have not denied these disclosure statements Ex.PW13/5 and Ex.PW13/6 and that too without tendering any explanation of their false implication. If existence of disclosure statements has not been denied by the accused and the facts mentioned in those disclosure statements have duly verified by independent sources or by information admissible u/s 8/ 27 of Evidence Act, then these may definitely be used against them to corroborate other circumstances and may be considered incriminating circumstances against them.

48. In the present case, the prosecution has also established motive of the accused persons to commit murder of deceased Saleem which is illicit relationship of deceased Saleem with accused Razia @ Shabbo. Testimony of PW12 is uncontroverted FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 66 of 70 on this aspect. Further, call detail records Ex.PW7/1 to Ex.PW7/3 and Ex.PW16/1 to Ex.PW16/4corroborates the version of PW12. As regards the weight to be attached to the motive in deciding as to whether the prosecution has proved the case beyond reasonable doubt against an accused, the Hon‟ble Supreme Court in the case of Suresh Chandra Bahri v. State of Bihar,1995 Supp (1) SCC 80 held as under:

"Sometimes motive plays an important role and become a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act with illegal means with a view to achieve that intention. In a case where there is motive, it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But the evidence bearing on the guilt of the accused nonetheless becomes untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to adopt a certain course of action leading to the commission of the crime."

49. In Amitava Banerjee vs. State of W.B., (2011) 12 SCC 554, it was observed as under:

"Motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty.

42. Absence of motive in a case depending entirely on circumstantial evidence is a factor that shall no doubt weigh in favour of the accused, but what the Courts need to remember is that motive is a matter which is primarily known to the accused and which the prosecution may at times find difficult to explain or establish by substantive evidence.

43. Human nature being what it is, it is often difficult to fathom the real motivation behind the commission of a crime. And yet experience about human nature, human conduct and the frailties FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 67 of 70 of human mind has shown that inducements to crime have veered around to what Wills has in his book "Circumstantial Evidence" said:

"The common inducements to crime are the desires of revenging some real or fancied wrong; of getting rid of rival or an obnoxious connection; of escaping from the pressure of pecuniary or other obligation or burden of obtaining plunder or other coveted object; or preserving reputation, either that of general character or the conventional reputation or profession or sex; or gratifying some other selfish or malignant passion."

50. In Tarsem Kumar vs. Delhi Administration, 1995 Cri.L.J.470, the Hon'ble Supreme Court had repeatedly pointed out that where the case of prosecution has been proved beyond reasonable doubt on the basis of material produced before the Court, motive losses its importance but in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. It was further emphasised that if each of the circumstances proved on behalf of prosecution is accepted by the Court for the purpose of recording a finding that it was the accused who committed the crime in question even in absence of any proof of a motive for commission of such crime, the accused can be convicted.

51. As regards the importance to be assigned to proof of motive in a case based on circumstantial evidence, the Hon'ble Supreme Court in case titled as Mulakh Raj Etc vs Satish Kumar And Others, 1992 AIR 1175, observed as under :

"Undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its nonexistence. The failure to prove motive is not fatal as a mater of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 68 of 70 militates against the prosecution case."

52. In light of law discussed above, though in a case of circumstantial evidence motive assumes importance, however, failure to prove motive does not signify its non-existence.

53. As regards the discrepancy with identity of recovered body parts of deceased, pointed out by Ld. Defence counsel, it is pertinent to note that prosecution has adduced sufficient evidence to establish the identity of deceased. Family members of the deceased were joined by the IO at the time of recovery of body parts of deceased at the instance of accused. PW1 Naim has duly identified his signatures on relevant recovery memos, punchnama, he has also identified the photographs in his deposition dated 18.02.2013. Further, PW4 Farah Begum has also identified the recovered clothes of the deceased during TIP proceedings as well as in her deposition dated 22.12.2014. As per DNA examination report Ex. PW9/D3, it is established that body parts recovered were of single male origin. Thus, the contention regarding discrepancy on the point of identification of recovered body parts of deceased is misconceived.

54. Since the case is based on circumstantial evidence, and there is nothing on record to indicate that the deceased Saleem was abducted and wrongfully confined by the accused persons themselves. Rather PW12 Lal Miyan deposed that the deceased was proceeding towards the house of Jamir on his own. There was no compulsion on deceased to proceed towards the house of accused Jamir. In these circumstances, this court is of the opinion that the prosecution has failed to establish the fact that the accused persons had abducted and wrongfully confined the deceased in their home i.e. H.No. E-6/37A, Sunlight Colony, Old FIR No. 235/2011 State Vs. Jamir & Anr. Page No. 69 of 70 Seemapuri, Delhi.

DECISION OF THE COURT

55. In the opinion of this court, the testimony of prosecution witnesses comes out to be clear, convincing, trustworthy and inspires confidence of this court. Nothing material came out in their respective cross-examination. There is no reason to disbelieve the version of prosecution witnesses. All the ingredients of section 120B/302/201 IPC are satisfied. The prosecution has successfully proved beyond reasonable doubt its case against the accused persons Jamir and Rajia @ Shabbo. Accordingly, accused Jamir and Rajia @ Shabbo are hereby convicted for the offences punishable under section 120B/302/201 IPC. However, they are acquitted u/s 364 of IPC. Let the convicts be heard on the quantum of sentence and grant of compensation on the next date of hearing.

                                                       Digitally signed
ANNOUNCED IN THE OPEN COURT PANKAJ by PANKAJ
                                   ARORA
On 06.01.2024               ARORA Date:
                                   2024.01.08
                                                       17:35:07 +0530


                             (PANKAJ ARORA)
               ADDL. SESSIONS JUDGE-04: NORTH-EAST/
                          KARKARDOOMA/06.01.2024.




FIR No. 235/2011           State Vs. Jamir & Anr.             Page No. 70 of 70