Delhi District Court
Islamuddin S/O Sh. Qumaruddin vs 1. Kashif S/O Mulla Illyas, on 24 April, 2018
In the court of Sh. Vinod Kumar, ASJ (Central): Delhi
IN THE COURT OF ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.09/2015
CIS No.27365/2016
FIR No.145/2010
PS Civil Lines
State V. (1) Asif,
S/o Rehmat Ali
R/o H.No.3449, Gali Thelewali,
PS Bara Hindu Rao,
Delhi 110006.
(2) Kasif
S/o Mohd. Illiyas,
R/o H.No.A40, Pocket 00, Sector 2,
Awantika, Rohini,
Delhi.
(3) Javed @ Munna
S/o Fahimuddin,
R/o H.No.A11, Hathikhana,
Azad Market,
Delhi.
Particulars of Criminal Complaint No.193/2010
Islamuddin S/o Sh. Qumaruddin Versus 1. Kashif S/o Mulla Illyas,
R/o 3456, Gali Theley Wali, R/o 6232, Pakki Gali,
Bara Hindu Rao, Delhi. Bara Hindu Rao, Delhi.
2.Asif,
S/o Rehmat Ali
R/o H.No.3449, Gali Thelewali,
PS Bara Hindu Rao,
Delhi 110006.
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 1
In the court of Sh. Vinod Kumar, ASJ (Central): Delhi
3. Munna S/o Late Faimuddin,
R/o 11/A, 4th Floor, Hathi Khana,
Azad Market, Bara Hindu Rao,
Delhi.
4. SHO, PS Civil Lines, Delhi.
Date of FIR No.145/2010 PS Civil Lines : 30.07.2010
Date of file of Criminal Complaint
Case in the court of Ld. C.M.M. : 13.09.2010
Date of Institution of chargesheet in
the court of Ld. M.M. :16.12.2013
Date of institution in this Court after committal: 06.04.2015
Date of Arguments : 02.04.2018
Date of Judgment : 24.04.2018
J U D G M E N T
1. Brief facts of the case are that on 30.07.2010, on receipt of DD
no.10A, at 7.15 a.m., an information was received regarding a dead body of a
man lying behind Parmanand Hospital at Under Hill Road, SI Bhupender
Kumar Singh alongwith Ct. Sunil Kumar reached at the spot followed by SHO
Inspector Anil Kapoor. SI Bhupender Singh inspected the place of discovery of
the dead body. Crime Team and Government Photographer were called and
photographs were taken from different angles. On taking search of the dead
body, a mobile SIM Card Vodafone no.90019293358 was seized. One blood
stained knife was lying near the head of the dead body. The same was seized.
With the help of a gauge, the blood was taken from the dead body. Blood
stained earth and earth control were also picked up. All the exhibits were
enclosed in pullandas and sealed with the seal of BKS. Dead body was sent to
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 2
In the court of Sh. Vinod Kumar, ASJ (Central): Delhi
mortuary. No eyewitness could be traced. A rukka written by SI Bhupender
Kumar Singh mentioning these facts was sent to police station for registration
of a case U/s 302 IPC.
2. SI Bhupender Kumar Singh called the crime team at the spot.
Photographs of the spot were taken. The exhibits found on the spot i.e. blood
stained knife, after necessary measurement, blood and sample earth control
etc. were taken into possession through seizure memo. Efforts were carried
out for establishing the identity of the deceased and the body was sent to Subzi
Mandi mortuary for postmortem examination.
Investigation by Inspector Anil Kapoor (PW10)
3. The investigation was thereafter carried out by SHO Inspector Anil
Kapoor. The site plan of the scene without scale was prepared by him, after
inspection of the spot. In the meantime, HC Satneder Kumar arrived at the
spot and handed over the computerized copy of the FIR with rukka to the SHO.
4. Inspector Anil Kapoor prepared the site plan. In a casual search of
the dead body conducted by SI Bhupinder Singh, a SIM card of Vodafone
company was recovered from the left pocket of the jeans worn by the deceased.
Inspector Anil Kapoor inserted the said SIM in his own mobile phone and it
was found that validity of the said SIM card had already expired. The said SIM
card was recharged and it was found that the aforesaid SIM card was having
mobile no.7838802782. On the basis of this mobile phone number, Inspector
Anil Kapoor contacted the service provider and found that abovesaid SIM card
was issued at address A11, Hathi Khana Park, Bara Hindu Rao, Delhi. The
dead body had already sent to Subzi Mandi Mortuary. Investigating Officer
recorded the statements of witnesses. He also visited the aforesaid address
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 3
In the court of Sh. Vinod Kumar, ASJ (Central): Delhi
with the photograph of the dead body. Deceased was identified as Danish @
Moin Akhtar by one Rizwan. Relatives of deceased were called at PP Ahata
Kidara and Islamuddin & Nawabuddin, who were the father and cousin brother
of the deceased arrived at police post and identified the photographs of the
deceased.
5. Thus, Inspector Anil Kapoor, SHO PS Civil Lines fixed the identity
of the dead body as Danish @ Moin Akhtar S/o Islamuddin R/o 3456, Gali
Thele Wali, Bara Hindu Rao, Delhi. Inquest papers were prepared by him.
Statements of Islamuddin, father of deceased and Nawabuddin, the cousin
brother of deceased, regarding identification of the deceased Danish were
recorded after postmortem examination on 31.07.2010. The dead body of
deceased Danish was handed over to the father and family members of the
deceased. Exhibits received through CMO Subzi Mandi mortuary were also
taken into possession through seizure memo by the SHO and were deposited at
PS Malkhana.
6. As per the investigation carried out by Inspector Anil Kapoor, on
02.08.2010, Islamuddin, father of deceased was joined for investigation,
who stated that in the intervening night 29/30.07.2010 at about 1.15 a.m.,
Javed @ Munna, Asif @ Kasif called his son out of home and all the four
including his deceased son Danish were last seen together. Next day, near
about time of jumma's namaj, he was informed to reach over mortuary for the
identification of a dead body where he found his son Danish as dead.
Nawabuddin, cousin brother of the deceased Danish who is also residing in the
same house premises, did not speak about the last seen on initial stage. Later
on after a gap of six days of the discovery of the dead body and
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 4
In the court of Sh. Vinod Kumar, ASJ (Central): Delhi
postmortem examination of deceased Danish. Nawabuddin also revealed
that he also saw Javed @ Munna, Kasif & Asif last time with his deceased
cousin Danish.
7. The Investigating Officer Inspector Anil Kapoor mentioned the
abovementioned revelation of Islamuddin and Nawabuddin in case diaries but
did not reduce in writing U/s 161 Cr.P.C.
8. During the course of investigation Javed @ Munna, Kasif & Asif
were joined for the investigation by Inspector Anil Kapoor, who interrogated
them in detail. The trio, during their interrogation did not admit any guilt.
Facts were cross checked by the IO and his staff but nothing incriminating
found against them as per interrogation and other material on record by him.
9. The investigation carried out by the initial IO also revealed that Javed @ Munna is the son of Sahajahan Begum who is the real sister of Islamuddin. Kasif is also related to Islamuddin & Nawabuddin as he is the son inlaw of Sahajahan Begum. Asif is associate of Kasif and Javed @ Munna and also residing in the same locality of Bara Hindu Rao. Islamuddin and Sahajahan Begum both brother and sister are having old family enmity between them and each of them does not leave any chance to make allegations against each other. Inspector Anil Kapoor remained the Investigating Officer till 10.9.2010.
Investigation by Inspector Rakesh Kumar (PW17)
10. With effect from 11.9.2010, the investigation was assigned to Inspector Rakesh Kumar posted at PS Civil Lines. The exhibits taken into possession were also sent to FSL for necessary examination. He noted that it was recorded during investigation that WagonR car no.DL 6CL 0332 (owned FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 5 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi by the father of the suspect Kasif) was used to take deceased. On the directions of Investigating Officer, accused Kasif produced the car and the same was taken into possession by the IO and sent to FSL for taking possible exhibits from inside the car. FSL authorities however, preserved two exhibits from the abovementioned car which were also sent to the FSL for necessary examination. Later on the result of these exhibits preserved from the above mentioned WagonR car was received as human blood but no further grouping could be determined.
11. On 13.09.2010, the father Islamuddin of the deceased, moved complaint U/s 200 Cr.P.C. before the court, alleging therein, about the last seen of his son Danish alongwith Javed @ Munna, Kasif & Asif. He further alleged in his complaint that the said three persons called his son Danish from his residence while he was taking his meal and despite his pointing out about the late hours, they said that they were near by and would be back soon and left there in a Wagon R car. In his complaint, he further alleged that the said three persons were having criminal records and the relationship of Kasif and his niece Nazia was opposed by his son Danish and police has not taken any action against them.
Investigation by Inspector Yudhvinder Singh DIU Cell
12. The investigation of the case, which was earlier carried out by IO Inspector Anil Kapoor and Inspector Rakesh Kumar, was transferred to DIU on 09.05.2011 and investigation was taken over by Inspector Yudhvir Singh.
13. On 08.06.2011, during the course of investigation, Inspector Yudhvinder Singh examined Islamuddin, father of deceased Danish, Nawabuddin, cousin brother of deceased Danish. Islamuddin also produced FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 6 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi one Sahimuddin and Jahiruddin being the last seen witnesses to the IO who recorded their statements U/s 161 Cr.P.C. The statement of four PWs reveals that the deceased Danish was last seen with Javed @ Munna, Kasif and Asif. Investigation by Inspector Ravinder Kumar (PW23) Inspector Cold Cases Cell District Investigation Unit (DIU)
14. On 11.04.2013, the investigation of the case was entrusted to Inspector Ravinder Kumar. Inspector Ravinder Kumar recorded the statement of Shahin D/o Islamuddin U/s 161 Cr.P.C. She also stated that the said three persons Javed @ Munna, Kasif and Asif came to their residence in the night at about 12.0012.30 a.m. and called her brother Danish, who was taking his meal, to come out as something was to be discussed. She although refused them as her brother was taking his meal but her brother Danish went with them saying that he will be back in few minutes. Next afternoon she came to know that her brother Danish was murdered. During further course of investigation, efforts were carried out to find out the exact motive behind the murder but nothing concrete could be obtained. Although in complaint U/s 200 Cr.P.C. Islamuddin, father of deceased has alleged about cause of the grudge between his deceased son Danish and Kasif but in this regard despite of every possible efforts, no supportive evidence could be obtained so far.
15. The result of the exhibits which were sent to the FSL was obtained from FSL reveals that the exhibits taken out from the car WagonR no.DL 6CL 0332 contained human blood. The postmortem report of deceased Danish dated 31.07.2010 also reveals that the stomach of the deceased contained semi digested food material which corroborate the fact that the deceased Danish consumed meal not long before his death.
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 7 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi Conclusion of the Charge sheet
16. The chargesheet was prepared placing all accused persons in column no.12, with a conclusion that as per the statements of the PWs examined in this case it is established that the deceased Danish was murdered during the night intervening 29/30.07.2010. As stated, he was called from his residence by Javed @ Munna, Kasif & Asif accused mentioned in Column no.12 but thereafter no other material evidence in respect to the murder of deceased Danish could be obtained so far. Although efforts were carried out by all the respective investigating officers but neither motive behind the murder is supported by any evidence nor any eyewitness supporting this fact could came forward.
17. During the course of investigation previous Investigating Officers of the case who conducted the investigation were also contacted and they were also examined. Inspector Anil Kapoor told that he brought on record in his written case diary regarding last seen of Danish with Javed & Munna, Kasif and Asif as stated by Islamuddin, father of the deceased but he did not reduced that in writing U/s 161 Cr.P.C. because Islamuddin and Sahajahan Begum were the real brother and sister and family of both of them were having several criminal involvements. He also interrogated Javed @ Munna, Kasif and Asif at length and also cross checked their statements but nothing incriminating was found against them by him.
18. Inspector Ravinder Kumar have also conducted the investigation on the other aspects of the enmity but no clue could be obtained so far. The suspected persons Javed @ Munna, Kasif and Asif were also interrogated by the previous investigating officers and Inspector Ravinder Kumar also in FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 8 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi respective time but even after the necessary cross check nothing incriminatory was found.
19. Investigation also revealed that Islamuddin,father of deceased and Nawabuddin, cousin of deceased are having old enmity with the family of Sahajahan Begum who is sister of Islamuddin. In past in 1999, they have registered criminal cases against each other for kidnapping their daughters and in 1998, Islamuddin, father of deceased was arrested with Nawabuddin and Fahimuddin U/s 307/34 IPC vide case FIR no.152/1998 PS Bara Hindu Rao. In this case, Islamuddin attempted murder by firing gun shot on Irfan who was son of Sahajan Begum (sister of Islamuddin). In this case Nawabuddin and Fahimuddin were acquitted but Islamuddin was convicted on 14.09.2007 for Rigorous Imprisonment for one and half years. An appeal against this judgment is stated to be pending in Hon'ble High Court of Delhi.
20. In view of the above involvement, the Investigating Officer was of the opinion that Islamuddin could have concocted the last seen theory with the interested witnesses namely Nawabuddin the nephew, Kumari Saheen the daughter and his other associates Jahiruddin and Sahimuddin. The suspicion was expressed on the third day of the discovery of the dead body by Islamuddin. Jahiruddin and Sahimuddin were specifically produced by him as PWs after a gap of about 11 months. In his complaint U/s 200 Cr.P.C. which was filed by him on 13.09.2010 after 45 days Islamuddin has mentioned only two witnesses to the incident of last seen and there is no mention of Jahiruddin and Sahimuddin.
21. All possible efforts to link the suspects Javed @ Munna, Kasif and Asif with the commission of offence were carried out. These three suspects are FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 9 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi also having criminal involvements against them. Beside stern police interrogation, polygraphic tests of the suspects were also carried out but nothing incriminating was found against them which could have led to their arrest. The polygraphic test of Javed @ Munna and Kasif was not supportive and the test of Asif could not be carried out due to his lever damage.
22. The exhibits taken from the car of the suspect Kasif (registered owner of the car is Mohd. Illiyas, father of Kasif) as mentioned in column no.12 were again sent to FSL for obtaining any possible result regarding DNA profile match of the exhibits in question and with the other exhibits containing with the blood stained exhibits of deceased Danish and weapon of offence (knife). The incident of crime is more than three years old. As per charge sheet, the suspected persons have been interrogated by all the previous IOs. In dearth of evidence the suspected persons could not be arrested hence the present final report U/s 302/34 IPC was forwarded against suspects as mentioned in column no.12 on recognizance. The suspects were not arrested as there is insufficient evidence. Even then circumstances and oral statements, points about their involvement in the present case. With this conclusion, the chargesheet was filed in the court of Ld. Metropolitan Magistrate on 16.12.2013 without FSL result.
Criminal Complaint Case filed by Islamuddin
23. As already mentioned, a criminal complaint case (Ex.PW4/DA) was filed by Islamuddin on 13.09.2010 against the accused persons. In this criminal complaint case, the complainant alleged that despite mentioning the name of the three accused persons as offenders, they have not been arrested by the police. Ordersheet dated 22.09.2010 shows that Ld. ACMM sought the FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 10 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi status report from Investigating Officer from time to time. In ordersheet dated 01.07.2013, Ms. Chhavi Kapoor, Ld. M.M. noted that six Investigating Officers have been assigned with the investigation and there is delay and lackadaisical attitude of the police in investigating the case.
24. Chargesheet was filed without the result from FSL on 16.12.2013. This complaint case was annexed with the chargesheet. The proceedings after filing of chargesheet
25. Chargesheet in the present case was filed in the court of Ms. Ambika Singh, Ld. Metropolitan Magistrate on 16.12.2013. Perusal of the ordersheets of the complaint case show that Ld. Metropolitan Magistrate has expressed displeasure on the laxity of investigation and frequent changing of Investigating Officers.
26. After filing of the chargesheet, no proceedings were conducted in the complaint case as it was annexed with the chargesheet. Ms. Ambika Singh, Ld. Metropolitan Magistrate was unhappy with the laxity in investigation and passed following order : "13.03.2014 Present: APP for state.
Perusal of the case file reveals that on 30.07.2010, on receiving DD no.10A at 7.15 a.m. regarding the dead body of a man lying behind Parmanand Hospital, SI Bhupinder Kumar Singh alongwith Ct. Sunil Kumar followed by SHO Anil Kapor reached at the spot. SHO Anil Kapoor was the initial IO of this case.
Chargesheet without arrest was filed on 16.12.2013. On 28.07.2013, Ld. Predecessor of this court has ordered that investigation be completed and report be filed by 24th September, 2013. On 24th September, 2013, a status report was filed. On the next date as well, the status report was filed. On 06.12.2013, it was submitted by ASI Narender Pal that chargesheet has been prepared and same has been forwarded to ACP and adjournment was sought to file the same. On 16.12.2013, the charge sheet was filed.
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 11 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi Perusal of case file shows that it is an example of delay and lackadaisical attitude of the investigating authority. The initial IO Inspector Anil Kapoor, the then SHO PS Civil Lines has practically done nothing in this case. He remained the IO till 09.05.2011. The initial IO should have acted with promptness considering the nature and gravity of the offence. He did not even bother to record the statements of the relatives of the deceased who were alleging the last scene theory U/s 161 Cr.P.C. Further, the mobile phone of the deceased was recovered from his pant's pocket and nothing was done by the IO to trace out the call records and also no details were taken regarding the usage of mobile phone on the particular location. Nothing was done to take the mobile records of alleged accused persons and also the call details regarding their phone usage on particular location so that a connection could have or could not have been formed regarding the accused persons and deceased being together. Further, no finger prints have been taken from the alleged knife and not sent for examination. The custodial interrogation if would have done in the present case, it could have resulted into a break thorough of the offence.
The initial IO has done nothing for matching the blood as found in the Wagon R with the blood of the deceased. It is also alleged that there an enmity between the families of the parties. Even, no investigation has been done as this being a reason or motive behind the murder of deceased.
The present IO Inspector Ravinder Kumar has shown a little promptness. He though, sent the blood as found in the Wagon R for matching with the blood of deceased but no FSL results have been filed and nothing has been done by the IO/Inspector Ravinder Kumar to expedite the matter. It is specifically mentioned in the chargesheet that no extension of time was granted and chargesheet was filed, meaning thereby, the investigation was not even completed by 16.12.2013.
In view of the aforesaid facts and circumstances, the court is of the opinion that this case is a perfect example of delay and lackadaisical attitude of the investigating authority, particularly, the initial IO Inspector Anil Kapoor and IO Inspector Ravinder Kumar. In general, keeping in view the aforesaid points as discussed above, it is fit case for sending the same for further investigation U/s 173(8) of Cr.P.C. the SHO/IO is directed to further investigate the matter and file chargesheet at the earliest. The DCP (North) to assign this case to any known competent inspector to investigate this case, in the interest of justice.
Let a copy of this order be sent to DCP (North) for initiating appropriate action against the then IO/SHO Anil Kapoor and FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 12 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi IO/Inspector Ravinder Kumar at his end and action taken report be filed in the court at the earliest. Copy of the order be also given to the complainant.
(Ambika Singh) MM08(C)/THC/Delhi 13.03.2014"
27. I may mention here that in the chargesheet it was mentioned that the result of the exhibits sent for DNA finger printing is still awaited and in future if the result of these exhibits reveals anything Positive (DNA finger printing of questioned exhibits if matches with the DNA finger printing of sample exhibits) then it will be an incriminating evidence against the suspected persons mentioned in column no.12 and further necessary investigation would be carried out. Therefore, it was stated in the chargesheet that the supplementary chargesheet will be submitted before the court later on. Since the further extension of time for DNA result and investigation was granted by Ld. Metropolitan Magistrate, hence, the chargesheet was submitted. Accordingly, the chargesheet was submitted by the police in the court of Ld. Metropolitan Magistrate on 16.12.2013, without filing the DNA report. Therefore, Ld. Metropolitan Magistrate directed further investigation under Section 173(8) CrPC.
Supplementary chargesheet
28. After receiving the DNA report, police filed supplementary charge sheet in the court of Ld. Metropolitan Magistrate on 05.03.2015. I would like to reproduce the supplementary chargesheet as under : "Brief facts of this case are that on 30.07.2010 vide DD no.10A, lodged at 7.15 a.m. an information was received about recovery of a dead body at under Hill road in the jurisdiction of PS Civil Line. This information was marked to SI Bhoopender, FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 13 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi PS Civil Lines. On the basis of spot inspection and injuries on dead body and recovery of sharp edged weapon he got the above said case registered. Investigation of the case was taken up by Inspector Anil Kapoor, SHO PS Civil Lines. The deceased was later on identified as Moin Akhtar @ Danish S/o Islamuddin R/o 3456 Gali Thelewali, BH Rao, Delhi. A petition U/s 156(3) Cr.P.C. R/w Sec.200 Cr.P.C. was also filed by Sh. Islamuddin, father of the deceased vide complaint case no.193/k/10 wherein Kasif, Asif and Javed @ Munna were named as accused persons. Investigation in the case was conducted by Inspector Anil Kapoor, SHO PS Civil Lines till 10.09.2010, Inspector Rakesh Kumar from 11.09.2010 to 29.04.2011, Inspector Jitender Kumar from 03.05.2011 to 10.05.2011, Inspector Yudhvinder Singh from 28.05.2011 to 2012/2011, Inspector Gopi Chand from 03.01.2012 to 08.08.2012, Inspector Pradeep Kumar from 17.08.2012 to 11.09.2012, Inspector Sajjan Singh Yadav from 12.09.2012 to 02.11.2012, Inspector Rohtash Kumar from 03.11.2012 to 09.03.2013 and Ravinder Kumar from 11.04.2013 to 13.12.2013. Inspector Ravinder Kumar filed a final report U/s 173(2) Cr.P.C. dated 13.12.2013, without arresting the accused persons, in the court. It was mentioned in the final report that DNA result was awaited. Hence, investigation U/s 173(8) Cr.P.C. was conducted by Inspector Rajesh Sinha.
During investigation till 13.12.2013 i.e. preparation of final report by Inspector Ravinder Kumar, certain witnesses were examined and accused persons interrogated. During investigation Wagon R car no.DL 6CC 0332 was seized in this case, and it was sent to FSL Rohini for examination by the forensic expert. The forensic team collected exhibits from the said car and handed over two sealed parcels containing blood stained piece of carpet from back seat of car and blood stained piece from near the back side of left seat of car near window. These exhibits alongwith exhibits taken from the scene of crime were sent to FSL Rohini for DNA analysis.
On 13.03.2014, Ms. Ambika Singh, M.M., passed certain observations after filing of status report. Hence, further investigation has been conducted in view of the said order and also on other points relevant to the case.
DNA report was obtained vide FSL/2013/DNA6310 DNA FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 14 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi No.1081/13 dated 31.10.2014. This DNA report concluded that the alleles from the kurta of deceased, handkerchief of deceased are accounted from the alleles from blood stained gauze cloth piece lifted from car and blood stained gauze cloth lifted from scene of crime. The DNA profiling performed on source of exhibits (blood stained piece of carpet, blood stained gauze cloth piece lifted from car, blood stained gauze cloth lifted from scene of crime, kurta of deceased, handkerchief of deceased) is sufficient to conclude that the DNA profile from the source exhibits (blood stained piece of carpet, blood stained gauze cloth piece lifted from car and blood stained gauze cloth lifted from the scene of crime) is similar.
Thereafter the alleged persons, Kasif, Asif and Javed @ Munna were called to join investigation on 08.12.14. In the light of DNA analysis report & evidence on record the accused persons were interrogated and all of them confessed to have committed the offence of this case together. All the three accused persons have been arrested in the case and they after in judicial custody at present.
As per investigation the families of the deceased and the accused are related to each other. It has also come into evidence that there was an element of previous enmity between the two families. It has come on record that Islamuddin, father of the deceased, was convicted in a case FIR no.152/98 PS Bara Hindu Rao in which he is alleged to have fired shots at brother of accused Javed alias Munna. It has also come on record that rs. Mumtaz Begum, mother of the dceceased had lodged FIR no.123/99 PS Bara Hindu Rao against two brothers of the accused Javed alias Munna. This case was later on cancelled. Ms. Shabnam, sister of Javed alias Munna had also lodged FIR no.11/99 Ps Bara Hindu Rao against parents of the deceased with the allegations that she was kidnapped and assaulted by them. This case was charge sheeted. Accused persons had also disclosed the motive behind committing the murder of Moin Akhtar @ Danish by them was to eliminate him as he used to forcibly take money from them which they earned by pickpocketing, theft etc. Accused Kashif and Asif are involved in criminal cases in PS Bara Hindu Rao. Investigationj also shows that some ill will existed between the deceased and the accused persons as the deceased was being taunted by the accused FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 15 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi persons as the accused Kasif was having relating with his cousin sister. In this regard, statement of Nazia D/o late Salimuddin has been recorded who stated that she used to talk to Kasif on mobile phone. Kasif used to come to her street on the pretext of eating nahri and this was disliked by her brother Danish. All the three accused persons correctly pointed out the place of incident. PC for accused Kasif was obtained to recover the blood stained clothes of all the three accused persons which he had thrown at the field n ear the bank of water canal at village Ganghera Bullandshahar but it could not be recovered despite genuine efforts. He also disclosed that during his visit he had also gone to the residence of Ashu at Ganghera village. During investigation statement of Nazma W/o Aas Mohammad was recorded who confirmed the visit of the accused to her house in the same evening when the body of the deceased was discovered. She has also stated that her mother had informed about murder of her cousin Danish. She also stated that the accused Kasif, her brother in law (jeeja) had come to her house on the same day after the murder of Danish and Kasif had told her that his name was being mentioned as accused in that murder. She further stated that Kasif had come to her house in his silver colour Wagon R car, which remained in the custody of Kasif and nobody else used that cart. Hence, it is evident that the accused Kasif has succeeded in destroying the blood stained clothes which all the accused person were wearing at the time of the offence.
During PC remand Kasif had identified the place where he had parked his car in Ramesh Park, Delhi. During investigation, Inspector Anil Kapoor had interrogated one attendant in the said parking namely Shamim S/o Mohd. Jasim R/o H.No.13 Gali no.10 Ramesh Park Laxmi Nagar, (Mobile no.9958501379) and had seized from him a photocopy of the page out of the register maintained by that parking staff regarding entry and exit of vehicles. Md. Shamim was examined again who identified that page available on file and signed on it as a symbol that it was the same page handed over by the night staff which comprised of one Pappu and 2/3 Nepalis. Muthu Khan @ Pappu was also interrogated but the Nepalis workers and the manager of that parking could not be traced. Perusal of that photocopy reveals that some cutting has been made in the timing of entry made FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 16 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi after 12.30 midnight. In this regard statement of Mithu Khan @ Pappu was recorded who stated that he worked at the above said parking during night and that since he himself was illiterate, all entries made regarding entry and exit of vehicles were made by Akhilesh but he is untraceable since December 2010. During investigation he could not be traced. During investigation it has come on evidence that the deceased was last seen in the company of the accused persons. One Imran, who had got the car of the accused Kasif repaired in the day time, has stated that in the night intervening 29/30.07.2010 he had handed over it to Kasif at MCD Park opposite Delhi railway station in pursuance of a telephonic talk. He also stated that he had left Kasif alongwith Asif, Javed @ Munna and others around 11 p.m. During investigation one Imamuddin was also examined who revealed that he had seen the deceased Danish in a Wagon R car, in which he had filled air, at about 11/2 or 2 am in the night alongwith other persons and that next morning he came to know that Danish was murdered. The dead body was noticed at around 7.15 p.m. During investigation opinion of Forensic Dr. S. Lal was obtained regarding the weapon of offence. The doctor opined that injury no.1 mentioned in PM report could have been caused by weapon produced before him for examination. As per MLC injury no.1 has been mentioned to be produced by sharp edge weapon.
From the investigation made so far it is evident that the accused persons were seen in company of the deceased soon before recovery of his dead body. It has also come in evidence that some ill will existed between the two factions. It has also come in evidence that soon after the death of the deceased name of accused Kasif, Asif and Javed @ Munna had cropped up. It has also come in evidence that soon after the death of the deceased name of accused Kasif, Asif and Javed @ Munna had cropped up. It has also come in evidence that soon after the murder the accused Kasif had gone to Village Ganghera, Bulandshehar. It has also come in evidence that the car Wagon R DL 6Cc 0332, from which blood of the deceased was recovered, belonged to the father of the accused Kasif and that its possession remained with the accused Kasif. DNA profiling of blood recovered from the car and that of the deceased has FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 17 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi matched which conclusively show that the accused persons, who were last seen with the deceased, were responsible for his death. During investigation sufficient evidence against the accused persons, Kasif, Asif and Javed @ Munna has come on record to show their involvement in the said case. Hence, Challan against accused persons for offences punishable U/s 120 B IPC R/w 302 IPC, 302 IPC and 201 IPC is being submitted in the court. Accused Kaif is liable for offences U/s 120 B IPC R/w 302 IPC, 302 IPC and 201 IPC. Accused Javed and Asif are liable to be prosecuted U/s 120B IPC R/w 302 IPC & 302 IPC. All accused persons are in JC."
29. The accused persons were arrested on 08.12.2014 by Inspector Rajesh Sinha and aforesaid supplementary chargesheet was filed.
30. After taking cognizance of the offence and after compliance of requirements U/s 207 Cr.P.C., case was committed to the Sessions Court. Charge
31. After hearing arguments, charge under Section 120B IPC for conspiring commit murder and under Section 302 IPC for substantive offence of committing murder of Danish was framed by my Ld. Predecessor on 22.07.2015 against all accused persons. Accused persons pleaded not guilty and claimed trial.
Prosecution Evidence
32. In order to prove the "last seen" evidence, prosecution examined PW2 Zahiruddin, PW4 Shaheen, PW5 Nawabuddin and PW6 Mohd. Shahimuddin. I may mention here that PW2, PW4 and PW5 have supported the prosecution case. However, PW6 totally turned hostile. It is necessary to record here that in criminal complaint Ex.PW4/DA, Islamuddin, the father of deceased, had also claimed himself to be the last seen witness but he could not FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 18 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi be examined by prosecution due to his death on 03.08.2010 as per the report on his summons, which was supported by a copy of his death certificate. The defence has strongly assailed this last seen evidence of PW2, PW4 and PW5. Therefore, their evidence will be discussed in detail.
PW1 W/SI Dorothi proved FIR Ex.PW1/A. PW3 SI Bhupender Kumar was the first police officer to reach at the spot alongwith Ct. Sunil. He conducted initial investigation and thereafter took part in investigation conducted by Inspector Anil Kapoor.
PW7 Dr. S. Lal, HOD and specialist in Forensic Medicine, Lal Bahadur Shastri Hospital, Delhi conducted postmortem and opined that death was caused by antemortem cut throat injury i.e. the injury no.1, which was possible by sharp edged weapon and injury no.2 & 3 could be possible by ligature material. All the injuries were found antemortem and fresh and death could have occurred about 36 hours before postmortem. He preserved following items to IO in sealed pullanda alongwith the sample seal :
1. Items recovered from body.
2. Ligature material found in situ.
3. Deceased blood soaked in gauge piece.
4. All clothes of deceased at the time of postmortem examination.
The postmortem report is proved as Ex.PW7/A. PW7 further testified that on 05.10.2013, an application was received from Inspector Ravinder Kumar alongwith all inquest papers regarding subsequent opinion of clarification of digestion of food, which was found at the time of postmortem examination. It was opined that semidigested food is found in the stomach after 12 hours of ingestion of last meal. This subsequent FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 19 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi opinion was proved as Ex.PW7/B. PW8 Ms. Seema Naini, Assistant Director, FSL, Rohini testified as under : On 21.10.2010, 10 sealed parcels were received in connection with the case FIR no.145/2010 U/s 302 IPC PS Civil Lines vide letter no.2008R/SHO Civil Lines dated 21.10.2010. The same were marked to me for biological and seriological examination. On examination, all the parcels were sealed and seals were tallied with the sample seals provided in the forwarding authority letter. On opening parcel 'A', which was sealed with the seal of BKS found to contain Exhibit A i.e. blood stained gauge cloth piece from scene of crime.
On opening Parcel A1, which was sealed with the seal of BKS found to contain Exhibit A1 i.e. blood stained earth.
On opening Parcel A2, which was sealed with the seal of BKS found to contain Exhibit A2 i.e. earth control.
On opening Parcel A3, which was sealed with the seal of BKS found to contain Exhibit A3 i.e. knife lifted from scene of crime. On opening Parcel A4, which was sealed with the seal of CMO I/C AAAGH SUBZI MANDI MORTUARY DELHI found to contain Exhibits A4a, A4b, A4c, A4d and A4e of deceased (i.e. kurta, pant with belt, cloth piece, cap, handkerchief respectively).
On opening Parcel A5, which was sealed with the seal of CMO I/C AAAGH SUBZI MANDI MORTUARY DELHI found to contain Exhibit A5 (i.e. plastic rope).
On opening Parcel A6, which was sealed with the seal of CMO I/C AAAGH SUBZI MANDI MORTUARY DELHI found to contain Exhibit A6 (i.e. metallic chain with ear pin and locket).
On opening Parcel A7, which was sealed with the seal of CMO I/C FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 20 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi AAAGH SUBZI MANDI MORTUARY DELHI found to contain Exhibit A7 (i.e. blood stained gauge cloth piece of deceased). On opening Parcel A8, which was sealed with the seal of RT found to contain Exhibit A8 (i.e. blood stained piece of carpet lifted from back seat of car no.DL 4CL 0332).
On opening Parcel A9, which was sealed with the seal of RT found to contain Exhibit A8 (i.e. blood stained gauze cloth piece lifted from back side of left seat of car no.DL 4CL 0332).
On examination, blood was detected on exhibits A, A1, A3, A4a, A4b, A4c, A4e, A5, A6, A7, A8 & A9. However, blood could not be detected one exhibits A2 & A4d.
On serological examination, blood detected on exhibits A, A1, A3, A4a, A4b, A4c, A4e, A5, A6, A7, A8 & A9 was found to be human in origin. On serological grouping, blood found on exhibits A, A4a & A4b was of "B" group. My detailed biological and serological report in this regard is Ex.PW8/A (running into 3 pages), bearing my signatures on each page at points A. After the examination, remnants of the exhibits were resealed with the seal of S.Nn FSL DELHI.
On 08.08.2013, five sealed parcels in connection with the present case FIR number were received in the Office of Director, FSL, Delhi, vide letterno. 628R/ACPDIU/N dated 08.08.2013. The same were marked to me for DNA examination.
On examination, all the parcels were sealed and seals were tallied with the sample seals provided in the forwarding authority letter. On opening the parcel no.A8 which is sealed paper envelope sealed with the seal of S.Nn FSL DELHI bearing FSL report no.2010 B/4663, Bio No.1213/2010 found to contain Exhibit A8 ( i.e. blood stained piece of carpet lifted from car).
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 21 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi On opening the parcel no.A9 which is sealed paper envelope sealed with the seal of S.Nn FSL DELHI bearing FSL report no.2010 B/4663, Bio No.1213/2010 found to contain Exhibit A9 ( i.e. blood stained gauge cloth piece lifted from car).
On opening the parcel no.A3 which is sealed paper envelope sealed with the seal of S.Nn FSL DELHI bearing FSL report no.2010 B/4663, Bio No.1213/2010 found to contain Exhibit A3 ( i.e. knife lifted from scene of crime).
On opening the parcel no.A which is sealed paper envelope sealed with the seal of S.Nn FSL DELHI bearing FSL report no.2010B/4663, Bio No.1213/2010 found to contain Exhibit A ( i.e. blood stained gauge cloth piece lifted from scene of crime).
On opening the parcel no.A4 which is sealed paper envelope sealed with the seal of S.Nn FSL DELHI bearing FSL report no.2010 B/4663, Bio No.1213/2010 found to contain Exhibits A4a, A4b, A4c, A4d and A4e of deceased (i.e. kurta, pant with belt, cloth piece, cap, handkerchief respectively).
On DNA examination, exhibits A8 (blood stained piece of carpet), A9 (blood stained gauze cloth piece lifted from car), A3 (knife), A (blood stained gauze cloth lifted from scene of crime), A4a (Kurta of deceased) and A4e (handkerchief of deceased) were subjected to DNA isolation. DNA was isolated from the source of exhibits A8 (blood stained piece of carpet), A9 (blood stained gauze cloth piece lifted from car), A3 (knife), A (blood stained gauze cloth), A4a (kurta of deceased) and A4e (handkerchief of deceased). DNA profile was generated from the source of exhibits, A8 (blood stained piece of carpet), A9 (blood stained gauze cloth piece lifted from car), A (blood stained gauze cloth lifted from scene of crime), A4a (kurta of deceased) and A4e (handkerchief of deceased). H owever, DNA FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 22 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi Profile could not be generated from the source of exhibit 'A3' (knife) due to degraded stains. Identifiler plus amplification (STR) kit was used for each of the exhibit and data was analyzed by GeneMapper IDx Software.
Result The alleles from the source of exhibits "A4a" (Kurta of deceased) and 'A4e' (handkerchief of deceased) are accounted in alleles from the source of exhibits 'A8' (blood stained piece of carpet), A9 (blood stained gauze cloth piece lifted from car) and A (blood stained gauze cloth lifted from scene of crime).
Conclusion DNA Profiling (STR analysis) performed on the source of exhibits 'A8' (blood stained piece of carpet), A9 (blood stained gauze cloth piece lifted from car), 'A' (blood stained gauze cloth lifted from scene of crime), A4a (kurta of deceased) and 'A4e' (handkerchief of deceased), is sufficient to conclude that DNA profile from the source of exhibits 'A4a' (kurta of deceased) and 'A4e' (handkerchief of deceased) is similar with DNA profile from the source of exhibits 'A8' (blood stained piece of carpet), A9 (Blood stained gauze cloth piece lifted from car) and 'A' (blood stained gauze cloth lifted from scene of crime). My detailed report dated 31.10.2014 regarding DNA examination is Ex.PW8/B (running in 2 pages) bearing my signatures on each page at points A. After the examination, remnants of the exhibits were resealed with the seal of S.Nn FSL DELHI."
PW9 SI Ram Tirath testified as under : "On 17.09.2010, I was posted at PS Civil Lines as ASI. On that day, I joined the investigation on the asking of the IO Inspector Rakesh Kumar, one suspect Kasif, (Witness pointed out accused Kasif, present in the court) had produced one car make Wagon R bearing FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 23 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi No.DL 6CL 0332. IO seized the said car vide seizure memo Ex.PW9/A bearing my signature at point A and signature of accused Kasif at point B. On 28.09.2010, on the direction of the IO Inspector Rakesh Kumar, I took the aforesaid car from the malkhana of PS Civil Lines to FSL Rohini alongwith HC Naresh vide request letter of the IO. FSL officials inspected the said car and handed over two sealed parcels to me. I returned to the PS Civil Lines with the said car and handed over the said sealed parcels to the IO. IO seized the said both parcels vide seizure memo Ex.PW9/B bearing my signature at point A. I deposited the said car in the malkhana. I did not tamper the case property as well as both the sealed pullandas as long as same remained in my possession."
PW10 ACP (Retd.) Anil Kapoor is a very important witness as he is the first IO of the case. I reproduce his testimony as under : "On 30.07.2010, I was posted as SHO PS Civil Lines. On that day, at about 7.15 a.m., I received one telephonic information in PS Civil Lines that one dead body was lying at Under Hill Road near Pappu Halwai. I alongwith my staff immediately went to the place of incident where I found that SI Bhupinder and Ct. Anil were already present. I found that one dead body aged around 25 years, was lying in front of Kothi No.1B, on the side of the road. I observed that the dead body was having some deep cut mark on the neck and one rope was also found in the neck of the dead body. The deceased was wearing white colour kurta and black jeans. I also observed that one knife was lying near the head of the dead body which was stained with blood. The deceased was not wearing any slippers/chappals.
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 24 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi The Crime Team alongwith photographer was called at the spot. Crime scene was inspected and they had clicked the photographs from different angles. A casual search of the dead body was carried by SI Bhupinder who had found one SIM card of Vodafone company from the left pocket of wearing jeans of the deceased. The abovesaid SIM card was taken into possession vide memo already Ex.PW3/A. The sketch of knife which was found near the dead body prepared by SI Bhupinder vide memo already Ex.PW3/B. the abovesaid knife was kept in a cloth pullanda and sealed with the seal of BKS and same was taken into police possession vide memo already Ex.PW3/C. The blood found at the spot was taken on a gauge piece. The sample of blood stained earth and earth control were also taken by SI Bhupinder. The blood gauge piece, blood stained earth and earth control were kept in separate transparent plastic jars and same were sealed with the seal of BKS. Mark A, A1 & A2 respectively given to the abovesaid plastic jars and they were seized vide memo already Ex.PW3/D. One rukka was prepared by SI Bhupinder and he had sent HC Satender for registration of FIR.
After that, I took the investigation. I prepared site plan which is Ex.PW10/A bearing my signature at point A. The SIM card recovered from the pocket of deceased was inserted by me in my mobile phone and I found that the validity of the abovesaid SIM card was already expired. The abovesaid SIM card was recharged and I found that the abovesaid SIM card was having the mobile no.7838802782. On the basis of abovesaid mobile phone number, I contacted the service provider and found that the abovesaid SIM card was issued at the address A11, Hathi Khana Park, Bara Hindu Rao. The dead body was already sent to Subzi Mandi, Mortuary with request to preserved the same for 72 hours. I recorded the statements of witnesses. HC FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 25 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi Satender arrived at spot and handed over to me copy of FIR and original rukka. I visited the abovesaid address i.e. A11, Hathi Khana Park, Bara Hindu Rao with the photograph of the dead body. The deceased was identified as Danish @ Moin Akhtar by one Rizwan. The relatives of the deceased were called at PP Ahata Kidara and Islamuddin & Nawabuddin, who were father and cousin brother of deceased, arrived at PP and identified the photographs of the deceased. I inquired from the abovesaid persons. After that, I returned back to PS and deposited the case property in the malkhana of PS Civil Lines.
On 31.07.2010, I alongwith my staff went to Subzi Mandi, Mortuary, where the relatives of deceased were already present. The dead body was shown to Islamuddin & Nawabuddin, father and cousin brother of deceased, who identified the dead body. I recorded the identification statements of Islamuddin & Nawabuddin and same are Ex.PW10/B & Ex.PW10/C, both bearing my signatures at points A. I prepared inquest papers and postmortem was conducted. After postmortem examination, the dead body was handed to Islamuddin & Nawabuddin. Five duly sealed pullandas containing clothes of deceased, nylon cord, other wearings of deceased, blood gauge and sample seal of the doctor were handed over to me. I prepared seizure memo Ex.PW10/D bearing my signature at point A. I again examined Islamuddin & Nawabuddin during the course of investigation and they have raised doubts /suspicion on accused Munna, Kashif and Asif regarding their involvement in the death of deceased Danish.
I interrogated accused Munna and Kashif during the course of investigation and relevant CDR of the mobile phones erupted during investigation were analyzed. Then the investigation was handed over FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 26 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi to Inspector Rakesh. Accused Munna and Kashif are present in the court today (Correctly identified)."
PW11 ASI Naresh Kumar testified as under : "On 28.09.2010, I was posted at PS Civil Lines as Head Constable. On that day, at the instructions of IO/Inspector Rakesh Kumar, I had taken out one WagonR car bearing registration no.DL 6CL 0332 from malkhana of PS Civil Lines and went to FSL Rohini for the inspection of the abovesaid car. I contacted the relevant department at FSL Rohini for the inspection of the car and same was inspected by FSL Rohini. Some samples were lifted from the car and they have prepared the pullandas of the same and sealed with the seal of FSL Rohini and handed over the same to me. I came back to PS Civil Lines with the abovesaid car and handed over the pullandas to the IO and car was again deposited in malkhana. IO prepared the seizure memo of pullandas which is already Ex.PW9/B bearing my signature at point B."
PW12 Ct. Nitin Kumar proved the record of FIR no.11/1999 PS Sadar Bazar (Ex.PW12/A).
PW13 ASI Satender reached at the spot where SI Bhupinder, SHO and police officials were also present. He took part in the initial investigation.
PW14 Ct. Inderjit was part of the mobile crime team which reached at the spot. He took 8 photographs of the dead body from different angles and proved the said photographs as Ex.PW14/A1 to Ex.PW14/A8 alongwith its negatives which are Ex.PW14/B1 to Ex.PW14/B8.
PW15 ASI Rishi Pal testified that on 08.08.2013, on the instructions of FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 27 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi Inspector Ravinder Kumar, he took the exhibits of the case from malkhana of PS Civil Lines to FSL through a Road Certificate and deposited the exhibits in FSL. Thereafter, he returned to PS Civil Lines and handed over to MHC(M) the copy of RC and acknowledgment. Later on he took part in investigation.
PW16 Cr. Surender testified that on 21.10.2010, at the directions of Inspector Rakesh Kumar, he took 10 sealed exhibits from malkhana of PS Civil Lines to FSL Rohini vide RC no.68/21/10. He deposited the said exhibits in FSL Rohini, received acknowledgment dated 21.10.2010. He returned to police station and handed cover the acknowledgment and copy of road certificate to MHC(M).
PW17 Inspector Rakesh Kumar testified as under : "On 11.09.2010, I was posted at PS Civil Lines as ATO. On that day, investigation of the present case was assigned to me. On 17.09.2010, accused Kasif, present in the court today (correctly identified) and his father came to the PS and produced car WagonR bearing registration no.DL 6CC 0332. I seized the said car vide seizure memo already Ex.PW9/A, bearing my signature at point C. I deposited the said car in the malkhana.
On 28.09.2010, the said car was got sent to FSL Rohini through ASI Ram Tirath and HC Naresh for the examination by the FSL expert. On the same day, ASI Ram Tirath and HC Naresh returned to the PS with the car and they also produced two sealed envelopes sealed with the seal of FSL. I seized both the envelopes vide seizure memo already Ex.PW9/B, bearing my signature at point C. I deposited the said envelopes and car in the malkhana.
On 06.10.2010, the said car was released on superdari. On 21.10.2010, I got sent the exhibits collected during investigation FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 28 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi either by me or by other IO to FSL Rohini through Ct. Surender Kumar. On 29.04.2011, I was transferred from PS Civil Lines and on the direction of SHO, I handed over the case file to MHC(R). During investigation, I recorded the statements of relevant witnesses. XXXXXX By Ms. Chitra Mal, Ld. LAC for accused Asif (A1). Nil. (Opportunity given).
XXXXXX By Sh. Kaushal Kaushik, Advocate for accused Kasif (A2). It is correct that in Ex.PW9/A, seizure memo of car, it is nowhere mentioned that seats of car were fitted with seat covers and carpet was lying on the floor. It is also correct that it is nowhere mentioned that carpet and seat covers were having some blood stains. It is correct that I did not seal the car when it was taken into possession. Key of the car were also not sealed. I did not obtain key of the car from MHC(M) on 28.09.2010. Vol., ASI Ram Tirath had received the said key of the car from MHC(M). It is correct that in Ex.PW9/B, the initial of seals is not mentioned and I cannot tell the initial of the seal today. So long as the investigation remained with me, I did not record the statement of any FSL official to the effect that he/she took the exhibits from the car. It is correct that I did not obtain any specific certificate from FSL to the effect that exhibits were taken by FSL experts/officials from the car and same were sealed then and there in the office of FSL. I sent all the pullandas to FSL on 21.10.2010. I did not make any DD entry to the effect that I sent Ct. Surender alongwith 10 exhibits/parcels to FSL on 21.10.2010. Vol., this is the duty of MHC(M) to lodge DD entry to this effect. Again said, no DD entry is required to be lodged in regard of sending the samples to FSL for examination, only statements of MHC(M) and the Constable who took the exhibits to FSL are to be recorded to this effect. I recorded statement of Ct. Surender and MHC(M) to this effect on 21.10.2010.
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 29 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi It is incorrect to suggest that I did not record any statement on 21.10.2010 on MHC(M) or of Ct. Surender. It is incorrect to suggest that no sample or exhibit was taken by FSL officials on 28.09.2010 from WagonR car no.DL 6CC 0332. It is correct that in Ex.PW9/B (seizure memo of exhibits taken from car) it is nowhere mentioned that these two exhibits i.e. piece of carpet and piece of seat cover, from car bearing no.DL 6CC 0332.
XXXXX by Sh. Naveen Gaur, Advocate for accused Javed (A3). I asked accused Kasif to produce the said car which he did on 17.09.2010. During investigation, it was revealed that body of the deceased was taken in the said car. I called this car because accused Kasif was a suspect and it was coming in investigation that he had used his car during this crime. During investigation, I had examined accused Kasif and I thought it appropriate to call for his car also. I have not prepared any specific document showing that I had suspected the involvement of this car in this crime. I do not remember whether document Ex.PW10/DX was available with file when I took investigation of the present case. I cannot say if the said car was parked at Ramesh Park, Laxmi Nagar, on the intervening night 29/30.07.2010 and the said car entered into the parking at around 12.30 a.m. and exit about 10.30 a.m. I cannot say whether the deceased was operating his mobile bearing no.7827438090 on intervening night of 29/30.07.2010 till 1.12 am at Hathi Khana as per CDR of the said mobile phone. I had given a notice to accused Kasif to produce the vehicle. The notices are not part of judicial file. It is wrong to suggest that I had given no notice to accused Kasif to produce the vehicle and due to this reason, these are not on record.
Q I put it to you that so long as the investigation remained with you, FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 30 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi no evidence had come on record which prove that accused were involved in the present case. What do you say?
Ans. Investigation was still under process and evidence was being collected.
I had not called any crime team in police station for lifting the exhibits from the car. It is incorrect to suggest that at that time there were no blood stains inside the car and that due to that reason I had not called the crime team. It is wrong to suggest that I had not mentioned in documents Ex.PW9/A about the blood stains. It is correct that all the locks of the car had not been sealed by me. It is correct that the aforesaid car was sent to FSL after 11 days after its seizure. It is wrong to suggest that I had kept the aforesaid car for 11 days in police station to plant the exhibits. It is wrong to suggest that I had investigated the matter mechanically.
I had not taken the CDR of the mobile phone of deceased and accused persons during the investigation remained with me. It is incorrect to suggest that I had taken the CDR of mobile phones of all the accused persons and deceased and that I had not placed the same on record with a view to falsely implicate the accused persons."
PW18 Inspector Yogender Singh had moved an application before ACMM on 11.11.2011 requesting for polygraph test of the accused persons. He testified that all the accused persons consented to undergo the said test.
PW19 SI Narender Pal assisted Inspector Ravinder Kumar, the Investigating Officer from 05.10.2013 onwards.
PW20 ASI Shivadasan brought original FIR no.123/1999 PS Bara Hindu Rao Ex.PW20/A. He also proved an FIR no.152/1998 PS Bara Hindu Rao (Ex.PW20/B).
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 31 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi PW21 ASI Sadanand was Duty Officer at PS Civil Lines. He received an information about the dead body which was recorded in DD entry Ex.PW21/A. PW22 ASI Ram Kumar testified as under : "From August,2010 to August, 2011, I was posted as MHC(M) in PS Civil Lines. Today, I have brought register no.19 and 21 pertaining to this FIR.
On 17.09.2010, Inspector Rakesh Kumar had deposited a WagonR car bearing no.DL 6CL 0332 in malkhana. I made relevant entry in this regard vide Sr.no.304 in register no.19. The item number of the Wagon R is 2112.
On 28.09.2010, ASI Ram Tirath took the said car for FSL examination vide RC no.63. Copy of the same is Ex.PW22/A(OSR). ASI Ram Tirath had brought back the car from FSL in the evening of 28.09.2010 and deposited the same in malkhana.
Copy of the relevant entries at no.304 dated 17.09.2010 of the same in register no.19, running in two pages, is Ex.PW22/B1 & Ex.PW22/B2(OSR).
On 28.09.2010, Inspector Rakesh Kumar had deposited two sealed envelopes. On one envelope, "FSL no.2010/SEC100 & particulars of this case and exhibit 1 blood stained piece of carpet from back of car"
was mentioned.
On another sealed envelope which was of khaki colour, "FSL No.2010/SEC100/, particulars of present case case and Exhibit 2 (blood stained piece from near the backside of left seat of the car near window" was mentioned. I made relevant entries pertaining to these envelopes at Sr.no.313 (regarding item no.2121) dated 28.09.2010, copy of the same is Ex.PW22/C (OSR).
On 21.10.2010, I had sent following deposited articles to FSL Rohini through Ct. Surender vide RC no.68/21/10 : FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 32 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi
1. One parcel sealed with the seal of BKS containing blood lifted from SOC.
2. One parcel sealed with the seal of BKS containing blood stained earth.
3. One parcel sealed with the seal of BKS containing earth control.
4. One parcel sealed with the seal of BKS containing blood stained knife.
5. One parcel sealed with the seal of CMO I/C AAAGH Subzi Mandi Mortuary Delhi containing clothes of deceased Mohin Akhtar.
6. One parcel sealed with the seal of CMO I/C AAAGH Subzi Mandi Mortuary Delhi containing multicolour plastic rope.
7. One transparent jar sealed with the seal of CMO I/C AAAGH Subzi Mandi Mortuary Delhi containing metallic chain, ear pin and locket.
8. One envelope sealed with the seal of CMO I/C AAAGH Subzi Mandi Mortuary Delhi containing blood on gauge of deceased.
9. One parcel sealed with the seal of RT containing blood stained piece of carpet lifted from back seat of car no.DL 4CL 0332.
10. One parcel duly sealed with the seal of RT containing blood stained piece lifted from the back side of left seat of the car no.DL 4CL 0332.
11. Two sample seals of CMO I/C AAAGH Subzi Mandi Mortuary Delhi.
12. Forwarding letter and other relevant documents (14 pages). I had made relevant entries in this respect in register no.19 at Sr.no.243 dated 21.10.2010. Copy of the same is Ex.PW22/D (OSR) and copy of the RC is Ex.PW22/E (OSR).
After depositing the abovementioned articles in FSL, Ct. Surender had handed over me the acknowledgment of the FSL and same is Ex.PW22/F (OSR).
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 33 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi On 14.03.2011, I had received ten sealed parcels pertaining to this case sealed with the seal of S.Nn FSL DELHI and sealed envelope report through Ct. Jitender. The abovesaid articles were deposited in malkhana and report was handed over to IO Inspector Rakesh Kumar. I had made relevant entries in this regard at Sr.no.243. Copy of the relevant entry in the register is Ex.PW22/G (OSR). Q Can you explain the discrepancy in your statement in respect of the registration number of the vehicle. In entry no.304, the registration number of vehicle deposited is DL 6CL 0332, whereas in the entry no.243, at Sr.no.9 & 10, the registration number of the vehicle is mentioned as DL 4CL 0332?
Ans. It appears that there has been inadvertent mistake in entry no.243 in which vehicle number has been recorded as DL 4CL 0332. Either it was a mistake on my part or it is possible that it might have been a mistake by the Investigating Officer, who might have inadvertently written the number of the vehicle as DL 4CL 0332, instead of DL 6CL 0332.
Today, I have brought register no.21 of year 2013. As per record, on 08.08.2013, five sealed parcels sealed with the seal of SNN FSL DELHI, with sample seals were sent to FSL Rohini, Delhi through HC Rishi Pal vide RC no.95/21/13. Photocopies of the said road certificate and acknowledgment issued by FSL are Ex.PW22/H (OSR) & Ex.PW22/J (OSR) respectively.
Through said Road Certificate Ex.PW22/H, following parcels were sent to FSL :
1. Exhibit A8 containing blood stained piece of carpet.
2. Exhibit A9 containing blood stained gauge cloth.
3. Exhibit A3 containing blood stained knife.
4. Parcel A blood initially preserved by the IO from near the dead FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 34 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi body of deceased Danish on a cotton gauge.
5. Parcel A4 blood stained kurta of deceased Danish.
In this regard, an entry was made in register no.19 Ex.PW22/G at point X. Till the exhibits remained in my possession, the same as well as the seals thereon remained intact and there was no tampering of any kind with them.
XXXXXX by Ms. Chitra Mal, Ld. LAC for accused Asif (A1). Nil. (Opportunity given).
XXXXXX By Sh. Kaushal Kaushik, Advocate for accused Kasif (A2). After seeing the Ex.PW22/B1 and Ex.PW22/B2, witness has stated that as per entry no.304/21/12, only Wagon R car was deposited, key of the car were not deposited. It is correct that there is no mention whether the car was deposited in malkhana in locked condition or same was unlocked on the date 17.09.2010 when the car was deposited against the abovementioned entry in the malkhana. The car might have been parked in the compound of police station on 17.09.2010. I did not check the car to see whether there was carpet and seat cover in the car or not. It is correct that I did not remain present with the car round the clock since 17.09.2010 to 28.09.2010. I cannot tell who opened the car during this period. I do not know who possessed the key of this car in between 17.09.2010 to 28.09.2010.
Ex.PW22/A is the photocopy of the road certificate issued on 28.09.2010 while handing over the car to ASI Ram Tirath. It is correct that in this road certificate, there is no initial or stamp of FSL to the effect that the car in question was inspected by FSL officials on 28.09.2010. It is correct that there is no mention that two exhibits FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 35 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi were lifted by FSL officials from the car in question. It is correct that ASI Ram Tirath also did not give me any receipt issued from the office of FSL to the effect that car was inspected and exhibits were lifted by them. After seeing Ex.PW22/C, witness has stated that in this entry there is no mention of initial of seal by which both the parcels were sealed and deposited against entry no.313. It is correct that in register no.19 there is no entry to the effect that two parcels were deposited in malkhana sealed with the seal of RT in this case."
PW23 Ravinder Kumar, Assistant Commissioner of Police Traffic testified as under : On 11.04.2013, I was posted as Inspector Cold Cases Cell, District Investigation Unit, North District, Delhi. On that day, investigation of the present case was assigned to me. During the investigation, I inspected the case file. I had inspected the spot where the dead body was recovered alongwith SI Bhupinder, the initial IO of the case. I called the father of deceased Danish namely Islamuddin and examined him. I also discussed with previous IO about the case. I had also interrogated all the three accused persons of the case. On 17.05.2013, I had visited the house of Islamuddin and Inspected the spot of last seen and had recorded the statement U/s 161 Cr.P.C. of Ms. Shaheen who was the sister of the deceased and daughter of Islamuddin. I also examined the draughtsman SI Mahesh Kumar who had prepared the scaled site plan of the case on the instance of SI Bhupinder Singh on initial stage and recorded his statement U/s 161 Cr.P.C. I had also examined concerned MHC(M) namely HC Ram Kumar, HC Jai Parkash and police officials who took the exhibits to FSL from malkhana namely Ct. Surender and HC Rishi Pal.
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 36 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi During the course of investigation, I had also made a request from the doctor who conducted postmortem of the deceased to provide subsequent opinion of digestion of food which was found at the time of postmortem examination and obtained opinion in this regard which is already exhibited as PW7/B. As per opinion, the semidigested food which was found in the stomach of deceased was generally appeared in normal individual after 1 2 hours ingestion of last meal. The subsequent opinion corroborates the statement of Ms. Shaheen, sister of deceased regarding the factum of last seen.
I had also recorded supplementary statement of Islamuddin U/s 161 Cr.P.C. on 18.07.2013.
During investigation I had come to know that the vehicle i.e. Wagon R suspected to be used in the crime was seized by Inspector Rakesh Kumar at initial stage and was deposited in the malkhana. From the malkhana, this vehicle was sent to FSL by the previous IO. I also came to know that FSL had lifted certain articles from the Wagon R and had been tested in the FSL and thereafter, those exhibits were deposited in the malkhana.
Apart from the said exhibits lifted from the vehicle, the blood stained clothes of the deceased were also lying in malkhana for about 3 years.
I had sent these articles/exhibits deposited in the malkhana, through HC Rishi Pal to FSL through a forwarding letter for DNA profiling /comparison of the exhibits lifted from the car like piece of carpet with the blood stains on the clothes of the deceased. The aforesaid articles were sent to FSL by me because during my investigation, I came to know that WagonR car in question was used in commission of the crime. This car belonged to accused Kasif, though it was registered in the name of his father.
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 37 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi It is necessary to mention here that the father of deceased Islamuddin had filed a criminal complaint (already Ex.PW4/DA). Ld. Metropolitan Magistrate had asked for the status report. I prepared a final report U/s 173 Cr.P.C. chargesheeting all the accused persons without arresting them and keeping them in column no.12. In this chargesheet, I had made a request that the accused persons are being chargesheeted on the basis of last seen evidence only, as the DNA result was still awaited. I also mentioned in the chargesheet that in case the FSL report/DNA analysis implicates the accused persons in the crime, police will require further investigation. All the accused persons are present today in the court. XXXXXX by Ms. Chitra Mal, Ld. LAC for accused Asif (A1) and Sh. Abhijeet Bhagat, Advocate for accused Javed @ Munna (A3). It is correct that during investigation it h as come to my notice that there were many litigations as well as lot of acrimony between deceased, his family on one hand and accused persons/their families on the other hand. I have read the complaint Ex.PW4/DA during investigation. It is correct that in complaint U/s 200 Cr.P.C., Ms. Shaheen has not been mentioned as a last seen witness. Vol., I made an inquiry from Islamuddin as to why her name has not been mentioned as last seen witness in the complaint case. He replied that he did not want his daughter to be involved in this case. I do not remember if I had mentioned this fact in my case diaries or in supplementary statement U/s 161 Cr.P.C. of Islamuddin. (Confronted with the statement U/s 161 Cr.P.C. of Islamuddin, now marked as Ex.PW23/DA dated 18.07.2013, where it is not so recorded). I may like to make it clear here that in his supplementary statement, Islamuddin had referred to his niece (bhatiji) namely Nazia, who was the cause of acrimony between deceased and accused Kasif. I had not FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 38 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi examined Nazia nor I called her by giving a notice. It was so because Nazia and her family members were reluctant to join the investigation. I have not examined any of her family members due to the aforesaid reason. It is incorrect to suggest that my investigation in respect of accused persons is not fair. It is correct that in the complaint U/s 200 Cr.P.C., registration number of WagonR car or any other description of Wagon R car is not mentioned. It is wrong to suggest that I had written the statement U/s 161 Cr.P.C. of the witnesses to fill up the lacunae as the case was blind case.
During the investigation, I came to know about the registration number of the said WagonR by its seizure memo. It is wrong to suggest that I am deposing falsely. It is wrong to suggest that accused persons have been falsely implicated in the present case in connivance with complainant and his family members. XXXXXX By Sh. Kaushal Kaushik, Advocate for accused Kasif (A2).
It is correct that I have filed the charge sheet in the present case without arrest of the accused on 13.12.2013. vol, on the direction of the Ld. MM where complaint case u/s 200 Cr.P.C was pending, I filed the aforesaid charge sheet. It is correct that I also filed the inquest proceedings alongwith the charge sheet.
Q. Can you tell me whether statement of identification of dead body or the brief fact of the case be recorded first?
A. Statement of identification are recorded at the time of inquest proceeding and when request for post mortem is being forwarded to Head of the Department, at that time brief facts are recorded. It is correct that we generally try our best to get the body identified before post mortem. It is correct that inquest form 2535 is filled prior to post mortem. It is also correct that the name of Islamuddin and Nawabuddin are mentioned as the person who identified the body. It FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 39 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi is correct that in the application containing brief facts of the case Ex.PW23/DA and in statement of Nawabuddin and Islamuddin Ex.PW10/B and Ex.PW10/C there is no mention about last seen. It is correct that Islamuddin had filed complaint u/s 200 Cr.PC regarding this case and in that complaint case complainant cited only two witnesses Nawabuddin and himself. It is correct that I prepared the charge sheet dt. 13.12.13 after going through the entire case file. It is correct that as per the statement of Islamuddin father of the deceased, deceased was present at his house till 1.15 am on the intervening night of 29/30.07.2010. As per my knowledge no car number is given in any statement. It is correct that in the statement of Islamuddin , Nawabuddin, Zahimuddin and Shamimuddin no car number is mentioned. It is also correct that in the complaint u/s 200 Cr.p.c no number or colour of the car is mentioned. Vol, wagon R car is mentioned everywhere. It is correct that I had filed the statement of Islamuddin, Nawabuddin, Shamimuddin and Zahiruddin dated 08.06.2011 along with charge sheet filed by me on 13.12.13. Vol, the said statement was recorded by the Previous IO. I do not remember whether complainant Islamuddin mentioned about the name of Shamimuddin and Zahiruddin and Shahin in his complaint filed in the court u/s 200 Cr.p.c. After seeing complaint Ex.PW4/DA it is correct that the name of the Shamimuddin, Zahiruddin and Shahin are not mentioned as a witness of last seen. It is correct that during investigation I came to know that there was previous enmity between complainant Islamuddin and his sister Shahjahan Begum and cases under heinous offences were pending between both of them. It is also correct in my charge sheet Ex.PW23/DB on page 13 I mentioned that " in view of the above involvement it seems that Islaumuddin would have concocted the last seen theory with the interested PW FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 40 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi Nawabuddin nephew, Shahin, daughter and other associates Zahiruddin and Shamimuddin. It is also correct I have mentioned in the charge sheet that complainant Islamuddin produced Zahiruddin, Shamimuddin after gap of 11 months as last seen witness and statement of Kumari Shahin was recorded after about 3 years of the incident.
So long as the investigation remained with me I had not visited the FSL to verify the fact that who particular person lifted the exhibits from the car. Prior to me Inspector Rohtas Kumar was the IO of the case. I prepared challan in the present case on 13.12.13. It is correct in status report dated 08.3.2013 filed by Insp Rohtash KUmar the IO of the case (now Marked as Ex.Pw23/DC), it is mentioned that "the call details of 25 persons connected with the murder were obtained and scrutinized, as per the scrutiny of Call details of Kasif's mobile number 9278797679 it was found that the last call was made at 8.25 pm and location was at Filmistan. the next day i.e. 30.4.2010 the phone got operation at 7.38 pm and position was of the phone was at Laxmi Nagar residence of Kasif. The statement given by Munna was cross cheched by examining following person. Mohd Ashik, Mamu, Ravi, Wasim, Imran. It was found that Kasif was present in the part infront of Delhi Main Railway station till 12 or 12.30 am in night of 29.30.07.2010. The parking lot near house of Kasif was checked to locate wagon R being used by Kasif, it was found that the said car number DL 6CL0332 has been shown as in on 29/30.7.2010 at 12.30 am and out time of said car is at 10.30 am on 30.7.2010. The said timing are in corroboration with statement given by persons mentioned at sl. no. 7."
It is correct that I prepared status report dt. 7.5.2013 ( now marked as Ex.PW23/DD) after going the through entire file. I had FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 41 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi not investigated the CDR of the deceased Danish with a view to fix his location.
It is correct that it was a blind murder. It is correct that till 13.12.2013, police could not find any evidence sufficient to cause arrest of the accused persons. On 17.05.2013, I had visited the house of Islamuddin which falls in jurisdiction of PS Bara Hindu Rao. It is correct that the statement of PWs regarding last seen theory was recorded first time by me in the present case on 17.05.2013. I did not lodge any DD entry in PS Bara HIndu Rao about my arrival for the purpose of investigation in the present case on 17.05.2013. It is correct that as per the Punjab Police Rules, it is mandatory to record the arrival and departure entries in local police station for the purpose of the visit in that local police station. vol, I recorded the departure entry and arrival entry in DD register kept in DIU North District on 17.05.2013. I do not remember if I had filed the said DD entry recorded in DIU in the charge sheet. Again said, I did not file. Q. Is it correct that every document made during the investigation should be filed in the charge sheet?
A. It is correct partly.
It is wrong to suggest that I did not visit the house of Islamuddin on 17.5.2013 due to that reason I had not filed the relevant DD entries recorded in DD register of DIU. It is wrong to suggest that I recorded the statement of PWs and created the last seen theory in the present case just to solve the present case.
I made inquiries from the previous IO's regarding the not sending the case property to FSL for about 3 years.
I had sent exhibits pertaining to the deceased sealed by the post mortem doctor, which were seized by the previous IO, along with the exhibits which were picked up from the car by FSL for comparison FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 42 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi to FSL.
I made request in writing for subsequent opinion to Head of the Department Forensic Medicine mortuary Subzi Mandi. The said request is not on judicial file as it was lying in the office of the Head of Department, Forensic Medicine. It is wrong to suggest that I have not made any request for subsequent opinion to the concerned authority. It is wrong to suggest that document Ex. PW7/B is a manipulated document just to falsely implicate the accused persons.
The above said car is not registered in the name of Kasif. Vol, The afore said car is registered in the name of father of accused Kasif. I had not recorded the statement of the father of accused Kasif as to whether he himself was using the vehicle or Kasif was using the same.
It is correct that during investigation I came to know that the car in question was parked in the parking at Laxmi Nagar at the time of incident. Vol, the said parking was not authorized. I had not filed the register of the parking with the charge sheet dated 13.12.2013.
It is correct that I had filed status report Ex.PW23/DD wherein it is mentioned that wagon R being used by Kasif, it was found that the said car number DL 6CL 0332 has been shown as in on 29/30.7.2010 at about 12.30 am and out time of the said car is at 10.30 am on 30.7.2010.
It is wrong to suggest that I have not conducted fair investigation in the present case. It is wrong to suggest that with a view to falsely implicate accused persons, I have concocted a false story of last seen."
PW24 Inspector Rajesh Sinha testified as under : "On 01.05.2014, I was posted at DIU North District. On that day, FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 43 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi investigation of the present case was assigned to me. I had gone through the case file and came to know that one report u/s 173 Cr.P.C has already been filed in the Court. After filing the said report Ld. MM directed to further investigate on some aspect including the direction to examine the call detail, location and conversation of the deceased and suspects.
During investigation, I called the accused Kasif, Javed @ Munna. I interrogated the both the accused persons. During investigation accused Kasif disclosed that he was using two mobile phones during the period of incident. I do not remember the said mobile numbers. However, I mentioned the both mobile numbers of the accused Kasif in my status report which was forwarded by ACP DIU North on 12.07.2014. The said report is now mark as Ex.PW24/A. I collected the CDR of mobile number 9278791679 and 9899256939 from the official email of SHO PS Civil Lines.(witness disclosed the said both mobile number after seeing the Ex.PW24/A). I analyzed the CDR of mobile no. 9278791679 ( now marked as Ex.PW24/B) running into 11 pages. As per the CDR mobile number 9899256939 it revealed that calls had been made by said mobile upto 25.7.2010 only and there was no further details after this date. I also collected the CDR of mobile phone no. 9971449842 pertaining to accused Kasif. As per CDR it was found working for the period 15.7.2010 to 4.8.2010. The CDR revealed that only three calls were made with this mobile phone. I have mentioned this fact in my report Ex.PW24/A. I also examined the call detail record of mobile phone no. 9711316315 and 7827438090 pertaining to the deceased Danish and analyzed the call details of both aforesaid mobile phones and mentioned the analysis report in the status report Ex.PW24/A. I also filed another status report forwarded by ACP DIU FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 44 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi North on 16.9.2014 in the court mentioning about the detail of the FIRs of both parties. The same report is now marked as Ex.PW24/C(running into 3 pages) which bears my signatures at point A. During investigation I received information that FSL report in respect of DNA was ready. I got collected the said report already Ex.PW8/B through lady Ct. Amrita from the FSL.
On 8.12.2014, I called all the accused persons present in the Court. I interrogated the accused persons in light of the FSL report and earlier collected evidence by the previous IO. Accused persons confessed that they have committed the murder of Danish whereafter I arrested the accused Kasif, Asif and Javed @ Munna vide arrest memos Ex.PW15/A, Ex.PW15/B and Ex.PW15/C respectively, all bears my signatures at point C. I conducted their personal search vide personal search memo already Ex.PW15/D, Ex.PW15/E and Ex.PW15/F respectively, all bears my signatures at point C. I interrogated the accused persons Kasif, Asif and Javed @ Munna in detail and recorded their disclosure statements already Ex.PW15/G1, Ex.PW15/G2 and Ex.PW15/G3 respectively, all bears my signatures at point C. I got medically examined the accused persons and thereafter, they were put behind the lock up PS Timarpur. On the intervening night of 8/9.12.2014 I took the accused Kasif along with ASI Narender and HC Rishi Pal. Accused Kasif led us at the place of incident and pointed out it. I prepared the pointing out memo Ex.PW15/H1 bearing my signatures at point C. Thereafter accused Kasif led us near PS Bara Hindu Rao near the railway bridge and pointed out the place where he got filled up the air in his car. I made inquiry there but no person of year 2010 was available at that time.
On 09.12.2014, in the morning hour I along with SI Pawan, FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 45 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi SI Sunil and other police officials took out the accused Asif and Javed @ Munna from the lock of PS Timarpur and they led us to the place of occurrence under HIll Road in front of Kothi No. 1/B, I prepared the pointing out memo Ex.PW15/H2 and Ex.PW15/H3. On the same day the accused persons were produced before the court. Accused Asif and Munna were remanded in Judicial custody on my application by the Ld. MM. I got PC remand of accused Kasif for three days.
On 10.12.2014, I along with other police officials took the accused Kasif to village Ganghera, Distt Bulandshahar to make search of blood stained clothes of accused persons, but nothing was recovered however accused pointed out the place where the blood stained wearing clothes were shown. I prepared the pointing out memo Ex.PW15/J bearing my signatures at point B. On the request of accused Kasif I took him to the house of Ashu @ Aas Mohd. relative of the accused Kasif where I recorded the statement of Nazma wife of Aas Mohd. After that we returned to Delhi with accused.
On 11.12.2014, accused Kasif was taken to Ramesh Park where he identified the place of parking of car in the intervening night of the incident. Parking attendant of year 2010 namely Shamim was not there. From there accused was taken to office of DIU and he was put in the lock up of PS Timarpur.
On 12.12.2014 accused was remanded to judicial custody by Ld. MM on my request. During investigation I recorded the statement of Imran, Imamuddin, Nazia, Shamim, Mithu @ Pappu. During investigation I instructed the ASI Madan Pal to bring the sealed pullanda of the knife recovered from the place of occurrence from the malkhana to Hedgevar Hospital Karkardooma. On 15.01.2015 I submitted an application for subsequent opinion regarding the weapon of offence to the specialist Dr. S Lal who FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 46 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi conducted the post mortem of deceased Danish, the said application is now marked as Ex.PW24/D. ASI Madan Pal had also brought the sealed pullanda of the knife to Hedgevar Hospital. I handed over the said pullanda to the Dr. S.Lal with my application Ex.PW24/D. Dr. S.Lal handed over his report Ex.PW24/E on the back of my application. Dr. S.Lal also handed over the sketch of the knife Ex.PW24/F with his opinion. Dr. S.Lal handed over the sealed pullanda of the knife sealed with the seal of 'IC FM DHAS', I seized the same vide seizure memo Ex.PW24/G bearing my signatures at point A. I got deposited the said pullanda to malkhana through ASI Madan Pal.
During the investigation when I examined the Shamim employee of the parking, he verified the photocopy of register of parking collected by the IO and put his signatures at point A on Ex.PW10/DX. After completion of investigation I prepared the challan and filed it before the court concerned.
XXXXX by Ms. Chitra Mal Advocate for accused Asif (A1) It is wrong to suggest that accused Asif had not made any disclosure statement to me nor he pointed out the place of occurrence. It is wrong to suggest that accused Asif has wrongly been arrested in this case and has been falsely implicated in connivance of the complainant party.
xxxxxx By Sh. Kaushal Kaushik, Advocate for accused Kasif (A2).
I analyze the call detail of deceased. It is correct that deceased Danish was talking on phone till 1.18.56 am hours on 30.7.2010 and location of his mobile phone as per CDR was in the radius of tower installed at Mr. Goldy Patil House no. 23, Hathi Khana, Near Bara Hindu Rao. On the same night location of his mobile phone as per CDR was in the radius of tower installed at FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 47 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi Abidrazi MCD Park at 00.59.12 hours on 30.7.2010. On the same night at 0.35.16 hours location of the said mobile was in the radius of tower installed at Mr. Goldy Patil House no. 23, Hathi Khana, Near Bara Hindu Rao. Both the towers are situated at a distance of about one Kilometer.
I interrogated the one Izhar regarding the call on mobile no. 9350196890 on which he told me that the call was heard by his sister and it was a missed call of very small duration. Previous IO has also interrogated Izhar in this regard. I did not verify from the service provider to whom above mentioned number was alloted by the company. It is correct that Danish made a call upon this number and had a call for 36 seconds. Again said, I send a letter to competent authority to procure the customer application form of the said mobile phone but I did not receive any reply. It is correct that I did not move an application to obtain the CDR of mobile no. 9706744545, 9085186355, 7827438090. I did not make any inquiry from the occupier of the mobile no. 9706744545. Similar is my answer in respect of other two mobile numbers. Vol, previous IO had made inquiry from them.
It is correct that I prepared the status report Ex.PW24/A as per CDR, location of the mobile phone of accused Asif was at Model Basti from 10.51pm to 11.05 pm. It is correct that as per CDR of mobile phone of Kasif, the location of the said mobile phone was in the area of Zama Masjid. It is correct that as per my report deceased Danish as per his CDR, location of his mobile phone was remained in the area of Hanthi Khana Model Basti at 0.1.18 hours. I cannot tell the distance between Jama Masjid and Hathi Khana. The distance between Rani Jhansi Marg and Hathi Khana is about 5001000 meters. It is wrong to suggest that distance between Rani Jhansi Marg FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 48 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi and Hathi Khana is about 10 kilometers. It is correct that I have mentioned in ExPW24/A from portion A to A that no conclusion can be drawn from the CDR of Kasif, Asif and Danish that they could be together at any point of time on the night of 29/30.07.2010.
It is correct that I recorded the statement of Imran. As per his statement, Imran remained present opposite Old Delhi Railway station in MCD park where Kasif was playing gamble till 11 pm on intervening night of 29/30.07.2010. I interrogated the Kasif who told that he was playing gamble along with Ravi, Wasim and Rajesh, whereas accused Javed @ Munna and Asif were supplying the food material to them. Ravi, Wasim and Rajesh were untraceable and therefore, I did not record their statements.
I had recorded the statement of Imamuddin, the puncture wala. I did not get the vehicle Wagon R identified from the said Imamuddin as he had already stated in his statement u/s 161 Cr.p.c that due to night he could not notice the colour of Wagon R and being illiterate he could not tell the registration number of the said car.
It is incorrect to suggest that Kasif had not pointed out any place and that I had fabricated this pointing out memo. It is incorrect to suggest that Kasif did not take me to Bulanshahar or to any other place. I had made a DD entry in concerned Police station i.e. PS Bulanshahar Dehat. It is incorrect to suggest that I myself fabricated both the disclosure statements of Kasif. It is further incorrect to suggest that I fabricated the statements u/s 161 Cr.P.C. to justify the arrest of accused persons.
xxxx By Sh. Kaushlendra Singh, Advocate for accused Javed @ Munna (A3) It is incorrect to suggest that Javed @ Munna had not pointed out any place and that I had fabricated this pointing out FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 49 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi memo. It is incorrect to suggest that I myself fabricated the disclosure statement. It is further incorrect to suggest that I fabricated the statements u/s 161 Cr.P.C. to justify the arrest of accused persons."
PW25 Shamim testified as under : Presently I am running a mobile shop in the area of Ramesh Park Laxmi Nagar along with my brother. In the year 2010 I was working as a parking attendant on the pusta road in front of Samudayik Bhawan, Ramesh Park. I used to do work in the said parking in the day hours. Two or three Nepalis and one Pappu were also doing job in the said parking. I do not remember the date however, two police official came to our parking and asked me to provide copy of the register of the specific date but I do not remember the specific date, however, I had given the photocopy of the register already Ex.PW10/DX and I signed it at point A. The owner of the vehicle who parked their car in the parking, used to take away the key of the car with them after parking the such car. The persons managing the car parking did not take the keys from such owners of the vehicle. At that time the owner of the parking was one Aalam and his son Keshar used to look after the said parking. Presently, I have no concern with the said parking, to my knowledge the said parking is not running by Aalam. The original register is not with me. It might be with Kesar, the son of Aalam."
Statement under Section 313 Cr.P.C. of accused Asif (A1)
33. Accused Asif denied all the allegations and submitted as under : "I am innocent. At the time of incident, I was not even knowing co accused Kasif and Javed @ Munna. Therefore, there was no question FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 50 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi to go with them at any point of time. It is submitted that accused Kasif & Javed are the relatives of the complainant party, whereas I have no relation with them. I was only a tenant with Hazi Mohammad Yameen, who is no more now. Islamuddin used to live in the neighbourhood of my tenanted house. Hazi Mohammad Yameen wanted me to vacate the house and when I did not do so, he in collusion with Islamuddin got me involved in the present case. Police called me for about 4 years in the present case and I joined investigation as and when required by the police. I never evaded police during this whole period. I have been falsely implicated in the present case.
Statement under Section 313 Cr.P.C. of accused Kasif (A2)
34. Accused Kasif denied all the allegations and submitted as under : "I have been falsely implicated in this case by the complainant due to enmity with my mother in law as there were cross cases of henious offence between complainant and my mother in law, my brother in law Javed Munna and myself have been falsely implicated in this case. My car DL 6CL 0332 was parked in Ramesh Nagar parking area, Laxmi Nagar, Delhi from 12.30 a.m. to 10.15 a.m. on intervening night of 29/30.10.2010. My car has been tampered by Investigating Agency. No blood spot was present in abovesaid car when the same was seized by the IO. Whenever police called me, I joined investigation. I was even subjected to lie detector test but I was found to be truthful and innocent in the said test."
Statement under Section 313 Cr.P.C. of accused Javed @ Munna (A3)
35. Accused Javed @ Munna denied all the allegations and submitted as under : FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 51 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi "I have been falsely implicated in this case by the complainant due to enmity with my maternal uncle (Islamuddin, complainant) as there were cross cases of henious offence between complainant and my mother the complainant was held guilty for the offence U/s 307 IPC for causing gun shot injury on the person of my real brother. My brother with the real daughter of Islamuddin was married against the wish of complainant and that is one of the main cause of murder attempt on the persons of my brother and that is why, I have been falsely implicated in this case. Complainant Islamuddin also kidnapped my real sister Gudia and case of kidnapping was registered against him and Islamuddin was also convicted in that case. I was taken by the IO to lie detector test to know the truth about my involvement and after the test, I was found truthful and innocent. I regularly joined the investigation whenever I was called. In the first chargesheet, I was not arrested for want of evidence. I also went to mortuary after getting the news of murder of Danish and attended the cremation."
Defence Evidence
36. Accused persons did not prefer to lead evidence in defence. ANALYSIS OF EVIDENCE
37. There are two material issues which require to be answered in this case. First is the credibility of the last seen witnesses and second is the integrity of the exhibits and reliability of DNA test. Last Seen Evidence
38. Ld. Defence counsel submits that on 31.07.2010 the statement of Islamuddin and Nawabuddin were recorded during the inquest proceeding but they both did not mention a word about the fact that they have seen Danish deceased in the company of accused persons.
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 52 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi
39. It is further submitted by Ld. Defence counsel that on 13.09.2010, Islamuddin filed a complaint case wherein he has mentioned that he was present at his house at 1.00 a.m. and all the three accused persons came and Danish accompanied them and he asked Danish come tomorrow as it is too late. This witness could not be examined as he expired during the trial.
40. It is further submitted by Ld. Defence counsel that PW2 Jahiruddin whose statement was recorded U/s 161 Cr.P.C. on 09.06.2011 after more than a year. He claimed to be very close fried of Islamuddin. He was also present in the Mortuary at the time of inquest proceedings but did not inform police about the fact that he had seen the accused and Danish on 29.07.2010. This is important that as per his statement he saw deceased and accused persons at about 12.15 a.m. As per PW5 Nawabuddin, he saw Danish and accused persons near Bhairon Panwari at about 11.30/11.45 p.m. and as per statement of PW4 Shahin, whose statement was recorded on 11.04.2013, her brother Danish was present at house and taking dinner at about 12/12.30 a.m. all the three persons came and called her brother Danish who accompanied them.
41. It is further submitted by Ld. Defence counsel that the statements of all these PWs were recorded very belatedly and no explanation has given by the prosecution.
42. Ld. Defence counsels have pointed out the discrepancy/ contradictions in the evidence of PW2, PW4, PW5 in whose statements, they have stated the time of list seen from 11.30 p.m. to 1.00 p.m.
43. Ld. Defence counsel has referred to Shahid Khan Vs. State of Rajasthan, 2016 Crl. Law Journal 1916, wherein it was observed "Delay in recording of statement casts doubt in the prosecution case.
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 53 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi
44. Ld. Defence counsels have also relied upon Surender Vs. State of Rajasthan (2012 Crl. Law Journal 2096), in which the testimony of last seen witness was held to be doubtful on the ground that as per his testimony, he had seen the accused persons coming out of the house of the deceased but he did not tell son of the deceased or police whom he met next day.
45. Ld. Defence counsels have argued that in background of long standing enmity between the families of complainant party and the accused persons, the delay in recording of last seen evidence to the police under Section 161 Cr.P.C. makes their testimonies highly unreliable. Ld. Defence counsels have pointed out that statement of Zahiruddin (PW2) was recorded by the police on 08.06.2011, that is almost after about three years of incident. It is argued that this witness has testified that he had visited the mortuary and his identification statement was also recorded by the police but he did not make any statement about last seen to police.
46. Ld. Defence counsels have drawn my attention to the testimony of PW2 Shaheen, the sister of the deceased and the last seen witness. Ld. Defence counsel has drawn my attention to the complaint of her father Sh. Islamuddin (Ex.PW4/DA) in which said Islamuddin has not mentioned her name in the entire complaint nor cited her as witness in the list of witnesses. It is further argued that even her statement was recorded after more than one year by the police.
47. Ld. Defence counsels have strongly assailed the statement of PW5 Nawabuddin. It is submitted that he is cousin brother of the deceased. In crossexamination, he has admitted that his brother Fakruddin was got fired at by accused persons. Therefore, enmity between him and the accused persons FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 54 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi stands proved. In his crossexamination, he admits that his statement was recorded on 23.09.2011 by Inspector DIU (North). Ld. Defence counsels submit that PW5 Nawabuddin has testified that the accused persons were forcibly making him to sit in WagonR car. Despite this fact, he did not make a statement to the police immediately after knowing the murder of Danish. It is argued that although this witness makes a statement identifying the dead body but refrains from making a last seen statement to the IO of the case. Ld. Defence counsels have argued that it is due to this reason that the Investigating Officer doubted their version and initially a chargesheet was filed without arresting the accused persons. Ld. Defence counsels have pointed out that in the first chargesheet the Investigating Officers have not relied upon their version.
48. Accordingly, Ld. Defence counsels submit that the testimonies of PW2, PW4 and PW5 should be rejected altogether.
49. Ld. Addl. P.P. has argued that this case should be seen in the light of the fact that the Investigating Officer had been so lax and casual in his approach that he did not record the statement under Section 161 Cr.P.C. of Islamuddin and of Nawabuddin. Although, he had come to know about the involvement of the WagonR car in commission of the offence, no efforts were made by him to seize the same. It was only on the order of Ld. Metropolitan Magistrate that the new IO became a bit active, and he seized the car. Ld. Addl. P.P. has drawn my attention to the order dated 13.03.2014 of Ms. Ambika Singh, Ld. Metropolitan Magistrate as well as the order dated 01.07.2013 of Ms. Chhavi Kapoor, Ld. Metropolitan Magistrate and submits that it appears that there were some malafides on the part of initial IO who did FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 55 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi not rose to the occasion. Even though Islamuddin had been informed the Investigating Officer that the accused persons had taken the deceased out of his house in the night, Investigating Officer did not record his statement. Same is the case with Nawabuddin. It is argued that the Investigating Officer appears to have been overtaken by the fact of previous criminal antecedents of the deceased, Islamuddin and Nawabuddin. Furthermore, it appears that he gave a undue weightage to the inimical relations between complainant party and the accused persons. Ld. Defence counsels argued that the testimonies of PW2, PW4 & PW5 have been fully corroborated by the scientific evidence which proves that the blood was found in the car of accused Kasif. Therefore, it is argued by Ld. Addl. P.P. that the last seen evidence of PW2, PW4 and PW5 is duly corroborated and is reliable.
50. I have carefully perused the evidence of the witnesses and case law cited by Ld. Defence counsels. First of all, I will take up the testimony of PW4 Ms. Shaheen, the sister of the deceased. She has testified that on 29.07.2010, at about 1212.30 (midnight), accused persons came to her house and called Danish outside the house. Despite resistance from her, Danish, who was having dinner, left the house with the accused persons. However, she testified in crossexamination that she stated this fact to Inspector Anil Kapoor but she is not responsible for nonrecording of her statement because Inspector Anil Kapoor did not record her statement. I would like to agree with Ld. Addl. P.P. that the Investigating Officer, either deliberately and malafidely or because of his total casual approach or due to the reason that he was not inclined to believe the statements of the family members of deceased due to their past history with the accused persons, did not promptly record the statements of the FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 56 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi last seen witnesses. However, I may point out that neither Inspector Anil Kapoor has testified that Ms. Shaheen had met him after the murder of Danish, nor Islamuddin, the father of deceased and Ms. Shaheen, has mentioned her name in the criminal complaint Ex.PW4/DA. He has also not cited her name as witness in the list of witnesses which is annexed to this criminal complaint. Ld. Addl. P.P. and Ld. Counsel for complainant have argued that Ms. Shaheen was an unmarried girl at the time of offence and her presence at the time of incident at home cannot be doubted. Furthermore, her version that Danish was having dinner at that time is corroborated from the fact that semidigested food was found in his stomach during postmortem. Ld. Addl. P.P. and Ld. Counsel for complainant have argued that Ms. Shaheen is a burqa wearing girl and her father Sh. Islamuddin never wanted that she should converse with police officials and testify in the court. However, after her marriage and after death of Islamuddin, she came forward to testify.
51. I have given due thought to the submissions of Ld. Addl. P.P. and Ld. Counsel for complainant. The aforesaid facts, which prevented Ms. Shaheen to be cited as witness in the complaint case, have not been testified by her in her evidence. Therefore, the aforesaid explanation of Ld. Counsel for complainant has neither been testified on oath by PW4 and consequently, could not be tested upon the touch stone of crossexamination. Non mention of her name in the criminal complaint Ex.PW4/DA makes her last seen evidence highly doubtful.
52. Now, I take up the testimony of PW2 Zahiruddin. He runs a cold drinks shop in the street in which house of deceased is situated. PW2 testified that Danish is son of his friend Islamuddin. At about 12.15 a.m. (midnight) or FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 57 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi the intervening night of 29/30.07.2010, he saw Danish with the accused persons when they were coming out from the house of Islamuddin. Inthe meantime, he heard that Islamuddin called Danish, as to where he was going and accused kasif said "mamu abhi aa rahe hai". PW2 testified that he closed his general store at 1.00 a.m. He testified that next day two police officials came and informed Islamuddin to identify his son as his son has met with some incident. Islamuddin alongwith said police officials went to Mortuary. PW2 alongwith some locality people also accompanied him. Ld. Defence counsels have strongly assailed the testimony of this witness on the ground that he was friend of Islamuddin and had testified at their instance.
53. On the other h and, Ld. Addl.P.P.submits that Islamuddin had expired on 02.03.2014 whereas the testimony of PW2 was recorded on 22.09.2015 i.e. after more than one year from the death of Islamuddin. Therefore, there is no question of his testifying under the influence of Islamuddin. Furthermore, it is argued Ld. Addl. P.P. that there is no enmity between PW2 and the accused persons and therefore, there is no reason as to why he will testify against the accused persons.
54. I have considered the submissions but the problem is that his statement was recorded by Investigating Officer U/s 161 Cr.P.C. on 08.06.2011 (when Islamuddin was still alive) as per his crossexamination. Such a long delay of about one year in recording of statement makes it highly unsafe to place reliance upon his evidence. It is necessary to mention here that even PW10 Inspector Anil Kapoor, who is the initial Investigating Officer, has not referred his name anywhere in his investigation. Furthermore, in his criminal complaint Ex.PW4/DA, the name of PW2 does not figure anywhere. As per FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 58 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi testimony of PW2, he is a good friend of Islamuddin and he must have shared with Islamuddin the incident of having seen the deceased with the accused persons. Therefore, it should have been natural for complainant Islamuddin to mention his name in the criminal complaint Ex.PW4/DA dated 13.09.2010 (which was filed just about 43 days of the incident) as well as to cite him as witness in the list of witnesses. In such a scenario, I am not inclined to accept his last seen evidence as free from reasonable doubts.
55. Now, I take up the testimony of PW5 Nawabuddin. I would like to reproduce his examination in chief as under : "Deceased Danish is my cousin brother. On 29.07.2010, I had closed my footwear shop situated at Gali Sangtarashan, in the area of Pahari Dhiraj, at about 9./9.15 p.m. and had gone to Chhoti Masjid, Bara Hindu Rao for offering namaz. After namaz, I went to my house. At about 10/10.30 p.m., I went outside the house after having my dinner for night walk. At about 11/11.30 p.m., I saw that Asif alongwith Danish were standing in gali Sangtarashan. Asif was having single shot gun in his hand. He fired a shot in air by the said gun. I immediately went near them and asked from Danish as to why he was standing there. Danish told me that Asif had asked him to stay with him. I asked from Asif as to why he had stopped Danish. Asif said that he is showing Danish that how the bullet is fired. I scolded Danish and sent him to his house. Asif followed Danish towards his house his house is also situated in the same direction. Thereafter, I continued to roam around in the street for some time. After some time, at about 11.30/11.45 p.m., I took pangutka from the Bhairo Panwari shop in the gali. As soon as I turned back, I saw Asif, Kashif & Munna were standing with Danish. One WagonR silver colour van was also parked close by. One or two persons were already sitting in the said wagonR car. I saw that Danish was made to sit in the said wagon R by Asif, Kasif and Munna. The wagonR started from there and Danish was taken away in the said car by the said persons. After some time, I went to my house and slept. In the midnight, I received a telephone call of my uncle late Sh. Islamuddin and he informed me that Danish had not returned to the house. I had told him that I had seen Danish alongwith Asif, Kasif and Munna last night. I told him that he was taken by them in wagonR car. My uncle asked me to go outside and see for Danish. I went in the street and made FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 59 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi search for Danish but could not find him out. In the street, brother of Asif namely, Adil, met me. I made inquiry from him about Asif to which he expressed his ignorance. I asked Adil that as and when Asif returns to the house ask him to give me a call. Upon which, his reply was that Asif will not come now. After that I returned to my house. On the next day, it was Friday. On Friday, in the after at about 12/12.30 p.m., I came to Chhoti Masjid, Bara Hindu Rao, to offer namaz. At about 2.00 p.m., when I came outside the masjid, I saw that one police officer of the rank of SI alongwith one Constable were going towards the house of Danish. The house of Danish and my house are adjoining to each other. On inquiry, the police officer told me that they want to see Danish. I told them that Danish has not returned to the house since last night. I was told by them that Danish has met with an accident and asked me to accompany them to police chowki Ahata Kidara as the senior police officer are sitting there. The senior officer of police post informed that they have found one dead body in the area of Civil Lines and they suspect that the dead body is of Danish. The police officer had asked me to accompany him to mortuary to identify the dead body. In the mortuary, I identified the dead body of Danish. SHO Anil Kapoor had also reached in mortuary. My uncle Sh. Islamuddin had also come to the mortuary by that time. My uncle made inquiry from the police officers as to how this has happened, upon which, he told me that they are still investigating. My uncle Islamuddin told Inspector Anil Kapoor that last night, Danish had gone outside the house alongwith Asif, Kasif and Munna and has not returned thereafter. The police informed that dead body of Danish to be handed over next day after postmortem. About 78 days prior to the murder of Danish, Asif, Kasif and Munna had gone to the house of my uncle Islamuddin and were raising abuses. They were raising threats that they will kill Danish and if Danish is not there then call his father. At that time, my uncle was not present there. At that time, I was present at my shop and came to know this fact after coming from the shop. I know accused Asif, Kasif and Munna, present in the court today (correctly identified).
56. His testimony is strongly opposed by Ld. Defence counsels on the ground that in his crossexamination he has admitted that he was involved in 10 to 15 cases and he was coaccused in some case with Islamuddin.
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 60 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi Therefore, it is argued that PW5 is a person of shady character. It is argued that his statement under Section 161 Cr.P.C. was recorded on 23.09.2011 and therefore, is highly dilatory. He does not explain as to why he remained silent for such a long time and did not immediately inform the Investigating Officer about "last seen". Ld. Defence counsels have drawn my attention to the cross examination of PW5 by Sh. Ujjawal Puri, Advocate for accused kasif who had testified that his brother Fakruddin was got fired at by the accused persons. It is argued that PW5 is a close associate of Islamuddin in various criminal cases and therefore, he is supporting Islamuddin against the accused persons, with whom he is having rivalry.
57. On the other hand, Ld. Addl. P.P. submits that the Investigating Officer had not given an ear to Islamuddin and Nawabuddin on 31.07.2010 when they had identified the dead body. However, as per case diaries, detailed statement of Islamuddin was recorded in the CD dated 03.08.2010 and detailed statement of Nawabuddin was recorded by Investigating Officer in case diary dated 05.08.2010. Ld. Addl. P.P. has pointed out that PW10 Inspector Anil Kapoor has stated in his crossexamination that he had examined them and mention of it has been made in the CDs. PW10 also testified in crossexamination that he recorded the statements of Islamuddin and Nawabuddin regarding identification of dead body in Mortuary Subzi Mandi and they had pointed out suspicion towards Munna, Kasif and Asif. However, he did not record their statements under Sec.161 Cr.P.C. Therefore, Ld. Addl. P.P. argues that Nawabuddin is not immediate family member of Islamuddin. Though, he is cousin of Islamuddin and he does not reside in the same house. It is argued that when police is reluctant to record the statements of the FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 61 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi witnesses and therefore, delay in recording the statement of Nawabuddin should be seen in that light. Ld. Counsel for accused argues that in cross examination of PW10, it is stated by the IO that examination of Islamuddin and Nawabuddin was conducted by him after 31.07.2010 and detail of examination is mentioned in the case diary. He further testified that Islamuddin and Nawabuddin approached themselves and many times he also called them. Ld. Addl. P.P. as well as Ld. Counsel for complainant argued that Islamuddin and Nawabuddin had been trying hard that the SHO should record their statements and that is why they kept on meeting SHO (PW10) repeatedly but all the pleas of Islamudding and Nawabuddin fell on deaf ears, therefore, it is argued that if there is delay in recording their statements, it should not cause any doubt in the mind of the court.
58. I have carefully perused the statement of PW5 Nawabuddin as well as PW10 Inspector Anil Kapoor. Perusal of the chargesheet would show that Nawabuddin, the cousin brother of deceased, who is also residing in the same house, did not speak about the last seen evidence on initial stage but lateron after gap of six days of discretionary of the dead body, Nawabuddin also revealed that he also saw Javed @ Munna, Kasif and Asif last time with the deceased. A careful perusal of testimony of examination in chief of PW5 shows that SHO Inspector Anil Kapoor had also reached in the mortuary and his uncle Islamuddin had also come to the mortuary by that time. PW5 testified that his uncle i.e. Islamuddin made inquiry from police officers as to how this had happened, upon which he told him that they were still investigating. He testified that h is uncle Islamuddin also told Inspector Anil Kapoor that last night Danish had gone outside the house alongwith Javed @ Munna, Kasif and FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 62 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi Asif and had not returned thereafter. Ld. Addl. P.P. has drawn my attention to the crossexamination of PW5 in which it was stated by him that he and his uncle had informed Inspector Anil Kapoor that accused persons have taken away Danish in Wagon R car. This is a case where from careful examination of evidence is required in view of the background of the parties and an enmity between them. PW5 has testified that he saw that Danish was made to sit in the said Wagon R car by Javed @ Munna, Kasif and Asif. It is pertinent to note that PW5 had stated in his examination in chief that Islamuddin had stated the last seen version to Investigating Officer and in cross examination he had stated that he also stated to Inspector Anil Kapoor that accused persons had taken Danish with them in WagonR in mortuary itself.
59. Now there are two views. First view of the prosecution and the complaint that the Investigating Officer had been extremely lax in investigation and had not deliberately recorded the statements of Islamuddin and Nawabuddin under Section 161 Cr.P.C. The other view is that Investigating Officer, SHO Inspector Anil Kapoor (PW10) who had stated that they had raised doubts upon these accused persons regarding their involvements, though later on their statements were recorded in detail. In the case law cited by Ld. Defence counsels, there was no evidence on record of deliberate, malafide or negligent inaction on part of the Investigating Officer. I have already reproduced the order sheet of Ms. Ambika Singh, Ld. Metropolitan Magistrate which clearly reflects the conduct of the first Investigating Officer. In fact, the first Investigating Officer had done no investigation at all. PW5 in examination in chief has testified that last night Danish had gone out of his house alongwith Asif, Kasif and Javed @ Munna and had not returned thereafter. In FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 63 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi crossexamination by Sh. Ujjawal Puri, Ld. Counsel for accused Kasif, the witness was emphatic in stating that it was informed by him to Inspector Anil Kapoor that accused persons had taken away Danish with them in WagonR car. This testimony gets support from the evidence of PW10 ACP Anil Kapoor (the First IO) that after postmortem, the dead body was handed over to Islamuddin and Nawabuddin. He also examined them during course of investigation and they had raised doubts/suspicion on accused Munna, Kasif and Asif regarding their involvement in death of deceased Danish. This testimony shows that Islamuddin and Nawabuddin had told the names of these three accused persons on some basis, which could only be their own last seen evidence. In crossexamination by Sh. K. Kaushik, Advocate for accused Kasif, PW10 testified that he did not record statements of Islamuddin and Nawabuddin under Sec.161 Cr.P.C. On 31.07.2010 and that their detailed examination was conducted by him after 31.07.2010. He also testified that Islamuddin and Nawabuddin approached him themselves and many times he also called them. This evidence supports the prosecution case as well as the testimony of PW5 Nawabuddin that they had stated the last seen evidence but Investigating Officer did not record their statements under Sec.161 Cr.P.C. I find force in the argument of Addl. P.P. that if the Investigating Officer relinquishes and abdicates his official responsibility in promptly recording statements of the witnesses and in investigating the matter, the witness cannot be held responsible for that. Therefore, nonrecording of statements of Islamuddin and Nawabuddin by the first Investigating Officer under Sec.161 Cr.P.C. and simply mentioning their examination in case diaries will not result in automatic discarding of last seen witness i.e. PW5. However, the testimony FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 64 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi of such witness is required to be analyzed more carefully in view of the inimical history between him and his family, which includes Islamuddin and the deceased. If such testimony gets corroborated from independent or scientific evidence, there will be no hitch in admitting his last seen evidence. Careful perusal of the testimony of PW5 would show that he is the only witness who has seen the accused persons taking the deceased in a Wagon - R car. No other witness has testified about the Wagon R car. Therefore, the question is as to whether his evidence regarding taking of deceased by accused persons in the Wagon - R car gets any support from any quarter. Material on record shows that when the first Investigating Officer did not do anything despite passing of more than one month, per force Islamuddin had to take recourse to the court and he had to file a criminal complaint Ex.PW4/DA on 13.09.2010 i.e. after about 43 days. The record of complaint case which is part of the judicial file shows that on 22.09.2010, Sh. Sanjay Bansal, Ld. ACMM issued notice to SHO about the statement of investigation. However, till then, first Investigating Officer Inspector Anil Kapoor, SHO had already been changed on 10.09.2010 and Inspector Rakesh Kumar (PW17) had taken over the investigation from 11.09.2010. On 17.09.2010, accused Kasif produced the Wagon - R car bearing no. DL 6 CC 0332. He seized the car vide seizure memo Ex.PW9/A. On 28.09.2010, he sent the car to FSL, Rohini through ASI Ram Tirath and HC Naresh where the FSL expert took out the portion of the carpet (Ex.A8) and cloth piece (Ex.A9) picked up from back side of the left seat of this car. These exhibits Ex.A8 and Ex.A9 were sent on 21.10.2010 to FSL alongwith other exhibits some of which were sealed with the seal of BKS and some of which were sealed with the seal of CMO. As per the serological report FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 65 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi dated 08.03.2011 (Ex.PW8/A), the blood on the exhibits (clothes of the deceased) as well as on A8 & A9 was detected.
60. The order sheets of the complaint case show that Ld. Metropolitan Magistrate was not satisfied with the investigation and Ms. Chhavi Kapoor, Ld. Metropolitan Magistrate vide order dated 01.07.2013, Ld. Metropolitan Magistrate passed severe structure as to how six Investigating Officers were being changed from time to time in short span of time which resulted in hampering of the investigation and delay and lackadaisical attitude of the investigating officers. It is pointed out by Ld. Metropolitan Magistrate that once a case is sent to the cold cases cell, the Investigating Officers failed to take up immediate steps to conclude investigation in a timely frame. The perusal of the record of complaint case would show that Ld. Metropolitan Magistrate had been pressing the Investigating Officers for proper and quick investigation. When Ld. Metropolitan Magistrate passed the aforesaid order, Inspector Ravinder Kumar (PW23) had taken over the investigation and it appears that when strictures were passed by Ld. Metropolitan Magistrate as discussed above, PW23 sent the exhibits deposited in malkhana to FSL for DNA profiling/comparison. Testimony of PW8 Ms. Seema Nain, Assistant Director FSL (Biology) would show that on 08.08.2013, five sealed parcels were received by FSL. From the parcel A8 & A9 (which were blood stained pieces of carpet and cloth piece lifted from the car), DNA was isolated. Similarly, the DNA was isolated from A3 (knife), A (blood stained gauge cloth), A4a (kurta of deceased) and A4e (handkerchief of the deceased). The result was that the DNA isolated from kurta and handkerchief of the deceased matched with the DNA, isolated from A8 & A9, which are the exhibits lifted from the Wagon - R FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 66 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi car seized from accused Kasif. This means that murder of Danish was committed in Wagon - R car due to which his blood fell in it.
61. This scientific evidence fully corroborates the last seen evidence of PW5. This is such a powerful evidence that it overtakes the doubts created due to delay in recording statement of PW5 and the issue of enmity. Conduct of first Investigating Officer as well as subsequent Investigating Officer also lend credence to the testimony of PW5 that he and Islamuddin had stated the last seen version to the investigating officer but he did not record their statements. That is why, Islamuddin was constrained to file a criminal complaint.
62. Thus the testimony of PW5 is duly corroborated by scientific evidence. It stands proved that it was the Investigating Officer who avoided to record the statements of Islamuddin and PW5 promptly and continued to do so throughout the time when the investigation was under him. In fact, this was a case where investigating agency appeared to be more interested in burying this murder instead of properly and promptly investigating the same. The investigation in this case could proceed only because of the continuous superintendence of the case by successive metropolitan magistrates. FSL Report
63. Ld. Defence counsels have strongly assailed the evidence of picking the exhibits from WagonR car.
64. Ld. Defence counsels argued that which prosecution is relying is FSL result about DNA profile (I) Car was seized on 17.09.2010 key was not deposited in malkhana and no evidence has come on record during the trial who was in possession of key. Ld. Defence counsels have pointed out that as per statement of MHC(M) ASI Ram Kumar (PW22), he was not aware who has FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 67 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi handled the car in between 17.09.2010 to 28.09.2010.
65. Ld. Defence counsels submit that on 28.09.2010 PW9 and PW11 took the car to FSL for lifting exhibit. As per PW9, keys were handed over to him by the IO and he deposited the car in malkhana but again keys were not deposited. He handed over two parcels to Inspector Rakesh who seized both vide seizure memo 9/A but this seizure memo nowhere mentioned about the initial of seal. Whereas, as per PW11, ASI Naresh Kumar, both the parcels were sealed with seal of FSL. It is submitted that here link is broken as to where two parcels which were sealed with the seal of FSL has gone, same were never deposited in malkhana on 28.09.2010. When on 21.10.2010, the parcels were sent to FSL for analysis, parcel no.8 & 9 sealed with seal of RT were sent and deposited in FSL. The specific question was put to PW22 who replied that but is it correct that no parcel with the seal of RT was deposited in malkhana during the investigation of this case.
66. Ld. Defence counsels argued that the parcel which contained the exhibits lifted from Wagon - R car sealed with the seal of RT were never deposited in malkhana. Moreover, no FSL official was examined during the trial who claimed that he is the person who lifted the exhibits from the wagon
- R car and thereafter, both were sealed with the seal of RT.
67. It is further submitted that in absence of this piece of evidence, one cannot presume that the parcel no.8 & 9 which contained Ex.8 & 9 were lifted by FSL expert. Thus, it is argued that a major link is broken, no reliance can be placed under these circumstances.
68. Ld. Defence counsels have pointed out to the crossexamination of PW8 Ms. Seema Nain, Assistant Director (Biology), FSL, who admitted that it is FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 68 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi correct that she has not filled allele data alongwith the report about Ex.8 &9. she also admitted that she had seen the parcel herself during the examination and their seals. She also claimed that she tallied seal with the sample seal providing in the forwarding letter. As per PW22, no sample seal of RT was set to FSL on 21.10.2010 alongwith parcels. As per Ex.22/E which is road certificate wherein specifically mentioned in 3 rd line from bottom two sample seal of CMO. There is no mention of any sample seal of RT.
69. I agree with Ld. Defence counsels that who fixed the seal of 'RT' on the two parcels A8 & A9, is not clear. But this is another indicator how negligently, the Investigating Officers had been preparing documents and mentioning the particulars of the seals. For example, Ex.PW9/B is the seizure memo of two exhibits of the FSL. It mentions the FSL number of the sealed envelopes but does not mention the seal affixed on the same. Ld. Addl. P.P. submits that RT appears to be the seal of FSL official who took out the exhibits from the car. But he also admits that Investigating Officer has not noted anywhere as to what was the name of said FSL official who had taken out the exhibits from the car. It is very clear that extremely poor kind of investigation was being conducted in a very casual manner by the Investigating Officers. But question is as to whether this discrepancy in evidence is of such a nature that it could have resulted in tampering with the exhibits.
70. So far as key of car is concerned, even if it is presumed that it remained with the Investigating Officer instead of MHC(M), question is as to whether the Investigating Officer was in position to plant blood of the deceased on the exhibits of the car.
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 69 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi
71. The investigation in the present case shows that the Investigating Officers were neither overzealous nor had any motive to falsely implicate the accused persons. In fact the manner in which investigation was conducted is more indicative of the fact that they were favouring the accused persons and were not taking the version of the complainant with any seriousness. In such a situation, there is no possibility that Investigating Officers would manipulate or plant the exhibits. So far as seal of 'RT' is concerned, the same was found by FSL on the parcel containing Ex.A8 and Ex.A9 by Ms. Seema Nain, Assistant Director (PW8). But remaining exhibits i.e. parcel A, A1, A2 & A3 were found by her sealed with the seal of BKS and exhibits A4a, A4b, A4c, A4d & A4e (clothes of deceased), Parcel A5, A6 & A7 (plastic rope, chain etc., blood stained gauge) with the seal of CMO. It is pertinent to note that SI Bhupinder Kumar (PW3) reached at the spot first of all and sealed the knife etc, found at the spot with the seal of BKS and the other articles were handed over by Dr. S. Lal (PW7) after postmortem alongwith sample seal to Inspector Anil Kapoor (PW10). All these seals remained intact. Therefore, it was not possible for the Investigating Officer to plant blood of the deceased in the carpet and back seat of the car.
72. It is true that name of the FSL official has not been mentioned by the Investigating Officer but PW9 SI Ram Tirath and PW11 ASI Naresh Kumar have testified that they had taken the WagonR car in question from malkhana of PS Civil Lines to FSL for inspection and some samples were lifted from the car by the FSL officials and they had prepared the pullandas of the same and sealed them with the seal of FSL and handed over the same to them. The Investigating Officer seized these pullandas vide seizure memo Ex.PW9/B. I do FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 70 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi not find any reason to disbelieve the testimonies of these two officials. Therefore, despite not noting the name of the FSL official and despite not siting him as a witness, the testimony of PW9 and PW11 proves beyond doubt that the exhibits were picked by FSL official from the car and thereafter, he handed over two pulandas to these officials.
73. Ld. Defence counsels have referred to Rajiv Singh Vs. State of Bihar, 2016 (2) (JCC) 1270 and submits that when evidence of expert does not provide the tests undertaken in support of conclusion, such DNA report should be discarded. I have carefully perused this judgment. I find that the DNA expert in the said case had no experience in that line. Moreover, the tests were conducted in a private laboratory in violation of the norms and therefore, evidence of such experts was discared. However, in the present case PW8 Ms. Seema Nain is Assistant Director (Biologiy) in Forensic Science Laboratory, Rohini, which is a Government Institution. Moreover, there is nothing in cross examination to show that she had no experience in DNA testing. In her examination in chief, she had stated the process that she had isolated the DNA from the exhibits and identifiler plus amplication (STR kit) was used for each exhibit and data was analyzed by genemapper IDx software. Hence, the case law cited by Ld. Defence counsel is not applicable to the present case. Consequently, there is nothing on record to show that there was possibility of planting blood of the deceased on the WagonR car by police or by any other person. DNA report is reliable and consequently, I hold that scientific evidence has proved beyond doubt that blood of deceased was found in the WagonR car of Kasif.
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 71 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi
74. There is a minor issue about the discrepancy in the registration number of the vehicle. The FSL report mentions that the exhibit A8 & A9 having been picked up from car bearing no.DL 4CL 0332, whereas actually the registration of the car number is DL 6CL 0332. I may point out that the registration number has been written in the FSL report Ex.PW8/A because the exhibits were carried through a Road Certificate No. 68/21/10 (Ex.PW22/D) in which it was mentioned at point no.9 and 10 that the parcel was lifted from the car DL4CL0332. However, in his examination in chief a specific question was put to PW22 ASI Ram Kumar, the MHC(M) and he explained that either he himself or the Investigating Officer have inadvertently written the number of vehicle as DL4CL0332 in stead of DL6CL0332. Therefore, a minor clerical mistake has crept in recording the correct registration number of the vehicle, which is required to be ignored.
75. Although, the WagonR car is in the name of father of Kasif but PW5 has proved that on the day of incident Kasif alongwith coaccused persons had taken away deceased in this car. Moreover, it was Kasif who produced the car before the police when it was seized vide seizure memo Ex.PW9/A which shows that Kasif produced the said car. The blood found in the exhibits picked up from the car clinches the issue.
Call Details
76. It is submitted by Ld. Defence Counsels that during the investigation CDR of deceased as well as accused persons were obtained by the IO and as per the CDR of deceased Danish, he was very much present in Hathikhana at about 1.18 a.m. on 30.07.2018. He had also made many calls to number of persons but IO did not verify who those were. From the FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 72 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi circumstances, it is clear that Danish was not in the company of accused persons at about 1.18 a.m. on 30.07.2010 and prosecution has miserably failed to have with whom he was at about 1.18 a.m. on 30.07.2010 in Hathikhana.
77. I disagree with the submissions of Ld. Defence Counsels. PW10 ACP Anil Kapoor was specifically cross examined on this point by Ld. Defence Counsel. He testified in cross examination that he had taken the CDRs of the said phone and mobile phone of Kasif and had examined the same. However, neither anything emerged out of these CDRs in favour of accused persons nor against them. Ld. Counsels have not shown me as to how the CDRs support the version of defence.
Parking Register
78. Ld. Defence Counsels have submitted that a copy of parking register Ex.PW10/DX was taken by the IO Inspector Anil Kapoor. As per the parking register copy, the Wagon - R car which belongs to father of Kasif was in the parking in Trans Yamuna, Laxmi Nagar at about 12.30 a.m. on 30.07.2010 and same was out at 10.15 a.m. Ld. Defence Counsels argue that as per testimony of PW5, he saw the accused persons and deceased at about 11:30/11:45 pm. It is submitted that this is in contradiction to the statements of other witnesses, whose version about last seen varies from 12:30 am to 1:00 pm. Moreover, the vehicle could not have been parked at 12:00 am in Ramesh Park, which is about 15 kilometers away from the place, where dead body was found.
79. I may point out that I have already discarded the other last seen witnesses. The version of PW5 about the timing of last seen is worthy of credence because thereafter he was murdered. This timing matches with the FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 73 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi approximate timing given in the FSL report. Postmortem as per FSL report Ex.PW7/A was conducted at 12:00 noon on 31.7.2010 and the time since death has been opined to be 36 hours. So far as the copy of parking register is concerned, it is very strange that the Investigating Officer did not take the original register in possession and also did not record a statement of the person running the parking under Section 161 CrPC. Therefore, this copy of the register cannot be accepted. PW25 Shamim has testified that he had given the photo copy of the register to the police. He testified that at that time (i.e. when the car was parked) the owner of parking was one Aalam and his Kesar used to look after the said parking. He testified that original register should be with Kesar. Ld. Counsel for complainant has submitted that the way Investigating Officer has collected this photocopy without taking in possession the original register and examining the person, who was running the parking on that night, the possibility cannot be ruled out that he did so in complicity with the accused and that a fake document has been created and placed on record without any seizure memo. I do not want to comment on this submission but what is the level of investigation is writ large.
80. For the aforesaid reason, the photocopy of the register cannot be admitted in evidence.
Conclusion
81. The perusal of the entire record shows that level of investigation even in a murder case can fall to such a low level. It is a case where ten Investigating Officers were changed. The Metropolitan Magistrates kept on pulling the Investigating Officers and even brought the whole state of affairs to the notice of DCP. However, the investigation did not move an inch until the FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 74 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi Metropolitan Magistrates pushed them to do the needful. Still laxity and casual approach on part of the Investigating Officers did not stop. It is such type of situation that Hon'ble Division Bench of Hon'ble High Court of Delhi in Vishal Yadav Vs. State of UP (Crl. Appeal No. 741/2008, 910/2008 & 145/2012) judgement dated 2.4.2014 observed as under :
34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a fair trial, the Court should leave no stone unturned to do justice and protect the interest of the society as well.
82. The aforesaid observations are fully applicable to the present case, where the Investigating Officers had abdicated their duties, conducted perfunctory investigation and probably favoured the accused persons. This may be on account of malafides or on account of negligence or on account of incompetence. Even senior officers, who were informed by Ld. Metropolitan Magistrates, also failed to ensure fair and effective investigation in this case.
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 75 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi Ld. Defence Counsels have argued that the accused persons had consented to undergo lie detector test but nothing came out against them. I am of the opinion that report of such a test is not legally admissible evidence. Despite all deficiencies of investigation, the DNA test has proved beyond reasonable doubt the version of PW5 that Danish was taken by the accused persons in the WagonR of accused Kasif and was murdered in this car itself soon thereafter.
83. Thus the last seen evidence is reliable. Now it is to be seen as to whether all the accused persons should be convicted on the basis of last seen evidence. It is to be noted that PW5 Nawabuddin has testified that when the accused persons were taking Danish in WagonR car, one or two persons were already sitting in the said WagonR car. In such a situation, convicting accused Asif and Javed solely on the basis of last seen evidence would be a highly unsafe proposition. It is possible that they could have dropped from the car after sometime and murder could have been committed by the other persons sitting in the car later on. Therefore, I give benefit of doubt to accused Asif (A
1) and Javed @ Munna (A3).
84. However, Kasif (A2) does not deserve any benefit of doubt. It was he, who along with the coaccused persons, taken Danish in his car. It is not his case that his car was used by other persons sitting in the said car as testified by PW5. The murder of the deceased was found to have been committed soon thereafter as per medical evidence. This car was found to have blood stains of the deceased as per FSL report. Therefore, it is his duty to explain as to how the blood stains of deceased were found in his car even after a few months. Therefore, the circumstantial evidence cumulatively proves beyond reasonable doubt that either he himself committed the murder or he FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 76 In the court of Sh. Vinod Kumar, ASJ (Central): Delhi was acting in furtherance of common intention along with the other persons, who were sitting in his car. In absence of the role of the others, I would convict him for murder of Danish. It is not clear from evidence as to whether he had conspired to kill Danish or some incident took place in the car itself leading to the murder of Danish. Therefore, I acquit all the accused persons under Section 120B IPC.
85. Consequently, Asif (A1) and Javed @ Munna (A3) are given benefit of reasonable doubt. Therefore, I acquit both of them.
86. However, in view of the aforesaid discussion, Kasif (A2) is convicted under Section 302 IPC.
87. The criminal complaint case stands disposed of in terms of this judgement.
Announced in Open Court VINOD KUMAR
Digitally signed by VINOD KUMAR
Date: 2018.04.24 15:54:37 +0530
on 24.04.2018 (Vinod Kumar)
Addl. Sessions Judge (Central)
g Tis Hazari Courts, Delhi/24.04.2018
FIR No.145/2010 PS Civil Lines State Vs. Asif & Ors. 77