Delhi District Court
9 vs . on 7 April, 2014
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE -02, NORTH DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 26/12
FIR No. : 67/11
P.S. : Aman Vihar
U/s : 302/377 IPC
Date of registration : 14-07-2011
Reserved for Judgment on: 27-03-2014
Judgment Announced on : 07-04-2014
State
Vs.
Shahdab S/o Sh. Matloob
R/o Village Rawatpur, P.S. Kath,
District Shahajahpur, U.P.
JUDGMENT
1. Briefly stated the present case was registered on the basis of the statement of complainant Moinkhan @ Ballu S/o Sh. Bashir Khan. According to the prosecution on 11-03-2011, at about 9:00 p.m. complainant alongwith his children and his elder brother Rahis was present in his house. Accused Shahdab who was known to the complainant also visited his house and they all ate and drank together. The younger son of the complainant viz. Sahil demanded bread but the complainant refused him by saying that they had already taken dinner and asked his son to take the bread on the next day. But Sahil his son kept on insisting for the bread. On this complainant, sent his elder son Sameer to purchase the bread from the nearby shop of one Lucky. According to the complainant Shahdab (accused) also followed Sameer (deceased). After waiting for a long time when Sameer did not return, complaint went outside in his search. At that time Sessions Case No: 26/12 Page 1 of 53 2 the shop was closed so the complainant went to the factory of Shahdab where he used to work, in search of Sameer but Shahdab was not found there.
2. According to the complainant when he returned home his brother Rahis told him that Shahdab came to the house and there were drops of blood on his face and neck. His knees and pant were also mud stained. Rahis further told the complainant that when he asked Shahdab about that, he got perturbed and told him that he had a quarrel with someone and after making excuse he left.
3. According to the complainant, they searched for Sameer but he could not be found and accused Shahdab was also missing. Next morning, complainant inquired from shopkeeper Lucky, who told him that in the night at about 9:00 p.m Sameer came to his Shop with Shahdab who purchased chips of Rs. 5/- for Sameer and took Sameer with him. On this complainant got suspicious about Shahdab and he again visited the factory of Shahdab where Shahdab met him, but did not talk to him properly. When complainant asked him about the quarrel he also could not tell anything about the quarrel.
4. According to the complainant, when he asked Shahdab that he would be confronted with Lucky, accused started begging pardon after holding the legs of complainant and told that he had murdered Sameer in the night itself. Accused took them towards the vacant plot in front of the ration shop where the complainant found the dead body of his son Sameer. His pant was down and he was half bare. Blood and mud was also found on the face of Sameer and blood was scattered there and his head was brutally injured. According to the complainant many Sessions Case No: 26/12 Page 2 of 53 3 persons gathered there and some persons from the mob gave beatings to Shahdab and some people of the locality also tried to save him. Hanif, brother of the complainant made a call to the police.
5. F.I.R. bearing No. 67/11, was registered at P.S. Aman Vihar and investigation went underway. During the course of investigation accused was arrested. After completion of investigation final report u/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
6. On 25-08-2011, a charge U/s 377/302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
7. In order to prove the guilt of the accused, the prosecution examined as many as 20 witnesses.
8. PW 1 Mohd. Moin Khan @ Ballu, PW 11 Hanif, PW 14 Rahis Khan and PW 18 Sumit @ Lucky are the material public witnesses and I will discuss their testimonies in the later part of the judgment.
9. PW 2 ASI Ramesh Kumar is the duty officer. He proved on record copy of DD No. 14-A as Ex. PW 2/A; computer generated copy of the FIR as Ex. PW 2/B; his endorsement on the rukka as Ex. PW 2/C; copy of DD No. 19 A as Ex. PW 2/D; copy of DD No. 20 A as Ex. PW 2/E and copy of DD No. 15 A as Ex. PW 2/F.
10. PW 3 Ct. Harish Kumar is the photographer of the crime team. He visited the spot on 12-3-2011 alongwith the crime team and took 18 photographs from different corner and Sessions Case No: 26/12 Page 3 of 53 4 directions. He proved on record the photographs as Ex. PW 3/A- 1 to Ex. PW 3/A-18. He also proved on record the negatives of the photographs as Ex. PW 3/B-1 to Ex. PW 3/B-18.
11. PW 4 SI Manohar Lal is the draftsman. On 01-04-2011, he visited the spot and took the measurement and prepared rough notes and on the basis of the same he prepared the scaled site plan on 2-4-2011, which he proved as Ex. PW 4/A.
12. PW 5 SI Vishesh Kumar is the in-charge crime team. He visited the spot on 12-3-2011, inspected the scene of crime and prepared his SOS visit Report which he proved on record as Ex. PW 5/A.
13. PW 6 is constable Om Prakash Yadav who on 12-03- 2011, feed the contents of the rukka in the computer and the computer generated the copy of the FIR Ex.PW 2/A. He further deposed that he had issued the certificate U/s 65 (B) of the Evidence Act regarding the correctness and genuineness of the computer generated record. He proved on record the said certificate as Ex. PW 6/A.
14. PW 7 Dr. Manoj Dhingra alongwith Dr. Deepak Shamra had conducted the postmortem on the body of Sameer on 13-3- 2011. He proved on record his detailed PM report as Ex. PW 7/A.
15. PW 8 Dr. Binay Kumar examined accused Shahdab on 12-03-2011, vide MLC No. 3733 which he proved on record as Ex. PW 8/A.
16. PW 9 ASI Nand Kishore went to the Mortuary Sanjay Gandhi Hospital on 13-3-2011 alongwith Ct. Madan, IO and the accused. He deposed that after the completion of the inquest proceedings, IO got the postmortem of the dead body of child Sessions Case No: 26/12 Page 4 of 53 5 Sameer done. After the postmortem the dead body was handed over to the father of the deceased and his uncle. Thereafter IO, Ct. Madan and accused went to the court for the purpose of producing the accused in the court concerned and he was directed to receive the exhibits after the postmortem.
17. He further deposed that when IO again returned to the mortuary, he handed over four sealed parcels which were sealed with the seal of Mortuary SGM Hospital and alongwith sample seal which IO seized vide memo Ex. PW 9/A.
18. PW 10 ASI Sajjan Singh remained associated with the IO during the investigation of the case on 12-03-2011. He unfolded the sequence of investigation done by the IO in his presence on 12-03-2011. In his presence IO lifted the exhibits from the spot and seized the same vide seizure memo Ex. PW 10/A. PW 10 is also the witness to the arrest of the accused and in his presence accused was arrested vide arrest memo Ex. Pw 10/B, his personal search was taken vide memo Ex. PW 10/C and accused also made his disclosure statement Ex. PW 10/D and all these documents bears the signature of PW 10 at point A.
19. PW 12 Ct. Manjeet delivered the three envelopes containing copy of FIR to senior officer of police and concerned MM. He also deposed that on 28-04-2011, he collected 13 sealed parcels and two sample seal from HMC(M) vide RC No. 54/21/11 alongwith the FSL form, on the direction of IO and deposited the same in FSL Rohini. He further deposed that after depositing the same he handed over the acknowledgment of depositing of pullnadas in FSL to MHC(M).
20. PW 13 Dr. Dheeraj Gupta conducted the bone ossification test for age estimation on accused Sahadab. He Sessions Case No: 26/12 Page 5 of 53 6 proved on record his detailed report dated 28-5-11 as Ex. PW 13/A.
21. PW 15 Ct. Sanjiv Kumar took the rukka prepared by the IO to the police station for the registration of the case and got the present case registered.
22. PW 16 Ct. Madan Mohan remained associated with the IO during the investigation on 12-03-2011. He narrated about the sequence of investigation done by the IO in his presence on 12-03-2011. PW 16 took accused Shahdab to SGM Hospital alongwith Inspector Naresh Malik and got him medically examined and after his medical examination doctor handed over four sealed pullandas alongwith sample seal and he handed over the MLC and aforesaid exhibits to IO which had been taken into possession vide seizure memo Ex. PW 16/A.
23. PW 17 H.C. Harpool Singh joined the investigation of this case with the IO on 12-03-2011 and again on 13-03-2011. He also deposed about the sequence of investigation done by the IO in his presence on both these dates. On 12-3-2011, the dead body was handed over to PW 17 with the written request for its safe custody at Mortuary SGM Hospital. He got the dead body preserved at Mortuary, SGM Hospital.
24. PW 19 Inspector Naresh Malik is the IO of the case. He unfolded the sequence of investigation done by him and proved on record rukka as Ex. PW 19/A; site plan as Ex. PW 19/B; written request to preserve the dead body at Mortuary SGM Hospital as Ex. PW 19/C; inquest papers as Ex. PW 19/D; request for conducting postmortem as Ex. PW 19/E; brief facts as Ex. PW 19/F; inquest form as Ex. PW 19/G; FSL result dated 11-08-11 and its biological report dated 11-08-11 as Ex. PW Sessions Case No: 26/12 Page 6 of 53 7 19/H and Ex. PW 19/J; DNA finger print report dated 20-04-12 as Ex. PW 19/K (colly.); certificate with regard to investigation done in respect of caller of DD No. 14-A as Ex. PW 19/L; report with regard to the verification of school leaving certificate of accused which was found false and fabricated as Ex. PW 19/M; forged school leaving certificate as Ex. PW 19/N and the report of the Principal of the school Public Adarsh School Shahjahpur as Ex. PW 19/O.
25. PW 20 H.C. Ajit is the MHC (M). He deposed about the depositing of the exhibits of this case in the malkhana and the relevant entries made by him in register No. 19. He proved on record entry at serial No. 84, 84/2 and 85 in register No. 19 as Ex. PW 20/A (Collectvley). He also deposed that on 18-4- 2011, the exhibits alongwith two sample seals except the diary were sent to FSL Rohini through Ct. Manjit vide RC No. 54/21/11 who on return handed over the receipt to him. He brought the original register No. 21 and the receipt and proved the copy of register No. 21 consisting two pages collectively as Ex. PW 20/B and the copy of the receipt as Ex. PW 20/C.
26. After the closing of the prosecution evidence statement of accused U/s 313 Cr.P.C was recorded and all the incriminating evidence was put to him. Accused denied the same and stated that he is innocent and has been falsely implicated in this case. No evidence in defence was led by the accused.
27. I have heard Ld. Addl.PP for the state and Sh. Yogesh Pandey, Ld. Amicus Curiae for the accused and have also gone through the records of the case.
28. It is submitted by the Ld. Addl. PP for the state that the prosecution has been able to establish its case against the Sessions Case No: 26/12 Page 7 of 53 8 accused to the fullest. It is further submitted by the Ld. Addl. PP for the state that the deceased was lastly seen with the accused by PW 18 Sumit @ Lucky and his testimony could not be shaken in the cross examination. It is further submitted by the Ld. Addl. PP for the state that the dead body of master Sameer was recovered at the instance of the accused. It is further submitted by the Ld. Addl. PP for the state that it was for the accused to explain in what circumstances and when he parted company with the deceased and where he left Sameer (since deceased) but nothing has been explained by the accused as all these facts were within his special knowledge and onus was upon him to explain which he failed to discharge. It is further submitted by the Ld. Addl. PP that the accused wanted to commit sodomy with Sameer but he could not do so he killed Sameer.
29. On the other hand, it is submitted by the Ld Amicus Curiae for the accused that there is a huge time gap between the accused and the deceased having been seen together and the recovery of the dead body. It is further urged that the recovery has been planted and the witnesses of the prosecution are not reliable. It is further submitted by the Ld Amicus Curiae that the case is based on circumstantial evidence and for convicting a person on the basis of circumstantial evidence the chain of circumstances should be completed, which is not in this case.
30. The case is based on circumstantial evidence and the law as far as circumstantial evidence has been well settled. The principles of law governing the proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of the Hon'ble Supreme Court available on the issue the said principles can be summed up by stating that not Sessions Case No: 26/12 Page 8 of 53 9 only the prosecution must prove and establish the incriminating circumstance, circumstances against the accused beyond all reasonable doubt but the said circumstances must give rise to only one conclusion to the exclusion of all others, namely, that it is the accused and nobody else who had committed the crime. The above said principles deducible from the 5 principals of law laid down by the Hon' Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116.
31. Now coming to the present case, PW 1, PW 11, PW 14 and PW 18 are the material public witnesses. According to the prosecution the accused and the deceased were lastly seen together at about 9 / 9:30 p.m on 11/3/11 and thereafter Sameer S/o PW 1was found dead. It is to be seen whether the theory of last seen applies in the facts and circumstances of the present case. For this fact the relevant witnesses are PW 1, PW 11, PW 14 and PW 18.
32. PW 1 Mohd. Moin Khan @ Ballu is the father of the deceased. He has deposed that on 11-3-2011 at about 10 p.m. His elder brother Rahis had come to his house where accused was also present and they all were taking meals and drinks. He further deposed that his younger son Sahil demanded bread which was refused by him but his son Sahil insisted, so he sent his elder son Sameer to the shop of Lucky (PW 18) to get the bread. He has further deposed that accused who was present in his house followed his son Sameer Khan and when his son did not return he came out of his house in search of his son.
33. He further deposed that he went to the shop of Lucky but the shop was found locked so he searched his son in the nearby area and thereafter he went to the factory of accused as Sessions Case No: 26/12 Page 9 of 53 10 accused used to take his son some times with him. He further deposed that when he reached the factory of accused Shahadab, he was not found there. So he returned to his house and inquried from his brother Rahis, whether Sameer had returned but his brother Rahis told him that Sameer had not returned but some time ago Shadab had come who was having blood on his face and clay / mud on his knees and legs. He further deposed that his brother Rahis also told him that when he inquired from Shadab about blood and clay/mud then Shahdab told him that he had some quarrel with someone and thereafter accused left.
34. PW 1 has further deposed that they again started searching for Sameer but neither Sameer nor Shahdab could be found. He further deposed that he did not sleep well the whole night and in the morning at about 5 a.m when Lucky opened his shop, he visited the shop and inquired about Sameer. He further deposed that Lucky told him that his son Sameer had come to his shop in the night and immediately thereafter accused Shahdab also reached his shop and he took Sameer in his lap and purchased a packet of chips for Rs. 5/-. He further deposed that accused took Sameer with him.
35. He further deposed that he became suspicious and immediately reached the factory where accused used to work but for some time nobody opened the door. Thereafter one lady came out and after lot of time accused also came out. When he inquired from accused regarding Sameer, accused told him that he left Sameer after purchasing chips. This witness further deposed that accused did not talk with him properly. He further deposed that he told accused Shahadab that his son was missing Sessions Case No: 26/12 Page 10 of 53 11 and Lucky had told him that Sameer was with you and you had purchased chips for him and thereafter you left his shop with Sameer. He further deposed that he also inquired from accused Shahdab about the quarrel about which his brother Rahis had told to him but accused did not give him satisfactory reply.
36. PW 1 further deposed that he told Shahdab that he had instructed his son Sameer not to accompany any stranger and Lucky had told him that you had reached his shop alongwith Sameer and on this accused told him to talk infront of Lucky. PW 1 further deposed that he then alongwith accused Shahdab reached at the shop of Lucky and infront ot accused Shahdab Lucky told that in the night accused Shahdab came alongwith Sameer and thereafter accused Shahdab started weeping and told that he had killed Sameer. PW 1 further deposed that in the meanwhile his brother Hanif also came there and they asked about Sameer. Thereafter accused took them to a vacant plot deep inside the road and there he pointed out towards the dead body of Sameer. Blood and mud was found on the face of dead body of Sameer. Blood was also lying near the dead body and one big stone was also found lying near the dead body.
37. This witness has further deposed that the dead body was not visible from the road. He further deposed that Sameer (since deceased) was wearing a block colour jeans and the same was down till the knee in open condition. Accused was apprehended by Hanif and public persons and accused was beaten; police was informed and the accused was arrested. PW 1 further deposed that on 12-03-11 when he was present at the spot police had shown him one diary and told him that the same was lying Sessions Case No: 26/12 Page 11 of 53 12 near the dead body. He identified the diary as that of Shahdab and the same is Ex. P-2.
38. This witness was cross examined and in his cross examination he stated that his son left for the shop at about 9:45 /10 p.m and he started searching for him after about 20 / 25 minutes. He further deposed that as he was busy in searching Sameer so he could lodge the complaint only in the morning. He further stated that the dead body of Sameer was lying at a distance of 200 / 300 yards from his house. He initially stated that he cannot tell the time when the accused took them to the place where the dead body was lying but said it was around 7 / 7:30 a.m and police arrived at about 10 a.m. He denied the suggestion that his son came back from the shop of Lucky and subsequently he went outside the house and some unknown person committed his murder. He further stated in his cross examination that he had never seen accused writing but he had seen the diary with the accused but he did not know why he used to keep the diary with him. He further deposed that accused used to stitch bags. He denied the suggestion that no diary was recovered near the dead body.
39. PW 11 Hanif is the brother of PW 1. He deposed that in the year 2011, he did not remember the date and month at about 10 p.m his brother Rahis came to his shop and asked him to close the shop. He then told him that son of Moin Khan @ Ballu had gone with accused Shahdab but had not returned. He further deposed that Moin Khan told him that accused had come to his house and he was having some blood on his face and when he inquried from the accused about the blood on his face, accused told him that he had a quarrel with someone and he left.
Sessions Case No: 26/12 Page 12 of 53 1340. He further deposed that the search was made for Sameer but he could not be traced and on the next morning they went to the shop of Lucky. Lucky told his brother that on the previous night accused Shahdab had come to his shop and Sameer was in his lap and accused purchased chips for Sameer and thereafter they left. He further deposed that then they went to the house of Shahdab but accused did not behaved properly and gave evasive replies. He further deposed that thereafter accused was asked to be confronted with Lucky about the presence of Sameer with him but accused bent down on his knees before Moin Khan and apologized that he had murdered Sameer in front of a vacant plot.
41. This witness further deposed that accused led them to the place where the dead body was lying in a pool of blood and the pant was down to the knees. He further deposed that many persons were present there and they gave beatings to the accused. This witness further deposed about the arrest of the accused and identify the case property. PW 11 further deposed that on 12-03-11, when he was present at the spot he observed one diary lying near the dead body which belonged to the accused. He identified the diary and the same is Ex. P-12.
42. He was cross examined and in the cross examination he stated that they had searched for Sameer in the colony and in the houses of their relatives. He further stated that the dead body was lying at a distance of 100 yard from the house of Moin Khan. He further stated that they had not gone to the place where the dead body was lying as there were no houses. He further deposed that Lucky had not told him anything but he told the facts to his brother. He further stated that Lucky had told him Sessions Case No: 26/12 Page 13 of 53 14 that Shahdab had purchased a packet of chips for Sameer. He further stated that accused was residing at the place of his work. He further stated that they knocked the door of the house of accused about an hour but nobody opened the door. He denied the suggestion that he alongwith his brother gave beatings to Shahdab and forced him to admit the murder of Sameer. He denied the suggestion that accused has been falsely implicated. He further stated in the cross examination that he had never seen accused writing and signing. He further stated that he identified the diary as his name and telephone number was written in it. He further stated that the diary was picked up by the IO and he immediately told him that the diary belonged to the accused.
43. PW 14 is Rahis Khan who is also one of the brother of PW 1 and he has deposed that 3-4 days prior to the incident he had come to Delhi to meet his brothers. He further deposed that accused Shahdab was known to his brother Moin Khan and he used to visit his house. He further deposed that on 11-3-11 at about 9 a.m he was present at the house of his brother Moin Khan and his two nephews namely Sahil and Sammer (since deceased) were also present there alongwith accused Shahdab. He further deposed that his nephew Sahil was insisting for bread. So Sameer was sent to fetch bread from the nearby shop of Lucky. He further deposed that accused Shahdab also went after Sameer. He further deposed that when his nephew Sameer did not return, then they went in search of him. He further deposed that accused had met him outside the house and he observed that there was blood on his face and his pant was mud stained from knee. He further deposed that when he inquired Sessions Case No: 26/12 Page 14 of 53 15 from the accused he told that he had a quarrel with someone and went away without saying anything.
44. He further deposed that he called his brother Hanif and told him everything and they all started searching for Sameer but neither Sameer was found nor Shahdab was found that night. He further deposed that in the morning his brother Moin Khan went to the shop of Lucky who told him that accused Shahdab had taken away Sameer after giving him chips packet.
45. He further deposed that his brother Moin Khan and Hanif went to the accused Shahdab and inquired about Sameer but initially the accused did not disclose anything but lateron he disclosed actual facts and also told about the dead body of Sameer. He further deposed that his brother Moin Khan, Hanif and accused were present at the vacant plot where the dead body was lying. He identified the clothes of the deceased and the T-shirt of the accused.
46. This witness was cross examined and in the cross examination he deposed that Sameer had gone to take bread at about 9 / 9:30 p.m and within one or two minutes accused also left. He deposed that his brother Moin Khan left in search of Sameer after about half an hour. He further stated that accused came back to the house of Moin Khan after 10-15 minutes of Moin Khan leaving his house. He further stated that he had not gone in search of Sameer but his brothers Moin Khan and Hanif had gone. He further stated that he had not gone to the shop of Lucky in the morning but had reached the spot at about 8:30/9:00 p.m. He further stated that in his presence the accused had not confessed anything. This witness in his cross examination stated that accused and Moin Khan had taken two Sessions Case No: 26/12 Page 15 of 53 16 pegs of liquor each alongwith dinner and he had also taken liquor at that time.
47. The other material witness is PW 18 Sumit @ Lucky. He deposed that he was running a grocery shop from the plot of one Krishan Pahalwan. On 11-3-11 he was present at his shop and saw accused carrying Sameer elder son of Moin Khan in his lap. He further deposed that accused was having drunk at that time. He further deposed that accused came to his shop and purchased a packet of chips costing Rs. 5/-. He further deposed that thereafter accused alongwith Sameer went towards the main road towards mandir and he closed his shop and went home. He further deposed that on the next morning he opened his shop at about 5:30 a.m. He further deposed that Moin Khan used to come to his shop every morning to purchase bidi but on that day he was disturbed. He further deposed that Moin Khan told him that his son Sameer was missing since night and asked from him about Sameer. He told him the facts of previous night when he had seen Sameer and accused together.
48. He further deposed that he had seen the dead body of Sameer lying in a vacant plot and pant of Sameer was down. He further deposed that accused was pleading pardon form Moin Khan. Accused was beaten by the public. He identified the clothes of accused and the deceased.
49. This witness was cross examined and in his cross examination he stated that he had seen accused and Sameer together at about 9 / 9:30 p.m. He stated that he had not told Moin Khan that he had seen accused in a drunken condition because accused used to drink daily. He further deposed that he had only seen one big stone lying near the dead body and he Sessions Case No: 26/12 Page 16 of 53 17 had seen nothing else. He denied the suggestion that he had not seen accused and deceased together or that nothing was purchased by accused from his shop. Now after discussing the testimonies of the material public witnesses and police officials it is to be seen if the prosecution has been able to prove its charge.
50. The accused has been charged U/s 377/302 IPC. As per the case of the prosecution the accused kidnapped master Sameer in order to commit un-natural sex with him.
51. Section 377 IPC reads as follows :-
"Unnatural Offences.- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".
52. The perusal of the P.M. report which is Ex. PW 7/A shows that no injury was present around anus of deceased Sameer. There is nothing on record in the form of medical evidence to show that traces of semen were found in or around the anus.
53. As per the MLC of the accused his penis scrotum and secondary sexual character were well developed, but in the absence of any injury in the anus of Sameer and no traces of semen having been found in or around anus, it is difficult to say that accused tired to commit sodomy. So the prosecution has failed to prove the charge U/s 377 IPC against the accused. The Sessions Case No: 26/12 Page 17 of 53 18 accused is, therefore, acquitted U/s 377 IPC.
54. LAST SEEN : Before coming to the conclusion whether the deceased and the accused were lastly seen together and if "yes" what is its effect, I may first discuss the law on the subject.
55. The theory of 'last seen together' is one where two persons are 'seen together; alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption as to the person alive being the author of death of the other can be drawn. Time gap should be such as to rule out possibility of somebody else committing the crime. Last seen together principle is one of the latest principles which is taken into consideration in establishing the guilt of the accused. In the absence of eye-witnesses and tangible evidence, it is the last resort of the prosecution in a murder case - the person last seen with the victim is presumed to be the murderer, thus, shifting the onus onto the accused to prove otherwise or come up with an alibi. The foundation of the theory is based on principles of probability and cause and connection. Where a fact has occurred with a series of acts, preceding or accompanying it, it can safely be presumed that the fact was possible as a direct cause of the preceding or accompanying acts, unless there exists a fact which breaks the chain upon which the inference depends.
56. The circumstance of 'last seen together' does not by itself and necessarily lead to the inference that it was the accused who committed the crime ? There must be something more establishing connectivity between the accused and the crime! There may be cases where on account of close proximity of place and time between the event of the accused having been 'last seen' with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.
Sessions Case No: 26/12 Page 18 of 53 1957. In State of Maharashtra v. Suresh, the accused respondent was already an accused in another rape case of an 8 years old girl and got acquitted. He went to the house of deceased Sneha @ Gangu 4 yrs old. The deceased was then playing near the gate of her house. After the respondent left the house, no one in that house had seen Gangu alive. There was evidence that the respondent took Gangu to the shop of Mahadeo, and later to the shop of Motiram, and thereafter to a farm whereon pulses and cotton were cultivated. He chose that venue for sexually ravishing that little child and smothering her to death. The spot was pointed out by the respondent [after his arrest'] wherefrom the dead body of Gangu was traced out. The accused could not give any explanation whatsoever for the injuries on his private parts. The Supreme Court reversed the Lower Courts judgment and convicted the respondent basing on last seen principle as there was other circumstantial and medical evidence.
58. In Joseph s/o Kooveli Poulo v. State of Kerala, the deceased was taken away from the convent by the appellant under a false pretext and she was last seen alive only in his company. On the information furnished by the appellant, the jewels of the deceawsed which were sold by the appellant, were seized. The court had convicted the accused for the offence of murder basing on the last seen together principle but gave the benefit of doubt to the accused for the offence under s. 376 as there was no other incriminating evidence to prove the offence of rape.
59. In Mohibur Rahman and anr. vs. State of Assam, the Apex Court considered three pieces of incriminating circumstantial evidence against the main accused Taijuddin viz., i) the deceased Rahul was last seen in the company of the accused Taijuddin, ii) He gave a false explanation about the whereabouts of the deceased and,
iii) the accused was having knowledge of the dead body cut into two pieces (meaning thereby having died an unnatural death on being Sessions Case No: 26/12 Page 19 of 53 20 subjected to deadly violence) being buried-coupled with the fact of failure on the part of the accused to offer any reasonable explanation of any of the said circumstances - to hold sufficient to fasten the liabiliyt of murder on the accused. The court on the other hand held that merely because the other accused/appellant Mohibir was last seen with the deceased a few unascertainable number of days before the death of the deceased, he cannot be held liable for the offence of having caused the death of the deceased without any further evidence to establish the crime. Therefore, Taijuddin's conviction was upheld and Mohibir was acquitted by the apex court.
60. In State of Goa v. Sanjay Thakran, the deceased couple arrived in Goa from Mumbai for their honeymoon and stayed in a hotel. The couple went for sight-seeing at Ozran, Vagator with PW- 13 Vincent, who was the car driver. He had also taken them for the sight-seeing trip a day earlier as well. However, in the light of the factors that evidence regarding the recovery of the incriminating materials from the accused persons has been discarded; that there has been sufficient time gap between the instances when the accused persons were last seen together with the deceased persons; and in the absence of any other corroborative piece of evidence to complete the chain of circumstances to fasten the guilt on the accused couple, the Apex Court was of the opinion that the accused have been rightly given the benefit of doubt by the courts below. It is interesting to note that the State even on appeal could not prove the case as it merely bases on the last seen together and the other evidence was not convincing.
61. In Ravindra Reddy v. Shaik Masthan and ors., A1, A2 and the deceased were last seen together going on a scooter by PW 9. Later the deceased was found dead. In pursuance of A1's confession, knives were recovered from the house of A-3 apart from seizing the Bajaj scooter from the house of A-1 and A-3. Pursuant to Sessions Case No: 26/12 Page 20 of 53 21 the confession of A-2, shirt and gold chain were recovered. There was also evidence that the accused had purchased the two knives used for the offence. The trial court found the evidence of PW-9 to be cogent and credible and applying the principles of last seen found A-1 and A- 2 guilty. The High Court acquitted the accused but the Supreme Court restored the judgment of the Trial Court as there was additional evidence besides the evidence of last seen together.
62. Shivaji @ Dadya Shankar Alhat v. State of Maharashtra, was a gruesome rape murder case of tiny young girl aged 9 yrs studying 5th class. As the accused, [a B.A., B.Ed., teacher], offered fuel wood, the deceased had gone with him together to the Hills. She was last seen in the company of the deceased and injury on the abdomen and the rope by which the deceased was strangulated were recovered at the instance of the accused and the fact that the accused had absconded and was arrested from a place where he was hiding and the presence of blood on his cloth was a relevant factor. The plea of alibi set up has not been established. Supreme Court speaking through Justice (Dr.) Arijit Pasayal had confirmed death penalty.
63. In Sk. Yusuf v. West Bengal, the Supreme Court has reiterated its observation in State of U.P v. Satish, that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It was held that where there is a long time-gap between 'last seen together' and the crime, and there is the possibility of other persons intervening, it is hazardous to rely on the theory of 'last seen together'. Even if time gap is less and there is no possibility of others intervening, it is safer to look for corroboration.
64. Md. Mannan @ Abdul Manna v. State of Bihar, Sessions Case No: 26/12 Page 21 of 53 22 was another ghastly rape murder case of an 8 yrs old girl. The appellant was working as Mason in the House of Devi Kant Jha, grand-father of deceased (PW-8). He had sent the deceased Kalyani Kumari to the betel-shop to get betel. He had proceeded towards the betel-shop few minutes after the deceased left. He was last seen with the deceased going together on a bicycle. He made a confession leading to the recovery of dead body from a field. The dead body of Kalyani Kumari had injury on the private parts, her nails were munched and there were marks of bruises all over the body. The rape and murder by the appellant on the victim girl has been proved by medical evidence. The Apex Court conceded that it was the 'rarest of the rare' cases and confirmed the death penalty. Interestingly, the judgment of Chandramauli Kr. Prasad, J., quoted no judicial precedents at all.
65. Rajendra Pralhadrao Wasnik v. The State of Maharashtra, was yet another brutal, gruesome rape murder case of a 3 year old girl. The accused had taken the victim Vandana from her home on the pretext of purchasing her biscuits. Neither Vandana nor the accused returned to the house. The accused was seen with the deceased at the bus stand. Thereafter, the nude body of Vandana was found in the field, the next day. The Apex Court held that on the basis of the 'last seen together; theory and other direct and circumstantial evidence, the prosecution has been able to establish its case beyond any reasonable doubt. The Court opined that the accused had committed the crime in the most brutal manner and, thereafter, he opted not to explain any circumstances and just look up the plea of false implication, which is unbelievable and unsustainable. The Court found no justifiable reason to interfere with the judgment of the High Court confirming the death penalty. Thus, the Courts have been requiring the accused to explain any intervening fact after the last seen together with the deceased whenever there was medical or other evidence corroborating with the last seen together.
Sessions Case No: 26/12 Page 22 of 53 2366. In Shanmughan v. State of Kerala, the victim Raji was sleeping on the fateful day in the bed room with her husband- the appellant. There was evidence of mal-treatment of the deceased by the appellant. Nobody was present in the bed room where the appellant and the deceased were sleeping as husband and wife. The victim admittedly screamed at about 2 a.m. That attracted the inmates of the house to rush to the bed room to find the victim dead as a result of administering of poison. This was not in dispute. The victim died of cyanide poison which is a highly corrosive poison. The presence of lacerated wounds on the lips, contusions in the ear and abrasions in the chest clearly show that some force was used while administering the poison. Without any force these injuries could not be there in a case of suicidal poison. The injuries were fresh injuries and cannot be sustained by fall on a hard substance. PW-7 also deposed that the injuries could be because of forcible administration of poison. At the time of his statement under Section 313 CrPC also, the attention of the accused - appellant was specifically drawn by the trial court to the injuries on the deceased. To that the appellant did not give any answer. Therefore, taking all these facts and also the concurrent findings of the two courts, the Supreme Court was not inclined to interfere in the appeal. The appeal was accordingly dismissed.
67. In Shyamal Ghosh v. State of West Bengal, there were eye-witnesses who had seen the scuffling between the deceased and the accused on demand of money and the strangulation of the deceased by the accused persons and also the loading of the mutilated body parts of the deceased contained in gunny bags into Maruti Van. Evidence establishing the 'last seen together' theory and the fact that after altercation and strangulation of the deceased which was witnessed by PW8, PW17 and PW19, the body of the deceased was recovered in pieces in presence of the witnesses, have been fully established. To a very limited extent, it is a case of circumstantial Sessions Case No: 26/12 Page 23 of 53 24 evidence and the prosecution has proved the complete chain of events. The gap between the time when the accused persons were last seen with the deceased and the discovery of his mutilated body was quite small and the possible inference would be that the accused are responsible for commission of the murder of the deceased. Once the last seen theory comes into play, the onus was on the accused to explain as to what happened to the deceased after they were together seen alive. The accused persons have failed to render any reasonable/plausible explanation in this regard and were therefore held liable.
68. In Jagroop Singh v. State of Punjab, the accused Jagsir Singh took the deceased Jagjit Singh @ Jagga, 10 year old boy, to accompany him for plucking flowers from the field. The boy accompanied him and did not return home. He was last seen with the accused persons; the accused had made extra-judicial confessions; the dead body of the deceased was recovered from the field of the father of the accused; the weapon used in the crime was also recovered on the basis of the confession; the report of Forensic Science Laboratory, the weapon used, spade, was found stained with human blood; and the post mortem report clearly stated that the injuries found on the body of the deceased could be caused by the seized weapon..... the accused could not give any explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial. Thus, the Court convicted the accused basing on last seen principle besides other corroborating evidence.
69. In Kulvinder Singh & Anr. v. State of Haryana, as both the appellants had been seen immediately before the occurrence at the place of occurrence and the deceased had come there shortly thereafter, the Apex Court observed that the accused had an opportunity to kill the deceased Amardeep. After the occurrence, they were seen running together from the place of occurrence. Such a Sessions Case No: 26/12 Page 24 of 53 25 conduct, if examined, with another circumstance i.e. the extra-judicial confession made by the appellants before an independent witness [Phool Singh (PW-10)], held completed the chain of circumstances pointing to the guilt of the appellants-accused.
70. In the recent Arvindkumar Anupalal Poddar v. State of Maharashtra case, the deceased and the accused were last seen together on 06.12.2001. Later, body of the deceased was recovered at the instance of the appellant. The recovery of knife from the place of occurrence, the frequent quarrels between the deceased and the accused, the theory of the deceased having run away from the matrimonial home not properly explained by the appellant apart from the fact that no steps were taken by him to trace his wife, the weapon used, namely, the knife containing blood stains, that the nature of injuries found on the body of the deceased, the death was homicidal and that the injuries could have been caused with the weapon marked in the case, that the appellant wanted to flee from the town itself and that the clothes seized from the appellant were found containing human blood-- established the guilt of the appellant. The Apex Court quoted Prithipal Singh & Amp; ors v. State of Punjab, [an illegal detention and death case] where it has been held that 'a fact which is especially in the knowledge of any person then the burden of proving that fact is upon him and that it is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. The Supreme Court has upheld the conviction of the accused.
71. By the adoption of the last seen together, there has been the tendency of the Courts, especially the Apex Court has been going perhaps towards' ..... adjusting the balance of justice and ensuring that there will be no 'excessive solicitude' reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then, break down and Sessions Case No: 26/12 Page 25 of 53 26 lose credibility with the community. The evil of acquitting a guilty person lightheartedly as a learned author (Glanville Williams) has sapiently observed goes much beyond the simple fact that just one guilty person has gone unpunished. Our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free arid chopping the logic of preponderant probability to, punish marginal innocents.
72. The principle helps the Courts to shift the burden of proof to the accused and the accused might establish an interface in the chain of circumstantial evidence. Otherwise, he will not get any benefit of doubt. The latest tendency of the Court thus, is to take the aid of Section 106 of the Indian Evidence Act, in addition to the 'last seen together' principle to hold an accused person guilty whenever there is no evidence available.
73. According to the prosecution Shahdab and Sameer were lastly seen together by PW 1, PW 14 and PW 18. According to PW 1 and PW 14 they were present in the house of PW 1 on 11-3-2011 at about 9 p.m and accused Shahdab was also present there and they were eating and drinking. According to these two witnesses both sons of PW 1 were also present there and Sameer (since deceased) was sent to fetch a bread for his for his younger brother Sahil. PW 1 and PW 14 have categorically deposed that accused within minutes went behind Sameer (since deceased) and thereafter Sameer did not return home and went missing.
74. Both the witnesses were cross examined but in their cross examination this part of their testimony could not be shaken. So the prosecution has been able to prove that Sessions Case No: 26/12 Page 26 of 53 27 accused Shahdab went after Sameer (since deceased) when he had gone to purchase bread from the shop of Lucky (PW 18) on the asking of his father PW 1.
75. The testimonies of these two witnesses is further corroborated by PW 18 Lucky who has also deposed that on 11- 3-2011 accused Shahdab had come to his shop alongwith Sameer (since deceased) and purchased a packet of chips for him. He has further deposed that thereafter he went alongwith Sameer towards main road. He has further deposed that in the morning of 12-3-2011 PW 1 came to his shop at about 5:30 a.m when he had opened his shop and he told PW 1 about the events of previous night. So now after analyzing the the testimonies of PW 1, PW 14 and PW 18 it has become crystal clear that Shahdab came after Sameer to the shop of PW 18 Sumit @ Lucky from where he purchased a packet of chips for him and then took Sameer alongwith him.
76. PW 18 was cross examined and he again reiterated that he had seen accused and Sameer together at about 9:30 p.m. So now there is no doubt that accused Shahdab took Sameer with him. So the prosecution has been able to prove that deceased Sameer was lastly seen in the company of the accused.
77. It was urged by the Ld. Amicus Curiae for the accused that there was huge time gap between accused and deceased having been lastly seen together and the recovery of dead body, so in these circumstances no reliance can be placed on last seen theory.
78. The arguments of the Ld. Amicus Curiae is attractive and cannot be thrown aside simply. But each criminal case has its own factual matrix. In the present case the deceased and Sessions Case No: 26/12 Page 27 of 53 28 accused were seen together at about 9:30 p.m and in the morning Sameer was found dead at about 7:30 a.m. First of all there is no explanation from the side of accused as to how and when he parted company with the deceased. The accused is totally silent about the place and time when he got separated from the deceased. It was night time when they both were seen together, had the accused left the deceased after purchasing chips, the child would have come home because from the testimony of his father (PW 1) it is clear that the child was under
instructions not to follow strangers and it is also in the testimony of PW 1 father of the deceased that accused previously also used to take him.
79. One can take notice of the fact that the father of the deceased had sent him to buy bread in the night at about 9:30 p.m. which shows that PW 1 was confident about the wisdom of Sameer. So considering all these facts though time gap is there but under the circumstances, it is not such that advantage of which can be given to the accused.
80. Extra Judicial Confession : It is settled that if the evidence of extra judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and conviction can be founded thereon.
81. If the evidence about extra judicial confession comes from the mouth of witnesses who appeared to be unbiased not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken by the witnesses are clear unambiguous and unmistakably convey that the accused is the Sessions Case No: 26/12 Page 28 of 53 29 perpetrator of the crime and nothing is omitted by the witness which may militate against it, the extra judicial confession can be accepted and can be the basis of conviction.
82. PW 1 and PW 11 have deposed that in the morning of 12-03-11, they had gone to the shop of PW 18 which has been conformed by him and from there they came to know that accused Shahdab had taken Sameer alongwith him. So they both went to the house of Shahdab who was found there but did not behave properly. They further deposed that they had asked him about blood on his face on the previous night as told to them by PW 14. On this accused became perturbed. Accused was also told that he would be confronted with Lucky about his taking of Sameer with him.
83. PW 14 has deposed that accused has confessed that he murdered Sameer and apologized to PW 1 Moin Khan. PW 1 though has stated that accused was brought by him to the shop of PW 18 and there he started weeping and told him about the killing of Sameer. PW 18 had not stated this fact but he has stated that he had seen accused seeking pardon from PW 1 at the place where the dead body was lying. There appears to be some contradiction in the testimony of PW 1 and PW 18 regarding the place where accused sought pardon and apologized to PW 1 but to my mind this is not such a major contradiction which go to the root of the matter. The accused has confessed about the murder of Sameer before his father PW 1 and this fact has also been noticed by PW 11 and PW 18. According to PW 18 he saw accused seeking pardon from PW 1 at the place where the dead body was found, so this statement of his cannot belie the fact of pardon because the accused was Sessions Case No: 26/12 Page 29 of 53 30 with PW 1 after his apprehension and it was obvious for him to seek pardon again and again from him for killing his son. It has come on record that the accused and PW 1 father of the deceased were having very cordial relations. They even used to eat and drink together as they were doing on the night of the incident. In these circumstances it cannot be said that PW 1 was inimical towards the accused for any reason and nothing of this sort has been suggested to PW 1 or any other witness. So the accused made extra judicial confession regarding the murder of Sameer.
84. Recovery of dead body : According to the testimony of PW 1 and PW 14 the accused had led them to the place where the dead body was lying in the pool of blood. The face of the dead body was towards the earth and his pent was down up to the knee. So the accused had the exclusive knowledge where the dead body was lying and he got the same recovered.
85. PW 1 in his cross examination had stated that the dead body was recovered at about 7 / 7:30 a.m but he was not sure of the exact time. This witness has categorically stated that his brother Hanif PW 1 was with him at the time of recovery of the dead body, the fact which has been corroborated by PW 11 but it has been vehemently argued by the Ld. Amicus Curiae that PW 11 in his cross examination has stated that on the next day at about 10/ 11 a.m he met lucky out of his shop and at that time PW 1 was not with him. So he argued that PW 1 is not believable with regard to the recovery of dead body at the instance of accused Shahdab.
86. This argument of Ld amicus curiae appears to be impressive in the beginning but it has to be rejected because PW Sessions Case No: 26/12 Page 30 of 53 31 11 is not saying that he met Lucky for the first time at 10 / 11 a.m., what he is saying that he met Lucky at about 10 / 11 a.m on the next day. In his further cross examination he stated that they had gone to the house of accused at about 5:30 a.m. PW 1 has also deposed that they had gone to the house of accused Shahdab in the morning and at that time he had confessed. Simply because he has mentioned the time as 10 / 11 a.m, it cannot be said that his testimony has to be discarded because a witness cannot be said to keep track of the time by watch and moreover we have to see the strata of the society to which the witness belongs. The witnesses are illiterate people and simply on this score that he mentioned the time of meeting Lucky as 10/ 11 a.m, I am not inclined to discard his testimony.
87. As per the case of the prosecution accused had got recovered the dead body of Sameer. PW 1 Mohd. Moin Khan has categorically deposed that accused had taken them to a vacant plot deep inside from the road from where the dead body was not visible. Accused took them there and pointed towards the dead body. There is nothing in the cross examination of this witness to doubt this part of his testimony. In the cross examination he stated that accused must have taken them to the place where the dead body was lying at about 7 / 7:30 p.m.
88. PW 11 Hanif has also corroborated the version of PW 1 and according to him also the accused took them to the place where the dead body was lying. In the cross examination this witness has categorically stated that when they were searching for Sameer in the night they had not gone there as there were no houses. So from the testimony of these witnesses it is clear that the accused had the exclusive knowledge as to where the Sessions Case No: 26/12 Page 31 of 53 32 dead body was lying which he got recovered in the morning.
89. PW 14 has not gone with the accused, PW 1 and PW 11 when accused got the dead body recovered but he has deposed that he came to know lateron that the dead body of Sameer was lying in a vacant plot and he also went there and found the dead body of Sameer. Though this witness has not initially gone with PW 1 and PW 11 and accused at the place where the dead body was lying but when he went there he saw the dead body of Sameer. When the police was informed police had also reached the place from where the the dead body was got recovered by the accused. So from the discussion mentioned hereinabove I am of the opinion that the accused had the exclusive knowledge of the place from where he got the dead body of the deceased recovered. So the prosecution has proved the recovery of the dead body at the instance of the accused beyond reasonable doubt.
90. Recovery of stone : According to the prosecution a big stone was lying near the dead body having blood on it which was seized vide memo Ex. PW 10/A. According to the prosecution this stone was used to crush the face of the deceased. The postmortem report Ex. PW 7/A shows that 9 injuries were found on the face region of the dead body of the deceased. The stone is Ex. P-8 in the FSL report and human blood was found on the stone but there was no reaction about the blood group which could be due to the manner in which the stone was lifted by the IO from the spot. In most of the cases it is seen that the IOs lift the exhibits from the spot in most primitive manner without having any specialized knowledge as to how the exhibits are to be lifted.
Sessions Case No: 26/12 Page 32 of 53 3391. Recovery of diary. : According to the prosecution a pocket diary was recovered from the spot which according to the prosecution belonged to the accused. The pocket diary is Ex. P-
12. PW 1 has deposed that on 12-3-2011, he was present at the spot and police had shown him one diary and told him that the said pocket diary was lying near the dead body. He further deposed that he identified the diary as that of Shahdab.
92. In the cross examination he stated that he had never seen accused writing and he even did not know whether the accused knows how to write. He further stated that he did not know what was written in the diary because he was illiterate. However, he stated that he had seen the diary with accused. May be this witness was illiterate but in the cross examination he has categorically stated that he had seen his diary in the possession of the accused.
93. PW 11 has deposed that on 12-3-2011, he has observed one diary lying on the other side of the wall which separated the dead body and the diary. He further deposed that the diary belonged to the accused. He has been cross examined and he stated that he had never worked with the accused nor he had seen accused writing and signing. He has stated that he identified the diary because his name and telephone number was written on it. He further stated that the diary was picked up by the IP. He further stated that the IO had immediately told him that the diary belonged to the accused. There is nothing in the evidence of this witness to show that how he identified the diary Ex. P-13 as belonging to the accused. According to him he had never worked with Shahadab and prior to the date of the recovery of the diary he had not seen the same. He simply Sessions Case No: 26/12 Page 33 of 53 34 identified the diary because his name and telephone number was written on it. To my mind simply because his name and telephone number appears on the diary, it cannot be said that the same belonged to the accused.
94. PW 10 ASI Sajjan Singh has deposed that the pocket diary was lying near the spot. This fact has also been stated by PW 16 Madan Mohan. PW 17 H.C. Harpool Singh has also stated that one pocket diary was also found in side the plot These witnesses have no where stated that the pocket diary was lying on the other side of the wall which separated the dead body and the diary as stated by PW 11.
95. PW 17 in his cross examination has stated that he could not tell whether there was any raxine cover on the dairy or not. PW 19 is the IO of the case and he has deposed that one pocket diary was lying near the dead body besides the wall and the plot. So he is also giving the place of recovery of the diary different then that stated by PW 11.
96. In the cross examination PW 19 who is IO has stated that the diary was not sent to FSL and the name of the accused was written on the diary. This witness went on to state that father of the deceased had told that the diary belonged to accused. He also stated that the writing of the accused was not got matched with the writing in the diary. He further stated that the body and the diary was separated by the boundary wall of about 3 ft.
97. PW 4 is SI Manohar Lal who is the drafts man and he has prepared the site plan which is Ex. PW 4/A but in the site plan he has not shown the place where the diary was lying. PW 5 SI Vishesh Kumar is the in-charge crime team and he has also Sessions Case No: 26/12 Page 34 of 53 35 deposed that one pocket diary was found lying on the other side of the wall.
98. Now the IO and the in-charge crime team have stated that the diary was lying on the other side of the wall but this fact has not been stated by the other public and police officials whose testimonies have been discussed hereinabove.
99. The prosecution is connecting the diary with the accused only on the basis of the statement of PW 1 who has deposed that he had seen the diary with the accused and only on the basis of the statement of PW 11 who has stated that since his name and telephone number was found written in the diary so he had though that the diary belonged to the accused.
100. I have perused the pocket diary, the names of different people, telephone numbers and some amount and number of pieces are written (not defined what types of pieces are those). On one page of the diary Shahabad is written but I have compared the signatures of Shahabad appearing on his disclosure statement Ex. PW 10/D and the relevant page X-1 in the diary. The writing at the two points is totally different and the judicial notice of the same can be taken. So in these circumstances I am of the opinion, that the the prosecution has failed to prove that the diary belonged to the accused.
101. Section 106 of the IPC specifically postulates that where any fact is especially within the knowledge of any person, the burden of proving it is upon him.
102. Section 106 of the Evidence Act reads as under :-
106. Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of Sessions Case No: 26/12 Page 35 of 53 36 any person, the burden of proving that fact is upon him. Illustrations
103. The deceased had died when he was in the company of the accused and there is not even a single explanation from the side of the accused as to what happened with Sameer (since deceased) as a result of which he died. It was for the accused to explain as to where and how he parted company with Sameer (since deceased). These all facts were in the special knowledge of the accused and onus was upon him to discharge. The accused was lastly seen in the company of the accused so in these circumstances, who was to answer and explain the murder of the victim? It has to be none other than the accused; because the deceased was lastly seen in the company of the accused and this fact has been well established by the testimonies of the witnesses discussed hereinabove. The dead body of the deceased was also got recovered by the accused and this fact has also been proved on record by the prosecution.
104. The statement of the accused U/s 313 Cr.P.C was also recorded and in his statement u/s 313 Cr.P.C the accused had mostly replied to the questions put to him as "it is incorrect"
and "I do not know". In answer to question number 50 which reads as follows :
Q. 50. Do you wish to say anything else? The accused replied as follows :
Ans. I am innocent and I never took Samir with me anywhere nor I had seen him on the day of the incident. I have been falsely implicated in this case by the police to work out a blind murder case. I even helped the parents of the deceased in search of Sessions Case No: 26/12 Page 36 of 53 37 missing child.
105. No evidence in defence was led by the accused to prove that as to where he was on the day of the incident; as to why the police had falsely implicated him in this case; as to whether he had reported the matter of his false implication to any higher authority or any senior officer of police and as to how he had helped the parents of the deceased in the search of missing child.
106. So from the discussion mentioned hereinabove, the prosecution has been able to prove that accused and the deceased were lastly seen together by the witnesses; the recovery of the dead body at the instance of the accused and extra judicial confession made by the accused before PW 1 father of the deceased. Though the prosecution has not been able to prove that the recovered pocket diary was that of the accused but to my mind simply because the prosecution has failed on this aspect no benefit of the same can be given to the accused and it cannot be said to have broken the link in the chain of the circumstances. The onus as per section 106 of the Indian Evidence Act shifted on the accused which has not been discharged by him.
107. In view of the discussions mentioned herein above, I am of the opinion, that the prosecution has been able to bring this case within the purview of 5 golden principles laid by the Hon'ble Supreme Court in the judgment "supra". The accused is, therefore, held guilty and convicted U/s 302 IPC. Put up for arguments on the point of sentence on 16-04-2014. (Announced in the open Court on 07-04-2014) Sessions Case No: 26/12 Page 37 of 53 38 (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE 02, NORTH DISTRICT, ROHINI COURTS : DELHI IN THE COURT OF SH. RAJNISH BHATNAGAR, ADDL. SESSIONS JUDGE -02, NORTH DISTRICT ROHINI COURTS : DELHI IN RE : Sessions Case No. : 26/12 FIR No. : 67/11 P.S. : Aman Vihar U/s : 302/377 IPC State Vs. Shahdab S/o Sh. Matloob R/o Village Rawatpur, P.S. Kath, District Shahajahpur, U.P. ORDER ON OF SENTENCE
1. I have heard Ld. Substitute Addl. PP for the state and Sh.
Yogesh Pandey, Ld. Amicus Curiae for the convict on the point of sentence.
2. It is urged by the Ld. Amicus Curiae for the convict that the convict is a young man has old parents to support and is not a previous convict. It is prayed that minimum sentence be awarded to him.
3. On the other hand Ld. substitute Addl. PP submits that the Sessions Case No: 26/12 Page 38 of 53 39 convict doesn't deserve any leniency as he has brutally murdered a child and maximum i.e. death punishment be awarded to him.
4. Convict Shahdab has been convicted by me vide separate judgment dated 07.04.2014 U/s 302 IPC.
5. It is not a rarest of the rare case inviting imposition of capital punishment. I therefore sentence convict Shahdab to undergo life imprisonment U/s 302 IPC and pay a fine of Rs. 10000/-. He will undergo rigorous imprisonment for six months in case of default of payment of fine. Ordered accordingly.
6. The benefit of section 428 Cr.P.C. be given to convict. Copy of judgment and order on sentence be given to convict free of cost.
File be consigned to Record Room.
(Announced in the open Court on 08-05-2014) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE-02 NORTH DISTRICT, ROHINI COURTS : DELHI Sessions Case No: 26/12 Page 39 of 53