Delhi District Court
State vs 1. Salman on 28 January, 2019
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
S.C. No. : 362 of 2016
(I.D. No. : 02402R0266432015)
State Versus 1. Salman
S/o Mohd. Faruk
R/o Building No. 14, 4th Floor,
Chameliyan Road, Filmistan,
Delhi.
2. Faizan
S/o Mohd. Arafin
R/o H. No. 125,
Gali Chauhan wali,
Chatta Lal Miyan.
Chandni Mahal, Delhi.
FIR No. : 22/14
Under Section : 302/34 IPC & 25/27/54/59 Arms Act
Police Station : Gazipur
Chargesheet Filed On : 31.07.2015
Chargesheet Allocated On : 27.08.2015
Undersigned presided over this
Court : 06.11.2017
Judgment Reserved On : 18.01.2019
Judgment Announced On : 28.01.2019
SC No. 362/16 State Vs. Salman etc. Page No.: 1 of 58
JUDGMENT
FACTUAL MATRIX OF THE CASE:
1. Succinctly, prosecution case, as per the chargesheet, is that on 12.01.2014, DD No. 38-A at about 10.42 p.m. was lodged at P.S. Gazipur regarding firing incident. On receipt of this information, Sub Inspector (herein after referred as SI) Kiran Pal (PW-25) along with Const.
Naveen reached at the spot at main gate, Machhli Market, Gazipur where they met Head Const Sukeshwar and Const. Rajender. One Wagon R Car bearing registration no. DL-8CNB-1009 (silver colour) was seen parked at the main gate. One boy was also found sitting in the driving seat of the said car. It was noticed that blood was oozing out from the head of said boy. One empty cartridge case was also seen lying on the road near driver side gate of the car with one empty cartridge near driver seat in the car and also one other cartridge on the foot step of the seat adjacent to driver seat. Bullet/Sikka was also seen lying on papers near front glass of car. SI Kiran Pal informed Inspt. Joginder Joon, Station House Officer (herein after referred as SHO), in this regard and he reached at the spot and called Crime Team. Crime team officials inspected and photographed the scene SC No. 362/16 State Vs. Salman etc. Page No.: 2 of 58 of crime. Deadbody was sent to Lal Bahadur Shastri Hospital (herein after referred as LBS) through Const. Naveen. After post-mortem, dead body was handedover to the relatives and Const. Naveen handedover exhibits to the Investigating Officer (herein after referred as IO) which were received by him from the doctor. IO seized the said exhibits and deposited in the malkhana. The statement of the witnesses were recorded and Imran, brother of deceased disclosed about threats being extended to his brother at the hands of Salman on account of business rivalry. CDRs of the suspects were obtained. Thereafter, further investigations were entrusted to ASI Bhagwat Dayal, SI Mohd. Faizan Ghani, Inspt. Naveen Katariya and at one point of time, Inspt. Ashok Kumar Singh conducted investigations after being entrusted the same from previous IO Inspt. Vijay Kumar.
2. During such investigation, said Inspt. Ashok Kumar Singh issued notice dated 27.02.2015 to suspects Salman and Faizan under Sec. 160 Cr.P.C. to join the investigation vide Ex. PW27/A and Ex. PW27/B. Both of them joined the investigation but stated to be not co- operated during the investigations. The application for polygraph test and Narco analysis test of both suspects Salman and Faizan was also filed before the Ld. MM but both of them did not give their consent for the same. SC No. 362/16 State Vs. Salman etc. Page No.: 3 of 58
3. It is further prosecution case that during further investigations of case, on 03.05.2015, Inspt. K.G. Tyagi and members of his team reached at Police Station Farsh Bazar where both suspects Salman and Faizan were found present. During interrogation, both the suspects had disclosed about the commission of the offence of present case. Both suspects made disclosure statements which were recorded as Ex. PW11/G and Ex. PW11/H. Both accused persons were arrested and personally searched vide memos Ex.PW11/C to Ex. PW11/F. During the investigation, accused Salman has disclosed that he could get recover the weapon of offence i.e. countrymade pistol etc. which were lying at his house. Inspt. Ashok Kumar Singh along with SI Kuldeep, Const. Naveen, driver and both the accused reached at the house of accused Salman at H. No. 517, Chhatta Lal Miyan, Delhi where from the first floor of said house, the accused Salman got recovered a countrymade pistol from a small red coloured box which was kept in the almirah and Inspt. Ashok Kumar Singh opened the box and found one countrymade pistol along with five live cartridges and prepared the sketch memo of the same as Ex.PW11/I. Recovered countrymade pistol and five live cartridges were seized after being duly sealed with the seal of AKS vide Ex.PW11/J. On the same day, SC No. 362/16 State Vs. Salman etc. Page No.: 4 of 58 at the instance of accused Faizan and Salman, motorcycle bearing registration no. DL-8SAL-6754 with keys was recovered from H.No. 525, Chhatta Lal Miyan, Main Bazar Road which was involved/used in commission of offence by accused Faizan on the day of incident. The abovesaid motorcycle belonged to one Irshad, who also joined the investigation. Said motorcycle was also seized vide memo Ex. PW11/K. Thereafter, they came to Machhli Mandi, Gazipur and both the accused persons led the police party to the shop of accused Salman and then accused got recovered one EECO van bearing no. DL-6CL-3623 and keys of the said Eeco van from his shop.
4. Formal proceedings were conducted in the matter and on completion of the investigation, chargesheet was filed against the accused persons before the court of ld. Metropolitan Magistrate to face trial for the offences punishable under Sec. 302/34 IPC & 27/25/54/59 Arms Act.
5. After compliance of the provisions of Section 207 CrPC by the court of Ld. MM, case was committed to the Court of Sessions as Section 302 IPC was exclusively triable by it.
6. Vide order dated 21.12.2015 passed by ld. predecessor, charge under Section 302/34 IPC was framed against both accused persons. Vide same order, a separate charges under Sec. 27/54/59 of SC No. 362/16 State Vs. Salman etc. Page No.: 5 of 58 Arms Act against accused Faizan and charge under Sec. 25/54/49 Arms Act was framed against accused Salman. To the said charges, accused persons pleaded not guilty and claimed trial.
7. The Prosecution in support of its case, examined 27 witnesses in all which are as follows:
Public witnesses PW-2 Imran Malik, brother of the deceased, deposed that Faizan Malik, his younger brother, was murdered on 12.01.2014 and that he narrated that the threat was extended by accused Salman to his deceased brother on account of business rivalry and raised his suspicion on Salman for the crime in question.
PW-3 Surbhi Shakya, friend of deceased, narrated that deceased was her friend and also that she came to know about the murder of Faizan on 13.01.2014. Statement under Sec. 164 CrPC of this witness was also got recorded. During statement before the court, this witness was declared hostile.
PW-5 Mohd. Irfan, cousin of deceased, deposed that on 12.01.2014 he along with deceased and his cousin had gone to fish market and as per the directions of Faizan, deceased, he (this witness) had gone to cold storage, NOIDA and talked on phone with Faizan and when he SC No. 362/16 State Vs. Salman etc. Page No.: 6 of 58 reached to deceased Faizan, as per his directions, he noticed Faizan was lying dead with shot. He informed the police and proved his statement Ex.PW5/A. This witness also proved the memos Ex.PW5/B vide which he identified the body of deceased.
PW-6 Ajay Kumar deposed that on 12.01.2014 at about 10.40 a.m. Faizan, deceased, told him that Salman had threatened him. Statement of this witness was also recorded under Sec. 164 CrPC and same is Ex.PW6/A. This witness was also declared hostile by ld. Addl. PP and was cross-examined at length.
PW-7 Jagdish Sharma deposed to the effect that about 3-4 months prior to the incident, Imran, brother of deceased told that his brother was being extended threats by Salman on account of business rivalry and then this witness got arranged meeting between Salman and Faizan along with some other persons and in that meeting, Salman apologised for the matter and promised not to harm deceased in future and this witness advised both of them i.e. Salman and Faizan, deceased, not to quarrel with each other and then both of them went away. This witness further deposed that later on he came to know about murder of Faizan and identified accused Salman.
SC No. 362/16 State Vs. Salman etc. Page No.: 7 of 58 PW-8 Irshad, registered owner of motorcycle bearing registration no. DL-8SAL-6754, deposed that he used to ride the said motorcycle and police official inquired from him on which he narrated that he does not remember whether Salman had taken the said motorcycle and this witness was also cross-examined by ld. Addl. PP for the State after declare him hostile.
PW-10 Abdul Latif, father of deceased, reached the spot on the date of incident and had seen his son lying there with gunshot injuries. This witness identified the body of deceased vide Ex.PW10/A but did not raise any suspicion on any person.
Witnesses of Call Details:
PW-19 Sh. Surender Kumar, Nodal Officer from Bharti Airtel Ltd., proved CAFs of mobile nos. 9910784608 and 9910784606 along with copy of Driving Licence of applicant Faizan S/o Arefeen as Ex.PW19/A to Ex.PW19/D. PW-20 Yogesh Tripathi, Alternate Nodal Officer from Reliance Communications Ltd., proved the record of mobile no. 846781212 Ex.PW20/A to Ex.PW20/E of accused Salman.
SC No. 362/16 State Vs. Salman etc. Page No.: 8 of 58 Expert Witnesses PW-4 Dr. Manoj Teotia medically examined deceased Faizan and proved MLC vide Ex.PW4/A. PW-14 Dr. Ashok Sagar, conducted postmortem on deceased Faizan and proved report Ex.PW14/A. PW-21 Sh. R. Eniyavan, FSL expert, proved reports as Ex.PW21/A & B prepared by Dr. N.P. Waghmare.
Police Witnesses PW-13 Ct. Rajinder firstly reached at the spot with HC Sukeshwar (PW-22). He deposed that on 12.01.2014 at about 10.40 p.m. while he along with Const. Rajender reached near gate of fish Mandi, a Wagon Car bearing No. DL-8CNB-1009 was stationed there and crowd was also present there. One boy who was on the driver seat was having bullet injury, on which he informed PS Gazipur regarding the incident. SHO and other police officials reached there and Crime Team was also summoned. Spot was got photographed. Dead body was got sent to LBS Hospital. The case was registered on the basis of ruqqa being handed over to him. PW-22 ASI Sukeshwar Rai toed same lines as deposed by PW-13 and also a witness to the seizure of articles from the spot and SC No. 362/16 State Vs. Salman etc. Page No.: 9 of 58 proved memo Ex. PW22/A to D to that effect.
PW-11 Inspt. Kuldeep Singh, partly investigated the case and proved Ex. PW11/A to N prepared in this case.
PW-23 ASI Naveen Kumar deposed that on 12.01.2014 while he was working as Constable with PS Gazipur, on receipt of information he removed the body of deceased to LBS Hospital where doctor examined the body and same was preserved with mortuary and guarded. On 03.05.2015, he again joined the investigations of this case and is a witness to the arrest of accused persons and recovery of gun and five live cartridges from the house of accused Salman and proved memos to this effect and also identified the case property in the court.
PW-25 SI Kiran Pal partly investigated the case and proved various memos prepared during the investigations.
PW-26 Insp. Joginder Singh Joon and PW-27 Insp. Ashok Kumar Singh are also partly Investigating Officers of the case and proved memos prepared during investigations of this case.
Formal witnesses PW-1 HC Sultan Singh, Duty Officer, proved the copy of DD No. 38-A as Ex.PW1/A and of FIR as Ex.PW1/B. SC No. 362/16 State Vs. Salman etc. Page No.: 10 of 58 PW-9 Ct. Shani took the exhibits for being with FSL, Rohini, Delhi and deposited there in intact condition.
PW-12 HC Sachin Singh, MHCM, proved the entries effected in register no. 19 as Exz.PW12/A to C. PW-15 Insp. Mahesh Kumar, Draughtsman prepared the scaled site plan Ex.PW15/A. PW-16 SI Karamveer Singh, Incharge, Crime Team, reached the spot on the date of incident and proved his report Ex.PW16/A. PW-17 Const. Vikas, Photographer, photographed the spot and proved 18 photographs as Ex.PW17/B-1 to PW-17/B18 with 23 negatives as Ex.PW17/A1 to A-23.
PW-18 Const. Anil handed over the copy of the FIR to senior police officers and ld. M.M. PW-24 Sh. Kime Kaming, IPS, accorded the sanction u/s 39 of Arms Act vide order Ex.PW24/A. During prosecution evidence, accused persons made statement recorded under Sec. 294 CrPC, admitted the proceedings conducted by Ms. Richa Parihar and Ms. Neha Paliwal, ld MMs as Ex. C1 to C3 regarding the statements of Salman and Faizan recorded under Sec. SC No. 362/16 State Vs. Salman etc. Page No.: 11 of 58 164 CrPC.
Detailed testimonies of the witnesses concerned will be discussed at the appropriate stage of this judgment. Statement of accused persons under Sec. 313 CrPC:
8. The statements of the accused persons were recorded under Section 313 CrPC in which they denied all the incriminating evidence against them. They pleaded their innocence and further pleaded their false implication.
9. Accused Salman further pleaded that he did not commit any crime nor any recovery was effected from him or at his instance at any point of time and that his signatures were obtained forcibly on blank paper in PS and the bullets and recovery of countrymade pistol were planted upon him. He also pleaded that he did not make any disclosure at any point of time.
10. Accused Faizan also toed with the lines of the accused Salman further pleading that he is not having grudge or enmity with police officials including IO.
11. Accused Salman wanted to lead defence evidence while accused Faizan did not opt to lead defence evidence. SC No. 362/16 State Vs. Salman etc. Page No.: 12 of 58
12. DW-1 Mohd. Imran, appeared for accused Salman but later on during his examination ld. defence counsel requested that he did not want to proceed to continue with defence evidence, and as such, testimony of said witness was given up and no other witness was examined. As such, there is no defence witness examined.
13. It is also pertinent to mention that, during the final arguments, PW-19 Sh. Surender Kumar, Nodal Officer was summoned again and proved the CDR of mobile no. 9910784608 in the name applicant Faizan S/o Arefeen for a period of 01.12.2013 to 03.11.2014 Ex.PW19/E (colly. 94 pages), location chart for abovesaid period Ex.PW19/F (colly. 8 pages) and Certificate u/s 65-B of Indian Evidence Act Ex.PW19/G. Supplementary statement under Sec. 313 CrPC was also recorded after his further examination but crux of the statement of the accused persons remains the same.
Contentions of the parties:
14. Ld. Addl. P.P. for the State argued that prosecution has been able to prove the charges through evidence of prosecution witnesses and recovery effected. He argued that there is no reason to disbelieve the testimony of the prosecution witnesses which are cogent and credible and SC No. 362/16 State Vs. Salman etc. Page No.: 13 of 58 there is sufficiently corroborated by material evidence. He further argued that accused persons failed to explain any reasonable account for their false implication. He further submitted that there is nothing to disbelieve the testimony of other prosecution witnesses and the culpability of the accused persons stands fully established. The chain of evidence in all respect to bring home the guilt of the accused persons is complete duly corroborated with CDRs placed on record.
15. Ld. Addl. PP duly assisted by ld. counsel for the complainant submitted that presence of the accused persons is found at the spot even as per the CDRs and if there is variation, it is to be kept in mind that there may be due to technicalities of the RADAR of the phones/SIMs and said fact is duly corroborated with statement of PW-19. It is also submitted that even recovery effected from the accused persons and the fact that accused persons were arrested after interrogations is also an indication that investigations of the case were very fair and unbiased.
16. Ld. Addl. PP also submitted that prosecution has fully established its case to the effect that accused persons got recovered the arms and ammunitions and testimonies of the police officials cannot be disbelieved to that effect as well as it is observed from time to time in catena of judgments that testimony of the police officials cannot be SC No. 362/16 State Vs. Salman etc. Page No.: 14 of 58 considered with doubt and non joining of public persons cannot be fatal to the prosecution case. The prosecution has fully proved its case against the accused persons and prayed for their conviction, as per the charges framed against them.
17. Per contra, Sh. K.K. Manan, Sr. Advocate with Sh. Akshay Kumar, defence counsel argued that the prosecution has failed to bring home the guilt against either of these accused persons as per charges framed against them. There is no reason to commit the offence as alleged by either of these accused persons as no motive has been proved. It is also contended that if alleged motive is to be considered, even then there is no proof and hence, the prosecution case in all respect vanishes.
18. Next contention of the ld. defene counsel is that case is based only on the circumstantial evidence and its chain is not complete in view of the celebrated judgment on this issue and as such, prosecution has also failed to prove its case beyond all reasonable doubts.
19. Regarding recovery of gun etc., ld. defence counsel argued that first of all it is beyond all probabilities that anyone after committing such heinous crime would keep the said arms and ammunition, as alleged, in his house for such a long period of time without any plausible explanation.
SC No. 362/16 State Vs. Salman etc. Page No.: 15 of 58
20. Next contention is that non-joining of public witnesses during the investigation even at the time of the alleged recovery despite their availability creates doubt on the prosecution case.
21. Ld. defence counsel further submitted that there are several contradictions and improvements in the statements of the prosecution witnesses which go to the root of the case and CDR is not the concrete proof to show the presence of either of the accused even as per the call location which show their presence far away from the place of incident.
22. Ld. defence counsel also filed written submissions whereby submitting that Inspt. A.K. Singh and ASI Naveen Kumar were posted at PS Gazipur but despite that they were not called any police official of the Operation Cell, East PS Farash Bazar to join the investigations at the time of the alleged recovery of motorcycle, car, gun and cartridges etc.
23. Further contention of the ld. defence counsel is that neither NBWs were obtained nor proceedings under Sec. 82/83 CrPC were initiated against either of these accused persons. It is also pointed out that arrest memo and personal search memo of either of the accused were not signed by any of the official of Operation Cell (East). Even there is no public witness to the alleged disclosure statement of either of these SC No. 362/16 State Vs. Salman etc. Page No.: 16 of 58 accused which also casts a doubt upon the prosecution case.
24. Ld. defence counsel also pointed out that even at the time of the alleged recovery, though family members of the accused persons were available but none of them has been joined as a witness nor their signatures were obtained at the time of the alleged recovery. It is also contended that even no independent witness has been cited despite their availability, during the said proceedings and that admittedly one old lady was present at that time but not joined. Neither any crime team was summoned, nor said place was got photographed nor videographed nor any site plan was prepared and this all is against the law and defused the alleged recovery proceedings. Even no chance prints were lifted from the alleged weapon of offence. Ld. defence counsel also pointed out that earlier to that alleged recovery, even two Investigating Officers, investigated the case and even inspected the house but no incriminating evidence was found available at that time from the house of accused Salman, as such, the alleged recovery of arms and ammunition is doubtful and planted in order to strengthen the prosecution case.
25. Ld. defence counsel further submitted that according to chargesheet, three cartridges and two fired bullets were found at the spot but during examination of PW-26 Inspt. Joginder Singh, he stated that one SC No. 362/16 State Vs. Salman etc. Page No.: 17 of 58 empty cartridge was found on the road towards driver side of vehicle; two empty cartridges were found of the adjacent seat of driver seat of the car;
one empty cartridge was found from foot mat of adjacent seat of driver seat of the car; one empty cartridge was found from the driver seat; one fired bullet was from dash board and one fired bullet was found from front left door of the car and hence, there is grave material contradiction regarding the number of cartridges found from the spot. During cross- examination, PW-25 SI Kiran Pal stated that before his arrival to the spot, few police officials were already present there which had already cordoned off the area and Crime Team reached in his presence and even though the chance prints were not lifted in his presence and there is no explanation to this effect given by the prosecution.
26. Next contention raised by ld. defence counsel is that PW-26 Inspt. Joginder Singh admitted that he had thoroughly investigated and interrogated the accused persons but did not find any incriminating evidence about their involvement in the present crime. Ld. defence counsel also drew the attention of the court that he also admitted that despite the availability and expert to lift the chance prints from the spot and even then it were not lifted at any point of time.
SC No. 362/16 State Vs. Salman etc. Page No.: 18 of 58
27. Ld. defence counsel further argued that PW-27 Inspt. Ashok Kumar Singh admitted that on 27.02.2015 and even before that, notice under Sec. 160 CrPC were issued to the accused persons on which they joined the investigation and were relieved after interrogation by the IOs.
28. Ld. defence counsel also argued that statement of PW-6 Ajay Kumar under Sec. 164 CrPC was recorded by ld. MM on 27.03.2014 despite his availability and that during his examination-in-chief, he stated that he came to know from his brother about murder of Faizan and that he had not seen Salman and did not know him personally but during cross- examination, he admitted that Raja had apprised him about the murder of the deceased and not by his brother. Ld. defence counsel further submitted that this witness (PW-6) admitted that he had not stated the entire facts to the IO and that he was very much available from 12.01.2014 till 27.03.2014 at his residence and was doing his business regularly during that period contending that there is delay of about two months eleven days in recording the statement under Sec. 164 CrPC, without any plausible explanation.
SC No. 362/16 State Vs. Salman etc. Page No.: 19 of 58
29. Ld. defence counsel further pointed out the contradictions and variation in the statement of PW-7 Jagdish Sharma. It is pointed out that this witness stated that on coming to know about dispute between deceased and Salman, he got arranged a meeting in the presence of common man and counselled Salman on which said Salman had accepted his guilt and promised not to repeat the same in future. Ld. defence counsel submitted that it is beyond any imagination that despite knowing this fact and admittedly very much availability, he made his statement after more than 1¼ years. Apart from that he stated that he also visited the residence of the deceased and fish market, after the death of deceased but he did not know the cause of death and as per his statement, he had gone to PS with one Anwar but said Anwar was not made as a witness.
30. Ld. defence counsel further argued that as per the statement of PW-8 Irshad, registered owner of motorcycle bearing registration no. DL-8SAL-6754 make Yahma R-15, he himself used to drive the said motorcycle and on inquiries made by police, he stated to the police that he did not remember whether Salman, his friend, had taken said motorcycle and then during cross-examination by ld. Addl. PP, he denied the suggestion that on 12.01.2014 during evening hours, accused Salman had SC No. 362/16 State Vs. Salman etc. Page No.: 20 of 58 come to his house and demanded said motorcycle on the pretext that he has to go to Gurgaon and that on the next morning i.e. 13.01.2014 he had seen his motorcycle in front of his house.
31. Ld. defence counsel further submitted that even PW-10 Abdul, father of the deceased, was not aware to the fact that who had committed the murder of his son/deceased and even did not raise any suspicion against accused Salman and from this fact it is crystal clear that accused Salman had not extended any threats to anyone even same is not mentioned in his complaint Ex.PW10/B. Moreover, as per the statement of PW-16 SI Karamveer Singh, Incharge Crime Team, no chance prints were lifted from the spot as same were not available and even Crime Team Report was not handed over at the spot and prepared later on and from it, it is quite clear that same was prepared at the instance of the IO.
32. About deposition of PW-21, Sh. R. Eniyavan, who appeared on behalf of Dr. N.P. Waghmare, ld. defence counsel submitted that there is nothing on record to show that said witness was part of the FSL team and even his name did not appear in the list of witnesses and this all is against the prosecution case.
SC No. 362/16 State Vs. Salman etc. Page No.: 21 of 58
33. Contending all this, ld. defence counsel humbly prayed that in view of the over all facts and circumstances, prosecution case is full of contradictions and improvements and the chain of circumstantial evidence is not complete in all respect without any cogent and trustworthy material on record and as such, prosecution has failed to prove its case against the accused persons beyond all reasonable doubts and therefore, both accused persons are entitled for acquittal and prayed for their acquittal. Appreciation of oral evidence and other material on record:
34. To prove that the accused is a murderer is one of the most difficult tasks face by a criminal lawyer. The mode of proof may take diverse forms, it may be by both direct and circumstantial evidence. It may be through dying declaration, confession, evidence or near relations and so on. One or more modes of proof may be telescoped in a particular case. It my be borne in mind that burden of proving the case initially is on the prosecution which must prove it beyond all reasonable doubt.
35. The present crime is based on circumstantial evidence only, In such a situation, the case should be subjected to the tests as laid down in Padala Veera Reddy Vs. State of AP, AIR 1990 SC 79 (also Sharad Birdichand Sarda V. State of Mahrashtra AIR 1984 SC 622). SC No. 362/16 State Vs. Salman etc. Page No.: 22 of 58
36. It is clearly observed in case reported as State of Goa Vs. Sanjay Thakran & Anr. (2007 III AD (S.C.) 349 as under:
Para 13 : The prosecution case is based on the circumstantial evidence and it is a well settled proposition of Law that when case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of 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.
37. Besides the above, in another case reported as Sunder @ Sundarajab V State by Inspt of Police (2013) 2 scale 204 and also in judgment reported as Sharad Birdichand Sarda V. State of Maharastra (AIR 1984 SC 1662) the Hon'ble Supreme Court held as under:
"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
SC No. 362/16 State Vs. Salman etc. Page No.: 23 of 58 (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' as was held by this court in Shivaji Sahebrao Bobade v. State of Maharastra where the following observations were made :
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, there is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for this conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof to a case based on circumstantial evidence."
SC No. 362/16 State Vs. Salman etc. Page No.: 24 of 58
38. In Ramreddy Rajesh Khanna Reddy and Another vs. State of A.P [(2006) 10 SCC 172], the Hon'ble Supreme Court observed as follows:
"It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must from such a chain of event as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only the basis of the circumstantial evidence".
39. In Hanumant Govind Nargundkar V. State of M.P. [AIR 1952 SC 343], the Hon'ble Supreme Court held as follows :
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
SC No. 362/16 State Vs. Salman etc. Page No.: 25 of 58
40. Now court has to see whether chain of circumstantial evidence is complete without any break or not. As mentioned above and it is an admitted fact that the present case is based on the circumstantial evidence. There is no eye witness to the murder of deceased Faizan Malik. During the course of trial, the following circumstances arose :-
i) that the deceased Faizan Malik and accused Salman were doing the business of export of meat, chicken and fish in the fish market of Gazipur and it is alleged that there was a dispute between the deceased and accused Salman for long time on account of supply, rate of non-
vegetarian items to the parties in Laddakh, Kashmir etc. This pointed towards the possible motive which could be triggered the murder of the deceased;
ii) There was a meeting under the supervision of PW-7 Jagdish Sharma wherein the deceased Faizan told him that Salman had threatened to kill him if Faizan would not stop doing his business. This fact has also been alleged to be told by PW-2 Imran to PW-7 Jagdish Sharma, for which, accused Salman promised him not to cause any harm in future. Jagdish Sharma had advised them not to quarrel with each other.
iii) On the date, time and place of occurrence, the presence of accused persons was at or nearby the spot is being hinted by the deposition of PW-19 Surender Kumar, Nodal Officer, PW-20 Yogesh Tripathi and statement of accused Salman u/s 294 CrPC made the statement regarding recording of statement under Sec. 164 CrPC by ld. Metropolitan Magistrates vide Ex.C1 (colly. 6 pages) and Ex.C2 (colly. 9 SC No. 362/16 State Vs. Salman etc. Page No.: 26 of 58 pages) respectively apart from that, also documents Ex.C3 and C4 respectively whereas accused persons had refused to join in the polygraphy and narco analysis tests.
iv) At the instance of accused Salman, weapon of offence i.e. country made pistol and five live cartridges were recovered from his house.
(v) Doctor who had conducted the postmortem on the body of deceased also recovered two empty bullet cartridges from the body of deceased and same were not sent to Ballistic Expert for report with respect to the examination of weapon of offence and cartridges and compared it with the live cartridge as recovered from the house of accused Salman.
(vi) Accused persons during the course of interrogation disclosed about the fact of commission of offence by their disclosure statements Ex.PW11/G and PW11/H respectively. Accused Salman has also disclosed that he can get recover the weapon of offence i.e. the country made pistol which was lying in the almirah of his House No. 597, First Floor, Chhatta Lal Miyan, Delhi.
vii) Another circumstance on the basis of disclosure statement also that at the instance of accused persons, motorcycle bearing no. DL-8S-AL- 6754 with keys used in the commission of offence was recovered from H. No. 525, Chhatta Lal Miyan, main bazar road by accused Faizan on the day of incident which belong to one Irshad. Accused Salman also got recovered one ECCO Car bearing No. DL-8CL-6263 with keys from fish market, Gazipur which was used by accused Salman for his shop.
viii) The seized exhibit recovered at the instance of accused persons were sent to FSL on 27.05.2015 and exhibits which were recovered earlier from the spot were also sent to FSL Rohini. In his examination, PW-21 Sh. R. Eniyavan, JFACE Ballistics, FSL proved the FSL Report Ex.PW21/A SC No. 362/16 State Vs. Salman etc. Page No.: 27 of 58 prepared by Sh. N.B. Bardhan, Assistant Director.
ix) The Sanction u/s 39 of Arms Act for prosecution against accused Salman was accorded by PW-24 Sh. Kime Kaming, IPS, DCP (Traffic - Eastern Range) vide sanction order Ex.PW24/A.
x) PW-14 Dr. Ashok Sagar, Senior Resident, Forensic Expert of LBS Hospital had conducted postmortem on the body of deceased Faizan and proved his report Ex.PW14/A and opined the cause of death as Shock and haemorrhage consequent upon firearm injury to head and neck and also opined that all the injuries are antemortem in nature and recent in duration. Injury no.1, 2 and 4 individually and collectively sufficient to cause death in ordinary course of nature. Time since death was 14-16 hours prior to the postmortem examination.
Motive of murder:
41. PW-3 Ms. Surbhi Shakya testified in her chief examination that she and deceased were friends since 2008. She did not know much about his business but he used to tell her that there was stiff competition in the market. She came to know on 13.01.2014 that Faizan had been shot dead. She did not know who had murdered him or for what reason. On 27.03.2014, she was called by police and recorded her statement before police and ld. Magistrate. She was declared hostile and cross examined by ld. Addl. P.P in which she admitted that on 27.03.2014, she told to the IO that one Salman also used to run the same business in Gazipur Fish SC No. 362/16 State Vs. Salman etc. Page No.: 28 of 58 Market and he also used to supply meat in Laddakh and that due to profit of Faizan, Salman started nurturing enmity or grudge. She stated to the IO that Faizan discussed the matter with her and told her that Salman used to create problems for him. She stated that she has told all these facts to the IO at the instance of maternal uncle of Faizan whose name she know only as Saif. Personally, she did not know any such facts regarding Salman nor deceased Faizan told her so. She has denied the suggestion that she knew accused Salman or she is not identifying him due to the threats from the accused side.
42. PW-5 Mohd. Irfan, cousin of deceased Faizan Malik stated that on 12.01.2014 at about 10.40 pm, when he reached at the main gate of fish market in the Maruti Van, at that time Wagon R car of Faizan was parked in front of the gate of fish market near the road side. After getting down from the Maruti van, when he came near to Wagon R car, he saw that Faizan was lying at the driver seat and blood was oozing from his head and there was also smoke in the car. He saw that Faizan was already dead and he raised alarm and dialled the police at 100 number. He further stated that deceased told him that "Salman se bach ke rahiyo, aur airport pe maal dhyan se rakhiyo, Salman use idhar udhar kar deta hai". Faizan also told him that Salman used to create problem for him for his SC No. 362/16 State Vs. Salman etc. Page No.: 29 of 58 business and once Salman had quarreled with him at the airport.
43. PW-6 Ajay Kumar stated that he was also doing same business in Gazipur market. About 10-12 days prior to the date of murder of Faizan, Fazain (deceased) told him that one Salman is threatening and he advised him to apprise his father or make a complaint about it but Faizan told him that nobody is his enemy so there is no serious threat to his life. On 12.01.2014 in the morning at about 10.40 am, he had a talk with deceased Faizan who told him that one Salman who is doing business of chicken behind the mandi, was threatening him. He stated that he had not seen said Salman and do not know him personally. This witness was also declared hostile and cross examined by ld. Addl. P.P. and confronted with his statement u/s 164 CrPC dated 27.03.2014 Ex.PW6/A.
44. PW-7 Jagdish Sharma stated that he is the witness of conciliation proceedings conducted between the deceased and accused Salman in which, accused Salman had accepted his guilt and had promised not to harm deceased Faizan in future. He advised both of them not to quarrel with each other. Though, his statement was recorded on 18.04.2015. However, he was very much available on 12.04.2014 and regularly visited to fish market after the death of deceased. He has stated that one day, Anwar informed him on phone that Faizan had been SC No. 362/16 State Vs. Salman etc. Page No.: 30 of 58 murdered. He was out of station at that time. On 18.04.2015, IO had called him and made inquiries from him and recorded his statement. He further stated that after the death of deceased, he had gone to police station Gazipur with Anwar. At that time, accused Salman was already present there. Insp. Joon had told him that he had detained Salman in connection with the present case. Upon seeing Salman, he immediately recollected that he was the same person with whom, he had arranged meeting at the Mandi to sort out disputes between deceased Faizan and said Salman. He has gone to police station alongwith Anwar but Anwar was not made a witness in this case.
45. On the issue of business rivalry between the accused Salman and deceased Faizan, ld. defence counsel has contended that PW-2 Imran Malik got recorded his statement on 13.01.2014 and 10.04.2015 and there is gap of more than one year. He is a interested witness and the fact stated by him is an afterthought. In cross-examination on behalf of accused persons, he admitted that whatever was in his knowledge, he had stated whole facts before the IO on 13.01.2014. though he was available from 13.01.2014 to 10.04.2015 at his residence for making statement to the police or if police wanted to record his statement. He was also confronted with statement Ex.PW2/X1 and PW2/X2 wherein the fact that he knew SC No. 362/16 State Vs. Salman etc. Page No.: 31 of 58 name of Salman is not mentioned.
46. So far as the aforesaid persons examined by the prosecution in order to prove the said business rivalry between the deceased and accused Salman, ld. defence counsel agitated that there was no document/receipt/builty etc. with regard to supplying fish etc. in Laddakh etc has been collected nor it has been revealed during the course of investigation/trial that how much variation in rates of fish etc. which were supplied by the deceased and how much quantity was supplied etc was not brought on record by any ocular or trustworthy evidence.
47. The Court is in agreement of this contention raised by ld. defence counsel for the reasons mentioned in the judgment passed by this court.
48. So far as the contentions raised regarding the business rivalry between the parties, there are oral testimony of prosecution witnesses though, none of the witnesses has close associates either to deceased Faizan or to accused Salman so as to explain the rates, quantity and kind of items have to be supplied and exported in Laddakh, Kashmir etc on different occasions. There is nothing stated by any witness regarding the rates, quantity etc. or what rate was offered by accused Salman or Faizan (deceased) for supplying of these items. All the witnesses have SC No. 362/16 State Vs. Salman etc. Page No.: 32 of 58 conveniently stated that there was threat of Salman to the deceased. There is no specific date, time or place disclosed by any of the prosecution witnesses as to what was the alleged specific threats extended by accused Salman and what was the nature of those threats and in whose presence it was extended. There was no complaint lodged with regard to such threats by any of the member of the family of deceased to the police against accused Salman.
49. In the instant case, it is also alleged by the prosecution that accused Salman has business rivalry with the deceased and there is previous animosity between both the parties and the prosecution in order to bring home Section 300 IPC, examined PW-2 Imran, PW-3 Surbhi Shakya, PW-5 Mohd. Irfan, PW-6 Ajay Kumar and PW-7 Jagdish Sharma but none of these witness have made specific allegations as to give specific date, time or place for extending threat to the deceased Faizan by accused Salman either in their presence or in presence of any other person. Statement of these witnesses were not recorded on the date of incident or prior thereto and there was inordinate delay in recording their statements and there is no explanation for delay to record their statement by the prosecution.
SC No. 362/16 State Vs. Salman etc. Page No.: 33 of 58
50. As per the deposition made by the aforesaid prosecution witnesses at length, none of the witness has given specific date, time and place regarding threats extended by Salman to deceased Faizan nor any witness has complained to this effect to any authority or police. Even the actual threat was simply regarding the business rivalry which has no specific threat or intimidation to murder of deceased Faizan. Even there is no supplementary statement of any of these witnesses recorded though, these witnesses were available after the apprehension of accused persons.
51. Apart from that, the conduct of the accused persons after alleged crime having knowing and seen that deceased Faizan was being murdered with shooting with the firearm was a normal, as they were neither shocked nor they resorted to made admissions before any authority or never reluctant to help to the police to sort out the case. They have always available and joined the investigations several time. They have been thoroughly interrogated by various senior police officers at different occasions. The prosecution examined PW-2 Imran Malik, younger brother of deceased Faizan who stated that on 12.01.2014, his brother was murdered and on 13.01.2014, after performing last rites, they approached SC No. 362/16 State Vs. Salman etc. Page No.: 34 of 58 to the police where they stated that deceased Faizan used to run the business of supplying fish, meat and chicken in Fish Market and also exported in Laddakh. He also told to the police that one Salman also used to sell meat and other items in the said market and his brother before his murder told him that he was receiving threats from said Salman not to supply meat, chicken and other items in Laddakh, Kashmir. On 10.04.2015, he again went to Police Station Gazipur and repeated the said fact.
52. Keeping in view the aforesaid discussed material on record, as well as the deposition of prosecution witnesses and judgments cited and circumstance is allowed with respect to the business rivalry between the two, have not been proved by any authentic inspiring oral or documentary evidence. The statement of the above mentioned prosecution witnesses are neither cogent nor trustworthy on this issue, as raised.
53. Therefore, the crux of the matter is that the case is based mainly on circumstantial evidence required clear motive so as to culprit liable for the commission of crime. The complainant has not uttered any word about motive of crime in ruqqa which is based upon the complaint of complainant even name of the assailants(s) was also not mentioned while getting registered the FIR. In order to prove the motive, the prosecution SC No. 362/16 State Vs. Salman etc. Page No.: 35 of 58 examined PW-2 Imran Malik; PW-3 Surbhi Shakya; PW-5 Mohd. Irfan; PW-6 Ajay Kumar; PW-7 Jagdish Sharma and PW-10 Abdul Latif. However, their statements do not inspire confidence as none of these witnesses have ever been stated that the accused Salman has directly interacted and extended any threat to the deceased in their presence at any point of time. The statement of PW-3 Surbhi and PW-5 Ajay Kumar was also recorded u/s 164 CrPC though, both the witnesses have been declared hostile and cross examined by ld. Addl. P.P. but none of the witness has pin-pointed towards accused Salman as guilty of any foul play committed during business rivalry with the deceased.
54. It has revealed during the statement of PW-6 Ajay Kumar recorded under Sec. 164 CrPC that at the time of murder, tea shop etc used to open till 11/11.30 p.m. and around 10 steps away from the place of incident Gaurd also used to sit and said Guard must be awaken.
55. It is very strange that neither tea vendor nor said Security Gaurd was ever examined or produced before the court to stand with the prosecution case.
56. Admittedly, place of incident is a crowded place being Mandi is running and despite that none had seen the incident and no independent witness was cited nor produced as a witness which also creates a doubt SC No. 362/16 State Vs. Salman etc. Page No.: 36 of 58 on the prosecution case about involvement of accused persons.
57. Apart from that, Raja who informed the public witness Ajay, as per his statement recorded under Sec. 164 CrPC, about the death of deceased, has not been mentioned as a witness as to prove the fact that how he received information about murder of deceased.
58. Besides the above, complaints Ex. PW10/B & C - filed by father of Faizan Malik, deceased, are silent about the name of the assailant(s). It is also admitted position that no suspicion was raised against accused Salman. All this casts a mystery on the prosecution case. The name of accused Faizan revealed only in the disclosure statement of accused Salman and himself, none else.
Analysis of Call detail records of the accused persons:
59. The location of accused Salman and Faizan on the date of incident revealed through the CDR and CAF. PW-19 Sh. Surender Kumar, Nodal Officer of Bharti Airtel Ltd. has proved the original customer application form (CAF) of mobile nos. 9910784608 and 9910784606 alongwith copies of Driving Licence with respect to identification of applicant/accused Faizan S/o Arefeen vide Ex.PW19/A to PW19/D respectively. PW-19 was also recalled by the prosecution on application SC No. 362/16 State Vs. Salman etc. Page No.: 37 of 58 u/s 311 CrPC vide order dated 28.11.2018 apart from Ex.PW19/A to PW19/D, he also brought the CDR of mobile no. 9910784608 in the name applicant Faizan S/o Arefeen for a period of 01.12.2013 to 03.11.2014 vide Ex.PW19/E (colly. 94 pages), location chart for abovesaid period is Ex.PW19/F (colly. 8 pages) and Certificate u/s 65-B of Indian Evidence Act is Ex.PW19/G. Though, he stated that CDR record of mobile no. 9910784606 of the relevant period as the said CDR is not available in the system which is in the name of accused Faizan.
60. In cross-examination on behalf of ld. defence counsel dated 12.12.2018 (on being recorded after allowing the application under Sec. 311 CrPC vide order dated 28.11.2018 moved by State), PW-19 stated that online record/CDR of mobile phone can be preserved only for one year however, in this case, they sent the CDR to the DCP (East) through mail and they got it from the said mail. The record pertaining to the request of DCP(East) to preserve the CDR of the above mobile phone is available in their office and he can produce it. He further stated that the range of the tower is generally at a distance of 0 to 5 km in air to air and also depends on the density of the user. The said data was sent on the mail and certificate u/s 65-B of Indian Evidence Act was not given on the said mail. The mail of CDR was sent to DCP (East) and copy of the same SC No. 362/16 State Vs. Salman etc. Page No.: 38 of 58 has been generated as brought by him vide Ex.PW19/E. As per Ex.PW19/E, the location shown of above mobile no. 9910784608 found at 10.27 pm was at Sangam Park, Khoda Colony, Ghaziabad. As per Ex.PW19/E, the location shown of above mobile found at 10.42 pm was at Dilsahd Garden Industrial Area. He further stated that location is always of the mobile phone instrument and not of the user of mobile phone. It is not necessary that two persons are standing at the same positions and place, tower locations of both mobile phones are same and it depends upon the instrument as well as mobile company also.
61. Another contention of the ld. counsel to this effect is PW-20 Yogesh Tripathi, Alternate Nodal Officer from Reliance Communications Ltd. brought the CAF of mobile no. 8467891212 for a period of 01.12.2013 30.04.2013 and Driving Licence, PAN Card and Voter ID Card as proof of identity of applicant Salman S/o Mohd. Farooq. He proved the CAF vide Ex.PW20/A, copy of Driving Licence Ex.PW20/B and copy of PAN Card and Voter ID Card Ex.PW20/C (colly.). He testified that the CDR for the abovesaid period is already on record which was provided by Sh. Rajiv Sharda, the then Nodal Officer. He has identified signature of Sh. Rajiv Sharda at point A on CDR Ex.PW20/D and has also proved Certificate u/s 65-B of Indian Evidence Act issued by Sh. Rajiv Sharda vide Ex.PW20/E. SC No. 362/16 State Vs. Salman etc. Page No.: 39 of 58
62. Ld. Addl. P.P. has argued that CDR of mobile numbers of both accused persons and locations of accused persons and deceased at the time of commission of offence at the place of incident also proved the guilt of the accused persons.
63. So far as the CDR as brought on record in the statement of PW-19 Sh. Surender Kumar was summoned second time on the application u/s 311 CrPC whereas he categorically stated that he has not brought the CDR of mobile no. 9910784606 as the said CDR was not available in their system for the relevant period of time. Said mobile had been used at the relevant time by accused Faizan.
64. The document Ex. PW19/E is the CDR of mobile no.
9910784608 belongs to accused Faizan S/o Arefeen who received the call from mobile no. 8467891212 on 12.01.2014 at 22.27.44 hours. Similarly mobile no. 9910784608 made a call on 12.01.2017 which was before or after 10.30 pm and 10.40 pm and there call locations were at Sangam Park, Khoda Colony, Ghaziabad and Dilshad Garden Industrial Area which alleged to be 3 km. away from the spot where the incident in the matter took place. PW-20 Yogesh Tripathi, Nodal Officer in his statement on SC No. 362/16 State Vs. Salman etc. Page No.: 40 of 58 16.12.2016 stated that "CDR of mobile no. 8467841212 for a period from 01.12.2013 to 30.03.2014 already on record which was provided by Sh. Rajiv Sharda, the then Nodal Officer. He has identified signature of Sh. Rajiv Sharda at points A on CDR Ex.PW20/D and on Certificate u/s 65-B of Indian Evidence Act Ex.PW20/E. Hence, from the CDR and call location of the accused persons were not shown on or nearby the place of incident.
65. Thus, as per CDR of mobile phone number 9910784606 of accused Faizan, location chart and CDR has not brought for the relevant period of time though he was not seen nearby place of incident. CDR was also shown location of mobile phone but it does not show which tower it covers but the said CDR of accused persons has shown their presence far away from the place of incident and this fact was not rebutted by the prosecution.
66. Ld. Counsel for accused persons also relied upon the judgments of Rohit Dhingra & Anr. Vs. State of NCT, (2012) Criminal Appeal No. 926/2011, the Hon'ble High Court of Delhi observed that "The inference drawn on the basis of mobile tower details in the documents (Ex.PW16/C and Ex.PW16/D) could not have been held against them. That someone could have been present in the vicinity of scene of crime is a matter of probability. However, for the court to conclude that he was SC No. 362/16 State Vs. Salman etc. Page No.: 41 of 58 actually present, the prosecution had to establish - by application of the only relevant rule of evidence in this case i.e. Crl. A.926/2011 Page 12 accused and none else was present at the scene of crime. In other words, in the absence of positive material proving beyond reasonable doubt that the accused was at the scene of occurrence, the Trial Court could not have concluded that the appellants were so present in this case and then shifted the burden (not merely the onus) of proving that they were not at that place at the time when offence was committed".
67. Therefore, as per the CDR and location chart, it never revealed about the presence of the accused persons at the spot or nearby it. On this aspect, prosecution has failed to prove the CDR and location chart of the accused persons near to the place of incident. Disclosure Statement of the accused persons:
68. In cross-examination of PW-11 Insp. Kuldeep Singh, stated in para 3, second line that "The disclosure statement of the accused were recorded only after their arrest and no independent witness joined the investigation at the time of disclosure statement. The prosecution by relying upon the disclosure statement Ex.PW11/G also found out the motorbike used to commit the crime as per statement of PW-8 Irshad vide Ex.PW8/A, but in his statement, this witness has failed to support the said SC No. 362/16 State Vs. Salman etc. Page No.: 42 of 58 statement and case of prosecution. The prosecution has failed to establish that the accused Faizan had taken the motorbike from PW-8 Irshad on or before the date of incident and had used the same at the time of alleged crime.
69. Apart from all that, while Sec. 133 Evidence Act, 1872 shows that there is no legal taboo in convicting a person on the uncorroborated testimony of an accomplice; it remains only a legal theory, whereas in practice, no Court would do so. The Court may have to presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. This is the caution sounded by Illustration (b) under Sec. 114 Evidence Act. Philosophically, an accomplice, who betrays his associates is no fair witness. It is possible that he may weave false details into those which are true. It is mainly due to this possibility that the Courts, as a rule of caution, insist on corroboration on material aspect. Three reasons usually dissuade the Court from acting on he uncorroborated testimony of an accomplice (1) An accomplice is likely to swear falsely in order to shift the guilt from himself (2) an accomplice, as a participator in crime, is likely to disregard the sanction of the oath and (3) an accomplice gives his evidence under a promise of a pardon and this hope would lead him to favour the prosecution. But the nature of corroboration is that it should be SC No. 362/16 State Vs. Salman etc. Page No.: 43 of 58 confirmatory evidence. It may consist of the evidence of the eye-witness or of circumstances such as the conduct of the person. [Ref.: Sathyaseelan Vs. State of Kerala, 1991 CrlLJ 2941 (Ker).]
70. Hence, the disclosure statement of co-accused cannot be established the conjunctures unless to be proved by cogent and reliable independent evidence.
FSL Report:
71. The FSL report vide Ex.PW21/B is clear to the aspect as:
(1) The exhibit 'F1' is firearm as defined in Arms Act. It is an improvised pistol capable of chambering and firing standard 7.65mm ammunition.
(2) The exhibit 7.65 mm cartridges marked exhibit 'A1' and 'A3' were chambered and successfully test fired through exhibit improvised improvised pistol marked 'F1' in the laboratory. Hence, it is opined that exhibit improvised pistol marked 'F1' is in normal working order and exhibit 7.65mm cartridges marked 'A1' to 'A3' were live ammunition before they were test fired in the laboratory.
(3) The exhibit 7.65mm cartridges marked 'A4' and 'A5' are live ammunition and can be fired through standard 7.65 mm firearm.
(4) The pertinent characteristic marks present on the exhibit 7.65 mm empty cartridge cases already marked 'EC1' tEC5' xxx were compared with test fired through exhibit improvised SC No. 362/16 State Vs. Salman etc. Page No.: 44 of 58 pistol marked 'F1' under a comparison microscope. After thorough examination & comparison, firing pin marks present on exhibit 7.65 mm empty cartridge case already marked 'EC1' to 'EC5' xx were similar with the firing pin marks present on test cartridge cases fired through the exhibit improvised pistol marked 'F1'. Hence, it is opined that exhibit 7.65 mm empty cartridge cases already marked 'EWC1' to 'EC5' xx have been fired through the exhibit improvised pistol marked 'F1'.
(5) The individual characteristic striation marks present on exhibit 7.65 mm deformed bullets already marked "EBI" and "EB2" xxx are insufficient for comparison and opinion whether exhibit 7.65mm deformed bullets already marked as "EB1" and "EB2".
(6) The individual striation marks present on exhibit 7.65 mm bullet already marked exhibit 'EB3' xx were compared with recovered test bullets fired through exhibit improvised pistol marked 'F1' under a comparison microscope. After thorough examination and comparison, individual striation marks present on exhibit 7.65 mm bullet already marked exhibit 'EB3' xx were similar with striation marks present on test bullets fired through exhibit improvised pistol marked 'F1'. Hence, it is opined that exhibit bullet already marked exhibit 'EB3' xx had been discharged through exhibit improvised pistol marked 'F1'.
(7) The individual striation marks present on exhibit 7.565 mm bullets already marked "EB4" and "EB5" xxx are SC No. 362/16 State Vs. Salman etc. Page No.: 45 of 58 insufficient for comparison. Hence, opinion could not be given whether exhibit 7.65 mm bullets already marked "EB4" and "EB5" xxx have been fired through exhibit improvised pistol marked "F1" or not. (emphasis laid by this court.).
72. The expert report must be proved in accordance with law. The FSL report has been proved by PW-21 R. Eniyavan. Said witness is neither author nor member of team of examination of exhibits in FSL at any point of time. Dr. N.P. Waghmare who is admittedly and reported to be very much available in the office has not brought in the witness box in the present matter.
73. Even otherwise, the number of cartridges sent to FSL has not been tallied with the number of cartridges seized from the spot, as stated by Inspt. Joginder Singh and SI Karamveer Singh and as mentioned in the chargesheet. Even then, the expert opinion with respect to column no. 5 & 7 of his request as no opinion was given with regard to bullets "EB1", "EB2" and "EB5".
Site Plan:
74. It is pertinent to mention here that even rough site plan dated 13.01.2014 prepared by Inspt. Joginder Singh Joon has not proved in accordance with law. Inspt. Joginder Singh Joon who was examined as SC No. 362/16 State Vs. Salman etc. Page No.: 46 of 58 PW-26 is silent about preparation of any such site plan. It is not denial to the position of law that any document placed on record irrespective of its exhibition, marking or otherwise can be looked and considered by the court. It is very interesting to note that in the said site plan only four empty cartridges were shown as mentioned at points A, C, D & E while point B is of the place where deceased was reported to be lying at driver seat of the car. This itself is major contradiction even with the statement of this witness itself who stated that seven cartridges were lying at and around the spot. The scaled site plan Ex. PW15/A is contradictory to the rough site plan especially to the recovery of cartridges from there.
75. Apart from that, bullet recovered from the body of deceased and pistol recovered from the house of accused Salman were not sent to PW-14 Dr. Ashok Sagar, who conducted post-mortem on the body of the deceased for his expert opinion and even viscera of the deceased was not preserved to rule out the possibility of death of deceased otherwise.
Common intention:
76. Section 34 IPC has been enacted on principle of joint liability in doing of a criminal act. This Section is only a rule of evidence and does not create substantive offence. The distinctive feature is element of participation in action and essence of liability. Is to be found in existence of SC No. 362/16 State Vs. Salman etc. Page No.: 47 of 58 a common intention animating accused to do a criminal act in furtherance of such intention.
77. Nothing has brought on record to the effect that what was the motive of accused Faizan to commit the crime. None of the witnesses has ever stated that accused Faizan is ever connected with accused Salman in any manner as business partner etc. Neither any reason nor any motive nor any link has been alleged or proved on record which may connect the accused Faizan with the present crime i.e. of murder of deceased with common intention of anyone or with accused Salman.
78. Apart from that, perusal of the record is also clear to the aspect that there is neither any extra judicial confession of either of these accused persons. As mentioned above, nothing has come on record against either of these accused persons except the disclosure statement of co-accused or of his own.
Burden of proof of intention and circumstantial evidence of intention:
79. When intention is an essential element of an offence, the burden of establishing such intention lies on the prosecution. Ordinarily an act will be presumed to be intentional. But if there are special circumstances on the record of the case which indicate that the act may SC No. 362/16 State Vs. Salman etc. Page No.: 48 of 58 not be intentional, the burden lies on the prosecution to prove affirmatively that the act was done intentionally, and if in such a case the prosecution fails to discharge that burden, so as to place the question of intention beyond reasonable doubt, the benefit of doubt must go to the accused.
80. The best circumstantial proof of the intention of a person in doing an act is the nature of the act, his conduct and the circumstances surrounding the said act. The subsequent conduct of the accused and the surrounding circumstances may be looked at to ascertain his intention in doing the act. As mentioned above, accused persons remained available and joined the investigations from time to time as and when required.
81. In case reported as Harbeer Singh Vs. Sheeshpal AIR 2016 SC 4958, Hon'ble Apex Court held that:
"11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible of the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted."
SC No. 362/16 State Vs. Salman etc. Page No.: 49 of 58
82. While some of the circumstance might indicate a strong suspicion qua the accused, such suspicion by itself will not constitute proof. There is a distance to be travelled between "must be" and "should be". The following observations of the SC in Tanviben Pankaj Kumar Divetia Vs. State of Gujrat 1997 IV AD SC 517 are relevant in this context:
The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule SC No. 362/16 State Vs. Salman etc. Page No.: 50 of 58 of out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes the chain of circumstances the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously, it may happen to be short step between normal certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusion.
83. From the above said discussion, material on record and evidence as brought, prosecution chain of circumstantial evidence is completely broken at several places in the following manner:
(i) the statements of prosecution witnesses recorded at belated stage without any plausible reason and explanation despite their availability;
(ii) neither any oral nor any documentary evidence has been produced on record about business rivalry between accused Salman and deceased;
SC No. 362/16 State Vs. Salman etc. Page No.: 51 of 58
(iii) PW-3 Surabhi; PW-5 Mohd. Irfan; PW-6 Ajay and PW-8 Irshad did not support prosecution case and declared hostile;
(iv) prosecution has failed to establish the presence of either of accused at the place of incident or nearby it;
(v) PW-26 Inspt. Joginder Siungh Joon clearly stated that no incriminating evidence is found against either of these accused persons at the time of joining of investigations;
(vi) link of Salman, accused with Faizan, accused with motive to commit the crime by accused Faizan has not been established in any manner;
(vii) not sending of Weapon of offence to doctor who conducted post-mortem to ascertain whether injuries were possible with the recovered weapon; and
(viii) there is inordinate delay to arrest the accused persons and same has not been explained.
84. Besides the above, there are also lacunae in the investigation as chance prints were not lifted either from the spot or from the weapon of offence; difference in number of cartridges recovered and seized from the SC No. 362/16 State Vs. Salman etc. Page No.: 52 of 58 spot and non proving of rough site plan etc and this all also dent to the prosecution case.
85. Though, it is well settled law that, it is not the number of witnesses which is material rather it is the quality of the evidence which counts but it is also seen that public witnesses Raja, Anwar Saifi who were present with other public witnesses and ASI Bhagwat Dayal; SI Mohd. Faizan Ghani, Inspt. Vijay Kumar and Inspt. Naveen Kataria who partly investigated the case and/or associated with the investigations of this case were neither cited as a witnesses nor examined before the court and this all is a dent in the prosecution case.
86. In case reported as State Vs. A. R. Anthony Raj. 2004 CrlLJ 1720 (Kant.), it was observed that - "Circumstances inadequate to constitute a chain and that links in the chain are weak and inconclusive, the accused will be entitled to the acquittal."
87. With these observations coupled with citations on the issue, as discussed above, court came to the conclusion that prosecution has failed to prove its case beyond all reasonable doubts that it was either of these accused Salman or Faizan who has committed murder of Faizan, deceased, and as such, both these accused persons namely Salman S/o Mohd. Faruk and Faizan S/o Mohd. Arafin are entitled to the benefit of SC No. 362/16 State Vs. Salman etc. Page No.: 53 of 58 doubt. Accordingly, accused persons namely Salman S/o Mohd. Faruk and Faizan S/o Mohd. Arafin are acquitted for the offence punishable under Sec. 302/34 IPC.
88. Apart from this, accused Faizan has also been charged for the offence punishable under Sec. 27 Arms Act, as no offence punishable under Sec. 302/34 IPC is made out against either of these accused persons, no offence under Sec. 27 Arms Act is also made out against accused Faizan as there is no iota of evidence to link the said accused with the crime in question. As such, accused Faizan is further acquitted for the offence punishable under Sec. 27 Arms Act.
89. Qua offence punishable under Sec. 25 Arms Act framed against accused Faizan, prosecution has examined SI (inspt.) Kuldeep Singh (PW-11); Const. (ASI) Naveen; PW-23, Inspt. A.K. Singh (PW-27) in support of this charge.
90. Perusal of the record is clear to the aspect that accused Salman earlier opted for DE and even examined Mohd. Imran, his elder brother, as DW-1 but during the examination of this witness, accused opted to give up the testimony of this witness and submitted that he did not want to lead any defence evidence.
SC No. 362/16 State Vs. Salman etc. Page No.: 54 of 58
91. It is well settled law that testimony of the police officials are competent witnesses and conviction against the accused can be based on their sole testimony but an onerous duty has been cast upon the court to scrutinize their statements very closely in order to form an opinion whether they are reliable and trustworthy. In judgment reported as Govt of NCT of Delhi Vs Sunil (2001) 1 SCC , 652 it is held that:
"It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police record are untrustworthy. As a preposition of law the presumption should be other way around. That officials acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain articles was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular SC No. 362/16 State Vs. Salman etc. Page No.: 55 of 58 case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
92. Qua contention of ld. defence counsel regarding non joining of the independent public witnesses, this issue has been dealt in catena of judgments from different courts from time to time. In Union of India Vs. Victor Nnamdi Okpo (Crl. Appeal No. 617/2004 decided on 16.09.2010 by DHC), it was observed that:
"It is a common knowledge that generally public is averse to become a witness in a criminal case because of the attitude of the Courts in summoning the witnesses time and again and sending them back on the ground that either the counsel for the accused was not available or accused was not there. While departmental witnesses get leave from their office and also get necessary support from the offence regarding TA,DA , the public witnesses are treated in a very clumsy manner in the courts and they keep standing from morning till evening SC No. 362/16 State Vs. Salman etc. Page No.: 56 of 58 and then they are told that defence counsel is not available. That is the reason that public persons are scared to become a witness in criminal case and it is hard to find public witnesses these days. The case of the prosecution cannot be rejected on the ground of non examination of public witness or on account of non- joining of public witness. Neither the prosecution version of incident can be disbelieved only on the ground of non-joining of public witness or non examination of public witness for valid reasons."
93. All these witnesses in unequivocal terms stated that it was accused Salman who got recovered the countrymade pistol with five live cartridges. Sanction has also been duly proved as Ex.PW 24/A.
94. There is no ill-will, grudge or enmity as same has neither been alleged nor proved against any of these police officials. Sketch of the recovered arms and ammunitions has duly been proved. Seizure memo of the same has also been been duly proved.
95. Interestingly, no suggestion was put to PW-11 SI Kuldeep that no such arms and ammunition was ever got recovered from accused Salman.
96. FSL report Ex.PW21/B is clear to the aspect as:
(1) The exhibit F1 is a firearm as defined in Arms Act.
It is an improvised pistol, capable of chambering and SC No. 362/16 State Vs. Salman etc. Page No.: 57 of 58 firing standard 7.65 mm ammunition.
97. Hence, in view of the above reasons, court is of the view that prosecution has duly proved is case against accused Salman S/o Mohd. Faruk to the effect that he got recovered countrymade pistol with five live cartridge, without any valid licence, in contravention of notification issued by Delhi Administration, and as such, Salman S/o Mohd. Faruk is held guilty and is hereby convicted under Sec. 25/54/59 Arms Act. Conclusion:
98. Sum up of the above discussion is that both accused persons namely Salman S/o Mohd. Faruk and Faizan S/o Mohd. Arafin are acquitted of the offence punishable under Sec. 302/34 IPC. Accused Faizan is also acquitted of the offence punishable under Sec. 27 Arms Act. However, accused Salman S/o Mohd. Faruk is hereby held guilty and convicted under Sec. 25/54/59 Arms Act.
Announced in the open Court
SATINDER Digitally signed by SATINDER
KUMAR GAUTAM
on 28th day of January, 2019. KUMAR Date: 2019.01.28 16:24:29
GAUTAM +0530
(Dr. Satinder Kumar Gautam)
Additional Sessions Judge-03 (East):
Karkardooma Courts: Delhi.
SC No. 362/16 State Vs. Salman etc. Page No.: 58 of 58