Delhi District Court
State Of Kerala And Anr vs . on 13 October, 2010
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
FIR No.: 563/05
PS: Kamla Market
U/s: 302/394/397/411/34 IPC
S.C. No.: 121/05
Case ID No.02401R0971912005
In the matter of:
State
Vs.
1. Shehjad S/o Munir Ahmed
R/o 1695, Kucha Dakhine Rai Patudi House
Darya Ganj, Delhi.
2. Ziauddin S/o Mohddin
R/o 1154, Gali Sayyed Wali, Kala Mahal Darya Ganj,
Delhi.
3. Naeem Qureshi S/o Mohd. Yusuf
R/o 695 Khala Par (South) Muzaffar Nagar U.P.
4. Parmod Sharma S/o Rameshwer Dutt
R/o 122, Bank Enclave, Shakar Pur Delhi.
5. Gurcharan Singh @Gulshan S/o Rajender Singh
S.C. No.: 121/05 1/79
R/o 751752 I Block Jahangir Puri, Delhi.
Date of receiving in Sessions Court : 14.11.2005
Arguments Heard : 11.10.2010, 12.10.2010,
& 13.10.2010
Date of Judgment : 13.10.2010
JUDGEMENT
Case Of Prosecution:
1. On 15.7.2005 at about 4.26 p.m. vide DD no. 22 A, an information was received at P.S. Kamla Market that TSR Driver Nand Kishore was going towards Darya Ganj Side after taking his passenger and when he reached at Asaf Ali Road near Near B.K. Roy building, two motorcyclists came there. They gunned down the passenger sitting in the TSR and after snatching the polythene bags of the passenger, fled away from the spot. On receipt of the information, SI Om Prakash Singh alongwith Constable Prem Singh reached at JPN Hospital and obtained the MLC of injured wherein doctor had declared him dead. In the hospital, SI Om Prakash met the TSR driver who gave his statement that he earns his livelihood by driving the TSR No. DL1RG4052. A passenger having two polythene bags had boarded in his TSR from Karol Bagh for going to Golcha Cinema and they were going towards Darya Ganj. When at about 4.00 p.m. their TSR reached near Vardhman Bhawan, two motorcyclists came there and they stopped their motorcycle in front of his TSR due to which he had to stop his TSR. The pillion rider who was wearing helmet got S.C. No.: 121/05 2/79 down from the motorcycle and pushed him due to which he fell down on the road and before he got up, he heard a sound of bursting of cracker and that pillion rider after snatching away the polythene bags of the passenger fled away from the spot on his motorcycle. As per the TSR driver Nand Kishore, when he saw the passenger he was writhing in pain. Thereafter the TSR driver took his TSR to Turkman police post from where one police personnel accompanied him to JPN Hospital and they got the injured/passenger admitted in the hospital. After recording the statement of TSR driver, SI Om Prakash Singh got the case registered and further investigation of the case was handed over to SHO Ajit Singh who took into possession the sealed pullandas given by the doctors and also called the crime team at JPN Hospital. TSR no. DL1RG4052 was got photographed by the crime team in the hospital and the piece of plywood from the back seat of TSR having bullet injury was removed and taken into possession vide seizure memo and the led recovered from the TSR was also taken into possession. IO prepared the site plan at the instance of complainant Nand Kishore and recorded the statement of witnesses. During the course of investigation, it transpired that accused Shehzad , Naim Qureshi and Ziauddin had conspired to rob deceased Adil and in furtherance of their conspiracy on 15.7.2005 accused Shehzad was chasing the deceased in a TSR from Karol Bagh and was informing accused Naim Qureshi and Ziauddin about the position of the TSR of deceased from his mobile phone.
The call details of the mobile phones of accused were collected and seized by the IO. During the further course of investigation, it transpired that S.C. No.: 121/05 3/79 accused Naim Qureshi and Ziauddin had robbed the deceased and also shot him dead on 15.7.2005 at the instance of accused Shehzad and thereafter they had distributed the robbed amount among themselves. It further transpired that after the incident, accused Naim Qureshi and Ziauddin had taken shelter at the office of their associate Pramod Sharma at house no. 1, Sikandra Road where they spent the night and on the next day, accused Pramod Sharma dropped accused Naim Qureshi and Ziauddin at U.P. Boarder in his car. It further transpired that the accused persons had made conspiracy to rob the deceased at the tea stall of one Vijay Kumar who know all the accused persons. After the incident when accused Naim Qureshi and Ziauddin had taken shelter at the office of accused Pramod Sharma, accused Gurcharan @ Gulshan who was working as security guard there was also present there and he kept the pistols and cartridges of both the accused in his Diwaan which were later on recovered at the instance of accused Naim Qureshi and Pramod Sharma. The postmortem report of deceased Adil was received and all the accused were arrested in this case and Rs. 50,000/ each were recovered from the house of accused Shehzad and Ziauddin at their instance. All the bundles of recovered currency notes were having the stamp of Sikri Forex Services Ltd. on their top. A motorcycle bearing no. UP1556620 make Hero Honda was also recovered from accused Naim Qureshi which as per the case of prosecution was used in the commission of offence. It was found that the original number of the motorcycle was UP17A8901 and the same was stolen from P.S. Palwal, District Rampur (U.P.). The recovered motorcycle was also taken into S.C. No.: 121/05 4/79 possession. The call details of mobile phone of accused Naim Qureshi as well as Sanction U/s 39 Arms Act were obtained, statement of witnesses were recorded and after completion of investigation, charge sheet against accused Shehzad, Ziauddin, Naim Qureshi, Gurcharan and Pramod Sharma was filed in the court.
2. Since the offence U/s 394/397/302 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case under section 302 IPC r/w sec. 120B IPC & sec. 394 IPC r/w sec.397 IPC and U/s 341/120B IPC was made out against accused Shehzad, Naim Qureshi and Ziauddin and Pramod Sharma. Prima facie case U/s 25/27 Arms Act was also made out against Naim Qureshi and prima facie case U/s 212 IPC was made out against accused Gurcharan Singh. Charge was framed against all of them accordingly to which they pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 45 witnesses in all.
5. The brief summary of the deposition of the prosecution witnesses is as under:
Material Witnesses:S.C. No.: 121/05 5/79
6. PW1 is smt. Nuzhat Adil, wife of the deceased. This witness had shown her suspiciion on accused Shehzad. She has stated that on 15.7.2005 she received an information regarding the admission of her injured husband in the hospital by police officials after she made telephone call on the mobile phone number 9313467812 of her husband. The telephone was attended by one police official and during conversation she disclosed the name of her husband. She reached in the hospital alongwith her brother Rabi Ahmad where she found her husband dead. She stated that in the incident a sum of Rs. 6 Lacs were also robbed. He husband used to do the job of corrency exchange and he used to exchange the currency from Karol Bagh. She stated that prior to the day of occurrence her husband in the year 2000 used to do the job of currency exchange alongwith accused Shehzad and later on he started his business separately. She further stated that there was no dispute of her husband with Shehzad but he used to remain apprehensive and on one occasion her husband had told her that accused Shehzad was asking him to run the same business again with him and he was also demanding money from him. She further volunteered that through video clips she came to know that accused Ziauddin and Naim Qureshi are also responsible for the death of her husband.
7. PW 3 is Nand Kishore, the TSR driver in whose TSR the deceased was traveling on 15.7.2005. He alongwith one police official took the deceased to hospital and got him admitted there . He has supported the case of prosecution on the point of incident but has not identified any of the accused persons in the court.
S.C. No.: 121/05 6/79
8. PW 7 is Ved Prakash Sikri who stated that he is doing the job of foreign currency exchange in the name and style of Sikri Forex Services Pvt. Ltd. since last about 8 years. He know deceased Adil @ Raja since last about 6 to 7 months because he used to come to him for exchange of foreign currency. He stated that on 14.7.2005 Adil had made telephone call to him and asked him the rate of foreign currency and thereafter deceased came to him and gave him some foreign currency of different countries and thereafter he went away to collect his clothes and after about 15/20 minutes deceased came back to him and he handed over a cash of Rs. five lacs to him in lieu of foreign currency exchange. He further stated that deceased Adil did not visit him after 14.7.2005. He was called in the police station on the next day of the death of Adil. In the police station he was asked whether Adil had come to him to which he replied in affirmative. He further stated that in the Police Station he was also shown the photograph of Adil to which he had identified. In the police station, he was told by the police that Adil has been murdered and he had put the sample seal of Sikri Forex Services Pvt. Ltd. on the papers before the IO Ex. PW7/A.
9. PW 9 is Vinod Kumar who was the Security Incharge of Kothi owned by Ganga Sagar. He stated that he does not remember the date and month but is the matter of year 2005. On one day, police brought two accused persons present in the court at Kothi no.1, Sikandra Road. The witness correctly identified accused Naim Qureshi and Pramod Sharma. He stated that accused Pramod Sharma was employed with Ravinder Taneja. Taneja was running an office in that Kothi and the accused was employed in S.C. No.: 121/05 7/79 that office. He stated that he had not seen any other accused person present in the court alongwith accused accused Pramod Sharma and Naim Qureshi in that office or in that Kothi. He had also not seen any arms with accused Naim Qureshi. He further stated that on one night in the year 2005, he turned out accused Naim Qureshi from Kothi so he remember him by face who had come to stay there for overnight and at that time, the accused had told his name as Tyagi and nothing else happened in his presence.
10. PW 13 is Vijay Gupta, an eye witness of the case. He has fully supported the case of prosecution and has also identified accused Shehzad, Naim Qureshi and Ziauddin in the court.
11. PW 16 is Constable Narender Kumar who joined the investigation of the case alongwith IO Inspector Ajit Singh and SI Inderpal on 22.7.2005 and in his presence, accused Shehzad got recovered fifty thousand rupees from his house. He also identified the recovered currency notes in the court.
12. PW 18 is Constable Ieed Mohd. who alongwith with IO and other police officials arrested accused Naim Qureshi on receipt of secret information. In his presence, accused was interrogated and his disclosure statement was recorded. He further stated that accused Naim Qureshi also pointed out the place of occurrence and a pointing out memo in this regard was also prepared.
13. PW 19 is Rabi Ahmad, brotherinlaw of the deceased who stated that on 15.7.2005 at about 4/4.30 p.m. he was present at his house. He S.C. No.: 121/05 8/79 received a telephone call that his brother in law Adil has received injury and on receipt of the call, he alongwith his sister Nuzahat went to Irwin Hospital where he saw the dead body of his brother in law. Police was also present there. He was informed that a robbery has been committed with the deceased and police had also asked them as to whether they have any suspicion upon any person on which he and his sister had taken the name of accused Shehzad. He further stated that the deceased had told him and his family members about three months before the occurrence that accused Shehzad was demanding Rs. 10,000/ from him . He further stated that accused Shehzad and Ziauddin were arrested in his presence and their arrest memo and personal search memo bears his signature. In his presence accused Ziauddin got recovered a helmet and a packet of currency notes totalling Rs. 50,000/ from his house and accused Shehzad also got recovered Rs. 50,000/ from his house. This witness further identified the case property in the court.
14. PW 24 is Head Constable Tej Pal who was present in the police post on 15.7.2005 and took the deceased to JPN Hospital alongwith the TSR driver Nand Kishore and also informed the wife of deceased as well as control room about the incident.
15. PW 26 is Constable Prem Singh who on receipt of the call went to JPN Hospital alongwith SI Om prakash and took the rukka given by SI Om Prakash to Police station for registration of FIR and got the FIR registered there. He stated that on 2.8.2005 he joined the investigation of this case alongwith IO of the case and accused Pramod was arrested in his S.C. No.: 121/05 9/79 presence.
16. PW36 is SI Ranbir Singh who alongwith the raiding party arrested accused Naim Qureshi on 11.8.2005 in case FIR no. 371/2005, P.S. I.P. Estate U/s 186/353/307 IPC & 25/27, recorded his disclosure statement and also recovered the motorcycle bearing no. UP15 S 6620 from the accused. He stated that he informed the IO of this case about the arrest of accused Naim Qureshi and handed over copies of statement and other memos to the IO of this case.
17. PW40 is SI Om Prakash who on receipt of the information regarding the incident reached at LNJP hospital, recorded the statement of TSR driver and got registered the FIR of this case through Ct. Prem Singh. Thereafter he accompanied IO of the case to the spot and in his presence IO got the TSR inspected from Crime Team.
18. PW41 is ACP Ajit Singh, IO of the case, who conducted the investigation of the case, prepared the site plan, arrested all the accused persons, recorded their disclosure statements and after completion of investigation, filed the challan in the court.
19. PW42 is Inspector Inderpal Singh who was with the IO during the investigation of the case and In his presence IO arrested accused Shehzad and Ziauddin from Mirdard Road, Near Gurunanak Chowk, Delhi and recorded their disclosure statements.
Medical Witnesses:
20. PW2 is Dr. Ritu Saxena and PW 10 is Dr. Saifulla from Lok S.C. No.: 121/05 10/79 Nayak Hospital. They both examined the deceased on 15.7.2005 who was brought dead and proved the MLC of injured Adil as Ex. PW2/A.
21. PW4 is Dr. Anil Aggarwal and PW8 is Dr. Vinod from Maulana Azad Medical College. They both conducted the postmortem on the dead body of deceased and proved the postmortem report as Ex. PW4/A. Formal Witnesses:
22. PW5 is Head Constable Prabhu Dayal who registered the FIR and proved the same as Ex. PW5/A.
23. PW 6 is Constable Ranjit Singh who took the MLC and sealed parcel of the clothes of deceased given to him by the concerned doctor to the IO. He further stated that articles recovered during the personal search of deceased Adil was seized by the IO in his presence vide seizure memo Ex. PW6/B.
24. PW11 is Constable Rishi Pal who on the directions of duty officer, delivered the copy of FIR at the residence of Sh. S.K. Gautam area MM, DCP Central, Addl. DCP Central as well as at the residence of ACP Kamla Market on 15.7.2005.
25. PW12 is SI Ram Mehar Singh who on the directions of SHO, took the exhibits of this case from Malkhana to FSL office, Rohini and deposited the same there. Again on 16.10.2005, on the directions of SHO, he took the case property from Malkhana Moharar of P.S. I.P. Estate to the SHO, P.S. Kamla Market.
S.C. No.: 121/05 11/79
26. PW 14 is Constable Mahesh Kumar , photographer of the crime team. He took the photographs of three wheeler from different angles and proved the same as Ex. PW14/1 to Ex. PW14/11 and Ex. PW 13/DX, Ex. PW13/DX1 and Ex. PW13/DX2 and negatives of the same as EX. PW14/12 to Ex. PW14/25.
27. PW 15 is Inspector Devender Singh, Draftsman from Crime Branch, Delhi who on the pointing out of Nand Kishore, took rough notes and measurements of the place of occurrence and on the basis of rough notes, prepared the scaled site plan and proved the same as Ex. PW15/A.
28. PW 17 is Ved Prakash who stated that he know the accused Pramod Sharma present in the court as he was employed in their sister concern Universal Build Com India Limited at Sikandra Road, New Delhi. Accused Pramod Sharma was employed there alone and he was doing the work of care taker and his duty hours were 10. a.m. to 6.00 p.m. and accused used to return to his house at night.
29. PW 20 is R.K. Singh, Nodal Officer from Bharti Airtel Ltd. who proved the computerized ownership record of mobile phone no. 9810357833 as Ex. PW20/A and computerized call details as Ex. PW 20/B.
30. PW 21 is Aqil Ahmed and PW 22 is Nanhe Bhaiya . They are the witnesses of identification of dead body of deceased and had identified the dead body of their brother in law Adil in the mortuary of MAM College.
31. PW 23 is Ravinder who stated that his Hero Honda Motorcycle S.C. No.: 121/05 12/79 bearing no. UP 17 A 8981 was stolen by someone on 31.3.2005 from Rampur and he had registered the FIR in this regard at P.S. Patwai Rampur. Thereafter he came to Delhi and made a call to police on 100 number and during the search he came to know that his motorcycle has been recovered by the police of I.P. Estate and it is standing in the police station. Thereafter he gave a copy of the FIR and original RC of his motorcycle to the IO of this case which the police had seized vide memo Ex. PW12/A.
32. PW 25 is Abdul Wahid who was the neighbourer of deceased Adil and had identified his dead body at the mortuary of the hospital.
33. PW 27 is ASI Attar Singh who had recorded formal FIR no. 371/05 U/s 186/353/332/307 IPC against the accused Naim Qureshi and proved the same as Ex. PW27/A.
34. PW 28 is Head Constable Jashmer Singh who was posted as Wireless Operator at P.S. Kamla Market and received the information regarding the incident and got recorded DD no. 22 Ex. PW5/B through duty officer.
35. PW29 is Jyotish Mohrana, Executive Vodafone Essar Mobile Services Ltd. who proved the call details of mobile phone no.9899107680 as Ex. PW29/A and call details of mobile phone no. 9811269824 as Ex. PW29/B.
36. PW 30 is Ashish Bhandari, Executive Legal from Reliance Communication who proved the computerized records pertaining to mobile phone number 9313467812 and 9313045050 as Ex. PW30/B and Ex. S.C. No.: 121/05 13/79 PW30/D respectively. He further proved the call details of mobile phone number 9313045050 and 9312660749 as Ex. PW30/G1 to Ex. PW30/G21 and Ex. PW30/H1 to Ex. PW30/H11 respectively.
37. PW31 is ASI Lokesh Bhardwaj, the finger print expert who developed one chance print from the side angle of the TSR and thereafter prepared the finger print report in this regard and proved his report as Ex. PW31/A.
38. PW32 is Head Constable Jaswinder Singh who collected the details and other informations of mobile phone numbers 9313467812, 9810357833 9313045050, 9899107680 and 9811269824 from their respective companies and handed over the same to IO of the case.
39. PW33 is Head Constable Brij Lal, the MHC(M) who proved all the entries regarding the deposition of case property in the malkhana register.
40. PW34 is Vinod Gupta, Ahlmad from the court of Ms. Pratibha Rani, Tis Hazari Court, Delhi who brought the summoned case file of FIR no. 371/2005, P.S. I.P. Estate U/s186/332/353/307 IPC & 25/27 arms Act against accused Naim Qureshi and stated that as per the record, accused was convicted on 20.1.2009 for the abovesaid offences.
41. PW35 is SI Ashok Kumar, the Incharge of Crime Team who stated that on 15.7.2005 on the instructions of IO of this case, the photographer of the crime team had taken photographs of the three wheeler which was standing parked outside the emergency ward of the hospital and S.C. No.: 121/05 14/79 he had inspected the TSR and a hole was found on the back seat of TSR and a bullet led was also lying under the seat.
42. PW37 is Shailender Singh, Executive Legal and Secreteriat from Bright point India Pvt. Ltd. who stated that the reply letter dated 17.10.2005 was issued by Bright Point India Pvt. Ltd 76, Okhla Inds, Estate, Phase - III, New Delhi - 20 and the abovesaid office was authorized repairing centre of Nokia handsets. He further proved the reply letter as mark PW37/A.
43. PW38 is Sanjiv Sharma, General Manager from Vision Guard Pvt. Ltd who stated that in the year 2005 he was DGM (P&A) in Vision Guard Pvt. Ltd. and Accused Gulshan was employed as personal security Officer (PSO) from 1.8.2005 to 31.7.2005 with M/s Taneja Developers at no.1, Sikandra Road, New Delhi. He stated that on 17.10.2005 the police came to him for verification of his record and he told the abovesaid facts to the police and had also issued a certificate Ex. PW 38/A in this regard.
44. PW39 is SI Om Prakash who on 17.10.2005 on the instructions of the IO of this case, made inquiries from DGM of Vision Guard Pvt. Ltd., New Delhi regarding accused Gulshan @ Gurcharan Singh and obtained a certificate Ex. PW38/A issued by DGM in this regard.
45. PW43 is Santosh Kumar, Accountant Manager from Sagar Technologies Pvt. Ltd. who did not bring the summoned record and stated that L.G. Service Centre at J39, Central Market, Lajpat Nagar has since been closed in the year 2008 and the summoned record has been destroyed S.C. No.: 121/05 15/79 as they generally keep the record for three months only. He further proved the letter Ex. PW43/A issued by Sagar Technologies Pvt. Ltd.
46. PW44 is Sh. V. Shankara Narayanan, SSA (Bio) from FSL,Rohini who examined the exhibits of the case and proved the report as Ex. PW4/A and Ex. PW4/B.
47. PW45 is Sh. Puneet Puri, Senior Scientific Officer (Ballistic) cum Exofficio Chemical Examiner who examined the clothes of deceased, piece of rexine covered wooden board removed from the TSR, bullet lying in the TSR as well as pistol recovered from the accused persons and proved the report as Ex. PW45/A.
50. Statements of all the accused U/s 313 Cr.P.C. were recorded wherein they denied that case of prosecution and stated that they have been falsely implicated in this case. They have nothing to do with the alleged offence and PW Vijay Kumar is a false witness introduced by the police.
51. Except for accused Naim Qureshi all the accused chose to lead evidence in defence and they examined 10 witnesses in their defence.
52. I have heard the Ld. counsels for all the accused persons at length as well as Ld. APP for the state and have carefully perused the record.
53. All the defence counsels in unison have argued that PW13 Sh. Vijay Gupta is an implanted witness. He is a stock witness of the prosecution. They further argued that all the accused persons ran away from the spot as per the case of prosecution but no TIP of the accused persons was held. They further argued that PW13 in his cross has stated that he cannot S.C. No.: 121/05 16/79 remember any name for more than one hour but still he is able to tell the name of all the accused persons very well. They further argued that PW13 himself has admitted that his customers are generally labour class but none of the accused belongs to labour class family. They further argued that there is no fixed place of incident proved on record by the prosecution. PW13 is not able to tell the exact location and from his testimony, it is clear that the witness is not aware about the typography of the area. They further argued that immediately after the incident, the statement of PW13 was recorded wherein he was able to tell the amount of the looted money from the deceased and how he came to know about the same creates a doubt on the case of prosecution. Even in the site plan, no position of PW13 has been shown by the IO. Ld. Defence counsels further argued that except for the accused persons, PW13 does not know the name of any of his customers and in such circumstances, his testimony becomes doubtful. They further argued that as per PW13, auto rickshaw came back at the spot whereas all the other witnesses including the IO has stated that auto rickshaw was never brought at the spot. They further argued that the photographs which have been identified by PW13 of the spot are not of the spot but of the hospital. Counsel for accused Ziauddin argued that PW19 has admitted that deceased was Hindu by birth and PW13 also belongs to a Gupta family . He is a relative of deceased which who was never present at the spot and has been later on introduced by the prosecution. All the counsels further argued that there are numerous contradictions in the testimonies of PW41, PW42, PW19 and PW16 which creates a doubt on the case of prosecution. Even S.C. No.: 121/05 17/79 none of the eye witnesses of the case have supported the case of prosecution except for PW13 and further on the fire arms also which according to the prosecution had been recovered at the instance of accused Pramod Sharma and Naim Qureshi, no opinion has been taken from the doctors that injury can be caused from the same fire arm or not. Counsel for accused Shehzad and Naim Qureshi argued that the recovery of the firm arm is from the joint possession of accused Pramod Sharma and Naim Qureshi and same is therefore illegal. They further argued that PW13 was sitting at a distance of about more than 30 feet from the place of incident. That place is highly crowded area during the day time and it is impossible that PW13 was able to write down the number of the TSR as well as was able to see the accused persons so precisely. Counsel for the accused persons further argued that PW13 himself has admitted that he can make out the writing by slowly matching the letters and during such a short time, it is hard to believe that he was able to match the number of TSR. The driver as well as the pillion rider of the motorcycle were wearing helmet which was also fully face covered and in such circumstances, it is not possible that PW13 who was standing on the opposite side of the road was able to see the whole incident. They further argued that the site plan has been prepared at the instance of PW3 and if PW13 was present at the spot and was available being a tea vendor there, then there was no need to call any other person for the purpose of preparation of site plan. They further argued that if the names of the accused persons were mentioned by PW13 to the IO, then the FIR which has been recorded subsequently does not bear S.C. No.: 121/05 18/79 the name of accused persons which creates a doubt on the case of prosecution. Counsel for accused Shehzad further argued that for accused Shehzad the main allegations are for conspiracy of murder of the deceased and as per the case of prosecution, he is the main conspirator but the call details collected by the prosecution does not show that accused Shehzad had made call to other accused persons and also in the call details record, there is tampering and, therefore, it cannot be relied upon by the court. Counsel for accused Ziauddin argued that PW16 is a witness of recovery but not a single sentence has been uttered by this witness against accused Ziauddin although he has stated that he signed on the memos of recovery from Ziauddin. Ld. Defence counsels further argued that PW19 and PW1 both have stated that deceased was having six lakhs rupees whereas PW7 who is the money exchanger has stated that it was only Rs. Five Lakhs. They further argued that as per witnesses of recovery i.e. PW16, PW19, PW41 and PW42 the currency notes were seized and sealed by the IO at the time of recovery itself in a cloth pullanda but PW7 has stated that the notes were subsequently shown to him and when they were shown to him, they were not in the cloth pullanda. They further argued that there is a clear cut evidence of tampering of the case property. Different witnesses have given different versions regarding the house of accused Ziauddin or Shehzad i.e. whether their room was situated at first floor or second floor or from which place recovery was effected from them. So far as the recovery of pistol is concerned then all the counsels argued at length that none of the witnesses of prosecution have supported the version of prosecution regarding the S.C. No.: 121/05 19/79 recovery of case property except the IO of the case or the police officials. They further argued that being the police officials, it is highly unsafe to rely upon their testimony without being corroborated by any other public witness. They further argued that accused Ziauddin and Shehzad were arrested on 21.7.2005 and it seems that till the arrest of accused Naim Qureshi on 11.8.2005, no efforts were made by the IO to recover the case property . If all the accused persons were together then accused Ziauddin and Shehzad were also aware about the case property being kept in 1, Sikandra Road but it seems that no efforts were made by the IO till 11.8.2005 to recover the case property. There is no motive assigned to accused Pramod Sharma or Gurcharan to the crime as the recovery has been effected only from accused Ziauddin and from accused Shehzad. Counsel for accused Shehzad and Naim Qureshi further argued that PW1 and PW9 had only shown their suspicion and mere suspicion cannot take the place of proof. Ld. counsels for accused persons further argued that it was the duty of prosecution to prove its case against the accused persons beyond reasonable doubt and mere suspicion cannot lead to conviction of accused persons . Counsel for accused Shehzad argued that the IMEI number given by PW41 and PW42 of accused Shehzad is totally different. The mobile phone which according to the prosecution belongs to accused Shehzad does not belong to him as per PW20 and the IO has stated that it was registered in the name of some relative of accused Shehzad and he came to know that the said mobile number 9810357833 was used by accused Shehzad on 16.7.2005 from the secret informer and this evidence is not sufficient to S.C. No.: 121/05 20/79 prove the guilt of accused persons. He argued that there is no connecting evidence to connect accused Shehzad from this mobile phone as the mobile number was issued in the name of Mehar Jewellers. He further argued that as per PW7 deceased Adil wrapped currency notes in a polythene bag and thereafter kept the same in a clothe bag but in the recovery from accused persons no cloth bag has been recovered and moreover PW3 has stated that accused persons took away two polythene bags. Even PW41 has admitted that he cannot identify after seeing the currency notes as to which bundle of currency notes were recovered from which of the accused persons. He further argued that the mobile phone of deceased Adil was seized and sealed in the hospital itself by PW40 but as per admission of PW41 himself, it was used till 18.7.2005 after the death of deceased. They further argued that in the case diary dated 18.7.2005, it is mentioned that the TSR driver was taken to the police headquarter for preparing the sketch of the accused persons but if IO was aware about the identity of the accused persons through PW13 then there was no need for getting the sketch prepared of the accused persons from PW13 which shows that PW13 is an implanted witness. All the counsels argued that prosecution has miserably failed to prove its case against the accused persons beyond reasonable doubt and therefore, the accused are liable to be acquitted.
54. On the other hand, Ld. APP for the stated argued that though there are minor discrepancies here and there in the testimonies of Prosecution witnesses but these discrepancies does not go to the root of the case . He further argued that witness do forget after a lapse of time and present case is S.C. No.: 121/05 21/79 also no exception to this rule. He further argued that PW13 has fully supported the case of prosecution and has taken the name of all the accused persons and has also identified them in the court. Though PW3 has not identified the accused persons in the court but he has also not denied his statement given to the police. He further argued that PW7 has also identified the currency notes which have been recovered at the instance of accused Ziauddin and Shehzad and accused have failed to give any explanation regarding the recovery and, therefore, prosecution has been able to prove its case against the accused persons beyond reasonable doubt.
55. In the present case the prosecution has mainly led its evidence on the following points which can be categorized into :
1. Eye witnesses of the case.
2. Recovery of the currency notes as well as the weapon of offence at the instance of accused persons.
3. Call details and opinion of the experts.
4. Link witnesses/Evidence.
(i) Eye witnesses of the case:
56. PW1 is smt. Nuzhat Adil, wife of the deceased. This witness had shown her suspicion on accused Shehzad. She has stated that on 15.7.2005 she received an information regarding the admission of her injured husband in the hospital by police officials after she made telephone call on the mobile phone number 9313467812 of her husband. The telephone was attended by one police official and during conversation she disclosed the name of her husband. She reached in the hospital alongwith her brother S.C. No.: 121/05 22/79 Rabi Ahmad where she found her husband dead. She further stated that in the incident a sum of Rs. 6 Lacs were also robbed. Her husband used to do the job of currency exchange and he used to exchange the currency from Karol Bagh. She stated that prior to the day of occurrence, her husband in the year 2000 used to do the job of currency exchange alongwith accused Shehzad and later on he started his business separately. She further stated that there was no dispute of her husband with accused Shehzad but he used to remain apprehensive and on one occasion her husband had told her that accused Shehzad was asking him to run the same business again with him and he was also demanding money from him. She further volunteered that through video clips she came to know that accused Ziauddin and Naim Qureshi are also responsible for the death of her husband. So far as these video clips are concerned then, same has not been produced in the court by the prosecution till date. It is also not clear whether there are any such video clips or not. When PW1 herself has volunteered that there were some video clips then she must be aware of the same and they must have been shown to her but during the entire evidence for the last 5 years, the prosecution has failed to produce these video clips in the court for which only an adverse inference can be drawn against them. In her cross PW1 has admitted that her husband worked with accused Shehzad hardly for a month. She further has admitted that thereafter the deceased was arrested by the police in respect of his business with accused Shehzad of foreign currency exchange and he remained in the jail for about one year and after coming out of the jail, he started his own business. This witness is also not S.C. No.: 121/05 23/79 very straight forward in her evidence as at one place she has stated that her husband never shared anything in respect of his business with her but again she has stated that she know from where her late husband used to collect the foreign exchange and he used to give the foreign exchange to one Sikri in Karol Bagh and used to take the same from Jama Masjid. She has further stated that she and her husband did not make any complaint to any authority regarding any threat . Her later husband never had any rivalry with anyone but one month prior to his death, her husband had told her that accused Shehzad was asking money to enter into his business . It may be mentioned that this fact was never stated by her to the police in her statement given to the police. As per PW1, accused Shehzad was asking for money from her late husband but it seems that neither at that time nor even after the death of deceased, PW1 told this fact to the police in her statement Ex. PW1/DA. No such fact has been recorded by the police in Ex. PW1/DA. In her cross PW1 has further stated that she was told by the police officials about the aforesaid video clips but same was not displayed before her by the police and police had recorded her statement only once and when her statement was recorded she was not informed about the video clips by the police. She further stated that she never stated to the police that she had seen the accused in the video clips.
57. PW19 is Rabi Ahmad, brother in law of the deceased. He stated that the deceased had told him and his family members about three months back before the occurrence that accused Shehzad was demanding Rs. 10,000/ from him on his mobile phone but he does not remember the S.C. No.: 121/05 24/79 mobile number of the deceased. But no such fact has been stated by PW1 that deceased told her about this fact about three months back.
58. PW3 is Nand Kishore, the TSR driver who is one of the eye witness of the case. This witness has stated that on 15.7.2005 he was standing at Karol Bagh and was waiting for passengers and at about 3.30 p.m. one passenger came to him who was holding two plastic bags and asked him to accompany him to Golcha Cinema. The fare was settled for Rs. 30/ and when they reached near Ram Leela Ground, Ajmeri Gate one motorcycle whereon two persons were sitting came from the back side and they overtook his TSR and due to this he had to stop his TSR. The pillion rider got down from the motorcycle and pushed him as a result of which he fell down and could not stand up and before he could stand up, he heard the sound like bursting of cracker and also heard the scream of the passenger saying "Hai". He saw that the passenger was lying on the seat where he was sitting in the TSR but he did not notice any injury on his person. The pillion rider who had got down from the motorcycle decamped alongwith both the polythene bags which the passenger was holding. Thereafter both the occupants of the motorcycle fled away from the spot. He further stated that the motorcycle riders are not present in the court and he does not know any of the accused persons present in the court and he has seen the accused persons first time in the court. He further stated that since the passenger was robbed, so he took him to police post Turkman Gate in his TSR where he met one police official and asked him to see as to what had happened to the passenger lying in his TSR. That police official saw the passenger and also S.C. No.: 121/05 25/79 called him but there was no response. Thereafter the police official asked him about the place of occurrence and he alongwith the said police official went to the place of occurrence and thereafter they came back to the police post. From the police post, they took the passenger in his TSR in Emergency Ward of Irwin Hospital where the passenger was declared brought dead by the concerned doctor. Thereafter that police official conducted the proceedings but he does not know what proceedings were conducted by him . Some other police officials also arrived at the hospital and asked him to accompany them to the place of occurrence and he complied the instruction by pointing out the place of occurrence to them. Thereafter those police officials brought him again to the hospital from where they came to the police station. Police officials again brought him to the hospital from P.S. Ajmeri Gate and he brought his TSR to P.S. Ajmeri Gate. He further stated that his TSR was seized vide seizure memo Ex. PW3/A and he made his statement Ex. PW3/B before the police. He further signed on the documents Ex. PW3/C to Ex. PW3/F but he does not know about their nature. This witness has neither identified the accused persons nor he has stated anything against them. He has been cross examined at length by Ld. APP for the state. So far as the documents are concerned then, the answer of this witness remained same that he does not know about the contents of these documents. So far as his statement Ex. PW3/B is concerned, in this statement also he has clearly stated that the pillion rider was also wearing helmet. In his statement Ex. PW3/B, this witness has stated that he can identify both the accused if they are produced before him S.C. No.: 121/05 26/79 but there is no TIP and so far as identification in the court is concerned, this witness has not identified any of the accused. In his cross by Ld. APP for the state, he has admitted that the pillion rider was approximately 5 feet 8 inches in height but he has also stated that he did not tell to the police that the pillion rider was lean and thin. He has also stated that the mud was applied on the plate bearing motorcycle number and therefore he could not read the same. He has further admitted that he stated to the police that he can identify the persons if brought before him. But so far as his supplementary statement is concerned then, this witness has denied having made the same to the police. He has been cross examined by Ld. APP for the state but he has denied have made any supplementary statement mark A3 to the police. The consistent stand of PW3 is that he did not make any supplementary statement mark A3 to the police. In the supplementary statement, name of accused Ziauddin, Shehzad and Naim Qureshi appears but this witness has denied having made the same to the police. He has stated that he had not made any such statement to the police. He has also denied that the police prepared the site plan of the scene of occurrence at his instance or that he approached the police to tell that the person who had fired the gun shot and had snatched the bags was Naim and the person who was driving the motorcycle was accused Ziauddin. He denied having made any such statement to the police. He further denied that both the accused persons alongwith accused Shehzad in the morning hours came to his residence or gave threats to him. He further denied that he visited the police station and there it was informed that two accused persons wanted in this S.C. No.: 121/05 27/79 case would come at Guru Nanak Chowk and he alongwith the police party went there and at about 6.45 p.m. one scooter bearing no. DL 6ST 4805 was stopped by the police party which was occupied by accused Shehzad and Ziauddin who were identified by him. He also denied the fact that on 29.9.2005 on the requisition of the IO, he visited the police station and from there be accompanied drafts man Devender Singh to the place of occurrence and the site plan was prepared at his instance. PW3 is the eye witness of the case. The deceased Adil was traveling in his TSR at the time of incident and it was he who first saw both the motorcycle riders who robbed the deceased and also shot him dead but PW3 has not identified any of them. Rather he has stated that on the motorcycle's number plate, there was mud so he could not read the same. He further stated that the pillion rider who shot the deceased was wearing helmet at that time. The helmet produced in the court by the prosecution is also fully face covered and this fact is also mentioned in the report of the prosecution U/s 173 Cr.P.C. In such circumstances, though PW3 saw the assailants from a very near distance but it is hard to believe that he shall be able to subsequently identify that person without helmet.
59. PW13 is Vijay Gupta. This witness has stated that he know accused Shehzad , Naim and Ziauddin present in the court. He further stated that he was running a tea shop on the Patri of Asaf Ali Road, Near Ram leela Ground, New Delhi. Accused Shehzad used to come to take tea on his shop. On 13.7.2005, accused Naim and Ziauddin came with accused Shehzad on his tea shop for taking tea and he served three cups of tea to S.C. No.: 121/05 28/79 them and they were talking with each other that expenses has been increased but there is no source of income. Accused Shehzad told them that there is a person who used to deal in currency and used to go with currency in between 4 or 4.30 p.m. He did not care about their talks. Thereafter on 15.7.2005 at about 4.28 p.m. he was present on his tea shop and before that at about 3.55 p.m. accused Shehzad came on his shop and accused Ziauddin and Naim also came on a motorcycle from behind and they put their motorcycle in front of a three wheeler. The three wheeler stopped. Accused Ziauddin was driving the motorcycle and motorcycle was in starting condition. Accused Naim got down from the motorcycle and started quarreling with the person who was sitting in the three wheeler scooter. Thereafter accused Naim hit a bullet on the person who was sitting in the three wheeler scooter. He heard the thunder of bullet. The witness further stated that accused Naim snatched two polythene bags and sat on the motorcycle of accused Ziauddin and ran away from there. Accused Shehzad also remained present on the Patri near the occurrence during the incident and also went away when accused Ziauddin and Naim went away from the spot. He further stated that when accused Shehzad came on his shop and after taking tea he went away on the Patri where the occurrence took place, he demanded his twelve rupees from him but accused Shehzad made signal towards him while saying that "Mil Jayenge". Thereafter police came at the spot and done necessary investigation. Somebody had told the police that Shehzad used to take tea on his tea shop and thereafter police came on his shop and inquired about Shehzad and he stated the abovesaid facts to the S.C. No.: 121/05 29/79 police. It may be mentioned that this somebody has not been explained by PW13. Neither during the entire prosecution evidence, the IO or the other police official who accompanied the IO has told about this somebody who told this fact to the police that accused Shehzad used to take tea from the tea shop of PW13. PW13 further stated that he does not remember the number of three wheeler but he know the three wheeler driver only by face. He also stated that number plate of the motorcycle was covered with mud and number was not visible. He further stated that the persons whom accused Naim had hit bullet had died at the spot. It may be mentioned that PW3 who was sitting in the TSR itself had only heard the sound of cracker. He has not stated anything about the bullet being fired on the passenger sitting in the TSR and further he has not stated that the person died on the spot but PW13 who was sitting at a distance of about 30/40 feet away from the TSR and was on the other side of the road has stated that the person died on the spot. PW13 further stated that he neither can identify the three wheeler scooter nor the polythene which accused Naim had snatched from the deceased. This witness has been cross examined at length by Ld. Defence counsels. In his cross examination this witness has stated that he used to run his shop under a tree. All the counsels argued that there is no tree on the entire Asaf Ali Road where the incident is stated to have taken place. Neither the same has been shown in the scaled site plan Ex. PW15/A or Ex. PW42/DA. No doubt Asaf Ali Road is thickly populated area and the road is also busy road during the day time at about 4 p.m. There is every S.C. No.: 121/05 30/79 possibility of Traffic Jam on the road and in that condition during that period it is very strange that PW13 who was sitting in front of Mazjid Faize Ilahi as per IO PW41 at point 'x' on Ex. PW42/DA was able to see the occurrence which took place about 30 feet away from him and was also able to see both accused Naim Qureshi and Ziauddin and was further able to see that there was mud on the motorcycle and was also able to see that polythene bags were snatched from the passenger sitting in the TSR or the passenger was shot dead in the TSR. PW13 further stated in his cross that his customer are only rickshaw puller, tongewalas and there is no customer of any substance except the labour class. Ld. Counsels for the accused persons argued that none of the accused belong to that class. They further argued that accused Shehzad and Ziauddin are living in the nearby area and it is hard to believe that they will come to take tea after covering such a long distance from the shop of PW13. The submissions of Ld. Defence counsels bear force and cannot be ignored. PW 13 has further stated that he does not give tea or any other item on credit to anyone which is in contradiction to his statement given in the examination in chief where he has stated that he demanded his twelve rupees from accused Shehzad but he made signal towards him while saying that "Mil Jayenge". PW13 has further stated that he does not know the name of any of his customers or Chowkidar or owner of the building or any other shop. It is very strange that this person who does not know the name of any of his customers or Chowkidar or the owner of the building or any other shop where he was S.C. No.: 121/05 31/79 sitting as tea vendor is able to remember the name of all the three accused persons precisely. This witness has further stated that after the incident about 18 months back he had shifted his thea as it was removed by the corporation from the Patri of Asaf Ali Road and he shifted his thea to Bus Stop Mehrauli. The evidence of this witness has been recorded on 19.12.2006 which means that in the last months of 2005 this witness had shifted his thea but summons sent by the court served on 25.7.2006 upon one Suman at Tea Shop footpath, Opposite Park, B.K. Roy Court Building, Asaf Ali Road, Delhi. There is a report that Smt. Suman Wife of PW13 had disclosed that PW13 has gone to Vaishno Devi Amar Nath. PW13 has stated that he does not know anybody by the name of Suman and he never visited Vaishno Devi or Amar Nath. Even if for the argument's sake we believe that the report on the summons is false one but this fact cannot be ignored that even in July 2006 the summons had been served at one Tea Shop Footpath, Opposite B.K. Roy Court Building, Asaf Ali Road, Delhi whereas PW13 has stated that he left the abovesaid place about 18 months back. PW13 himself has stated that he did not inform the police about his shifting to Mehrauli and also did not inform any of the nearby vendor or neighbour while shifting to Mehrauli. Then how he came to know about the date of the case? Ld. APP for the state argued that PW13 himself went to the police station 5/6 days back before the court date as stated by him in his cross and there he was told that he had to give evidence in the court. PW13 has further stated that he has seen Haz Manjil. On one side there is park S.C. No.: 121/05 32/79 and on the other side there is a mosque if we face toward Haz Manjil. After seeing Ex. PW42/DA it is clear that though there is a park but that park is at a distance from the Haz Manjil and so far as the mosque is concerned then there is no mosque. In Ex. PW15/A and Ex. PW42/DA the Masjid Faize Ilahi is shown but that is on the other side of the road and it cannot be said on the said of Haz Manjil if we face towards Haz Manjil. This witness has further stated that there is a verandah of B.K. Roy building adjacent to the STD booth. This witness has further stated that his tea stall is situated at the corner of Mosque which is situated in front of Haz Manjil. If we took the corner of Mosque as that of Masjid Faize Ilahi as the sitting place of PW13, then it means that PW13 was sitting on the other side of the road on which the incident took place. PW41 and PW42 have also stated that the place of sitting of PW13 is at point 'x' on Ex. PW42/DA and Ex. PW15/A. In such circumstances whether PW13 could see the whole incident so clearly that he was able to see that the motorcycle rider as well as the pillion rider were wearing helmet and can identify them so precisely is hard to believe. It is also hard to believe that he was able to see accused Naim Qureshi snatching both the polythene bags from the passenger sitting in the TSR and also heard the sound of bullet shots. PW13 himself has admitted that the width of the road between tea stall and Haz Manjil is 17 paces on the one side, then a road divider is there , then 17 paces on the other side, which means around 30 feets. He has also admitted that there were iron grills dividing the road. It is not only that the incident took place S.C. No.: 121/05 33/79 on the other side of the road but there were also iron grills dividing the road. In such circumstances PW13 could able to see the whole incident on the other side of the road when there were also iron grills on the divider of the road is very doubtful. PW 13 has further stated that the mosque adjacent to Haz Manjil is situated within Ram Leela Ground. But as stated above there is no Mosque adjacent to Haz Manjil. PW13 himself has admitted that the road in front of Haz manjil is always crowded day and night with traffic and is a thickly populated area till the late hours of the night. He has further admitted that traffic coming from New Delhi Ajmeri Gate is diverted to the road in front of P.S. Kamla Market after 12 O'clock noon and goes towards the main gate of Ram Leela Ground and not from the Haz Manjil which is situated on Asaf Ali Road. He has also stated that there is no police barricade put on the crossing of HazManjil. In his cross, this witness has stated that he is selling tea in the area of Mehrauli while roaming having a Angeethi and Cattle. Ld. Defence counsels argued that in Delhi city till date they have not seen any person carrying an Angeethi and Cattle and roaming in the area and selling tea. The submissions of defence counsels bear force as it is not possible that a person while roaming carrying Angeethi and Cattle can prepare the tea. PW13 has further stated that there is park between B.K. Roy Building and the DCP Vigilance Office and length of the park across the road is about 50/60 steps . But his testimony again becomes doubtful in this regard as there is no park shown in between B.K. Roy Building and DCP Vigilance office in the site plan Ex. PW15/A S.C. No.: 121/05 34/79 and Ex. PW42/DA. PW13 in his cross has further admitted that there was advertisement board on the railing but he does not know the name of the company. Thus, not only the iron railings were there but also the advertisement board was affixed on the railings and in such circumstances it is hard to believe that PW13 was clearly able to see both the accused persons from such a distance in such a thickly populated area from the other side of the road. PW13 himself has admitted that road of his side remains traffic jammed. PW13 further has admitted that when the motorcycle stopped in front of auto rickshaw , the traffic which was coming behind the auto rickshaw also stopped. In such circumstances a huge traffic jam must have occurred at that time on that place but it seems that except for PW13 nobody else was willing to join the investigation or the IO did not bother to join any other person as witness. PW13 further has stated that accused Shehzad went towards the opposite side from his thea by crossing the broken railings and the face of auto rickshaw was towards TurkMan Gate Police Post and the face of motorcycle was also towards same side. PW13 has admitted that there was traffic jam just in front of his thea. Even if PW13 was not preparing tea at that time and was in standing position still it is hard to believe that in that Jam of the vehicles standing on the road he can see both the accused persons with accused Shehzad. PW13 has further stated that the riders of the motorcycle were without helmet and has further stated he he saw the entire incident by sitting on his thea. PW13 himself has stated that he had a peti of apple and a stone of footpath and S.C. No.: 121/05 35/79 other articles to prepare the tea at his shop. If he was sitting on that peti of Apple or the stone then, it is next to impossible that in that Jam also which was in front of his thea he was able to see across the road which was having iron railings and those railing were also having advertisement boards affixed on the same and saw both the accused persons so precisely. PW13 has stated that the riders on the motorcycle were without helmet but his testimony is in contradiction to the case of prosecution because as per the case of prosecution, even the pillion rider was wearing helmet. In the cross of PW 3 ld. APP for the state himself has given a suggestion that the pillion rider was also wearing helmet which has been admitted by PW3. Moreover there is recovery of helmet by the prosecution which shows that accused persons were wearing helmet at that time. In the cross recorded on 24.1.2007, PW13 himself has admitted that space between his thea is also not vacant and there are dhabas and tea stalls but again in the cross recorded on 27.1.2007 this witness has stated that there was no Khokha or shop in the right or left side or back side of his thea. PW13 has further stated that there is no 'Rein Basera' (night shelter) adjoining to the DCP vigilance office towards Ajmeri Gate but there is a park. His testimony to this effect is in clear contradiction to Ex. PW42/DA. As per PW13 incident occurred just in front of the park. No doubt the place of incident is shown to be in front of park but it is not next to DCP Vigilance office as stated by PW13. PW13 has further stated that he can make out the writing by slowly matching the letters. He has further stated that the number of RSR is 4052. PW13 himself S.C. No.: 121/05 36/79 has stated that he can make out writing by slowly matching the letters. The whole incident must have taken about 5 to 10 minutes and in such a short time PW13 who is just third class pass was able to read and remember the number of the TSR is also hard to believe. According to PW13 the police met him after 45 minutes of the incident and he was taken to the police station where his statement was recorded. But as per PW3 immediately after the incident he took the passenger with the TSR to Police Post and from the police post, they came to the place of incident and from there they took the passenger to Irwin Hospital. In such circumstances the Auto rickshaw should not have been present at the spot and was not also present at the spot as per PW41 IO of the case himself but it is only PW13 who has stated that auto rickshaw was present at the spot with the police persons when he reached there. According to PW13 the photographer came at the spot and took photographs. PW13 has stated that he read the registration number of TSR while sitting on his thea which was written on the left side of auto rickshaw on the side of passenger sea. On the side of passenger seat, the TSR number is mentioned in very small letters and during that period while sitting only on his thea it is hard to believe that PW13 was able to read and remember the number of TSR. He himself has admitted that there is a curtain on the passenger's seat and the photograph Ex. PW13/DX. PW13/DX shows the TSR. If there was a curtain on the passenger's seat and PW13 was sitting on the other side of the road then in no circumstances it was possible for him to see the face of the person who shot S.C. No.: 121/05 37/79 the passenger sitting in the TSR while sitting on his thea.
60. PW13 further stated that the photograph PW13/DX is of the site because boundary wall of the park where the incident took place is visible in the photograph. He further stated that the person shown in the photograph Ex. PW13/DX1 walking by the side of TSR is not him and his thea is situated at a distance of about 20/30 paces from the spot shown in the photograph Ex. PW13/DX. He further stated that the boundary wall in photograph Ex. PW13/DX1 appears to be of Masjid at point 'A'. He further stated that these photographs were taken before his statement was recorded and after one hour of the incident. PW14 is the Photographer Contable Mahesh Kumar. He stated that the IO of the case called the crime team in LNJP Hospital and TSR no. DL1RG 4052 was standing in the LNJP Hospital and on the directions and pointing out of the IO of the case, he took 14 photographs of the three wheeler from different angles. He further stated that he prepared the photographs and handed over the same to IO of the case and the same on record as Ex. PW14/1 to Ex. PW14/11 and Ex. PW13/DX, Ex. PW13/DX1 and Ex. PW13/DX2. PW14 has stated that he took the photograph of the auto rickshaw where it was found stationed as shown in the photographs and he had not taken the photographs of the auto rickshaw by stationing it at different spots and he had not visited the spot of alleged incident and he remained in the hospital for about 40/50 minutes. He further stated that the photograph Ex. PW13/DX2 was taken near the emergency ward of JPN hospital in the compound and photograph Ex. PW13/DX shows inside wall of the hospital and Photograph Ex. S.C. No.: 121/05 38/79 PW13/DX1 also shows the same inside wall. With these contradictions it is clear that the photographs which have been stated by PW13 as that of the spot were never taken at the spot and they were in fact taken at LNJP hospital by the photographer and the boundary wall which has been stated by PW13 as that of the spot or that his thea is shown at a distance of 20/30 paces from the photograph Ex.PW13/DX is all false. PW13 it seems when confronted with these photographs has very confidently deposed about these photographs as belonging to the spot whereas in fact they were never taken at the spot. The TSR was never taken back to the spot nor the photographs were taken at the spot as per the photographer PW14 himself. It seems that PW13 very confidently has told a lie in the court.
PW13 has further stated in his cross that he had never seen the TSR driver at any point of time whereas firstly he had stated that the TSR driver was shown to him by the IO and thereafter he had further stated to the IO that he can identify the driver if shown to him. PW13 further stated that he never told to the police that on 13.7.2005 accused Ziauddin and Naim came with accused Shehzad on his tea shop for taking tea and he had served three cups of tea to them and they were talking with each other. If he has not stated to the police these facts then certainly there is improvement in the testimony of PW13 in the court which cannot be ignored by the court. Not only it cannot ignored by the court but the court has to see the testimony of PW13 also with extra care and caution due to his conduct. PW13 has further stated that he did not state the name of accused Ziauddin and Naim to the police. If PW13 did not state the name of Ziauddin or Naim S.C. No.: 121/05 39/79 to the police then how and under what circumstances police officials came to know about the name of accused Ziauddin and Naim Qureshi has not been explained by the prosecution. He further stated that police had not shown him the photographs of Ziauddin and Naim and he had not participated in the identification proceedings. Neither PW3 nor PW13 gave the name of accused persons to the IO. Then how the name of accused Ziauddin and Naim Qureshi cropped up in the statement U/s 161 Cr.P.C. of accused Vijay Gupta has not been explained by the prosecution. Moreover as per the prosecution case himself the accused ran away from the spot. Their names were given neither by PW3 or by PW13 to the IO. Then in such circumstances their TIP was must after their arrest (Even if for argument's sake we believe that they were arrested in pursuance of their disclosure statement or on the disclosure statement of coaccused) but no TIP proceedings were got conducted by the IO during the investigation . PW13 has further stated that he saw accused Ziauddin and Naim first time on the Thiea and thereafter in the court. In such circumstances in the absence of any TIP on record the identification of accused persons in the court is of no value. Reliance is placed upon AIR 1979 Supreme Court 1127 wherein it has been held that : " Where a witness identifies an accused who is no known to him in the court for the first time, his evidence is absolutely valueless unless there has been a previous T.L. Parade to test his powers of observations. The idea of holding T.L. Parade under section 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If no T.L. Parade is held then it will S.C. No.: 121/05 40/79 be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court".
61. PW13 in his cross recorded on 27.7.2007 has stated that he forget the name within one hour and he does not remember the name if any police official who told him about the summons as he forget name within one hour. It is very strange that he is able to remember the name of all the three accused persons i.e. Shehzad, Naim Qureshi and Ziauddin very precisely. Again PW13 has stated that he told to the IO that on 15.7.2005 at about 3.55 p.m. accused Shehzad had come on his shop and accused persons Ziauddin and Naim came on motorcycle from behind and they put their motorcycle in front of a TSR and the TSR stopped. This fact has no where been stated by PW13 in his statement given to the IO. Thus, there is a lot of improvement made by PW13 in the court from his statement given to the IO. Even if for argument's sake we believe that previously the accused had come to the thea of PW13 or PW13 used to run the thea of tea on the spot but is very hard to believe that while sitting on his thea when there was a traffic jam in front of his thea he was able to see what was happening across the road and was also able to see accused Naim Qureshi snactching away the bag from the passenger sitting in the TSR and ran away on the motorcycle with accused Ziauddin. The whole incident must have taken not more than 5 to 10 minutes and during those five/ten minutes it is not possible for a person who is sitting across the road to watch the whole incident and to notice the number of the TSR also and to see both the accused persons with clear precision and thereafter to remember their S.C. No.: 121/05 41/79 names and to tell the IO about the same. The whole story of prosecution seems to be concocted one.
62. In case diary dated 18.7.2005, (though same has not been confronted to the police witnesses by the counsels for accused but the court can always go through the same at any stage) it is clearly mentioned that PW Nand Kishore was taken to the police headquarters for getting the sketchof accused persons prepared by SI Inderpal Singh. If PW13 was present at the spot and had taken the name of all the accused persons on the day of incident only i.e. On 15.7.2005, then why there was a need for the police officials to take PW3 to the police headquarter for the preparation of sketches of the suspect persons in the present case. It itself shows that PW13 is implanted witness by the prosecution or he is a stock witness of the prosecution.
63. Ld. Defence counsels further argued that the statement of PW13 starts with the line that he know accused Shehzad, Naim Qureshi and Ziauddin present in the court. They submit that this statement itself shows that the witness was in a hurry to tell what was tutored to him by the IO. Counsels for accused submits that it is unbecoming of a witness to start his examination with the words that he know accused Shehzad, Naim Qureshi and Ziauddin which only shows that the witness is tutored one. The submissions of Ld. Defence counsels cannot be ignored and bears force.
64. Counsel for accused Shehzad further argued that PW13 has further stated that somebody informed the police that accused Shehzad used to take tea at this shop and this fact also shows that it was somebody else S.C. No.: 121/05 42/79 who falsely implicated accused shehzad in the present case. Ld. Defence counsels further argued that in the cross of PW13 recorded on 27.1.2007, he has stated that he went to the spot at the instance of one person whose name he does not remember to get photographed (Page 6 of the last line of the cross recorded on 27.1.2007). Ld. Defence counsels argued that it was somebody else who had the motive to frame accused Shehzad and PW13 also has deposed at his instance despite the fact that he never watched any such incident. The submissions of Ld. Defence counsel cannot be ignored. PW 41 has stated that at about 4.20 p.m. the information was received in the police station and as per PW13 the police came to him after sometime. PW13 is not a literate person. He is just running a tea stall but it is very strange that he has been able to pin point the time as 4.28 p.m. of the incident. This act of mentioning of time by PW13 is slightly unusual as the person who is class third pass and runs a thea of tea cannot tell the time with so much precision as has been told by PW13. It only shows that this witness is tutored.
65. As per the IO PW41 also the TSR alongwith TSR driver was present at JPN Hospital and statement of TSR driver was recorded there but as per PW13 the TSR was present at the spot when police persons came at the spot. Furthermore as per the IO the driver of the TSR was taken back to the place of occurrence and at his pointing out they prepared the site plan . If PW13 was present at the spot and is an eye witness of the spot then there was no need for the IO to take PW3 with them for the preparation of site plan. Moreover PW 3 has stated that he did not see any injury on the S.C. No.: 121/05 43/79 person of injured but it is very strange that PW13 who was sitting a distance of about 30 feets was able to see that deceased received bullet injury and died at the spot.
66. As per PW13 the police came to him sometime after. DD no. 22 A is of 4.26 P.M. And DD no. 23 A is at 4.27 P.M. As per the IO also he reached at the spot and thereafter to the hospital. If on the spot, IO met PW13 and he named all the accused persons to the IO then there was not need for the police officials to call PW3 at the spot for preparation of the site plan or PW19 at the time of arrest of accused persons.
(ii) Arrest of accused persons and Recovery of the currency notes as well as the weapon of offence at the instance of accused persons:
67. As per the case of prosecution, the currency notes amounting to Rs. 50,000/ each were recovered at the instance of accused Shehzad and Ziauddin. As per the prosecution case, on the day of incident i.e. 15.7.2005 deceased Adil was going in a TSR and was present in the TSR at Aruna Asaf Ali Road after getting the money exchange from PW7.
68. PW7 is Ved Prakash Sikri who runs Sikri Forex Services Pvt. Ltd. At Karol Bagh, Delhi. He stated that he is doing the job of foreign currency exchange in the name and style of Sikri Forex Services Pvt. Ltd. since last about 8 years. He is a holder of license from RBI as a full fledged money exchanger. He knew deceased Adil @ Raja for last about 6 to 7 months because he used to come to him for exchange of foreign currency. He stated that on 14.7.2005 Adil had made telephone call to him and asked him the rate of foreign currency and thereafter deceased came to him and S.C. No.: 121/05 44/79 gave him some foreign currency of different countries and thereafter he went away to collect his clothes and after about 15/20 minutes deceased came back to him and he handed over a cash of Rs. five lacs to him in lieu of foreign currency exchange. He further stated that deceased Adil did not visit him after 14.7.2005. He was called in the police station on the next day of the death of Adil. In the police station he was asked whether Adil had come to him to which he replied in affirmative. In the Police Station he was also shown the photograph of Adil to which he had identified. In the police station, he was told by the police that Adil has been murdered and he had put the sample seal of Sikri Forex Services Pvt. Ltd. on the papers before the IO and same were seized and by the IO vide seizure memo Ex. PW7/B. He further stated that he does not have anything more to say. Subsequently he was cross examined at length by Ld. APP for the state and in his cross examination this witness admitted that on 14.7.2005 Adil had told him on telephone that he was in the need of Rs. 2,50,000/ in the morning of 15.7.2005 and since they did not operate their office before 11 .00 a.m. As such Adil had promised him to come at his residence. He further admitted that on 15.7.2005 at about 9.30 a.m. deceased Adil came to his house and took a sum of Rs. 2,50,000/ in lieu of some foreign currency and thereafter at about 3 p.m. Adil alongwith foreign currency again came to him and asked him to prepare the account and thereafter Adil went away in the market for purchasing and after purchasing clothes etc. Adil again came at his shop and after preparation of account he handed over to Adil a sum of Rs. Five Lacs and all the bundles of currency notes were bearing the seal as S.C. No.: 121/05 45/79 well as slip of his firm affixed on Ex. PW7/A. He has identified the currency notes in denomination of Rs. 500/ each where the seal of Sikri Forex Pvt. Ltd. was affixed as the same which were handed over to deceased Adil by him. He further stated that he could not depose the full facts in his examination in chief as he had forgotten the same due to lapse of time. In his cross this witness has admitted that the deceased was not having any license for foreign currency exchange. He has stated that his statement was taken by the police twice and he has signed only two documents i.e. his statements . Besides these documents he did not sign any other document. He has stated that he signed his second statement after the interval of 1 or 2 days of his putting signature on the first statement. He further stated that when he visited first and second time the police station, his no statement was recorded and his statement was recorded when he was called third time in the police station Kamla Market. He stated that after his third visit he was called once more by the police in the police station to identify the currency notes. He visited the police station alone on this occasion and met the SHO there. The SHO was also alone in his office at that time and he had shown a sum of Rs. 5 lac in denomination of Rs. 500/ each. Those notes were the same which he has seen in the court. As per PW41 and PW42 i.e. IO of the case and SI Inderpal Singh who accompanied the IO, the currency notes were seized and sealed at the same time when they were recovered at the instance of accused persons from their house. If the currency notes were seized and sealed in a clothe pullanda on that day itself then for showing the same to PW7 it is clear that IO broke open the seal of the clothe S.C. No.: 121/05 46/79 pullanda and therefore the possibility of tampering of the case property cannot be ruled out. PW7 further in his cross examination recorded on 17.7.2006 has admitted that when he was shown the currency notes by the SHO, same were taken out from an envelope but he does not know if that envelope was sealed or not. Admittedly the currency notes were sealed in a clothe pullanda by the police officials but it seems that when the notes were shown to PW7 they were in the envelope and they were taken out from the envelope and PW7 has further not stated that the envelope was sealed. PW7 has further stated that and SHO did not seal the currency notes in his presence. Thus after showing the currency notes to PW7 even the notes were not resealed by the IO in the presence of PW7 and again the possibility of tampering of the case property cannot be ruled out.
69. There is no TIP of the case property got conducted by the IO in the present case. As per PW7 he was called in the police station and the currency notes were in the envelope which were shown to him by the IO. Whereas as per the IO himself he seized and sealed the currency notes in a clothe parcel. Then how that clothes parcel was opened and how again currency notes were resealed in the clothes parcel has not been explained by the prosecution.
70. PW7 has further stated that he does not remember if two bundles of currency notes were taken either from one envelope or from two envelope when the same were shown to him by the SHO. He further stated that he carried his official seal as well as ink pad when he was called by the S.C. No.: 121/05 47/79 police in the police station for preparation of sample seal on the paper. He further stated that on the day when he was shown the currency notes he had carried his official seal in the police station. Already sample seal on the papers was taken by the IO vide Ex. PW7/A and same were seized vide seizure memo Ex. PW7/B. In such circumstances there was no occasion for carrying the sample seal with him by PW7 when he visited the police station at the time of identifying the currency notes.
71. PW7 has further admitted in his cross that he maintains a register to tally the transaction pertaining to foreign currency exchange. In that register the amount and the number of currency notes handed over to deceased Adil must also have been mentioned but it seems that for obvious reasons the police officials did not bother to seize that register with the result that an important link evidence i.e. Matching the number of currency notes recovered from accused persons from that of the register of PW7 is missing and has not been brought on record by the prosecution.
72. Further why PW7 again took his sample seal to the police station while identifying the currency notes has not been explained by the prosecution. PW7 has stated that the employee who used to prepare the bundle of currency notes also used to put his initial on the slip of the bundle and when he was shown the bundle of currency notes by the SHO after seeing the same, he had told the SHO that the slip on the bundles were also bearing the initial of his employee Ram Chander . But neither that Ram Chander has been made a witness in this case nor he has been produced by S.C. No.: 121/05 48/79 the prosecution as a witness to depose this fact in the court.
73. According to PW7 Adil kept the currency notes in a plastic bag and then wrapped that plastic bag in a clothe but as per Both PW3 and PW13 the accused had snatched away two polythene bags from the deceased . There is no mention of any cloth bag in the testimony of PW3 or PW 13.
74. PW7 has further admitted that on the day when SHO showed him the bundle of currency notes he also got affixed his stamp but subsequently he volunteered that it was taken on his statement but no such statement bearing the stamp of PW7 is on record. PW7 in his cross recorded on 26.7.2006 has stated that he does not remember the date when the sample of his seal was taken after comparing it with the seal on the currency notes. He stated that the sample seal was matched with the seal on the currency notes and thereafter specimen of sample seal was taken vide Ex. PW7/A. On both Ex. PW7/A and Ex. PW7/B the date is mentioned as 16.7.2005. At that time neither the accused were arrested nor any recovery of currency notes were made by the police from them. In such circumstances how PW7 compared his sample seal with that on the currency notes and thereafter the specimen seal was take has to be explained by the prosecution which they have failed to explain.
75. PW9 is Vinod Kumar who is was the Security Incharge of 1, Sikandra Road. According to the prosecution he is a witness to the fact that accused persons were arrested but this witness has also not supported the S.C. No.: 121/05 49/79 case of prosecution except deposing the fact that on one night, he turned out accused Naim Qureshi from the Kothi. He has denied that he saw accused Ziauddin alongwith accused Pramod Sharma and Naim Qureshi in the office or in the Kothi or that accused Ziauddin and Naim Qureshi used to stay with accused Pramod Sharma in his office or accused Gulashn also used to entertain both the accused persons. He further denied that he saw any arms and ammunitions in the possession of accused Naim Qureshi and Ziauddin. Rather he has stated that no one was allowed to stay at night including the accused persons. He has further denied that he saw accused Naim Qureshi and Ziauddin in the morning of 16.7.2005 coming alongwith accused Pramod Sharma from his office. He further denied that accused Pramod Sharma requested him to provide boarding and lodging to accused Ziauddin and Naim Qureshi during night time or that accused Pramod Sharma used to spend money on their eating and drinking. This witness has completely denied the case of prosecution that accused Ziauddin and Naim Qureshi ever stayed at 1, Sikandra road and he saw arms and ammunitions in the possession of accused Naim Qureshi and Ziauddin. In his cross this witness has admitted that there was a register kept at the main gate of 1, Sikandra Road in which entry and exit of all the vehicle used to be recorded. But it seems that no such register has been seized by the prosecution regarding the entry of any motorcycle or any other vehicle used by the accused Naim Qureshi or Ziauddin. The witness in his cross has further stated that he never gave any statement to the police.
76. PW16 is Constable Narender Kumar. He stated that on S.C. No.: 121/05 50/79 22.7.2005 IO joined him in the investigation of the case and during investigation accused Shehzad was taken out from the police lockup. He was taken to his house at Kucha Wali Gali, Pataudi House. They went to the third floor of the house and accused Shehzad opened his almirah and took out Rs. Fifty thousand from the alimrah. He further stated that on the bundle of currency notes, a slip was affixed on which Sikri Forex Services, New Delhi was written. The currency notes were sealed in a parcel and were taken into possession vide seizure memo Ex. PW16/A. He stated that thereafter accused was taken to police station and after recording his statement, he was discharged. He duly proved the currency notes as Ex. P2. Though PW16 is a witness of recovery from the house of accused Ziauddin as well as of accused Shehzad but he has not stated anything about accused Ziauddin. He has not stated that he accompanied the IO to the house of Ziauddin also or that any currency notes were recovered from the house of Ziauddin also. He has further stated that they set out from the police station at about 2.30 p.m. for the house of accused Shehzad whereas as per PW41 they started from the police station for the house of accused at around 1.00 p.m. and PW42 has stated that they visited the house of accused Shehzad at about 12.00 noon. All the witnesses have given different times of their leaving the police station and reaching to the house of accused Shehzad.
77. PW41 in his cross recorded on 12.7.2010 has stated that he did not put any specific mark on the wads of currency notes recovered from accused Shehzad and Ziauddin, therefore he cannot identity which wad of currency notes was recovered from accused Shehzad or Ziauddin . PW16 S.C. No.: 121/05 51/79 has further stated that except for going to the house of accused Shehzad they did not go elsewhere on 22.7.2005. According to PW16 they went to the third floor of the house of accused Shehzad. He further stated that accused took the key of the almirah from one lady and he himself took out the money and gave it to the IO. Again and again this witness has stated that they did not go anywherelse except for the house of accused Shehzad on 22.7.2005 whereas as per seizure memo and as per statement of PW41 and PW42 they also visited the house of accused Ziauddin on that day. So far as PW17 is concerned they this witness has not supported the case of prosecution at all.
78. PW19, brother in law of deceased has stated that from the house of accused Ziauddin a helmet was recovered which was seized by the police vide seizure memo Ex. PW19/D and a packet of currency notes totaling Rs. 50,000/ were also produced by accused Ziauddin from the almirah of his house. He stated that thereafter they left the house of accused Ziauddin and reached at the house of accused Shehzad. In his cross this witness has stated that he went to the police station to enquire about the progress of his case and he was alone on that day. He remained in the police station for about one or one and half hours and during that period nothing was done by the police and he left the police station at about 7.30 p.m. In his chief he has stated that he accompanied the police persons for the arrest of accused on 21.7.2005 but in his cross this witness has stated that nothing was done by the police on 21.7.2005. He has stated that he again went to the police station on 22.7.2005 at about 11 a.m. and remained in the police station for S.C. No.: 121/05 52/79 about one hour but his statement was not recorded during that period and he returned to his house at about 2.30 p.m. on that day. And after 22.7.2005 neither police called him in the police station nor he went to police station. For 22.7.2005 this witness as per the prosecution version accompanied the police officials to the house of accused Ziauddin and Shehzad from where the recovery of Rs. 50000/ each was made from each of the accused persons but from his cross it seems that nothing was happened like this on that day. Again he stated that on 21.7.2005 he was taken by the police at Guru Nanak Chowk where they remained to about 7 p.m.. He stated that he and Nand Kishore were from the public and all other were from police officers. He stated that on 22.7.2005 from the spot they went to the house of accused Ziauddin first and recovery was made from the first storey of the house. He further stated that the parcel was of clothe and and was sealed in his presence. He has no where stated that the notes were in a bag as has been deposed by other police officials. This witness has further stated that the police recorded the statement of 5 /6 public persons gathered there and got their signatures. But there are no such statement of the witnesses made by the police officials on record. Even PW19 has admitted that he does not know what was written on those papers.
79. So far as the factum of demand of money by accused Shehzad is concerned then PW19 has stated that he told this fact to the police in his statement Ex. PW19/Dx. But no such fact has been recorded in his statement Ex. PW19/DX. PW19 has stated that they reached at the first floor of the house of accused Ziauddin where as as per the IO it was from S.C. No.: 121/05 53/79 the ground floor from where the recovery was made. Thus so far as the recovery of the currency notes at the instance of accused Shehzad and Ziauddin is concerned then in view of the deposition of PW7, PW16 and PW19, PW41 and PW42, the same becomes doubtful.
80. So far as the testimony of PW 41 and PW42 is concerned then not only there are contradictions in the same but they being the police officials and being the IO of the case are definitely interested in the success of this case. So far as the arrest of remaining accused persons is concerned then at the time of arrrest of accused Naim Qureshi, no public witness has been joined by the IO. Moreover for accused Pramod Sharma and Gurcharan also no public witness who has been joined by the IO have supported the case of prosecution.
81. As per the case of prosecution accused Shehzad and Ziauddin were arrested on 21.7.2005 and thereafter accused Naim Qureshi was subsequently arrested on 11.8.2005 by the police officials of Special Staff. Accused Shehzad and Ziauddin in their disclosure statement must have disclosed the IO about the place of concealment of the weapon of offence but it seems that till the arrest of accused Naim Qureshi i.e. till 11.8.2005 no efforts were made by the IO to recover the weapon of offence.
82. PW35 is SI Ashok Kumar, Incharge of the Crime team who inspected the TSR and stated that he found a whole on the back seat of the TSR and a bullet led was lying under the seat. PW35 in his cross has stated that he cannot say after seeing the bullet led Ex. P4 if it relates to the bullet of .30 bore, .32 bore, .12 bore or .757 bore and he further cannot tell from S.C. No.: 121/05 54/79 which caliber of bullet this like led which is covered with plastic cover can be fired. Ld. APP for the state argued that since the bullet lead was recovered from the seat of the TSR therefore the plastic on the seat of the TSR may have entangled with the bullet led. In my view the submissions of Ld. APP for the state bears force. But so far as the recovery of currency notes and weapon of offence is concerned, same is doubtful in view of the abovesaid discussion.
(iii) Call details and opinion of the experts:
83. So far as the role of accused Shehzad is concerned then the prosecution has tried to establish his role by way of conspiracy with other accused persons and in that behalf the prosecution has not only examined PW13 as an eye witness who testimony has been discussed above but has also placed reliance upon the call details of accused persons.
84. PW20 is Sh. R.K. Singh, Nodal Officer from Bharti Airtel Ltd. He stated that he has seen the computerized record of mobile phone number 9810357833. As per the prosecution's case this phone number belongs to accused Shehzad but PW20 has deposed that this mobile phone number was issued in the name of Mehar Jewellers, 1245, third floor, Kucha Majajani near Market, Shishganj Gurudwara, New Delhi. He stated that on the requisition of the IO he gave the computerized record the ownership of mobile phone vide Ex. PW20/A. He further proved the call details as Ex. PW20/B. In this cross this witness has admitted that the handwriting and ink mark underneath the telephone numbers on Ex. PW20/B were not there when he handed over these documents to the IO. Thus there is clear cut S.C. No.: 121/05 55/79 manipulations and tampering with Ex. PW20/B i.e. The call details of mobile phone number 9810357833. As per PW20 this mobile phone number was issued in the name of Mehar Jewellers and prosecution has failed to establish the link between Mehar Jewellers and accused Shehzad. There is nothing on record to suggest that Mehar Jewellers gave the mobile phone to accused Shehzad or that accused shehzad had some connections with Mehar Jewellers. PW41 being the IO of the case has further admitted that the call details Ex. PW20/B of mobile number 9810357833 are only upto 16.7.2005 and after 16.7.2005 no call was made from this mobile phone number . He has further admitted that as per the call details Ex. PW29/A the last call was dated 15.7.2005 at 14:28:44 hours and after this date, this telephone was never used. IO has further volunteered that accused might have changed the sim after 16.7.2005. But no presumption can be raised that accused might have changed the sim. Moreover there is nothing on record to suggest that the mobile phone belongs to accused Shehzad. In his cross PW 41 has stated that the cell phone was registered in the name of relative of accused Shehzad but accused Shehzad was using the said mobile phone.. How and on what ground this presumption against the accused can be raised has not been explained by the prosecution. PW41 has further stated that he does not remember the name of the relative and the relation between accused Shehzad and relative in whose name the mobile phone was registered. He further admitted that he did not examine the relative nor cited him as a witness. Thus this fact itself shows that even this answer has been given by PW41 only to fill up the lacunae in their case. S.C. No.: 121/05 56/79 Even the mobile phone of deceased Adil was seized and sealed on 15.7.2005 itself as per PW41. But PW41 in his cross has further admitted that as per the call details of this mobile phone, it was used till 18.7.2005 at 12.26 p.m. and duration of the call was 34.06 minutes and there is no call received at mobile phone number 9810357833 of accused Shehzad on 15.7.2005 . At one place prosecution has stated that accused Shehzad was the master mind of the whole conspiracy and he was in contact with the other accused persons but at the same time IO has admitted that there was no call received on the alleged mobile phone no. 9810357833 of accused Shehzad on 15.7.2005.
85. PW20 has further stated that the writing and marking in blue ink as well as in red ink on Ex. PW20/B is not in his handwriting and he cnanot say for which location the numbers mentioned at cell one and cell last i.e. Column no.8 and column no.9 on Ex. PW20/B were used. He further stated that he cannot tell from which location the incoming and outgoing calls were made and received as mentioned in chart Ex. PW20/B.
86. PW29 is Jyotish Mohrana, Executive Vodafone Essar Mobile Services Ltd.. He brought the computerized call details of mobile phone number 9899107680 Ex. PW29/A and also call details of mobile phone no. 9811269824 Ex. PW29/B. He stated that from these details he cannot tell how many towers are situated in the area of Karol Bagh, Pahar Ganj and Ajmeri Gate and on which property these were situated. He further stated that he cannot say from where the record Ex. PW29/B was obtained and he S.C. No.: 121/05 57/79 further admitted that the main data server was operated only by the authorized person who was having password and digital signatures and he is not having the same. He stated that he took the print out Ex. PW29/C but he had not take out the print of Ex. PW29/A, Ex. PW29/B and Ex. PW29/D. In such circumstances, no presumption can be drawn that PW29/A Ex. PW29/B and Ex. PW29/D have been duly proved by the prosecution as per law.
87. PW13 Vijay Gupta who is an eye witness of the case. During his entire examination in chief or cross examination, he has no where stated he saw accused Shehzad talking on telephone or on his mobile. Thus it is clear that PW13 when he saw accused Shehzad, accused Shehzad was not talking on his mobile to anybody. The IMEI number of mobile phone of accused Shehzad as given by PW41 is totally different from that given by PW42.
88. PW30 is Legal Executive from Reliance communication. He stated that he supplied the information and documents of mobile phone number 9313467812, 9313045050 and 9312660749 to the IO of the case. He stated that mobile phone no. 9313467812 was issued in the name of Zulfikaar Ali and mobile no. 9312660749 is in the name of Super Growth Developers Pvt. Ltd and its authorized signatory is Ravinder Taneja and the mobile no. 9313045050 was issued in the name of Ziauddin. He further proved the location chart of the mobile phone as Ex. PW 30/E. He further proved the call details of all the mobile phone numbers. In his cross he has stated that IO of the case had not seized the abovesaid documents in his presence and he cannot say as to who put his signatures on all these S.C. No.: 121/05 58/79 documents. He has stated that the marking in all the pages of Ex. PW30/G in blue and red ink were not made by his office and he cannot say as to who made the same. He further stated that he cannot tell about the location from which the marked telephone numbers on Ex. PW30/G were made or received and only engineer incharge can locate the actual position of the area of the telephone numbers about the call made or received.
89. PW32 is head constable Jaswinder Singh who seized all these call details and all the records pertaining to the mobile phones but he has stated that there are entries in read and blue inks on all the documents and the witnesses produced by the prosecution has stated that they have not made these entries. Even for the location chart the witness examined has stated that the same were not made by him and only engineer incharge can locate the actual position of the area of the telephone numbers about the call made or received who has not been examined by the prosecution.
90. Regarding the admissibility of call details or ownership record of the mobile phones Hon'ble Delhi High Court in Case titled as State Vs. Mohd. Afzal & Ors. 2003 VII AD (Delhi) 1 has laid down that:
" Thus, computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65B of the evidence Act.
Sub Section (1) of Section 65B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfillment of the conditions specified in subsection (2) of Section 65B. Following are the conditions specified by subsection (2):
a) The computer from which the record is generated was S.C. No.: 121/05 59/79 regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;
b) Information was fed in the computer in the ordinary course of the activities of the person having lawful control over the computer;
c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy;
d) Information reproduced is such as is fed into computer in the ordinary course of activity.
Under subsection (3) of Section 65B, subsection (1) and (2) would apply where single or combination of computers is used for storage or processing in the regular course of activities and the computers used shall be construed as a single computer. Under subsection 4 of Section 65B, if evidence is desired to be led under Section 65B , it would be admissible if a certificate is tendered, signed by a person either occupying a responsible official position in relation to the computer or being in the management of the relevant activities; provided the following is certified:
a) electronic record containing the statement is identified with description of how it was produced;
b) that electronic record was a computer print out generated by a device particulars whereof are given;
c) deals with matters to which conditions in subsection (2) relate.
Under subsection (5), information shall be taken to be supplied to a computer by means of an appropriate equipment, in the course of normal activities intending to store or process it in the course of activities and a computer output is produced by it whether directly or by means of appropriate equipment.
The normal rule of leading documentary evidence is the production and proof of the original documents itself. Secondary evidence of the contents of a document can also be led under section 65 of the Evidence Act. Under subclause "d" of Section 65, secondary evidence of the contents of a documents can be led when the original is of such a nature as not to be easily movable. Computerized operating systems and support systems in industry cannot be moved to the court. The information is stored S.C. No.: 121/05 60/79 in these computers on magnetic tapes (hard disc). Electronic record produced therefrom has to be taken in the form of a print out. Subsection (1) of Section 65B makes admissible without further proof, in evidence, print out of a electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in subsection (2). Thus compliance with subsection (1) and (2) of Section 65B is enough to make admissible and prove electronic records. This conclusions flows out, even from the language of subsection (4). SubSection (4) allows the proof of the conditions set out in subsection (2) by means of a certificate issued by the person described in subsection (4) and certifying contents in the manner set out in the subsection. The subsection makes admissible an electronic record when certified that the contents of a computer print out are generated by a computer satisfying the conditions of subsection (2), the certificate being signed by the person described therein. Thus, subsection (4) provides for an alternative method to prove electronic record and not the only method to prove electronic record.
Whether Section 65B casts a positive mandate on the person relying upon electronic record to adduce affirmative evidence that at all material time the computer was working properly when information was being fed in it, and whether on facts, the computer generated call details have to be ignored due to alleged malfunctioning?
The last few years of the 20th Century saw rapid strides in the field of information and technology. The expanding horizon of science and technology threw new challenges for the ones who had to deal with proof of facts in disputes where advanced techniques in technology was used and brought in aid. Storage, processing and transmission of date on magnetic and silicon medium became cost effective and easy to handle. Conventional means of records and data processing became out dated. Law had to respond and gallop with the technical advancement. He who sleeps when the sun rises, misses the beauty of the dawn. Law did not sleep when the dawn of Information and Technology broke on horizon. World over, statutes were enacted. Rules relating to admissibility of electronic evidence and it's proof were incorporated.
Did the law relating to admissibility and proof of electronic S.C. No.: 121/05 61/79 record have a positive mandate to be satisfied by the one who relies upon electronic record? The positive mandate being to establish positively that there was no malfunctioning of the equipment processing the operations at the relevant time, to which the record relates.
In England this positive mandate was statutorily enacted and the prosecution had to show by positive and affirmative evidence that it was safe to rely upon the document produced by a computer from out of its memory. The Police and Criminal Evidence Act, 1984 was enacted. But, while interpreting Section 69 of the said Act, the courts took a practical approach and gave an interpretation where computer generated record could be proved by a statement, made by an employee unfamiliar with the precise details of the operation of the computer, that the print out was retrieved from the computer memory and the computer was not malfunctioning. Section 69 reads as under:
"(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown
(a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer.
(b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of it contents; and
(c) that any relevant conditions specified in rules of Court under subsection (2) below are satisfied.
(2) Provision may be made by the rules of Court requiring that in any proceedings where it is desired to give a statement in evidence by virtue of this section such information concerning the statement as may be required by the rules shall be provided in such form and at such time as may be so required."
In R. Vs. Shepherd, 1993 A.C. 380. Lord Griffiths, dealing with the defence argument held: "The principal argument for the defendant starts with the proposition that the store detective was not a person occupying a responsible position in relation to the operation of the computer within the S.C. No.: 121/05 62/79 meaning of paragraph 8(d) of Schedule 3 to the Act and, therefore, was not qualified to sign a certificate for the purpose of providing proof of the matters contained in section 69(a). This I accept. Although the store detective understood the operation of the computer and cold speak of its reliability she had no responsibility for its operation.
I cannot, however, accept the next step in the defendant's argument which is that oral evidence is only acceptable if given by a person who is qualified to sign the certificate. The defendant does not go so far as to submit that evidence must be given by a computer expert but insists that it must be someone who has responsibility for the operation of the computer; either the operator or someone with managerial responsibility for the operation of the computer.
Documents produced by computers are an increasingly common feature of all business and more and more people are becoming familiar with their uses and operation. Computers vary immensely in their complexity and in the operations they perform. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly."
Statement by the witness that when the computer was working they had no trouble with operation of central computer was held sufficient in discharge of the affirmative burden.
In R Vs. Ana Marcolino, 1999 Masons CLR 392 (CA "Crim.Div"), following the dictum of Lord Griffiths in R. Vs. Shepherd the evidence of the witness proving electronic record was analyzed step wise which analyses is illuminative as to how the issue was dealt with. Lord Justic Henry posed the question: Does the evidence given by Mr. Slade satisfy the test in Shepherd 1993 A.C. 380? The answer came as follows:
1) he had been employed by Vodaphone for over four years as the risk S.C. No.: 121/05 63/79 supervisor and his duties included identifying fraudulently used accounts and liaising with the police. This account had been used fraudulently.
2)He had retrieved from the computer the records relating to this mobile telephone and produced from those records the itemized account for the relevant period. To do so, he had accessed the billing records for that period.
3)He was not familiar with the precise details of the operations of the computer because he had not designed it. However, he had general knowledge of the system. He had no reason to believe that the computer records were inaccurate because of improper use.
4). Vodaphone is continuously audited by the DTI. No complaint has been made as to the accuracy of their records. Vodaphone has their own quality assurance department which constantly monitored the system.
5) he asserted that the computer was working properly at the relevant time. In support of that assertion he relied upon the following facts:
a) There was no record of any malfunction. Had their been it would have been drawn to his attention by the billing department. In any event, the computer had ancillary equipment which would have taken over, had there been any failure or malfunction of the primary systems.
b) If there had been any malfunction, the billing records would be classed as 'in suspension'; those records were not.
c)The billing record itself is made without human intervention, although it is triggered by the use of a mobile phone. The system runs a series of internal checks as to accuracy and function before the call is made and the subsequent detail recorded. If there is any malfunction the records are put into suspension. The records of these calls had not been suspended.
d) The records in relation to malfunction were kept by persons who could not reasonably be expected to have any personal recollection of them. These persons had a duty to report any malfunction. None had been reported.
Miss Calder submitted that the evidence of external audit is irrelevant. In our judgement, the jury was entitled to take into account that these records were produced by a large company providing a substantial public service the subject of licensing and external audit by the DTI. Such S.C. No.: 121/05 64/79 evidence goes directly as to whether there has been improper use.
It is the view of this Court that the totality of the evidence as set out above satisfies the test propounded by Lord Griffiths. Mr. Slade was sufficiently familiar with the workings of the computer. The records are designed to reveal malfunction. None was revealed.
The conviction was found to be safe and the appeal was dismissed.
In DPP Vs. Mc. Kewon (1997) 1 Criminal Appeal 155, Lord Hoffman, applying Section 69 of the Police and the Criminal Evidence Act, 1984 in relation to the inaccuracy in the time display in the computer print out, held:
"I shall for the moment assume that the inaccuracy in the time display meant that " the computer not operating properly". The question is therefore whether that was such as to affect the production of the document or the accuracy of its contents". If the words are read literally, it did. The document said that the first test had occurred at 23.00 GMT when it was in fact 00.13 BST. As to one hour, the discrepancy is merely as to way in which the time was expressed. 23.00 GMT is the same time as 00.00 BST. But the remaining 13 minutes. Cannot, I think, be dismissed as de minimis. The inaccuracy of the time reading therefore affected the accuracy of a part of the contents of the document.
In my view, however, the paragraph was not intended to be read in such a literal fashion. "The production of the document or the accuracy of its contents" are very wide words. What if there was a software fault which caused the document to be printed in lower case when it was meant to be in upper case? The fault has certainly affected the production of the document. But a rule which excluded an otherwise accurate on this ground would be quite irrational. To discover the legislative intent, it is necessary to consider the purpose of the rule.
The first thing to notice is that section 69 is concerned solely with the proper operation and functioning of a computer. A computer is a device for storing, processing and retrieving information. It receives information from, for example, signals down a telephone line, strokes on a keyboard or (in this case) a device for chemical analysis of gas, and it stores and processes that information. If the information received by the S.C. No.: 121/05 65/79 computer was inaccurate (for example, if the operator keyed in the wrong name ) then the information retrieved from the computer in the form of a statement will likewise be inaccurate. Computer experts have colourful phrases in which to express this axiom. But section 69 is not in the least concerned with the accuracy of the information supplied to the computer. If the gas analyser of the Intoximeter is not functioning properly and gives an inaccurate signal which the computer faithfully reproduces, section 69 does not affect the admissibility of the statement.
The same is true if the operator keys in the wrong name. Neither of these errors is concerned with the proper operation or functioning of the computer.
The purpose of section 69, therefore, is a relatively modest one. It does not require the prosecution to show that the statement is likely to be true. Whether it is likely to be true. Whether it is likely to be true or not is a question of weight for the justices or jury. All that section 69 requires as a condition of the admissibility of a computergenerated statement is positive evidence that the computer has properly processed, stored and reproduced whatever information it received. It is concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states.
The language of section 69(1) recognizes that a computer may be malfunctioning in a way which is not relevant to the purpose of the exclusionary rule. It cannot therefore be argued that any malfunction is sufficient to cast doubt upon the capacity of the computer to process information correctly. The legislature clearly refused to accept so extreme a proposition. What, then, was contemplated as the distinction between a relevant and an irrelevant malfunction? It seems to me that there is only one possible answer to that question. A malfunction is relevant if it affects the way in which the computer processes, stores or retrieved the information used to generate the statement tendered in evidence. Other malfunction do not natter. It follows that the words " not such as to affect the production of the document or the accuracy of its contents" must be read subject to the overall qualification that the paragraph is referring to those aspects of the document or its contents which are material to the accuracy of the statement tendered in evidence".S.C. No.: 121/05 66/79
The Law Commission in England revived the law relating to computer generated evidence. It summed up the major problem posed for the rules of evidence by computer output in the words of Steyn, J. : "Often the only record of the transaction, which nobody can be expected to remember, will be in the memory of a computer. ...if computer output cannot relatively readily be used as evidence in criminal case, much crime (and notably offences involving dishonesty would in practice be immune from prosecution. On the other hand, computers are not infallible. They do occasionally malfunction. Software systems often have "bugs". _ _ _ Realistically, therefore, computers must be regarded as imperfect devices."
It noted that given the extensive use of computers, computer evidence could not be unnecessarily impleaded, while giving due weight to the fallibility of computers. The Law Commission noted that Section 69 had enacted a law which was unsatisfactory for 5 reasons: "First, Section 69 fails to address the major causes of inaccuracy in computer evidence. As professor Tapper has pointed out, "
most computer error is either immediately detectable or results from error in the data entered into the machine".
Secondly, advances in computer technology make it increasingly difficult to comply with section 69 : it is becoming " increasingly impractical to examine (and therefore certify) all the intricacies of computer operation".These problems existed even before networking became common.
A third problem lies in the difficulties confronting the recipient of a computer produced document who wishes to tender it in evidence: the recipient may be in no position to satisfy the court about the operation of the computer. It may well be that the recipient's opponent is better placed to do this.
Fourthly, it is illogical that section 69 applies where the document is tendered in evidence, but not where it is used by an expert in arriving at his or her conclusion, not where a witness uses it to refresh his or her memory. If it is safe to admit evidence which relies on and incorporates the output from the computer, it is hard to see why that output should not itself be admissible; and conversely, if it is not safe to S.C. No.: 121/05 67/79 admit the out put, it can hardly be safe for a witness to rely on it."
The Commission recommended deletion of Section 69, the opinion was:
"Where a party sought to rely on the presumption, it would not need to lead evidence that the computer was working properly on the occasion in question unless there was evidence that it may not have been
- in which case the party would have to prove that ti was ( beyond reasonable doubt in the case of the prosecution, and on the balance of probabilities in the case of the defence) The principal has been applied to such devices as speedometers and traffic lights, and in the consultation paper we saw no reason why it should not apply to computers.
We may not that section 69 of the Police and Criminal Evidence Act 1984 has since been repeated and the common law presumption : "In the absence of evidence to the contrary the courts will presume that the mechanical instruments were in order at the material time", operates with full force.
Experience has shown to us that development in computer networking, access, control, monitoring and systems security are increasingly making it difficult for computer errors to go undetected. Most computer errors are immediately detected or resultant error in the date is immediately recorded. In a court of law it would be impractical to examine the intricacies of computer functioning and operations. To put in the words of the Law Commission report in England : "Determined defence lawyers can and do cross - examine the prosecution's computer expert at great length. The complexity of modern systems makes it relatively easy to establish a reasonable doubt in a juror's mind as to whether the computer was operating properly, Bearing in mind the very technical nature of computers, the chances of this happening with greater frequency in future are fairly high. We are concerned about smoke screens being raised by cross examination which focuses in general terms on the fallibility of computers rather than the reliability of the particular evidence. The absence of a presumption that the computer is working means that it is relatively easy to raise a smokescreen."
. The law as it stands enacted in India does not have a provision analogous to Section 69 of the Police and Criminal Evidence Act, 1984 in S.C. No.: 121/05 68/79 England. The condition which require to be satisfied are the ones set out in Sub Section (2) of Section 65 B. The conditions, as noted above are:
a) The computer from which the record is generated was regularly used to store or process information in respect of actively regularly carried on by a person having lawful control over the period , and relates to the period over which the computer was regularly used.
b) Information was fed in the computer in the ordinary course of the activities of the person having lawful control over the computer.
c) The computer was operating properly, an if not, was not such as to affect the electronic record or its accuracy.
d) Information reproduced is such as is fed into the computer in the ordinary course of activity.
In effect, substantially, Section 65 B of the Indian Evidence Act and Section 69 of the Act in England have same effect.
Thus, in the context of Section 65B (2) (C) the condition that throughout the material part of the period to which the computer operations related, the computer was operating properly has to be complied with. However, this compliance would be on the principal laid down in Shepherd (supra) and as applied in Ana Marcolino (supra) and Mc. Kewon (supra). Thus in our opinion, is the only practical way to deal with computer generated evidence unless the response is by way of a challenge to the accuracy of computer evidence on the ground of misuse of the system or operating failure or interpolation. Such challenge has to be established by the challenger. Generic and theoretical doubt by way of smoke screen have to be ignored.
The testimony of PW35 and PW36 establishes that the call details Ex PW 35/2 to ExPW35/8 and Ex 36/1 to Ex. PW36/5 were computer generated and pertained to the respective periods indicated in the print outs. Testimony establishes that they related to the services provided by respective companies in respect of the different mobile phone numbers. It is true that neither witness made a positive statement that during the relevant period, the computers worked properly but reading the statement as a whole, the same is implicit. No suggestion was given to the witness that their computers were malfunction. We are satisfied that on the evidence on record, the prosecution has duly proved the electronic record Ex. PW 35/2 S.C. No.: 121/05 69/79 to Ex. PW 35/8 and Ex. PW36/1 to 36/5 ".
91. Now coming to the case in hand, all witnesses who proved the call details have stated that entries in blue and red ink made in these call details were never made by them. Prosecution through these entries have tried to establish the location of mobile phones and the connection between accused but from the entries in hand in these call details, the possibility of tampering of these call details cannot be ruled out. All the witnesses have stated that the entries made in red and blue ink in these details are not in their handwriting, though about the computerized copies they have stated that they had given the details to the IO. But the call details as a whole is to be read by the court and therefore, it cannot be said that the prosecution has duly proved the entries on record obtained from the service providers. The call details is one of the evidence in the hands of the prosecution through which prosecution has tried to establish the conspiracy between the accused persons and also the fact that accused Shehzad was the Kingpin of whole conspiracy. But it cannot be said that call details have been duly proved on record by the prosecution beyond reasonable doubt. Thus, the factum of conspiracy between the accused persons also has not been proved by the prosecution beyond reasonable doubt. Not only the prosecution has failed to prove the call details as per the procedure laid down in this respect but testimony of PW13 is also shaky in this regard who has nowhere stated that accused Shehzad was talking on mobile to anybody.
92. Regarding conspiracy in Kehar Singh & Ors v. The State S.C. No.: 121/05 70/79 (Delhi Administration) [MANU/SC/0241/1988: Hon'ble Supreme Court has held that__ " Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the later does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not to be proved. Nor actual meeting of the two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Conspiracy can be proved by circumstances and other materials. (See: State of Bihar v. Paramhans MANU/BH/0161/1986 : 1987 (35) BLJR127 ). To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do so, so long as it is known that the collaborator would put the goods of service to an unlawful use. (See :
State of Maharashtra V. Som Nath Thapa MANU/SC/0451/1996: 1996 Cri LJ2448)".
In Ajay Aggarwal vs. Union of India and Ors.
MANU/SC/0265/1993: 1993 Cri LJ 2516, it has been held that__ S.C. No.: 121/05 71/79 "...... It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement (2) between two or more persons by whom the agreement is effected: and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of 'criminal conspiracy' was stated first by Lord Denman in Jones' case that an indictment for conspiracy must ''charge a conspiracy to do an unlawful act by unlawful means'' and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulchay v. Reg and House of Lords in unanimous decision reiterated in Quinn v. Leathem:
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rest in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; punishable of for a criminal object, or for the use of criminal means."
Hon'ble Supreme Court in B.G. Barsey v. State of Bombay MANU/SC/0123/1961: 1961 CriLJ 828 held that__ " The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or it if is prohibited by law."
In Yashpal Mittal v. State of Punjab MANU/SC/0169/1977 : the rule laid down by the Hon'ble Supreme Court is as follows:
" The very agreement, concert or league is the ingredient of the S.C. No.: 121/05 72/79 offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are coparticipators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which collaborator must be aware and in which each one of them must be interested. There must be unity of object of purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators."
In 2009 [2] JCC 1188 titled as Chaman Lal & Ors. Vs. State of Panjab & Anr., the Hon'ble Supreme Court held that__ " Penal Code, 1860 Sec. 120B__Criminal Conspiracy__ The essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct or circumstantial evidence or by both __As direct evidence is rarely available therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of accused."
In MANU/SC/1010/2004 in Criminal Appeal no. 497 of 2001 and 46 of 2004 and SLP (Crl.) No. 1912/2003 titled as State v. Debendra Nath Padhi, the Hon'ble Supreme Court held that__ " Power for Trial Court to consider material filed by accused at the time of framing of charge__Validity of__Observations made in case of Satish Mehra V. Delhi Administration and Anr. that if accused succeeded in producing any reliable material at stage of taking cognizance or framing of charge which might fatally affect even very sustainability of case, it is unjust to suggest that no such material should be looked into by court at that stage__Although views expressed in Satish Mehra's case supported by S.C. No.: 121/05 73/79 accused__However, challenged by state on ground that observations in Satish Mehra's case amounted to upsetting well settled legal propositions and making nugatory amendments in Code of Criminal Procedure and would result in conducting a mini trial at stage of framing charge__Matter referred to decision by larger bench. Since at the stage of framing of charge roving and fishing inquiry is impermissible, held that if the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge which would defeat the object of the Code__Permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage is against the criminal jurisprudence____The expression hearing the submissions of the accused cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law__At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police__Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code held to be not correctly decided__Direction given to Trial Court to proceed from the stage of framing of charge and to expeditiously conclude the trial."
In Criminal Appeal No. 192 of 2010 titled as P. Vijayan vs. State of Kerala and Anr., the Hon'ble Supreme Court has held that__ " Existence of sufficient grounds against the Appellant and another accused to frame a charges__Materials at the hands of the prosecution sufficient or not are matters of trial__At this stage, it cannot be claimed that there is no sufficient ground for proceeding against the Appellant__Trial will end in conviction or acquittal immaterial__High Court considered all relevant aspects and affirmed the Order of Trial Court
- Appeal Dismissed."
93. In view of these authoritative pronouncements, it is clear that to establish conspiracy, the direct evidence is rarely available and to prove the same, circumstances before and after the occurrence has to be considered S.C. No.: 121/05 74/79 but as discussed above, so far as the testimony of PW13 is concerned, same is doubtful. Moreover recovery of the weapon of offence at the instance of accused persons is also doubtful. Coming to the call details also, the prosecution has failed to prove the same on record as per law laid down in this respect. Therefore, it cannot be said that the prosecution has been able to prove the ingredients of conspiracy against the accused persons.
94. According to the prosecution revolver which was used to kill the deceased was seized at the instance of accused Naim Qureshi and Pramod Sharma . But the joint recovery at the instance of accused is not admissible in evidence and has no evidentiary value in the eyes of law.
95. Reliance is placed upon 1996 JCC 327 wherein it has been held by Hon'ble High Court that : " In Prem Bahadur Rai Vs. State of Sikkim, 1978 Criminal Law Journal 945, a Division Bench of the Sikkim High Court has held that if there is a joint statement and the recoveries are effected on the basis of pointing out jointly by the accused, then such evidence is not admissible against any of the said accused persons unless it can be shown as to who made the first statement leading to the discovery or who made the first discovery.
In light of the categorical testimony of Inspector Ashok Saxena, PW34 that both the accused had togethed taken the police party to the place of occurrence, we have to hold that this particular place of occurrence, which has come to the notice cannot be exclusively imputed to have been pointed out by the appellant. So we come to the conclusion that this particular circumstantial evidence that the place of occurrence was pointed out by the appellant and such conduct of the appellant is admissible in evidence under section 8 of the evidence act has not been proved beyond reasonable doubt".
S.C. No.: 121/05 75/79
96. Moreover on this weapon of offence no opinion has been sought by the IO from the concerned Doctor as to whether the bullet shot caused to the deceased are possible with these weapons or not. There is no expert opinion on record to prove this fact that the injury cause to the deceased was possible by the weapon seized at the instance of accused Pramod sharma and Naim Qureshi.
(iv) Link Witnesses/Evidence. For the appreciation of evidence, the discrepancies in the statement of witnesses can't be ignored which are quite material and goes to the root of the case.
97. PW3 Nand Kishore has stated that 4/5 police officials who arrived in the hospital subsequently brought him to the police station Ajmeri Gate and got him sit there and made inquiries from him. But PW40 SI Om Prakash has stated that the statement of PW3 was recorded in the hospital only. He stated that Nand Kishore, the TSR driver met him in the hospital and he made his statement before him. Similar is the testimony of Constable Prem Singh and PW41, IO of the case.
98. PW6 Constable Ranjit Singh has stated that he handed over the pullanda to SI Om Prakash but in his cross this witness has stated that he does not remember the time of seizure but it was seized at about 4 p.m. on 15.7.2005. It may be mentioned that DD regarding the incident was received in the police station Kamla Market at 4.26 p.m. The seizure memo Ex. PW6/A also bears the FIR number mentioned on them. As per the FIR the same was recorded at 6.15 p.m. PW26 Constable Prem Singh has stated S.C. No.: 121/05 76/79 that SI Om Prakash prepared the rukka and made his endorsement on the same and handed over the same to him for registration of the case. After the registration of the case, he received the copy of FIR and rukka and thereafter went in front of B.K. Roy Court building and handed over the copy of FIR and rukka to the IO. In his cross he stated that after the preparation of seizure memo, no addition or alteration was made by SI Om Prakash in the casualty and memo as well as statement was written by SI Om Prakash. But not only the memo bears the number of FIR mentioned on it in running handwriting which was prepared before the registration of the case but also this witness has admitted at page 3 of the last line of his cross that the seizure memo and statement of Nand Kishore and endorsement on in are in different ink and handwriting which cast a doubt on the case of prosecution. Reliance is placed upon 2000 (1) JCC (Delhi) 274 wherein it has been held that : " Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 21 - Search and seizure of heroin and it is said that all documents were prepared at the spot but only FIR was recorded afterwards - But number of FIR inserted in all those documents - It means either the FIR was registered prior to recovery of heroin or the number of FIR was inserted in the documents later on - Both the situations reflect fatal on prosecution case ".
Further Reliance is placed upon 2000 (1) JCC (Delhi) 162 wherein it has been held that : " Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 21 - Alleged recovery of 80 gms. of smack - Rukka, personal search memo and seizure memo were prepared at the spot - But S.C. No.: 121/05 77/79 surprisingly aforesaid documents bear the number of FIR on the top of aforesaid documents in the same ink and same handwriting - The prosecution offered no explanation as to how the number of FIR appeared on these documents - Held: veracity of prosecution story regarding recovery of contraband from appellant's possession - Conviction set aside ".
99. When cross examined on behalf of accused Ziauddin he stated that he remained in the hospital upto 6 p.m. and the photographs of TSR were also taken in his presence. FIR in the present case was registered at around 6.15 p.m. Thus the witness was there till 6 p.m. and thereafter only he reached to the police station and from police station it must have taken some time for the duty officer also to register the case and thereafter only as per this witness he handed over the FIR to the IO at the spot. As per the IO PW41 after remaining at the spot for sometime he went to the hospital. Moreover PW35 has stated at page 2 of his cross that he reached in LNJP hospital at about 6.30 p.m. As per PW26 Constable Prem Singh he remained in the hospital upto 6 p.m. and crime team came in his presnce in the hospital. The version of PW35 in such circumstances falsified by PW26. Either PW35 is deposing falsely or it is PW26.
100. PW11 Constable Rishi Pal who is the Special Messenger and took the report to the senior officers stated in his cross examination that he returned to the police station after handing over the copy of FIR to senior officers at 12.00 night but in the copy of FIR received by Ld. MM time has been mentioned as at about 3.00 a.m. In the night.
101. About robbed amount also there are contradictions in the S.C. No.: 121/05 78/79 prosecution case as both PW1 and PW19 as well as PW13 have stated that the amout was Rs. 6 Lacs whereas PW7 has stated that it was only Rs. 5 Lacs. PW41 has stated in his cross on behalf of accused Ziauddin dated 6.7.2010 that he never summoned Ved Prakash Sikri before 16.7.2005 or after 16.7.2005 which is in contradiction to the testimony of PW7 who stated that he visited the police station 2/3 times.
102. In view of the abovesaid discussion, prosecution has failed to prove its case against all the accused persons beyond reasonable doubt. As such, all the accused are given benefit of doubt. They are, therefore, acquitted of the offence. Accused Shehzad is in J/C. He be released forthwith, if not required in any other case. Accused Naim Qureshi is not produced from Saharanpur Jail. He is also in J/C. Let the copy of this order be sent to Jail Superintendent, Saharanpur Jail to release accused Naim Qureshi, if not required in any other case. Remaining accused are on bail. Their bail bonds cancelled. Sureties discharged. Case property be confiscated to the state after the expiry of period of revision/appeal, if any. File be consigned to record room.
(MADHU JAIN) Additional Sessions Judge1 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. On 13.10.2010 S.C. No.: 121/05 79/79