Delhi District Court
State vs Mohd. Zakir @ Mohd. Zahir on 18 April, 2018
IN THE COURT OF SHRI SANJEEV KUMAR,
ADDITIONAL SESSIONS JUDGE-5, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
SESSION CASE NO. 2282/2016
IN THE MATTER OF:
State
VERSUS
Mohd. Zakir @ Mohd. Zahir
S/o Sh. Rahisuddin
R/o H. No.19, Main Market,
Garhi, New Delhi
Date of institution : 01.02.2012
Date of arguments : 05.04.2018
Date of order : 18.04.2018
JUDGMENT
The case of prosecution is that a PCR call vide DD No 10-A dated 23.09.2011 at Police Station Amar Colony was received regarding one unclaimed bag / bori lying at D-106, East of Kailash, Prakash Mohalla near Gate No.5, near drain and same was marked to Assistant Sub Inspector Balbir Singh (PW-17). Inspector Govind Sharma (PW-30) alongwith driver Jagat and Constable Mahavir also SC No.2282/2016 State v. Mohd. Zakir Page No.1 of 98 reached there where Assistant Sub Inspector Balbir Singh, Constable Lalit, Constable Vinod, PCR Van kite-29 with Head Constable Moti Singh were found. They found lying a white colour plastic bag near the gate which was opened and a dead body of 22-23 years old boy was found therein. One jute bag and two pieces of wire of computer cord were also found lying in the said white colour plastic bag. There was a board of packing in the jute bag. Deceased was having ligature mark. One person, namely Hazi Shahid (PW-05) reached at the spot and he identified the deceased as Faheem who was the son of his brother-in-law. Hazi Shahid stated that Faheem was missing since tomorrow 09:00 PM to whom there were searching. On search of deceased, Rs.21/- was recovered from his wearing jeans pant.
2. Inspector Govind Sharma prepared a tehrir and same was sent to police station for registration of FIR through Constable Vinod. Two wheeler/ Scooter bearing no. UP12-H-2123 of the deceased was also found lying near the spot i.e near the Shop No.3, DDA Market, East of Kailash, New Delhi. Crime team also called and same was reached who inspected the spot and took the photographs of the spot. On instructions of the Inspector Govind Sharma, scooter of deceased and room of the deceased i.e C-109, Prakash Mohalla was also inspected and photographs were taken. Dog squads also inspected the spot. Site plan of the spot was prepared. After removing the dead body of the deceased, three leaves having blood stains were also found and same were also taken into possession. The said scooter was taken SC No.2282/2016 State v. Mohd. Zakir Page No.2 of 98 into possession. RC was also found in the dicky in the scooter which was also taken into possession. Rs. 21/-, one plastic bag, one jute bag, one board of packing and two broken wires were also taken into possession. Case property was deposited into Malkhana. Postmortem of the dead body was also got conducted. On 29.09.2011, Investigating officer Govind Sharma came to know that accused Zakir Malik and his brother Sakir Malik had moved an application for surrender and pleading guilty before Ms. M.T. Kerketta, learned Metropolitan Magistrate, Saket Court, New Delhi. Accused Zakir was stopped when he was going to the Court and his statement was recorded and he was arrested. Accused Zakir was searched and keys of godown were recovered and thereafter godown was opened and computer and plastic cane were also taken into possession from the said godown. At the instance of the accused Zakir, a purse of the deceased containing the papers was got recovered from the main hole of the gali behind the godown. Further, at the instance of the accused Zakir, Rs.13,000/- was got recovered from the shop i.e A-335, Shera Mohalla, Garhi and the same was also taken into possession. Hard Disk Drive of CCTV Cameras of recording were also taken into possession by the police. Postmortem report of the deceased was also obtained wherein cause of death mentioned as "in this case as a result of strangulation". Brother of the accused Zakir was found to be juvenile.
3. On the basis of above complaint/information, the present case SC No.2282/2016 State v. Mohd. Zakir Page No.3 of 98 vide First Information Report (FIR) No. 359/2011 under Section 302 of the Indian Penal Code, 1860 (in short 'IPC') was registered at Police Station Amar Colony and investigation took up.
4. After investigation, police report under Section 173 of the Code of Criminal Procedure, 1973 (in short "Code") was filed against the accused Zakir for the offences punishable under Sections 302, 404, 411, 201 read with Section 34 IPC before the learned Metropolitan Magistrate, South-East District, Saket Courts, New Delhi. The learned Metropolitan Magistrate committed the case to the Court of Sessions vide order dated 27.01.2012. Thereafter, on 07.08.2015, supplementary charge-sheet was filed before the learned Metropolitan Magistrate and same was directed to be sent to this Court by the learned Metropolitan Magistrate on the same day. Thereafter, on 10.08.2015 that supplementary charge-sheet containing FSL result was received by this Court. Thereafter, on 21.09.2017 a letter/application issued/filed by the SHO, Police Station Amar Colony regarding clarification report alongwith clarification letter issued by Dr. Sanjeev Lalwani, Associate Professor, Department of Forensic Medicine and Toxicology, AIIMS, New Delhi dated 17.01.2013 alongwith some papers having subject clarification in regard to postmortem report No. 1131/11 dated 23.09.2011 pertaining to deceased Faheem were filed and copy of the same was supplied to the accused later on. In the said clarificatory report/letter, it is mentioned that the correct number of postmortem report of deceased SC No.2282/2016 State v. Mohd. Zakir Page No.4 of 98 Faeem S/o Salim dated 23.09.2011 is 1131/11 and the correct name in regard to PM No. 1131/11 is Faeem S/o Saleem. It appears that earlier in the postmortem report of deceased, PM number has been mentioned as 1331/11 instead of 1131/11 and a name of the deceased was mentioned as Faleem instead of Faeem/Faheem. On 16.02.2018, Shri Sheikh Israr Ahmed, learned counsel for the accused had given his statement that he had no objection regarding clarification report received from AIIMS, New Delhi. The said statement of learned counsel of accused was recorded separately.
5. Vide order dated 03.09.2012, charges were framed against the accused Mohd. Zakir for the offences punishable under Sections 302, 201/34 and 404 IPC.
6. The prosecution examined thirty one witnesses, namely, Sub- Inspector Naresh Kumar (PW-1), Constable Dev Raj (PW-2), Head Constable Fukeria (PW-3), Wasim (PW-4), Hazi Shahid (PW-5), Sub- inspector Mahesh Kumar (PW-6), Kuldeep Khera (PW-7), Mohd. Jabir (PW-8), Naresh (PW-9), Banwari (PW-10), Constable Lalit (PW-11), Seema Nain (PW-12), Retired Head Constable Moti Ram (PW-13), Head Constable Sunda Ram (PW-14), Head Constable Hoshyar Singh (PW-15), Constable Harender (PW-16), Assistant Sub- inspector Balbir Singh (PW-17), Saleem (PW-18), R.K. Oberoi (PW-
19), Head Constable Vinod Kumar (PW-20), Rajiv Agnihotri (PW-
21), Sumit Singh (PW-22), Constable Rajpal (PW-23), Naushad (PW-
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24), Salil (PW-25), Doctor Ashish Jain (PW-26), R.K. Singh (PW-27), Bhim Singh (PW-28), Amar Pal Singh (PW-29), Inspector Govind Sharma (PW-30) and Saurav Aggarwal (PW-31). The statement of the accused person was recorded under section 313 of the Code on 06.05.2017, 12.05.2017, 22.05.2017, 12.07.2017, 19.07.2017 and 21.03.2018. Accused stood by his denial in his said statement. The accused examined no witness in his defence.
7. I have heard final arguments advanced by Shri Nishchhal Singh, learned Additional Public Prosecutor for the State, Shri Sheikh Israr Ahmed, learned counsel appearing for accused and Shri Nasir Ali, Shri Jitender Tyagi and Shri Rajesh Pandey, learned counsel appearing for father of the deceased.
8. Shri Nischal Singh, learned Additional Public Prosecutor has submitted that prosecution has examined thirty one witnesses and most of the witnesses have fully supported the case of prosecution. The confession of the co-accused is relevant as per the evidence Act. Deceased was using the mobile number 9999340109 at the relevant point of time. From the CDRs as brought by PW-31, it has been proved that the location of accused and deceased was the same at the relevant point of time. There is no reasonable doubt in the evidence of prosecution witnesses and, therefore, accused may be convicted of the charges.
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9. Learned counsel appearing for father of the deceased has submitted that the deceased was having ligature mark on his body. The dead body was identified. The inquest report is important. There is also a Panchayatnama. Faheem was missing and Shahid identified the dead body of Faheem. PW-8 says that Scooter of the deceased was taken into possession. PW-24 Naushad Alam is an important witness who deposed that when they reached at Moolchand crossing, Faheem received a call of Zakir and deceased Faheem went from there at the call of the accused Zakir. Recovery of the articles have been effected at the instance of accused Zakir and same are circumstances against the accused. There is no cross-examination of PW-24 on the point of receiving call from the accused Zakir by the deceased and going by the deceased from there only after receiving the call from the accused. PW-24 has stated in his cross-examination that he had not consumed liquor alongwith Faheem in the evening hours on 22.09.2011. But in viscera of the deceased, liquor has been found, it means that before killing the deceased, liquor was given to him by the accused.
10. Learned counsel for the father of the deceased has further submitted that PW-1 and PW-2 reached at the spot and they found the dead body, wire etc., and Scooter and at that time the family member of the deceased did not reach there and therefore, there is no manipulation or influence to the PW-1 and PW-2. Accused and deceased were doing business of scrap dealer. The deceased received mobile call from the accused Zakir and after receiving the said call, SC No.2282/2016 State v. Mohd. Zakir Page No.7 of 98 deceased went to Zakir and at the time of receiving call, deceased was with PW-24 Naushad. The scaled site plan was prepared by PW-6 but this witness was not eye witness and he had shown in the site plan whatever told to him by the Investigating Officer and therefore, showing the leaves are not of much important and further, when dead body was found by PW-1 and PW-2, none of the family member/relative of the deceased was present and the relative reached later on at the place where the dead body of deceased was found.
11. The learned counsel appearing for the complainant/informant has further submitted that blood can be come/ oozed out from the ear and nose of the body in case of death by strangulation. Further, place of causing death was not the same where the dead body was found. PW-7 has proved the CCTV footage. PW-28 had verified a mobile number and voter ID card of Salim who is the father of the deceased. It has been established that Salim had telephoned to the deceased at night of 22/23.09.2012. PW-27 R.K. Singh had proved the call details. PW-24 Naushad is the mama of the deceased and he has no enmity with the accused and therefore, there is no reason of false implication of the accused by him in the present case. The calling of the deceased by the accused has been proved by the PW-24.
12. Learned counsel for the father of the deceased has further submitted that accused Zakir had filed application for surrender before the learned Metropolitan Magistrate and signature of learned SC No.2282/2016 State v. Mohd. Zakir Page No.8 of 98 Magistrate has been proved by the PW-25 Salil. In statement under Section 313 of the Code, it has not been stated by the accused that he did not go to the Court and he did not file the surrender application and the said application does not bear his signature. Subsequent conduct of the accused is admissible/relevant under Section 8 of the Indian Evidence Act. The filing of the said application of the surrender comes in category of subsequent conduct of the accused. Section 21 of the Indian Evidence Act does not attract in respect of application for surrender. If accused does not explain the circumference under Section 313 of the Code then said circumference is considered to be extreme circumference. Accused was arrested and from his possession, keys of godown were recovered which show that said godown was in exclusive possession of the accused. The recovery affected at the instance of the accused pursuant to the disclosure statement is admissible under Section 27 of the Indian Evidence Act. The goods for which, accused called the deceased, were recovered from the said godown. At the instance of the accused purse of the deceased having photographs therein was also recovered from the said building and same was found from such place which was not open to all and same was secret place. Part of evidence of hostile witness Banwari can be considered regarding godown etc.
13. Learned counsel for the father of the deceased has further stated that the accused had not objected the photographs when it were filed. They were mud on the pics and purse when they were recovered. The SC No.2282/2016 State v. Mohd. Zakir Page No.9 of 98 recovery of the purse of deceased from the godown proves the presence of the deceased in the said godown on the day of incident. There is recovery Rs.13,000/- at the instance/possession of the accused and accused is not claiming that said amount do not belong to him. Accused is also not claiming that the said godown was not in his exclusive possession. Accused has not claimed that he was arrested from other place and he was wrongly arrested. It is not in dispute that the dead body was not recovered from the gate of the Greater Kailash. Medical evidence is one of the circumference and injury corroborate that death of deceased was caused by strangulation. Subsequent opinion of Dr. Ashish Jain proved that death can be done by the wire. Time of death and ligature mark corroborates the death and if wire had not been shown, it mere irregularity.
14. Learned Counsel for father of the deceased has further submitted that the judgment of Anvar P.V. v. P.K. Basheer & Ors., (2014) 10 SCC 473 was passed later on but prior to that State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 was prevailing the field of electronic evidence. CCTV footage were running during the trial and investigation officer had identified the accused. The panchnama report had not been exhibited. In respect of panchnama report, learned Counsel for the accused has submitted that there is no dispute regarding said report. In this regard, learned Additional Public Prosecutor has submitted that postmortem report was executed. On the day of incident, accused Zakir had called to the deceased through SC No.2282/2016 State v. Mohd. Zakir Page No.10 of 98 mobile at 06:20 PM and this has been proved by the PW-24 and PW- 27 / PW-28. The Nodal officer had proved that a father of the deceased made a call to the deceased at 22:01 PM and at that time deceased was at the home / godown of the accused Zakir. In viscera report of the deceased alcohol had been found in the blood. PW-24 was with the deceased on the day of incident when deceased proceeded to the Zakir after receiving the call by the deceased from him and at that time deceased had not taken the alcohol and therefore accused Zakir had made liquor to Zakir to deceased before his death and deceased was in the influence of the liquor due to which he could not attend the call when father of the deceased made a mobile call to him at 22:01 PM on the date of incident. At 22:03 PM on the day of incident, father of the deceased made a mobile call to PW-24 and said call has been reflected in the C.D.R produced by the PW-28. PW-24 had also made a telephonic call to PW-18 at 22:05 PM and 22:06 PM and same have been reflected in the C.D.R produced by the PW-27.
15. Learned Counsel for the father of the deceased has further submitted that PW-9 and PW-10 are hostile witnesses but both have admitted that police came before them at the place. Rs.13,000/- which were recovered from the possession of the accused Zakir have not been claimed by him stating that money pertains to him.
16. Learned Counsel for the father of the deceased has placed reliance upon the judgments namely, Geetha v. State of Karnataka, SC No.2282/2016 State v. Mohd. Zakir Page No.11 of 98 CA No.281/1997 passed by the Hon'ble Supreme Court; Vikram Singh @ Vicky Walia & Anr. v. State of Punjab & Anr., 2017 (3) Crimes 86 (SC); Girwar Singh v. CBI (Crl. A.263/2009 passed by the Hon'ble Delhi High Court; Mohan Anna Chavan v. State of Maharashtra, 2008 3 SCC (Cri) 193; Tomso Bruno & Anr. v. State of UP, Crl. A. 142/2015 passed by the Hon'ble Supreme Court ; Sukhdev Singh v. State of Haryana, Crl. A. 2118/2008 and State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, Appeal (crl.) 373-375 of 2004 passed by the Hon'ble Supreme Court on 04.08.2005.
17. On the other hand, Shri Sheikh Israr Ahmed, learned counsel appearing for the accused has submitted that there is no direct evidence and case is based on circumstantial evidence. The case is based on circumstantial evidence but chain of circumstances have not been completed and proved. The offences punishable under Section 302, 120 read with Section 34 IPC, and 404 IPC have not been made out from the facts and circumstances of the case.
18. Shri Sheikh Israr Ahmed has further submitted that deceased was 23 years old, and he was of 80 Kilograms weight as per the postmortem report. Deceased was quite healthy person. There is no record of mobile conversation among accused Zakir, prosecution witness Naushad and deceased. Naushad did not go to accused Zakir's home but he went to police station. There was one PCR call regarding bag lying in East of Kailash. There is one of circumferences against SC No.2282/2016 State v. Mohd. Zakir Page No.12 of 98 the accused regarding moving an application for surrender and pleading guilty on 29.09.2011, but accused Zakir was arrested earlier. Further, said application for surrender was to be seen on 30.09.2011 but accused Zakir was arrested on 29.09.2011 and therefore, said application became infructuous. There is no evidentiary value of the said application accused Zakir was arrested earlier.
19. Shri Sheikh Israr Ahmed has further submitted that PW-13 Constable Moti Ram has stated in his cross examination that wire was half meter long. Said long wire of half meter cannot be used for strangulation. PCR form Ex.PW-22/A was first document prepared before the rukka which falsify the recovery of other things. PW-24 Naushad is not last seen witness and his statement was recorded on 23.09.2011 by the police. There are improvements and contradictions in the testimony of PW-24. The said witness has introduced new theory. If witness brings new theory, same is not permitted. Even he was not able to tell the mobile number of Faheem. He was planted witness. He himself was sitting in the police station for three-four days as suspect. He made improvement and omission in his testimony to implicate the accused Zakir. Mere suspicion does not work.
20. Shri Sheikh Israr Ahmed has further submitted that PW-18 Saleem has stated that his deceased son used to address him always as "Abbu" but the receiver of his son's mobile phone addressed him as "Papa". This theory of Papa and Abbu does not find mention in the SC No.2282/2016 State v. Mohd. Zakir Page No.13 of 98 statement of PW-18 under Section 161 of the Code recorded during investigation. PW-18 has stated that he made telephone call from mobile number 9412114575 to his son Faheem on his mobile number 9999340109. As per PW-31, mobile number 9953938343 belongs to Rahisuddin and mobile number 9999340109 belongs to one Nisar Ahmed. These both phone numbers do not belong to the accused. Said Rahisuddin and Nisar Ahmed have not been made witness in the list of witnesses. This case pertains to Section 302 IPC and there is no presumption that accused was having mobile number 9953938343. There is no evidentiary value of the PW-31. CDR are preserved till only one year as per the guidelines of department of telecommunication. But the CDRs have been filed by the Nodal Officer (PW-31) on 15.03.2018. It is not clear as to how PW-31 had filed the said CDRs after one year. There is no search and seizure of the mobile phones pertaining to the said CDRs.
21. Shri Sheikh Israr Ahmed has further submitted that PW-9 Naresh has not supported the case of the prosecution regarding recovery. PW-10 Banwari has not supported the recovery of purse etc. Police took his signatures on three-four blank paper. PW-12 Seema Nain gave report Ex.PW-12/B but there is no opinion. No cut injury is mentioned in postmortem report Ex.PW-26/A. There is no cut mark on the deceased and there is no bleeding and injury on the body of the deceased. There is no blood as mentioned in the postmortem report. When there is no cut injury, then how blood came on three leaves.
SC No.2282/2016 State v. Mohd. Zakir Page No.14 of 98 There is no tree mention in the site plan. There is no opinion in the FSL result. PW-26 Dr. Ashish Jain could not give a definite opinion that ligature mark is also possible by the other same type of material.
22. Shri Sheikh Israr Ahmed has further submitted that FSL result dated 29.04.2014 says that no data was retrieved from the CCTV footage. Then same was sent again to CFSL then second report of CFSL dated 22.04.205 came and some data was retrieved. There is no certificate of 65-B regarding two CCTV footage and therefore CCTV footage is not admissible in evidence as held by Hon'ble Supreme Court in Anwar P.V. judgment. First report says that C.D. was not run and second report says that C.D. partly run. PW-30 Inspector Govind Sharma says in his examination in chief that the faces of the accused are not visible, as per C.D.. Accused can not carry the deceased who is of 80 Kg. weight on the scooter. Five photographs were tendered by the investigating officer after five years of his examination-in-chief. No negatives have been filed and no negative were deposited in the Malkhana and therefore there is no evidentiary value of these photos. PW-8 is relative of accused Zakir and he is hostile witness. Section 8 of the Evidence Act is not applicable in the present case.
23. Shri Sheikh Israr Ahmed has further submitted that prosecution has to prove all the circumstances and chain of circumstances should be complete indicating the guilt of the accused but prosecution has failed to prove anyone on the circumstance. All the circumstances are SC No.2282/2016 State v. Mohd. Zakir Page No.15 of 98 only suspicion and have not been proved. If out of six circumstances only one circumstances has not been proved but five circumstances have been proved even then chain is not considered to be complete. In the present case, not a single circumstance out of five-six circumstance has been proved. Learned Counsel has placed reliance upon decisions namely Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Majendran Langeswaran v. State (NCT of Delhi) & Anr., AIR 2013 Supreme Court 2790; Tomaso Bruno & Anr. v. State of U.P., 2015 [2] JCC 884; E. Bapanaiah v. K.S. Raju Etc., 2015 [2] JCC 898; Madhu v. State of Kerala, AIR 2012 Supreme Court 664; Ketan V. Prakash v. Special Director, Directorate of Enforcement, AIR 2012 Supreme Court 683; Nathiya v. State Rep. By Inspector of Police, Bagayam Police Station, Vellore, 2017 [1] JCC 110; Anjan Dasgupta v. State of West Bengal & Ors., 2017 [1] JCC 117 and Nankaunoo v. State of U.P., 2016 I AD (S.C.) 665.
Law regarding improvement, contradictions, embellishments, exaggeration and discrepancies.
24. Now, I want to mention the law regarding improvement, contradictions and discrepancies which may occur in the deposition of witnesses. Hon'ble Supreme Court has held in State of Madhya Pradesh v. Dal Singh & Ors., Criminal Appeal No.2303 of 2009 decided on 21.05.2013 at para no. 7:
SC No.2282/2016 State v. Mohd. Zakir Page No.16 of 98 "So far as the discrepancies, embellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, owing to common errors in observation, i.e., errors of memory due to lapse of time, or errors owing to mental disposition, such as feelings shock or horror that existed at the time to occurrence.
The court must form its opinion about the credibility of a witness, and record a finding with respect to whether his deposition inspires confidence. "Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution's story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of a statement made by the witness at an earlier stage. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to SC No.2282/2016 State v. Mohd. Zakir Page No.17 of 98 contradictions in material particulars, i.e., which materially affect the trial, or the core of the case of the prosecution, render the testimony of the witness as liable to be discredited.
25. In State Represented by Inspector of Police & another v. Saravanan, (2008) 17 SCC 587, Hon'ble Supreme Court held that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety.
26. In Sunil Kumar Sambhudayal Gupta (Dr.) and others v. State of Maharashtra, (2010) 13 SCC 657, while dealing with the issue of material contradictions, the Hon'ble Supreme Court held that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially alter the trial; minor contradictions, inconsistencies, embellishments or improvements on trivial matters without affecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety; the courts have to label the category to which a discrepancy belongs, while normal discrepancy do not corrode the credibility of a party's case, material discrepancy do so.
27. In Sheikh Juman & Anr. v State of Bihar, Criminal Appeal Nos.
SC No.2282/2016 State v. Mohd. Zakir Page No.18 of 98 484-487 of 2008, decided on 23.02.2017, Hon'ble Supreme Court held/observed that it is true that deposition is somewhere literally larger than the fardbeyan, however, it is no where contrary to it. The deposition is merely elaborated form of statement recorded before the police, with minor contradictions. Oral evidence of a witness could be looked with suspicion only if it contradicts the previous statement.
28. In Mukesh & Anr. v. State for NCT of Delhi & Ors., Criminal Appeal Nos. 607-608 of 2017 decided on 05.05.2017, Hon'ble three- Judge Bench of Supreme Court referred the above-mentioned cases i.e. Saravanan (supra) and Sunil Kumar Sambhudayal Gupta (supra) in respect of issue pertaining to contradictions etc.
29. Hence, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. Due to examination of so many witnesses to prove the said recovery, there are some contradictions/ discrepancy/improvements/exaggeration in the deposition of some of the witnesses but in my view, same are of minor nature and same do not go to the root of the case of the prosecution. And further nothing material have been come in their cross-examination which goes against the case of prosecution.
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30. Now, I am mentioning the law regarding testimony of police witness. In Ram Swaroop v. State (Govt. NCT of Delhi), (Criminal Appeal No.1327 of 2013) decided on 21.05.2013, Hon'ble Supreme Court has observed that:-
"7. To appreciate the first limb of submission, we have carefully scrutinized the evidence brought on record and perused the judgment of the High Court and that of the trial Court. It is noticeable that the evidence of PW-7, namely, Ritesh Kumar, has been supported by Balwant Singh, PW-5, as well as other witnesses. It has come in the evidence of Ritesh Kumar that he had asked the passerby to be witnesses but none of them agreed and left without disclosing their names and addresses. On a careful perusal of their version we do not notice anything by which their evidence can be treated to be untrustworthy. On the contrary it is absolutely unimpeachable. We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the SC No.2282/2016 State v. Mohd. Zakir Page No.20 of 98 dictum in State of U.P. v. Anil Singh, (1988 Supp SCC 686), wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses."
31. Hon'ble Supreme Court in State, Govt. of NCT of Delhi v. Sunil & Anr., ((2001) 1 SCC 652) has observed that:-
"21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around.
That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the SC No.2282/2016 State v. Mohd. Zakir Page No.21 of 98 legislature. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
32. In Ramjee Rai and others v. State of Bihar, ((2006) 13 SCC
229), it has been opined by Hon'ble Supreme Court :-
SC No.2282/2016 State v. Mohd. Zakir Page No.22 of 98 "26. It is now well settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The court cannot overlook the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witnesses may not come forward."
33. In Pramod Kumar v. State (GNCT of Delhi), Criminal Appeal No.562-563 of 2010 passed on 01.07.2013, Hon'ble Supreme Court has observed/held that the witnesses from the department of police cannot per se be said to be untruthful or unreliable and it would depend upon the veracity, credibility and unimpeachability of their testimony.
34. In Kashmiri Lal v. State of Haryana, 2013 AIR SCW 3102, Hon'ble Supreme Court has observed that there is no absolute command of law that the police officers cannot be cited as witness their testimony should always be treated with suspicion and ordinarily, public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the Court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may be disbelieve him but it should not do so solely on the presumption that SC No.2282/2016 State v. Mohd. Zakir Page No.23 of 98 if, the witness from the department of police should be viewed with distrust. This is also based upon the principle that quality of the evidence weighs over the quantity of evidence.
35. Hence, it can be said from the above mentioned judgments that the witnesses from the department of police cannot per se be said to be untruthful or unreliable and it would depend upon the veracity, credibility and unimpeachability of their testimony. Further, the witnesses from the department of police should not be viewed with distrust.
Missing of Faheem (deceased) from 22.09.2012 and phone calls
36. To prove the missing of deceased Faheem and phone calls, prosecution has examined Hazi Shahid (PW-5), Saleem (PW-18), Nausad Ali (PW-24), R.K.Singh (PW-27), Bhim Singh (PW-28) and Saurabh Agarwal (PW-31). PW-18 is father of deceased and PW-24 is Mama of deceased. PW-27, PW-28 and PW-31 are nodal officers.
37. PW-5 (Hazi Shahid) has deposed that he was working as scrap dealer and was residing at House No. A-291, Prakash Mohalla. Deceased used to live at Prakash Mohalla. On 22.09.2012, deceased was missing and they searched for him whole night, but he was not found.
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38. PW-18 (Saleem) is father of deceased. He has deposed that his son (deceased) was working in the area of Garhi at Delhi for the last two years prior to incident and he was dealing in computer scrap material. He and his son used to have daily conversation on mobile phones during the night regarding their well being and business. On 22.09.2011, at about 10:00 pm, he made telephone call from his mobile phone no. 9412114575 to his son Faheem on his mobile no. 9999340109. His son used to address him always as 'Abbu'. On that day, the receiver of his son's mobile phone addressed him as 'Papa' and he realized that he who spoke to him, was not his son. He inquired from that person as to who he was and that person stated that he was Faheem but he (Saleem) told him that he was not his son, so he disconnected the call. On this, he called his brother-in-law Naushad (PW-24), who was also in Delhi and he apprised him about this fact. Then PW-24 had searched for deceased at his room but his room was found locked and PW-24 informed him accordingly.
39. PW-24 (Nausad Ali) has deposed that earlier in the year of 2011, he alongwith one Saleem was residing at House No. A-84, Garhi, East of Kailash New Delhi. He had left Delhi after two/three months of the murder of Faheem (deceased). In Delhi also, he was working as a scrap dealer. The deceased was his real nephew (Bhanja) and he was also working as scrap dealer. The deceased was working with him as partner till before six months of his murder and thereafter, he started his separate work.
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40. PW-24 further deposed that on 23.09.2011 at about 11:00 AM, again said it was 22.09.2011 at about 11:00 AM, deceased came to his residence at Garhi. Thereafter, at about 02.00/02.30 pm, deceased went alongwith Saleem to Kotla to collect the computer scrap. After about one and a half hours, they both returned with scrap and disposed off for the sale at the shop of Kabari near his residence. Thereafter, deceased remained with him (PW-24) till evening. At about 06.00 pm, he received a telephonic call from Satender from Naraina who informed him that he had six old laptops and he invited him to purchase the same from his shop. On the same day i.e., on 22.09.2011 pursuant to the call of Satender, he alongwith deceased went to Naraina to collect the old laptops from the shop of Satender. On 22.09.2011, he alongwith (deceased) collected laptops from the shop of Satender at Naraina and brought the same and kept them in the room at A-84, Garhi. They were coming from Naraina and reached at Moolchand crossing, then on the way, deceased received a telephonic call of Mohd. Zakir who talked with deceased regarding sale/purchase of computer scraps. After keeping laptops in the room at A-84, Garhi, at about 08:00/08:15 pm, deceased went out of the room while talking on mobile phone. Then, he asked him as to where he was going, then he replied that he was going to meet Mohd. Zakir. He (PW-24) remained at his room i.e., A-84, Garhi.
41. PW-24 further deposed that at about 09:45/10:00 pm, he received a telephonic call of Saleem (PW-18) and he informed him SC No.2282/2016 State v. Mohd. Zakir Page No.26 of 98 that he had made a call on the mobile phone of deceased but in reply, receiver had addressed him (PW-18) as "Papa", whereas deceased had never used the word "Papa" and he used to call him as "Abbu". He (PW-18) immediately asked him(PW-24) to make a call on the mobile phone of deceased. He (PW-24) made a call on the mobile of deceased and his call was received but one had responded and phone remained silent for about 10-15 seconds. Thereafter, he alongwith Haji Shahid (PW-5) started search of deceased. They went to the room of deceased in the area of Garhi, but the room was found locked. Thereafter, they went to the Godown of Mohd. Zakir (accused), but it was also found locked. When they were returning from the godown of accused, then he (accused) met them on the way. He asked him about the whereabouts of deceased. Accused denied having telephonic conversation with deceased and about his whereabouts. At that time, he appeared to be abnormal. They made search of deceased till 02:00/02:30 am, thereafter, he went to his room.
42. PW-18 (father of deceased) has clearly deposed regarding making call to deceased from his mobile number 9412114575 to the mobile number of deceased, i.e 9999340109 on date of incident i.e. 22.09.2011 at about 10.00 pm. He has also categorically stated regarding addressing him as "Papa" instead of "Abbu" by receiver of said phone. He has also stated regarding making call by him to PW-24 on his mobile number 9818322650 (in cross examination, PW-18 has stated that the mobile phone of PW-24 was 9818322650) after making SC No.2282/2016 State v. Mohd. Zakir Page No.27 of 98 call to deceased and telling him the said factum of calling him as "Papa" instead of "Abbu" by the receiver of the call. Learned counsel of accused has stated that there is improvement in the testimony of this witness and this "theory of Papa and Abbu" was not stated by him during investigation. I do not find any material improvement/ contradiction in the testimony of this witness. He had stated to the police during investigation that when he made call to deceased then he called him as "Papa". Further, nothing has been come in his cross- examination which makes the testimony of this witness unreliable. Further also, Hon'ble Supreme Court in Sheikh Juman's case (supra) observed that it is true that deposition is somewhere literally larger than the fardbeyan, however, it is no where contrary to it; that the deposition is merely elaborated form of statement recorded before the police, with minor contradictions; that oral evidence of a witness could be looked with suspicion only if it contradicts the previous statement. The said deposition of PW-18 regarding making call to deceased by him and "theory of Papa and Abbu" finds corroboration to the testimony of PW-24 who is bhatija of deceased and they (PW- 24 and deceased) were earlier (six month prior of death of deceased) doing the business of kabadi (scrap dealer) in partnership in Delhi. He (PW-24) has clearly deposed regarding making call to his mobile phone by PW-18 on 22.09.2011 at about 10.00 pm and telling him (PW-24) about the said phone call to the deceased and said "theory of Papa and Abbu". The said "theory of Papa and Abbu" finds mention in his statement (PW-24) recorded by police during investigation also.
SC No.2282/2016 State v. Mohd. Zakir Page No.28 of 98 There is no cross-examination of PW-24 on the aspect of making call by PW-18 to him on 22.09.2011 and telling him about mobile call by him (PW-18) to deceased on 22.09.2011 at about 10.00 pm and said "theory of Papa and Abbu". In the cross-examination of PW-18, he has stated about the number of mobile phone of PW-24, which is 9818322650. There is no cross-examination of PW-18 regarding said mobile number of PW-24. PW-18 has deposed that he called his brother-in-law Naushad (PW-24), who was also in Delhi and he apprised him about this fact (factum of making call to deceased), then PW-24 had searched for deceased at his room but his room was found locked and he (PW-24) informed him accordingly.
43. R. K. Singh, Nodal Officer (PW-27) has proved that the mobile number 9818322650 belonged to Shamshad; that Call Detail Record of said mobile phone from the period 01.09.2011 to 26.09.2011 are Ex. PW-27/C; that Cell ID Chart is ExPW-27/D. He has also proved certificate under Section 65 B of Indian Evidence Act as Ex.PW-27/E. It is correct that mobile number 9818322650 was registered in the name of Shamshad and not in the name of Naushad (PW-24) on the relevant point of time as proved by PW-27. But it is also correct that PW-24 clearly stated regarding receiving mobile call by him from PW-18 and thereafter making mobile call from his said mobile to deceased. It is also correct that PW-24 has not stated his mobile number. But, it has come in his cross-examination that his said mobile phone was misplaced. He is only 8th class pass. It is not uncommon to SC No.2282/2016 State v. Mohd. Zakir Page No.29 of 98 use mobile number of other. When PW-18 was asked in cross- examination about the mobile number of PW-24, he has told his mobile number to be 9818322650. I find no cross-examination of PW- 18 on said deposition of mobile number of PW-24. Further, the Cell ID No. 246-11403 was of Plot No. 77, Khasra No. 191/183, village Garhi as proved by Ex. PW-27/D.. C.D.R (Ex. PW-27/C) proves that on 22.09.2011, Cell ID No. of mobile number 9818322650 was 246- 11403. PW-24 has deposed that on 22.09.2011, when they (he and deceased) were coming from Naraina and reached at Moolchand Crossing, deceased received a telephonic call of accused Zakir who talked regarding sale/purchase of computer scraps and after keeping laptops in room at A-84, Garhi at about 08:00/08:15 pm, deceased went out of room and he remained at said room. Hence, it can be concluded safely that PW-24 was using mobile number 9818322650 at the relevant point of time.
44. PW-28 proved the BSNL prepaid enrollment form vide Ex. PW-28/A pertaining to customer Saleem/Salim (PW-18), C.D.R of said mobile number from the period of 01.09.2011 to 29.09.2011 vide Ex. PW-28/C and his certificate under Section 65-B of the Indian Evidence Act vide Ex.PW-28/D.
45. PW-31 (Saurav Aggarwal) is Nodel Officer, Vodafone Mobile Service Limited. He brought the customer application form (CAF) and C.D.R. of mobile numbers 9953938343 and 9999340109. As per SC No.2282/2016 State v. Mohd. Zakir Page No.30 of 98 his record, mobile number 9953938343 was issued in the name of Rahisuddin vide CAF Ex.PW-31/A and CDR of said mobile number is Ex.PW-31/B. Further, as per his record, mobile number 9999340109 was issued in the name of Nisar Ahmed vide CAF Ex.PW-31/E and CDR of said number is Ex.PW-31/F. The location chart of both the mobile numbers i.e., 9999340109 and 9953938343 has been exhibited as Ex.PW-31/D. Certificate under Section 65B of the Evidence Act in respect of mobile numbers 9953938343 and 9999340109 have been exhibited as Ex.PW-31/C and Ex.PW-31/G respectively. This witness has been cross examined by learned counsel for accused but nothing has been come against the case of prosecution. It is pertinent to mention here that this witness was examined under Section 311 of the Code later on but an application dated 18.11.2013 of Investigating Officer regarding calling the witness/Nodal Officer in respect of these two mobile numbers was moved but same could not be filed in the judicial file and same was found kept in the police file. And therefore, it cannot be said that the CDR filed by the PW-31 regarding said two mobile numbers are fabricated. CDR of mobile number 9953938343 Ex.PW-31/B goes to show that on 22.09.2011 at about 18:20:39, call was made from mobile number 9953938343 to mobile number 9999340109. Further, CDR of mobile number 9999340109 Ex.PW- 31/F goes to show that on 22.09.2011 at about 18:20:39, under reflecting cell ID 404110012320511, the physical address tower is Bharat City Infrastructures Private Limited, Indraprasth, Loni, Ghazibad. Further, as per CDR of mobile number 9953938343, on SC No.2282/2016 State v. Mohd. Zakir Page No.31 of 98 22.09.2011 at about 18:20:39 under reflecting cell ID 404110012320511, the physical address of tower is 46, Garhi Amrit Puri, 131A, Leela Ram Mohalla, East of Kailash, New Delhi.
46. As per PW-31, mobile number 9953938343 was issued in the name of Rahisuddin. Rahisuddin is the father of the accused. In personal search of accused, one mobile phone NOKIA 1600 was also recovered. It is not uncommon to use mobile number of father by his son. In the present case also, accused was using the mobile number 9953938343 which was registered in the name of his father.
47. The mobile number 9999340109 was issued in the name of Nisar Ahmed as proved by the PW-31. Father of the deceased namely Saleem (PW-18) has deposed that on 22.09.2011 at about 10:00 PM, he made telephone call from his mobile phone number 9412114575 to his son Faheem on his mobile number 9999340109. Hence, PW-18 has clearly stated that mobile number 9999340109 was being used by his son (deceased) on 22.09.2011 at about 10:00 PM.
48. C.D.R. of mobile number 9953938343 Ex. PW-31/B (said mobile number was being used by accused at relevant point of time) proves that on 22.09.2011 at about 18:20:39 (06:20 PM) a call was made from this mobile number 9953938343 to mobile number 9999340109 which was being used by deceased and at that time under reflecting cell ID 404110012320511, the physical address of tower is SC No.2282/2016 State v. Mohd. Zakir Page No.32 of 98 46, Garhi Amrit Puri, 131-A, Leela Ram Mohalla, East of Kailash, New Delhi.
49. C.D.R. of 9999340109 Ex. PW-31/F (this number was being used by deceased) proves that on 22.09.2011 at 18:20:39 (06:20 PM) a mobile call was made from mobile number 9953938343 (this number was being used by accused) to the mobile number 9999340109 (deceased); that on 22.09.2011 at 22:01:12 (10:01 PM), a mobile call from 9412114575 (PW-18) was made to the mobile number 9999340109 (deceased); that on 22.09.2011 at 22:03:53 (10:04 PM), a mobile call was made from 9818322650 (this number was being used by PW-24 Naushad) to mobile number 9999340109 (deceased).
50. The deposition of factum of making call by accused from his mobile number 9953938343 to deceased at his mobile number 9999340109 at about 06:00 PM on 22.09.2011; factum of making mobile call by father of deceased (PW-18) from his mobile number 9412114575 to his son (deceased) on his mobile number 9999340109 at about 10:00 PM on 22.09.2011; factum of making mobile call by father of deceased (PW-18) from his mobile number 9412114575 to Naushad (PW-24) on his mobile number 9818322650 at about 10:00 PM on 22.09.2011 and thereafter making of mobile call by PW-24 from his mobile number 9818322650 to deceased on his mobile number 9999340109 find corroboration from the Call Detail Records (C.D.Rs) (Ex. PW-27/C, Ex.PW-31/B and Ex.PW-31/F).
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51. Hence, it has been proved that deceased was missing from 22.09.2011: that accused from his mobile number 9953938343 made a mobile call to deceased at his mobile number 9999340109 at about 06:20 PM on 22.09.2011; that father of deceased (PW-18) from his mobile number 9412114575 made a call to his son (deceased) on his mobile number 9999340109 at 10:01 PM on 22.09.2011; that PW-18 (father of deceased) made a mobile call from his mobile number 9412114575 to PW-24 (Naushad) on his mobile number 9818322650 at 10:03 PM on 22.09.2011 and thereafter PW-24 made a mobile call from his above said number to deceased on his mobile number 9999340109 at 22:03:55 on 22.09.2011.
Deceased a scrap dealer
52. PW-18 Saleem has deposed that his son Faheem was working in the area of Garhi at Delhi for the last two years prior to incident. His son was dealing in computer scrap material.
53. PW-24 Naushad Ali has deposed that earlier in the year of 2011, he was alongwith one Saleem residing at House No. A-84, Garhi, East of Kailash, New Delhi. He had left Delhi after two/three months of the murder of Faheem (the deceased). In Delhi also, he was working as a scrap dealer. The deceased Faheem was my real nephew (Bhanja) and he was also working as scrap dealer. The deceased Faheem was working with him as partner till before six months of his murder and SC No.2282/2016 State v. Mohd. Zakir Page No.34 of 98 thereafter, he started his separate work.
54. On 23.09.2011 at about 11.00AM, again said it was 22.09.2011 at about 11AM, Faheem (the deceased) had come to his residence at Garhi. Thereafter, at about 02.00/02.30PM Faheem had gone alongwith Saleem to Kotla to collect the computer scrap. After about one and a half hours they both returned with scrap and disposed off for the sale at the shop of Kabari near his residence. Thereafter, Faheem remained with him till evening. At about 06.00 PM, he received a telephonic call from Satender from Naraina who informed him that he had six old laptops and he invited him to purchase the same from his shop. On the same day i.e., on 22.09.2011 pursuant to the call of Satender, he alongwith Faheem (the deceased) went to Naraina to collect the old laptops from the shop of Satender.
55. On 22.09.2011, he alongwith Faheem (deceased) had collected laptops from the shop of Satender at Naraina and brought the same and kept them in the room at A-84, Garhi. They were coming from Naraina and reached at Moolchand crossing, then on the way, Faheem (deceased) received a telephonic call of Mohd. Zakir. Mohd. Zakir had talked with Faheem regarding sale/purchase of computer scraps.
56. Hence, PW-18 who is father of deceased, has categorically has deposed that his son (deceased) was a scrap dealer in Delhi at the time of his death. PW-24 has also corroborated the testimony of PW-18 with regard to deceased, a scrap dealer. In cross-examination of PW-
SC No.2282/2016 State v. Mohd. Zakir Page No.35 of 98 18 and PW-24, nothing has been come to show that deceased was not a scrap dealer. Further, in statement under Section 313 of the Code, accused Zakir has not stated that deceased was not a scrap dealer. He only expressed his ignorance about profession/business of scrap dealing of deceased. Hence, it has been proved that deceased Faheem was a scrap dealer at the time of his death and he was doing said work of scrap dealer at the area of Garhi, Delhi.
Accused Zakir a scrap dealer
57. PW-10 (Banwari) has testified that he was having a tea shop at the main market at Garhi. Raisuddin was also residing at the basement alongwith his two sons namely Zakir and Shakir. Zakir, Shakir and Raisuddin were dealing in scrap business. He also stated that Zakir is the son of Raisuddin, who is having a godown of scrap in the same building where he was having. This witness has categorically deposed regarding business of scrap dealing of accused Zakir. He was not cross-examined by accused. PW-24 (Naushad Ali) has also deposed in his cross-examination that accused Zakir was also dealing in computer scrap and he was having a computer scrap shop at Neem Chowk, Garhi, Delhi; that sometimes, he used to accompany deceased at the shop of accused but he never personally or individually dealt with accused. Hence, I have no hesitation to say that accused was a scrap dealer in Garhi at the relevant point of time on 22.09.2011.
SC No.2282/2016 State v. Mohd. Zakir Page No.36 of 98 Recovery of dead body of deceased, two pieces of black computer cord, one piece of cardboard and one piece of gunny bag in plastic bag and scooter of deceased
58. In order to prove recovery of plastic bag containing dead body of deceased, two pieces of black computer cord, one piece of cardboard and one piece of gunny bag, prosecution has examined Sub- Inspector Naresh Kumar (PW-1), Constable Dev Raj (PW-2), Wasim (PW-4), Hazi Shahid (PW-5), Constable Lalit Kumar (PW-11), Head Constable (Retired) Moti Ram (PW-13), Assistant Sub Inspector Balbir Singh (PW-17), R.K. Oberoi (PW-19), Head Constable Vinod Kumar (PW-20), Sumit Singh (PW-22) and Investigating Officer Govind Sharma (PW-30).
59. PW-19 (R.K. Oberoi) has deposed that in the month of 2011, one day at about 07:00/08:00 am, when he came out from his house outside the gate no.5 of their society (D-Block, East of Kailash), he saw one white plastic bag lying outside the gate no.5. On suspicion, he called the police at 100 number from his mobile phone number 9891101889. Pursuant of his information, police reached there and checked the bag.
60. PW-22 Constable Sumit Singh has deposed that on 23.09.2011, he was posted at CPCR, PHQ, ITO. On that day at about 07:17:57 hours, he received a call from phone number 981101889, who informed on telephone to the effect that "one abandon bori was lying near nala, gate no.5, East of Kailash, Near Prakash Mohalla". He SC No.2282/2016 State v. Mohd. Zakir Page No.37 of 98 noted that information and filled the PCR form (Ex.PW-22/A) and sent the information to the Police Station Amar Colony. This witness has not been cross-examined by the accused.
61. PW-1 Sub Inspector Naresh Kumar has deposed that on 23.09.2011, he was posted in Crime Team, South District. On receipt of a call from South District Control Room, he alongwith Head Constable Ram Sahai and Constable Dev Raj (PW-2) reached at gate no.5, D Block, East of Kailash, New Delhi where Inspector Govind Sharma (PW-30) alongwith staff met them. He inspected the spot. There was a dead body of a male near the gate having ligature marks on his neck. There was one jute bag and two pieces of computer wire and at some distance away one scooter bearing number UP 12 H 2123 make Chetak. Head Constable Ram Sahai tried to lift the chance prints but could not be lifted as same were not found. Constable Dev Raj (PW-2) took the photographs of dead body, scooter and house no. 109, Prakash Mohalla. He prepared the inspection report/SOC Report (Ex.1/A) and handed over the same to PW-30. He has been cross examined by the accused but nothing material has come against the case of prosecution.
62. PW-2 (Constable Dev Raj) deposed that on 23.09.2011, he was posted in Crime Team, South District. On receipt of a call from South District Control Room, he alongwith PW-1 and Head Constable Ram Sahai reached at gate no.5, D Block, East of Kailash, New Delhi SC No.2282/2016 State v. Mohd. Zakir Page No.38 of 98 where Investigating Officer, Inspector Govind Sharma (PW-30) alongwith staff met them. There was a dead body of a male, aged 22- 23 years. At the instance of the PW-30, he took photographs of dead body, House No. C-109, Prakash Mohalla and scooter vide Ex. PW2/A-1 to Ex. PW2/A-21. He handed over the negatives to PW-30 vide Ex. PW2/B-1 to Ex. PW-2/B-22. One negative was blank.
63. Accused did not choose to cross examination the PW-2. PW-1 and PW-2 have corroborated each other on the point of their posting at Crime Team South District, receiving call from south district control room, reaching at Gate No. 5, D Block, East of Kailash, New Delhi, finding PW-30 and his staff there, finding a dead body and taking photographs of said dead body, scooter and House No. C-109, Prakash Mohalla. PW-1 has further proved his inspection report/SOC Ex. 1/A. PW-2 has proved photographs Ex PW-2/A to Ex. PW-2/A-21 and negatives thereof as Ex. PW-2/B-1 to Ex. PW-2/B-22. One negative was stated to be blank.
64. PW-8 (Mohd. Jabir) testified that he is having a shop at D Block, DDA Market, East of Kailash and on 23.09.2011, police officials came to his shop and took two-wheeler scooter of grey colour make Chetak bearing No.UP 12 H 2123. Nothing came in cross- examination of this witness by accused.
65. PW-11 (Constable Lalit) has deposed that on 23.09.2011, he was posted at Police Station Amar Colony. On that day, he joined the SC No.2282/2016 State v. Mohd. Zakir Page No.39 of 98 investigation with Assistant Sub Inspector Balbir Singh (PW-17). At about 07:30 am, he alongwith PW-17 reached at the spot i.e. Gate no. 5, D Block, East of Kailash. PCR van was already present there and a plastic bag was found there. On opening, the bag was found to contain a dead body of a male aged about 22-23 years, who was wearing a shirt of black and blue colour check, blue colour jeans and brown cotton belt. There were ligatures marks on his neck. Two pieces of one wire were also found from the bag. PW-17 made local inquiry from the public persons, who were present there and from the neighbours. One person named Shahid (PW-5) identified the dead body as Faheem r/o C-109, Prakash Mohalla, Delhi (deceased) and stated that he was the son of his brother-in-law. PW-5 further told PW-17 that deceased was missing since 09:00 pm of the previous night and was engaged in doing the job of scrap work. PW-17 took the personal search from the dead body of Faheem and Rs. 21/- were recovered.
66. PW-11 was cross-examined by the accused wherein he stated that he alongwith PW-17 had opened the bag. He had not opened the cloths worn by the dead body. Only the marks on the neck which were visible, were seen by him. He could not tell the marks on the neck were caused by the rope or by any other thing. He did not remember the colour of the two piece of wire found from the bag. He recollected name of Constable Vinod, who reached at the spot later on.
67. PW-17 (Assistant Sub Inspector Balbir Singh) deposed that on SC No.2282/2016 State v. Mohd. Zakir Page No.40 of 98 23.09.2011, he was posted at Police Station Amar Colony and on receipt of DD No.10-A through telephone, he alongwith Constable Lalit (PW-11) reached outside Gate No.5, between Prakash Mohalla and D Block, East of Kailash, where PCR van alongwith Head Constable Moti Ram (PW-13) met them. Constable Vinod (PW-20 also reached there during patrolling. At the spot, one plastic bag of white colour was lying. On touching the said bag, he felt about the existence of one dead body. He immediately informed to the Station House Officer (SHO). SHO (PW-30) reached there on his government vehicle, driven by the driver. At the instructions of PW-30, he opened the bag and found the one dead body of boy aged 22-23 years. He found ligature mark on the dead body. In the plastic bag, there was one bag, one card board and two pieces of one electric wire. One plug was attached with one piece of wire. The dead body was wearing blue and black checkdar shirt, black colour baniyan and blue jeans pant with cloth belt. The left feet of dead body was bandaged. During inquiry from the public person who were gathered at the spot, one person namely, Shahid (PW-5) came forward and identified the dead body as 'Faheem', who was the son of his brother-in-law and who was stated to be doing the work of kabadi of computer scrap at 109, Prakash Mohalla. PW-5 further informed that deceased was missing since 09:00 pm of the last night. PW-30 called Crime Team. Crime Team as well as the dog squad reached at the spot. Photographs of scene of crime were taken. Spot was inspected. PW-30 lifted exhibits i.e blood stained soil, three blood stained leafs, white plastic bag, jute SC No.2282/2016 State v. Mohd. Zakir Page No.41 of 98 bag, card board, pieces of wire from the spot. PW-30 prepared the pullandas and sealed them with the seal of GS and seized aforesaid exhibits vide seizure memos (Ex.PW-5/B and Ex.PW-5/C) bearing his signature at point B. During the search of dead body, Rs.21/- cash in denomination of two notes of Rs.10/- each and one rupee (were recovered). He did not remember whether Rs.1/- was note or coin Rs.21/- were seized vide seizure memo Ex.PW-5/A bearing his signatures at point B.
68. PW-17 was cross-examined by accused wherein he stated that the body was found lying just outside the back side gate of D Block, East of Kailash. PW-30 did not ask any public person to join the investigation as the investigation was not started till then. The bag was closed/stitched from the remaining three sides. He has admitted the suggestion that now the plastic gunny bag is opened from two sides including mouth. He and PW-30 had taken out the dead body from the bag. The length of pieces of wire might be about two feet each. He also admitted that corrugated card board and wire are easily available in the market or even in a house or a kabari shop. The clothes worn by dead body were not wet. Three leaves were found from below the place from where the dead body was lifted. The leaves and the branches of the tree existed at the place where the dead body was found. There were many trees inside Gate No. 5 of East of Kailash. The tree, whose branches were over shadowing the dead body, was an old tree and the leaves of the said tree were long, finger like and dried SC No.2282/2016 State v. Mohd. Zakir Page No.42 of 98 but he could not tell the name / type of the said tree. He had admitted the suggestion that RCC pillars existed near the dead body as shown in the site plan. The pillars were about 4 feet height, which are used as barricade. He also deposed in said cross-examination that electric pole was inside the gate of the colony and would be at a distance of about 4-5 meter from the place where the dead body was recovered. He had also admitted the suggestion that Raja Dhir Singh Marg to Prakash Mohalla road is a busy place on which traffic moves and during day hours, traffic moves on the road near which the dead body was found. The width of the road on which the dead body was found, was about 20-25 feet. He had also admitted the suggestion that Prakash Mohalla is a residential area having local shops and there is a movement of traffic on the road till 11:00 pm. PW-30 had asked to public person to join the investigation but none could be prepared, but PW-30 had not served any notice upon them. The dead body was not having any injury on his body and the old bandage was there in the left foot over the ankle. The three leaves lifted from the spot were in original form. The cord which was found at the spot was of black colour as same as the computer cord. He admitted the suggestion that shop no. 3, DDA market from where the scooter was recovered, was also a Kabari shop. He denied the suggestion that nothing was recovered from the spot and all the recoveries were planted at the instance of complainant party and further that no tree was there at the spot where dead body was recovered and no scooter was recovered from the shop no.3, DDA Market.
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69. PW-5 (Hazi Shahid) has deposed that he was working as scrap dealer. He was residing at House No. A-291, Prakash Mohalla. The deceased used to live at Prakash Mohalla. On 22.09.2012, deceased was missing and they searched for him whole night, but he was not found. On the next morning, at about 07:30 am, he came to know that a dead body was lying near Gate No.5, Prakash Mohalla, East of Kailash. He went there and saw that the dead body was lying in the jute bag and he found that the dead body was of deceased. He identified the dead body. Police officer were already present there and they have lifted some dry leaves containing blood stains and prepared a seizure memo of the same. On conducting search of dead body, Rs. 21/- was recovered at the spot, which was seized by PW-30 vide the seizure memo Ex.PW-5/A, bearing his signature at point-A. PW-30 prepared seizure memo of blood stained leave vide Ex.PW-5/B bearing his signature at point-A. PW-30 also seized a big jute bag vide memo Ex.PW-5/C, which bears his signature at point-A. In cross- examination, he stated that lead of computer was also recovered by the police.
70. PW-13 (Retired Head Constable Moti Ram) deposed that on 23.09.2011, he was posted in the PCR as an incharge of the PCR van having duty from 08:00 pm to 08:00 am. He received a call from PCR control room at about 07:15 am regarding lying of a bori outside the house at D block, East of Kailash. He reached there alongwith PCR SC No.2282/2016 State v. Mohd. Zakir Page No.44 of 98 van and found that a plastic bag (bori) was lying outside the house in the road side. In the meantime, PW-17 from the Police Station also reached at the spot. The bori was checked, which contained a cardboard board box, which had dead body of male aged about 22-23 years. The bori also contained two pieces of a wire. He informed about this to the Control Room. In the cross-examination, he stated that the wire was not too big but he could not recollect how long were the two pieces of wire and also colour of the wire.
71. PW-20 (Head Constable Vinod Kumar) testified that on 23.09.2011, he was on patrolling in the area of East of Kailash Garhi. At about 07:20 am, he reached near at gate no. 5, East Kailash where Additional Sub Inspector Balbir Singh (PW-17), Constable Lalit (PW-
11) and PCR Van found. In the meantime Inspector Govind Sharma (PW-30) also reached at the spot. One white colour bag (bora) was lying near outside gate no. 5. The said bag was checked and it was found to be containing one dead body of a male of age 20-25 years. The ligature mark were seen on the neck of the dead body. One jute bag of khakhi colour was also found in the white bag. The jute bag was found to be containing one packing gutta and two wires. One wire was having one two plug on its one end and the second wire was having a tag on its one end. In the meantime one person namely Haji Shahid (PW-5) came who identified the dead body to be the body of Faheem S/o Saleem (brother-in-law of Haji Shahid). The crime team called at the spot and they conducted the inspection of the spot.
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72. In the cross-examination, PW-20 has stated that Investigating Officer (PW-30) asked some of the public persons to join the investigation but none agreed and no notice was given to any of the public person to join the investigation. At the time of recovery of dead body, about 50-60 public persons gathered at the spot. PW-30 opened the plastic bag containing the dead body. He had not opened the plastic bag in which the dead body was found and it was opened by PW-30. He had admitted the suggestion that the said bag was opened in his presence. Two pieces of computer wire, one card board and one other jute bag were found in the said plastic bag alongwith the dead body. Jute bag was having gatta (cardboard).
73. PW-30, Station House Officer, Inspector Govind Sharma was Investigating Officer who deposed that on 23.09.2011, he was working as SHO, Police Station Amar Colony. On that day, DD No. 10-A (Mark-PW-30/A) was got recorded in the Police Station regarding one unclaimed bag lying at Gate No.5 of D-Block, East of Kailash. The said DD was marked to PW-17 for investigation. PW-17 along with PW-11 went to the spot. Upon checking the said bag, the dead body of a male was found kept in the said bag. PW-17 informed him over the telephone and after receiving this information, he himself along with driver and wireless operator proceeded for the spot in his official vehicle.
74. After reaching there, he found a dead body of a young boy aged SC No.2282/2016 State v. Mohd. Zakir Page No.46 of 98 around 23-24 years lying in the white colour plastic bag, which itself was prepared after joining many small plastic bags and was two side open. Deceased was wearing one blue colour jeans with brown belt and one check shirt of black and blue colour. The deceased was having a bandage on his left foot but was not wearing any shoes. He also found ligature marks around his neck. Beneath the dead body, two pieces of black computer cord, one piece of cardboard and one piece of gunny bag were also found in the said bag. In the meanwhile one person Haji Shahid (PW-5) reached at the spot and he identified the deceased as Faheem S/o Salim.
75. He made his efforts to find out some eye-witness, but could not find out the same. Thereafter, he prepared a rukka on DD No. 10-A vide Ex.PW-30/A and handed over the same to Constable Vinod (PW-
20) for registration of FIR at police station. Thereafter, crime team and dog squad reached at the spot, on his request.
76. On inquiry from the spot, he came to know that one two- wheeler scooter of deceased was parked at Shop No. 3, DDA Market. The crime team official inspected the spot. The photographer of the crime team clicked the photographs of the place of occurrence. They could not get any help from dog squad. He prepared four sealed pullandas of the articles such as gunny bag, jute bag, cardboard and two pieces of cord. He appended seal of 'GS' upon each pullanda. All pullandas were seized by him vide seizure memo Ex.PW-5/C, bearing SC No.2282/2016 State v. Mohd. Zakir Page No.47 of 98 his signature at point C. He also found three leaves lying on the ground beneath the bag and the leaves were stained with blood. He seized all the leaves through a sealed pullanda with seal of 'GS' through seizure memo Ex.PW-5/B, bearing his signature at point-C. He also prepared site plan of the place of occurrence vide Ex.PW- 30/B, bearing his signature at point A. Thereafter, he returned to police station and case property was deposited in the Malkhana.
77. In the cross-examination, PW-30 stated that length of the computer cord are approximate 90 cm. During the cross examination, the length of two computer cords were measured and found 90 cm approximately. He accepted the suggestion that jute bag, gatta and two pieces of computer cord are available in the market. He remained at the spot for about 05:00-05:30 hours. The proceedings were very long and no public person joined the whole investigation at the spot and left the spot due to known availability of time. He did not give any notice under section 160 of the Code to any public person. He picked three leaves below the dead body. He could not tell the name of the tree of the leaves. The nearest tree from where dead body was found, was approximately 15-20 steps. He admitted the suggestion that the RCC pillars of four feet height approximately were there on the right side of the road going towards Prakash Mohalla to Dhir Sen Marg and further that Raja Dhir Sen Marg to Prakash Mohalla road is a busy place during the day time. In night, this area is barricade towards Raja Dhir Sen Marg. The width of the road is about 20-25 feet. He had also SC No.2282/2016 State v. Mohd. Zakir Page No.48 of 98 accepted the suggestion that the shops or other establishment are situated 50-100 meter away from the spot; that six photographs (Ex.PW-30/A-1 to A-6) was on the police file since 29.09.2011 to 21.10.2016 before tendering it before the court; that the crime team prepared the report on 23.09.2011 in his presence. The scooter numberUP12-H-2123 was seized not from the place of incident i.e Gate No.5, near D-106/2, East of Kailash, New Delhi and same was recovered from shop no. 3, DDA Market, D-Block, East of Kailash, New Delhi. The distance between the place of incident and place of recovery of Scooter is about 150 meters. The Scooter was recovered in the presence of Mohd. Zabir (PW-8) and other police officers. He had also admitted the suggestion that no bleeding injuries were present on the body of the deceased at the time when they recovered the body.
78. PW-4 (Wasim) is brother of deceased who identified the dead of deceased in the mortuary of AIIMS vide Ex. PW-4/A and took the dead body after postmortem vide Ex.PW-4/B.
79. PW-19 (R. K. Oberoi) is the public witness who was residing near the place from where bag containing the dead body etc. was found. He saw the said bag lying outside the Gate No.5 when he came out from his house. This witness called the police at 100 number from his mobile No.9891101889 between 07.30 am to 08.00 am and thereafter, police had reached at the spot. This witness is natural witness because he was residing near the place from where said bag SC No.2282/2016 State v. Mohd. Zakir Page No.49 of 98 was found. This version of PW-19 has been corroborated by Constable Sumit Singh (PW-22) stating that on 23.09.2011, he was posted at CPCR, PHQ, ITO and at about 07:17:57 hours, he received a call from phone No.9891101889 (of PW-19 as deposed by him) who informed about one abadon bori lying near nala, Gate No.5, East of Kailash near Prakash Mohalla, New Delhi. This witness filled the PCR form and sent the information to the Police Station Amar Colony. He proved the PCR Form vide Ex.PW-22/A. PW-13 Constable Moti Ram (Incharge of PCR van) also reached at said spot i.e Gate no. 5. PW-1 (Sub Inspector Naresh Kumar) and PW-2 (Constable Devraj) were posted in Crime Team, South District and they alongwith Head Constable Ram Sahay reached at Gate No.5, D Block, East of Kailash, New Delhi where PW-30 (Inspector Govind Sharma) alongwith staff met them. PW-11 (Constable Lalit) and PW-17 (Assistant Sub Inspector Balbir Singh) also reached at the said Gate No.5 on receiving DD No.10A through mobile. PW-20 (Head constable Vinod Kumar) who was on patrolling in the area of East of Kailash, Garhi, also reached at said Gate No. 5, where he found PW-11 and PW-17. PW-30 is Investigating Officer namely Govind Ram who corroborated version of PW-11 and PW-17 regarding reaching by them at Gate no. 5 on receiving DD No. 10-A. PW-30 reached at Gate No. 5 after receiving the information from PW-17 regarding lying of dead body in the bag. PW-5 (Hazi Shahid) on coming to know about lying the dead body there, also reached at Gate No. 5 at about 07:30 am. The police witnesses (PWs-11, 17, 20, 30) who reached at Gate No.5 have also SC No.2282/2016 State v. Mohd. Zakir Page No.50 of 98 corroborated the fact of reaching the PW-5 at said Gate No.5. These all the witnesses i.e., PW-1, PW-2, PW-5, PW-11, PW-13, PW-17, PW-20 and PW-30 have corroborated each other regarding the lying of the white colour plastic bag outside the Gate No. 5, East of Kailash, New Delhi which was containing dead body of a male person aged about 22-25, two pieces of one wire, one cardboard and one gutta/jute bag. PWs-1,8,17,30 have deposed regarding lying a scooter of deceased bearing number UP 12 H 2123 at Shop No. 5, DDA Market. PWs-1,11,17,20,30 have testified regarding dead body of deceased having ligature marks. PWs-5,11,17,30 have deposed regarding lying three/some leaves beneath the dead body of deceased. PWs-5, 11,17,30 have deposed regarding recovery of Rs.21(two currency notes of Rs.10 and one coin of Rs.1) in the personal search of dead body of deceased. PW-5 who reached at the Gate No.5, identified the dead body of said male person to be of his relative Faheem (deceased). PW-4 (Wasim), brother of deceased and PW-5 identified the dead body of deceased after postmortem at mortuary of AIIMS and they took said dead body vide Ex.PW-4. So far as contradictions in respect of testimonies of these witness in respect of recovery are concerned, same are not material and same can occur if witnesses are examined after some months/years.
80. PW-30 has identified two wheeler scooter bearing registration No. UP 12H 2123 vide Ex.MO-12. PW-30 have also identified one big plastic gunny sheet/gunny bag of dimension 6x4 feet vide Ex.MO-
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13. PW-30 have also identified a jute bag vide Ex.MO-14. PW-30 have also identified one piece of corrugated cardboard (gatta) having dimension about 5x30 inch vide Ex.MO-15. PW-30 has also identified two pieces of lead (wire) and other piece of wire having a jack attached with computer CPU vide Ex.MO-16 (collectively). PW-30 have also identified two currency.
81. Hence, it has been proved that a plastic white colour bag containing dead body of the deceased Faheem, card board, two wires was found at Gate No. 5, East of Kailash, New Delhi on 23.09.2011 in the morning at about 07:30-08:00 AM; that three leaves of tree were also found beneath the dead body; that two-wheeler scooter of deceased bearing number UP 12 H 2123 was also recovered near shop No.5 DDA Market; that Rs.21 in denomination of Rs.10/- in number two and one rupee coin were also recovered in personal search of deceased from there.
Arrest of accused Zakir and recovery of articles at his instance
82. To prove the arrest of accused, prosecution is relying upon testimony of Head Constable Vinod Kumar (PW-20), Salil Choudhary (PW-25) and Investigating Officer Govind Sharma (PW-30). And to prove recovery of articles at the instance of accused, the prosecution is relying upon testimony of Banwari (PW-10), Head Constable Vinod Kumar (PW-20) and Inspector Govind Sharma (PW-30). PW-9 (Naresh) has not supported the case of prosecution at all.
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83. PW-9 (Naresh) has deposed that he lives in Uttar Pradesh and he came to village Garhi, Delhi at the home of his maternal uncle. He came down from the house of his mama and on the ground floor of the house, there was a shop. Rajesh, who was the son of his mama was present with the police officials. Rajesh called him and asked him to sign on a paper. He signed the same.
84. PW-10 (Banwari) has deposed that he was having a tea shop at the main market at Garhi. Raisuddin was also residing at the basement alongwith his two sons namely Zakir and Shakir. Zakir, Shakir and Raisuddin were dealing in scrap business. Police came there with Zakir and called him from his house at about 01:00 pm (noon). A huge crowd had already gathered in the market. Police (told) him that a murder had been committed in the market. He told the police that he was present in the market since 06:00 am and no murder had taken place in his presence in the market. Police had not recovered anything in his presence. On asking, he informed the police that no murder had taken place to his knowledge in the gali.
85. PW-25 deposed that on 29.09.2011, he was posted as Ahlmad in the Court of Ms. Mona Tardi Karketta, Metropolitan Magistrate, Room No. 214, Saket Courts and on that day, an application for surrender was moved by the counsel on behalf of the accused persons namely Zakir Malik and Shakir. The said application was disposed off by the learned Metropolitan Magistrate on 30.09.2011. After filing of SC No.2282/2016 State v. Mohd. Zakir Page No.53 of 98 the charge sheet, he attached the said application (Ex.PW-25/A), bearing the signatures of Metropolitan Magistrate at point-A & point- B, with the charge sheet. He identified the signature of Metropolitan Magistrate as he had seen her while writing and signing during the normal course of duty.
86. PW-20 (Head Constable Vinod Kumar) deposed that on 29.09.2011, he joined the investigation of this case alongwith the Investigating Officer Inspector Govind Sharma (PW-30), Sub Inspector K.P. Shah, Head Constable Ram Hari Pathak. They all went to the Garhi village by government vehicle. The Investigating Officer (PW-30) had apprised them that the accused persons namely Zakir Malik and Shakir Malik had moved the application for their surrender in this case before the concerned Magistrate. In the meantime, PW-30 received information that the accused Zakir was going to surrender himself in the Police Station, Amar Colony. When they proceeded towards police station then on the way i.e on Kalka Devi Mandir Marg at a little bit distance of the police station, accused Zakir met them and he (Zakir) told PW-30 that he wanted to surrender himself in this case. PW-30 detained the accused Zakir and arrested him vide his arrest memo Ex.PW-20/A bearing his signature at point A and his personal search Ex.PW-20/B bears his signature at point A. One mobile phone NOKIA 1600, cash of Rs.145/- and one bunch of 5 keys were recovered in the personal search. PW-30 interrogated the accused and recorded his disclosure statement Ex.PW-20/C bearing his signature at SC No.2282/2016 State v. Mohd. Zakir Page No.54 of 98 point A. Pursuant to the disclosure statement, accused Zakir pointed out the place where dead body was thrown i.e at gate no. 5, East of Kailash, D-Block. The pointing out memo was prepared vide Ex.PW- 20/D bearing his signatures at point A. Thereafter accused Zakir pointed out the place where the scooter of deceased was left at opposite Shop No.3, DDA Market, D-Block, East of Kailash. The pointing out memo of the said place was also prepared vide Ex.PW- 20/E bearing his signature at point A.
87. He has further deposed that thereafter, pursuant to the disclosure statement, accused Zakir led them at 19, Main Market, Garhi in the basement where the murder of deceased Faheem was stated to have committed. The basement was opened with the keys, which were recovered in the personal search of the accused Zakir. Banwari Lal (PW-10), caretaker of the premises, was also found there. PW-30 prepared the pointing out memo of the said place at the instance of accused vide Ex.PW-10/C bearing his signature at point B. The computer alongwith with monitor, keyboard, mouse, CPU and one plastic cane of white colour were recovered from the basement which were seized vide seizure memo Ex.PW-10/C bearing his signature at point B.
88. He has further deposed that thereafter, accused Zakir led them at the ground floor of the said premises and pointed out a gutter inside the premises in a corner of ground floor and from where he got SC No.2282/2016 State v. Mohd. Zakir Page No.55 of 98 recovered one black colour purse which was wet and stained with mud and the same was found to be containing two photographs of deceased, two SIM of the mobile phones, 16 visiting cards of deceased and some slips containing some transactions alongwith one Voter I- Card of deceased. Said purse was seized through seizure memo (Ex.PW-10/B) bearing his signature at point B. The articles were seized in cloth pullanda with the seal of GS.
89. He has further deposed that thereafter, the accused led them at the Ground Floor, A-35, Shera Mohalla, Garhi. The shop was opened by the PW-30 with the help of key recovered in the personal search of the accused. The accused got recovered Rs.13,000/- from a wooden almirah lying open in the shop. The currency notes were in the denomination of Rs.500/- and were found to be wrapped in a piece of newspaper. The said currency notes were seized in the presence of Naresh (PW-9), nephew of landlord vide seizure memo Ex.PW-9/A. The notes were sealed in a parcel with the seal of GS. Thereafter, they returned to police station. The case property was deposited in malkhana.
90. PW-30 (Inspector Govind Sharma) deposed that during investigation on 29.09.2011, he received an information from the Court that two persons namely Zakir and Shakir had moved an application of surrender before the court. He also came to know that accused persons as mentioned above had left the court premises for SC No.2282/2016 State v. Mohd. Zakir Page No.56 of 98 their residence. On receipt of said information, at about 02:00 - 02:15 pm, accused Zakir was noticed by him coming towards Police Station Amar Colony. He was apprehended by him with the help of accompanying staff. He was interrogated by him. After ascertaining that there was sufficient evidence against him for arrest, he arrested the accused vide arrest memo Ex.PW-20/A and his personal search memo Ex.PW-20/B was prepared by him. He also prepared body inspection memo of accused vide Ex.PW-30/B, bearing his signature at point-A. He also recorded disclosure statement of the accused vide memo Ex.PW-20/C. As per disclosure statement, accused took the police team at Gate No. 5, D-Block, East of Kailash and he pointed out the said place, where he thrown away the body of deceased. The pointing out memo was prepared of the said place vide Ex.PW-20/D. Thereafter, accused took the police team to a Shop No. 3, DDA Market, D-Block, East of Kailash, where he left the two wheeler scooter of deceased, which was used in carrying the body of deceased. The pointing out memo of the said place has been exhibited as Ex.PW-20/E. Thereafter, the accused took the police team to the place of murder i.e., 19, main market, Garhi and pointing out memo of the said place was also prepared vide Ex. PW-10/C. During the said investigation, one public witness Banwari Lal was also joined.
91. He has further deposed that during personal search of accused, keys of godown were recovered, through (the said keys), the said godown situated at basement of property number 19, main market was SC No.2282/2016 State v. Mohd. Zakir Page No.57 of 98 opened. Some articles i.e., keypad, monitor, mouse, CPU and one plastic colour white cane were recovered vide seizure memo Ex.PW- 10/A. The said articles were shown to the deceased by the accused for selling as a scrap.
92. He has further deposed that thereafter, accused took the police team to a place i.e., main hole, behind the aforesaid building, where he had thrown away the purse of deceased. At the instance of accused, one black colour purse (wallet) containing Voter I-Card, two passport size photographs, 16 visiting cards of different names, two SIM cards and few slips belonging to deceased were recovered. The articles of wallet were in wet condition and smeared with dirt. The articles were washed away with the help of water and thereafter dried in sunlight and thereafter, taken into possession vide seizure memo Ex.PW-10/B.
93. He has further deposed that thereafter, accused took the police team to his shop situated at A-35, Shera Mohalla, Garhi, The said shop was got opened with the help of keys possessed by the accused. Thereafter, accused got recovered 26 currency notes in the denomination of Rs.500/-, which were kept by him on the wooden rack, which was belonging to deceased. The said money was wrapped in a piece of newspaper. A pullanda was prepared and the said currency notes were taken into possession vide seizure memo Ex.PW- 9/A. The said recovery was effected in the presence of public witness Naresh (PW-9).
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94. Hence, in respect of application for surrender, Salil (PW-25) has clearly deposed regarding said application moved by the counsel of the accused and disposal of said application by the Metropolitan Magistrate on 30.09.2011. The said application has been exhibited as Ex.PW-25/A. PW-25 was Ahlmad in the court of said Metropolitan Magistrate (Ms. Mona Tardi Karketta). In the cross-examination, PW-25 has stated that the said application for surrender was filed on 29.09.2011; that order dated 30.09.2011 was written by Vijay, Naib Court and order was signed by the Metropolitan Magistrate at point A. He had admitted in the suggestion that the order encircled at point X on the application Ex.PW-25/A was written by the reader of the Court, which was signed by Metropolitan Magistrate at point B.
95. PW-25 was the Ahlmad in the Court of Ms. Mona Tardi Karketta, Metropolitan Magistrate, Saket Courts on 29.09.2011. He had clearly deposed regarding application of surrender Ex.PW25-A moved by the counsel on behalf of the accused and disposal of the said application by the Metropolitan Magistrate on 30.09.2011. Nothing has been come in the cross-examination of this witness against the case of prosecution. In statement under section 313 of the Code, when circumstance of filing application for surrender Ex.PW-25/A by the accused in the court of Metropolitan Magistrate was put to the accused, he answered that it was incorrect. He has not stated in the said statement that he had not filed the said application in the said court and said application did not bear his signature or said application SC No.2282/2016 State v. Mohd. Zakir Page No.59 of 98 was filed by the counsel without his advice. It has also not been stated in the said statement that he had not engaged Sh. Anil Shrivastav Advocate as his counsel. Said application for surrender shows that the same is having subject "Application for Surrender of accused and is ready to plead guilty." Zakir Malik and Shakir". In para no. 1 and 2 of the said application, it is mentioned that "that the accused have realized his mistake and he is ready to plead guilty. he has committed an offence of Murder u/s 302 IPC and he is 18 years old (near about 18 years) offence was committed on dated 23.09.2011 at 09:00 to 09:30 PM at night due to he becomes in greedy." Said application was filed through counsel (Shri Anil Shrivastav, Advocate). Said application was filed on 29.09.2011 and report was called from Station House Officer for 30.09.2011. The said application was disposed off by the learned Metropolitan Magistrate on 30.09.2011 as Investigating Officer produced the accused in police custody. Section 8 of the Indian Evidence Act provides that the conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences by any fact in issue or relevant fact, and whether if was previous or subsequent thereto. I am not agree with the contention of learned counsel for accused that accused was arrested earlier and therefor said application became infructous and Section 8 of the Indian Evidence Act is not applicable. The conduct of the accused SC No.2282/2016 State v. Mohd. Zakir Page No.60 of 98 (filing of said application) is relevant under Section 8 of the Indian Evidence Act. Hence, it has been proved that accused through his counsel filed an application for surrender and pleading guilty (Ex.PW- 25/A) in the court of Ms. Mona Tardi Karketta, Metropolitan Magistrate on 29.09.2011.
96. Now I have to appreciate the testimony regarding recovery of articles at the instance of accused. PW-20 and PW-30 have clearly deposed regarding recording of disclosure statement of accused Zakir vide Ex.PW-20/C wherein it is mentioned that he had thrown purse of the deceased in the main hole gutter of drain situated behind his godown/house; that out of Rs.15,010/- recovered from the deceased, Rs.2,010/- were taken out for the purpose of expenditure and remaining amount of Rs.13,000/- in denomination of Rs.500/- have been kept in the newspaper and same has been hidden in the rack of his shop situated at Shera Mohalla; that he could recover purse, money, SIM card, keys, sleeper (chappal), mobile phone etc. PW-20 has testified that pursuant to the disclosure statement, accused Zakir led them at 19, main market, Garhi in the basement and said basement was opened with the keys which were recovered in the personal search of the accused Zakir. He has further testified that Banwari Lal, Caretaker of the premises was also found there; that PW-30 prepared the pointing out memo of the said place at the instance of the accused vide Ex.PW-10/C; that the computer alongwith monitor, keyboard, mouse, CPU and one plastic cane of white colour were recovered from SC No.2282/2016 State v. Mohd. Zakir Page No.61 of 98 the basement which were seized vide seizure memo Ex.PW-10/A. PW-30 has corroborated the said version of the PW-20 regarding taking / bringing the police team by the accused Zakir at the godown of basement of property no.19, main market and opening of the said godown through the key recovered from the accused Zakir during his personal search and recovery of the articles i.e keypad, monitor, mouse, CPU and one white colour plastic cane. PW-30 has also deposed that the said articles were shown to the deceased for selling as a scrap.
97. Investigating Officer (PW-30) has further testified that personal search of accused Zakir was prepared by him vide Ex.PW-20/B. He has also testified that during his personal search keys of godown were recovered. PW-20 Head Constable Vinod has also corroborated the version of PW-30 in respect of personal search of the accused Zakir, preparing of personal search memo Ex.PW-20/B and recovery of bunch of five keys apart from one mobile phone make Nokia and cash of Rs.145/-. Perusal of the personal search of the accused Zakir (Ex.PW-20/B) shows that same is bearing the signatures of PW-20 and PW-30 also; that one mobile phone make Nokia model 1600 whose IMEI number was found erased, having Vodafone SIM No.80020273612, cash of Rs.145/- and a bunch of five keys are mentioned in said personal search memo.
98. In respect of recovery of purse containing some articles, PW-30 SC No.2282/2016 State v. Mohd. Zakir Page No.62 of 98 deposed that accused took the police team to a place i.e manhole behind the building where he had thrown away the purse of the deceased. He further deposed that at the instance of the accused one black colour purse (wallet) containing voter identity card, two passport size photographs, 16 visiting cards of different names, two SIM cards and few slips belonging to the deceased were recovered. In this regard, PW-20 had corroborated the testimony of PW-30 stating that accused Zakir led them at the ground floor of the said premises (19, main market, Garhi) and pointed out a gutter inside the premises in a corner of ground floor from where they got recovered one black colour purse which was wet and stained with mud and the same was found to be containing two photographs of deceased Faheem, two SIM of mobile phone and 16 visiting cards of the deceased and some slips containing some transaction alongwith one voter identity card of deceased. Both witnesses (PW-20 and PW-30) have deposed that the said purse was seized through seizure memo Ex.PW-10/B. Said seizure memo bears the signatures of PW-10, PW-20 and PW-30. It is correct that PW-10 Banwari Lal has not supported the case of prosecution. But he admitted that accused was dealing in scrap dealing alongwith his father, and accused is having a godown of scrap in the same building. He admitted his signature in seizure memo of purse Ex.PW-10/B. But he states that police took his signatures on three-four blank paper. Hence, he is not supporting the case of prosecution but it does not mean that the case of prosecution regarding recovery of articles as mentioned in seizure memo Ex.PW-10/B is not SC No.2282/2016 State v. Mohd. Zakir Page No.63 of 98 reliable. Seizure memo Ex.PW-10/B shows that a purse (wallet) containing one voter identity card of deceased, two Airtel SIMs, two photographs of the deceased, sixteen visiting cards and eight receipts and slips of transaction were recovered on 29.09.2011 from the gutter/main hole situated at the back portion of the godown, 19, Main Market, Garhi, New Delhi. Further, PW-20 and PW-30 both have corroborated each other in respect of recovery of 26 currency notes in the denomination of Rs. 500/-belonging to the deceased from the shop of accused situated at A-35, Shera Mohalla, Garhi, which was opened from the key recovered from the possession of accused on 29.09.2011.
99. In his cross-examination, PW-20 has reiterated correctly the name of police officials/officers who went to house no 19, Main Market Garhi. It is correct that he could not tell the number of rooms in the ground floor. But he was able to tell the numbers of floor (five floors) constructed at said house. He had stated that there was a tea shop of Banwari in ground floor. He had stated the width of road in front of that building. The road was stated by him to be 20 feet wide. He has also stated in said cross-examination that in that building, there was a godown in the basement and a tea shop. He denied the suggestion that no two broken wires, CPU and computer were recovered at the instance of accused. It is correct that he could not remember about the police officer who prepared the seizure memos Ex.PW-10/B and Ex.PW-10/C. In respect of drain, he stated in his cross-examination that there is a covered drain (nala) after one house SC No.2282/2016 State v. Mohd. Zakir Page No.64 of 98 of said premises. He was able to tell the size of main hole (2x2 feet). At the time of his testimony, the cards were dry. He stated that Investigating Officer washed the purse with water. The said testimony of PW-20 was recorded on 05.03.2014 whereas the purse containing said cards etc. was stated to have been recovered on 29.09.2011 from gutter/manhole in wet condition. Hence, testimony of this witness was recorded after two years and six months of the recovery and after such years/months the purse/cards could not be remain in wet condition and further the purse was washed and therefore the purse and cards when produced at the time of recording said evidence, were dry. Further, he has denied the suggestion that the Investigating Officer had recovered the purse and the cards etc. in the police station and wrongly shown to be recovered from manhole at the instance of accused. He could not tell the name of person/police official who prepared the seizure memo of recovery of Rs.13,000/-. But, he told the size of shop (8x6 feet) which was kabari shop. He denied the suggestion that all the recovered articles i.e. purse, Rs. 1300/- were falsely planted upon the accused and accused was falsely implicated at the instance of complainant due to enmity between them. Which enmity, accused was referring, has not been disclosed/stated.
100. So far as cross-examination of PW-30 is concerned, I find no effective cross-examination in respect of recovery of articles pursuant to the disclosure statement of accused. The recovery of the above mentioned articles after opening the lock of the godown/shop by the SC No.2282/2016 State v. Mohd. Zakir Page No.65 of 98 keys recovered from the possession of accused proves that said articles were in exclusive possession of accused. Further, in the cross examination of PW-20 and PW-30, nothing could be elicited from them to anyway affect the prosecution story or creates doubt over the reliability of the evidence pertaining to recovery of articles pursuant to the disclosure statement of accused.
101. PWs-20 and 30 have identified correctly the case property i.e. one computer black colour make Samsung, one C.P.U. make LG, one white colour keyboard make Samsung with mouse with lead and one plastic cane which recovered from the basement of 19, Main Market, Garhi. These articles have been exhibited as Ex. MO-1 to MO-5 respectively. They have also identified the 26 currency notes in the denomination of Rs.500/-(Ex. MO-6) which were stated to have been recovered from the shop A-35, Shera Mohalla, Garhi at the instance of accused. They have also identified the purse containing one Voter I- Card of deceased, two Airtel SIM cards, two photographs of deceased, 16 visiting cards and eight transaction slips which were recovered from the gutter at ground floor, 19, Main Market, Garhi. The purse and other articles have been exhibited as Ex. MO-7 to 11 collectively and respectively. PW-30 has further identified two-wheeler scooter bearing registration no. UP-12H-2123 vide Ex. MO-12 ; one big plastic gunny bag of dimension 6x4 feet vide Ex. MO-13 and a jute bag of size 4x2½ feet vide Ex MO-12 ; corrugated cardboard (gatta) having dimensions of about 5X30 inches vide Ex. MO-15 ; two pieces SC No.2282/2016 State v. Mohd. Zakir Page No.66 of 98 of lead/wire vide Ex. MO-16 ; two currency notes of Rs. 10 and one coin of Rs. 1 vide Ex. MO-17.
102. Hon'ble Supreme Court in Bodhraj Alias Bodha and Others v. State of Jammu and Kashmir, (2002) 8 SCC 45 has observed that Section 27 of the Indian Evidence Act, 1872 is by way of proviso to Sections 25 and 26 and a statement given by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by Hon'ble Supreme Court in Delhi Administration v. Bal Krishan, (1972) 4 SCC 659 and Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undo pressure. The object of provision i.e. Section 27 was to provide for the admission of evidence which were for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of SC No.2282/2016 State v. Mohd. Zakir Page No.67 of 98 the police. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of the police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer, in other words, the exact information given by the accused while in custody which lead to recovery of the articles has to be proved. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of information obtained from a prisoner, such a discovery is a guarantee that information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. The "fact discovered" envisaged in section embraces the place from which the object was produced, the knowledge of accused as to it, but the information given must relate distinctly to the effect. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". Mere statement that accused led the police and the witnesses to the place where he had concealed the articles is not the indicative of the SC No.2282/2016 State v. Mohd. Zakir Page No.68 of 98 information given.
103. Recently, in Mukesh's case (supra), Hon'ble Supreme Court has referred Bal Krishan's case (supra) and Mohd. Inayatullah's case (supra) for the law pertaining to Section 27 of the Evidence Act.
104. Hence, it has been proved from the testimony of PWs-10, 20, 25 and 30 that accused through his counsel filed an application for surrender and pleading guilty (Ex.PW-25/A) in the court of Ms. Mona Tardi Karketta, Metropolitan Magistrate on 29.09.2011; that accused was arrested on 29.09.2011 and his disclosure statement Ex. PW-20/C was recorded; that at the instance of the accused, one keypad, monitor, mouse, CPU and one plastic cane as mentioned in seizure memo Ex.PW-10/A were recovered from the basement of godown, property no.19, Main Market, Garhi, New Delhi on 29.09.2011; that on pursuant to disclosure statement of accused, a purse (wallet) containing one voter identity card of deceased, two Airtel SIMs, two photographs of the deceased, sixteen visiting cards and eight receipts and slips of transaction were recovered on 29.09.2011 from the gutter/manhole situated at the back portion of the godown, 19, Main Market, Garhi, New Delhi; that on pursuant to disclosure statement of accused, 26 currency notes in the denomination of Rs.500/-(Ex. MO-
6) were recovered from the shop A-35, Shera Mohalla, Garhi, New Delhi on 29.09.2011.
105. The prosecution has proved that at the instance of accused, one SC No.2282/2016 State v. Mohd. Zakir Page No.69 of 98 keypad, monitor, mouse, C.P.U and one plastic cane as mentioned in the seizure memo Ex. PW-10/A were recovered from the basement of godown, Property No. 19, Main Market, Garhi, New Delhi on 29.09.2011 and 26 currency notes in the denomination of Rs. 500 (Ex. MO-6) were recovered from the shop A-35, Shera Mohalla, Garhi, New Delhi on 29.09.2011. But prosecution could not connect these articles with the crime because it has not been proved that said keypad, monitor, mouse, C.P.U and one plastic cane were shown to the deceased by the accused before the incident. Similarly, prosecution could not connect the said 26 currency notes with the crime because it has not been proved that said currency notes were the same which were in the possession of deceased at the time of incident. In this regard judgment passed by the Hon'ble Supreme Court on 16.04.2018 in Navaneethakrishnan v. The State by Inspector of Police, Criminal Appeal No.1134 of 2013 can be referred.
CCTV footage
106. To prove CCTV Footage, prosecution has examined, Kuldeep Khera (PW-7), Rajiv Agnihotry (PW-21) and Inspector Govind Sharma (PW-30).
107. PW-7 has deposed that he is residing at D-105/1, East of Kailash. He is the proprietor of M/s Eltech Enterprises and engaged in the business of installing CCTV in offices and wherever, they required to install the same. For the security reasons, he installed a CCTV SC No.2282/2016 State v. Mohd. Zakir Page No.70 of 98 camera outside his said house at D-105/1, East of Kailash. His house is situated in the corner and the CCTV camera captures a view of the road in front of and adjoining his house. Police had met him on 24/25.09.2011 and police alongwith himself had seen the CCTV footage of the CCTV camera installed outside his house w.e.f 21.09.2011 onwards. On the request of police, he had given them a hard disc of the CCTV footage for 21.09.2011 onwards. CCTV camera stores data for 15 days. Police recorded his statement on 08.10.2011. The CCTV footage of the CCTV Camera installed outside his house pertaining to the intervening night of 22/23.09.2011, as far as he could recollect at about 02:15 am (night), which was seen by him showed that a person was driving a two wheeler scooter and the other person was sitting on the rear side and was holding a bag (which appeared to be whitish in colour) in between and were going from Prakash Mohalla side towards Sant Nagar and thereafter, about five minutes, those two persons were returning back from the same route on the scooter, but this time there was no bag with them. The light outside his house was on and there was street light, but the light was dim, therefore, he could not clearly see the faces of those persons, however, the contours of those persons were clearly visible. He had handed over the hard disc of the CCTV to the police, which were seized by the police.
108. In cross-examination, PW-7 stated that as per the capacity of hard disk installed in the CCTV Camera fixed outside his house, it SC No.2282/2016 State v. Mohd. Zakir Page No.71 of 98 could store the data for about one month; he was advised by the beat constable not to delete the CCTC footage before the hard disk was handed over to the police; the timings of the CCTV Camera is almost correct and there might difference of 5-10 minutes.
109. PW-21 (Rajiv Agnihotry) has deposed that in the intervening night of 22/23.09.2011, someone had thrown the one dead body in their area. He had installed the CCTV camera on the road in front of his house. His house is situated in the gali and the CCTV camera was installed out of the gali i.e. on the road. After two three days, police had asked him to provide the copy of the CCTV Camera footage of intervening night of 22/23.09.2011. He had provided one copy of footage to the police. After seeing the copy of footage, police had asked him to provide the hard disc of CCTV Camera. Thereafter, he had handed over the hard disc of CCTV Camera to the police. In the CCTV footage, faces of persons who was driving the scooter and a pillion rider, were not clearly visible but he noticed that said persons came on the scooter and they inspected the area and thereafter, they returned. Said persons again came and they brought one gunny bag on the scooter. They dumped the said gunny bag near the park. In the morning hours, when police reached there, it was revealed that said gunny contained one dead body. Police had seized the hard disc drive of CCTV camera vide seizure memo (Ex.PW-21/A) bearing his signatures at point A. SC No.2282/2016 State v. Mohd. Zakir Page No.72 of 98
110. PW-30 (Inspector Govind Sharma) has deposed in this regard that on 08.10.2011, he recovered hard disc of CCTV footage of main road leading towards the place in which accused had moved the dead body of deceased. The said Disc was seized from Rajiv Agnihotri (PW-21) vide seizure memo Ex.PW-21/A. The said CCTV footage was checked at the house of PW-21 and it was observed in the said footage that accused alongwith his brother Shakir was carrying the body of deceased in the plastic bag. On the same day, CCTV footage from the House No. 105/1, East of Kailash of Kuldeep Khera (PW-7) was also seized. The sad Disc was played and it was observed that both the brothers were carrying the body of deceased in a white colour plastic bag on a two wheeler scooter and after throwing the body, they were seen empty handed on the same two wheeler scooter. He also prepared the seizure memos of said hard disc vide seizure memo Ex.PW-7/A.
111. PW-7 has categorically deposed that he has installed a CCTV Camera outside his house at D-105/1, East of Kailash situated in the corner and CCTV camera captured a view of the road in front of and adjoining his house and he had given the police hard disk of the CCTV Footage for 21.09.2011 onwards and further that CCTV camera installed stores data of fifteen days. PW-30 (Inspector Govind Sharma) has also corroborated stating that he had seized CCTV Footage from the said house of PW-7. The hard disk of the CCTV Footage was seized vide seizure memo Ex.PW-7/A. Hence, it has been SC No.2282/2016 State v. Mohd. Zakir Page No.73 of 98 proved that PW-30 seized the hard disk of the CCTV Footage of CCTV camera installed outside the house No. D-105/1, East of Kailash of PW-7 with effect from 21.09.2011 onward.
112. PW-7 has stated also in his examination-in-chief that police had seen alongwith himself the said CCTV footage on 24/25.09.2011; that CCTV Footage of at about 02:15 AM which was seen by him, showed that a person was driving a two wheeler scooter and the other person was sitting on the rear side and was holding a bag (which appeared to be whitish in colour) in between and were going from Prakash Mohalla side towards Sant Nagar and thereafter, about five minutes those two persons were returning back from the same route on the scooter but this time that was no bag with them. But in cross- examination, he stated that "denak 22/23.09.2011 ki raat ki recording aapko check karai jismein do ladke ek scooter par beech mein, gandi plastic ki bori log raat mein jaate ve khaali wapis aate, recorded hai". But he has stated in his statement recorded during trial that "in between and were going from Prakash Mohalla side towards Sant Nagar and thereafter, about five minutes those two persons were returning back from the same route on the scooter, but this time there was no bag with them". There is also a court observation to the effect that this fact regarding direction was stated by the witness on asking by the learned Additional Public Prosecutor. I think there is minor improvement in the testimony of PW-7 as mentioned above which can not be made a ground on which the evidence can be rejected in its SC No.2282/2016 State v. Mohd. Zakir Page No.74 of 98 entirety because the witness has made improvement in his statement during trial in respect of directions which were not mentioned in his statement recorded during the investigation. This deposition is merely elaborated form of the statement recorded by the police with minor contradictions. Further, investigating officer (PW-30) has corroborated the version of PW-7 with regard to playing the disk in the house of PW-7. He further stated that disk was played and it was observed that both the brothers were carrying the body of deceased in a white colour plastic bag on a two wheeler scooter and after throwing the body, they were seen empty handed on the same two wheeler scooter.
113. PW-21 (Rajeev Agnihotry) had also clearly deposed regarding installation of CCTV Camera on the road in front of his house and providing one copy of the CCTV footage of the intervening night of 22/23.09.2011 to the police on asking the police. He had also deposed regarding running the CCTV footage in his house by the police and thereafter handing over the hard disk of the CCTV camera to the police. He had also noticed after viewing the said CCTV Footage that two persons came on the scooter and after inspecting the area they returned and they again came and brought one gunny bag on the scooter and they dumped the said gunny bag near the park. The hard disk of the CCTV camera was seized by the police vide seizure memo Ex.PW-21/A. SC No.2282/2016 State v. Mohd. Zakir Page No.75 of 98
114. In his cross-examination, this witness has stated the market from where he purchased the cameras and the purchasing amount of the said cameras. He had denied the suggestion that no CCTV camera was installed at or outside in his residence; that he did not hand over any hard disk to the Investigating Officer. There are also some contradictions/ improvements in the deposition of this witness as compared to his statement recorded by the police during investigation but same are minor in nature. Investigating officer (PW-30) had corroborated the version of PW-21 regarding recovery of hard disk of CCTV footage of main road leading towards the place in which accused had moved the dead body of the deceased. PW-30 had also deposed that the said CCTV footage was checked at the house of PW- 21 and it was observed in said footage that accused alongwith his brother was carrying the body of the deceased in the plastic bag.
115. During the deposition of PW-30, one Yuvraj, Junior Forensic/ Assistant Chemical Examiner from FSL Lab produced one laptop and after unsealing an envelope lying in the judicial file, three C.Ds were taken out from it, same were placed in the laptop, it were run and CCTV recording was shown to the witness in the court room. The C.D. No. 1 contained four channels and twelve recordings in number. C.D. No.2 contained four channels and three files in every channels and total twelve recordings in number. When file no. 2 of channel no. 6 in C.D. No. 2 was played and shown in the laptop to PW-30 and after watching the same he stated that at 02:24:57, two boys are seen SC No.2282/2016 State v. Mohd. Zakir Page No.76 of 98 coming on his scooter having a bag in between them and after sometime at 02:26:05, both the same boys were seen returning in the C.D. without having the said bag on their scooter. He also stated that as per C.D., the faces of the accused persons were not visible. But he had further deposed also that he had seen live recording of CCTV at the house of PW-7 and PW-21 and at that time, the faces and the vehicle were visible in the live footage. It was seen and observed in the said live footage by him (PW-30) that both the said boys were seen coming on the scooter having a bag in between them and after sometime they were seen / observed returning without bag and their faces and scooter were clearly visible in that footage. He had further deposed that on the basis of live footage seen at the house of PW-7 and PW-21 as well as CCTV recordings on the C.D. shown to him at the time of his deposition, he was able to identify both the boys shown in C.D. No. 2 Ex.PW-30/19, channel No. 6 of file No. 2 were Zakir and his brother, and Zakir was seen driving the scooter and his brother was pillion rider in the file. After watching the file No. 2, channel No. 7 of C.D. No. 2 during his deposition in the court, PW-30 stated that at 02:24:56, accused Zakir and his brother were seen coming on scooter and having white colour bag in between them and at 02:26:07, they were seen returning without bag and by seeing the said C.D., he clearly identified the accused Zakir and on the basis of colour, he identified the scooter in the photographs Ex.PW-17/A1 and Ex.PW- 17/A2.
SC No.2282/2016 State v. Mohd. Zakir Page No.77 of 98
116. In the cross examination, PW-30 has stated that deceased was 5.9 and about 80 Kg of weight and he was well built person which can be carried in a plastic bag which he saw in the C.D.. He denied the suggestion that he cannot identify the accused on the basis of these two footage of C.D.. He further denied the suggestion that it is impossible to identify any person on the basis of contour, shape and size of the body.
117. Learned counsel appearing for accused has submitted that no certificate under section 65 B has been filed and proved which is mandatory in respect of electronics record as held by Hon'ble Supreme Court in Anvar's case (supra) and therefore electronic records (CCTV Footage) has to be ignored from consideration. But this argument has been opposed by learned counsel appearing for the complainant arguing that CCTV Footage were recorded in Hard Disc Devices which were taken in original by the police and were sent to FSL and same had been produced in the court and therefore, certificate order Section 65 B is not required in the present case and in this regard Vikram Singh's case (supra) has been referred to.
118. In Anvar's case, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated in case of State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 was overruled holding that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements SC No.2282/2016 State v. Mohd. Zakir Page No.78 of 98 under Section 65-B are satisfied; that in case of C.D., VC.D., chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is admissible.
119. In Vikram Singh's case, Hon'ble Supreme Court has observed that the tape recorded conversation was not secondary evidence which required certificate under Section 65B, since it was the original cassette by which ransom call was tape-recorded, there cannot be any dispute that for admission of secondary evidence of electronic record a certificate as contemplated by Section 65B is a mandatory condition; that In Anvar P.V. (supra) this Court had laid down the above proposition in paragraph 22, however, in the same judgment this Court has observed that the situation would have been different, had the primary evidence was produced; that the conversation recorded by the complainant containing ransom calls was relevant under Section 7 and was primary evidence which was relied on by the complainant; that in paragraph 24 of the judgment of this Court in Anvar P.V., it is categorically held that if an electronic record is used as primary evidence the same is admissible in evidence, without compliance with the conditions in Section 65B.
120. In Sonu v. State of Haryana (Criminal Appeal No. 1418 of 2013), Hon'ble Supreme Court has recently held on 18.07.2017 that:
SC No.2282/2016 State v. Mohd. Zakir Page No.79 of 98 " 27. It is nobody's case that C.D.Rs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the C.D.Rs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at SC No.2282/2016 State v. Mohd. Zakir Page No.80 of 98 the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. Learned senior counsel for the State referred to statements under Section 161 of the Cr. P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. C.D.Rs do not fall in the said category of documents. We are satisfied that an objection that C.D.Rs are unreliable due to violation of the procedure prescribed in Section 65 B (4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof."
121. From these judgments, it can be said firstly that said hard disks are the disks in which data were stored/recorded and same were taken into possession by the police and therefore, no certificate under Section 65 B of the evidence act is required. Secondly, at the time of examination of PW-7 (Kuldeep Khera) and PW-21 (Rajeev Agnihotri), no objection was taken by the learned counsel for the accused at the time of marking/exhibiting the hard disk and therefore, said objection regarding mode of proof cannot be taken later on as held in Sonu's case (supra).
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122. Hence, from the testimonies of PWs-7, 21 and 30, it has been proved that PW-7 had handed over the said hard disk installed at his house to the PW-30 and further that PW-21 had handed over the hard disk of the CCTV camera to the PW-30. It has also been proved from file no. 2 of channel no. 6 in C.D. no. 2 that at 02:24:57 in the intervening night of 22/23.09.2011, accused alongwith his brother were seen coming on his scooter having a bag in between them and after sometime at 02:26:05, they are seen returning without having the said bag on their scooter. It has also been proved from file no. 2 channel no. 7 of C.D. no. 2 that at 02:24:56 in the intervening night of 22/23.09.2011, accused Zakir alongwith his brother are seen coming on the scooter and having white colour bag in between them and at 02:26:07, they were seen returning without bag.
Medical evidence
123. PW-26 Dr. Ashish Jain, Assistant Professor, Forensic Medicine, Gandhi Medical College, Bhopal has deposed that on 23rd September 2011, he was working as Senior Resident Doctor in the Department of Forensic Medicine and Toxicology at AIIMS. On that day, the dead body of one Faheem, 22 years male was brought to mortuary alongwith 12 sheets of inquest papers for postmortem with alleged history of "found dead at D-Block, East of Kailash on 23 rd September 2011 at 07:20 am". On external examination, following clothes were present on the body:-
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(i) one blue colour jeans with brown cotton belt,
(ii) blue and white check shirt with lable Gas,
(iii) black west (baniyan) with lable Malo salivary stains were present on it.
124. He further deposed that all clothes were intact and rigour mortis were present all over the body. Postmortem lividity was present over back and dependent parts. Eyes were partially open. Mouth was open. Following antemortem injuries were present over the body :
(i) ligature marks (2 in number) were present horizontally (transversely) over middle 1/3 of neck. Ligature marks were completely encircling the neck and running parrallel and adjacent to each other, brownish in colour, width of upper ligature mark was 1 cm and lower one was 0.5 cm. Ligature marks were situated 7 cm below chin, 7 cm below right mastoid tip, 6 cm below left mastoid tip and 10 cm above superasternal notch, circumference of neck was 38 cm, on disection of neck subcutaneous hemorrhage was present underneath the ligature mark, hemorrhage was present within muscles of neck.
(ii) Abrasion, linear vertically placed of length 20 cm reddish in colour was present over posterior aspect of left arm.
(iii) Abrasion reddish in colour of size 0.5 cm x 0.5 cm was SC No.2282/2016 State v. Mohd. Zakir Page No.83 of 98 present over lateral aspect of left elbow.
125. He has further deposed that after postmortem examination, he opined that the cause of death in this case is axphyxia as a result of strangulation. Time since death was about one day. Viscera blood in gauze, nail clipings and cello phaine impression of ligature mark were preserved, sealed and handed over to police. He prepared the postmortem report in detail. On 17.10.2011, a request from the Inspector Govind Sharma (PW-30) was received for subsequent opinion as to whether the ligature mark found on the dead body could be possible from the wire having 2 pieces, which was sent for examination. He examined the wire and the postmortem report and opined that the ligature mark present on the neck of the deceased could be possible with ligature material i.e. plastic wire submitted by the PW-30. His subsequent opinion is Ex.PW-26/B.
126. In the cross-examination, he explained that the meaning of two ligature mark on the neck present horizontally and transversely are that two ligature marks were adjacent to each other i.e. one below the other encircling the neck horizontally. He also stated that both the ligature marks were surrounding the complete neck. In cross- examination, he could not give a definite opinion about possibility of ligature material (mark) by the other same type of material.
127. From the testimony of PW-26, postmortem report Ex.PW-26/A SC No.2282/2016 State v. Mohd. Zakir Page No.84 of 98 and subsequent opinion Ex.PW-26/B it has been proved that dead body of the deceased was brought to the mortuary AIIMS with alleged history of "found dead at D-Block, East of Kailash on 23.09.2011 at 07:20 am" ; that rigour mortis were present all over the body and antemortem injuries were present over the body including two ligature marks, abrasion ; that the cause of death was Axphysia as a result of strangulation ; times since death was about one day ; that the ligature mark present on the neck of the deceased could be possible with ligature material i.e., plastic wire submitted by the investigating officer.
Forensic evidence
128. PW-29 Amar Pal Singh is Assistant Director Chemistry, Forensic Science Lab, Rohini, New Delhi. He deposed that one sealed corrugated box was received in FSL, Delhi and same was marked to him. The box was levelled as PMR No. 1131/11 viscera of Faheem and was sealed with the seal of Department of Forensic Medicine, AIIMS, New Delhi. It was found containing exhibits 1A, 1B, 1C and ID in the sealed jars. He examined the exhibits and prepared a detailed report vide Ex. PW-29/A bearing his signature at point-A. The forwarding letter has been exhibited as Ex. PW-29/B. In his cross- examination, he stated that the normal contains of alcohol in the blood is 50 mg per 100 ml and higher level is more than 300 mg per 100 ml. As per his report, exhibits '1A', '1B' and '1C' were found to contain SC No.2282/2016 State v. Mohd. Zakir Page No.85 of 98 ethyle alcohol; exhibit '1C' was found to contain ethyl alcohol 90.9 mg/100 ml of blood; exhibit '1D' gave negative tests for common poisons.
Delivery of copy of fir to Metropolitan Magistrate
129. PW-15 Head Constable Hoshiyar Singh has deposed that on 23.09.2011 he was posted as Head Constable at police station Amar Colony and on that day, duty officer handed over him copy of FIR No.359/2011 for delivering the same to the senior officer and concerned Illaka Magistrate. He took the said copy of FIR by service motorcycle no.DL1SS-3332 and delivered one copy of the same to the Illaka Magistrate at Saket Court in the Court at about 11:15 AM. The said copy of FIR delivered to Illaka Magistrate / Metropolitan Magistrate had been exhibited as Ex.PW-15/A. This witness was not choosed to be cross-examined by the accused. Hence, this witness has proved that he delivered the copy of FIR to the Illaka Magistrate at Saket Court in the Court at about 11:15 AM on 23.09.2011. He has also proved the copy of FIR delivered to the Illaka Magistrate to be exhibited Ex.PW-15/A. The offence punishable under Section 302 IPC
130. The case is based on circumstantial evidence. The principle of circumstantial evidence has been reiterated by Hon'ble Supreme Court in plethora of cases. In Sharad Birdichand Sarda v. State of SC No.2282/2016 State v. Mohd. Zakir Page No.86 of 98 Maharashtra, (1984) 4 SCC 116, Hon'ble Supreme Court laid down the following five tests to be satisfied in a case based on circumstantial evidence:-
"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be proved, and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
131. In Aftab Ahmad Ansari v. State of Uttranchal, (2010) 2 SCC 583, Hon'ble Supreme Court held in the following words:
"In cases where evidence is of a circumstantial SC No.2282/2016 State v. Mohd. Zakir Page No.87 of 98 nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be."
132. In Bodhraj @ Bodha & Ors. v. State of Jammu & Kashmir, (2002) 8 SCC 45, Hon'ble Supreme Court has held at para no. 9 to 13:
"9. Before analysing factual aspects it may be SC No.2282/2016 State v. Mohd. Zakir Page No.88 of 98 stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or facium probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
10. It has been consistently laid down by the Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukum Singh v. State of Rajasthan, (1977) 2 SCC 99, Eradu v. State of Hyderabad, AIR 1956 SC 316, SC No.2282/2016 State v. Mohd. Zakir Page No.89 of 98 Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330, State of U.P. v. Sukhbasi, 1985 Supp SCC 79, Balwinder Singh v. State of Punjab, (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P. 1989 Supp (1) SCC 560.) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P., (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which SC No.2282/2016 State v. Mohd. Zakir Page No.90 of 98 the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
12. In Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) "10 (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused:
(3) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else: and SC No.2282/2016 State v. Mohd. Zakir Page No.91 of 98 (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence ".
13. In State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt."
133. The above said principle of circumstantial evidence has been reiterated by Hon'ble Supreme Court in State of Goa v. Sanjay Thakkran & Ors., (2007) 3 SCC 755; Nizam & Ors v. State of Rajasthan, (2016) 1 SCC 550.
134. From the above discussion, following facts/circumstances have been proved/established:-
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(i) Deceased Faheem was a scrap dealer at the time of his death and he was doing said work of scrap dealer at the area of Garhi, Delhi.
(ii) Accused was a scrap dealer on 22.09.2011.
(iii) Deceased was missing from 22.09.2011.
(iv) Accused from his mobile number 9953938343 made a mobile call to deceased at his mobile number 9999340109 at about 06:20 PM on 22.09.2011.
(v) Father of deceased (PW-18) from his mobile number 9412114575 made a call to his son (deceased) on his mobile number 9999340109 at 10:01 PM on 22.09.2011.
(vi) PW-18 (father of deceased) made a mobile call from his mobile number 9412114575 to PW-24 (Naushad) on his mobile number 9818322650 at 10:03 PM on 22.09.2011.
(vii) PW-24 made a mobile call from his mobile number 9818322650 to deceased on his mobile number 9999340109 at 22:03:55 on 22.09.2011.
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(viii) When PW-18 made said mobile call to deceased on 22.09.2011, then receiver of mobile number of deceased replied and addressed PW-18 as "Papa" instead of "Abbu".
(ix) After receiving abovesaid mobile call by deceased from accused at about 06:00 PM, deceased went to meet accused at about 08:00/08:15 PM on 22.09.2011.
(x) Dead body of the deceased was found at Gate No. 5, East of Kailash, New Delhi on 23.09.2011 in the morning at about 07:30-08:00 AM in plastic white colour bag.
(xi) Two-wheeler scooter of deceased bearing number UP 12 H 2123 was recovered near shop No.5 DDA Market on 23.09.2011.
(xii) Accused through his counsel filed an application for surrender and pleading guilty (Ex.PW-25/A) in the court of Ms. Mona Tardi Karketta, Metropolitan Magistrate on 29.09.2011.
(xiii) On pursuant to disclosure statement of accused after his arrest, a purse (wallet) containing one voter identity card of deceased, two Airtel SIMs, two photographs of the deceased, sixteen visiting cards and eight receipts and slips of transaction were recovered on 29.09.2011 from the gutter/manhole situated SC No.2282/2016 State v. Mohd. Zakir Page No.94 of 98 at the back portion of the godown, 19, Main Market, Garhi, New Delhi.
(xiv) File no. 2 of channel no. 6 in C.D. no. 2 shows that at 02:24:57 in the intervening night of 22/23.09.2011, accused alongwith his brother were seen coming on his scooter having a bag in between them and after some time at 02:26:05, they are seen returning without having the said bag on their scooter.
(xv) File no.2, channel no. 7 of C.D. no. 2 shows that at 02:24:56 in the intervening night of 22/23.09.2011, accused Zakir alongwith his brother are seen coming on the scooter and having white coloured bag in between them and at 02:26:07, they were seen returning without bag.
(xvi) Rigour mortis were present all over the body of deceased and antemortem injuries were present over the body including two ligature marks, abrasion.
(xvii) Cause of death of deceased was axphysia as a result of strangulation.
(xviii) Time since death of deceased was about one day when postmortem was conducted on 23.09.2011.
SC No.2282/2016 State v. Mohd. Zakir Page No.95 of 98 (xix) Ligature mark present on the neck of the deceased could be possible with ligature material i.e., plastic wire submitted by the investigating officer.
135. From above-mentioned proved circumstances/facts, I am of the considered view that circumstances from which the conclusion of the guilt can be drawn have been fully proved and circumstances are of conclusive in nature. All the circumstances are complete and there are no gap left in the chain of evidence. The proved circumstances are consistent only with the hypothesis of the guilt of the accused Zakir and totally inconsistent with his innocence. Hence, prosecution has been succeeded to prove that accused Zakir committed the murder of deceased Faheem in the intervening night of 22/23.09.2011 at Godown-cum-House No. 19, Main Market, Garhi, Delhi. Hence, I hold guilty accused Zakir for the murder of deceased Faheem and convict him under Section 302 IPC accordingly.
The offence punishable under Section 201 IPC
136. I have held in previous para that accused Zakir committed the murder of deceased Faheem in the intervening night of 22/23.09.2011 at Godown-cum-House No. 19, Main Market, Garhi, Delhi. It has also been established that dead body of deceased was found at Gate No.5, East of Kailash, New Delhi on 23.09.2011 in the morning at about 07.30-08.00 AM. It has also been established from CCTV footage that SC No.2282/2016 State v. Mohd. Zakir Page No.96 of 98 at 02:24:56 in the intervening night of 22/23.09.2011, accused Zakir alongwith his brother are seen coming on the scooter and having white coloured bag in between them and at 02:26:07, they were seen returning without bag; that at 02:24:57 in the intervening night of 22/23.09.2011, accused alongwith his brother were seen coming on his scooter having a bag in between them and after some time at 02:26:05, they are seen returning without having the said bag on their scooter. It has also been established that two-wheeler scooter of deceased bearing number UP 12 H 2123 was recovered near shop No.5 DDA Market on 23.09.2011. From these established circumferences, it has been proved that the accused caused evidence to disappear i.e. the dead body of the deceased by putting the same at/near Gate No.5, East of Kailash, New Delhi with the intention of screening himself from legal punishment. Hence, I hold the accused guilty for the offence punishable under Section 201 IPC. He is convicted for the said offence accordingly.
The offence punishable under Section 404 IPC
137. It has already been established that on pursuant to disclosure statement of accused after his arrest, a purse (wallet) containing one voter identity card of deceased, two Airtel SIMs, two photographs of the deceased, sixteen visiting cards and eight receipts and slips of transaction were recovered on 29.09.2011 from the gutter/manhole situated at the back portion of the godown, 19, Main Market, Garhi, SC No.2282/2016 State v. Mohd. Zakir Page No.97 of 98 New Delhi. From these circumferences, I hold guilty the accused for the offence punishable under Section 404 IPC and he is convicted accordingly.
Announced in the open Court on 18.04.2018.
(Sanjeev Kumar) Additional Session Judge-05, South East District, Saket Courts, New Delhi Digitally signed by SANJEEV SANJEEV KUMAR KUMAR Date:
2018.04.18 14:20:30 +0530 SC No.2282/2016 State v. Mohd. Zakir Page No.98 of 98