Delhi District Court
State vs . on 24 December, 2011
1
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
1. Anwar @ Mogli
S/o Yusuf
R/o C36/15, Gali No.14
Chauhan Bangar, Seelampur
Delhi.
(since expired)
2. Shamim @ Barfwala @ Hazi @ Bhagat Ji
S/o Nazim
R/o C30, Bank Wali Gali
New Seelampur, Delhi.
(since expired)
3. Nasir @ Chiballa
S/o Abdul Jabbar Khan
R/o D561,
Gali No.1 Charaswali
Chauhan Bangar
Seelampur, Delhi
(Proclaimed Offender)
4. Nadeem @ Pawa
S/o Nasimuddin
Sessions Case No.56/2008 Page1/50
2
R/o Village Mukimpur
P.S, Pilhawa Distt. Ghazaibad.
U.P.
5. Samir Alam @ Chotu
S/o Late Sh. Shaki Alam
R/o .No. 783, Gali No. 26
Jafrabad, Delhi
6. Rizwan
S/o Amanat
R/o H.No. 1458, Gali No.52.
Jafrabad Delhi.
7. Shakir @ Kana
S/o Sh.Hafizulla
R/o S60, Gali No. 23
Brahampuri, Delhi53
8. Meena Khan @ Simran
W/o Late Sabir Ali
R/o D32, Near J.N.M. Public School
Hari Enclave, Aman Vihar, Delhi
9. Mehfooz Ali @ Bobby
S/o Mehboob Ali
R/o C80/14, Gali No. 2/7
Chauhan Bangar
New Seelampur, Delhi.
FIR No: 505/2006
Sessions Case No.56/2008 Page2/50
3
U.secs: 302/364/120B/201/34 IPC
and Secs 25/27 Arms Act.
PS: Shahdara.
Sessions Case No. : 56/2008
Date of Institution of case : 30.07.2007
Date on which reserved for Judgment : 08.12.2011
Date of Judgment : 24.12.2011
JUDGMENT:
On 22.10.2006 vide DD No.9A an information was received that Ct. Yogender Singh had given information that while patrolling in the area of Shahdara, at about 10.45 p.m., he reached near Ambedkar College. There by the side of the wall near khatta, a dead body was lying in burnt condition. The said information was conveyed to ASI Shiv Charan who along with Ct.Satpal reached at the spot. Ct.Yogender told ASI Shiv Charan that while passing through there, he found some foul smell coming. Then he saw a dead body lying there in burnt condition.
SHO Insp.Hira Lal and ACP Shahdara also reached the spot. The hairs, face and left hand of the dead body were completely burnt. Neck, chest, stomach, private part and hip portion of the dead body were also completely burnt. Bones of both the thighs were visible. Below the knee, both the legs of the dead body were burnt. There was a strap tied on the wrist of dead body, having picture of motorcycle attached with Sessions Case No.56/2008 Page3/50 4 two chains.
No blood stains or any other clue could be found at the spot. Case under sections 302/201 IPC was got registered through Ct.Satpal. The further investigation of the case was entrusted to Insp. Hira Lal.
Crime Team was summoned at the spot and spot was got photographed. Efforts were made to get the dead body identified and it was preserved in mortuary. On 30.10.2006 the dead body was identified to be that of Sabir Ali @ Nanhe by Jabir Ali brother of the deceased and Rizwan, friend of deceased.
Jabir Ali gave his statement to the police that his deceased brother Sabir Ali @ Nanhe was husband of Meena Khan. Sabir Ali was in jail. During that period, Meena Khan developed illicit relations with Shamim Barfwala. This fact came in the knowledge of Sabir Ali and he wanted to take revenge.
Thereafter all the accused persons entered into a criminal conspiracy and in pursuance of the said criminal conspiracy, they committed the murder to Sabir Ali @ Nanhe.
On 7.11.2006, accused Shakir @ Kana, Anwar @ Mogli and Nasir @ Chiblla were arrested. The katta and one live cartridge used in the commission of offence was recovered from accused Anwar.
At the instance of these accused persons, other accused Sessions Case No.56/2008 Page4/50 5 namely Shamim @ Barfwala, Samir Alam @ Chotu, Mehfooz Ali @ Bobby, Nadeem @ Pawa and Rizwan were arrested. All the accused persons made disclosure statements.
Further investigation was carried out. Call details of the mobile phones of accused persons were collected which showed the involvement of accused Meena Khan in the conspiracy. It was disclosed that at the time of murder of Sabir Ali @ Nanhe, accused persons were in contact with Meena Khan.
Accused Shamim @ Barfwala and Mehfooz Ali could not be arrested and proceedings under section 83 Cr.P.C were initiated against them.
After completion of investigation, challan was filed in the court against accused Shakir @ Kana, Anwar @ Mogli, Nasir @ Chiballa, Samir Alam @ Naved @ Chotu, Nadeem @ Pawa and Rizwan for the offences punishable under sections 302/364/201/120B IPC and 25/27 Arms Act.
Ld. M.M after supply of copies etc, committed the case to the court of Sessions.
Vide order dated 21.8.2007, my Ld. Predecessor, framed a charge for the offences punishable under sections 120B/364/302/201 IPC read with Section 120B IPC to which the accused persons pleaded Sessions Case No.56/2008 Page5/50 6 not guilty and claimed trial.
Thereafter accused Shamim @ Barfwala, Meena Khan and Mehfooz Ali were apprehended and challan was filed in the court against them for the offences punishable 302/364/201/120B/34 IPC and 25/27 Arms Act.
Ld.M.M after supply of copies etc, committed the to the court of Sessions.
Vide order dated 21.8.2007, my Ld. Predecessor, framed a charge for the offences punishable under section 120B IPC against accused Shamim @ Barfwala, Meena Khan and Mehfooz Ali to which the accused persons pleaded not guilty and claimed trial.
A separate charge for the offences punishable under sections 364/302/201 read with section 120B IPC was framed against the accused Mehfooz Ali @ Bobby and Shamim @ Burfwala @ Hazi, Bhagat Ji. Both the accused pleaded not guilty to the charges against them and claimed trial.
Vide orders dated 21.9.2007, both the cases were ordered to be clubbed together.
During the course of trial, accused Anwar @ Mogli died and proceedings against him were abated vide order dated 4.7.2008.
During the course of trial, accused Shamim @ Burfwala @ Sessions Case No.56/2008 Page6/50 7 Bhagat Ji also expired. Proceedings against him were abated vide order dated 18.7.2008.
In support of its case, the prosecution examined 34 witnesses.
PW1 Javed is the brother of the deceased. He stated that they are four brothers and two sisters and he was the eldest. He further stated that Sabir Ali @ Nanhe was youngest of all. He further stated that two year before (two years before recording his statement) deceased Sabir Ali started residing with Meena Khan, with whom Sabir Ali had married. One daughter was born of the the said wedlock. He further stated that Meena Khan was already having one child when she married Sabir Ali (deceased). He further stated that deceased Sabir Ali was working in a factory where lamps were manufactured. He further stated that deceased Sabir Ali was sent behind the bars after his marriage with Meena Khan and remained behind the bars for 56 months.
PW1 Javed Ali further stated that it was 30th day of English Calender Month, after one week of Deepawali Festival in the year 2006. He was in Meerut. Police approached his house in Delhi and told that his brother Sabir Ali had been murdered. His family members informed him in Meerut about this fact and he rushed to Delhi. He went to GTB Hospital where dead body was shown to him by the police officers. The Sessions Case No.56/2008 Page7/50 8 dead body was badly burnt and therefore he could not identify the dead body and he told this fact to the police. He further stated that he told police that his deceased brother Sabir Ali used to wear gold chain, gold bracelet and one gold ring. Police showed him the photographs of the dead body and there was one gold bracelet on the left hand of the dead body. A small portion of the left hand was not burnt and the bracelet and other portion of the left hand was burnt.
PW1 further stated that deceased Sabir Ali had met him four days prior to the incident and he had told him that he (deceased Sabir Ali) wanted to purchase a plot of 50 Sq yards. Sabir Ali requested him to inform him in case he (PW1) had deal of plot. He further stated that he could not identify the dead body, but on account of the bracelet he believed that the dead body was of Sabir Ali @ Nanhe, since there was rumor in the area about the incident for last the four days. He further stated that he had not seen Sabir Ali since he had met him four days prior to the incident. He further stated that his statement Ex.PW1/A was recorded when he had received the dead body vide memo Ex.PW 1/B. PW1 further stated that Meena Khan used to reside near Jalebi Chowk, Sultan Puri, Delhi. He stated that he had visited the house of Meena Khan 24 times and he had not met any other person at the house of Meena Khan at that time. He further stated that as and when he Sessions Case No.56/2008 Page8/50 9 visited the house of Meena Khan, he perceived that Meena Khan and Sabir Ali were living happy married life. He further stated that once or twice Sabir Ali visited his house and told that he had an altercation with Meena Khan and he had given twothree slaps to her. He further stated that Sabir Ali had visited his house alone four days prior to the incident and he had not seen Sabir Ali on the festival of Deepawali. He further stated that he did not know anybody with the name of Shamim Barfwala. He further stated that he had not made any statement before the police leveling allegations against anybody concerning the dead of deceased Sabir Ali @ Nanhey.
This witness was declared hostile by the prosecution and was crossexamined by the Ld.Addl.P.P. During his crossexamination he denied the suggestion of the Ld.Addl.P.P. that at the time when deceased Sabir Ali married Meena Khan she was pregnant with the child of some other persons, that he (PW1) had worked as a mason in the house of Meena Khan, that he had seen Shamim Barfwala and Shakir visiting the house of Meena Khan and they used to consume liquor with her and stay there for long time during the night hours, that Sabir Ali was knowing these facts; that 1516 days prior to the incident, Sabir Ali had told him that Meena Khan was going to give divorce to him (deceased Sabir Ali).
Nothing incriminating could surface on record against the Sessions Case No.56/2008 Page9/50 10 accused persons in the statement of PW1.
PW2 Rizwan Ali stated that he knew Sabir Ali @ Nanhe as he was residing in front of his house along with his parents and brothers. About six years back, Sabir Ali left the house and went to live somewhere else. Sabir Ali used to visit the house after a long interval. He further stated that he had met Sabir Ali two years prior to this incident. He further stated that he had not gone with Sabir Ali to roam about in the area and Sabir Ali had not purchased anything while being in his company. He further stated that he did not know the whereabouts of Sabir Ali and he had not seen his dead body.
This witnesses also did not support the prosecution case and was declared hostile. He was crossexamined by the Ld.Addl.P.P. but nothing incriminating could surface on record against the accused persons. He denied the suggestion of the Ld.Addl.P.P. that deceased Sabir Ali had gone with him to Palika Bazar and purchased a bracelet which Sabir Ali wore on his left hand. He further denied the suggestion of the Ld.Addl.P.P. that he had gone to GTB Hospital Mortuary and he had seen the dead body wearing the bracelet and he had identified the dead body to be that of Sabir Ali.
PW3 Gulfam @ Chhote is brother of deceased Sabir Ali. He stated that his brother Sabir Ali was married to accused Meena Khan. Sessions Case No.56/2008 Page10/50 11 He further stated that as and when he visited the house of Meena Khan, he found Meena Khan and Sabir Ali living in cordial atmosphere. He further stated that Sabir Ali never told any abnormal fact to him about Meena Khan. He further stated that he knows Shamim Barfawala.
PW3 further stated that on 30.10.2006 he came to know that Sabir Ali @ Nanhe had expired. He went to GTB Hospital along with Jabir, Rizwan and many other persons from the locality. There one dead body was shown to them which was completely burnt and he could not identify the said dead body. He further stated that dead body was wearing one bracelet in one hand, all were saying that it was dead body of Sabir Ali @ Nanhe, hence he identified the dead body to be that of Sabir Ali.
PW4 Shamim Begam stated that deceased Sabir Ali @ Nanhe was known to her since he used to study in the school where her children were studying. She had seen Nanhe for the last time about 67 years back (67 years prior to making her statement) at Kotla Firoz Shah. She further stated that she did not know whether Sabir Ali @ Nanhe was dead or alive. She further stated that she did not know any person by the name of Shakir @ Kana.
This witnesses also did not support the prosecution case and was declared hostile. She was crossexamined by the Ld.Addl.P.P. but nothing incriminating could surface on record against the accused Sessions Case No.56/2008 Page11/50 12 persons. She denied the suggestion of the Ld.Addl.P.P. that deceased Sabir Ali had visited her house along with Shakir @ Kana. She also denied the suggestion of the Ld.Addl.P.P. that when she inquired about wife and children of Sabir Ali, he responded that circumstances of his house were not running in proper order and that his wife was trying to obtain divorce. She further denied the suggestion of the Ld.Addl.P.P. that she had served food to Sabir Ali.
PW5 Vakil Ahmed stated that deceased Sabir Ali was known to him being resident of his locality. Sabir Ali @ Nanhe met him last time 56 years ago. (56 years before making his statement). He further stated that he did not know if Sabir Ali was alive or dead.
This witness also did not support the prosecution case and was declared hostile. He was crossexamined by the Ld.Addl.P.P. but nothing incriminating could surface on record against the accused persons. He denied the suggestion of the Ld.Addl.P.P. that deceased Sabir Ali had come to his shop to borrow his motorcycle or that thereafter he had come along with one boy having defect in his eye, to return the motorcycle.
PW6 Dildar Khan stated that Mehfooz Ali @ Bobby was known to him as he was his sister's son. He further stated that he did not know anybody by the name of Sabir Ali @ Nanhey. Police came to him Sessions Case No.56/2008 Page12/50 13 to inquire about a landline phone no.22181631 and he told the police that the said phone was installed at his office. He further told the police that phone number 22183135 was installed at the resident of Mehfooz Ali @ Bobby. He stated that he did not know the mobile number of Mehfooz Ali and he had never talked to Mehfooz Ali on mobile phone. He further stated that he told the police that for the whole month Mehfooz Ali was in Delhi. He further stated that when the police came to his house, Mehfooz Ali had gone to Ajmer Sharif. He further stated that he inquired from the police as to why they were searching for Mehfooz. PW6 further stated that he did not know if any person namely Sabir Ali @ Nanhey was murdered in the night of Deepwali festival last year (one year prior to making this statement) behind Ambedkar College, Delhi. He further stated that Shamim @ Barfwala was not known to him.
PW7 Mohd. Farukh stated that accused Shamim @ Barfwala is known to him as he (PW7) had sold his Santro Car No.DL 6AJ0225 to Shamim in the month of June 2006. He stated that Shamim has paid the entire sale consideration. He further stated that he was having mobile number bearing No. 9310117353, but when he had sold his car to Shamim, he (PW7) was having mobile number 9312800709. He stated that after sale of aforesaid car, he did not talk to Shamim on mobile phone regarding sale purchase of car. He stated that he was a Sessions Case No.56/2008 Page13/50 14 cable operator and he used to talk to Shamim only regarding the cable when wife of Shamim used to make complainant regarding cable.
This witness was declared hostile by the prosecution and was crossexamined by the Ld.Addl.P.P. but nothing incriminating could surface on record against the accused persons. He denied the suggestion of the Ld.Addl.P.P. that sum of Rs.50,000/ were due towards Shamim for the sale of car but when he (PW7) demanded the said amount from Shamim, Shamim told him that he was involved in a murder case of Sabir Ali @ Nanhey and that he was not in Delhi.
PW8 ASI Rakesh Kumari is the Duty Officer. She stated that on 22.10.2006, at about 11.00 a.m. an information was received by her telephonically that a dead body was lying in burnt condition at a place near dustbin near Ambedkar College. She recorded the said information vide DD No.9A and proved the copy of the same as Ex. PW 8/A. She further stated that SI Shiv Charan was informed and as asked to initiate the legal action.
She further stated that on the same day at about 1.30 p.m. Ct. Satpal brought a rukka sent by SI Shiv Charan. On the basis of the said rukka she recorded FIR in this case and proved the copy thereof as Ex.PW8/B. She further stated that the investigation was marked to Insp. Hira Lal. Ct. Praveen was sent to senior officers and Magistrate along Sessions Case No.56/2008 Page14/50 15 with the report.
PW9 Nargis Begam stated that she was having mobile phone bearing No.9999361825 and she was not having any other mobile phone. Prior to this number, she was having a mobile number 9873 having last digits as 2674. She further stated that except this mobile phone, she has not used any other number. She further stated that she was knowing Shamim Barfwala as his children were friends of her children. Wife of Shamim was her friend. She further stated that she did not know if Shamim was having any mobile phone as she had never talked to him on mobile phone.
PW10 Muneer Abbas stated that he did not know any person by the name of Rizwan. He knew accused Mehfooz Ali and Shamim Barfwala. He further stated that he had visited the house of Shamim and also met his brother. Shamim is known as gentleman of the area. He further stated that he had not heard anything about Sabir Ali @ Nanhey. He further stated that he was using mobile phone having number 9911283383. He stated that he had talked to Mehfooz Ali and elder brother of Shamim on mobile phone, but he had not talked to Shamim on his mobile phone. He stated that he did not know if Rizwan, Mehfooz Ali and Shamim remained absconded for considerable time.
This witness was declared hostile by the prosecution and Sessions Case No.56/2008 Page15/50 16 was crossexamined by the Ld.Addl.P.P. but nothing incriminating could surface on record against the accused persons.
PW11 Mohd. Fazil stated that he did not know accused Rizwan and he had not sold anything to him. He stated that he did not know Sabir Ali @ Nanhey. He denied having made any statement before the police.
This witness was declared hostile by the prosecution and was crossexamined by the Ld.Addl.P.P. but nothing incriminating could surface on record against the accused persons. He denied the suggestion of the Ld.Addl.P.P. that he had sold his mobile phone bearing 9350990106 to Rizwan for the sum of Rs.500/.
PW12 SI Mukesh Jain stated that on 31.1.2007, on the asking of Insp. Hira Lal he reached Police Station Shahadra. From there he along with Insp. Hira Lal and Ct.Yogender went to the spot. There at the instance of Ct.Yogender he inspected the site, took measurements and prepared rough notes. On the basis of those rough notes and measurement, he prepared scaled site plan on 1.2.2007. He proved the scaled site plan as Ex. PW 12/A. PW13 SI Dinesh Kumar stated that on 22.10.2006, on receipt of information regarding recovery of dead body near dustbin, Kardampuri, he reached there along with his staff reached at the spot and Sessions Case No.56/2008 Page16/50 17 found a dead body lying there. The dead body was burnt having its face downwards, left hand was free from burn injuries and one bracelet was tied around it with motorcycle embossed over the bracelet. There were chains also in the bracelet. Photographer took photographs of the dead body but no chance prints could be lifted. He proved his report as Ex.PW 13/A. PW14 HC Anil Kumar stated that on 22.10.2006 he had accompanied SI Dinesh Kumar to the spot i.e dustbin behind Ambedkar College, Kardampuri. There a dead body was lying in burnt condition. He took 11 photographs of dead body. He proved the photographs as Ex.PW 14/A1 to Ex.PW 14/A11. He proved the negatives of the photographs as Ex.PW14/B1 to Ex.PW14/B11.
PW15 SI Shiv Charan stated that on 22.10.2006 while he was present near Makki Sarai, near Metro Station, Shahdara, on duty, at about 11.00 a.m. he received telephonic message from Duty Officer regarding dead body lying in burnt condition near a dustbin behind Ambedkar College, Kardampuri, Delhi. He along with Ct. Satpal reached there. There they met Ct.Yogender who told that while on patrolling, he felt some burning smell and reached there. He noticed a dead body lying in burnt condition and gave information to the police station, on phone.
SI Shiv Charan stated that he inspected the dead body. In the Sessions Case No.56/2008 Page17/50 18 mean time SHO, ACP and Insp. Hira Lal also reached there along with staff. Inquires were made from passers by but no clue could be gathered. Left arm of the dead body from below the elbow was not burnt, fist was tightly closed. On the left arm one bracelet was tied around it with motorcycle embossed over the bracelet by metal. There were chains also in the bracelet. It was confirmed that dead body was burnt there, but it could not ascertained as to whether the said man was killed somewhere else. He recorded the rukka Ex.PW15/A under the DD No.9A (Ex.PW8/A) and handed it over to Ct. Satpal for registration of the FIR. After registration of FIR, the investigation as assigned to Insp. Hira Lal. Crime Team reached the spot, dead body was got photographed and then it was sent to mortuary of GTB Hospital. Ct. Satpal was left in mortuary.
PW16 Insp. Raja Ram stated that on 22.10.2006 on receipt of information regarding dead body lying near dustbin behind Ambedkar College, Kardampuri, he reached at the spot where SI Shiv Charan and Ct.Satpal were present. Insp. Hira Lal alongwith ACP Shadara, reached at the spot. He found one dead body lying there in burnt condition. Left arm of the dead body from below the elbow was not burnt, fist was tightly closed, on the left arm one bracelet was tied around it with motorcycle embossed over the bracelet by metal. There were chains also in the bracelet. Crime Team reached the spot. He along with Sessions Case No.56/2008 Page18/50 19 ACP directed the Insp. Hira and SI Shiv Charn to take steps for identification of the dead body and proceed with the investigation of the case after getting the FIR registered.
He stated that on 13.2.2007 accused Mehfooz Ali @ Bobby was arrested from DTC stand Swaran Cinema vide memo Ex.PW16/A and his personal search was conducted vide memo Ex.PW16/B. After completion of investigation, he filed the challan.
PW17 Dr.K.K.Bannerjee conducted postmortem on the dead body of Gulfam @ Nanhe @ Sablir Ali. He stated that the dead body was burnt beyond recognition except for left wrist and hand which had leather strap tied with a chain.
He opined the cause of death was antemortem injuries in the internal organs, brain, skull, produced by missile of fire arm weapon. He proved his report as Ex.PW 17/A. PW18 Ct.Sunita stated that on 10.4.2007 she joined the investigation of this case with Insp.Hira Lal and went to premises No.D32, Hari Enclave, Sultanpuri. Accused Meena Khan was interrogated and arrested in this case vide memo Ex.PW18/A and her personal search was conducted vide memo Ex.PW 18/B. Two mobile phones lying on the bed were seized vide memo Ex.PW18/C. PW19 Kamruddin stated that he knew accused Meena Sessions Case No.56/2008 Page19/50 20 Khan as she was residing in his neighbourhood. He was having family relations with her. He further stated that he did not remember the date, month or year, but it was in year 2007, police came to her house and then went to house of Meena Khan. Insp. Hira Lal and some other officials took Meena Khan to police station. Two mobile phones from the house of Meena Khan were also taken into possession.
PW20 Ct.Yogender stated that on 22.10.2006 at about 10.45 p.m. he was present at Kardampuri while patrolling in the area. When he reached at service road, Kardampuri near MCD Khatta, he sensed bad smell. He saw that a dead body was lying near the wall of Khatta. The dead body was in sitting posture and it was completely charred. Left hand of the dead body was comparatively less burnt, there was one leather belt on the wrist of the dead body tagged with two small chains and metal monogram of a motorcycle. He further stated that he informed the Duty Officer of Police Station Shahdara and the information was recorded vide DD No. 9A. After sometime SI Shiv Charan, Ct.Satpal, Insp. Hira Lal, ASI Yogender, HC Arvind, Ct.Upender and ACP of the area also reached at the spot. The spot was inspected by the senior officials minutely. SI Shiv Charan recorded a rukka and handed it over to Ct.Satyapal for the registration of the FIR. Crime Team was summoned and spot was got photographed. Ct.Satyapal reached the Sessions Case No.56/2008 Page20/50 21 spot along with rukka and copy of FIR and handed it over to Insp. Hira Lal. Insp. Hira Lal prepared site plan his instance.
He further stated that he along with Ct.Upender and HC Arvind were deputed to collect information regarding dead body. They roamed in the area and made inquires from several persons but no clue could be found. Thereafter dead body was taken to GTB Hospital by Ct.Satyapal and SI Shiv Charan.
PW21 Shamim Ahmad stated that on 21.10.2006, he was returning home along with his wife. When he entered Charas Wali Gali, he saw accused Shakir and Sabir Ali were coming from the side of Charas Wali Gali. There were 34 more persons behind them. When he (PW21) entered Charas Wali Gali, at that time accused Shamim Bhagat @ Shamim Burfwala was having his hand on the shoulder of Shakir @ Kana. He further stated that he saw Shamim talking to someone on phone. At that time, accused persons and Sabir Ali were at the distance of 56 yards away from him. He further stated that all the accused persons were known to him prior to the incident. He further stated that accused Shakir @ Kana was residing in his vicinity and he was his friend and used to tell him (PW21) everything. He further stated that the accused persons passed by his side, but did not talk to him. He further stated that he saw Shamim, Shakir and Sabir Ali while other persons Sessions Case No.56/2008 Page21/50 22 were behind them and he could not see their faces.
PW21 further stated that next morning at about 9.00 or 9.30 a.m while leaving for his job, he saw accused Shakir @ Kana standing on the gate of his house. He asked Shakir as to where he was going during night hours last night, but Shakir did not give satisfactory reply. He again questioned Shakir and at that time he (Shakir) was disturbed. Then Shakir took him inside the shop and told that in the previous night, Shamim Bhagat along with others have lifted him (Shakir) and Sabir Ali on the point of weapon. They made Sabir Ali @ Nanehy to alight from the vehicle at main road Kardampuri, after sometime one person brought petrol in a bottle. Shakir further stated that after some time Shamim Bhagat and his associates returned and told that Sabir Ali has been disposed off and they questioned him (Shakir) as to what should be done to him (Shakir). Shamim further stated that Shakir told him that he pleaded before them for mercy. Then they all proceeded towards Jafrabad. On the way police vehicle chased them. Associates of Shamim got him alighted from the vehicle and ran towards Jafrabad and reached Matka Wali Gali, Chauhan Bangar, Delhi. After some time Shamim also reached there. Shamim told him (Shakir) that he was not having any enmity with Shakir and he (Shamim) was having enmity with Sabir Ali and he has been eliminated by them. Shamim directed Shakir not to Sessions Case No.56/2008 Page22/50 23 disclose facts to anyone.
PW21 further stated that he asked Shakir to confirm whether such incident had taken place or not. Shakir then sent Aslam to confirm this fact and Aslam told that someone had been burnt to death. He then advised Shakir to go to the police but Shakir refused. Shakir then told him that he would talk to his family members. After 23 days he came to know that family members of Shakir had consulted some Advocate and have made compliant to Police Commissioner of Delhi.
PW21 further stated that after some days police came to his house. He stated that in the morning he went to the police station Shahadra. He stated that he had gone to the police station after 1011 days of Dewali festival. There he met the police officials and gave in writing the facts told to him by Shakir and he requested the police not make him witness in this case. On the next day he again went to the police station and at that time, Shakir was also present in the police. He was allowed to go but Shakir was detained. Next day he came to know that Shakir, Nasir and Anwar have been arrested by the police.
After one month, Asif Mullaji came to him and told that Shamim wanted to talk to him. Asif dialed the phone of Shamim and gave it to him to talk. He assured Shamim that he would not cause any harm to him.
Sessions Case No.56/2008 Page23/50 24
He further stated that he was asked to identify Shamim in the TIP proceeding and he identified Shamim. On that day during the night time when he was going to fetch milk, Babar brother of Shamim Bhagat met him and threatened him. They took him to an office of Sh.C.M.Arif Advocate where Babar forced him to write a letter stating therein that he (Shamim Ahmed) was forced to identify Shamim Burfwala by the police in the TIP proceedings and the said complaint was sent through fax to various authorities. Babar and his associates also threatened to eliminate him. He made call to PCR. PCR came and he went to police station and lodged a complaint. While coming out of the police station, he met his father and many other persons. They took him to the house of Shamim Bhagti Ji and he was forced to write a complaint. After some time he received letter from Public Grievance Cell and he told them that he was forced to write the said letter.
PW21 further stated that Babar and his associates came to him and brought him to Karkardooma Courts and asked him to finish the case. They obtained his signatures on a complaint. Thereafter his relations, every notorious of UP approached him in favour of accused. Muneer and Nagris approached him and offered him money.
PW21 further stated that Sabir @ Nanhey was known to him. He was called in the police station and shown photograph of a hand. Sessions Case No.56/2008 Page24/50 25 He identified the hand with the wrist watch to be that of Sabir Ali @ Nanhey. He further stated that he had seen Sabir Ali @ Nanhey wearing bracelet/wrist watch. He further stated that Sabir Ali used to visit Shakir @ Kana. Probably there was matrimonial discord between Sabir Ali and his wife. He further stated that family members of Shamim Bhagat Ji had criminally intimidated him for his involvement in false cases.
PW22 Sh.R.K.Singh Nodal Officer, produced subscribed copy of the phone call details of mobile number 9818367024 of Shamim along with ID proof i.e. copy of ration card. He also produced subscribed copy of the phone call details of mobile number 9810960158 of Meena Khan with ID proof i.e. voter Icard which are Ex.PW22/A to PW22/D. He also proved the phone call details of mobile number 9810960158 from 1.10.2008 to 2.11.2006 as Ex.PW 22/E. He stated that the original record has been destroyed.
He also proved the phone call details of mobile number 9818367024 from 1.10.2008 to 1.11.2006 as Ex.PW 22/F. He stated that the original record has been destroyed.
PW23 Dhreeu Nigam Legal Executive Reliance Communication stated that record pertaining to mobile number 9350990106, 9350113212 and 9313560093 have been destroyed in view of the terms of section 4 (1) of Indian Telegraphs Act 1985 read with sub Sessions Case No.56/2008 Page25/50 26 para 23.18 of Basic License Agreement. He proved the photocopy of the said mobile numbers i.e. 9350990106, 9350113212 and 9313560093 as MarkPW23/A1 to PW23/A10, Mark.PW23/B1 to PW23/B12 and Mark.PW23/C. He stated that there was no certification/seal of the concerned authority on the said call details records.
PW24 Pawan Singh Nodal Officer, Idea Cellular Phone, proved the call details record pertaining to mobile number 9891848724 and 9911657047 as Ex.PW24/A1 to Ex.PW24/A3 and Ex.PW24/B1 to Ex.PW24/B29.
He further stated that as per their record mobile number 9911657047 was registered in the name of Chhote @ Babu and mobile number 9818367024 was registered in the name of Sabir Ali.
PW26 is K.C. Varshney, Assistant Director, Ballistics, FSL Rohini, Delhi. On 28.5.2007 he examined the country made pistol of .315 bore and cartridges. On examination, he found that the country made pistol was in working order. His detailed report in this regard is Ex.PW26/A PW27 is HC Satypal Singh. He deposed that on 22.10.06 he was posted in P.S. Shahdara. He was deputed to look after the dead body in GTB Mortuary. On 30.10.06, Insp. Hira Lal along with some persons comprising of Jakir Ali, Gulfam and Rizwan had come to GTB Sessions Case No.56/2008 Page26/50 27 Hospital Mortuary and identified the dead body of Sabir Ali @ Nane by looking on a patta on the left hand of the deceased. After the postmortem the dead body was handed over to the relatives. The doctor after the postmortem handed over the six pulandas to him along with a wooden box containing viscera of the deceased. The same was handed over by him to the IO Inspector Hira Lal in the Police Station and the same were seized by him vide seizure memo Ex.PW27/A. PW28 is Rupinder Kumar DCP Traffic Central Range, Delhi. He stated that 29.11.2007 he was posted as Addl. DCP North East Distt. He had perused papers comprising of copy of the report submitted u/s 173 Cr.P.C., report of the Ballastic Expert and copies of the other documents including the seizure memo etc. He accorded sanction u/s 39 of the Arms Act for the prosecution of the accused Shamim Ahmed @ Burfwala @ Hajiji @ Bhagat and accused Anwar @ Moglui for having committed an offence punishable u/s 25 of the Arms Act which is Ex. PW28/A and Ex. PW28/B. PW29 is Lady Ct. Nirmla. She has stated that on 10.04.07 she was posted at P.S. Shahdara. Accused Meena Khan was already in custody. She was interrogated in her presence by Insp Heera lal. At that time HC Arvind and ASI Yogender were also present. Whatever was stated by accused Meena Khan was recorded by the IO in the disclosure Sessions Case No.56/2008 Page27/50 28 statement Ex. PW25/A10.
PW30 is V.R.Anand Sr.Scientific Officer. Ballistic FSL Rohini. He had examined the country made pistol of .315 inch bore and the cartridges The country made pistol was in working order and test fire was conducted successfully. His detailed report is Ex.PW30/A. PW31 is Dr. Rajpal from GTB Hospital, Delhi. He deposed that on 30.10.06 he was posted as Head of the Deptt. of Radiology. On that day Dr.Barkha Gupta Sr.Resident of Forensic Medicine Deptt. had come to him and apprised him that a body has been found in a charred condition and there is suspicion of foul play including fire arm injury. He advised for portable Xray examination of this case. Accordingly, the Xray was done and the report was made by Dr. Ali Senior Resident Deptt. of Radiology and was working under him, who opined that 'metallic density suggestive of bullet is noted in the abdomen'. The report is Ex. PW31/A which was signed by Dr. Ali. The Xray plates are Ex.PW31/B. PW33 is Insp. Hira Lal. He deposed that on 22.10.2006 he was posted at police station Shahdara. On that day in the morning at about 11.30 am, a DD No 9A was recorded in the police station and the contents of the same was told to him by ASI Rakesh Kumari, Duty Officer. Accordingly, he reached the spot at Ganda Nala, Kardampuri. Sessions Case No.56/2008 Page28/50 29 SHO Raja Ram also met him at the spot along with SI Shiv Charan to whom the DD No. 9A (Ex. PW8/A) was marked. He also met Ct. Yogender and Ct. Satpal at the spot. ACP Shahdara also reached the spot. He had seen a burnt dead body lying in the Khata. The head of the dead body was towards the South direction and the back was towards North direction. The dead body was completely burnt except the left hand below elbow which was partially burnt. One leather strap was tied alongwith two small chains. There was a metal tied to the leather strap which was having mark of motorcycle. The Crime Team had also reached the spot. Photographer HC Anil had taken photographs from different angles. SI Dinesh Kumar who was the incharge of the crime team prepared the scene of crime report and the same was handed over to him. The report is Ex. PW13/A. IO SI Shiv Charan prepared a rukka and the present case was got registered through Ct. Satpal. The case was handed over to him for investigation.
PW33 further stated that he directed SI Shiv Charan to take the dead body to GTB Hospital Mortuary for the purpose of preserving the dead body for 72 hours as the body was unidentified. He made efforts for identification of the dead body from the neighboring areas but the dead body could not be identified. Efforts were also made to trace the identity of the dead body from the missing persons squad. He got issued Sessions Case No.56/2008 Page29/50 30 hue and cry notice displaying the left forearm which was containing the leather strap.
PW33 further stated that on 29.10.2006, ASI Yogender and HC Arvind were present in the area of Chauhan Bangar carrying with them the hue and cry notice. One Rizwan met the above mentioned police officials and told them that he could identify the dead body through the leather strap which he had seen earlier. He had also told the police officers that the said leather strap was gifted by him to one Sabir Ali @ Nannhe and that Sabir Ali was his neighbor. One Jabbar and Gulfam who were the brothers of the deceased Sabir Ali @ Nannhe also met the above mentioned police officers i.e ASI Yogender and HC Arvind. Jabbar and Gulfam informed them that their brother Sabir Ali has been missing for over a week.
PW33 further stated that on 30.10.2006, Jabbar, Gulfam and Rizwan were called to Police Station Shahdara. All of them were taken to the GTB Hospital Mortuary and they identified the dead body being that of Sabir Ali @ Nannhe. He had recorded the identification statement of the witnesses which are Ex.PW1/A and Ex. PW1/B. The postmortem of the dead body was got conducted vide Ex. PW17/A. He had completed the inquest proceedings and filled up the form 25.35.1(B) which is Ex. PW33/A. He had made a request for conducting the postmortem vide Sessions Case No.56/2008 Page30/50 31 Ex.PW33/B. He had given a document describing the list of queries for the purpose of postmortem vide Ex. PW33/C. The postmortem was conducted in his presence and a bullet lead was handed over to him by the autopsy surgeon which was seized by him vide seizure memo Ex. PW27/A alleged to have been recovered during the postmortem from the dead body. The wife of the deceased i.e Meena Khan was present in the hospital at the time of postmortem.
PW33 further stated that on 31.10.2006, Jabbar, Gulfam and Rizwan were called to P.S. Shahdara. Meena Khan had also come to the Police Station. He recorded the statement of prosecution witnesses. After interrogation of these persons namely Jabbar, Gulfam, Rizwan and Meena Khan it was revealed that deceased Sabir ali @ Nannhe was having enmity with one Shamim @ Burfwala. Meena Khan had also raised suspicion that her husband Sabir Ali @ Nannhe was murdered by Shamim @ Burfwala. Meena Khan could not give satisfactory explanation of all the queries that were put to her.
PW33 further stated that on 07.11.2006, he alongwith ASI Yogender, HC Arvind and Ct. Upender were making efforts to search for the other accused persons. When they all reached near Durga Puri Chowk police post, a secret informer met him and informed that one person who was having a defective eye was present near Hanuman Sessions Case No.56/2008 Page31/50 32 Mandir, Loni Chowk and whose name was Shakir was involved in the present murder case and if a raid was carried out he could be apprehended. When they all reached Hanuman Mandir, Loni Chowk accused Shakir was apprehended at the pointing out of the secret informer. Accused Shakir was interrogated and arrested vide arrest memo Ex. PW25/V and his personal search was conducted vide memo Ex.PW25/W. The accused had also made a disclosure statement which was recorded vide memo Ex. PW25/A. The accused Shakir disclosed that two of his associates namely Anwar @ Mogli and Nasir @ Chiballa would meet him near Gagan Cinema, Nand Nagri at about 1.30 P.M. Accordingly, the police party alongwith accused Shakir @ Kana reached near Gagan Cinema, Nand Nagri and at the pointing out of accused Shakir, accused Anwar @ Mogli was apprehended by him with the assistance of HC Arvind and accused Nasir @ Chiballa was apprehended by ASI Yogender. Accused Anwar @ Mogli was found to be in possession of a desi katta alongwith one live cartridge. Accused Anwar @ Mogli was arrested vide arrest memo Ex. PW25/D and he was personally searched vide memo Ex. PW 25/E. The recovery memo was written vide Ex. PW 25/C. He had also made the sketch of the recovered case property vide Ex. PW 25/B. His disclosure statement was recorded vide memo Ex. PW 25/H. (Accused Anwar @ Mogli is dead) Sessions Case No.56/2008 Page32/50 33 PW33 further stated hat accused Nasir @ Chiballa was arrested vide arrest memo Ex. PW25/F and he was personally searched vide memo Ex. PW 25/G. His disclosure statement was recorded vide memo Ex. PW 25/I. The accused persons were brought to PS Shahdara. He recorded the statement of the witnesses and the case property was deposited in the Malkhana.
PW33 further stated that on 08.11.2006, accused Anwar @ Mogli and Nasir @ Chuballa had again made disclosure statement vide Ex. PW25/L and Ex. PW25/M. In the disclosure statement both the said accused persons revealed that accused Meena Khan had gone to meet Shamim @ Burfwala in Mujaffarnagar on 04.11.2006 and returned back on 05.11.2006.
PW33 further stated that accused Shakir @ Kana had also pointed out the spot of occurrence at Khatta Ganda Nala, Kardampuri on 07.11.2006 vide memo Ex. PW25/J. PW33 further stated that on 21.11.2006 he alongwith the staff had come to Karkardooma court regarding bail application of co accused Nadeem @ Pawa.. Accused Nadeem was hiding behind a parked TSR. He was arrested at about 5.00 p.m. vide arrest memo Ex. PW 25/N and he was personally searched vide memo Ex. PW 25/O. He was taken to the police station and was interrogated. The accused had made a Sessions Case No.56/2008 Page33/50 34 disclosure statement which was recorded vide Ex.PW 25/P. The accused had taken them to the the place of occurrence at Khatta Ganda Nala, Kardampuri and a pointing out memo was prepared in this regard vide Ex. PW25/Q. PW33 stated that on 25.011.2006, he had again joined the investigation of the case alongwith ASI Yogender and HC Arvind. The accused Sameer Alam @ Chotu @ Naved had surrendered in court and he was arrested vide arrest memo Ex.PW 25/R and he was personally searched vide memo Ex.PW25/S. He made a disclosure statement which is Ex.PW 25/T. The accused had taken them to the the place of occurrence at Khatta Ganda Nala, Kardampuri and a pointing out memo was prepared in this regard vide Ex.PW 25/U. PW33 further stated that on 17.01.2007, he alongwith HC Arvind and Ct. Upender had come to Karkardooma Court and accused Rizwan had surrendered int he court and he was arrested vide arrest memo Ex. PW32/B and personal search was carried out vide memo Ex. PW32/A. Accused Rizwan had also made a disclosure statement which is Ex. PW32/C. The accused has taken them to the place of occurrence and pointed out the place vide pointing out memo Ex. PW32/D. PW33 further stated that on 30.11.2006, the exhibits were sent to the FSL, Rohini for expert opinion through Ct. Upender. He Sessions Case No.56/2008 Page34/50 35 recorded statements of witnesses and collected the postmortem report from the GTB Hospital Mortuary. On 02.02.2007, he had filed the charge sheet in the court in respect of some of the accused persons.
PW33 further stated that Insp. Raja Ram had arrested accused Mehfuz Ali while he was on leave and he had carried out the investigation. Accused Shamim @ Burfwala was got declared PO on 15.03.2007.
PW33 further stated that on 17.03.2007, he had joined the investigation of the present case alongwith SHO Raja Ram, ASI Yogender, HC Arvind and Ct. Upender. They were were present in the area of Kardampuri. Accused Shamim @ Burfwala was arrested from Kardampuri Pulia vide arrest memos Ex. PW25/A1 and Ex. PW25/A2. He had made disclosure statement which was recorded vide Ex. PW25/A5. The accused had taken them to the the place of occurrence at Khatta Ganda Nala, Kardampuri and a pointing out memo was prepared in this regard which is Ex. PW25/A6.
PW33 further stated that the accused Shamim @ Burfwala had confessed his guilt and gave a detailed description about the planning and execution of the offence. The accused Shamim @ Burfwala had also disclosed that he can get the weapon of offence and plastic cane recovered from Mujaffar Nagar. The accused Shamim @ Burfwala had Sessions Case No.56/2008 Page35/50 36 made a supplementary disclosure statement which is Ex. PW25/A3. He stated that the disclosure statements were also recorded on 29.03.2007 and 30.03.2007 vide Ex.PW25/A4. On 30.03.2007, accused Shamim @ Burfwala had taken them to his residence at C30, Bank Wali Gali, New Seelampur and he got recovered one country made katta of .315'' bore along with a live cartridge and a cartridge case. Sketch of the same was prepared vide Ex.PW25/A8 and the same was seized vide seizure memo Ex.PW25/A9.The empty plastic cane was seized vide memo Ex. PW25/A7. The case properties were deposited in the Malkhana. (Accused Shamim @ Burfwala is dead) PW33 further stated that on the intervening night of 09/10.04.2007, a secret information was received that accused Meena Khan was present at house No. D32, Hari Enclave, Sultan Puri. He joined the investigation of the present case alongwith ASI Yogender, HC Arvind and Ct. Upender and Lady Ct. Sunita. They all reached there and accused Meena Khan was arrested vide arrest and personal search memos Ex.PW18/A and Ex.PW18/B. The accused Meena Khan also got recovered two mobile phones make Nokia and the same were seized vide seizure memo Ex. PW18/C. PW33 further stated that on 10.04.2007, accused Meena Khan was interrogated in the presence of lady Ct. Nirmala, HC Arvind Sessions Case No.56/2008 Page36/50 37 and ASI Yogender and her disclosure statement was recorded which is Ex. PW25/A10 He prepared the charge sheet in respect of the co accused and the same was filed on 06.05.2007. He had collected the CFSL result and the same were filed in the court by way of supplementary charge sheet.
He had prepared a site plan where the dead body was recovered at the pointing out of Ct. Yogender vide Ex. PW33/D. He had collected the photographs, recorded the statements of witnesses and collected the details of the mobile numbers as mentioned in the application Ex.PW33/H and Ex.PW33/J. He also collected the call details in respect of mobile phone no. 9810960158 from 01.10.2006 to 02.011.2006 which are are Ex. PW22/E. And the call details in respect of mobile phone no. 9818367024 from 01.10.2006 to 01.11.2006 which are Ex. PW22/F and the call details of mobile no. 9891848724 for the period 01.10.2006 to 16.10.2006.
PW25 ASI Yoginder Singh and PW32 ASI Arvind Kumar had joined the investigation of the case with I.O Insp. Hira Lal. They deposed on the same lines as deposed by Insp. Hira Lal and corroborated his testimony on all material points.
PW34 HC Arvind Prasher stated that on 30.10.2006 Insp. Hira Lal deposited with him five sealed pullandas and one viscera. He Sessions Case No.56/2008 Page37/50 38 made entries regarding the same at Srl.No.3345 in the Register No.19. He further stated that on 30.11.2006 vide RC No.140/21 he had sent the viscera to FSL Rohini through Ct. Upender.
He further stated that on 7.11.2006 one sealed pullands was deposited by Insp. Hira Lal and and he made entires in this regard at Srl. No.3350 On 30.11.2006, the above said pullandas was sent to CFSL Rohini through Ct. Upender vide RC No.139/21. On 14.8.2007 Ct. Upender had deposited two parcels in the malkhana.
He stated that on 30.3.2007 Insp. Hira Lal deposited one sealed pullanda one cane duly sealed. He made entries regarding the same at Srl. No. 2427. On 28.5.2007 vide RC No.73/21 a pullandas was sent to FSL Rohini along with postmortem report. On 22.11.2007, Ct.Vinod had deposited the case property and the result in the malkhana.
He further stated that on 10.4.2007, Insp. Hira Lal deposited with him, a sealed pullanda and he made entries regarding the same at Srl. No.2441.
PW34 proved the photocopies of all the relevant entires as Ex. PW 34/A, photocopy of RC No. 73/21 is Ex. PW 34/B, photocopy of the RC No.139/21 is Ex. PW 34/C, and photocopy of the RC No.140/21 as Ex.PW 34/D. Statements of accused persons were recorded under section Sessions Case No.56/2008 Page38/50 39 313 Cr.P.C. All the accused persons denied the allegations against them and stated that they have been falsely implicated in this case and that they had no connection with the alleged offence.
Accused Meena Khan stated that she had made a complaint to Joint C.P. New Delhi, against Insp.Hira Lal and HC Arvind regarding illegally taking Rs.80,000/ from her house along with one mobile phone. After the complaint they returned the said money to her but she was falsely implicated in this case due to this reason. She further stated that no mobile phone was recovered by the police at her instance, but the same have been planted on her because she has made complainant against the police.
Accused Shakir @ Kana and accused Meena Khan preferred to lead defence evidence.
Accused Shakir @ Kana examined DW1 Mohd. Aslam.
DW1 Mohd Aslam stated that he knew accused Shakir as he had been working with him for 78 years. He stated that he had worked in the shop of Shakir for two days i.e. 21.10.2006 and 22.10.2006. Accused Shakir did not go out of the workshop in these two days as there was heavy work of Diwali festival.
Accused Meena Khan examined DW2 HC Pramod Kumar. DW2 HC Pramod Kumar produced record from the office Sessions Case No.56/2008 Page39/50 40 of Joint C.P. New Delhi Range. He stated that on 8.11.2006 one complaint of Meena Khan was received in the office of Joint C.P. New Delhi Range. It was directed by Joint C.P. to the DCP North East to look into the matter and take proper action on the complaint of Meena Khan. DCP North East conducted the inquiry and placed the report before Joint CP, New Delhi Range. Joint C.P. made his own comments on the complaint of Meena Khan dated 8.11.2006. The complete file is proved as Ex. DW 1/A. I have heard Sh.Atul Kumar Srivastava Addl.P.P. for the State and Ld.Counsels for the accused persons.
I have also gone through the case file and the case laws relied upon by the Ld.Counsel for the accused persons.
In this case prosecution has examined as many as 34 witnesses. The scrutiny of the prosecution evidence reveals that in the present case there is no direct evidence and prosecution case rests upon circumstantial evidence.
It was submitted on behalf of the State that the deceased Sabir Ali was last seen with the accused persons by PW21 Shamim Ahmed on 21.10.2006.
It was further submitted on behalf of the State that accused Shakir made extra judicial confession before PW21 Shamim Ahmed. It Sessions Case No.56/2008 Page40/50 41 was submitted that accused Shakir had disclosed the entire story before PW21.
It was further the submission of State that accused Meena Khan was having illicit relations with accused Shamim @ Burfwala. Therefore, she in connivance with accused Shamim @ Burfwala and other accused persons, got Sabir Ali murdered. It was submitted that call details of the mobile phones of the accused persons, collected by the police prove the fact that accused Meena Khan was in contact with accused Shamim @ Burfwala.
It was further contented by Ld.Addl.P.P. that all the accused persons in connivance, have committed the murder of Sabir Ali @ Nanhey and thereafter they had burnt the dead body of Sabir Ali in order to cause the disappearance of the evidence against them.
On the other hand it was submitted by Ld. Counsels for the accused persons that the accused have been falsely implicated. It was submitted that all the public witnesses have turned hostile and have not supported the prosecution case.
It was further submitted that the witness of the last seen and extra judicial confession were introduced later on in order to work out the blind murder case.
It was submitted by Ld. Counsels for the accused persons Sessions Case No.56/2008 Page41/50 42 that in this case there was no extra judicial confession ever made by the accused Shakir. There was no question of accused Shakir making extra judicial confession to the said witness i.e PW21.
It was further submitted by Ld Addl. P.P. for the State that deceased was lastly seen in the company of the accused persons on 21.10.2006.
On the other hand, it was further submitted that as per version of prosecution the deceased was seen by PW21 Shamim Ahamd in the company of accused persons but he did not tell anything to the police. He went to the police station after 1011 days. He did not tell police about the confession made by the accused Shakir.
In this case the prosecution has based its case on i) last seen evidence, ii) extra judicial confession & iii) motive. Last Seen Evidence :
PW21 Shamim Ahmed is a witness of last seen. As discussed above, he has seen the deceased Sabir Ali in the company of the accused persons in the evening of 21.10.2006. As per the case of prosecution Sabir Ali was murdered on the night intervening 21.10.2006 and 22.10.2006.
It is important to note that PW21 Shamim Ahmed did not tell the fact that before the murder of Sabir Ali he had seen Sabir Ali in Sessions Case No.56/2008 Page42/50 43 the company of accused persons. He did not disclose this fact neither to the police nor to the family of deceased. He has stated that he went to the police after 1011 days of the incident and disclosed the fact of last seen to the police.
Now, the question is that whether in such circumstances, the testimony of PW21 Shamim Ahmed can be believed regarding the last seen evidence.
In a judgment of Hon'ble High Court of Delhi which is reported as 2001 (1) JCC (Delhi) 115 it was held that the witness evidencing to have last seen the deceased in the company of accused persons did not inform the police and the relations of deceased and kept mum of 18 days, such a evidence is liable to be discarded and cannot be believed.
In the present case PW21 Shamim Ahmed kept mum for 1011 days and therefore, his testimony cannot be believed in view of 2001 (1) JCC (Delhi) 115 (supra ).
Extra Judicial Confession :
As per prosecution case the accused Shakir @ Kana has made extra judicial confession before PW21 Shamim Ahmed regarding the involvement of the coaccused in the murder of Sabir Ali. It is important to note that in the said extra judicial confession, he has not Sessions Case No.56/2008 Page43/50 44 implicated himself rather he has implicated the coaccused in the murder of Sabir Ali. Even if for the sake of arguments, it is assumed that accused Shakir @ Kana has made extra judicial confession, the question is that whether this extra judicial confession can be made basis of convicting the accused persons.
It was held by the Supreme Court of India a case reported as 1988 (3) RCR (Criminal) 555 that extra judicial confession is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom is made.
It was held by Supreme Court in case titled as Dwarkadas Gehanmal Vs. State of Gujrat 1999(1) RCR (Criminal) SC186 that when the accused made confession to a witness, the witness did not render any help to the accused and also did not disclose the fact to anybody for five days, conduct of witness cannot be said to be consistent with conduct of an ordinary human being. As such, conviction based on extra judicial confession in the absence of direct evidence is not safe.
In a case reported as Joginder Singh Vs. State of Punjab 1999 (3) RCR (Criminal) ( Pb. & Hr.) 270, it was held that extra judicial confession made by accused to a person who was not in authority and could not render assistance to accused, testimony of said person cannot be believed. It was further held that confession made to a person Sessions Case No.56/2008 Page44/50 45 who was of no assistance to accused cannot be believed.
It was held by the Supreme Court of India in a case reported as Balbir Singh Vs. State of Punjab 1999 (4) RCR (Criminal) SC 51 that Extra Judicial confession even if believed is a very weak piece of evidence and ordinarily not accepted without independent corroboration.
It was held by Hon'ble Supreme Court of India in a case reported as State of Punjab Vs. Gurdeep Singh 1999(4) RCR (Criminal)SC75 that confession in normal course of events are made to avoid harassment by Police and to a person who could otherwise protect the accused against harassment.
In the case of Udiya Vs. State of Rajasthan 1997 Cri.L.J. 516, it was held by the Hon'ble Rajasthan High Court that prosecution relying on extra judicial confession of accused which was allegedly made by him in presence of witnesses including the first informer. Alleged version was not found in FIR so the rejection of evidence of extra judicial confession was proper.
The Hon'ble Supreme Court of India in case reported as Jaspal Singh Pali etc Vs. State of Punjab 1996 (4) Crimes 74(SC) has held that Extra judicial confession is found not safe when there was no reason as to why accused reposed confidence in witness.
The Hon'ble Supreme Court of India in case reported as Sessions Case No.56/2008 Page45/50 46 1997 (2) RCR 702 has observed that when the accused had no reason to go to witness and confesses the guilt by reposing confidence in him , it is not safe to rely upon the extra judicial confession and to convict the accused on the basis of the same.
In a case titled as Jagtar Singh @ Jagraj Singh Vs. State of Punjab 1998(3) RCR ( Criminal )517 it was held in a murder case based on circumstantial evidence, where the version of prosecution is that the accused made confession before close relative of deceased. Normally one could confess before a person in authority or someone close to him so that the said person may be able to render some help. Confession of accused before close relation of deceased could not possibly render the accused any help and it is not a strong piece of evidence which could led to conviction.
In a case reported as 1996(2) Crimes 538 it was held by Hon'ble Gujrat High Court that in the absence of any other dependable substantive evidence, extra judicial confession is the weakest evidence and it can be taken into consideration only as corroborative piece of evidence.
The Hon'ble Bombay High Court in a case reported as Hirdanbai and others Vs. State of Maharathtra 1996 CRI.L.J.2585 has held that extra judicial confession of accused was of no consequence Sessions Case No.56/2008 Page46/50 47 in absence of corroboratory evidence.
In case reported as 2009 (3) JCC 2337 Sanjay Vs. State, it was held by the Hon'ble Delhi High Court that Extra judicial confession, when is on the face of it a weak piece of evidence and in absence of corroboration of material particulars, Rule of caution demands that it should be not relied upon.
In the present case PW21 Shamim Ahmed was not in authority nor he was in such a position that he could have rendered some help to the accused Shakir @ Kana, so in my opinion, there was occasion for Shakir @ Kana to make extrajudicial confession before PW21 Shamim Ahmed.
Therefore, in view of the above discussed case law, in my opinion the accused Shakir @ Kana could not have made Extra Judicial confession as alleged by the prosecution and the same cannot be relied upon.
Motive :
As per prosecution case accused Meena Khan was having illicit relations with accused Shamim Burfwala and this relation was not liked by the husband of Meena Khan i.e. deceased Sabir Ali. As per prosecution case accused Meena Khan had the motive to eliminate Sabir Ali. She in conspiracy with accused persons committed the murder of Sessions Case No.56/2008 Page47/50 48 Sabir Ali.
In this case the brothers of the deceased Sabir Ali have been examined as witnesses by the prosecution. But they have not supported the prosecution case. They have deposed that there was no dispute between Meena Khan and deceased Sabir Ali. They have stated that Meena Khan and deceased Sabir Ali were living happily. Therefore, under these circumstances the alleged motive on the part of accused Meena Khan for getting Sabir Ali murdered has not been proved.
In a case reported as State of U.P Vs. Ashok Kumar Srivstava (1992 Crl.L.J.1104 it was held that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
The Hon'ble Supreme court in a case titled as State of Goa Vs. Sanjay Thakran and Anr 2007 (2) Crimes 294 (SC), held that, it is well settled proposition of law that when a prosecution case rests upon the circumstantial evidence, such evidence must satisfy following tests:
(i) the circumstances from which an inference of guilt is Sessions Case No.56/2008 Page48/50 49 sought to be drawn, must be cogently and firstly established.
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
(iii) 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
(iv) 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 the present case the public witnesses have not supported the prosecution case. The dead body has also not been identified properly. The prosecution has failed to prove last seen theory, extra judicial confession and the motive. The prosecution has not been able to fulfill the conditions and the test as laid down in State of U.P Vs. Ashok Kumar Srivstava (1992 Crl.L.J.1104 & State of Goa Vs. Sanjay Thakran and Anr 2007 (2) Crimes 294 (SC) (supra).
Accordingly, all the accused persons are acquitted for the Sessions Case No.56/2008 Page49/50 50 offences charged with. The accused Samir Alam who is in judicial custody be released from the custody forthwith if he is not wanted in any other case.
The bail bonds of other accused persons are cancelled. Their sureties are discharged.
The file be consigned to record room with option to the prosecution to revive the same, as and when accused Nasir (proclaimed offender) is arrested.
Announced in Open Court on 24th December 2011 (Surinder Kumar Sharma ) Addl. Sessions Judge/North East KKD, Delhi.
Sessions Case No.56/2008 Page50/50