Delhi District Court
State vs . Afsar Page No. 1 on 18 November, 2019
IN THE COURT OF MS. SUNENA SHARMA,
ADDITIONAL SESSIONS JUDGE-03, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
SC No.6747/2016
CNR No.DLST01-000102-2012
FIR No.95/2012
U/s: 302/34 IPC
Police Station :Malviya Nagar
+
State
Vs.
Afsar
s/o Late Sh. Lal Mohd.
R/o Jhuggi S-21A,
Khirki Extension,
Malviya Nagar,
New Delhi .. Accused
Date of Committal : 30.06.2012
Final arguments concluded on : 14.11.2019
Judgment pronounced on : 18.11.2019
JUDGMENT
1. Vide this judgment, I shall decide session case number 6747/2016, which is an outcome of FIR No. 95/12 u/sec. 302/34 IPC registered at PS Malviya Nagar in connection with a case of murder.
Prosecution case as per charge sheet
2. Briefly stated the facts of prosecution case as emerging out from the charge sheet are that on 19.03.2012, SI Raj Kumar received DD no.13A regarding a person namely Shaukat lying dead in his Jhuggie at S-21A, Khirki Extension as reported by Ct. Anil at 12:20 pm. Pursuant to said DD, SI Raj Kumar was asked to conduct necessary investigation. SI Raj Kumar alongwith Ct. Raj Kumar reached at S-21A, Khirki Extension where they found Ct. Anil and two State Vs. Afsar Page no. 1 girls whose names were revealed as Nisha and Neha, present. SI Raj Kumar with Ct. Anil Kumar went inside the jhuggie and in the corner of the jhuggie between a bed and the wall, one dead body with a deep wound of slit on the neck was found lying. The clothes lying near the dead body were having lot of blood. In the meanwhile, SHO PS Malviya Nagar also reached the spot. No eye witness was found on the spot. Ct. Anil got his statement recorded to the effect that he was posted as Constable in PS Malviya Nagar and was deputed as beat officer in Khirki Extension. On 19.03.2012, at 11:00 am, he was on patrolling duty in the area of beat and during said duty, he was passing by the lane adjoining Sai Baba Mandir in front of plot no.S-21. While passing that lane, he found two little girls crying while sitting at the corner of said plot. When he went near said girls and asked them about the reason of their crying, the older girl namely Nisha, who was about six years of age, informed that her uncle Afsar, her aunt and her grandmother in connivance with each other had killed her grandfather Shaukat. After knowing said version of the girl, Ct. Anil alongwith said two girls entered inside the jhuggie where he found the watchman Shaukat lying dead in the corner of the jhuggie with the face over turned. Upon checking, a deep wound was found on his neck and lot of blood was lying on the clothes lying underneath. He (complainant) accordingly, informed police station.
2.1 On the aforementioned facts and circumstances of the case, SI Raj Kumar prepared rukka and sent Ct. Raj Kumar alongwith rukka with direction to get the FIR lodged in the PS and with a request that as per the directions of the SHO, further investigation be handed over to Inspector Kuldeep Singh and crime team be also sent on the spot. Thereafter, HC/Duty officer handed over the computer copy of State Vs. Afsar Page no. 2 the FIR to the IO Inspector Kuldeep Singh and pursuant thereto, IO alongwith Ct. Raj Kumar reached the spot where he found SI Raj Kumar and Ct. Anil Kumar, SHO with other police staff already present. IO inspected the spot. On the spot, the owner of plot no. S- 21A namely Sunil Chauhan was also present and from him, the phone number of son of the deceased namely Riyasat, who used to reside in Uttam Nagar, Dwarka was taken. Riyasat was telephonically informed and asked to reach the spot immediately.
2.2 On the pointing out of Ct.Anil Kumar, IO inspected the spot and found that said plot no.S-21A was under construction but, for last many days, the work of construction was lying closed and only 3- 4 pillars were erected. On the left side of it, there was four storey house belonging to one R.K. Kaushik and on the right side of S-21, there was a plot S-21B in the corner belonging to one Sunil Aggarwal wherein two jhuggies were built. On plot no.S-21A, where the incident had occurred, there was a jhuggie admeasuring 8X10 on the corner and from the back side, the said plot was touching the wall of adjoining house no.S-22. In the front side of jhuggie, a wall was erected by putting two wooden planks while on the left side of jhuggie, there was open kitchen. Inside the jhuggie, some wooden fattas/takht were kept on the bricks whereon, one mattress of 6X7 size was lying. Between the bed and the wall, the dead body of the deceased with the face downward was lying. There was a deep cut wound on the neck of the deceased and the dead body was shown at point A in the site plan. The blood stained clothes lying underneath the dead body were shown at point C in the site plan. In the jhuggie, under the bed, broken pieces of red colour bangles were also lying and same are shown at point E & D in the site plan. Outside the State Vs. Afsar Page no. 3 jhuggie, at the distance of about 15 ft., one cot was lying between two pillars whereon, mattress was also lying. Said cot was shown at point B in the site plan. In the site plan, Mark G is a place showing plot no.S-21B lying on the south of the place of incident.
2.3 In the meantime, SI Jitender Kumar Incharge crime team, South District, also reached the spot and he also inspected the spot and got the spot photographed through photographer Ct. Devraj from different angles as per the instruction of the IO. Thereafter, dead body was taken out of the jhuggie with the help of police staffs and put on the bed. Dead body was again inspected and some injury marks were also found on the back and on the shoulder of the deceased. On the personal search of the dead body, two pocket diaries were recovered from the pocket of the shirt worn by the deceased and said diaries were taken into police possession.
2.4 In the meanwhile, the son of the deceased namely Riyasat with his wife Jarina also reached the spot and identified the dead body of his father. IO conducted the inquest proceedings u/s 174 Cr.P.C. and got the dead body preserved in AIIMS mortuary through SI Raj Kumar. Blood was also found on one towel lying on the cot outside the jhuggie and same was also taken into police possession. IO also took into police possession bunch of few papers and the broken pieces of bangles lying on the floor near the cot outside the jhuggie. All the said articles were taken into police possession and sealed with the seal of KS. IO also cut one piece of corner of the blood stained mattress lying on the bed inside the jhuggie with the help of scissor and put the same in a container. One blood stained black pant lying on the floor near the dead body, some blood stained pieces of bricks lying near State Vs. Afsar Page no. 4 the dead body, one blue colour chunni/dupatta, one white vest lying near the dead body were also seized by the IO. IO also seized the broken pieces of the bangles lying over the bed as well as on the floor near the bed. All the above exhibits were kept in different boxes. The earth control from under the bed inside the jhuggi was also taken and put in plastic container and box was sealed with the seal of KS.
2.5 Thereafter, IO called WSI Santosh Chauhan to reach the spot to interrogate the daughters of Riyasat namely Neha and Nisha in the presence of their parents as on account of their tender age and due to shock of incident they were not able to tell much. After reaching the spot WSI Santosh Chauhan took said girls and their mother Zareena to Swachetna Society for Mental Health Vasant Kunj, where baby Nisha was inquired by Dr. MS Nidhi Mitra of said society, who recorded her statement in question answer form. The said statement of Baby Neha recorded by Dr. MS Nidhi Mitra is lying on record as Ex.PW16/A. 2.6 Thereafter, IO also recorded the statement of Bibi Qawar Jahan w/o Shaukat Ali, who was a neighbour residing at S-21B, Khirki Extension. In the meanwhile WSI Santosh Chauhan came back to the spot with two girls with their mother Jareena and handed over the report prepared by the NGO to the IO.
2.7 During investigation on 21.03.2012, IO alongwith SI Raj Kumar reached AIIMS mortuary with inquest paper. The dead body of Shaukat was got identified from the family members of deceased. After postmortem on the dead body, the wearing clothes of the deceased and viscera were handed over to the IO and the dead body State Vs. Afsar Page no. 5 was handed over to Riyasat and his family members. After reaching back the police station IO deposited all the seized articles in the malkhana.
2.8 On 22.03.2012, the son of the deceased namely Shaukat visited police station for knowing the status of investigation and he was joined in investigation by the IO. Upon inquiry Riyasat informed police that many of his village people were working as labour in the Brickkiln at Tappal district, Aligarh and accused Afsar and his wife CCL 'H' (name concealed) were also hiding at said place. IO shared this information with the SHO and as per the instructions of the SHO, IO alongwith police team consisting of Ct.Anil and Lady Ct. Sunita with son of deceased namely Riyasat left for Gair district, Aligarh. At 5.30pm, police team with the witness Riyasat reached village Hamid Pur, District Aligarh, where they met one secret informer, who informed that accused Afsar and his wife CCL 'H' were seen in the morning near Brickkiln. On inquiry, IO came to know that Afsar and his wife will come to bus stand Hamid Pur to take a bus for going to their relative. Thereafter, they reached near said bus stand and at the identification of Riyasat, accused Afsar and his wife CCL 'H' were apprehended by the police team.
2.9 IO interrogated the accused and his wife and they both confessed about their involvement in the murder of deceased. IO recorded disclosure statement of both the accused and his wife CCL 'H'. On the personal search of the accused, some papers, two mobile phones and Rs.135/- were recovered. As per the instructions of IO, CCL 'H' was also arrested by Ct. Sunita and from the personal search of CCL 'H', one small purse containing Rs.72/-, two silver colour pajeb State Vs. Afsar Page no. 6 was recovered. The articles of personal search were taken into police possession. As per the instructions of IO lady Ct. Sunita took the red colour bangles which CCL 'H' was found wearing in her hands in police possession as it was disclosed by CCL 'H' that some bangles were broken at the time of commission of said offence. All the said bangles were put in a plastic container and sealed with the seal of KS. Thereafter, SHO PS Tappal District, Aligarh, UP was also informed regarding apprehension of accused and CCL 'H'. IO with the police team and the accused persons came back to Delhi and got them medically examined at AIIMS hospital. All the exhibits collected from the personal search of accused were deposited in the malkhana.
2.10 As per chargesheet, on 22.03.2012, accused Afsar led the police team comprising of IO, SI Rajkumar alongwith Riyasat to Press Enclave road going towards Sheikh Sarai near ganda nala inside iron fencing and at his instance one red colour bag on which Nike was written was recovered from said place. After opening said bag, the same was found containing transparent polybag. Said polybag was found containing blood stained grey colour shirt, blood stained blue jeans pant, one silver colour knife having dark blood stains on its sharp edge. IO prepared the sketch of said knife. The length of said knife was 14.5cm, the length of handle was 10.3cm and the width of blade was 5cm. The handle of the knife was made up of aluminium. The recovered knife was put in a transparent plastic box and sealed with the seal of KS. The recovered blood stained cloth of accused Afsar were also seized in a plastic container and the same was sealed with the seal of KS. The said bag was found containing another polybag and on checking the polybag was found containing wearing cloth of CCL 'H' and said clothes were kept in separate plastic box and State Vs. Afsar Page no. 7 sealed with the seal of KS. A detailed seizure memo of all the recovered articles was prepared by the IO in the presence of witness Riyasat and IO also prepared the rough site plan of the place of recovery prepared at the instance of pointing out of accused Afsar. Thereafter accused Afsar was taken to place of incident and at his pointing out, pointing out memo of place of occurrence was also prepared.
2.11 On 26.03.2012, IO collected the crime scene report, 18 photographs with negatives and tagged the same with the case file. On 29.03.2012, IO alongwith Ct. Rajkumar reached AIIMS hospital mortuary and collected the PM report 315/12 alongwith inquest papers. In the PM report injury no.1 was opined to be individually sufficient to cause death in ordinary course of nature and time since death was given two and half days.
2.12 On 01.05.2012, SI Mahesh the draftsman from crime branch came to the police station and handed over the scaled site plan. During investigation, IO sent the weapon of offence to FSL Rohini alongwith other exhibits for the expert opinion. As the FSL report was yet awaited at the time of final charge sheet, therefore, subsequent opinion from autopsy surgeon on the PM report was yet to be taken.
2.13 As per the charge sheet, the mother of the accused namely Chhoti after death of her husband had come to Delhi alongwith her children from her first marriage including accused Afsar, and started living with deceased Shaukat. On the date of incident, she was sleeping outside the jhuggi and her said version was State Vs. Afsar Page no. 8 corroborated by the independent witness Qawar Jahan as well as Baby Nisha and after the incident no clue could be found regarding involvement of accused's mother Chhoti and therefore, no investigation qua her was taken up.
3. After completing the investigation, IO filed the charge sheet u/s 302/34 IPC before the court of Magistrate on 15.06.2012 against accused Afsar and CCL 'H' upon which, Ld. Magistrate took cognizance for the offences punishable u/s 302/34 IPC. After compliance of Section 207 Cr.P.C, Ld. Magistrate committed the case to the Court of Session on 25.06.2012 and same came to be assigned to this court on 30.06.2012.
4. Vide order dated 21.08.2012, charges for the offence punishable u/s 302/34 IPC was framed against both accused Afsar and CCL 'H' to which they pleaded not guilty and claimed trial.
5. On 30.03.2013, an application u/s 7-A of Juvenile Justice (Care and Protection of Child) Act 2000 was moved on behalf of CCL 'H' and in the age inquiry conducted by the court, she was found to be Juvenile on the date of offence and accordingly, vide order dated 06.06.2003, she was declared CCL and was directed to be produced before Juvenile Justice Board for the inquiry under JJ Act, 2000.
Prosecution evidence
6. In order to prove its case qua accused Afsar, prosecution examined 19 witnesses. For the sake of easy reference, said witnesses have been categorized under the following heads with reference to the para number where their testimonies have been State Vs. Afsar Page no. 9 discussed in this judgment.
A) Public witnesses (Pg10 to 14)
1. PW1 Sushil Chauhan
2. PW7 Riyasat son of deceased
3. PW9 Baby Nisha - eye witness
4. PW10 Qamar Jahan B) Formal Police witnesses (Pg 14-16)
1. PW3 WHC Vandana
2. PW6 Ct. Devraj photographer crime team
3. PW8 HC Surender Kumar
4. PW11 Ct. Vinod Kumar - special messenger C)Material Police witnesses (Pg 16-28)
1. PW4 Insp. Mahesh Kumar draftsman, Crime branch
2. PW5 Insp. Jitender Incharge Crime Team
3. PW12 SI Raj Kumar
4. PW13 Wct. Sunita Kumar
5. PW14 Ct. Raj Kumar
6. PW15 Ct. Anil Kumar
7. PW19 Insp. Kuldeep Singh (IO) D) Expert witnesses (Pg 28-30)
1. PW2 Dr. Pankaj Kumar
2. PW16 Dr. Nidhi Mittra Clinical Psychologist
3. PW17 SS Badwal Assistant Director CFSL
4. PW18 Dr. Rajanikanta Swain A) Public witnesses
6. PW1 Sushil Chauhan is the owner of plot no. S-21 A. As per his version, he had given said plot to a builder Dinesh Kundra for raising construction on the same and deceased Shaukat was deputed as a guard on said plot by said builder and deceased used to live there with his family including the accused (correctly identified by the witness). He deposed further that construction could not be completed and PW1 started giving Rs.5000/- per month to Shaukat State Vs. Afsar Page no. 10 and later on, he (PW1) came to know that Shaukat had been murdered.
7. PW 7/Riyasat is the son of deceased Shaukat. As per his version his family was comprising of his wife Zarina and three daughters namely Nisha, Neha and Fiza. His father was working as a Chowkidar at Khirki Extn. Village. Further that, on the day when his father was murdered, he received a telephonic call that his father was serious. At that time, he was present at Bhagwati Garden. He deposed further that sometimes he (PW7) used to come and meet his father but his father never told him anything disturbing. Further that, he did not know how his father was murdered. PW7 deposed that his daughters namely Neha and Nisha were taken by his father to his (father's) house three days prior to the incident. Further that, when he (PW7) reached there (at his father's house) his (PW7's) daughters were in the police station. He deposed that he could not say who killed his father or who was the assailant of his father. PW7 deposed further that when he reached at the house of his father at Khirki village, no one told him who had killed his father nor police arrested any person in his presence nor got recovered any clothes/weapon of offence in his presence.
7.1 As PW7 was resiling from his earlier statement, he was cross-examined by Ld. Addl. PP with the permission of the court. During his cross-examination, PW7 admitted that his father Shaukat Ali (deceased) was residing at Khirki village alongwith his stepmother Chhauti and that accused Afsar was the son of his stepmother Chhauti. He also admitted that accused Afsar alongwith his wife were residing alongwith his father Shaukat Ali at Khirki village.
State Vs. Afsar Page no. 11 7.2 Upon being confronted with portion A to A of his
statement u/s 161 Cr.PC i.e. Ex.PW7/A, PW7 categorically denied to have stated to the police that his father had told him that accused used to harass him or that he (accused Afsar) was not having good thinking towards him(deceased). PW7 also denied that accused Afsar alongwith his wife Heena were arrested by the police on his (PW7's) pointing on 22.03.2012 at about 6.15pm or that they had made disclosure statements about their involvement or that they had disclosed about the blood stained clothes or weapon of offence i.e. knife or for getting them recovered. PW7 however, admitted his signatures on the arrest memo Ex.PW7/B and personal search memo Ex.PW7/C of accused Afsar. But, he denied the suggestion that on 23.03.2012, accused had pointed out the place of occurrence vide memo Ex.PW7/D bearing his signature at point A. He categorically denied that accused Afsar had got recovered a handbag containing blood stained clothes or blood stained knife or that the same were seized by the police. PW7 admitted his signature on the sketch of knife Ex.PW7/E and its seizure memo Ex.PW7/F. He denied that police had prepared the site plan of the place of recovery though, he admitted his signature on the said site plan Ex.PW7/G. He deposed that he identified the dead body of his father and police had recorded his statement Ex.PW7/H to that effect bearing his signature at point A. PW7 denied the suggestion that accused Afsar was arrested on his pointing or that he had got recovered his blood stained clothes and the weapon of offence. He denied further that he was deposing falsely or that being step brother of accused, he had been won over. PW7 also refused to identify said clothes and the knife.
State Vs. Afsar Page no. 12
7.3 On being confronted with statement dated 22.03.2012
Ex.PW7/I and statement dated 23.03.2012 Ex.PW7/J u/s 161 Cr.PC, PW7 declined that any such statements were recorded by police on 22.03.2012 after the arrest of accused from Aligarh or on 23.03.2012, at the time of recovery of clothes and knife at his(accused's) instance.
8. PW9/ Baby Nisha is the grand daughter of deceased. She being a minor witness, aged 6 years at the time of offence, as per chargesheet, was put certain preliminary questions by the court to check her competence and capacity to depose in this matter and it is only after recording its satisfaction regarding her competence, the court proceeded to record her version. PW9 in her examination in chief has deposed that Shaukat was her grandfather and he used to reside in village and was already dead. Further that, at the time of death of her grandfather Shaukat, she (PW9) was present at the place where he had died. Further that, her (PW9's) younger sister Neha was also present with her (Pw9) at the time of death of her grandfather. She deposed that one old lady also used to reside with her grandfather and no other person was residing with him. She further stated that after the death of her grandfather, police officials had come there and asked her(PW9) as to how her grandfather had died and she had told the police officials that one person had caught hold of his (deceased's) hands and other person caught hold of his legs and one person slit his throat. She further deposed that at that time, her grandmother was sleeping in a separate room and no other person used to reside in the room occupied by her grandfather. PW9 identified accused to be the same person, who committed murder of her grandfather.
State Vs. Afsar Page no. 13
9. PW 10/Qawar Jahan is also one of the very material witness of prosecution case. As per her examination in chief, in the year 2012, she was residing in jhuggi of Khirki Extn New Delhi. In her neighbourhood, one chowkidar namely Shaukat used to reside in his jhuggi alongwith his wife Chhoti his son Afsar and wife of Afsar. Further that, wife of Shaukat namely Chhoti used to work with some contractor and she used to leave the house for work at about 8am and come back sometimes at 7pm and sometimes 9 pm. PW10 deposed further that accused Afsar had married with CCL 'H' for about 3 months before the incident. Further that, one day prior to the date of incident, accused Afsar came to her (PW10) and informed her that on next day, he (accused Afsar) alongwith his wife CCL 'H' would go to attend a marriage. Further that, on the next day at about 4am, she saw accused and his wife going from their jhuggi and at that time accused Afsar was having a bag in his hand. Further that, at about 7am, Chhotti, the wife of Shaukat told her (PW10) that Shaukat was missing and she was going to search him. Thereafter, PW10 went to her jhuggi for her workplace. At about 11am, PW 10's younger daughter informed her on telephone that someone had murdered Shaukat Chowkidar and police officials had gathered in the area. By the time, PW10 came back to her jhuggi, the dead body of Shaukat was already removed by the police from the spot.
B) Formal Police witnesses
10. PW3/WHC Vandana, is the duty officer. She deposes that on 19.03.2012, she was working as a duty officer at PS Malviya Nagar. On that day on the basis of rukka prepared by SI Raj Kumar, she recorded FIR No.95/12 Ex.PW3/A. PW3 also brought the record DD No.13A Ex.PW3/B, DD No.16A Ex.PW3/C, DD No.19A Ex.PW3/D and State Vs. Afsar Page no. 14 DD No.33A as Ex.PW3/E.
11. PW 6/Ct. Devraj is the photographer of Mobile Crime Team and he deposed on same lines as deposed by PW5. He deposed that after reaching at the spot, one deadbody of a male was found lying there and the neck of the deadbody was slit. Further that he took the photographs at the instance of SI Jitender Kumar, from different angles. After developing the photographs, same were handed over to IO. The photographs were 18 in total. PW8 proved on record the photographs and their negatives as Ex. PW6/P-1 to P-18 & Ex.PW6/P- 19 to P-36 respectively.
12. PW 8/HC Surender Kumar produced register no. 19 and proved the entry at sr. no. 2148, 2151 and 2154 pertaining to this case. He deposed that, as per aforesaid entries in register no.19, on 19.03.12, the case properties/exhibits were deposited by Inspector Kuldeep Singh in the malkhana and MHC(M) had made entries Ex.PW8/A (colly) in that regard on the above said serial numbers. Further that, case property against entries at Sr. No.2151 Ex.PW8/B(colly) were pertaining to seizure memo and personal search memo of accused Afsar and Heena which were deposited by the Inspector Kuldeep Singh. Further that, the entry at Sr. No. 2154 Ex.PW8/C (colly) deposited by Inspector Kuldeep Singh were pertaining to pointing out memo and recovery of blood stained clothes and knife etc.
13. PW11/Ct. Vinod Kumar is the special messenger, who has deposed that on 19.03.2012, duty officer of PS Malviya Nagar handed over him special reports to deliver the same to senior officers and State Vs. Afsar Page no. 15 Area MM and he accordingly delivered the same.
C)Material Police witnesses
14. PW4/Inspector Mahesh Kumar is the Draftsman from Crime Branch. As per his deposition, on 11.04.12, while he was posted as Draftsman in Crime Branch at Police Headquarter, he was called by Inspector Kuldeep Singh. Accordingly, he reached the spot i.e, plot no. S-21-A, Vacant Plot of Sunil Choudhary, Khirki Extn. Malviya Nagar, New Delhi and prepared rough notes of the measurement of said plot on the basis of which, he later prepared the scaled site plan Ex.PW4/A on 01.05.2012 and handed over the same to the IO.
15. PW5/Inspector Jitender is the member of mobile crime team. As per his version, on 19.03.2012, while he was posted at Mobile Crime Team, South District after receipt of message from South Control Room, he alongwith Proficient Finger Print ASI Anup and Photographer Ct. Devraj, reached at S-21, Khirki Extn, Malviya Nagar, New Delhi, where they found a jhuggi in an under construction building. There he also met SI Rajkumar, Inspector Kuldeep and other staff with some public persons. One deadbody with slit neck of male smeared with blood was found lying there. Some broken pieces of bangles were also lying there near the dead body. There was blood on the gadda (mattress). They remained at the spot till 2.15 pm. The photographs were taken by Ct. Devraj. PW5 inspected the place of occurrence and prepared crime scene report Ex.PW5/A bearing his signature at point A.
16. PW12/SI Raj Kumar Singh has deposed that on 19.03.2012, while he was posted as SI in PS Malviya Nagar on emergency duty State Vs. Afsar Page no. 16 from 8am to 8pm, upon receipt of DD No.13A, Ex.PW3/B, he alongwith Ct.Raj Kumar reached at Khirki Extension, House No.S-21 where Ct. Anil Kumar, Beat Incharge met them alongwith two girls aged about 4 and 6 years respectively. They went inside the room and saw that a male dead body was lying between the wall and the bed with face downwards on the ground. By that time, the SHO alongwith other staff members also arrived there. PW12 deposed further that at the instructions of the SHO, PW12 recorded the statement of Ct. Anil Ex.PW12/A bearing his (PW12's) attestation at point A. On said statement, he (PW12) recorded rukka Ex.PW12/B bearing his signature at point A and handed over the same to Ct. Raj Kumar for registration of FIR. Further that, after registration of FIR, further investigation was entrusted to Insp. Kuldeep Singh, who also reached the spot. The IO called up the crime team and crime team inspected and photographed the scene of crime and also lifted the chance prints.
16.1 PW12 deposed further that phone number of deceased's another son namely Riyasat was taken from the landlord. Further that, as per the instructions of the IO, he alongwith Ct. Raj Kumar removed the dead body to AIIMS mortuary and got the same preserved. Ct. Raj Kumar was deputed at the mortuary to take care of the dead body and PW12 came back to the spot. The IO collected the broken pieces of bangles from the spot and prepared the pullanda of the same and sealed the same with the seal of KS and took into possession the pullanda vide seizure memo Ex.PW12/C. IO also collected from the spot the earth control, the blood stained earth control, the blood stained piece of the mattress, one chunni, the broken pieces of the bangles lying on the bed, the broken pieces of State Vs. Afsar Page no. 17 bricks etc. and kept them in a sealed pullanda sealed with the seal of KS and took it into police possession vide seizure memo Ex.PW12/D. The broken pieces of bangles, the blood stained gamchha and torn pieces of papers were also separately sealed with the seal of KS and were taken into possession vide seizure memo Ex.PW12/E. Prior to removal of dead body to the hospital, the IO had removed two diaries from the pocket of the deceased Shaukat Ali and seized the same vide seizure memo Ex.PW12/F. PW12 deposed further that all the case property was deposited by IO. PW12 identified his signature at point A on all the above memos.
16.2 PW12 deposed further that on 21.03.2012, he accompanied the IO to the mortuary where IO conducted inquest proceedings and got the autopsy done on the dead body. After the post mortem, Autopsy surgeon handed over pullandas containing blood stained clothes, containing viscera and blood in gauge of deceased duly sealed with the seal of hospital alongwith the sample seal to the IO and all said pullandas were separately seized by the IO vide memos Ex.PW12/G and H. IO also recorded dead body identification statements of the relatives of the deceased and after the postmortem dead body was handed over to the relatives. The dead body identification statements on record are Ex.PW12/I and J respectively. PW12 identified his signature at point A on all the above memos.
16.3 PW12 deposed further that on 22.03.2012, on receipt of secret information by the IO, PW12 alongwith the IO Insp. Kuldeep Singh, Ct. Anil Kumar, one lady constable and the son of deceased namely Riyasat went to Hamid Pur bus depot in District Aligarh where State Vs. Afsar Page no. 18 after sometime accused Afsar and his wife CCL 'H' arrived and were apprehended at the instance of Riyasat. CCL 'H' was apprehended by lady constable. IO interrogated both the accused and his wife, arrested them vide arrest memo Ex.PW7/B and Ex.PW12/K. PW12 deposed further that IO conducted the personal search of accused Afsar vide memo Ex.PW7/C whereas, personal search of CCL 'H' was done by lady Ct. Sunita. During course of interrogation both the accused Afsar and CCL 'H' made disclosure statement Ex.PW12/L and Ex.PW12/M respectively. PW12 deposed further that the local police was informed about the arrest of the accused persons and thereafter, they both were brought to Delhi, were got medically examined and put behind the bars.
16.4 Further as per examination in chief of PW12, on 23.03.2012, accused Afsar led the police team to the place of occurrence and pointed out the same vide pointing out memo Ex.PW7/D. PW-12 further testified that pursuant to his disclosure statement, accused Afsar led them near ganda nala Sarai Kale Khan towards the side of fencing from where he got recovered red colour bag containing one blood stained knife and blood stained clothes of Afsar and CCL 'H'. The IO prepared the sketch of recovered knife Ex.PW7/B. The IO prepared separate pullandas of recovered clothes and the knife and separately sealed the same with the seal of KS and took the same into police possession vide seizure memo Ex.PW7/R. The IO also prepared the site plan of the place of recovery Ex.PW7/G. 16.5 PW12 deposed further that on 22.03.2013, at the time of arrest of CCL 'H' IO had also seized her wearing bangles in the presence of WCt. Sunita and Riyasat son of deceased and same were State Vs. Afsar Page no. 19 kept in two plastic containers which were converted into pullanda with the help of Doctor tape and sealed with the seal of KS and seized it vide seizure memo Ex.PW12/C. 16.6 PW12 identified the case property i.e. piece of mattress as Ex.PW14/P1, black colour pant having dark stains as Ex.PW14/P2 and as per his version, same were recovered and sealed in his presence from the spot. PW12 also identified piece of brick Ex.PW14/P3 seized from the place of incident; one dupatta having brown stains as Ex.PW14/P4; gaamchha having brown stains as Ex.PW14/P5; pieces of printed papers as Ex.PW14/P6. PW12 further identified pieces of broken bangles in red and black colour lying in three different parcels B1, B2 and B3 as Ex.PW14/P7, Ex.PW14/P8 and Ex.PW14/P9 respectively. PW12 further identified blue colour Jeans pant of accused Afsar as Ex.PW12/P2, shirt as Ex.PW12/P3, the printed ladies shirt as Ex.PW12/P4, salwar as Ex.PW12/P5 and knife having rust on the blade with aluminum handle as Ex.PW12/P6.
17. PW13/WCt. Sunita Kumari is the member of investigation team. As per her deposition on 22.03.2012, while she was posted as constable at PS Malviya Nagar. She alongwith Ct. Kapil, SI Rajkumar went to Aligarh and at Village Hamidpur, at the instance of one person, IO SI Rajkumar apprehended accused Afsar and interrogated and arrested him. The two ladies, who were accompanying accused Afsar were also arrested and their names were disclosed as CCL 'H' and Fiza. CCL 'H' was also arrested vide memo Ex. PW12/A and her personal search was conducted vide memo Ex. PW13/A. 17.1 PW13 further deposed that thereafter, they went to local State Vs. Afsar Page no. 20 police station and information of arrest of accused persons was given to them and then accused persons were brought to Delhi and their medical examination was got conducted. She deposed further that no other proceedings were conducted in relation to the present case in her presence.
17.2 PW13 was cross examined by ld. Addl.PP with the permission of court since she was not coming out with true facts as stated in her previous statement. In her cross examination, she admitted that she was accompanied by IO and Ct. Anil instead of Ct. Kapil. She deposed further that she did not recollect whether CCL 'H' and Fiza were the same person. She however admitted that secret informer met them at the Hamidpur and informed the IO that accused Afsar and his wife were present near "Bhatta" and they would arrive at the bus stand to go to the house of their relatives. She further admitted that IO requested 5-6 public persons to join the investigation but, none agreed and that after the arrest of Henna, her bangles were seized by the IO and the same was sealed with the seal of KS vide seizure memo Ex. PW10/C. PW13 further admitted that IO recorded the disclosure statement of CCL "H" as Ex. PW12/M. She deposed further that she could not recollect all the details of the facts and investigation conducted in her presence due to lapse of the time.
17.3 PW13 deposed further that on 17.03.2015, when her examination in chief was recorded in court, she inadvertantly deposed that two ladies had accompanied accused Afsar. However, at that time only one lady was accompanying him and her name was revealed as CCL 'H'. PW13 identified case property i.e. five dark red bangles having golden spots and four dark black bangles having State Vs. Afsar Page no. 21 golden spots taken out from two parcels as Ex.PW/13/P1 (Colly).
18. PW-14/Ct. Raj Kumar is member of the investigation team. As per his deposition on 19.03.12, while he was posted as Constable in PS Malviya Nagar on emergency duty with SI Raj Kumar, at 11.20 am, on receipt of DD No. 13A regarding death of one person at Khirki Extn., he alongwith IO went to spot where Ct. Anil met them and informed that offence of murder had been committed in a jhuggi. In the jhuggi, one dead body was lying between the wall and bed. SHO PS Maliya Nagar also reached there. The clothes of deceased were stained with blood. Few broken pieces of bangles were also lying in the room. SI Raj Kumar prepared the ruqqa and handed over the same to him for registration of FIR at about 1.40 pm. He took the ruqqa to the PS, got the FIR registered and came back at the spot with original ruqqa and copy of FIR and handed over the same to the IO SI Raj Kumar. IO seized the clothes and broken bangles from the spot vide memo Ex. PW-12/B which bears his signature at point B. 18.1 PW14 deposed further that after registration of FIR, he returned to the spot alongwith Insp. Kuldeep Singh as further investigation was marked to Insp. Kuldeep Singh. Crime team was called at the spot. The photographer of crime team had taken photographs of the place of incident. Further that dead body of deceased was inspected by the members of crime team and there was a cut mark on the neck of deceased and injury marks on the left shoulder. Further that, two pocket diaries were recovered in the personal search of deceased and some telephone numbers were written in those two pocket diaries. Those diaries were taken into police possession vide seizure memo already exhibited as Ex.PW12/F. State Vs. Afsar Page no. 22 Further that, son of the deceased reached at the spot and identified the dead body of his father. PW-14 further stated that thereafter, he alongwith SI Raj Kumar took the dead body of deceased to AIIMS mortuary and got it preserved there and Ct. Anil was deputed to safeguard the dead body. Thereafter, PW14 alongwith SI Raj Kumar again returned to the spot and lifted some pieces of broken bangles lying on the mattress and on the ground and some torn pieces of paper, one towel having blood stains lying near the cot.
18.2 Further that, all these articles were taken into police possession vide seizure memo already exhibited as Ex.PW12/E bearing his signature at point B. These articles were sealed in three parcels with the seal of KS. Small piece of mattress having blood stains, one black colour pant lying on the mattress, one black colour dupatta lying on the mattress, small piece of brick lying under the bed where the dead body was lying, some broken pieces of bangles lying on the mattress and some broken pieces of bangles lying in the said room were also lifted and the said articles were sealed in separate parcels with the seal of KS and were taken into police possession vide seizure memo already exhibited as Ex.PW12/D. PW14 deposed further that thereafter they left the spot for police station alongwith aforesaid parcels and those parcels were handed over to the MHCM. His (PW14's) statement was recorded by Insp. Kuldeep Singh.
18.3 PW14 identified case property i.e. piece of foam with piece of cloth cover having brown stains as Ex.PW14/P1; black colour pant having dark stains as Ex.PW14/P2; piece of brick as Ex.PW14/P3; dupatta having brown stains as Ex.PW14/P4;gamchha as Ex.PW14/P5; pieces of printed papers as Ex.PW14/P6; pieces of broken bangles as State Vs. Afsar Page no. 23 Ex.PW14/P7; pieces of broken bangles in red and black colour from another parcel as Ex.PW14/P8; pieces of broken bangles in red and black colour as Ex.PW14/P9.
18.4 With the permission of court, Ld. Addl. PP asked leading question to the witness wherein PW14 admitted that when he reached at the spot alongwith Insp. Kuldeep Singh, one person namely Sunil Chauhan, owner of plot no.S-21A met them and he told the name of deceased as Shaukat and also informed Riyasat, son of deceased Shaukat about the incident and requested him to reach at the spot urgently. PW14 further admitted that on receipt of that information, Riyasat reached at the spot alongwith his wife Zareena. WSI Santosh Chauhan was also called at the spot by Insp. Kuldeep Singh to make inquiries from Neha and Nisha both daughters of Riyasat. PW14 further admitted that WSI Santosh reached at the spot and made inquiries from Neha and Nisha but they were not in a position to speak anything due to perplexed state of mind. He further admitted that WSI Santosh took both the girls alongwith their mother Zareena to Swachetan Society for Mental Help at Vasant Kunj and thereafter, WSI Santosh returned to the spot and handed over to Insp. Kuldeep Singh a report prepared by NGO on the basis of facts inquired by them from the girls.
18.5 PW14 further admitted that on 21.03.2012, he again joined the investigation alongwith SI Raj Kumar and Insp. Kuldeep Singh and reached at AIIMS hospital, where autopsy surgeon handed over to the IO clothes of deceased worn by him at the time of incident which were duly sealed in a parcel with the seal of Department of Forensic medicine and taken into police possession vide seizure State Vs. Afsar Page no. 24 memo already exhibited as Ex.PW12/G. PW14 further deposed that doctor also handed over one another parcel containing viscera box and blood sample duly sealed with the seal of Forensic Department and said parcel was taken into possession vide seizure memo Ex.PW12/H.
19. PW-15/Ct. Anil Kumar is also one of the material witnesses. He in his examination in chief deposed that on 19.03.2012, he was posted at PS Malviya Nagar, at about 11:00 AM while petrolling in the area of Khirki Extn, he reached near Sai Baba Mandir, and saw two girls crying near Jhuggi No. S-21 A. He inquired from them about their reason for crying. One of those girls aged about 6-7 years old namely Nisha told him that her grand father namely Shaukat had been killed by her uncle Afsar, her aunt and choti dadi. When PW15 entered in the Jhuggi, he found a dead body of a person aged about 50-55 years old having injury on his neck. Lot of blood was also scattered near the body. He immediately informed PS Malviya Nagar. After some time, SI Raj Kumar alongwith Ct. Raj Kumar reached at the spot. PW15 narrated aforesaid facts to SI Raj Kumar and his statement Ex.PW12/A was recorded by SI Raj Kumar. On his statement rukka was prepared and handed over to Ct. Rajkumar for registration of FIR. After registration of FIR, Ct. Raj Kumar alongwith Inspector Kuldeep Singh arrived at the spot. PW15 further deposed that at his instance, Inspector Kuldeep Singh prepared site plan Ex.PW15/A. The dead body of deceased was sent to mortuary AIIMS through Ct. Raj Kumar. After preparation of rough site plan, he was also sent to mortuary AIIMS to relieve Ct. Raj Kumar and he was deputed to safeguard the dead body of Shaukat. Thereafter, Ct. Manoj was deputed to safeguard the dead body. On arrival of Ct. Manoj, he State Vs. Afsar Page no. 25 went to PS Malviya Nagar and his statement was recorded in that regard.
20. PW19/Insp. Kuldeep Singh is the Investigating officer, who has deposed on the same lines as the other members of investigation team.
20.1 He has deposed that on 19.03.2012, investigation of this case was assigned to him after registration of FIR and he went to the spot S-21A, Khirki Extension, Malviya Nagar where SHO Malviya Nagar and other staff and crime team were found present. He inspected the spot and prepared rough site plan Ex.PW15/A at the instance of Ct. Anil and received crime team report Ex.PW5/A; after the identification of dead body by Riyasat and his wife Jarina, the dead body was sent to AIIMS hospital through Ct. Raj Kumar and SI Raj Kumar; PW19 seized two pocket diaries recovered from the pocket of shirt of deceased vide seizure memo Ex.PW12/F and lifted exhibits from the spot and seized them vide seizure memo Ex.PW12/D and Ex.PW12/E (details already mentioned in the deposition of PW12 hence not repeated for the sake of brevity).
20.2 PW19 deposed further that on 21.03.2012, he prepared inquest papers and in the presence of family members of deceased, he also filled up Form 25.35 (1) (b) Ex.PW19/A and application to conduct postmortem on the dead body of deceased as Ex.PW19/B. The postmortem was conducted on the body of deceased vide PM report Ex.PW18/A and after postmortem dead body was handed over to the family members; PW19 also proved the seizure memo Ex.PW12/G and Ex.PW12/H (details already mentioned in the deposition of PW12 hence not repeated for the sake of brevity).
State Vs. Afsar Page no. 26 20.3 PW19 deposed further that on 19.03.2012, he called WSI
Santosh Chauhan at the spot and granddaughter of deceased namely Nisha aged about 6 years who was present at the spot at the night of incident was sent to Sav Chetan Society for Mental Health, Vasant Kumar for her examination, where Dr. Nidhi Mitra examined said child and recorded her version Ex.PW16/A in the presence of her mother Zarina.
20.4 PW19 deposed further that on 22.03.2012, Riyasat came to police station and gave an information about presence of accused Afsar and Heena at Tappal, Aligarh, UP. Upon said information a raiding team was constituted and Riyasat was also joined in the raiding team and as per information, at about 6.30 pm, on the pointing out of Riyasat, accused Afsar and CCL 'H' were apprehended from Hamidpur bus stop; they were arrested and their personal search was conducted. Accused Afsar was arrested vide arrest memo Ex.PW7/B and his personal search was conducted vide Ex.PW7/C. Personal search of CCL 'H' was conducted vide memo Ex.PW13/A and she was arrested vide arrest memo Ex.PW12/K. Accused Afsar was correctly identified by witness in the court. PW19 also proved the disclosure statement of accused Afsar Ex.PW12/L and of CCL 'H' Ex.PW12/M and seizure of wearing bangles of CCL 'H' vide seizure memo Ex.PW12/C. PW19 deposed further that both the accused were brought to Delhi after the information regarding their arrest was lodged at local police station Tappal at Aligarh, UP.
20.5 PW19 further deposed regarding recovery of a red colour bag having logo of nike, at the instance of accused Afsar on State Vs. Afsar Page no. 27 22.03.2012 from a red colour bag having logo of nike from the Press Enclave Road, Khirki village, near Nala, inside a wire fencing from bushes, the said bag was found containing two plastic bags; one containing blood stained shirt, trouser and a knife and another bag containing blood stained cloth of JCL 'H'; PW19 further proved the pointing out memo and recovery memo of aforesaid articles vide memo Ex.PW7/F; sketch of knife Ex.PW7/B; site plan of place of recovery Ex.PW7/G. PW19 deposed further that accused Afsar and CCL 'H' were produced in court and sent to JC and case properties and exhibits were deposited in malkhana and then sent to FSL. He recorded statement of witnesses and got prepared scaled site plan Ex.PW4/A. After completion of investigation, he prepared chargesheet and filed the same in court; during investigation he collected FSL report bearing no.2012/B-2325 dated 25.10.2012 and serology report dated 25.10.2012 Ex.PW19/B and Ex.PW19/C and filed the same on record.
D) Expert witnesses
21. PW2/ Dr. Pankaj Kumar, has deposed that Dr. Anil Kumar Jha, who had prepared MLC of deceased had worked with him at AIIMS and he can identify his handwriting and signature. PW2 proved the MLC No.28811/12 dated 19.03.2012 of patient Shokat Khan as Ex.PW2/A by identifying the signature of Dr. AK Jha on the same. As per MLC, patient was brought with the alleged history of assault and after examining the patient Dr. Anil declared him brought dead. PW2 deposed further that as per record, during the local examination of patient, one deep incised wound on neck was found extended from mid line bilateral 15 cm exposing thyroid cartilage and great vessels, clot present in the wound and bleeding through nose and rigor mortis State Vs. Afsar Page no. 28 were also present. PW2 identified the handwriting and signature of Dr. Anil on form Ex.PW2/B.
22. PW16/Dr. Nidhi Mittra, Psychologist has deposed that her role was to do counseling of children who had undergone trauma or traumatic events. As per her version, on 19.03.2012, he was called by the police at PS Malviya Nagar for counseling of a child namely X (real identity not disclosed). When PW16 reached at the police station and met with the child X, she was very scared and was crying and she was finding it very difficult to talk, she was almost petrified. PW16 counseled the child X. During the counseling the child felt calmer. As the child began to calm down, she started talking about the incident. Thereafter, PW16 told the police officials about the status of the child. The counseling report prepared by Dr. Nidhi Mitra is Ex.PW16/A bearing her signature at point A.
23. PW17/S.S. Badwal Sr. Scientific Officer (Physics) has deposed that on 09.04.2012, he received 5 sealed plastic jars sealed with the seal of KS and same were marked to him as B1-B5. On physical examination, those pieces of bangles marked Ex.B1 to Ex.B5 were found similar in respect of colour, texture, design, pattern, thickness and curvature and he prepared report in this regard Ex.PW17/A. PW17 identified broken pieces of bangles of red and black colour as Ex.PW14/P7; Ex.PW14/P8, Ex.PW14/P9, Ex.PW17/P1, and Ex.PW17/P2.
24. PW18/Dr. Rajanikanta Swain was deputed by Dr. Adarsh Kumar, Addl. Professor to prove postmortem report No.315/12 prepared by Dr. Karthik Krishna and Dr. Sudipta Ranjan Singh since State Vs. Afsar Page no. 29 both the said doctors had already left the services of the hospital. PW18 identified their writing and signatures as he had worked with them and also seen them writing and signing in the official course of duty. PW18 proved the postmortem report of deceased Shaukat Khan as Ex.PW18/A bearing signatures of Dr. Karthik and of Dr. Sudipta Ranjan Singh at point A and B. PW18 deposed that as per opinion, the cause of death was cut throat injury and injury no.1 was individually sufficient to cause death in the ordinary course of nature. As per record, viscera was preserved to rule out concomitant intoxication.
25. Except seven witnesses, all other prosecution witnesses were duly cross examined by the defence counsel and relevant part of their cross examination shall be discussed in the later part of the judgment.
Statement U/s. 313 Cr.P.C.
26. In the statement of accused U/s. 313 Cr.P.C, accused was confronted with all the incriminating material which came on record during course of trial but he denied the case of the prosecution as incorrect and stated that he had been falsely implicated in present FIR and wrongly identified by witnesses in the court as a murderer on the tutoring of police. He came up with the plea that he alongwith his wife had left the house of deceased in the evening of 18.03.2012. He denied that he gave any disclosure statement or pointed out any place of occurrence or anything was recovered at his instance or from his possession. Though he admitted that he had been staying in the jhuggi with the deceased till 18.03.2012, but he stated that on 18.03.2012, he left the house of Shaukat and reached the Brickkiln at village Tappal and from there he went to village Noorpur, District State Vs. Afsar Page no. 30 Bulandshahar, UP and reached village Noorur, Bullandshahar, UP in the morning of 19.03.2012. He further deposed that he did not know what happened in the house of Shaukat after he left for village Noorpur on 18.03.2012. He further deposed that he was innocent and falsely implicated in this case. Accused chose to lead defence evidence and examined two defence witnesses.
Defence evidence
27. DW1/ Abdul Hamid is the owner of Brickkiln situated at village Saraul, tehsil Jewar, UP having about 100-125 workers.He deposed further that he was knowing Afsar Ali, who used to work as a labourer since year 2008-2009 at his abovesaid Brickkiln and that he met Afsar Ali lastly on 18.03.2012 at about 4-4.30pm at his Brickkiln. Further that Afsar Ali had come to his Brickkiln for job, he (accused Afsar) stayed whole night in his Brickkiln and on next date i.e. on 19.03.2012 at about 2-2.30pm he left the Brickkiln to attend marriage at village Anup Shahar. Further that, Afsar Ali had come to Brickkiln alongwith his wife and she also left with Afsar Ali to attend the marriage on 19.03.2012.
28. DW2/Aavid Khan is a labourer, who had been knowing Afsar Ali who also belonged to his locality. He deposed that lastly he met Afsar Ali on 19.03.2012 at about 11.-11.30am at house no.197, Lacchhampur, Anupshahr on the occasion of marriage of Mohd. Ali. At about 11.30 am - 12pm, he alongwith Afsar Ali and other guests proceeded for the bride's place at village Attrauli, Aligarh. After attending the marriage at Attrauli, Afsar Ali left for Aligarh and he came to Anupshahr. Thereafter, he did not have any contact with Afsar Ali.
State Vs. Afsar Page no. 31
29. I have given my thoughtful consideration to the rival submissions raised from both the sides and also carefully gone through the entire record.
Arguments of Defence counsel
30. Sh.Rajiv Jain, Ld. Legal Aid Counsel appearing for accused has argued that the case of the prosecution suffers from grave and material discrepancies and hence, the same is not sufficient to record conviction. Counsel further argued that the prosecution case is based on circumstantial evidence but prosecution has miserably failed to prove any of the material link of circumstantial chain so as to connect the accused with the commission of the offence. It is further argued that even from the statement of alleged eye witness Baby Nisha PW9 and last seen witness namely Neha, there is no clinching evidence to prove the complicity of the accused in the alleged offence. It is further argued that the material on record is totally lacking as no reliable evidence, direct or indirect evidence has been adduced to prove the guilt of accused in the alleged offence. Counsel further argued that except the disclosure statement of accused, nothing has been brought on record to connect the accused with the alleged offence.
30.1 Counsel further argued that there is no clinching evidence on record to prove the fact that the accused or his wife CCL 'H' were present in the house on the fateful night when deceased was murdered. The only witness examined in this regard is deceased's granddaughter Baby Nisha whose testimony is full of contradictions and inconsistencies. It is further argued that as per the deposition of Baby Nisha/PW9, on the date of alleged incident, her grandmother State Vs. Afsar Page no. 32 Chhotti was also present in the same plot where the deceased was found dead. Further, as per said child witness, there were three persons involved in the murder of deceased, as PW9 said one caught hold of legs of deceased, one caught the hands and third one slit him (deceased) with the knife. It is argued that despite the presence of Chhotti in the same plot at the time of alleged incident, the police did not examine either Chhoti or the other child namely Neha. Counsel further argued that the room of the deceased was a small room as is also evident from the photographs placed on record and considering the fact that his wife was also present outside the jhuggi, it is highly unlikely that despite having seen the murder in the night, the child would not have disclosed it to her daadi/grandmother Chhotti or any neighbour about the murder till 11.00am, when she was allegedly seen crying outside the jhuggi by Ct. Anil Kumar PW15. It was further argued that accused was step brother of PW7 Riyasat, hence, PW7 got him falsely implicated with the help of his daughter. Further, it was argued that there was possibility of involvement of deceased's wife Chhoti in the murder of deceased as she was his (deceased's) second wife and deceased used to indulge in constant fights with her.
30.2 It is further argued that even the alleged recovery of weapons of offence at the instance of accused has not been proved as the only independent witness to said recovery namely Riyasat turned hostile and did not support the prosecution case. Even othewise, it is of no help to the prosecution case for the reason that the recovery was effected from an open place accessible to general public and hence, the prosecution cannot draw any aid from Section 27 of Indian Evidence Act. It is further argued that the witness Qamar Jahan, who has been examined as PW10, has also come up with vague and shaky State Vs. Afsar Page no. 33 version making her totally unreliable.
Arguments of Ld. Addl. PP
31. Ld. Addl. PP Sh. Pravin Rahul, has vehemently argued that prosecution has duly proved its case beyond reasonable doubt on record both by direct and indirect evidence and each link of circumstantial chain has been duly proved by clinching and cogent evidence of prosecution witnesses. It is further argued that pursuant to disclosure statement of accused, the weapons of offence i.e. the knife and blood stained clothes of accused were also recovered and the blood on knife as well on the clothes were found to be human blood. It is further argued that from the version of the neighbour PW10 Qawar Jahan, it is clear that just in the next morning of the alleged incident, she had seen the accused and his wife CCL 'H' leaving the jhuggi on the pretext of attending a marriage at their native place at Noorpur, UP, which itself is a strong circumstance indicating their involvement in the alleged offence. Further, as per FSL report Ex.PW.17/A, the broken pieces of bagles recovered from the place near the dead body of deceased, were found matching with the bangles of CCL 'H', which she was wearing at the time of her apprehension/arest in this case. Said bangles were seized by police vide seizure memo Ex.PW12/C. Furthermore, baby Nisha, examined as PW9 is an eye witness as she herself had witnessed the incident of murder of her grandfather while she was present in the jhuggi with her younger sister Neha and PW9 has given a coherent and clinching version of alleged incident attributing clear allegations of murder upon the accused, who is none else but her own uncle.
State Vs. Afsar Page no. 34 Court's Discussion on Facts, Evidence and Relevant Law
32. Since the case of prosecution is based on both direct and indirect/circumstantial evidence, all the circumstances should in the first place be conclusively proved; the circumstances so proved must unerringly point to the guilt of the accused; the circumstances proved must form a complete chain of evidence not to leave any reasonable ground for conclusion consistent with the innocence of the accused and the circumstances proved must be such that within all human probability the act must have been done by the accused.
33. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by touch stone of law relating to circumstantial evidence laid down by Hon'ble Apex Court as far back as 1952 in Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343, which is the basic judgment of the Hon'ble Apex Court on appreciation of evidence, when the case depends only on circumstantial evidence and the same has been consistently relied upon in later judgments. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, the three Judge Bench of the Hon'ble Supreme Court relying on Hanumant Govind Nargundkar (supra) set out the conditions which must be fulfilled before a case against the accused can be said to be fully established. The conditions are:
"1. The circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established,
2. All the facts so established should be consistent only with the hypothesis of the guilt of the accused.
3. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.
State Vs. Afsar Page no. 35
4. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and
5. It must be such as to show that within all human probability the act must have been done by the accused."
34. In the case of G. Parshwanath vs. State of Karnataka, (2010) 8 SCC `3, this Court elaborately dealt with the subject and held as under:
"23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and there relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
35. In the instant case, following are the different links of chain of circumstances constituting certain primary facts on which the prosecution has relied upon and led evidence to bring home the guilt of the accused persons.
(i) As per PM Report Ex.PW18/A, death of deceased was a homicidal death and time since death was 2½ State Vs. Afsar Page no. 36 days from the date and time of postmortem.
(ii) Deceased was residing in his jhuggi with his wife Chhoti, son Afsar (accused) and daughter in law (CCL 'H') prior to his death.
(iii) One day prior to the incident i.e. on 18.03.2012, accused Afsar informed PW10 that on the next day, he alongwith his wife would go to attend a marriage and on the very next day i.e. on 19.03.2012 at about 4am, PW10 had seen accused and his wife leaving their jhuggi where they were residing with the deceased and at that time, accused Afsar was carrying a bag in his hand.
(iv) On 19.03.2012 at 11am, the granddaughters of the
deceased namely Nisha and Neha were found
crying outside the jhuggi of the deceased by PW15 Ct.Anil who was on petrolling duty in the area of Khirki extension and baby Nisha informed him that her grandfather had been killed by her uncle (Afsar), aunt and daadi.
(v) As per the eye witness PW9 Baby, her uncle accused
Afsar had committed murder of the deceased in
her presence.
(vi) The version of Riyasat Ali proving the presence of
his daughter Baby Nisha at the house of deceased on the date of alleged incident.
(vii) Seizure of broken bangles from the spot.
(viii) The arrest of accused Afsar and his wife CCL 'H' on 22.03.2012 from the village Lakhampur, Tehsil Anup Shahar, District Bullandshahar, UP.
State Vs. Afsar Page no. 37
(ix) Seizure of wearing bangles of CCL 'H' vide seizure memo Ex.PW12/C.
(x) Recovery of blood stained knife and blood stained clothes of accused and his wife on 23.03.2012 by the police pursuant to disclosure statement of accused that he alongwith his wife had killed the deceased with said knife on the fateful date and after the offence they had removed their blood stained clothes and thrown the blood stained knife as well as the clothes near naala in Sarai Kale Khan, Delhi.
(xi) Blood on recovered knife and clothes of accused was found to be human blood as per FSL report Ex.PW19/B & Ex.PW19/C.
(xii) As per FSL report No2012/P-2323/PHY-89/12 Ex.PW17/A, the wearing bangles of CCL 'H' which were seized after her apprehension got matched with the broken pieces of bangles seized from the spot.
(xiii) The deceased used to have a bad eye on CCL 'H' and in order to teach him (deceased) a lesson, both the accused and CCL killed the deceased.
36. Let us now embark upon the evidence adduced on record to prove the above circumstances to determine as to whether they have been conclusively proved on record by the prosecution, if so, whether from said facts so proved on record a conclusion of guilt can be drawn against the accused. For said purpose, we shall deal with each of the above circumstances given above in preceding para one State Vs. Afsar Page no. 38 by one.
Circumstance (i): As per PM Report Ex.PW18/A, death of deceased was a homicidal death and time since death was 2½ days from the date and time of postmortem.
37. To prove the homicidal death of deceased, prosecution has examined PW2 Dr. Pankaj Kumar and PW18 Dr. Rajanikanta Swain, who proved MLC and PM report of the deceased. MLC of the deceased was prepared by Dr. Anil Kumar with whom PW2 had worked at AIIMS and he identified the signature of said doctor on the MLC No. 28811/12 dated 19.03.2012 Ex.PW2/A. As per the version of PW2, the patient was brought to the hospital with the alleged history of assault and after examination he was declared dead. As per the MLC Ex.PW2/A, the patient was having one deep incise wound on the neck which extended from midline bilateral 15 cm exposing the thyroid cartilage. The testimony of said doctor remained unrebutted as he was not cross examined.
37.1 The PM report of the deceased was prepared by Dr.Kartik Krishna and Dr. Sudipta Ranjan Singh and as per the version of PW18, both the said doctors had already left the hospital PW18 and in such eventuality, after the PM report has been proved on record by the substitute doctor, the opinion of the doctor contained in PM Report can be safely relied upon by taking aid of section 32 Indian Evidence Act. PW18 was conversant with the handwriting and signatures of both the concerned doctors as he had worked with them and had seen them writing and signing in the course of his official duty. PW18 duly proved on record the PM report Ex.PW18/A and deposed that injury no.1 was individually sufficient to cause death in ordinary course of State Vs. Afsar Page no. 39 nature. In his cross-examination, he further deposed that he was not aware about the contents of the PM Report. He however, denied that he had never worked with the concerned doctor or that he had not seen them writing and signing during official duties. It appears that during cross examination certain typographical error crept up while recording answers to the suggestions put to PW18 but, as the examination has to be read as a whole therefore, it can easily be inferred that the witness had denied the suggestion put to him that injury no.1 was not individually sufficient to cause death in ordinary course of nature, though in the evidence sheet it was recorded otherwise due to typographical error.
37.2 Even otherwise, PW18 had come just to identify the signature and handwriting of doctor concerned on the PM Report Ex.PW18/A, as the opinion of the doctor concerned is quite evident from the PM report wherein injury no.1 was opined to be individually sufficient to cause death in ordinary course of nature. Even otherwise, looking at the injuries caused to deceased in the photographs placed on record, it can easily be inferred that slit/incised wound on the neck was individually sufficient to cause death in ordinary course of nature. As per PM report, viscera was preserved to rule out concomitant intoxication. But as per viscera report which is lying on record, no intoxication was found in the viscera.
37.3 Even PW15 Ct.Anil, who first reached the spot has deposed in his examination that on 19.03.2012 at about 11am, while patrolling in the area of Khirki Extension, he reached near Said Baba mandir, he saw two girls crying near jhuggi no.S-21A and upon inquiry from the girls, he was told that their grandfather Shaukat had been State Vs. Afsar Page no. 40 killed by their uncle Afsar, Aunt and Chhoti Daadi and thereafter, when he entered in the jhuggi, he found a dead body of a person aged 50-55 years having injury on his neck and he immediately informed PS Malviya Nagar about the same. Even PW14 Ct. Rajkumar and PW12 SI Raj Kumar, who had reached the spot upon the information of Ct. Anil have also deposed on the same lines that one dead body of a male was lying in the jhuggi between wall and the bed with face downwards.
37.4 In view of the above evidence on record, I am of the view that prosecution has duly proved circumstance (i).
Circumstance (ii) - Deceased was residing in his jhuggi with his wife Chhoti, son Afsar (accused) and daughter in law (CCL 'H') prior to his death.
38. For proving above circumstance, prosecution has examined PW10 Qamar Jahan, PW1 Sushil Chauhan and PW7 Riyasat. I have carefully perused the testimonies of all said witnesses. PW1 Sushil Chauhan is the owner of the plot no.S-21A. As per his testimony, said plot was given to a builder Dinesh Kundra for raising construction and said builder had deputed deceased Shaukat as a guard on said plot. PW1 deposed further that deceased used to live on said plot with his family including the accused, who was correctly identified by PW1.
38.1 PW10 Qamar Jahan is the neighbour of deceased who was living in the adjoining plot of the deceased at the relevant time. As per her version, she was residing in her jhuggi of Khirki extension since year 2012 and in her neighbourhood one Shaukat used to reside State Vs. Afsar Page no. 41 alongwith his wife Chhoti, his son Afsar(accused) and his son's wife CCL'H'. As per her version, one day prior to the incident accused Afsar had come to her and informed her that he alongwith his wife would go to attend a marriage on the next day and on the next day at about 4am, she had seen accused and his wife going from their jhuggi. It is important to mention that version of said witness with regard to deceased living with accused Afsar and his wife CCL 'H' in his (deceased's) jhuggi adjoining to her jhuggi and further regarding her having seen the accused and his wife leaving their jhuggi in the morning of the next day of incident i.e. on 19.03.2012, has gone unrebutted as the testimony of said witness was not controverted by putting any suggestion nor any question was asked from her in this regard. Even the defence plea taken by accused in his statement u/sec 313 Cr.PC was not put to PW10 as no suggestion was put to her that accused had already left for his native place in the evening of 18.03.2012 or that he was not present in the jhuggi in the intervening night of 18.03.2012 & 19.03.2012.
38.2 Even deceased's son Riyasat/PW7 who although did not support the prosecution case qua the involvement of accused Afsar in the alleged offence but, in his cross-examination by ld. Addl. PP, he admitted the suggestion that accused Afsar with his wife whose name he did not remember, were residing with his father Shaukat Ali at Khirki extension. Said fact has not been disputed even by accused during trial or even at the time of his statement u/sec. 313 Cr.PC as the only plea he took to plead his innocence was that he had already left the jhuggi with his wife in the evening of 18.03.2012 i.e. prior to probable time of alleged incident.
State Vs. Afsar Page no. 42
38.3 Considering the aforementioned evidence on record,
prosecution has successfully proved even the circumstance (ii).
Circumstance (iii) - One day prior to the incident i.e. on 18.03.2012, accused Afsar informed PW10 that on the next day, he alongwith his wife would go to attend a marriage and on the very next day i.e. on 19.03.2012 at about 4am, PW10 had seen accused and his wife leaving their jhuggi where they were residing with the deceased and at that time, accused Afsar was carrying a bag in his hand.
39. In support of above circumstance sought to be proved against the accused, prosecution has relied upon the testimony of the neighbour of the deceased namely Qamar Jahan, who has been examined as PW10. Before adverting to her testimony, I may mention here that aforementioned facts assumes importance in proving accused's complicity in the offence in the light of the fact that as per PM report Ex.PW.18/A, post mortem on the dead body of deceased was conducted on 21.03.2012 from 11.45am to 1pm and time since death was about 2½ days which means probable time of death was between 11pm to 1am of intervening night of 18/19.03.2012. Considering the fact, the prosecution has successfully proved that accused and his wife were living with deceased in his jhuggi at the relevant time vide circumstances (ii), the conduct of accused in leaving said jhuggi with his wife in the wee hours on the very next day i.e. on 19.03.2012, becomes relevant in view of section (8) of Indian Evidence Act.
39.1 I have carefully scrutinized the testimony of PW10 given
State Vs. Afsar Page no. 43
in the court. As per her version, in the year 2012, she was residing in jhuggi in Khirki Extension, Delhi and one Shaukat, chowkidar used to live in a jhuggi in her neighbourhood with his wife Chhoti, son Afsar(accused) and daughter in law CCL 'H'. She further deposed that accused Afsar was married to CCL 'H' three months prior to the incident and one day prior to the incident, Afsar had come to her and informed her that on the next day, he alongwith his wife would go to attend a marriage. Further that, on the next day at about 4am, she had seen the accused and his wife going from the jhuggi and at that time accused Afsar was having a bag in his hand. She further deposed that at 7am, wife of Shaukat told her that Shaukat was missing and she was going to search him. Further as per the version of PW10, on the same date at about 11am, she was informed by her younger daughter on telephone that someone had murdered Shaukat chowkidar.
39.2 It is pertinent to note here that in his statement recorded u/sec. 313 Cr.PC, when the accused was confronted with the above version of PW-10, he admitted her testimony to the extent that he was staying with his wife, mother and his step father i.e. the deceased in the neighbourhood of PW-10 and his mother Chotti used to leave the house for work at 8:00 am and come back at 7:00 pm and sometime at 09:00 pm. But, the accused categorically denied the rest of the version of PW-10 and came up with the plea that he alongwith his wife had stayed with his father in his jhuggi till 18.03.2012 but he left the house of the deceased on 18.3.2012 in the evening for village Noor pur to attend the marriage of some relative and to look for some job there and said fact had been told by him to PW-10 on 17.03.2012. Accused further took the plea that he had left State Vs. Afsar Page no. 44 his father's jhuggi in the evening of 18.03.2012. As per his version, after leaving the house in the evening, he reached Brickkiln at village Tappal and from there he went to village Noorpur, District Bulandshahar, UP in the morning of 19.03.2012.
39.3 As is evident from the above statement u/sec 313 Cr.PC, accused has taken a categoric plea that he had already left the house of the deceased in the evening of 18.03.2012 i.e. prior to the time of alleged incident. But surprisingly, no such suggestion was put to PW10 during her cross examination. As such, the testimony of PW10 to the extent of her having seen the accused and his wife in the jhuggi a day prior to the alleged incident and having seen them leaving the jhuggi on the very next day in early morning at 4am, has gone unrebutted and uncontroverted as neither any question nor any suggestion was put to the witness PW10 to controvert her testimony in this regard. Only two questions were put to PW10 in her cross examination to which she answered that when she came to her jhuggi many people had gathered there and police officials were taking the dead body of deceased and at that time no one from the family of deceased was present there. No other question or suggestion was put to PW10 to deny her version that accused Afsar had informed her a day prior to the incident that on the next day, he and his wife would go to attend a marriage or that on the next day, at 4pm, she had seen them leaving the jhuggi.
39.4 I may also mention here that in defence evidence, accused has examined two witnesses namely DW1 Abdul Hamid and DW2 Abid Khan. Said witnesses have been examined to prove the defence plea that accused had left the jhuggi in the evening of State Vs. Afsar Page no. 45 18.03.2012 and he attended marriage on the next morning of 19.03.2012 at village Anoop Shahar. However, upon careful scrutiny of testimony of said witnesses, I am of the view that both the witnesses failed to render any help to the accused as none of them supported said plea.
39.5 Unfortunately, DW1 Abdul Hamid, who claimed in his examination that he was running a Brickkiln at village Saraul, Tehsil Jewar, UP, where 100-125 workers were working, has demolished the whole defence by saying that Afsar Ali last met him on 18.03.2012 at about 4-4.30pm as he had come to him at his Brickkiln for a job. He further deposed that accused Afsar stayed whole night in his Brickkiln and accused left the Brickkiln to attend a marriage at village Anoop Shahar only on 19.03.2012 in the afternoon at about 2-2.30pm. The said version of DW1 is going contrary to the plea taken by the accused because as per the accused, he left the jhuggi in Delhi in the evening of 18.03.2012 whereas, as per DW1 accused had met him at his Brickkiln at village Saraul, Tehsil Jewar, UP at the very same time i.e. in the evening of 18.03.2012 at about 4-4.30pm. How can the accused be present at two distant places one in Delhi and one in Tehsil Jewar, UP almost at the same time. Furthermore, said witness did not file any documentary evidence to show that the accused Afsar Ali used to work in his Brickkiln at any point of time. Furthermore, from his version in examination in chief it appears that DW1 was the owner of said Brickkiln whereas, in his cross examination by Ld. Addl.PP recorded on 28.11.2018, DW1 admitted the suggestion that he was not the owner of the Brickkiln. Moreover, even with regard to the time when the accused allegedly reached at his Brickkiln on 18.03.2012, DW1 improved his version on the next date, when he State Vs. Afsar Page no. 46 was recalled for his further cross examination and on that day, he gave a different version by saying that accused and his wife reached there between 8-10pm on 18.03.2012.
39.6 It is also interesting to note that as per DW1, accused and his wife left the Brickkiln to attend the marriage at Anoop Shahar on 19.03.2012, at 2.30pm whereas, the other witness DW2, who was allegedly present in the marriage at Anoop Shehar on 19.03.2012, deposes that he met the accused in the marriage of Mohammad Ali at about 11-11.30am on 19.03.2012. As per the version of DW1, it took 2-3 hours to reach Anup Shahar from the place of his work i.e. the Brickkiln at tehsil Jewar,UP and considering his version that the accused and his wife left for Anoop Shahar at about 2.30pm on 19.03.2012, the accused would have reached between 4.30 to 5.30pm at Anup Shahar i.e. in the evening of 19.03.2012. Whereas, as per the version of DW2, accused had reached Anup Shahar in the morning at about 11-11.30am.
39.7 The above serious discrepancies and contradictions in the version of DW1 and DW2 leave their testimony wholly unreliable and untrustworthy and same are liable to be discarded.
39.8 Considering the above facts and circumstances on the record, I am of the view that prosecution has successfully proved the above circumstance no.(iii) beyond reasonable doubt.
Circumstance (iv) - On 19.03.2012 at 11am, the granddaughters of the deceased namely Nisha and Neha were found crying outside the jhuggi of the deceased by PW15 Ct.Anil who was on State Vs. Afsar Page no. 47 petrolling duty in the area of Khirki extension and baby Nisha informed him that her grandfather had been killed by her uncle (Afsar),aunt and daadi.
& Circumstance (vi) - The version of Riyasat Ali proving the presence of his daughter Baby Nisha at the house of deceased on the date of alleged incident.
40. The above two circumstances are taken up together as they are interconnected.
40.1 As per the prosecution case, deceased was step father of accused while, Riyasat Ali was his step brother. It has been duly established by prosecution and even otherwise, not disputed by accused that at the relevant time, deceased was living his wife Chhoti, son i.e. accused Afsar and daughter in law CCL'H' in his jhggi at Khirki extension. During that time, deceased's real son Riyasat Ali was living at a separate place in Delhi at Bhagwati Garden. As per the version of Riyasat Ali, who has been examined as PW7, his family was comprising of his wife and three daughters namely Nisha (PW9), Neha and Fiza and three days prior to the date of incident, his father had taken his two daughters namely Neha and Nisha to his house at Khirki extension. Further as per his version, on the day when his father was murdered, he had received a telephonic call that his father was serious and when he went there, he found that his daughters were present in the police station.
40.2 As said witness PW7, was resiling from his previous statement, he was cross examined by ld. Prosecutor and during his cross examination by Ld. Addl. PP, he admitted the suggestion that at the relevant time his father i.e. deceased was residing at Khirki village State Vs. Afsar Page no. 48 with his stepmother Chhoti and his step brother accused Afsar and accused's wife. As far as the presence of PW9 Kumari Neha in the jhuggi of deceased on the date of his death is concerned, PW7 has duly supported the prosecution case because as per his version his father i.e. deceased had taken his two daughters namely Neha and Nisha at Khirki extension three days prior to the date of incident and even on the date of incident, his said two daughters were living with his father in his jhuggi in Khirki extension.
40.3 Presence of said two girls at the jhuggi on the relevant day is further corroborated from the version of Ct. Anil Kumar, who has been examined as PW15. PW15 has deposed that on 19.03.2012, he was posted at PS Malviya Nagar, at about 11am he was on patrolling duty in the area of Khirki extension, and at about 11am, near Sai baba mandir, he found two girls crying near jhuggi no.S-21A, and upon inquiry, one of the girls namely Nisha, who was aged about 6-7 years told him that her grandfather Shaukat had been killed by her uncle Afsar, her aunt and chhoti daadi. Except putting a suggestion to deny that PW15 had met two girls near Jhuggi No.S-21A near Sai Baba Mandir, which of course was denied by the witness, defence failed to extract any discrepancies from the statement of PW15 so as to raise any doubt on his version with respect to the fact that he had come to know about the murder of the deceased from Baby Neha, who alongwith her sister Nisha were found crying near jhuggi no.S-21A, where the deceased was residing. As per PW15, DD entry regarding his leaving the police station for patrolling was made by Chitha munshi of the police station and not by him personally. Defence counsel however did not prefer to ask him to produce said DD.
State Vs. Afsar Page no. 49
40.4 After getting the above information from PW9, Ct. Anil
Kumar i.e. PW15 immediately reported the matter to the police station vide DD No.13A which has been duly proved on record by Duty officer HC Vandana as Ex.PW3/B. As per the contents of Ex.PW3/B, dead body of deceased Shaukat Ali was found inside the jhuggi no.S- 21A and pursuant to said DD, SI Raj Kumar with Ct. Raj Kumar left for the spot. SI Raj Kumar as well as Ct. Raj Kumar have been examined in the matter as PW12 and 14 respectively and they have also corroborated the above version regarding the presence of PW9 and her sister in the jhuggi when they reached the spot. As per both the said witnesses upon receipt of DD no.13A, when they reached the spot, they found Ct. Anil Kumar beat incharge on the spot. Further as per PW12/SI Raj Kumar, the two girls aged about 4 and 6 years were also present with Ct. Raj Kumar at the spot and when they went inside the room, dead body of a male was found lying between the wall and the bed with the face downwards.
40.5 Considering the above version of aforementioned witnesses, I feel no hesitation that the prosecution has successfully proved circumstance no.(iv) & (vi) also beyond reasonable doubt.
Circumstance (v) - As per the eye witness PW9 Baby Nisha, her uncle accused Afsar had committed murder of the deceased in her presence.
41. Circumstance (v) is a very important circumstance as it is a direct evidence on which the prosecution is strongly harping upon to prove its case. PW9 Baby Nisha, the granddaughter of deceased State Vs. Afsar Page no. 50 has been cited as an eye witness of the incident. As per chargesheet, the statement of said witness Baby Nisha was recorded by the police on the very same date i.e. on 19.03.2012 in the presence of clinical psychologist Dr. Nidhi Mittra i.e. PW16, after the witness was counseled by her. I have carefully perused said statement which is lying on record as Ex.PW16/A. The said statement was recorded by WSI Santosh Chauhan in question and answer form and same reads as under:-
"Q. What is your name?
Ans. Nisha.
Q. What is your age?
Ans. I do not know. My mother knows it.
Q. Where do you live?
Ans. Delhi, Dwarka.
Q. Who all are there in your family?
Ans. Papa, Mummy, Neha, I and Fiza.
Q. Besides your home, what other places do you visit?
Ans. To daadi at Ghaziabad, to Liyakat Chacha in Ghanori and to daada in Delhi.
Q. How did you come to your daada's house?
Ans. My daada had brought me and my sister Neha from our house.
Q. Had your grandfather come alone to take you?
Ans. Bhabhi Neha had also come with daada.
Q. How did you come with daada?
Ans. By metro.
Q. How many days ago were you brought by your
daada?
Ans. 3-4 days ago.
Q. Who all were there in your daada's house?
Ans. Daada, chacha Afsar, Chachi Neha and daadi. Q. What had happened yesterday in the daada's house? Ans. Nothing.
Q. What had happened yesterday evening in the house of daada?
Ans. Yesterday my daada was drunk and there occurred a State Vs. Afsar Page no. 51 quarrel in the house.
Q. What happened thereafter?
Ans. Then chacha Afsar gave beatings to daada with 'chimta' and then he slit the neck of daada with a knife.
Q. Who was there with chacha?
Ans. Chachi was there with chacha and they both pushed daada and covered him with clothes.
Q. Whether daada was inside the house or outside it when he was attacked with the knife?
Ans. He was inside the house.
Q. Whether Chhoti daadi was in the house at the time when daada was killed?
Ans. No. She used to come late in the night."
41.1 As per chargesheet, at the time of incident, PW9 Baby Nisha was about 6 years of age. The witness was examined in the court on 21.04.2014, i.e. after about one year of the incident and at that time she must be about 7 years of age. Before recording her examination, certain preliminary questions were asked from her by my ld. Predecessor, and after recording his satisfaction that the witness was competent and capable to depose in the matter, her deposition was recorded without oath. It is strenuously argued on behalf of accused that said witness is a tutored witness and her testimony is liable to be discarded for apparent contradictions and infirmities in her deposition. It is further argued that although PW9 has been cited by the prosecution as an eye witness but, she has nowhere deposed in her examination that she was present in the room at the time of alleged offence or that she had herself seen the incident.
41.2 Before dealing the above objection raised by the defence, I may mention that children testifying in the court are perceived to be State Vs. Afsar Page no. 52 more honest than adults, but their limited memory, communication skills and greater suggestibility make them less reliable than adult witnesses. The evidence of a child witness must be evaluated carefully and with circumspection because the child witness is susceptible to be swayed by what others tell him and he is an easy prey to tutoring. But, that does not mean that the court has to begin with the presumption that child witness are untruthful and unreliable. However, assessing the credibility of such witness is undoubtedly a difficult task which needs to be done with great care and caution.
41.3 Let us now have a careful glance of the testimony of said witness in order to ascertain whether the witness had actually witnessed the incident as claimed by the prosecution and if so, whether she was a credible and trustworthy witness.
41.4 In her examination in chief, PW9 Baby Nisha has deposed that Shaukat was her grandfather, who was already dead. As per her version, her younger sister Neha was present with her at the time of death of her grandfather and at that time one old lady also used to reside with her grandfather. She deposed further that no other person was residing with him. Further that, after death of her grandfather, police officials had come there and asked her how her father had died and she had told them that one person had caught hold of his hand and other person caught hold the leg of her grandfather and one person slit his throat. Further that, at that time her grandmother was sleeping in a separate room. She further deposed that no other person used to reside in the room occupied by her grandfather. She testified further that she could identify those persons who had killed her grandfather and when the accused was State Vs. Afsar Page no. 53 shown to her for the purpose of identity, PW9 correctly identified him and stated that he was the same person who committed murder of her grandfather.
41.5 Before adverting to the cross examination of the witness, I may mention here that although witness Baby Nisha in her examination, has not expressly stated that she herself had witnessed the incident but, the very fact that she gave specific details of the manner in which the deceased was allegedly killed, itself shows that she was present in the room at the time of alleged incident and had herself seen the incident. Further, she had stated that she could identify those persons who had killed her grandfather and when she was shown the accused in the court, she identified him and stated that he was the same person who committed murder of her grandfather. Interestingly, not a single suggestion was put to her in her cross examination to controvert or deny her version that accused Afsar had killed her grandfather. Even the defence plea taken by accused was not put to the witness as no question or suggestion was put to her that accused Afsar had already left the house in the evening or that accused was not present in the house/jhuggi at the time of alleged incident. When the witness had given the manner of commission of offence in such details in her examination in chief, it was incumbent upon the defence to put her a question as to from where she gathered the information that it was the accused who killed her grandfather or that deceased was killed in the manner narrated by her in her examination in chief. But, the cross examination on said material aspects is completely lacking as only general suggestion was put to PW9 to the effect that she was deposing falsely at the instance of her father, which of course was denied by her as incorrect.
State Vs. Afsar Page no. 54 41.6 To check the credibility of witness, it is necessary to go
through her cross examination very carefully and minutely. In her cross examination, PW9 deposed that her grandmother was present at the spot when they noticed the dead body of her grandfather. In answer to the question that how did she come to know that her grandfather had died, PW9 replied that she and her sister Neha were sweeping the room/jhuggi with the broom and then she noticed that her grandfather was lying under the wooden bed and when she checked his hand, she found that he was dead. She deposed further that at the time when she confirmed that her grandfather had died, the sun had arisen. She again said that it was a night time. She deposed further that she informed about the death of her grandfather to her father on the same day in the police station.
41.7 It is urged on behalf of accused that on the one hand, PW9 narrated the manner of commission of offence in such details suggesting thereby that she herself had seen the incident but, on the other hand, she stated that she first came to know about the death of her grandfather only in the morning when she was brooming the room. It is further argued that deposition of PW9 is also not in conformity with her statement Ex.PW16/A recorded by the police because, in the cross examination recorded on 21.04.2014, she deposed that she had not seen any quarrel between the grandfather and the accused or her grandmother. But, in the statement Ex.PW16/A, she had stated that yesterday evening i.e. in the evening of 18.03.2012, a quarrel had occurred as her grandfather was drunk and thereafter, her grandfather was beaten up by accused Afsar with 'chimta' and in the night he (accused) slit his neck with knife.
State Vs. Afsar Page no. 55 41.8 Here, I may mention that, in her statement Ex.PW16/A,
PW9 had further stated that alongwith accused Afsar, his wife CCL'H' was also present and they both pushed her grandfather and covered him with clothes. Considering said version of PW9, contained in Ex.PW16/A, it appears that PW9 had seen the accused slitting the neck of grandfather in the night and after slitting, her grandfather was covered with clothes by the accused and his wife and same is also evident from her deposition recorded in the court where also she talked about involvement of more than one person as she says that one of them caught hold of deceased's hand, the other one caught his legs and the one slit his neck. Here, the one who allegedly slit the neck is not any third person but, PW9 is referring to one of those two who were holding deceased's hands and legs.
41.9 One more argument has been raised by the defence that if the witness had seen the accused Afsar slitting the neck of deceased in the night, then how did she notice about her grandfather having died only in the morning and why she did not disclose said fact to her grandmother either in the night or in the morning and why she kept waiting till 11am of the next day till she allegedly disclosed said fact to a police official. Here, we cannot ignore the fact that the witness PW9 at the time of alleged incident was barely 6 years of age. At such tender age, if the child happens to witness such ghastly act of slitting of neck of her own grandfather, it is not likely for her to comprehend that slitting would necessarily lead to his death. The child might have treated it just as an incident of quarrel or domestic violence especially when immediately after slitting the neck, the deceased was immediately covered with clothes. In such situation, State Vs. Afsar Page no. 56 the child of such tender age would be in a state of shock and fright and there is every possibility of her even being threatened not to speak out anything and to sleep immediately. And after the children went to sleep, eventually the dead body was removed and concealed under the wooden bed. In the next morning, when the girls i.e. PW9 and her sister woke up, they did not find their grandfather or even their uncle or aunt in the room, and when they started brooming the room, then only they noticed that dead body of their grandfather was lying between the wooden bed and the wall and noticed that he was dead.
41.10 It is also pertinent to note that deceased was accused's step father while, Chotti was his real mother. PW9 in her cross examination has deposed that Chhoti was present at the time when the dead body of deceased was first noticed. Even if said version of PW9 is believed to be true, then also there is every likelihood that in order to save the accused Afsar, who was Chhotti's real son, she (Chhotti) did not reveal said crime to any one and simply left the house to later feign her ignorance about any such fact. There is nothing in the deposition of PW9 to suggest that she did not tell said fact regarding presence of dead body of her grandfather under the bed to her grandmother Chhotti.
41.11 As regard the contradiction with respect to the quarrel which allegedly occurred in the house in the previous evening, I may note that the witness PW9, who in her examination in chief deposed contrary to the effect that she had never seen any quarrel between the accused and her grandfather, was never confronted with her previous statement dated 19.03.2012 Ex.PW16/A where she referred State Vs. Afsar Page no. 57 to the incident of quarrel occurred on the evening of 18.03.2012. Therefore, in view of Section 145 Indian Evidence Act, the defence cannot be allowed to take any benefit from said contradiction as the attention of the witness was never drawn to said statement at the time of her cross examination in the court so as to give her the opportunity to clarify said contradiction appearing in her previous statement. Furthermore, PW9, who was just about 7 years of age at the time of her examination in the court might have got the impression that she had been asked about the quarrel if any, occurred prior to the date of incident. Whereas, in her statement recorded before police i.e. Ex.PW16/A, she had referred to the incident of quarrel which occurred in the evening of 18.03.2012. As regard the deposition of PW9, that no other person used to reside in the room occupied by her grandfather, I am of the view that said discrepancy in her version is not of much consequence in view of the fact that accused himself has not disputed that he had been living in the jhuggi of deceased at the relevant time. The version of deceased's neighbour that she had seen accused leaving the jhuggi at 4.00am on 19.03.2012, has also gone unrebutted and she was also not controverted on her version that a day prior i.e. on 18.03.2012, accused had come to her to inform that he would leave next day for attending a marriage.
41.12 Considering the aforementioned facts and circumstances of the case, I feel no hesitation in relying upon the testimony of said witness PW9 as an eye witness of the case especially when the fact that at the relevant time PW9 and her younger sister Neha were living with the deceased in his jhuggi has also been duly proved on record.
State Vs. Afsar Page no. 58 41.13 Upon careful scrutiny of testimony of PW9, I find her
testimony cogent and clinching on all material aspects. Although there are few infirmities in the statement but the same are not touching to the core issue regarding the involvement of the accused in the commission of murder of deceased because, even the defence has not disputed the fact that during relevant time when the incident had happened the accused and his wife had been residing with the deceased in his jhuggi and even PW10 had also corroborated said fact and her testimony in that regard has also gone unrebutted. No question or suggestion was put by defence either to PW9 or PW10 to confront them with the defence plea that accused had already left the jhuggi in the evening of 18.03.2012 i.e. much prior to the time of alleged incident.
41.14 Having regard to aforesaid discussion, I am of the view that prosecution has duly proved circumstance (v).
Circumstance (viii) -The arrest of accused Afsar and his wife CCL 'H' on 22.03.2012 from the village Lakhampur, Tehsil Anup Shahar, District Bullandshahar, UP.
& Circumstance (ix) - Seizure of wearing bangles of CCL 'H' vide seizure memo Ex.PW12/C.
42. As per prosecution case, after alleged incident, accused Afsar and his wife CCL'H' left the jhuggi of the deceased in the wee hours of the next day i.e. at 4am on 19.03.2012 and they were arrested by the police from a village Hamidpur in UP, after three days of the incident i.e. on 22.03.2012. In order to prove the aforementioned fact regarding accused's arrest after three days of the State Vs. Afsar Page no. 59 incident, prosecution has examined Lady Ct. Sunita Kumar, SI Raj Kumar, IO Insp. Kuldeep Singh and Riyasat Ali, the son of the deceased. Ct. Sunita Kumar has been cited as the attesting witness of arrest memo of CCL H' available on record as Ex.PW12/K. While, SI Rajkumar is the attesting witness of arrest memo Ex.PW7/B of accused Afsar. Riyasat Ali is however a common attesting witness to both the arrest memos.
42.1 As per prosecution case, during investigation Riyasat had given the information that many of his village people were working as labourer in Brickkiln at Tappal district and accused Afsar and his wife CCL'H' were also hiding there. On said information, IO constituted a team of Ct. Anil, Ct. Sunita and they headed for village Hamid Pur, District Aligarh with the son of the deceased Riyasat. In the evening at 5.30pm, a secret information was received that accused Afsar and CCL'H' were seen in the Brickkiln in the morning and after that they were apprehended by the police from the bus stand of Hamid Pur village.
42.2 With regard to the arrest of the accused and his wife, SI Rajkumar, who was examined as PW12 has deposed that on 22.03.2012, on the strength of a secret information, he alongwith the IO Insp. Kuldeep Singh, Ct. Anil Kumar, one lady constable and the son of deceased namely Riyasat went to Hamid Pur bus depot in district Aligarh and from there they apprehended both the accused and his wife on the identification of Riyasat. Further that, both accused and his wife were interrogated and accused Afsar was arrested vide arrest memo Ex.PW7/B and his wife CCL 'H' was arrested vide arrest memo Ex.PW12/K. I have carefully perused his cross examination wherein, State Vs. Afsar Page no. 60 except putting bald suggestions that accused was not arrested in his presence or that he had never joined the investigation at any point of time or he had conducted all the proceedings while sitting at the police station, nothing material was asked in the cross examination of PW12 so as to raise any doubt on his testimony. Mere fact that the public witness Riyasat who is also cited as an attesting witness to the arrest memo of accused has turned hostile, will not wash away the otherwise clinching evidence of the police witnesses. The above version of PW12 regarding arrest of accused from aforementioned place on 22.03.2012 has been further corroborated by the version of IO Insp. Kuldeep Singh, who was examined as PW19. His version is more or less on the same lines as deposed by PW12.
42.3 PW19 was cross examined at length wherein he deposed that he with SI Raj Kumar, Ct. Anil Kumar, WCt. Sunita and Riyasat Ali were the members of the raiding them and they left for Tappal at 3pm in a private vehicle Tata Sumo the number of which he did not remember. Further that, he had made departure entry in the register maintained at PS but, he did not remember the DD number. Further that they did not inform the concerned local police station about their arrival. He further deposed that near the bus stop where accused was arrested many people were coming and going but he did not ask any public person to join the investigation.
42.4 I have also carefully perused the testimony of PW13 WCt. Sunita Kumari. Even as per her version, a police team left the police station for village Hamid Pur and the team was comprising of IO, SI Raj Kumar and Ct. Kapil and she herself and they left in a private vehicle. Although there is some discrepancy with regard to the date State Vs. Afsar Page no. 61 of arrest as well as the members of the raiding team in her examination in chief. But, she clarified said discrepancies in her cross examination by ld. Addl. PP wherein she stated that instead of Ct. Kapil, Ct. Anil was the member of the raiding team and further that CCL 'H' and Fiza are the name of the same person. It is also necessary to note here that she did not mention about the presence of IO Insp.Kuldeep or the witness Riyasat at the time of arrest of the accused. However, her testimony with regard to the apprehension of accused from village Hamidpur has gone unrebutted as she was not put to cross examination by the defence counsel.
42.5 The discrepancy occurring regarding date of arrest is also not fatal to the case because the incident was more than two years old from the date of examination of said witness and such minor discrepancies are bound to occur on account of time gap and further on account of the fact that police officials deal with number of investigation during same period. Even otherwise, the accused has nowhere disputed his arrest from Hamidpur after three days of the incident though he took the plea that he was wrongly arrested in this case.
42.6 As per the prosecution case after the arrest of CCL 'H' on 22.03.2012, her wearing bangles were seized by the police vide seizure memo Ex.PW12/C and said memo was prepared by Insp. Kuldeep Singh in the presence of SI Raj Kumar, Wct. Sunita and deceased's son Riyasat, who all are the attesting witnesses of said seizure memo. As already noted above, Riyasat/PW7 has turned hostile with regard to arrest of accused and his wife as well as the recoveries effected at their instance. He also turned hostile with State Vs. Afsar Page no. 62 regard to seizure of wearing bangles from CCL 'H' in his presence and did not support the prosecution case even in his cross examination by ld. Addl. PP. However, the other two witnesses of the seizure memo namely PW12 SI Raj Kumar and PW13 Wct. Sunita Kumari have given their consistent version regarding seizure of wearing bangles of CCL'H' after her arrest in this case on 22.03.2012. Although WCt. Sunita Kumari remained silent about the seizure of the bangles in her examination in chief but, after she was cross examined by ld. Addl. PP, she admitted the suggestion that after arrest of CCL 'H' her bangles were sealed by the IO with the seal of KS vide seizure memo Ex.PW12/C (wrongly mentioned as Ex.PW10/C) bearing her signature at point B. As already noted above, there is no material cross examination of PW12 whereas, PW13 was not cross examined at all by the defence counsel.
42.7 In view of the aforementioned evidence on record, I am of the view that prosecution has successfully proved both the above circumstances (viii) & (ix).
Circumstance (x) - Recovery of blood stained knife and blood stained clothes of accused and his wife on 23.03.2012 by the police pursuant to disclosure statement of accused that he alongwith his wife had killed the deceased with said knife on the fateful date and after the offence they had removed their blood stained clothes and thrown the blood stained knife as well as the clothes near naala in Sarai Kale Khan, Delhi.
& Circumstance (xi) - Blood on recovered knife and clothes of accused was found to be human blood as per FSL report Ex.PW19/B & Ex.PW19/C. State Vs. Afsar Page no. 63
43. In order to prove this fact the prosecution is relying upon the testimony of attesting witnesses of the seizure memo Ex.PW7/F of knife namely SI Rajkumar PW12 and the IO Insp. Kuldeep Singh PW19. There is one more attesting witness PW7 Riyasat, but as already noted above, said witness has not supported the prosecution case with regard to recovery allegedly effected at the instance of accused Afsar. He, however has not disputed his signature on the seizure memo Ex.PW7/F nor did he give any explanation as to how said document is bearing his signature as he nowhere alleged that his signature were ever taken by police on any blank paper. Since the witness is the step brother of the deceased, it appears that he has been won over by the accused and he deliberately did not depose against him in order to save him from punishment.
43.1 Let us now advert to the testimony of above two witnesses of police SI Rajkumar and Insp. Kuldeep Singh. As per version of SI Rajkumar/PW12, on 23.03.2012, after the accused was brought to Delhi subsequent to his arrest from Hamidpur on 22.03.2012, the accused Afsar led the police team near ganda nala Sarai Kale Khan towards the side of fencing from where he got a red colour bag recovered and upon checking said bag was found containing one blood stained knife and blood stained clothes of accused Afsar and his wife. PW12 further deposed that sketch of the recovered knife Ex.PW7/B was prepared by the IO on which PW12 identified his signature. Further he deposed that the recovered knife was sealed in separate pullanda with the seal of KS and was taken into police possession vide seizure memo Ex.PW7/F and the site plan of the place of recovery was also prepared by IO vide Ex.PW7/G bearing his signature at point B. PW12 has correctly identified said State Vs. Afsar Page no. 64 knife as Ex.PW12/P6 after the same was produced by the MHCM in the court in duly sealed parcel no.16 with the seal of FSL-SNn.
43.2 As already noted above, no material question were put to PW12 to controvert his testimony regarding recovery of the knife from the aforementioned place as barring few bald suggestions nothing specifically was asked or suggested to the witness to deny the recovery of knife at the accused's instance from the aforementioned place.
43.3 The other witness PW19, who is the IO of the case has also deposed on the same lines regarding the recovery of knife at the instance of accused. Although there is discrepancy with regard to date of recovery of said knife as the witness deposed that it was on 22.03.2012 accused Afsar had led them to the place near Press Enclave road, Khirki village going towards Sheikh Sarai but, said discrepancy in my considered view is not material for the reason that as per said witness accused was arrested on 22.03.2012 at about 6.30pm from Hamidpur, UP and thereafter, it is not possible that the recovery was effected from Delhi on the very same date. Hence, there appears to be error in the date of recoveries effected pursuant to disclosure statement of the accused and the same is not material so as to discard the whole version of the witness. Nothing specific was put even to PW19 with regard to his version relating to recovery of knife allegedly effected at the instance of accused.
43.4 The argument raised by the defence that recovery being effected from an open place is not admissible, is also devoid of merit especially in the light of Tahir & Ors Vs State, 87 2000 DLT 207, State Vs. Afsar Page no. 65 wherein it was observed that "there is nothing in section 27 of the Indian Evidence Act which renders statement of accused inadmissible if the recovery of the article was made from any place which is open or accessible to others. It is a fallacious notion that when recovery of any incriminating article was made from the place, which is open or accessible to others, it would vitiate the evidence under section 27 of the Indian Evidence Act. Any object can be concealed in places which are open and accessible to others, for example if the article is buried on the main roadside or it is concealed beneath dry leafs lying on public places or kept hidden in public office, the article would remain out of visibility of others in normal circumstances. Until such article is recovered, its hidden state would remain un-hampered. The person who had hid it alone, know where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not, but whether it was ordinarily visible to others. If it is not, then it is immaterial that the place of concealment is accessible to others".
43.5 In the instant case, as per the seizure memo the recovery was effected from the bushes near the fencing of the road, near ganda nala and since it was lying under the bushes the bag was not ordinarily visible to others and it cannot be said that the place of concealment was accessible to others so as to discard said piece of evidence.
43.6 However, I may note that the above circumstance assumes importance for the reason that on both the knife as well as on clothes allegedly recovered at the instance of accused, human blood was detected as per FSL report No. 2012/B-2325 of Biology division State Vs. Afsar Page no. 66 Ex.PW.19/B. The said report however mentions that no reaction was shown for the grouping of the blood found on Ex.A12, Ex.A13, Ex.A14 and Ex.A15 containing clothes of accused and his wife as well on the knife Ex. A16 and even the grouping with regard to the blood of the deceased in Ex.A10 was also inconclusive.
43.7 Although human blood was detected on the alleged clothes of accused Afsar and his wife but, there is no evidence on record to show that accused Afsar and his wife were wearing said clothes on the date of alleged incident. Neither the clothes were put to PW-9 baby Nisha, the alleged eye witness of offence nor to PW-10 Qamar Jahan who allegedly had seen accused Afsar on 18.03.2013 when he allegedly came to her to tell her regarding his visit on the next date for attending a marriage.
43.8 However, recovery of the knife at the instance of accused pursuant to his disclosure statement could have proven a material fact to prove the complicity of the accused in the alleged offence provided some evidence was adduced to connect the knife with the alleged offence. However, as per FSL reports of Biology Division Ex.PW19/B and Ex.PW19/C, human blood was detected on the knife mentioned in the report as Ex.A-16 as well as on the blood in gauge of the deceased mentioned as A10 and the clothes of the accused A12, A13 and his wife A15 and A16 but, no reaction was shown for grouping on said exhibits as well as on the blood stained exhibits collected from the spot mentioned in the report as Ex.A1 to A8. Whereas, on 9A, 9B and 9C which were the blood stained clothes of the deceased did not show any reaction and as such there is no opinion that they even contained any blood of human origin.
State Vs. Afsar Page no. 67 43.9 The record further shows that no subsequent opinion was
ever taken by the IO regarding use of said knife in the alleged offence from the autopsy surgeon who conducted the postmortem on the dead body of deceased or from any other doctor. No such subsequent opinion was placed on record either alongwith the chargesheet or at any subsequent stage of trial.
43.10 Considering the lack of aforementioned evidence which could have connected the recovered blood stained clothes and the knife with the alleged offence, the aforementioned circumstance loses much of its relevance and will not render any help to the prosecution to prove the complicity of the accused in the alleged offence.
43.11 Hence, in my considered view though the above circumstance (x) & (xi) have been duly proved on record but, the same is not of any help to the prosecution. The same stands accordingly decided.
Circumstance (vii)-Seizure of broken bangles from the spot.
& Circumstance (xii) - As per FSL report No2012/P- 2323/PHY-89/12 Ex.PW17/A, the wearing bangles of CCL 'H' which were seized after her apprehension got matched with the broken pieces of bangles seized from the spot.
44. As per the prosecution case, broken pieces bangles were found lying on the spot at different places and the same were seized by police vide seizure memo Ex.PW12/D and Ex.PW12/E. Both the State Vs. Afsar Page no. 68 said seizure memos were prepared by IO Insp.Kuldeep Singh and SI Raj Kumar & Ct. Raj Kumar have signed the same as attesting witnesses at point A and B. In the seizure memo Ex.PW12/D, Sr. No.6 & 7 mentions about the broken pieces of maroon colour bangles with dots were found on the mattress of the bed inside the room where the dead body was found lying and in the same very room underneath the bed near its corner. In seizure memo Ex.PW12/E, Sr.No.3 mentions that certain broken pieces of maroon colour bangles with light dots were also seen lying near the folding bed/cot which was lying outside the jhuggi under a temporary shed.
44.1 The aforementioned bangles which were found lying on two places inside the jhuggi and one place outside it are also mentioned in the Crime Scene Report dated 19.03.2012 Ex.PW5/A prepared by Crime team Incharge Insp. Jitender/PW5. Even the photographs Ex.PW6/P5, P8, P10, P13 & P18, which were duly proved on record by the photographer of the crime team PW6 Ct.Dev Raj also show that some broken pieces of bangle were found lying on the bed as reflected in photograph Ex.PW6/P13 inside the jhuggi, underneath the bed as reflected in Ex.PW6/P8 & P18, as well as outside the jhuggi near the folding bed/cot as reflected in Ex.PW6/P10. The photographs also clearly show that broken pieces of bangles were of maroon i.e. blackish red colour. The seizure memo of the bangle Ex.PW12/D and Ex.PW12/E have been duly proved on record by SI Raj Kumar/PW12 and Ct. Raj Kumar/PW14, who were the attesting witness of said memo and perusal of their testimonies shows that they have deposed on same lines regarding preparation of said seizure memos and their testimonies have been further corroborated by IO Insp. Kuldeep Singh examined as PW19. All the said three witnesses PW12, PW14 and State Vs. Afsar Page no. 69 PW19 have consistently deposed that few broken pieces of bangles were lying in the room. Some broken pieces of the bangles were found lying on the mattress and some were lying under the bed and same were lifted and put in a separate parcel and sealed with the seal of KS and thereafter seized by the IO vide seizure memo Ex.PW12/D and Ex.PW12/E and same were deposited in the malkhana by the IO on the same very day. PW8 has also proved the entries of said case property deposited in the malkhana on 19.03.2012 at Entry at Sr. no. 2148 Ex.PW8/A (colly).
44.2 The examination of PW12 SI Raj Kumar recorded on 09.03.2016 mentions that said parcels bearing the FSL Number 2012/P-2323-PHY89-12 parcel no.B1, B2 and B3 were the parcels containing pieces of broken bangles in red and black colour which were recovered from the mattress, from the floor of the room under the bed and from the place near the cot outside the room and same were identified by the witness as Ex.PW14/P7, Ex.PW14/P8 and Ex.PW14/P9.
44.4 PW12 in his examination recorded on 13.05.2015, further deposed that on 22.03.2015 at the time of arrest of CCL 'H', IO had seized wearing bangles in the presence of Wct. Sunita and same were also kept in two plastic containers which were converted into pullanda with the help of doctor tape and sealed with the seal of KS. Said pullandas were seized by the IO vide seizure memo Ex.PW12/C. The bangles seized from the CCL 'H' were not shown to the witness as she was not facing trial before the court.
44.5 As per report FSL Report 2012/P-2323/PHY/89/12 dated
State Vs. Afsar Page no. 70
30.09.2012, pieces of bangle contained in parcel B1, B2 and B3 were similar in respect of colour, texture, design, pattern, thickness and curvature with the bangles in Ex.B4 and B5. The said five parcels were received at FSL in Physics Division on 09.04.2012 and same were received through Ct. Anil vide Receipt no.1953/SD. Said report has been duly proved on record as Ex.PW17/A by SS Badwal, Assistant Director FSL, who was examined as PW17. PW17 has also identified the bangles contained in parcel No. B4 and B5 as the same were the wearing bangles of CCL 'H' which were seized by the police at the time of her apprehension in the case. Said bangles were identified by PW17 as Ex.PW17/P1 and P2. As per the version of said witness, said bangles contained in parcel No.B4 and B5 as well as the broken pieces of bangles contained in parcel no.B1, B2 and B3 were red and black in colour and design as well as thickness of all the bangles in all parcels was similar. Further as per his version, the seals of the parcels were intact when the same were received by him in the lab. During cross examination, nothing material could be elicited from said witness to raise any doubt on his testimony.
44.6 Considering the aforementioned material on record and further keeping into view the consistent testimony of the aforementioned prosecution witnesses, who even in their cross examination stick to their version, I am of the considered view that prosecution has duly proved on record both the aforementioned circumstances (vii) & (xii).
Circumstance (xiii) - The deceased used to have a bad eye on CCL 'H' and in order to teach him (deceased) a lesson, both the accused and CCL killed the deceased.
State Vs. Afsar Page no. 71
45. As per prosecution case the deceased was having a bad eye on the wife of the accused and even on the date of incident, deceased misbehaved with the accused's wife and forcibly caught hold of her hand and took her inside the jhuggi where he tried to outrage her modesty by pushing her on the bed and in the meantime accused also arrived and saw his father misbehaving with his wife. After seeing said conduct of his father the accused got enraged and became revengeful and he in connivance with his wife decided to kill him.
45.1 Although in the cases based on direct evidence motive does not carry much significance and it assumes importance only when the case is based only on the circumstantial evidence. However, in Mani Kumar Thapa Vs. State AIR (2002) SC 2920, it was held that in a murder case if the prosecution is able to establish beyond a reasonable doubt from other circumstantial evidence that it is the accused alone who could have committed the murder, the absence of motive will not hamper a safe conviction i.e. to say if the occurrence is proved by cogent evidence, the motive is immaterial and failure to prove motive will be of no consequence. Hence, it is clear that absence of motive may not be relevant when the evidence is overwhelming but, it is a plus point in case where the evidence against the accused is only circumstantial. Thus, it can be safely concluded that establishment of motive is not a sine qua none for proving the prosecution case, although if proved it operates as a circumstance to prove the complicity of the accused.
45.2 In the instant case though no evidence has been led on record to prove the alleged motive of offence but, since the State Vs. Afsar Page no. 72 prosecution case is based both on direct and indirect evidence, failure to prove motive is not of much consequence.
45.3 In view of above, I feel no hesitation in holding that prosecution has failed to prove above circumstance xiii on record.
Conclusion
46. In view of the foregoing discussions, except circumstance
(xiii), prosecution has conclusively proved all the circumstances on record. From the circumstances proved on record, prosecution has proved it beyond any reasonable doubt that on the intervening night of 18/19.03.2012, accused and his wife i.e. CCL 'H', in furtherance of their common intention committed murder of the deceased. The eye witness of the offence Baby Nisha, has come up with clinching version with regard to involvement of accused and his wife CCL 'H' (who separately faced inquiry before Juvenile Justice Board) in the commission of the murder of her grandfather i.e. deceased. As per PM Report Ex.PW18/A, the probable time of death was 11.40pm to 1am of 18/19.03.2012. In said circumstance, when accused and his wife were seen leaving the house of deceased at 4am on 19.03.2012, no other hypothesis can be drawn regarding involvement of any other person other than the accused and his wife. It is impossible to believe that, while leaving the jhuggi at 4am, the accused and his wife would have remained unaware about the presence of the dead body especially when lot of blood was seen lying not only on the ground but also on the mattress of the wooden bed lying in said jhuggi. Furthermore, the dead body was also lying placed over the pack of bricks kept between the wall and the wooden bed. In such circumstances, accused's conduct in leaving the house in wee hours State Vs. Afsar Page no. 73 on the very next morning becomes relevant u/sec.8 of Indian Evidence Act and it clearly indicates towards the guilt of the accused. There is no explanation from the defence side about said conduct of the accused and his wife leaving the house in the very next morning.
47. From the aforementioned facts and circumstances established on record, it appears that after committing the murder of the deceased, the accused and his wife CCL'H' instead of leaving the house in clandestine manner, thought of giving it a picture as if the crime had occurred after they left the house in the morning. Therefore, after committing the crime on 18.03.2012, accused planned to leave the house next day morning on a false pretext of attending a marriage at his native place and accordingly, he informed his neighbour PW10 Qamar Jahan that they would be leaving the house on the next day to attend a marriage.
48. Prosecution has successfully proved on record that during relevant time accused was living with deceased in the same very jhuggi where the dead body was found lying and the accused has miserably failed to prove the plea of alibi taken by him in his defence. As already discussed above while dealing with circumstance no. (iii), there is no reliable evidence to support said defence plea that accused had already left the jhuggi in the evening of 18.03.2019 or that at the time of alleged offence, he was present at some other place. The two witnesses DW1 and DW2 examined by the accused to prove said plea are found to be wholly untrustworthy and unreliable for apparent contradictions, inconsistencies and infirmities in their versions.
49. Except circumstance (xiii) relating to motive of offence, all State Vs. Afsar Page no. 74 other 12 circumstances have been duly proved on record by the prosecution. But, as already noted above failure to prove motive is not of much consequence especially when the case is based on direct evidence and even in case solely based on circumstantial evidence, if there is other clinching evidence on record, absence of motive cannot be a ground for acquittal.
50. In the instant case, prosecution having proved the facts that accused and his wife were living with the deceased in the same jhuggi at the relevant time, that the death of deceased had occurred in the intervening night of 18/19.03.2012, and the accused was seen leaving the deceased's jhuggi in the wee hours of the very next morning by the neighbour of the deceased PW10 Qamar Jahan, the onus shifts on the accused to prove that he was not present in the jhuggi at the time of alleged offence, which the accused has miserably failed to discharge. Furthermore, both the accused and his wife were arrested together from Hamidpur on 22.03.2012 i.e. after 3 days of alleged incident and the bangles which the CCL 'H' was found wearing at the time of her arrest, as per FSL report Ex.PW17/A were found similar to the broken pieces of bangles lifted from the spot. Some pieces of broken bangles were found even on the mattress of bed alongside which, the dead body was found lying, thereby indicating that the offence was committed by both the accused and his wife in furtherance of their common intention.
51. The above circumstantial evidence coupled with the direct evidence of the eye witness Baby Nisha, is sufficient to prove the charges against accused and to record conviction against him. Although the reliability of said child witness has been strongly refuted State Vs. Afsar Page no. 75 by the defence counsel by saying that she was a tutored witness and deliberately deposed against the accused at the instance of her father, who was accused's step brother. But, it is pertinent to note that PW7 Riyasat Ali, the father of PW9 Baby Nisha was examined in this case on 18.02.2014 i.e. prior to the examination of PW9, who was examined on 21.04.2014, and on the very first date when PW7 was partly examined, he turned hostile and did not support the prosecution case especially with regard to the involvement of accused in the offence. Yet, PW9 who was examined subsequently on 21.04.2014 has duly supported the prosecution case. Hence, had she been tutored by her father, she would have also turned hostile like her father. Despite her father having turned hostile, the fact of PW9 still supporting the case of the prosecution rather indicates that she had given a truthful version of the incident without any kind of tutoring from her parents. The version of eye witness PW9 has been corroborated by other prosecution witnesses more particularly, PW10 Qamar Jahan, Ct. Anil, SI Raj Kumar.
52. In State of Punjab Vs Jagir Singh 1973 AIR 2407, the Hon'ble Apex Court while dealing with the question of appreciation of evidences, observed as under :-
"23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie State Vs. Afsar Page no. 76 trustworthy, on grounds which are fanciful or in the nature of conjectures"
53. In the instant case, no major contradictions either in the evidence of the prosecution witnesses or any conflict in medical or forensic evidence which would tilt the balance in favour of accused, are found. However, the minor infirmities and improvements ought to be ignored as the evidence of the witnesses is found to be intrinsically probable and inherently reliable.
54. Even otherwise, since the prosecution has not sought to prove its case only on the basis of circumstantial evidence, which as a rule needs to be conclusive, excluding any possible hypothesis of innocence of accused and since, the present case is based on both direct and circumstantial evidence, it is not incumbent on the prosecution to discharge such burden to rule out every possible hypothesis inconsistent with the guilt of accused or consistent with the guilt of any other person as is the requirement in cases based purely on circumstantial evidence.
55. Based on the aforementioned evidence which has been conclusively proved on record, I feel no hesitation in holding that prosecution has successfully proved the charge of murder against the accused Afsar which he committed in furtherance of his common intention shared with his wife i.e. CCL 'H', who during proceedings of this case was declared juvenile and was sent to JJB for facing inquiry under Juvenile Justice (Care and Protection of Children) Act, 2000. Accordingly, accused is held guilty for the offences of Section 302/34 IPC.
State Vs. Afsar Page no. 77
56. Put up for arguments on sentence on 19.11.2019.
Announced in open Court (Sunena Sharma)
on 18.11.2019 Additional Sessions Judge-03(South)
Saket Courts, New Delhi
Digitally
signed by
SUNENA
SUNENA SHARMA
SHARMA Date:
2019.11.18
16:09:46
+0530
State Vs. Afsar Page no. 78