Delhi District Court
Sc No.8306 (State vs Safique @ Rahul & Ors.) on 8 March, 2011
SC No.8306 (State Vs Safique @ Rahul & Ors.)
IN THE COURT OF SH. DINESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - 02 : (SOUTH) :
SAKET COURTS : NEW DELHI
SC No. 83/06
Unique Case ID No.02403R0446072006
State V/s. 1. Safique @ Rahul
S/o Washim Khan,
R/o J138, Prem Nagar,
Lal Quan, Pul Prahaladpur,
Delhi.
2. Ranjeet @ Sonu
S/o Surender,
R/o J71, Prem Nagar, Lal Quan,
New Delhi.
3. Chander Prakash
S/o Bishember,
R/o J39, Prem Nagar, Lal Quan,
New Delhi.
4. Munish Khan
S/o Asgar Ali,
R/o J27, Prem Nagar,
New Delhi.
FIR No. : 390/06
u/Ss. : 302/201/120B IPC
PS : Okhla Industrial Area.
SC No.8306 (State Vs Safique @ Rahul & Ors.)
Date of Committal : 28.08.2006
Arguments Concluded on : 22.02.2011
Judgment delivered on : 04.03.2011
J U D G M E N T.
Accused persons have been charged and tried for the offences
u/Ss.302/201/120B IPC for having kidnapped and murdered Dilshad aged
around 9 years. Allegedly, accused Safique had been nursing a grudge
against Irshad Khan, father of the deceased and therefore, accused Safique
in conspiracy with other coaccused persons hatched a criminal conspiracy
and committed murder of Dilshad by taking him away in the jungle and
thereafter, concealed his dead body in the sewer pipe. The shoes of
deceased and stone i.e., weapon of offence were recovered at the instance
of accused Safique @ Rahul. The prosecution has based its case on
circumstantial evidence. On 09/05/2006, Inspt. Aas Mohd. (PW30) was
present at the round about of Okhla where he received an information from
HC Satyavir Singh regarding recovery of dead body of a male from T
point MB Road. Inspt. Aas Mohd. Rushed to the spot where HC Satyavir
Singh (PW13), Ct. Devender (PW15), Ct. Kiran More (PW19) were found
present. The dead body was visible from cement sewer pipe at railway
SC No.8306 (State Vs Safique @ Rahul & Ors.)
colony side forest, parallel to the MB Road. The dead body was taken out
and was identified by Irshad Khan, as of Dilshad Khan aged about 1011
years. The deceased was wearing blue jeans and half sleeve check shirt.
The blood was oozing out of cement pipe and dead body. The opening of
the pipe was being closed with the grass pad meant to be used in the
cooler. The dead body was decomposed and was having a foul smell.
Apparently, the dead body was looking to have been put in the sewer pipe
for the purpose of concealing it after having committed the murder at some
other place. Irshad Khan made a statement Ex.PW1/B that his son Dilshad
Khan aged 1011 years, student of Class IV had gone to Sunday Market on
7/4/06 at around 8pm and did not come back home. The complainant and
the members of his family searched for their son at several places. On next
day i.e. 8/5/06, a missing report Ex.PW2/B was lodged at PP
Pulprahaladpur. The complainant continued to search for his son. On
9/5/06 when the complainant was present at home, he learnt that a dead
body has been found in the sewer pipe on MB Road, Tpoint. On receipt of
this information, the complainant reached to the spot and identified the
dead body as of his son Dilshad Khan. The complainant stated that while
he was searching for his son Dilshad he came to know that on 7/5/06 his
deceased son was seen alongwith accused Safique @ Rahul for the last
time during evening hours on 7/5/06. The complainant suspected that there
SC No.8306 (State Vs Safique @ Rahul & Ors.)
is role of accused Safique @ Rahul in the murder of his son. Investigation
officer made an endorsement Ex.PW30/A and handed over the rukka to Ct.
Kiran More (PW19) and got the FIR registered u/S 302/201/364/120B/34
IPC (Ex.PW17/A). The crime team was called on the spot, photographs
Ex.B1 to B6 were taken and site inspection was done and scaled siteplan
Ex.PW14/A was prepared. The exhibits were lifted from the spot and the
same were duly seized vide memo Ex.PW1/A. Inquest proceedings were
conducted and dead body was sent to the mortuary of AIIMS. After
postmortem, the dead body was handed over to the legal heirs. The
viscera, blood in gauze, anal swab, the clothes of the deceased were seized
vide memo Ex. PW15/A and deposited in the malkhana. In the postmortem
report No. 633/06 Ex.PW10/A, the cause of death was opined as "coma
due to antemortem head injury caused by blunt force which is sufficient to
cause death in ordinary course of nature". The statement of the witnesses
were recorded. On 13/5/06, accused Safique was arrested. During
interrogation, accused Safique made a disclosure statement Ex.PW1/F that
he needed a mobile phone for his girlfriend and his other habits and to
arrange that he used to commit theft sometime. He had stolen mobile
phone of a person namely Satpal and thereafter he committed theft of the
mobile phone of the complainant. The complainant on having come to
know about this defamed accused Safique in the society as well as before
SC No.8306 (State Vs Safique @ Rahul & Ors.)
his girlfriend on account of which accused Safique was hurt and decided
that he would ruin the family of Irshad Khan. In pursuant to this he
hatched conspiracy with Munish Khan, Ranjeet @ Sonu and Chander
Prakash and in continuation of the same, on 7/5/06 on finding deceased
Dilshad alone in a marriage reception, he alongwith Ranjit @ Sonu took
Dilshad after kidnapping him to the nearby jungle and there he committed
murder of Dilshad by a stone. The dead body was concealed in the bushes.
On the same day, he alongwith his coaccused Munish Khan, Chandra
Prakash, Ranjit @ Sonu removed the dead body to the sewer pipe.
Accused Safique @ Rahul pointed out the place of incident and the place
from where the dead body was recovered vide memo Ex.PW1/C. Accused
Safique also got recovered the stone (Ex.D1) i.e. weapon of offence from
which the injury was caused on the head of the deceased which was seized
vide memo Ex.PW1/D. Accused Safique also got recovered pair of shoes
(Ex.E1) vide memo Ex.PW1/E belonging to the deceased. Accused Ranjit,
Chandra Prakash and Munish were arrested at the instance of accused
Safique. The judicial TIP of the shoes Ex.PW4/A were got conducted. The
shoes were duly identified by Ms. Taj Khanam (PW4) i.e. mother of the
deceased. In respect of weapon of offence, an expert opinion Ex.PW10/B
was taken by autopsy surgeon. It was opined that "I am of the considered
opinion that the injuries mentioned in the PM Report No. 633/06 could
SC No.8306 (State Vs Safique @ Rahul & Ors.)
have been sustained by this stone". The investigating agency concluded
that the deceased was seen last with accused Safique and his accomplices
and accused persons had also made an extra judicial confession before
Mohd. Rafi that they have fulfilled their threat by bringing darkness in the
life of Irshad Khan. It was also found during investigation that Richa @
Babli i.e. girlfriend of accused Safique @ Rahul had talked to complainant
Irshad Khan on his mobile phone No. 9811482273 from her mobile No.
9312037347. CFSL report was collected. After investigation, chargesheet
against the accused persons was filed in Court.
3.0 Being a prima facie case, on 19.2.2007 charge u/Ss.
302/201/120B IPC was framed against all the accused to which they
pleaded not guilty and claimed trial.
4.0 Prosecution examined 30 witnesses in support of its case.
4.1 PW1 Irshad Khan is the complainant. He proved his
complaint as Ex.PW1/A. PW1 Irshad Khan stated that deceased Dilshad
aged about 12 years, a student of Class IV was his son. On 7/5/06 in the
evening night Dilshad had gone to attend the marriage party at the house
of Shabbir in the neighbourhood but did not return home till late night and
SC No.8306 (State Vs Safique @ Rahul & Ors.)
a missing report was lodged on 8/5/06 at PP Pul Prahaladpur. He also tried
to trace his son. On 11/5/06 (seems to be slip of tongue as corrected
lateron) he alongwith his wife reached near traffic signal turning point
towards Pul Prahaladpur where a large crowd had gathered and he saw a
dead body was lying in the sewer pipe in the ganda nala nearby. PW1
Irshad Khan identified the dead body as of his son Dilshad. Police officials
were present on the spot and they conducted the proceedings on the spot
and his signatures were taken on some paper. PW1 Irshad stated that he
was not in a fit state of mind due to recovery of dead body of his son. He
identified his signatures on the seizure memo Ex.PW1/A prepared on
9/5/06. The complainant specifically replied to the Court question that the
dead body was recovered on 9/5/06. He proved his complaint dated 9/5/06
as Ex.PW1/B. The missing report dated 8/5/06 was proved as Ex.PW2/B.
The complainant stated that his son had gone to attend the marriage
in the neighbourhood alongwith his mother and while they were
coming back after taking dinner, one small boy Banta had taken him
away for playing with him. Thereafter, Dilshad did not return back.
The complainant made a detailed statement regarding investigation
conducted in his presence on 13/5/06 relating to accused Safique. He
stated that accused Safique @ Rahul had led the police party to the spot
from where the dead body was recovered and also pointed out the place
SC No.8306 (State Vs Safique @ Rahul & Ors.)
where deceased was murdered vide memo Ex.PW1/C. The accused also
pointed out the stone with which the accused had hit the deceased in the
jungle near the container and the stone was seized by the police. The
pointing out memo has been proved as Ex.PW1/D. The pair of shoes worn
by the deceased at the time of incident were also got recovered by accused
Safique from near the bushes from where the stone was got recovered vide
memo Ex.PW1/E. The disclosure statement was proved as Ex.PW1/F and
PW1/G and accused was also identified by Irshad Khan.
The complainant stated that before the murder of Dilshad
Khan about 1012 days ago his mobile phone No.9811482273 was stolen
alongwith his purse regarding which he lodged a report with the police. He
obtained another SIM with the same number and put it in another mobile.
The complainant received a call on his mobile, and the caller, a girl,
wanted to talk to Safique @ Rahul. The girl disclosed her name as Richa.
From this call, the complainant realised that his phone was stolen by
Safique @ Rahul. The telephone bill of the complainant showing the call
having been received from the girl was seized vide memo Ex.PW1/K. The
arrest memo and personal search memo of accused were proved as
Ex.PW1/L and Ex.PW1/M. PW1 Irshad Khan also proved the disclosure
statement made by accused Munish Khan, Ranjit and Chandra Prakash as
Ex.PW1/N to Ex.PW1/P. PW1 proved the pointing out memo as
SC No.8306 (State Vs Safique @ Rahul & Ors.)
Ex.PW1/Q, PW1/R and PW1/S. The arrest memo and personal search
memo were also proved by Irshad Khan as Ex.PW1/W, PW1/X and
PW1/Y. The complainant identified the stone, weapon of offence Ex.D1
and the pair of shoes as Ex.E1. In the cross examination, the
complainant stated that he had told the police about the suspect
behind the missing of his son. The complainant stated that accused Shafiq
used to reside in front of his house. The complainant specifically stated
that Shabbir and Qayum are not his relatives. The complainant stated in
the cross examination that deceased was not wearing shoes at the time
when the dead body was recovered. The witness denied the suggestion
that shoes were shown to him and his wife by the police before the
judicial TIP. In the cross examination, PW1 stated that he had lodged the
report about loss of his purse containing money, mobile phone with sim
card. He stated that on the very next day of loss of mobile phone when he
put a new sim, a call was received from a girl. PW1 Irshad Khan denied
the suggestion that missing report of his purse and mobile phone were
fabricated by him and the police in connivance with the police. In the
cross examination by Ld. Addl. PP, PW1 Irshad Khan submitted that
the shoes of his son Ex.E1 were recovered from the jungle area at the
instance of accused Safique. The shoes were lying among the stones and
SC No.8306 (State Vs Safique @ Rahul & Ors.)
the same were seized vide memo Ex.PW1/E. He also stated that shoes
identified by him in the court Ex.E1 are the same which were got
recovered by accused Safique and he had seen the shoes in the Court for
the first time after it was recovered.
4.2 PW2 Ct. Harminder was working as DD writer from 8am to
8pm. At around 1:10pm, he received a call from PCR that one boy Dilshad
Khan aged about 10 years, dark complexion wearing sports shoes in his
leg who was resident of J138, Lal Kuan, Pul Prahaladpur is missing from
Sunday Market. The information was recorded as DD No. 21 and the same
was proved as Ex.PW2/A. On the same day, missing report lodged by
PW1 Irshad Khan at 4:30pm regarding his son Dilshad Khan, DD No.26
proved as Ex.PW2/B. It is pertinent to mention here that PW1 had
specifically mentioned in the missing report that his son was wearing
blue jeans, checkdar half sleeve shirt, sports shirt (seems to be
typographical mistake). PW3 Shafiqueulhassan Zaidi is a formal
witness. On 9/5/06, he had gone to the house of Irshad Khan, his cousin
and came to know that Dilshad was missing. Around 12 noon he went to
Lal Kuan and at Tpoint MB Road he came to know that dead body was
lying in the water pipe which was identified to be of Dilshad. He was a
witness to the seizure memo of invitation card of the marriage Ex.PW1/P1
SC No.8306 (State Vs Safique @ Rahul & Ors.)
vide seizure memo Ex.PW3/A. PW4 Taj Khanam mother of deceased
stated that on 7/5/06 there was a marriage in her neighbourhood and all the
members of the family had gone to attend the marriage including Dilshad.
After attending the marriage party while they were returning back Banta
younger brother of Munish Khan came to her house and called Dilshad.
Dilshad told that since he was hungry and on the pretext of having food in
the marriage, he went again to the marriage party alongwith Banta at about
7:30 - 8pm . PW4 stated that they thought that Dilshad was playing with
other kids in the marriage party. Her husband PW1 came back home at
8:30 - 8:45pm and also went to the marriage party. PW4 told him to bring
Dilshad with him. However, PW1 could not find Dilshad in the marriage.
Thereafter, they both searched for Dilshad in the locality but could not
find him. On 9/5/06 on being informed by the police PW4 alongwith PW1
went to MB Road, Okhla Mor where dead body was lying which was
identified to be of Dilshad.
PW4 Taj Khanam stated that in the month of March, accused
Safique who was her neighbour had stolen the mobile phone of her
husband and purse of her daughter. Her husband lodged a report regarding
theft of mobile and purse and bought another mobile phone and fresh sim
card of the same number. After two days a telephone call from a girl was
received who wanted to talk to Safique @ Rahul. The girl asked her
SC No.8306 (State Vs Safique @ Rahul & Ors.)
husband how he is having his number, as this number belongs to Safique
@ Rahul. Her husband confronted Safique with this and came to know that
the mobile was stolen by Safique @ Rahul. Safique @ Rahul came to their
house in the month of March and started quarreling with them that he was
defamed by them in the locality and threatened to ruin their entire family.
PW4 Taj Khanam stated that she came to know that her child
had gone with the accused persons from the marriage. Her son was
wearing jeans pant, half sleeves shirt and white colour shoes on which
some cartoon was made. She stated that she can identify the clothes
and the shoes worn by her son. PW4 identified shoes in the judicial
TIP. TIP proceedings were proved as Ex.PW4/A as well as the shoes as
worn by her son as Ex.PW4/1 and PW4/2. The half sleeve shirt and jeans
pant were identified as Ex.PW4/3 and PW4/4. The witness identified all
the accused persons in the Court. In the cross examination, on behalf of
accused Safique @ Rahul, the witness specifically stated that she was
not accompanied by any police official at the time of identification of
shoes of her son. PW4 stated "apne bache ke joote har koi pehchaan
leta hain". The witness specifically denied the suggestion that accused
Safique had been assisting them while they were making efforts to trace
their son.
SC No.8306 (State Vs Safique @ Rahul & Ors.)
4.3 PW5 Zeenat sister of the deceased also made a corroborative
statement on oath that on 7/5/06 she herself alongwith her mother PW4
Taj Khanam and the younger sister and younger brother Dilshad had gone
to attend the marriage in the neighbourhod and after they came back to
their house from the marriage party, Banta brother of accused Munish
Khan, at around 7:30 - 8pm took her brother Dilshad with him on the
pretext of playing. Dilshad Khan did not return back and thus, the missing
report was lodged on 8/5/06. On 9/5/06 an information was received on
which they reached at the spot where the dead body of Dilshad Khan was
recovered. PW5 also deposed regarding the theft of mobile phone and the
purse of her father and her purse, having been committed by accused
Safique. The documents in the purse were found in a burnt condition in a
park near the house. She stated that her father got issued another sim card
on the same number and on the next day he received a call from Richa
girlfriend of accused Safique @ Rahul. Richa @ Babli informed that she
had a talk with Rahul on the same telephone number. After this they came
to know that the mobile phone was stolen by Safique @ Rahul. On this
issue, a quarrel had taken place between both the families. Richa @ Babli
also reportedly threatened her parents. Safique repeatedly said "tumne
meri mashooka ki nazron mein gira diya or sab jagah se badnaam kar
SC No.8306 (State Vs Safique @ Rahul & Ors.)
diya. Mein tumhe barbaad kar doonga. Dekh lena". PW5 stated that
as the date of offence was Sunday so many people of the market told
them that they had seen her brother Dilshad with Safique. She also
stated that on the day of missing, the deceased was wearing blue jeans,
half sleeves shirt and sports shoes. When the dead body was recovered, the
sports shoes were missing. In the cross examination on behalf of accused
Safique @ Rahul PW5 Zeenat stated that the report regarding the theft of
mobile was lodged by her father on 6/3/06. In cross examination on behalf
of accused Safique, PW5 stated that Qayum had told them that he had seen
Dilshad with Safique. PW5 specifically denied that Qayum is related to
them. In reply to a specific question PW5 stated that the sports shoes of
Dilshad were of white colour bearing the tattoo. The witness stated that on
the day when her brother was missing, accused Safique did not go to the
PS alongwith her father. She denied the suggestion that on 7/5/06 at
around 12am accused Safique had come to her house and had volunteered
to accompany her father in tracing her brother.
4.4 PW6 Asgar Ali was also a witness regarding threat extended
by Rahul @ Safique on a complaint filed by the complainant Irshad Khan
regarding the theft of his mobile. PW7 Satpal was the witness regarding
the incident of theft of mobile phone by Safique belonging to one Ram
SC No.8306 (State Vs Safique @ Rahul & Ors.)
Chander. However, this witness seems to have mentioned a wrong date as
26/6/06, since the date of offence of the present case is 7/5/06 and the
incident narrated by this witness is certainly prior to the present case.
PW8 Shabbir was the host of the marriage function dated 7/5/06. He
stated that accused Safique, Ranjit @ Sonu and Munish Khan were also
invited besides the complainant. PW8 Shabbir made a specific statement
that the function started at 6pm on 7/5/06 and continued till 11pm. He had
seen Dilshad going towards Sunday market at about 8 / 8:30pm.
Accused Sonu was walking ahead of Dilshad and accused Safique was
following Dilshad. At about 1:30am, while he was present at the place
where the reception function was held, he saw accused Safique, Sonu,
Munish and Chander Prakash returning from Pahari side quietly and at that
time Dilshad was not with him. On the third day, he came to know that the
dead body of Dilshad was recovered near Tpoint, Okhla Mor. Accused
persons were duly identified by the witness. In the cross examination,
PW8 stated that reception venue was around 100 yards away from the
residence of Irshad and Safique and the Sunday market was around ½ km
away from that place. The Sunday market and reception venue were on the
same side of the road. He stated that there were around 100 to 200 people
at around 8pm in the reception. The witness specifically stated that the
way to the Sunday market was visible from the place of reception.
SC No.8306 (State Vs Safique @ Rahul & Ors.)
However, one has to take two turns to reach the Sunday market. PW8
Shabbir stated that jungle area / pahari illaka is about 24 houses away
from his house. It also came in the cross examination that the place from
where the dead body was recovered was less than ½ km from the reception
venue. The straight gali from the house of PW8 was stated to be ending in
the jungle. The witness stated in the cross examination that on that day
there was lot of lighting done for the reception and therefore he could
identify accused persons at 1am night, walking from the pahari side and
they passed through the tent. It is also pertinent to mention here that in the
evidence PW8 Shabbir had stated that entry into the tent was from the
main road.
The witness stated that Irshad did not meet him or the
members of his family in regard to his missing son and he met only after
the dead body was recovered. The witness denied the suggestion that he
was made a witness as he was known to the complainant.
4.5 PW9 Qayum was also witness of the last seen. He stated that
on 7/5/06 the marriage reception was organised by his maternal uncle and
all the people from the locality were invited for the reception party.
Qayum was serving food and water to the guests. He stated that at about 8
or 9pm, he saw Dilshad and Safique going outside the marriage party.
SC No.8306 (State Vs Safique @ Rahul & Ors.)
PW9 Qayum did not ask anything from Safique as he was elder to him.
However, witness asked Dilshad as to why he was going from that side of
the tent, as there was no way since the tables were kept that side. PW9
stated that Safique told him that Dilshad was going with him and let
him go. The accused was duly identified by the witness. PW9 further
stated that after 12 or 1am night as the reception party was over and they
were winding up and removing the tent, chairs etc. At about 2 - 2:30am,
he saw 34 boys coming from pahari side. PW9 stated that as he was busy,
he could not pay attention that who were those boys. In cross examination
by Ld. Addl. PP, PW9 admitted that he had seen Dilshad going out from
the tent of marriage party with Safique and Sonu on 7/5/06 at about 8pm
towards Sunday market and he had stated so before the police. He also
admitted that he had seen accused Safique, Sonu, Munish Khan and
Chander Prakash coming from Pahari side and going towards the colony.
He also admitted that while walking, the accused persons were conversing
with each other. The witness stated that he could not state these facts
earlier in the chief as he had forgotten due to lapse of time. In cross
examination on behalf of accused Safique @ Rahul the witness stated that
accused persons were seen by him taking Dilshad through the tent itself
where people were taking dinner and he had objected to this.
SC No.8306 (State Vs Safique @ Rahul & Ors.)
4.6 PW10 Dr. Chitranjan Behra had conducted the postmortem
on the dead body and proved the postmortem report as Ex.PW10/A. He
stated that cause of death was coma due to antemortem injuries caused by
blunt force which was sufficient to cause death in the ordinary course of
nature. Viscera was also preserved to rule out intoxication. In subsequent
opinion Ex.PW10/B, PW10 Dr. Chitranjan Behra opined that the injury
mention in the postmortem report could have been sustained by the stone.
4.7 PW11 Mohd. Rafi was also a witness regarding the quarrel
between the complainant and accused Safique and extra Judicial
Confession. This witness though identified accused Safique but he named
him as Shamshad. The witness stated that accused used to threaten Irshad
Khan. PW11 had also tried to make a peace between Irshad Khan and
Safique. However, accused was not inclined for any compromise. In cross
examination by Ld. Addl. PP, PW11 Mohd Rafi stated that on 9/5/06 at
about 88:30pm he heard accused Safique saying that Irshad Khan had
already defamed him (bahut badnaam kar diya hai) and now he will know
the consequences (ab usko pata chal jayega). The witness was sure that
accused Safique had said these words as he had just turned around.
Accused Safique was telling these words to other boys who were standing
with him but his intention was to make the witness hear these things. The
SC No.8306 (State Vs Safique @ Rahul & Ors.)
witness heard Safique saying "Main nepali ki jindagi mein andhera kar
doonga). The witness was confronted with Ex.PW11/A from point A to A
where words "Andhera kar diya hai" are written. The witness admitted that
when he asked the accused persons as to why they were laughing, they
stated that he would see Nepali weeping and would come to know about
the reason. The witness understood the conversation amongst the accused
persons after the dead body of Dilshad was recovered. The witness only
identified Ranjeet @ Sonu as to be the person who was present alongwith
the accused. However, he was not sure about the other accused persons. In
the cross examination, PW11 stated that though he lives near Jama Masjid
but his shop is next to the shop of Irshad Khan and he keeps on visiting
Giri Nagar, Kalkaji and MB Road. In cross examination on behalf of
accused Safique, the witness stated that he knew Irshad for the last 15
years. The witness stated in the cross examination that he knew accused
Safique prior to the incident as Irshad had mentioned his name with
regard to the loss of his mobile phone. Interestingly, in the cross
examination on behalf of accused, a question was put to the witness that
accused Safique had told him that Irshad would be taught a lesson. In reply
to the question the witness stated that Safique had told that Irshad Khan
will come to know. (usko pata chal jayega).
SC No.8306 (State Vs Safique @ Rahul & Ors.)
4.8 PW12 Ravinder Yadav was a formal witness who had made
telephone call at No. 100 from mobile number 9911110844 regarding
blood dripping from the drain pipe and informed from his mobile number
regarding the fact of lying of dead body in the sewer pipe. In the cross
examination PW12 stated that he does not remember whether there was
any chappal or shoe on the dead body. However, he was present when the
dead body was taken out from the pipe. PW13 SI Satbir Singh was a
formal witness who upon receiving the information regarding dead body
reached on the spot alongwith Ct. Devender and Ct. More. He informed
the SHO. He was also witness to the exhibits seized from the spot vide
memo Ex.PW1/A. PW13 had also taken the stone to AIIMS for medical
opinion on 15/6/06. In cross examination, the witness stated that the
person who had intimated the police about the dead body was present at
the spot. He stated that the body was inside the cemented pipe and the
blood was dripping from the pipe, drop by drop. PW14 SI Mahesh
Kumar proved the scaled siteplan of the spot as Ex.PW14/A. PW15 HC
Devender was a formal witness who took the dead body to the mortuary
and was a witness to the seizure memo Ex.PW15/A of the exhibits
pertaining to the dead body. PW16 Ct. Vijay was a witness to the arrest of
accused Munish Khan. He proved his disclosure statement as Ex.PW1/P,
the pointing out memo as Ex.PW1/R, the arrest memo as Ex.PW1/W and
SC No.8306 (State Vs Safique @ Rahul & Ors.)
the personal search memo as Ex.PW1/V. The accused was duly identified
by the witness. PW17 HC Ram Kumar proved the carbon copy of the
FIR No. 390/06 as Ex.PW17/A. PW18 HC Ghir Raj Prasad,
photographer, Mobile Crime team had taken 6 photographs of dead body
from different angles and identified the same as Mark B1 to B6. PW19
Ct. KM More had gone alongwith PW13 ASI Satbir Singh. He took the
rukka to the PS for registration of FIR and remained with the IO during
investigation on that day. PW20 Ct. Sriniwas had joined the investigation
alongwith IO on 9/5/06. He was a witness to the arrest of accused Munish
Khan and Chander Prakash and was witness to the arrest memo, pointing
out memo and disclosure of both the accused. PW21 ASI Ram Avtar
proved the receipt of a complaint from Irshad Khan on 6/3/06 regarding
missing of his mobile phone No. 9811482273. He stated that matter was
enquired but mobile phone could not be traced. The complaint lodged by
Irshad Khan was proved by the witness as Ex.PW21/DA. PW22 HC
Satnarayan proved the relevant extract of register No. 19 as Ex.PW22/A
and Ex.PW22/B regarding deposit of articles on 9/5/06 and 10/5/06 vide
entry No. 3871 and 3879. On 19/7/06 exhibits of the case were sent to FSL
Rohini through Ct. Subh Karan vide RC No. 172/21 Ex.PW22/C. On
20/7/06, the viscera box was sent to FSL Rohini though Ct. Subhash vide
SC No.8306 (State Vs Safique @ Rahul & Ors.)
RC No. 175/21 ExPW22/D. He stated that on 26/12/06, the result of FSL
was received. PW23 Israr Babu, Legal Executive, Essar Mobile
Services Ltd, proved the telephone bill of mobile No. 9811482273 in the
name of Irshad Khan for the period 6/3/2006 and 5/4/2006 as Ex.PW23/A.
He also proved the call detail as Mark PW23/PX showing that on 6/3/06
this telephone number was in operation and in contact with telephone No.
9312037347. PW24 HC Satpal had received a call regarding the dead
body lying in nala at MB Road and transmitted the same to the concerned
PP. He stated that PCR form has already been destroyed. PW25 Ct.
Subhash had taken the pulanda to FSL on 21/7/06 vide RC No. 175/21.
PW26 HC Shubhkaran was a witness regarding the arrest of accused
Ranjit and had also taken the pulanda to FSL Rohini on 19/5/06. PW27
Sh. Jagdish Kumar, Ld. ACMM had conducted the judicial TIP of shoes
on 27/7/06 and proved the same as Ex.PW4/A. Sh. Jagdish Kumar, Ld.
ACMM stated that the witness Taj Khanam had correctly identified the
shoes of the deceased. PW28 Richa admitted that she had a friendship
with accused Safique @ Rahul and they used to talk on mobile as well as
used to meet each other. The witness did not tell her mobile number of the
relevant time, however, she stated that she was having connection of Idea
or Reliance phone. In the cross examination by Ld. Addl. PP, the witness
SC No.8306 (State Vs Safique @ Rahul & Ors.)
could not recollect her mobile number at the relevant time as 9312037347.
However, she admitted that Mohd. Wakil had helped her in purchasing the
mobile phone. She also admitted in the cross examination by Ld. Addl. PP
that Irshad Khan @ Nepali had come at her house and created a scene and
enquired from her regarding if she knew Rahul or not and about her
mobile phone. She also admitted that Irshad Khan had told her that his
mobile phone was lost and he had also enquired about the mobile phone
from Safique at his house. PW29 Mohd. Wakil was the witness regarding
the purchase of mobile phone by PW28 Richa. He stated that he had got
purchased a mobile phone of Reliance company to Richa from a shop in
Sharma market. PW30 Inspt. Aas Mohd is the investigation officer. He
formally proved the investigation conducted by him and narrated the entire
story. On the statement of Irshad Khan Ex.PW1/B tehrir Ex.PW30/A was
made and the same was sent through Ct. More (PW19) for registration of
FIR. The exhibits were lifted from the spot. The siteplan Ex.PW30/B was
prepared. IO stated that complainant Irshad Khan had suspected accused
Safique for causing death of his son. However, Safique was not found at
his address at Prem Nagar. On 13/5/06, on the basis of secret information
accused Safique was arrested at the identification of the complainant from
container depot. Accused made a disclosure statement and got recovered a
stone from the jungle area near Tpoint, Railway colony. He also got
SC No.8306 (State Vs Safique @ Rahul & Ors.)
recovered pair of shoes from the heap of stones. On his disclosure
statement accused Munish, Ranjit and Chander Prakash were arrested. On
14/5/06, invitation card of marriage Ex.PW1/P1 was seized from
complainant. The copy of complaint lodged by the complainant against
Safique for theft of mobile, money and purse was proved as Ex.PW30/B.
IO also stated that during enquiry Irshad Khan had informed him that after
loss of mobile phone, he obtained another mobile phone with the same
number on which he received a call from a girl named Richa Singh @
Bably who wanted to enquire about Safique and on this basis, he had
lodged the complaint against Safique suspecting to have committed theft
and this was the reason for the strained relation between complainant and
Safique. IO stated that complainant had informed him that accused had
threatened him that he was insulted in the eyes of his girlfriend and the
local people. IO also stated that PW Mohd Rafi had also confirmed that he
had overheard the accused persons talking to each other that they have
brought darkness in the life of the complainant as the complainant had
taken "panga" with them. The witnesses of last seen were Qayum and
Shabbir. The FSL report was proved by the IO as Ex.PW30/F, PW30/G
and PW30/H. The shoes and stone were identified by the IO. In the cross
examination, IO stated that accused Safique had disclosed about shoes in
his second disclosure statement Ex.PW1/G. IO specifically stated that PW
SC No.8306 (State Vs Safique @ Rahul & Ors.)
Mohd. Rafi, Asgar Ali, Qayum and Shabbir were not relatives of the
complainant as per his investigation. IO also stated that he cannot say that
whether the witnesses were the residents of the adjacent house of the
complainant. In the cross examination, IO stated that though he does not
remember if the complainant had told him about theft of the mobile phone
on 9/5/06, however, the complainant had mentioned about his enmity with
Safique. IO stated that on his visit to the mohalla on the very first day, he
had come to know during enquiry that deceased was seen in the company
of accused persons at about 88:30pm on 7/5/06. IO stated that the
distance between the recovery of stone and recovery of dead body was
about 100 yards. However, this was not shown in the siteplan Ex.PW30/B
as the same was not in the knowledge of the IO at the time of preparation
of siteplan. IO stated that during his investigation, he did not find the name
of Banta. IO specifically stated that accused Shabbir and Irshad Khan are
not related to each other though they are close friends. In cross
examination, IO stated that Irshad Khan had identified the shoes of his son
at the time of recovery and Ms. Taj Khanam PW4 mother of the deceased
identified shoes in the judicial TIP.
IO stated that though PW11 Mohd. Rafi is resident of Jama
Masjid, however, he has business in Prem Nagar, Giri Nagar. Giri Nagar
and Prem Nagar is situated at the distance of 2kms.
SC No.8306 (State Vs Safique @ Rahul & Ors.)
5.0 In his statement u/S.313 Cr.P.C. accused Safique admitted
that Dilshad had gone to attend the marriage on 7/5/06, however, he put a
simple denial to all other evidence leveled against him. Accused Safique
stated that infact he was arrested on 9/5/06 and he never made any
disclosure statement. Accused also put a denial regarding recovery of
shoes at his instance. Accused stated that witnesses have wrongly
identified him being interested and relatives of the complainant. The
accused also denied the evidence regarding theft of mobile phone of
complainant by him and further quarrel between him and Irshad Khan. He
also denied to have extended any threat to the complainant. The accused
stated that infact he had a group of 34 friends and the complainant party
had some misunderstanding regarding their relation with their elder
daughter whereas there was nothing like this. Accused stated that on the
day of incident at around 11:30pm, when Dilshad did not reach back
home, PW1 Irshad Khan and PW4 Taj Khanam came to their house. At
that time, he was present at the house and helped the complainant party in
searching of their son. However, Dilshad was not found and next morning
he was called in the PS and released after one hour. Accused Safique
stated that after recovery of dead body he was falsely arrested.
SC No.8306 (State Vs Safique @ Rahul & Ors.)
Accused Safique examined DW1 Banta in defence. DW1
Banta @ Javed stated that he knew Dilshad who used to play with him. On
7/5/06 he had gone to attend the marriage with Dilshad and both of them
remained there upto 99:30 pm and thereafter they came back and returned
to our home. DW1 stated that he did not meet Dilshad after this. In cross
examination by the State, DW1 admitted that the parents of Dilshad had
come to him at about 1010:30pm to enquire about their son. DW1
admitted that accused Munish is his real brother. Accused Safique also
examined Shahida Begum, his mother as DW2. She stated that Safique
was arrested on the 3rd day of the reception. She stated that Safique had
helped father of Dilshad in searching his missing son. She stated that
initially Safique was called by the police after recovery of dead body of
Dilshad. However, he was released at that time.
5.1 Accused Ranjeet in his statement u/S 313 Cr.PC either denied
the allegations or expressed his ignorance. Accused Ranjit stated that he
has been falsely implicated and the witnesses have deposed falsely against
him.
Accused Ranjit examined his father Surender Kumar as DW3.
He stated that on 13/5/06, the police officials took his son Ranjit on the
pretext of making some enquiry. DW3 stated that his son had not gone to
SC No.8306 (State Vs Safique @ Rahul & Ors.)
any party because he was not invited. In cross examination by Ld. Addl.
PP, the witness stated that his son may be knowing accused Chander
Prakash, Munish and Safique as they were living at little distance from his
house. He also stated that house of complainant is also in the vicinity.
5.2 Accused Chander Prakash and accused Munish Khan also in
their statement u/S 313 Cr.PC either denied all the allegations or expressed
their ignorance. Both the accused stated that they are innocent and have
been falsely implicated and the witnesses have made a false statement
against them.
6.0 Sh. IL Kapoor, Ld. Counsel for accused Chandra
Prakash, Munish Khan and Ranjit @ Sonu has argued that there is no
cogent, consistent and trustworthy evidence against his clients regarding
last seen. It has also been argued that the prosecution has miserably failed
to bring any evidence on record so as to prove criminal conspiracy
amongst the accused. It has been submitted that admittedly, no recovery
was effected from the accused persons and there are inherent
contradictions in the testimony of the prosecution witnesses regarding the
arrest of accused persons. Ld. counsel further submitted that testimony of
SC No.8306 (State Vs Safique @ Rahul & Ors.)
PW4 Taj Khanam is also self contradictory and the prosecution has failed
to prove the case against the accused persons.
Sh. IL Kapoor, Ld. counsel for accused Munish Khan,
Chander Prakash and Ranjit stated that PW4 had not stated in her
statement u/S 161 Cr.PC Ex.PW4/DA that she had come to know that her
child had gone with all the four accused persons from the marriage party
and therefore, the witness has made a material improvement in her
testimony. Ld. counsel for accused has pointed out that PW5 had not
stated before the police that Banta brother of accused Munish had taken
the deceased from her house on the pretext of playing. Ld. defence
counsel submitted that the IO in his cross examination has admitted that
these accused persons were arrested on the basis of disclosure statement
made by accused Safique. No recovery was effected from them and prior
to the pointing out made by them of the place of occurrence, accused
Safique had already pointed out the same.
6.1 Sh. Jagat Singh, Ld. counsel for accused Safique has
submitted that his client Safique has been connected with the murder only
on the basis of two evidence i.e. last seen and recovery of shoe of the
deceased at his instance. Ld. counsel submits that witnesses regarding last
seen Shabbir and Qayum have made contradictory statement and they have
SC No.8306 (State Vs Safique @ Rahul & Ors.)
come to depose falsely at the instance of the complainant. Ld counsel for
accused has submitted that IO has admitted in his cross examination that
Shabbir and complainant Irshad Khan were very close friends to each
other. Ld. counsel for the accused has submitted that no witness in his
statement u/S 161 Cr.PC has stated that deceased was wearing shoes. Ld.
counsel pointed out the testimony of PW9 wherein he has stated that he
did not pay much attention as to the fact that who were the 34 boys whom
he saw coming back from Pahari side at 2 / 2:30am. Ld. counsel for the
accused has submitted that in the examination in chief, PW9 stated that he
saw deceased Dilshad going alone with Safique and only in the cross
examination, he admitted the suggestion of Ld. Addl. PP that he had seen
both accused Safique and Sonu alongwith the deceased at about 8pm. Sh.
Jagat Singh, Ld. counsel for accused has argued that the entire story
regarding theft of mobile phone and strained relation between the
complainant and accused Safique is a cooked up story. This entire story
was manufactured after the recovery of dead body of Dilshad. The defence
counsel also assailed the testimony of PW12 Ravinder Yadav. Ld. counsel
submitted that in the first disclosure statement of accused Safique there
was no mention of shoes. It has also been pointed out that there is a mark
difference of writing between the first disclosure statement and second
disclosure statement of accused Safique. It has been submitted that infact
SC No.8306 (State Vs Safique @ Rahul & Ors.)
the disclosure statements have been forged by the IO. It was pointed out
that Ex.D1 stone allegedly recovered at the instance of accused Safique
did not have any blood stains and therefore, there is nothing on record to
connect the stone with the alleged murder. The defence emphasised that in
the entire proceedings no public person was joined which also indicates
that the entire proceedings were conducted in the PS so as to suit the story
of the prosecution.
Sh. Jagat Singh, Ld. counsel for accused Safique has
submitted that in the missing report Ex.PW2/B, the witness has only stated
that his son had gone to Sunday market and did not suspect accused
Safique @ Rahul. Ld. counsel submitted that PW Qayum and Shabbir are
the interested witnesses being the neighbour of the complainant. Ld.
counsel for accused pointed out that PW1 stated that statement of Banta,
who has been examined as defence witness, was recorded by the police,
but his statement is missing from the record. Ld. counsel for accused
Safique also argued at length regarding the fact of invitation card having
being sent to the complainant party for the reception. Ld. defence counsel
pointed out that PW8 in his cross examination has admitted that
PWQayum is his relative.
Ld. Defence counsel for accused persons pointed out that
PW11 admitted in the cross examination that he lives near Jama Masjid
SC No.8306 (State Vs Safique @ Rahul & Ors.)
which is around 17 km away from Prem Nagar and therfore the presence
of this witness on 9/5/06 at around 88:30pm is improbable. Ld. defence
counsel pointed out that PW16 admitted in the cross examination that he
did not know accused Ranjit, Chander Prakash and Munish Khan prior to
9/5/06 and he was called to the PS to identify the accused persons. Ld.
defence counsel has pointed out that PW21 admitted in the cross
examination that there was no sign or initial of any police official on
complaint Ex.PW21/DA. Ld. counsel also pointed out that the witness
admitted that no DD entry was lodged regarding this complaint and there
was no record of the complaint in the PS. Ld. counsel submitted that infact
this complaint was forged lateron. Ld. defence counsel submitted that
investigation officer in his cross examination has admitted that he did not
verify the IMEI number of the mobile phone of Irshad and therefore, it
cannot be said conclusively that on 6/3/06, the conversation between
mobile of complainant Irshad Khan No. 9811482273 and mobile of Richa
No. 9312037347 was done from the stolen mobile phone.
In support of his contention, Sh. Jagat Singh, Ld. counsel has
also cited the following authorities:
1) Mubin Vs. State (Govt. of NCT of Delhi) 2010 (2) JCC 934,
2) Ram Bilas Vs. The State (Delhi Admn.), 2010 (4) JCC 2902,
3) Naveen Chauhan @ Chussi Vs. State, 2010 (3) JCC 2361,
SC No.8306 (State Vs Safique @ Rahul & Ors.)
4) Mahender Kumar Vs State, 2010 (4) JCC 2648,
5) Arun @ Khadak Singh Vs. State, 2010 (4) JCC 2482,
6) Chander Prakash & Ors Vs The State, 2010 (3) JCC 2055,
7) Alizan Vs. State, 2010 (3) CC Cases (HC) 76,
8) Rakesh Vs. State, 2010(3) CC Cases (HC) 321.
6.2 Sh. M.Z. Khan, Ld. Addl. PP for the State has submitted
that prosecution has successfully proved its case against the accused
beyond reasonable doubt. Ld. Addl. PP submitted that PW1 Irshad Khan,
PW4 Taj Khanam and PW5 Zeenat have made a consistent statement that
deceased Dilshad had gone to attend the marriage party on 7/5/06 and after
he came back DW1 Banta i.e., brother of accused Munish had called him
back from the home and thereafter PW Shabbir and PW Qayum saw
deceased going alongwith accused Safique and Ranjit towards the jungle
area. During night time, at about 1 or 2am, prosecution witnesses Shabbir
and Qayum also saw the accused persons coming back from the side of
jungle area quietly and at that time Dilshad was not with them. Deceased
Dilshad did not reach back home on which the prosecution has
successfully proved that a missing report was lodged on 8/5/06 and on
9/5/06, in the morning hours on the information being given by PW12
police reached on the spot and dead body of Dilshad was recovered which
SC No.8306 (State Vs Safique @ Rahul & Ors.)
was duly identified by the prosecution witnesses. The conduct of accused
Safique that he absconded also indicates towards his culpability. Ld. Addl.
PP for State has submitted that prosecution has successfully proved the
motive behind committing murder of Dilshad as accused Safique had
committed the theft of mobile phone belonging to complainant Irshad
Khan and from this telephone he talked to his girlfriend Richa. Since
complainant came to know about this and a quarrel took place, accused
Safique felt that he has been disgraced in the eyes of his girlfriend and the
people of the locality. Ld. Addl. PP submitted that PW Mohd Rafi has
specifically stated that he had over heard accused persons saying that they
had taught a lesson to the complainant. Ld. Addl. PP has submitted that the
case is based on circumstantial evidence and prosecution has proved all
the circumstances which are indicating only towards the guilt of accused
and there is nothing which could indicate the innocence of accused
persons. Ld. counsel for the complainant has relied upon Manivel & Ors
Vs. State of Tamil Nadu, (2008) 12 SCC 748.
7.0 I have heard Sh. M.Z. Khan, Ld. Addl. PP for State as well as
Sh. IL Kapoor, Ld. counsel for accused Chander Prakash, Ranjit @ Sonu
and Munish Khan and Sh. Jagat Singh, Ld. counsel for accused Safique @
Rahul and have perused the record carefully.
SC No.8306 (State Vs Safique @ Rahul & Ors.)
CIRCUMSTANTIAL EVIDENCE
8.0 This case is based upon circumstantial evidence. There is no
direct witness of the murder. The following circumstances are primarily
alleged against the accused persons:
1.Deceased Dilshad alongwith the members of his family i.e. PW1 Irshad Khan, PW4 Taj Khanam and PW5 Zeenat had gone to attend the reception ceremony in which they were duly invited vide invitation card Ex.PW1/P1. The marriage ceremony was of the cousin of PW8 Shabbir.
2. After attending the marriage ceremony, deceased Dilshad came back with her mother PW4 Taj Khanam and his sister Zeeant PW5 and he went away again alongwith DW1 Banta. Banta is the brother of accused Munish Khan.
3. Deceased was last seen with accused Safique @ Rahul and Ranjit @ Sonu by PW8 Shabbir and PW9 Qayum at around 89pm on 7/5/06.
4. Accused persons were seen coming back from Pahari side at around 1 - 1:30am and at that time, Dilshad was not with them.
SC No.8306 (State Vs Safique @ Rahul & Ors.)
5. Dilshad did not reach back home and a missing report was lodged by PW1 on 8/5/06 vide DD No. 26 Ex.PW2/B and DD No. 21 Ex.PW21/A was lodged on the basis of PCR call.
6. On the information of PW12 Ravinder Yadav, the dead body of a male child aged 10 years was recovered which was identified to be of Dilshad. Irshad Khan made a complaint Ex.PW1/B suspecting upon Safique @ Rahul as his son / deceased was seen last with him.
7. Dead body was recovered from a place nearby the place where the deceased was seen lastly with accused Safique @ Rahul and Ranjit @ Sonu.
8. Accused Safique @ Rahul was having an enmity with Irshad Khan on the issue of a complaint being made by Irshad Khan against accused Safique regarding loss of his mobile phone and the accused being defamed in the locality and in the eyes of his girlfriend.
9. Accused Safique was arrested on 13/5/06. He pointed out the place of incident, got recovered the shoes of the deceased and also the weapon of offence. Subsequent opinion Ex.PW10/B vide which doctor opined that injury must have been caused by the stone.
10.Accused Safique @ Rahul made a disclosure statement on the basis of which remaining accused persons were arrested.
SC No.8306 (State Vs Safique @ Rahul & Ors.)
11. The shoes of the deceased Dilshad recovered at the instance of accused Safique was duly identified by PW4 Taj Khanam in the TIP proceedings.
12. Extra judicial confessions made by accused persons, which was overheard by PW11 Mohd. Rafi.
13. Call record of Irshad showing telephone conversation between telephone No. 9811482273 of Irshad and telephone No. 9312037347 of Richa @ Bably. Relationship between accused Safique @ Rahul and Bably.
8.1 The law on circumstantial evidence is very well settled. In C.Chenga Reddy V. State of AP (1996) 10 SCC 193, it was observed:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which 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."
SC No.8306 (State Vs Safique @ Rahul & Ors.) In Padala Veera Reddy V. State of AP, 1989 Supp (2) SCC 706, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"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 (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."
In Hanuman V. State of MP, AIR 1952 SC 343, it was observed that:
"10.... It is well to remember that in cases where the evidence is of a circumstantial nature, the SC No.8306 (State Vs Safique @ Rahul & Ors.) circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
8.2 A reference may also be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the Supreme Court, before conviction could be based on circumstantial evidence, must be fully established. They are :
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
SC No.8306 (State Vs Safique @ Rahul & Ors.) (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."
9.0 The case of the prosecution is heavily relied upon the last seen evidence. In respect of last seen evidence, our own Hon'ble High Court in a Divison Bench headed by Hon'ble Mr. Justice Pradeep Nandrajog in Arvind @ Chhotu V. State Crl.A.362/2001, decided on 10.08.2009, extensively dealt this question and after considering as many as 14 judgments namely, Deonandan Mishra vs. The State of Bihar, AIR 1955 SC 801 ; Anant Bhujangrao Kulkarni vs. State of Maharashtra, SC No.8306 (State Vs Safique @ Rahul & Ors.) 1993 SCC (Cri) 520 ; State of West Bengal vs. Mir Mohammad Omar & Ors. , (2000) 8 SCC 382 ; Mohibur Rahman & Anr. vs. State of Assam. (2002) 6 SCC 715 ; Bodhraj @Bodha & Ors. vs. State of Jammu & Kashmir. (2002) 8 SCC 45 ; Babu S/o Raveendran vs. Babu S/o Bahuleyan & Anr. (2003) 7 SCC 37 ; Amit @Ammu vs. State of Maharashtra. 2003 (8) SCC 93 ; State of U.P. vs. Satish. (2005) 3 SCC 114 ; Deepak Chandrakant Pail vs. State of Maharashtra AIR 2006 SC 1708 ; State of U.P. vs. Desh Raj. AIR 2006 SC 1712; Ramreddy Rajeshkhanna Reddy & Anr. vs. State of Andhra Pradesh.2006 (3) 83. SCALE 452 ; Vikramjit Singh @ Vicky vs. State of Punjab, 2006 91 SCALE ; State of Goa vs. Sanjay Thakran and Anr. 2007 (3) 94 SCALE 740 ; Venkatesan vs. State of Tamil Nadu. 2008 (9) 96. SCALE 319 ; Vithal Eknath Adlinge vs. State of Maharashtra, 2009 (3) 99 SCALE 327 ; State of Uttar Pradesh vs. Shyam Behari & Anr. 2009 (8) SCALE 743, has authoritatively culled out the entire law on this point : "103. We may summarize the legal position as under:
(i) Lastseen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the lastseen theory has to be applied.
SC No.8306 (State Vs Safique @ Rahul & Ors.)
(ii) It is not necessary that in each and every case corroboration by further evidence is required.
(iii) The single circumstance of lastseen, is of a kind, where a rational mind is persuaded to reach on irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of lastseen.
(iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of lastseen, a conviction can be sustained.
(v) Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.
(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the lastseen theory.
SC No.8306 (State Vs Safique @ Rahul & Ors.)
(vii) The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory.
For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the lastseen theory.
The above circumstances are illustrative and not exhaustive. At the foundation of the lastseen theory, principles of probability and cause and connection, wherefrom a reasonable and a logical mind would unhesitatingly point the finger of guilt at the accused, whenever attracted, would make applicable the theory of lastseen evidence and standing alone would be sufficient to sustain a conviction."
10.0 I have gone through the judgments cited by the Ld. counsel for the accused and has taken guidance from the law laid down in the said judgment. In all the judgments, Hon'ble High Court has been pleased to appreciate the facts and concluded that the facts on record were not sufficient to complete the chain of the circumstances. The ratio laid down SC No.8306 (State Vs Safique @ Rahul & Ors.) in the said judgments that the circumstances from which the conclusion of the guilt is sought to be drawn against the accused, needs to be fully and firmly established. The circumstances so proved should be consistent only with the hypothesis of the guilt of the accused and should exclude every reasonable hypothesis of his being innocent. It was reiterated that the chain of the circumstances produced must show that in all probability, the offence was committed by no one other than the accused. Following the law laid down in the above noted cases and on the basis of the judgment cited by the complainant in Manivel's case (supra), it has to be seen that whether the prosecution in the present case on the basis of material on record has been able to fully and firmly establish the circumstances from which the conclusion of the guilt is sought to be drawn. Circumstance No. 1 & 2.
11.0 PW1 Irshad Khan, PW4 Taj Khanam and PW5 Zeenat had specifically stated that they had gone to attend the marriage alongwith deceased Dilshad, for which they were invited vide invitation card Ex.PW1/P1. PW8 Shabbir also made a specific statement on oath that the complainant party was invited for the marriage function dated 7/5/06 alongwith accused Safique @ Rahul, Ranjit @ Sonu and Munish Khan. In SC No.8306 (State Vs Safique @ Rahul & Ors.) regard to the reception function, PW9 Qayum has also made a specific statement that the marriage function was held on 7/5/06 in which the deceased had taken part. Even defence witness DW1 Banta has also stated that he went to the marriage function alongwith Dilshad on the said date. This fact has also been corroborated by DW2 Shahida Begum. 11.1 PW4 Taj Khanam and PW5 Zeenat have made a consistent and corroborative statement on oath that on 7/5/06 they both had gone to attend the marriage function alongwith Dilshad and after attending the marriage party while they were returning back DW1 Banta came to their house and called Dilshad. PW1 Irshad Khan has also stated in his testimony that his son Dilshad had gone to attend the marriage party in the neighbourhood alongwith his mother PW4 Taj Khanam and while they were coming back after dinner, Banta had taken him away for playing with him and thereafter, Dilshad did not come back. This story of the prosecution is corroborated by DW1 Banta when he stated that he remained with Dilshad in marriage function till 9 9:30pm. In the cross examination by Ld. Addl. PP, DW1 Banta had admitted that parents of Dilshad had come to enquire about their son at about 1010:30pm.
SC No.8306 (State Vs Safique @ Rahul & Ors.) Thus, this part of the story is proved by cogent and creditworthy evidence that Dilshad had gone to attend the marriage function held on 7/5/06 alongwith PW4 Taj Khanam and PW5 Zeenat. Deceased also remained with DW1 Banta at marriage function and therefore, did not come back. The truthness of the story of the prosecution is reflected from the fact that DW1 admitted in the cross examination that the parents of the deceased had come to his place at 1010:30pm to enquire about Dilshad.
Circumstance No. 3:
12.0 This circumstance of the last seen is the most important circumstance. In this respect, the star witnesses of the prosecution are PW8 Shabbir and PW9 Qayum. PW8 Shabbir has specifically stated on oath that he had invited accused Safique @ Rahul, Ranjit @ Sonu and Munish Khan in the marriage function alongwith the complainant. The function started at 6pm on 7/5/06 and he had seen Dilshad going towards Sunday market at about 8 - 8:30pm. Accused Sonu was walking ahead of Dilshad and Safique was following Dilshad. PW9 Qayum also made a corroborative statement that on 7/5/06 at around 8 or 9pm, he saw Dilshad and Safique going out of the marriage party. Qayum did not ask anything SC No.8306 (State Vs Safique @ Rahul & Ors.) from Safique but asked Dilshad that why he was going towards that side of tent as there was no way since table was kept that side. Accused Safique told Qayum that Dilshad is going with him and let him go. In the cross examination by Ld. Addl. PP, PW9 Qayum admitted that he had seen Dilshad going out of the marriage party with Safique and Sonu on 7/5/06 at about 8pm towards Sunday Market and he had stated so before the police. Thus, both the witnesses have made a consistent and corroborative statement on oath that they had seen accused Safique @ Rahul and Ranjit @ Sonu going alongwith the deceased on 7/5/06 at around 8pm. 12.1 The factum of the presence of Dilshad and the accused persons in the marriage party has duly been proved by the testimony of PW1 Irshad Khan, PW4 Taj Khanam, PW5 Zeenat, PW8 Shabbir and PW9 Qayum. It has also come in the testimony of PW8 Shabbir that pahari area is just close by his place. It is pertinent to mention here that allegedly Dilshad was murdered in jungle area. The defence has cross examined PW8 Shabbir and PW9 Qayum in detail at length but their lengthy cross examination has not been able to shatter the testimony of these witnesses. The presence of PW8 Shabbir and PW9 Qayum at the marriage party is quiet natural, they being the host of the function. The defence has urged SC No.8306 (State Vs Safique @ Rahul & Ors.) that since PW9 Qayum has initially named only accused Safique @ Rahul and only during cross examination by Ld. Addl., he has named Safique and Ranjit @ Sonu, therefore, his testimony is liable to be discarded. It is a settled proposition that evidence of a witness is to be read as a whole. The "evidence" contemplates the complete evidence i.e., examination, cross examination and reexamination, if any. It cannot be read in a piece meal. It is also a settled proposition that testimony of a hostile witness cannot be rejected in toto. The witness if found to be false or incorrect on certain aspects can still be believed if his testimony as a whole inspires the confidence of the Court. Therefore, I have no doubt in my mind that accused Safique @ Rahul and Ranjit @ Sonu were seen with deceased on 7/5/06 at around 89pm.
Circumstance No.4:
13.0 PW8 Shabbir stated in his examination in chief that at about 1:30am while he was present at the marriage place, he saw accused Safique @ Rahul, Ranjit @ Sonu and Chandra Prakash returning from pahari side quietly and at that time Dilshad was not with them. It also came in the cross examination that since on that day there was lot of lighting done for the reception and therefore, he could identify accused SC No.8306 (State Vs Safique @ Rahul & Ors.) persons Safique @ Rahul, Ranjit @ Sonu, Chandra Prakash and Munish walking down from the pahari side. Accused persons passed through the tent.
13.1 PW9 Qayum also stated in his examination in chief that at 22:30am he saw 34 boys coming from pahari side. However, as he was busy in his work, he did not pay much attention as to who were those 34 boys. During cross examination by Ld. Addl. PP, PW9 Qayum admitted that he had seen accused Safique @ Rahul, Ranjit @ Sonu, Munish Khan and Chandra Prakash coming from pahari side and going towards the colony.
13.2 I consider that as far as the fact that accused Safique @ Rahul, Ranjit @ Sonu, Chander Prakash and Munish Khan were seen coming back from the side of pahari at around 1 - 2am has duly been poved by the prosecution. Again, the cross examination of these witnesses have not been able to shatter their testimony. However, the fact that whether this fact would how much be relevant in respect of the accused persons Munish Khan and Chander Prakash is to be seen lateron.
SC No.8306 (State Vs Safique @ Rahul & Ors.) Circumstance No. 5:
14.0 PW1 Irshad Khan, PW4 Taj Khanam and PW5 Zeenat had specifically stated that deceased Dilshad did not return back from the marriage function on 7/5/06 and they started searching for Dilshad. Even DW1 Banta has admitted in the cross examination that his parents had been searching for him and they had come to his place also at around 1010:30pm.
14.1 DW2 Sahida Begum has also stated in her examination that on the day of reception, mother of Dilshad was searching her son Dilshad at about 1011pm. Thus, not only the prosecution witnesses, even the defence witnesses have proved this fact that deceased went missing on the night of reception. In this regard PW2 Ct. Harminder has proved the DD No. 21 as Ex.PW2/A regarding the missing of Dilshad. DD No. 21 was based on the PCR call. On the same day, PW1 Irshad Khan had also lodged a missing report regarding missing of his son Dilshad vide DD No. 26 which is proved as Ex.PW2/B. SC No.8306 (State Vs Safique @ Rahul & Ors.) Circumstance No. 6:
15.0 PW12 Ravinder Yadav informed from his mobile No. 9911110844 at number 100 regarding blood dripping from the drain pipe and regarding the fact of lying of a dead body in the sewer pipe. On receipt of this information, PW13 SI Satbir Singh reached on the spot alongwith PW15 Ct. Devender and PW 19 Ct. Kiran More. The dead body was duly identified by PW1 Irshad Khan, PW4 Taj Khanam and PW5 Zeenat. The photographs of the dead body was duly taken by PW18 HC Ghir Raj Prasad, photographer. Even otherwise, the fact regarding the identification of the dead body is not disputed. Upon recovery of the dead body PW1 Irshad Khan made a complaint Ex.PW1/B suspecting Safique @ Rahul as his son/deceased was last seen with him. PW1 Irshad Khan has duly proved his complaint as Ex.PW1/B. 15.1 Ld. defence counsels have argued at length that till 9/5/06, the complainant or any other member of his family has not suspected upon Safique @ Rahul and the name of Safique @ Rahul came for the first time in the complaint Ex.PW1/B. It has been argued at length that even in the missing report, the complainant did not name accused Safique @ Rahul. I SC No.8306 (State Vs Safique @ Rahul & Ors.) consider that this fact cannot be read against the prosecution. The complainant seems to have acted bonafidely. They did not name accused Safique @ Rahul unless and untill they were sure about it. It seems that initially the complainant party was hoping that their son might have gone somewhere and would return back. It is a matter of record that accused Safique @ Rahul is also neighbourer of the complainant party.
Normally, a person does not name the neighbours unless and untill it becomes unavoidable, or except in the case where there is a motive to implicate any person. In the present case, there is nothing to suggest that complainant had any motive to implicate the accused persons falsely. Complainant also seems to have acted under such belief. The fact that complainant did not mention Safique @ Rahul in his missing report, rather indicates his bondafide. It is settled proposition that the close relatives of a victim would normally not name a false person because it would amount to screening the real offender, which the close relative or in the present case parents, would never like to do. This Court is of the considered view that investigation in the present case has been done in a right manner. IO conducted thorough investigation to reach to the offenders.
SC No.8306 (State Vs Safique @ Rahul & Ors.) Circumstance No. 7:
16.0 The dead body in the present case was recovered from the corner of the road leading towards MB Road and Mehrauli side from a sewer pipe near jungle of Railway Colony, MB Road, Okhla Phase - I. It came in the testimony of PW8 that the place from where the dead body was recovered was less than ½ km from the reception venue. It has also come in the cross examination of IO that the distance between the place from where the stone was recovered or the alleged murder was committed and place of recovery of dead body was about 100 yards. This place was not shown in the siteplan Ex.PW30/B as it was not in the knowledge of the IO at the time of preparation of the same. Thus, if we appreciate the testimony of PW8 Shabbir and PW9 Qayum alongwith the testimony of IO it is quite clear that dead body was recovered from a near by place where the deceased was last seen with accused Safique @ Rahul and Ranjit @ Sonu. The place of recovery of dead body was also nearby to the place where allegedly the murder was committed and stone i.e., weapon of offence was got recovered by accused Safique vide seizure memo Ex.PW1/D. SC No.8306 (State Vs Safique @ Rahul & Ors.) Circumstance No. 8 17.0 The prosecution has based its case upon the fact that accused Safique had a motive to kill deceased Dilshad as on 6/3/06, the mobile phone and some other articles of Irshad Khan was stolen regarding which he had lodged a report with PP Pul Prahlad Pur Ex.PW21/DA / Ex.PW30/D. After sometime, PW1 Irshad Khand got issued another sim card of the same No. ie. 9811482273 and on this number he received a telephone call from PW8 Richa @ Bably asking about Safique @ Rahul.
After receipt of this call, PW1 Irshad Khan contacted the mother of Safique and this led to the quarrel between the parties. PW28 Richa though did not support the case of the prosecution but during cross examination by Ld. Addl. PP, she admitted that Irshad Khan had come to her house and created a scene and enquired from her regarding if she knew Rahul or not and about her mobile phone. PW28 Richa also admitted that Irshad Khan had told her that his mobile phone was lost. Thus, the plea of the defence that this story of the mobile phone was manufactured lateron after the dead body was recovered falls to the ground.
17.1 PW1 Irshad Khan, PW4 Taj Khanam and PW5 Zeenat have made a consistent and corroborative statement on oath regarding the fact SC No.8306 (State Vs Safique @ Rahul & Ors.) of the theft of mobile phone of PW1 Irshad Khan and lateron the fact of a call having been received from one Richa @ Bably on the mobile phone of Irshad Khan and thereafter, the quarrel between Safique and Irshad Khan. The fact that no action was taken by the police on the complaint being made by Irshad Khan cannot be read against the complainant. There are number of instances where the police fails to take any action despite the complaint having been lodged with them. In this regard, the prosecution besides PW1 Irshad Khan, PW4 Taj Khanam and PW5 Zeenat has also examined PW6 Asgar Ali who was a witness regarding threat extended by Safique @ Rahul on the complaint filed by the complainant regarding theft of his mobile. PW7 Satpal was also examined so as to prove that accused Safique was in the habit of committing theft of mobile phone. However, this witness did not support case of the prosecution regarding the relationship between Irshad Khan and Safique @ Rahul. 17.2 PW11 Mohd. Rafi has also made a statement on oath regarding the threat extended by Safique @ Rahul to Irshad Khan. PW21 ASI Ram Avtar proved the receipt of complaint from Irshad Khan on 6/3/06 regarding missing of his mobile phone.
SC No.8306 (State Vs Safique @ Rahul & Ors.) 17.3 Ld. defence counsels have argued at length that this story of motive has been created falsely by the prosecution and it is a brainchild of the IO. There was no such incident of theft of mobile phone and the prosecution has foisted this story upon accused Safique @ Rahul only to implicate him. It has further been submitted that even otherwise, the motive as proved by the prosecution is of a very weak nature and cannot be believed, so as to record the conviction of the accused persons. 17.4 Per Contra, Ld. Addl. PP for State submitted that it is not necessary for the prosecution to prove motive in all cases. He has submitted that if the prosecution has been able to prove all the circumstances, it is not required that motive must be proved by it on record. However, in the present case, prosecution has successfully proved the motive.
17.5 There is no doubt to the settled proposition that prosecution is not required to prove motive in order to succeed in its case. The law regarding motive is very well settled. Reference can be made to Tarseem Kumar Vs. Delhi Administration, (1994) Supp (3) SCC 367 @ 368. Similarly, in Nathuni Yadav Vs. State of Bihar, (1998) 9 SCC 238, it was held that though it is a sound proposition that every criminal act is SC No.8306 (State Vs Safique @ Rahul & Ors.) done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. Every human being has a different psychology and the reaction also differs from one individual to another. Some people on mere trivial matters may take a decision to commit a very serious crime and the other set of people may take it with a cool and calm mind and think more dispassionately before taking hazardous and serious step. There is no tool to peep into the mind of an individual and therefore, only an individual knows his intention or motive to commit the crime. Normally, it is only the perpetrator of the crime who knows as to what circumstances prompted him to certain course of action leading to the commission of a crime and therefore, absence of proof of motive does not render the evidence bearing on the guilt of the accused untrustworthy or unreliable. Reference can be made to S.C. Bahri Vs. State of Bihar, 1994 Cri.L.J. 3271.
17.6 It is also a settled proposition that if there are other pieces of evidence to prove beyond reasonable doubt the guilt of the accused, the court will not be justified in rejecting the case of the prosecution merely on the ground that there is no material as to what was the motive for the accused to commit the crime. Reference can be made to State of Karnataka Vs. Surendra, 1995 Cri.L.J. 3824. It has been said that the SC No.8306 (State Vs Safique @ Rahul & Ors.) motive is a psycological phenomena and if the prosecution is failed to translate the mental disposition of the accused into evidence, it does not mean that no such mental condition, existed in the mind of the offender. Reference can be made to Ranganayati Vs. State of Dy. Inspector of Police, AIR 2005 SC 418.
17.7 In the present case, I consider that prosecution has successfully proved on record by way of evidence of PW1 Irshad Khan, PW4 Taj Khanam, PW5 Zeenat, PW6 Asgar Ali and PW11 Satpal that there were strained relation between complainant Irshad Khan and accused Safique and the genesis of this relation was theft of a mobile phone. The mind of a human being works in a very strange way. No one can say that which thing can hurt an individual. Particularly, if one is defamed in the eyes of his girlfriend or lover, it can hurt the person to any extent. Sometime, a very small incident can provoke the person to such an extent that he can do anything even to the extent of committing murder. It is a strange aspect of the human mind. Accused Safique @ Rahul seems to have fallen into the habit of committing theft of mobile phone and in the process he committed theft of mobile phone of the complainant Irshad Khan. This theft was traced on account of the fact that a call was received from Richa @ Bably by the complainant and this led to the quarrel SC No.8306 (State Vs Safique @ Rahul & Ors.) between the parties. The mental disposition of every person is different. Nothing can be said with certainity about the reaction of an individual. I consider that the prosecution has successfully proved that there was enmity between the complainant and accused.
Circumstance No. 9,10 & 11 18.0 IO in his testimony stated that the complainant in his complaint Ex.PW1/B has suspected accused Safique @ Rahul for causing death of his son. However, accused Safique was not found on his address at Prem Nagar. On 13/5/06 on the basis of a secret information accused Safique was arrested at the instance of the complainant from container depot. The arrest of the accused has also been proved by PW1 Irshad Khan. IO stated that accused Safique made two disclosure statements Ex.PW1/F & PW1/G. The accused also got recovered a stone vide seizure memo Ex.PW1/D and also got recovered pair of shoes from the heap of stone vide seizure memo Ex.PW1/E. Accused Safique @ Rahul also pointed out the place where allegedly the murder was committed and the place of recovery of dead body vide pointing out memo Ex.PW1/C. SC No.8306 (State Vs Safique @ Rahul & Ors.) 18.1 IO has proved on record that accused Safique made a disclosure statement Ex.PW1/F and Ex.PW1/G and in pursuance to the disclosure statement, accused Ranjit @ Sonu, Munish Khan and Chander Prakash were arrested on the same day. Accused Safique @ Rahul and Ranjit @ Sonu also pointed out the place where allegedly the murder was committed and dead body was recovered. However, accused Chander Prakash and Munish Khan pointed out the place where the dead body was kept. Arrest of the accused persons has been duly proved by the IO. The arrest of accused Munish Khan has been corroborated by PW16 Ct. Vijay. PW20 Ct. Sriniwas has also joined the investigation during arrest of accused Chander Prakash and PW26 HC Subhkaran was a witness regarding arrest of accused Ranjit @ Sonu. It is a settled proposition that the information as disclosed by the accused persons would be admissible only distinctively to the fact that discovered by the police in consequence of the information. The statement made by the accused which is not directly or necessarily to the fact discovered is not admissible in evidence. Thus, the pointing out memo and the recovery of stone is only admissible to that limited extent and it cannot be read in evidence beyond this. The accused has also got recovered the shoes allegedly being worn by the deceased at the time when he disappeared. However, this is an important fact that connects the accused with the offence.
SC No.8306 (State Vs Safique @ Rahul & Ors.) 18.2 PW4 Taj Khanam and PW5 Zeenat have specifically stated in their evidence that deceased was wearing white sport shoes, at the time when he disappeared. I have gone through the entire record. It does not indicate anywhere that the dead body was wearing the shoes. Unfortunately, the PCR form on record, the original of which seems to have been destroyed also indicates that the dead body was not wearing shoes at the time of its recovery. The recovery of shoes at the instance of accused Safique @ Rahul would have been read only to this extent had it not been proved by prosecution by cogent and creditworthy evidence that these shoes belong to the deceased and he was wearing them at the time of his disappearance. Prosecution has successfully proved this fact on record by way of testimony of PW4 Taj Khanam and PW27 Sh. Jagdish Kumar, Ld. ACMM. The TIP of shoes has duly been proved as Ex.PW4/A. In the judicial TIP, PW4 had duly identified the shoes of the deceased. PW4 Taj Khanam in her evidence has specifically stated that "apne bache ke joote har koi pehchaan leta hain". I consider that by way of testimony of PW4 Taj Khanam and PW27 Jagdish Kumar, Ld. ACMM, it has been duly proved by the prosecution on record that the shoes recovered at the instance of accused Safique @ Rahul belong to deceased Dilshad.
SC No.8306 (State Vs Safique @ Rahul & Ors.) 18.3 Accused also got recovered a stone and in the subsequent opinion Ex.PW10/B, PW10 Dr. Chitranjan Behra has specifically opined that "I am of the considered opinion that the injuries mentioned in the PM Report No. 633/06 could have been sustained by this stone". Circumstance No. 12 19.0 The prosecution has examined PW11 Mohd. Rafi regarding the extra Judicial Confession made by accused persons. PW11 Mohd. Rafi initially did not support the case of the prosecution and he was declared hostile. However, during cross examination by Ld. Addl. PP, PW11 stated that on 9/5/06 at about 88:30pm he heard accused Safique saying that Irshad Khan had already defamed him (bahut badnaam kar diya hai) and now he will know the consequences (ab usko pata chal jayega). PW11 Mohd. Rafi stated that he was sure that accused Safique had said these words as he had just turned around. Accused Safique was telling these words to other boys who were standing with him but his intention was to make the witness hear these things. PW11 Mohd. Rafi stated during cross examination by the prosecution that he understood the conversation amongst the accused persons after the dead body of Dilshad was recovered. PW11 only identified Ranjeet @ Sonu as to be the person who SC No.8306 (State Vs Safique @ Rahul & Ors.) was present there and he was not sure about the other accused persons. Ld. counsel for the accused persons have argued at length that this witness is not at all relevant and even he has not supported the case of the prosecution. The law regarding appreciation of evidence is very well settled. The court has to read the evidence in its entirety. As I have discussed above, the evidence connotes the complete evidence i.e, examination, cross examination and reexamination. It is also settled proposition that the testimony of a hostile witness cannot be discarded outrightly. In Vadivelu Thevar vs. State of Madras, AIR 1957 SC 614, it has been inter alia held as under :
"Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses in proof of any fact, they will be indirectly SC No.8306 (State Vs Safique @ Rahul & Ors.) encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. There are exceptions to this rule, for example, in case of sexual offences or of the testimony of an approver, both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the Court to convict, if it is satisfied that the testimony of a single witness is entirely reliable."
Thus, simply because the witness has been declared hostile by the prosecution, he cannot be discarded. In this regard, test laid down by the Hon'ble Supreme Court in Vadivelu Thevar case (supra) is very important. I consider that if we go through the testimony of PW11 Mohd. Rafi, if he is not wholly reliable, he is not wholly unreliable also. The requirement is that the evidence of such witness is to be appreciated with a caution. In such like cases, the Court is required to find out material to corroborate the testimony of this witness. If the material on record lends support to such witness, I consider that there is no harm in believing the SC No.8306 (State Vs Safique @ Rahul & Ors.) testimony of such a witness. It is also a settled proposition that every witness has his own style of narrating the facts. Every person has a different power of observation. It has also to be kept in mind that the educational background and the social circumstances are also an important factor. I consider that if the testimony of PW11 Mohd Rafi is read as a whole, he seems to be a reliable witness with regard to the conversation between accused Safique @ Rahul and Ranjit @ Sonu. It is pertinent to mention here that this Court is not basing its finding upon the testimony of PW11. The Court is only trying to get an assurance from the testimony of this witness. It is pertinent to mention here that this witness only identified accused Safique @ Rahul and Ranjit @ Sonu only. Had he been a false witness, he would have tried to implicate other accused persons also. Circumstance No. 13.
20.0 Richa @ Bably in her testimony admitted that she had relationship with Safique @ Rahul and they used to talk on mobile phone and used to meet. This witness cleverly forgot her mobile number at the relevant time. However, she admitted that PW29 Mohd. Wakil had helped her in purchasing the mobile. Prosecution also examined PW29 Mohd. Wakil who also stated that he had helped Richa @ Bably in buying the SC No.8306 (State Vs Safique @ Rahul & Ors.) mobile phone. The fact of conversation having taken place between mobile No. 9312037347 belonging to Richa and mobile No. 9811482273 of Irshad Khan has been proved by PW23 Israr Babu, Legal Executive, Essar Mobile Services Ltd. vide call detail record Ex.PW23/A and Mark PW23/X. 21.0 The prosecution in the present case has successfully proved that accused Safique @ Rahul was nursing a grudge against PW1 Irshad Khan and out of that enmity he alongwith accused Ranjit @ Sonu in furtherance of common intention took away Dilshad from the reception party on 7/5/06 to the pahari side and there both of them in furtherance of common intention killed the deceased and thereafter, concealed the dead body in the sewer pipe. The fact that the shoes belonging to deceased were recovered at the instance of accused Safique also connects him with the offence. It has to be kept in mind that the prosecution has successfully proved by way of cogent and creditworthy evidence that deceased was last seen in the company of accused Safique @ Rahul and Ranjit @ Sonu and they both have failed to explain that how and in what circumstances, the deceased suffered death. The prosecution has also successfully proved that the place where the deceased and the accused were seen last alive, was very close to the place where the dead body was found.
SC No.8306 (State Vs Safique @ Rahul & Ors.) 22.0 The accused persons were charged for the offence of criminal conspiracy u/S 120B IPC. Section 120B IPC provides punishment for criminal conspiracy. To bring home the charge of conspiracy within the ambit of Section 120B IPC, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. Though it is difficult to bring the direct evidence to establish conspiracy, however, there has to be some evidence on record which must indicate to the involvement of accused persons in the criminal conspiracy. I consider that in the present case, prosecution has miserably failed to bring in evidence on record to prove its charge of criminal conspiracy.
Ld. Addl. PP has submitted that though the charge of criminal conspiracy has not been proved, however, accused persons can be convicted by resorting to Section 34 IPC. Section 34 IPC reads as under:
"34. Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
SC No.8306 (State Vs Safique @ Rahul & Ors.) In Abdul Sayeed Vs. State of Madhya Pradesh, 2010 IX AD (SC) 615, it was observed as under: "45. .....Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the "common intention" to commit the offence. The phrase "common intention" implies a prearranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the "same intention" or "similar intention" or "common object." The persons having similar intention which is not the result of the prearranged plan cannot be held guilty of the criminal act with the aid of Section 34 IPC.
46. The establishment of an overt act is not a requirement of law to allow Section 34 to operate in as much this Section gets attracted when a criminal act is done by several persons in furtherance of the common intention of all. What has, therefore, to be established by the prosecution is that all the concerned persons had shared a common intention.
SC No.8306 (State Vs Safique @ Rahul & Ors.)
47....
48. In Krishnan and Anr. Vs. State represented by Inspector of Police, (2003) 7 SCC 56, the Hon'ble Supreme Court observed that applicability of Section 34 is dependent on the facts and circumstances of each case. No hard and fast rule can be made out regarding applicability or nonapplicability of Section 34.
49. In Girija Shankar Vs. State of UP, (2004) 3 SCC 793, it is observed that Section 34 has been enacted to elucidate the principle of joint liability of a criminal act:
"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances."
SC No.8306 (State Vs Safique @ Rahul & Ors.)
50. In Virendra Singh Vs. State of Madhya Pradesh, JT 2010 (8) SC 319, this Court observed that:
"Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur join liability for an offence there must be a prearranged and pre meditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34."
In Garib Singh & Ors. Vs. State of Punjab, AIR 1973 SC 460, it was inter alia held by the Hon'ble Supreme Court that a person can SC No.8306 (State Vs Safique @ Rahul & Ors.) be convicted by taking resort to Section 34 IPC even if there is no formal charge and it was observed as under:
"A consideration of the above mentioned aspect, which was not discussed by the High Court, leads us to the conclusion that this was not a case in which Section 34 IPC, for which there was not even a charge framed against the appellants, could be applied so unhesitatingly as the High Court had done. It would have been possible to apply it even though no charge was framed for it if the evidence establishing had been clear and free from doubt."
In Abdul Sayeeds case supra, also the Apex Court upheld the judgment of the Hon'ble High Court wherein the Hon'ble High Court set aside the conviction of the complainant u/Ss 147/148 IPC and convicted them u/S 34 IPC.
I consider that in the present case, accused Safique @ Rahul and Ranjit @ Sonu have acted in furtherance of common intention while they took away deceased Dilshad with them and committed his murder and lateron concealed the body of the deceased in the sewer pipe. 23.0 In respect of accused Chander Prakash and Munish Khan, I consider that prosecution has miserably failed to bring cogent and SC No.8306 (State Vs Safique @ Rahul & Ors.) creditworthy evidence on record and therefore, they are entitled to be acquitted on benefit of doubt.
24.0 Accused Safique @ Rahul and Ranjit @ Sonu are convicted for the offence u/Ss 302/201/34 IPC in case FIR No. 390/06 PS Okhla Industrial Area.
Announced in the open court (Dinesh Kumar Sharma) today on 04.03.2011 Addl. Sessions Judge - 02(South) Saket Courts, New Delhi.
SC No.8306 (State Vs Safique @ Rahul & Ors.) IN THE COURT OF SH. DINESH KUMAR SHARMA ADDITIONAL SESSIONS JUDGE - 02 : (SOUTH) :
SAKET COURTS : NEW DELHI SC No. 83/06 Unique Case ID No.02403R0446072006 State V/s. 1. Safique @ Rahul S/o Washim Khan, R/o J138, Prem Nagar, Lal Quan, Pul Prahaladpur, Delhi.
2. Ranjeet @ Sonu S/o Surender, R/o J71, Prem Nagar, Lal Quan, New Delhi.FIR No. : 390/06
u/Ss. : 302/201/34 IPC PS : Okhla Industrial Area. Judgment pronounced on : 04.03.2011 Date of Order on Sentence : 08.03.2011 SC No.8306 (State Vs Safique @ Rahul & Ors.) ORDER ON SENTENCE Present : Sh. MZ Khan, Ld. Addl. PP for the State
Convicts Safique @ Rahul and Ranjit @ Sonu produced from JC.
Sh. Jagat Singh, Ld. Counsel for convicts.
Sh. Irshad Khan and Smt. Taj Khanam, parents of the deceased. Heard both the sides on the point of sentence.
1.0 Convict has been convicted for the offence u/Ss.302/201/34 IPC vide judgment dated 04/03/2011.
2.0 Sh. MZ Khan, Ld. Addl. PP for the state has submitted that convicts have committed a very serious offence. They have committed the murder of a child out of revenge and therefore, they deserve the maximum punishment under the law.
2.1 Per Contra, Sh. Jagat Singh, Ld. Defence counsel has prayed for a lenient view. It has been submitted that both the convicts are young. There is no previous criminal record. Therefore, a lenient view be taken.
SC No.8306 (State Vs Safique @ Rahul & Ors.) 3.0 I have considered the submissions of both the sides and perused the record.
4.0 This Court has recorded the conviction of the convict u/Ss 302/201/34 IPC on the basis of circumstantial evidence. I consider that this case does not fall within the category of rarest of the rarest cases. I consider that taking into account the entire facts and circumstances, both convicts Safique @ Rahul and Ranjit @ Sonu are sentenced for imprisonment for life and a fine of Rs.2,000/ and in default of payment of fine SI for 06 months u/S 302 IPC.
For the offence u/S 201 IPC, the convicts Safique @ Rahul and Ranjit @ Sonu are awarded rigorous imprisonment SI for 05 years and a fine of Rs. 1000/ and in default of payment of fine SI for 03 month.
Both the sentences shall run concurrently.
Benefit of section 428 Cr.P.C. be given to the convict. 4.1 A copy of the judgment and order on sentence be given dasti to the convict.
SC No.8306 (State Vs Safique @ Rahul & Ors.) 5.0 Convict has also been apprised that he shall be at liberty to file an Appeal against this judgment and sentence before the Hon'ble High Court of Delhi. He has been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee 3437, lawyers Chamber Block, High Court of Delhi, New Delhi.
File be consigned to Record Room.
Announced in the open court (Dinesh Kumar Sharma) today on 08.03.2011 Addl. Sessions Judge - 02(South) Saket Courts, New Delhi.
SC No.8306 (State Vs Safique @ Rahul & Ors.) SC No. 117/05 04/03/2011 Present: Sh. MZ Khan, Ld. Addl. PP for State.
Accused Munish Khan on bail with counsel.
Remaining accused produced from JC with counsel. Vide separate judgment, accused Safique @ Rahul and Ranjit @ Sonu are convicted for the offence u/Ss 302/201/34 IPC in case FIR No. 390/06 PS Okhla Industrial Area. However, accused Chander Prakash and Munish Khan, are acquitted on benefit of doubt.
Accused Chander Prakash be released from jail if not wanted in any other case.
Accused Munish Khan is on bail. His bail bond is cancelled. Surety is discharged. Original documents of the surety, if any, be released against proper acknowledgment.
In terms of section 437(A) Cr.P.C., accused Munish Khan is directed to furnish bail bond in the sum of Rs.10,000/ each with one surety each in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bond shall be in force for 6 months.
To come up on 08/3/2011 for arguments on the point of sentence.
(Dinesh Kumar Sharma)
ASJ02(South)/04.03.2011
SC No.8306 (State Vs Safique @ Rahul & Ors.)
SC No. 117/05
08/03/2011
Present: Sh. MZ Khan, Ld. Addl. PP for State.
Convicts Safique and Ranjit produced from JC with counsel. Vide separate order on sentence, judgment, convicts Safique @ Rahul and Ranjit @ Sonu are sentenced for imprisonment for life and a fine of Rs.2,000/ and in default of payment of fine SI for 06 months u/S 302 IPC.
For the offence u/S 201 IPC, the convicts Safique @ Rahul and Ranjit @ Sonu are awarded rigorous imprisonment SI for 05 years and a fine of Rs. 1000/ and in default of payment of fine SI for 03 month.
Both the sentences shall run concurrently.
Benefit of section 428 Cr.P.C. be given to the convict. A copy of the judgment and order on sentence be given dasti to the convict.
Convicts have also been apprised that he shall be at liberty to file an Appeal against this judgment and sentence before the Hon'ble High Court of Delhi. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee 3437, lawyers Chamber Block, High Court of Delhi, New Delhi.
File be consigned to Record Room.
(Dinesh Kumar Sharma) ASJ02(South)/08.03.2011