Delhi District Court
State vs Mohd. Hassan Etc. on 11 July, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
S.C.NO.125/09
FIR No.446/2006
U/s 302/201/34 IPC
PS Mehrauli
State
Vs.
1. Mohd. Hassan S/o Mohd. Farid
2. Mohd. Rahim S/o Mohd. Maqbool
3. Mohd. Alam S/o Abdul Hasim
4. Mohd. Haroon S/o Hatim Halder
Challan filed on :27.09.2006
Received by Fast Track Court on: 12.11.2009
Reserved for order on: 01.07.2011
Judgment delivered on: 11 .07.2011
JUDGMENT
Brief facts of the prosecution's case are that on 29.06.06 at about 10.05 a.m one secret informer reached in the office of Crime Branch Prashant Vihar and gave information to Ct Satya Prakash regarding assembling of 4/5 Bangladeshi boys in Majnu ka Tila who are involved in committing the murder of one boy about 4/5 years back and State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 1 of 38 thereafter burying his dead body in the rocks of Mehrauli. Ct. Satya Prakash brought the secret informer to SI Ritesh Kumar and the information was recorded in DD no. 18, copy of which is Ex.PW20/A. Senior Police officials were appraised and on their direction SI Ritesh organized a raiding party consisting to HC Rajender, HC Jasmail, Ct. Rajeev, Ct. Ajay and Ct. Satya Prakash and they went to Majnu ka tila after lodging DD no.4 copy of which is Ex.PW10/A. Some public persons were requested on the way to join the investigation but they went away without telling their names and addresses. IO deployed the members of raiding party at different directions at Majnu ka Tila. At about 12 noon four boys came there and on the identification of secret informer they were apprehended. The said boys were interrogated and they disclosed about the commission of murder of Nasir because of batmeezi (nonsense) with the wife of one boy Harun. It was disclosed that the dead body had been buried at plot no. 165/2 Babu Colony, Mandi Gaon, Mehrauli. The said boys were arrested and thereafter the place was dug where the dead body was buried and one human skeleton was recovered. Crime team was summoned and photographs were taken. It was sent to AIIMS Hospital for post mortem and after post mortem the skeleton was handed over to HC Mahender for performing last rites. The accused persons were arrested and after completion of investigation challan was filed in the court.
2. This case being triable by the court of session and after State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 2 of 38 committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 07.12.06 and thereafter by Fast Track Court on 12.11.09.
3. The accused Mohd.Haroon was charged u/s 302/201 IPC & remaining three accused were charged u/s 201 IPC on 13.02.2007 by my Ld. Predecessor Sh VK Bansal, Ld. ASJ to which accused persons pleaded not guilty and claimed trial.
4. The prosecution in support of its case in all has examined as many as 23 witnesses. Thereafter the prosecution evidence was closed.
5. The evidence against the accused persons were put to them in their statements of accused recorded u/s 313 Cr.P.C in which they have pleaded their innocence and stated that they have been falsely implicated in this case.
6. I have heard Ld. APP for the State as well as Ld. Defence counsel for the accused persons and perused the testimonies of the PWS and exhibited documents carefully.
State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 3 of 38
7. In view of the submissions made by the Ld.Counsel for the accused persons as well as Ld.APP for the State, I have also perused the testimonies of PWS. Pw1 Dr. Chitranjan Behra has conducted the post mortem on the bundle of bones brought in bori (gunny bag). The Post Mortem report is Ex.PW1/A.
8. PW2 Dr.Sudhir Gupta has stated that on an application by the IO he opined that the fracture mentioned in the PM report could be caused by blunt force/object and its production as anti mortem in nature can not be ruled out. The application of IO is Ex.PW2/A and opinion is Ex.Pw2/B.
9. PW3 Ct. Satya Prakash has deposed that on 29.6.06 at about 10 a.m secret informer came to the office and informed him that Haroon who is Bangladeshi, alongwith his relatives, 4/5 years back had committed murder of his companion Nasir and buried him in the plot of his house and they will come to Majnu ka Tila Gurudwara where they can be apprehended. He informed to SI Ritesh who informed ACP and on whose direction raiding party was formed and reached at Majnu Ka Tila. Nakabandi was done there. At about 12 noon secret informer pointed out towards 4 persons coming from the side of Majnu Ka Tila and going towards Magazine Road were apprehended and interrogated. Haroon disclosed about the commission of offence by him and thereafter buried the dead body with the help of his relatives/co accused. The State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 4 of 38 disclosure statements of accused persons are Ex.PW3/A to D. All the four accused persons led the police to Bapu Dham Mandi village and pointed out the place of burial of Nasir vide memo Ex.PW3/E. The video grapher and photographer were called and the place was dug out with the help of labourer and after 4/5 feet a plastic katta containing a dead body was recovered which was wrapped in a red and black blanket. There was slaity colour pant on the dead body and one belt of black colour and checkdar shirt. He took rukka to PS and got the case registered. Earth from near the skeleton was seized vide memo Ex.PW3/F. He has further deposed that accused persons were arrested vide memo Ex.PW3/G to G3 and their persons search were conducted vide memo Ex.PW3/H to H3. The scene of crime was photographed and video was seized vide memo Ex.PW3/J. Joint disclosure statement of accused Raheem, Alamgir and Hassan is Ex.PW3/K. The video cassette is Ex.P1. Plastic container is Ex.P2 and earth is Ex.P3. Shirt is Ex.P4, Pant is Ex.P5, Belt is Ex.P6 and Sweater is Ex.P7 which was on the skeleton.
10. PW4 Ct.Akashdeep has deposed that on 29.6.06 he went to Bapu Camp with Insp. Jai Singh and SI PC Dogra alongwith four accused persons and were digging work was being done. He has further deposed that one body of male was recovered but he does not recollect the name of that person. He does not recollect the name of SDM He alongwith SI Dharampal took the dead body to Mortuary where post mortem was done and thereafter handed over the sample seal of the State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 5 of 38 hospital to HC Mahender. This witness has again been examined as PW6.
11. PW5 Sunil Thakur has deposed that on 29.6.06 he was present at his house and saw accused Harun alongwith two other accused in the custody of 5/6 police officials and pointed out their previous residence in his presence to the police where the digging was done and one gents dead body wrapped in a polythene bag was found. There was shirt of red colour checkdar and saleti colour pant on the dead body. He identified the dead body as of Hassan after seeing the clothes. There was black colour rexine belt and rusted buckle. One sweater of brown colour was also there. He identified the clothes. He also identified the skeleton in the mortuary. He has further stated that Nasir was working with Haroon Kabari. The place from where the dead body was got recovered was owned by Harun Kabari and deceased Nasir was residing as tenant over there. The said house was sold by Zamil to Pramod long back prior to this incident and agreement to sell was prepared which is Ex.PW5/A.
12. PW6 Ct. Akashdeep Yadav has also been examined as PW4.
13. PW7 Smt. Jeet Kaur has deposed that she saw accused Mohd. Harun alongwith three accused present in the court in Mandi village with some person who was in plain clothes. Harun was residing 34 house aways from her house. She went there where a pit was dug on the State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 6 of 38 pointing out of accused persons and one plastic bag was taken out from the pit and in the said bag one skeleton was found. There was badami colour pant and red checkdar shirt and one sweater on the skeleton. She identified the skeleton as of Nasir from clothes. Nasir used to come to Mohd. Harun and used to take water from the hand pump which was in her gali. She saw children of accused Mohd. Harun in his lap sometimes. She did not see Nasir about two three year prior to the day of recovery of skeleton. Accused Harun had also gone to village Mandi after vacating the tenanted premises from her locality. Videography was done at the time of taking out of skeleton from the ditch. She identified the shirt as Ex.P4, pant Ex.P5, belt Ex.P6, sweater Ex.P7, Cap Ex.P8. On 3.7.06 she identified the skeleton in the hospital.
14. PW8 SI PC Dogra has deposed that on 29.6.06 Ct. Satyaprakash got recorded DD no.18A regarding apprehension of four person in Mandi Pahari by SI Ritesh. SDM Kalkaji was informed. Videographer and still photographer from Minar Studio was arranged. One Lady Sharda owner of the plot where the dead body was dumped was also present there. In the presence of SDM all the four persons pointed out the place where they had dumped the dead boy. After digging 45 feet,one plastic big bora was found lying in the ditch and when the bora was opened, one skeleton was found inside the bag. It was covered with black and red blanket. He has further deposed about clothes on the skeleton. SI Ritesh prepared the rukka and got the case registered State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 7 of 38 through Ct. Satyaprakash. He has further deposed about arrest of accused persons and conducting their personal search. The disclosure statement of accused Harun is Ex.PW8/A and joint disclosure statement of other accused persons is Ex.PW3/K. Soil was also lifted from the place of recovery of skeleton. He has further stated that on 30.6.06 accused took to Andheria more to the shop of one kabari where they had sold the hammer after incident. But the said kabari shop was not found. He identified the clothes.
15. PW9 Rajender Prasad, Dy. Director, Social Welfare Deptt has deposed that on 29.6.06 he was posted as SDM Hauz Khas and at about 4.30 p.m he received telephonic message from SHO regarding apprehension of our boys who had buried the body of one man in plot no.1 65/2 Bapu Camp, village Mandi. He reached at the spot. All the four accused pointed out the place under keekar tree and digging work started there. Inside ditch one plastic bag was found and on opening it, one skeleton wrapped in black and red colour blanket was found. He deposed about clothes on the person of skeleton.
16. PW10 SI Ritesh has deposed that on 29.6.06 Ct.Satya Prakash informed him that 4/5 Bangladeshi boys would come to Majnu ka tila for kabari work and they have committed the murder of one boy and buried his dead body in the rocks of Mehrauli. Ct. Satya Praksh brought the secret informer to him. He informed this fact to senior police State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 8 of 38 officials and thereafter formed a raiding party and reached at Majnu ka Tila after lodging DD no.4 Ex.PW10/A. On the identification of secret informer, the four boys were apprehended and they were interrogated and disclosed about the commission of crime. They were arrested and their personal search was conducted. They were interrogated and their disclosure statements were recorded. Thereafter accused took them to village Mandi. He prepared the joint identification memo Ex.PW3/E. He sent information to PS Mehrauli and SHO, SDM reached there. He has further stated that on the pointing out of accused persons, the place was dug and human skeleton was taken out. He prepared rukka Ex.PW10/L and got the case registered. Insp.Jai Singh prepared the site plan. He identified the exhibits.
17. PW11 Ravi has deposed that he dug a ditch in one house under the keeker tree on the slope at the instance of four accused person and one bora/gunny bag containing skeleton of male was taken out. There were clothes on the dead body i.e. pant, shirt and belt with buckle.
18. PW12 Ashok has also deposed that he was called by the police about 2/3 years ago and he alongwith Ravi dug the ditch where one plastic bag was found and on opening it one skeleton wrapped in a blanket was taken out. The same was sent to hospital. Photographs and videography was also done. Mohd. Harun was with the police. He did not identify the other three accused persons. He was declared hostile by State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 9 of 38 the police and he admitted that dated was 29.6.06. He admitted that due to illness his eyes are weak so, he cannot see properly and due to lapse of time he could not tell exact date earlier.
19. PW13 HC Mahender Bhardwaj has deposed that he alongwith two independent witnesses namely Jeet Kaur and Sunil Thakur went to AIIMS Mortuary for conducting the post mortem of deceased Nasir. The skeleton was identified by Jeet Kaur and Sunil Thakur. Inquest proceedings were conducted and after Post mortem the dead body/skeleton was handed over to him on 3.7.2006 for cremation. He handed over the same to Sekhawat Jamadar for cremation as per Muslim Rites in Quabristan vide memo Ex.PW13/A. On the same day Ct. Akashdeep handed over six parcels with the seal of hospital which were taken into possession vide memo Ex.PW13/B.
20. PW14 SI Mahesh has deposed that he prepared the scaled site plan which is Ex.PW14/A.
21. PW15 Pramod Kumar has deposed that in Dec. 2005 he had purchased plot no. 165/2 Bapu Colony from Mohd. Zamil and his wife Zamila Begum. Prior to purchase of this plot there was kabari shop cum godown. He produced the documents of the property to the police which were seized vide memo Ex.PW15/A. State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 10 of 38
22. PW16 Mohd. Zamil has deposed that he had purchased the plot in the year 1997 from Hakim in village mandi pahari near a Mazar and he had given it to Harun on rent for doing kabari job. Mohd. Alam was also residing with Mohd. Harun. Mohd. Harun vacated the said plot without informing him. Thereafter he sold the same to Pramod. The transaction is Ex.PW5/A. He has been declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he admitted that he purchased the plot from Mohd. Irshad in the year 1999 in the name of his wife. He admitted that Mohd. Harun remained in the said plot for about two and half years and not for one year. He denied the suggestion that one more person named Nasir was also residing with Mohd. Harun.
23. PW17 Shakkhawat has deposed that on 3.7.06 he was doing the job of Jamadar in quabristan administered by Delhi Wakf Board and on that day one police official Mahipal came with one skeleton and it was buried as per muslim rites.
24. PW18 Pawan Thakur has deposed that he was working as photographer in Minar Studio, Mehrauli and he went to village Mandi with IO. All the four accused pointed out the place where digging work was carried out and one gunny bag containing skeleton of human was taken out. He took 18 photographs which are Ex.PW18/A1 to A18. State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 11 of 38
25. PW19 Vikky Kumar is the videographer and he also went to the place and conducted videography, the cassette is Ex.PW18/Article1.
26. PW20 SI Liyaquat Ali has deposed that he recorded information in DD no.18 Ex.PW20/A given to him by HC Satya Prakash regarding murder and burying of dead body. He recorded FIR no. 446/06 copy of FIR is Ex.PW20/B. He also sent copy of FIR to senior Police officials through Ct. Ashok Kumar.
27. PW21 HC Dharam Singh is the MHCM who made entry regarding depositing of case property in malkhana. The entry is Ex.PW21/A and B.
28. PW22 Retired Insp. Jai Singh has deposed that on receipt of DD no.18A he informed the SDM Rajender Prasad and he has also called photographer and videographer and reached at the spot after making departure entry no. 19A Ex.PW20/D. He has stated about presence of police officials, Ashok Kumar, Ravi and Sharda at the spot alongwith Jeet Kaur. He arrested the accused persons vide memo Ex.PW3/G to G3 and and conducted their personal search vide memo Ex.PW3/H to H3. He recorded the disclosure statement which is Ex.PW8/A and joint disclosure statement of remaining accused is Ex.PW3/K. He has further deposed that accused persons pointed out the place where they had buried the dead body and after digging the said place the skeleton was State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 12 of 38 taken out with pant, checkdar shirt, belt, sweater. SI Ritesh prepared the rukka Ex.PW10/L and got the case registered. The skeleton was sent to mortuary vide application Ex.PW22/A. He prepared the site plan Ex.PW22/B. He further deposed that he lifted the earth control/soil from the ditch and taken the same into possession vide memo Ex.PW3/F. He seized the video cassette vide memo Ex.PW3/J. He identified the CD as Ex.P1. The DVD is Ex.PW22/Article1 and report is Ex.PW22/C. He has further deposed that on 30.06.2006 accused Harun took the police party to Andheria mor to one kabadi shop where he had sold the hammer but the said kabari shop was already removed in Govt. demolition programme and could not be recovered. He moved application for preservation of skeleton which is Ex.PW22/D. He conducted the inquest proceedings and recorded the statement of Jeet Kaur and Sunil which are Ex.PW5/A and Ex.PW7/A regarding identification of skeleton. Form 25.35 is Ex.PW22/E. He prepared the brief facts which are Ex.PW22/F. After post mortem the dead body was handed over to HC Mahender for performing Last Rites. The receipt of graveyard is Ex.PW13/A. The viscera peti alongwith six parcels were taken into possession vide memo Ex.PW13/B. He recorded statement of witnesses. He identified the exhibits.
29. PW23 Insp. Atul Kumar has deposed that he received the further investigation on 7.9.2006. He got prepared the scaled site plan through SI Mahesh. He made search for the relatives of deceased nearby State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 13 of 38 the area of Mosque, colonies but no relatives met him. He sent wireless message to NCRB, Incharge CRO and missing persons squad, the letter of missing person squad is Ex.PW23/A, NCRB is Ex.PW23/B and CRO is Ex.PW23/C. Another message is Ex.PW23/D. On 13.9.06 he collected the post mortem report. He recorded the statement of Pramod and Mohd. Zamil and seized the documents of plot. He moved an application for subsequent opinion. The application is Ex.PW23/E and opinion is Ex.PW2/B.
30. In the overall analysis of the testimonies of all the witnesses it is revealed that in this case no one has seen the accused committing the crime. There is no direct evidence in this case. So, this case depends on circumstantial evidence. It is well settled law that observed by the Apex court in Tanviben Pankaj Kumar Devtia Vs. State of Gujarat, 1997(2) CC cases SC 98 that court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some time unconsciously it may happen to be a short step between moral certainty and legal proof it has been indicated by this court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. Our Hon'ble High court of Delhi in Raj Mani Vs. State has held that where the evidence of last seen together specially considering the evidence of the PWS cannot be said to prove with reasonable certainty that the circumstances of last seen together has been established beyond a shadow of doubt by State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 14 of 38 the prosecution, the state of circumstances of last seen together being not free from suspicion. No finding with regard to the proof of circumstances of last seen together can be recorded. It is stated in Padala Veera Reddy Vs. State of A.P. (SCC pp.71011, Para 10) and in other catena of Judgments that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: '10. (1) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilty 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 (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the 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'.
31. In this case initially Secret Informer gave information to PW3 Ct.Satya Prakash in the office of Special Team Crime Branch that Haroon alongwith his relatives 4/5 years back had committed murder of his companion Nasir and buried him in the plot of his house. As per charge sheet and evidence on file the secret informer gave the information about murder of Nasir and burying his dead body to police after 4/5 years from the date of commission of offence. It is not State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 15 of 38 understandable as to why the said secret informer had not informed the police at the time of commission of crime if he had such knowledge. Nothing explanation has been tendered by the IO PW22 Retired Insp. Jai Singh in this respect. He has not stated as to why this information was not disclosed by the secret informer earlier. The version of witnesses about disclosing the information of murder after 4/5 years by the secret informer create doubt in this case and it seems that the police has devised a concocted story. However, I have also looked for other evidence.
32. PW7 Jeet Kaur is the social worker in Bapu Colony where the dead body was taken out. She has stated that accused Harun was residing in a house situated after 34 houses in Bapu Colony from her house. She identified the clothes on the skeleton of deceased Nasir because he used to come to visit the house of Mohd. Harun and used to take water from the hand pump which was in the gali alongwith other accused persons and she saw the children of accused Mohd Harun in his lap sometimes. She did not see Nasir about two - three years prior to the day of recovery of skeleton and Mohd. Harun has also gone to village Mandi after vacating the tenanted premises in her locality. It has been specifically stated by PW7 that she did not see deceased Nasir about 23 years prior to the day of recovery of skeleton. Allegedly and as per evidence as well as secret information, the murder of Nasir was committed about 45 years back from the day of recovery of skeleton. It is crystal clear that PW7 had seen deceased Nasir before 23 years prior State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 16 of 38 to 29.6.06 i.e the date when the skeleton was recovered. PW5 Sunil Thakur has also stated that Nasir was missing about two and half years prior to this incident. In view of corroboration of PW5 & 7 in respect of missing of deceased Nasir 2 and half years prior to 29.6.06; committing of his murder and burying his dead body before 45 years from 29.6.06 seems to be doubtful. PW5 has specifically stated in his cross examination that Nasir had gone missing about two and half years prior to 29.6.06. Pw7 has also stated that she saw deceased two and half years ago. But no complaint in respect of missing of deceased Nasir has been lodged by PW5 or PW7. Also no such complaint has been brought on record by the IO which had been lodged by the family members of deceased. Even IO has not conducted any investigation in this respect. Further in cross examination PW7 Smt. Jeet Kaur has stated that decased Nasir used to come to visit to accused Harun and she had seen him on his each visit but she cannot tell as to how many days prior she had seen him prior to this case incident. She cannot tell where deceased Nasir was residing. She does not know about marital status of deceased Nasir as well as his other family members. She did not see any photograph of deceased Nasir. From this version of PW7 it seems that she had not seen deceased Nasir in the company of accused Harun. Even she does not know about residence of Nasir and about his family members. So, it is not understandable as to how she was knowing Nasir only when she had no knowledge about his residence, marital status and family members. PW5 Sunil Thakur who is also the residence of the same area has stated State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 17 of 38 that the place from where the dead body was got recovered, the said house was owned by Harun Kabari and deceased Nasir was residing as tenant over there. PW7 who had seen deceased Nasir has not supported the version of PW5 that deceased Nasir was residing with accused Harun. The case of the prosecution is that deceased Nasir was working with Harun Kabari. Only PW5 has stated that Nasir was working with Harun. It has not been corroborated by PW7 Jeet Kaur who is also the resident of the area. No record of working of Nasir has been seized by the police. Also no witness from the family of Nasir has been examined to establish that deceased was working with accused Harun. So, it could not be established that deceased Nasir was working with accused Harun. As per deposition of PW5 the house in question was owned by accused Harun but on the other hand it has not been owned by accused Harun but owned by one Pramod examined by prosecution as PW15. In case Law 1990 (1) CC Cass 250 (HC) it is stated in head note that: 'Sec.302 - Murder - Circumstantial Evidence - Its appreciation - No evidence on record to show that any one had seen the deceased in the company of the appellants at any time before the recovery of dead body
- House of the appellant situates at some distances from the place of recovery of dead body - No ground to hold the accused guilty for the commission of the crime.'
33. There is no evidence on file that deceased had ever been seen in the company of accused Harun or that he was residing with him or that he was working with him. So, last seen as well as availability of State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 18 of 38 deceased Nasir with accused Harun could not be established by the prosecution.
34. Accused persons were arrested in this case from Majnu ka Tila. The prosecution has examined PW3 Ct. Satya Prakash, PW8 SI PC Dogra, PW10 SI Ritesh & PW22 Ins.Jai Singh. PW3 Ct. Satya Prakash has stated that secret informer came to the office of Special Team Crime Branch and informed him that one Harun alongwith his relative 4/5 years back had committed murder of his companion Nasir and buried him in the plot of his house and all the four accused persons would come to Majnu Ka Tila Gurdwara. He gave this information to SI Ritesh on which raiding party was formed and reached at Majnu ka Tila where secret informer pointed out four persons coming from the side of Majnu Ka tila and going towards Magazine Road were apprehended and interrogated and Harun disclosed about the commission of crime. In cross examination he has stated that they had not put any barricade while doing nakabandi. He cannot tell which police officer apprehended which of the accused. The road was empty and nobody was coming or going nor there was any traffic. He does not know whether SI Ritesh made efforts to join public witness from the nearby locality or not. Secret informer left after the disclosure statement of accused persons. PW10 SI Ritesh has deposed about apprehension of accused persons. On perusal of his cross examination it is revealed that he has made improvement in his statement that secret informer came to him alongwith Ct. Satya State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 19 of 38 Prakash at about 9/10 a.m He has stated that he cannot say with whom the secret informer was sitting. He denied that there is Police Post and Gurudwara where the accused persons were apprehended. He did not call any local police over there. The secret informer left after pointing out and apprehension of the accused persons. The accused persons were coming from ISBT on the road which goes to Wazirabad side. PW22 Insp. Jai Singh has arrested the accused persons and prepared arrest memos Ex.PW22/G to G3. PW3 Ct. Satya Prakash has stated that secret informer left the place after disclosure statement of accused persons while PW10 SI Ritesh has stated that secret informer left after pointing out and apprehension of accused persons. PW3 has stated that accused persons were coming from Majun ka Tila and going towards Magazine road while PW10 has stated that accused persons were coming from ISBT on the road which goes to Wazirabad side. PW3 has stated that road was empty at that time. It has been seen that Majnu Ka Tila is on main road which goes to bypass and from this road many interstate buses used to pass during day time as well as whole night. Every time there used to be heavy traffic on this road. So, the version of PW3 that road was empty is not acceptable. PW10 has not joined any public person at the time of arrest and disclosure of accused person though it was a busy road and many public persons used to be available there and there is also a gurudwara near to the place of apprehension of accused persons. Both PW3 & 10 could not tell as to which accused was apprehended by which police official. I have also perused the arrest memos. On perusal of the State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 20 of 38 same it is revealed that first accused persons were arrested by SI Ritesh vide arrest memo Ex.PW10/C to F at Majnu ka Tila and thereafter Insp. Jai Singh arrested them at Bapu Colony vide arrest memo Ex.PW22/G to G3. PW8 SI PC Dogra has stated that on 29.6.06 Ct. Satya Prakash came to PS from special crime branch Prashant Vihar and got recorded DD no. 18A regarding apprehension of four persons in Mandi Pahari, Bapu Camp by SI Ritesh. Considering his version as well as the arrest memos prepared by Insp. Jai Singh it seems that accused persons were arrested from Bapu colony but considering the other arrest memos and testimonies of PW3 Ct. Satya Prakash & PW10 SI Ritesh it seems that accused persons were arrested from Majnu Ka Tila. There are many contradictions regarding arrest of accused persons in this case and even the prosecution itself is not sure as whether accused were arrested from Majnu Ka Tila or from Bapu Colony. So, arrest of accused persons could not be proved by the prosecution.
35. Another circumstance is recovery of dead body/skeleton. SI Ritesh PW10 had recorded the disclosure statement of accused and thereafter the accused led the police party to the place where the dead body was exhumed. The prosecution has examined PW3 Ct. Satya Prakash, PW4 Ct Akashdeep, PW5 Sunil, PW7 Jeet Kaur, PW8 SI PC Dogra, Pw9 Rajender Prasad, Dy. Director, the then SDM, PW10 SI Ritesh, PW11 Ravi, PW12 Ashok, PW18 Pawan Thakur, PW19 Vikky Kumar and PW22 Insp. Jai Singh. PW4 & 10 have stated that accused State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 21 of 38 pointed out the place where the dead body was buried. PW11 Ravi and PW12 Ashok are the labourer called by the police to dig that place. Pw11 Ravi has stated that he know accused Harun as he used to do the job of rag picker in the area and he does not know other accused. He alongwith PW12 Ashok dug the place and one bora was taken out. On opening the same, one dead body was found and on the dead body there was pant with black colour belt with buckle and red colour shirt with checks. PW12 did not identify three accused persons. PW12 has stated in cross examination that he does not know whether the said skeleton was of man or anyone else. PW18 Pawan Thakur has clicked the photographs of the skeleton and PW19 Vikky Kumar did the videography. PW5 Sunil and Pw7 Jeet Kaur are the public witnesses in whose presence the dead body/skeleton was taken out and PW9 Rajender Kumar is the SDM. He has also stated that one pant of slatey colour black belt with buckle, one sweater, one T shirt, one pair of socks, one woolen cap were found on the dead body. PW3 Ct. Satya Prakash has stated that all the accused led the police party to Bapu Dham Manid village and pointed out the place of burial of Nasir vide memo Ex.PW3/E. PW10 call the SDM and SHO at the spot. The place was dug and one plastic katta containing dead body was recovered which was wrapped in red and black blanket. PW4 Ct. Akashdeep has stated that one dead body of male was recovered later on they came to know the name of deceased but he does not recollect his name. Pw8 SI PC Dogra, PW10 SI Ritesh and PW22 Insp Jai Singh have also deposed about taking out of skeleton. Considering the evidence on State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 22 of 38 file as well on watching the CD and perusal of photographs available on record there is no doubt that the dead body/skeleton was not recovered by the police.
36. Another circumstance is Identification of Skeleton. The prosecution has examined PW5 Sunil Thakur and PW7 Jeet Kaur on this aspect. Both these witnesses were present at the time of digging and taking out of skeleton. PW5 Sunil Thakur has stated that after seeing the clothes of the dead body he identified the dead body as of Hassan. There was black colour rexine belt on the waist with rusted buckle. There was one dark brownish sweater of full sleeves on the dead body. PW7 Jeet Kaur has also stated that she identified from the clothes of skeleton that it is of Nasir. In cross examination PW5 has admitted that the wearing clothes found on the skeleton of Nasir can be available easily in the open market. Pw22 Insp. Jai Singh has stated that such type of clothes are not available in the open market. Pw7 has stated in cross examination that she was called by the police in the PS several times and she went there and she does not recollect the date of her each visit. She signed twice in the PS on some documents. It is not understandable as to why police called her several times in the PS and this create doubt about some manipulation. It further seems that PW7 did not sign any document at the spot where the dead body/skeleton was taken out. All the accused persons were present at the spot when she reached there. At the time of recovery of skeleton that was only bones and not attached with State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 23 of 38 flesh/skin. Pw22 Insp. Jai Singh has stated that Sunil and Jeet Kaur identified the dead body in AIIMS Hospital and thereafter he conducted the inquest proceedings. The evidence available on record shows that only skeleton was recovered in this case which could not have been identified by anyone. It is the case of the prosecution that identification of skeleton was established through clothes i.e. pant, shirt etc. by PW5 & 7 who had seen deceased Nasir. Considering the evidence of PW5 and 7 they have categorically stated in their statements that they had seen deceased Nasir two and half years back from the day of recovery of skeleton. The alleged clothes found on the dead body as stated by the PWS must have been seen by both the witnesses about two and half year back. It is difficult to believe the version of both PW5 Sunil Thakur & PW7 Jeet Kaur that they could recognize the clothes of a general person seen by them occasionally and that too after two and half years. Admittedly the identification was done only on the basis of clothes since as per evidence available on record only bones (skeleton) was recovered which was not identifiable. I have also considered the testimony of official witnesses on this aspect. It has come in the evidence of PWS that the skeleton was wrapped in a gunny bag. But the said gunny bag has not been seized by the IO nor produced and exhibited in the court. PW9 Rajender Prasad, the then SDM has stated that one pant, black belt with buckle, one brown sweater, one TShirt, one pair of socks, one woolen cap were recovered. But other official witnesses have deposed only about pant, shirt, sweater, belt with buckle and they have not stated State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 24 of 38 about recovery of TShirt & pair of socks. Tshirt and pair of socks has also not been produced and exhibited in the court. PW23 Insp. Atul Kumar has stated that he made search for the relatives of deceased nearby area of Mosque, colonies and some other places but no relative met him of the deceased. He also flashed the wireless message/written communication in this respect to different departments i.e. NCRB, Missing persons squad, CRO Crime are Ex.PW23/A to D. In cross examination he has stated that he tried his level best to search the photograph of the deceased Nasir but the same could not be traced and found by him during his course of investigation. He tried to search the relatives of deceased Nasir or collecting his blood sample for DNA Test also Vol. Deceased was Bangladesh National. He did not go to Bangladesh for this purpose. No doubt that IO PW23 had flashed certain messages Ex.PW23/A to D. But he has not tried to publish about recovery of skeleton of Nasir in the leading National Dailies or did not take steps to distribute pamphlets in order to establish the identity and bring the same in the knowledge of his relatives/family members. Even despite sending information to NCRB, CRO and Missing persons squad, no one informed about missing of Nasir. If Nasir had been missing, his family members/relatives must have taken steps to lodge the missing report in this respect. But no such report is available on file. PW16 Mohd. Zamil has stated that the said plot was situated in village Mandi Pahari near a mazar. PW16 is the alleged previous owner of the plot and he has specifically stated that his plot was near Mazar. In and near Mazar State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 25 of 38 several dead bodies are buried and this create doubt about recovery of skeleton of Nasir or someone else. Further the IO has not taken steps to send the recovered bones to FSL to establish as to whether these bones are of human being or else. No DNA test has been conducted on the recovered bones. The identification of deceased by PW5 & 7 through wearing clothes is not believable since both had seen him before two and half years ago. PW23 IO had also not gone to Bangladesh to investigate and contact the family members of Nasir and to ascertain as to whether Nasir is dead or alive. So, in view of the above observations, the prosecution could not establish that the recovered skeleton was of Nasir and the identification of skeleton remained unproved.
37. Another circumstance is ownership of the place of recovery of dead body. As per secret information given to Ct. Satyaprakash and thereafter to SI Ritesh PW10, the dead body was buried in the plot where accused Harun was residing. The same fact has been mentioned in DD no.4 copy of which is Ex.PW10/A. As per disclosure statement of accused Harun Ex.PW8/A he alongwith his associates had exhumed the dead body behind his house on the slope in the night. Admittedly Bapu colony where the dead body was taken out is a residential colony and many houses are there. If the accused had buried the dead body in the night, even then they would have made some sound for digging the land in order to exhume the dead body. No witness has been examined by the prosecution to prove that he/she had heard such sound of digging the soil State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 26 of 38 at any time. It is not believable that a ditch was dug and none had heard the sound of digging when the area is densly populated. The photographs shows that the dead body has been taken out from a open space and it does not fall within the premises of house. Considering the testimonies of witnesses, the prosecution has examined PW15 Pramod and PW16 Mohd. Zamil in respect of ownership of plot in question. PW16 Mohd. Zamil has stated that he was owner of plot and it was situated in village Mandi Pahari near a Mazar. He had given it on rent to Harun who was doing job of kabari.He sold the said plot to Pramod. After declaring him hostile he has stated that the plot was purchased by him in the name of his wife Zamila Begum. Mohd. Harun remained in the said plot for about two and half years and not for one year. PW15 Pramod Kumar has stated that he had purchased the said plot no. 165/2 Bapu Colony from Mohd. Zamil and his wife Zamila and before that there was one kabari shop. He produced the documents of said property to police which were taken into possession vide memo Ex.PW15/A. The copy of purchase transaction is Ex.PW5/A consisting in two pages. In cross examination he has stated that he came to know from public as well as police that a murder has been committed and dead body has been buried in his plot. He did not get the said plot registered in his name till today. He did not get executed any power of attorney from seller in his name before the Sub Registrar. Both these witnesses PW15 and PW16 have stated that document Ex.Pw5/A was executed. This is a photocopy of receipt. It states about selling of said house no. 165/2 Bapu Colony to Pramod State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 27 of 38 Kumar on 18.12.2005. The original receipt has not been produced in the court. The witnesses to this receipt have not been examined. Considering the attached receipt which is on stamp paper of Rs.5/ it has been revealed that Irshad had sold the said jhuggi of 80 sq.yard to Smt. Shamshad Begum. But in receipt Ex.PW5/A it is mentioned that Mohd. Zamil has sold the said plot to Pramod. When originally the plot in question was in the name of Shamshad Begum it would have been sold by her only and not by Mohd. Zamil. Shamshad Begum has not been examined by the prosecution to establish that she had sold the plot to Pramod. Further PW15 Pramod has clearly admitted in his cross examination that the plot in question has not been registered in his name till today. PW15 was examined in the court on 09.08.2010. PW15 Pramod did not got this plot registered in his name despite lapse of five years and this create doubt regarding ownership of Pramod in the plot. As per own testimony of Mohd. Zamil he is not the owner of plot in question but his wife Shamshad Begum was the owner. Shamshad Begum has not been examined by the prosecution. PW23 Insp.Atul Kumar has stated that he made search for the plot from where the dead body was got recovered and document Ex.5/A was handed over to him. In cross examination he has stated that he asked the owner regarding the original documents of the ownership but at that time the owner could not search and handed over him the photocopy. Perusal of the file revealed that even later on the said original documents could not be produced by the prosecution in the court. PW7 Jeet Kaur has stated that the place was State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 28 of 38 under the ownership of Sharda Devi. So, ownership of plot remained unproved. PW8 SI PC Dogra has stated that the placed does not fall under the ownership of Sharda but it falls behind her room in slope. PW9 Rajender Prasad has also stated in cross examination that the place of recovery of dead body/skeleton seems to be jungle. PW10 SI Ritesh who is the first IO has stated that the place of burial was outside the boundary towards slope. These version of PW8 SI PC Dogra, PW9 Rajender Prasad, the then SDM and PW10 SI Ritesh makes clear that the place from where the skeleton was taken out was not under the ownership of any person and it was vacant land. Further PW16 Mohd. Zamil has stated that his plot was near Mazar. PW7 Jeet Kaur has also stated that before digging many muslim people were residing nearby the said area. In and near mazar several dead bodies are buried and after 4/5 years it cannot be made out as to whose body it was if taken out of graveyard. So, it cannot be established that the taken out skeleton was of Nasir or some other person. Even there is no evidence that Nasir is dead or alive since no family member of Nasir had come forward to make complaint about his missing. These circumstances create doubt in the case of the prosecution.
38. Another circumstance is recovery of weapon of offence. The prosecution has examined PW8 SI PC Dogra and PW22 Insp.Jai Singh in this respect. PW8 has stated that on 30.6.06 as per disclosure statement of accused they went to Andheria more in the shop of one kabari where State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 29 of 38 they sold the hammer after incident. But said kabari shop was not found there. PW22 Insp. Jai Singh has also stated that the hammer could not be recovered. In the absence of recovery of weapon of offence, it could not be established by the prosecution as to with which weapon the injuries were caused. However, I have also considered the medical evidence.
39. The prosecution has examined PW1 Dr. Chitranjan Behra who had conducted the post mortem on the bundle of bones produced in a bori(gunny bag). He has stated that post mortem report is Ex.PW1/A. I have also perused the same. As per PM report following bones were found in the bori (gunny bag).
1. Two femur
2. Two humurus
3. two Radius
4. Two Ulna
5. Two tibia
6. Two scapula
7. Two clavicle
8. One Hyoid bone
9. 24 vertebral bone
10.Two pelvic bones
11.One sacrum 12.12 pairs of bones
13.Metacarpal, carpal, phalanges23 State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 30 of 38
14. Metatarsal, Tarsal, Metaphalanges 36
15.One manubrium + one Sternum
16.One mandible in two pieces (fracture at mentum)
17.One Maxilla (Part)
18.Skull bone, Large Part+three pieces about 6x4 cm of frontal bone is missing, Zygomatic process were missing
19.Teeth - 8 attached +13 free in mandible the left side 2 and right side 1 (Molars) were attached. In Maxmila right side 2 and left side 3 teeth were attached)
40. He has stated that there was no repetition of any bone. Xray of the bone taken and radiologically examined. Height of the deceased was approx 152 cms. The skeleton was of an adult. He seized the hairs, mitti, clothes, Rs.1.50, part of one pen, part of watch, left femur bone, right femur bone and three teeth and handed over to IO. It has been mentioned in Ex.PW1/A that the skeleton was of one adult male. Cause of death could not be ascertained. In cross examination Pw1 has stated that he had not given the age of the skeleton as this question was not put by the IO. Today he cannot give the age of the skeleton. PW2 Dr. Sudhir Gupta has stated that he opined that the fracture mentioned in the PM report could be caused by blunt force/object and its production as anti mortem in nature cannot be ruled out. His opinion is Ex.PW2/B. In cross examination he has admitted that he has personally not examined the body or the object. Considering the depositing made by PW1 it is crystal State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 31 of 38 clear the cause of death in this case could not be established. Even the prosecution could not establish the age of the skeleton by conducting the bone age Xray. PW2 has opined that fracture mentioned in the PM report could be caused by blunt force/object. As per PM report fracture was noticed on one mandible bone (fracture at mentum). In this present case the dead body/skeleton was recovered after 4/5 years and it was taken out of the pit. The alleged hammer has not been recovered by the IO. Since the cause of death could not be ascertained by the doctor who conducted the post mortem and no recovery of weapon of offence has been effected it is emphatically clear that these chain of circumstances could not be established by the prosecution without reasonable doubt. In case Law 1990 (1) CC Cases 250 (HC) it is stated in head note that: 'Presence of injuries on the person of the deceased cannot be ground for commission of an offence'.
41. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 32 of 38 crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. In the present case as per the facts and circumstances, the motive has been alleged that deceased had tried to outrage the modesty of the wife of accused Harun. But keeping in view the circumstances of the case as discussed above and since it is in dispute as to whether deceased Nasir was living with accused Harun or not, it is not believable that he had tried to outrage the modesty of the wife of accused Harun. The wife of accused has not been made witness by the prosecution nor examined though she might have been an interested witness. Further the prosecution could not prove unbroken chain of circumstances. In view of this motive also could not be proved by the prosecution. It is stated in Yogi Choudhary etc. Vs. State of Bihar, 2005 CRI. L.J. 2285 that : 'Penal Code (45 of 1860) Ss.300, 34 - Murder - Absence of eyewitnesses - Motive of accused to commit murder found not convincing - Even otherwise, motive alone could not be made basis of his conviction - No evidence that he was present at place of occurrence when murder was committed - As far as second accused was concerned, informant stated in Fardbeyan that he recognized voice of that accused - Complete goby given to this statement by informant in his examination in court - Stating that he named that accused on suspicion - There was absolutely no evidence against both accused - entitled to acquittal'.
In case law titled Pandra Khadia Vs. State of Orissa , 1992 CRI L.J 762 it is stated in headnote : State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 33 of 38 'Evidence Act. 1872, Ss. 3,8 - Penal Code (1860), Ss.299, 300, 302 - Murder - Proof of - Case based on circumstantial evidence - Motive of accused not proved by prosecution - Held, that since important circumstantial evidence had been disbelieved absence of proof of motive would weigh in favour of accused'.
In case Law (2007) 6 Supreme Court Cases 32, Sujoy Sen Vs. State of West Bengal it is stated in headnote that: 'Criminal Trial - Circumstantial evidence - Link in the chain of circumstances - If established - On the testimony of the first informant and what was stated in the FIR, held, link in the chain of circumstances not established - conviction reversed, Penal Code, 1860 - Section 302'.
In case law (2006) 10 S.C.C 183, Sunny Kapoor Vs. State, it is stated in head note that : 'Criminal trial - Circumstantial evidence - Guilt not established - Held, for proving guilt of an accused u/s 302, the prosecution must lead evidence to connect all links in a chain so as to point guilt of the accused alone and nobody else - In the instant case, evidence adduced clearly fell short of the requirement and hence conviction of appellant u/s 302/34 unsustainable'.
In case Law Baldev Singh Vs. State of Haryana, 2009(1) Crimes 138 (SC) an important point has been stated that : 'Conviction can be based on circumstantial evidence provided it passes the tests by the touch stone of law relating to circumstantial evidence laid down as far back as in 1952'. In case law Padala Veera Reddy Vs. State of Andhra Pradesh, 1989 State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 34 of 38 Supp (2) S.C.C 706 it is stated in head note that : 'Criminal Trial - Circumstantial evidence - Held, on facts, circumstantial evidence not sufficient to conclusively establish guilty of accused persons - Conduct of the accused must be seen in its entirety - Mere suspicion not enough - Penal Code, 1860, Secs. 302/34 and Sec. 498A - Evidence Act, 1972, Sec. 8.
'Evidence Act. 1972 - Sec.3 - 'Proved' - Conviction cannot be based on suspicion, however, strong it may be'.
It is stated in Ramreddy Rajesh Khanna Reddy Vs. State of A.P (SCC P.181 para 2627) that : 'It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it may, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. The story of last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration'.
42. Before an accused can be convicted, the fact of death should be proved by such circumstance as render the commission of the crime morally certain and leave no ground for reasonable doubt, the circumstantial evidence should be so cogent and compelling as to convince the court that upon no rational hypothesis other than murder State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 35 of 38 can the facts be accounted for. The murder in the present case is cruel and had been perpetrated in a very shocking manner because the deceased was given hammer blow due to which he died at the spot. But on consideration of the evidence available on file, the prosecution could not connect the accused persons with the present case offence by leading cogent and reliable evidence. The chain of circumstances is not complete pointing the guilt of the accused persons.
43. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused and no doubt that the place pointed out by the accused persons was not in the knowledge of police where skeleton was recovered but it could not be conclusively proved by the prosecution that it was the skeleton of Nasir. The other circumstances i.e. cause of death, recovery of weapon of offence has also not been conclusively proved by the prosecution. Considering as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 36 of 38 proof, since a higher degree of assurance is required to convict the accused. In view of the above discussions as well as observation of the case laws, I am of the opinion that prosecution could not complete each and every chain of circumstances in this case without any reasonable doubt by leading cogent and reliable evidence.
44. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
45. In view of my above discussions, I am of the opinion that the prosecution could not establish the complete chain of circumstances in this case while it is well settled principle of law that in a case of circumstantial evidence each and every circumstance has to be proved by the prosecution by leading legal, reliable and unimpeachable evidence. But I did not find any legal, reliable and unimpeachable evidence in this case. I am unhesitatingly of the opinion that the prosecution has utterly failed in proving such chain of circumstantial evidence as would fasten the guilt on the accused persons leaving no room for doubt. So, the prosecution has failed to prove its case against accused persons and the State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 37 of 38 accused persons are entitled to be given the benefit of doubt. I, therefore give the benefit of doubt to all the accused persons (1) Mohd. Hassan (2) Mohd. Harun (3) Mohd. Rahim and (4) Mohd. Alam. Accused Mohd. Harun is acquitted for the commission of offence punishable u/s 302/201 IPC and remaining accused Mohd. Hassan, Mohd. Rahim and Mohd. Alam are acquitted for the commission of offence punishable u/s 201/34 IPC. Accused Mohd. Hassan and Mohd. Alam are on bail. Their BB/SB are cancelled and sureties are discharged. Remaining accused are in JC. They be released from the jail forthwith if not required in any other case. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 11.07.2011 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE Fast Track Court New Delhi and South East District NEW DELHI State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 38 of 38 State Vs.Mohd. Hassan etc. FIR No.446/06 Page No. 39 of 38