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Delhi District Court

State vs . Irfanuddin on 20 December, 2007

                                         : 1 :

                IN THE COURT OF MRS. R. KIRAN NATH, 
             ADDL. SESSIONS JUDGE:SPL. JUDGE:NDPS, DELHI.

SC No:   122/1.
FIR NO: 112/95.
PS: Chandni Mahal
U/Sec. 302/364/201/120­B/34 IPC
                                                 Date of Institution: 23.07.2004
                                                  Date of Decision : 20.12.2007
In Re:

State              v.    1.   Irfannuddin @ Irfan
                              S/o Syauddin 
                              R/o H.No.985, Gali Madrsha Hussain Bax
                              Motia Mahal, Jama Masjid, Delhi.

                         2.   Mohd. Azhar 
                              S/o Mohd. Zafar
                              R/o Q. No.U­11, DDA Qtr.
                              Turkman Gate, Delhi.

                         3.   Sayed Mohd. Azharuddin @ Syed Azhar
                              S/o Syad Saleuddin 
                              R/o H.No, 11278, Takia Gullu Shah,
                              Shri Ram Nagar, Shahdara, Delhi.

                         4.   Yusuf Khan @ Yunus Khan
                              S/o Zubin Khan
                              R/o H.No. 11278, Takia Gullu Shah, 
                              Shri Ram Nagar, Shahdara, Delhi.

                         Accused no.3 and 4 were declared P.O. vide order 
                         dated 22.2.1996

J U D G M E N T :

A missing report was lodged in the PS Chandni Mahal on 07.6.95 by Mohd. Ramzan submitting that he was the owner of Kamal Guest House; that on 06.6.95 at around 1:30 pm, his son Mohd. Iqbal aged 18­19 years State vs. Irfanuddin : 2 : had gone from home to call the electrician, but did not return till the evening. He further stated that he had been looking for his son amongst his relatives and friends but in vain. Subsequently, on 09.6.1995, an FIR of the present case was lodged by Mohd. Ramzan that a telephone call had come at his residence from one of his customer Rafiq of Bombay asking whether Iqbal had returned home and hence, he suspected that Rafiq had kidnapped his son. An FIR u/S 365 IPC was thus, registered. Wireless message was flashed all over India on 9.6.95. It is further the case of the prosecution (as per the chargesheet filed) that on the same day, another telephone call was received at the guest house of complainant that his son Mohd. Iqbal had been kidnapped and murdered and the dead body of the deceased was lying in jungles of Faridabad.

It is further the case of the prosecution that on 10.6.1995 the dead body of Mohd. Iqbal was found lying in the bushes of paharis of jungles of Sector 21 of Faridabad, Haryana. The body was partly skeletolized and seemed to be eaten away at parts by animals. The dead body was identified by Mohd. Ramzan. The police of the concerned PS NIT Faridabad had proceeded u/S 171 Cr.P.C. and had sent the dead body for postmortem first to B.K. Hospital, Faridabad and from there to Rohtak. A case FIR no.591/95 dated 14.6.95 was registered at NIT Faridabad Haryana u/s 302/201 IPC. As per the postmortem report, the cause of death was State vs. Irfanuddin : 3 : stated to be neck injury described as homicidal in nature.

It is further the case of the prosecution (as stated in the chargesheet) that in the investigation by the PS Chandni Mahal Delhi, it was found that the deceased Iqbal was last seen on 06.6.1995 going on the motorcycle of accused Irfannuddin. Accused Irfannuddin was a good friend of the deceased Mohd. Iqbal and used to remain in company of deceased most of the time at their guest house Kamaal. Accused Irfannuddin absconded from his house. He was apprehended by the Special Staff, North District, Delhi along with accused Mohd. Azhar u/S 41.1 Cr.P.C. on 30.10.95. They were interrogated by Inspector Narender Dutt. During interrogation, they both admitted their guilt.

Accused Irfannuddin disclosed that many customers used to come to the guest house of deceased and he had become friends with them. These people used to bring gold from Dubai and used to sell the same in Delhi. They also used to rob other persons coming from Dubai with gold at airport itself. Due to this, some differences had arisen between Mohd. Iqbal and his friend Bobby vis­a­vis the other group of Yusuf & Sayed Azhar. Hence, they had decided to finish off Bobby and Iqbal. He also admitted that in the greed of gold/money, he had been indulging in various (illegal) State vs. Irfanuddin : 4 : activities in conspiracy with Sayyed Azhar. He had also involved accused Mohd. Azhar in the conspiracy to finish off Mohd. Iqbal. As per the scheme, he and Mohd. Azhar had taken Mohd. Iqbal out towards Turkman Gate where two persons were standing as per the plan. Mohd. Iqbal started talking to those two persons as he knew them. As per the scheme, those persons took Mohd. Iqbal in their gypsy towards Faridabad. When they reached near Surajkund Jungles, they stopped the car and took Mohd. Iqbal to one side. One of those persons, took out the pistol and shot at Iqbal who fell there. Thereafter, they returned. He further stated that he had removed the goggles of Mohd. Iqbal and had given the same to Mohd. Azhar on return.

Accused Azhar disclosed that he was involved in the murder of one Bobby and that in the month of June, 95 he was sitting with Mohd. Iqbal and Mohd. Irfannuddin at the guest house when a telephone call was received from Sayed Azhar at Dubai by Mohd. Irfannuddin for the plan to finish off Iqbal. He also disclosed to the same effect about the plan as accused Irfannuddin. Both the accused were arrested in the case and the police remand was taken. Thereafter, in police remand, they were interrogated by the District Crime Cell, Special Staff, Crime Branch, CBI, IB & Bombay Police. There also they disclosed to the same effect that they had State vs. Irfanuddin : 5 : got involved with these gold smugglers out of sheer greed as they used to give him lot of money to spend and used to play carom with him in the guest house and move around on his motorcycle. These people i.e. Sayyed Azhar and Yusuf had also disclosed to them that they belonged to group of Chotta Shakeel­­­the gold smuggler of Dubai. Their information was being leaked due to which their men were robbed of goods at the Delhi Airport and they were suffering a lot of losses. They suspected the men of Irfan Goga to be involved in this robbery of gold from the airport. Irfan Goga and his associates Bobby and their men used to stay in the guest house of Mohd. Iqbal. He (accused Irfannuddin) disclosed that he had murdered Bobby at the instance of these people and Iqbal was also kidnapped and murdered as per the plan by these men. He disclosed that Iqbal was a very good friend of him and initially when it was proposed by Sayed Azhar that he should finish off Iqbal, his conscience did not permit him to do so, though, he had agreed in front of Sayyed Azhar to finish off Iqbal.

He further stated that he used to go for holidays with Iqbal. He had a love marriage with one girl Nusrat and had gone for holiday to various places along with his wife as also his friend Iqbal. During these holidays, he realised that Nusrat and Iqbal had inclination towards each other and Iqbal had also got alphabet N tattooed on his left arm. Hence, he State vs. Irfanuddin : 6 : became furious and decided to finish off Iqbal to save his family life and also to get all the considerations from Sayed Azhar. He involved accused Mohd. Azhar in the plan to finish off Iqbal. Accordingly, on 6.6.95 he invited Iqbal to go to Faridabad Lake and have beer to which Iqbal agreed. Accordingly, at around 10:10 am, he took Iqbal on his motorcycle to Batkal Lake, Faridabad and when they reached the Badarpur Border, he made Iqbal drink two bottles of beer, by which he got intoxicated. Then he took Iqbal to Sec 26 Pahari and after taking him from his motorcycle, he shot several rounds at Iqbal with the pistol given by Sayed Azhar. As a result, Iqbal fell down and then, he got down and slit the throat of Iqbal with razor and also scrapped the letter N written on the left hand of Iqbal. He threw away the razor in the bushes and went straight to Sayed Azhar and told him that he had finished off Iqbal and had handed over the goggles and ring of Iqbal to Azhar. The goggles were broken and thrown near the Kabristan Ranjeet Nagar Red Light, so that the same could not be identified. Inadvertently, he continued to wear the ring which was identified by the mother of Iqbal when Irfan went to their house. Hence, he handed over the ring to Mohd. Azhar. When he saw the condition of the family members of Iqbal, he could not contain himself and telephoned in the name of Rafiq to inform them about the whereabouts of dead body of Iqbal. He had accompanied the police party and the family members of Iqbal to trace the State vs. Irfanuddin : 7 : dead body and had feigned shock on seeing the dead body. However, when the family members started suspecting him, he ran away from there. At the instance of Sayed Azhar at Dubai, he destroyed the pistol used in the crime by melting it by gas cutter and threw its melted heap in a dustbin in Seelampur. Accused Mohd. Azhar also made disclosure to the same effect.

Accused Irfannuddin pointed out at the spot from where the dead body of Iqbal was recovered. However, the razor and the bullets could not be found despite the best efforts as the earth had been dug up at the spot. The motorcycle of the accused Irfannuddin was seized. The accused pointed out at the shop of Nasir Ahmed, Loha Market in New Seelampur where he had destroyed the pistol by gas cutter & gas cylinder in the presence of his friend Anwar. The said gas cutter and gas cylinder were seized. He pointed out the dustbin where he had thrown the pieces of pistol. He also pointed out at the Kabristan Ranjeet Nagar Red Light where he had thrown the pieces of goggles of Iqbal after breaking the same at the instance of accused Irfannuddin. The broken pieces of goggles were recovered. The ring of deceased Iqbal was recovered from the house of accused Mohd.Azhar.

The clothes worn by the deceased had been seized (when the State vs. Irfanuddin : 8 : body was recovered) and were sent to CFSL, Haryana for Ballistic Examination and it was reported that "holes" on shirt contained in parcel no.2 had been caused by Bullet Projectiles. After obtaining the necessary permission, the dead body was taken out and sent for postmortem again but no opinion could be given whether the death was due to fire arm injuries or not as the body was almost skeletol and some bones were missing. The body was buried. The related documents and other parcels, case property were taken over from the PS NIT Faridabad and deposited in the maalkhana and thereafter, the chargesheet was filed (against Irfannuddin and Mohd. Azhar) keeping accused Sayyed Azhar and Yusuf in coloumn no.2.

On the basis of the facts contained in the chargesheet, charge was framed against the accused Irfannuddin and Mohd.Azhar along with PO accused Sayyed Azhar and Yusuf u/S 364 r/w Sec 34, Sec 302 r/W Sec 34 IPC, Sec 201/34 IPC and Sec 120B IPC, to which they pleaded not guilty and claimed trial.

In support of its case prosecution has examined 30 witnesses. PW­1 is Anwar Khan, who testified that about 1½ - 2 years (from the date of deposition on 4.7.1997) the witness was coming from his office at Janpath from Janak Puri on his scooter. He met accused Irfan at Rajender State vs. Irfanuddin : 9 : Prasad Lane and gave lift to him on his asking upto Seelampur. There accused Irfan went to an iron shop and came back after half an hour. Thereafter, on his asking, he took accused to Zafrabad Traffic Signal. The witness was declared hostile by Ld. Addl. PP for State. In his cross­ examination by Ld. Addl. PP, the witness denied that accused Irfan was having any pistol or that the pistol was heated with the help of gas cylinder and converted into heap of iron. He admitted that accused Irfan had led the police party to his (accused Irfan's) house at Seelampur and got recovered from there one cooking gas cylinder, one oxygen gas cylinder, one cutter machine, two rubber pipes, which were seized by the police. He admitted that these articles were recovered from a shop in Seelampur.

PW­ 2 is Ct. Pawan Kumar, who had gone to Faridabad along with SI Jai Raj Singh in search of the dead body of Iqbal on 09.6.1995 as a message was received from Faridabad PS. There they associated Ct. Bijender of PS Faridabad to search the dead body, but could not trace the same despite extensive search till 10.30 pm. PW­ 3 is HC Attar Singh, who was one of the members of the police party who had apprehended both the accused on 30.10.1995 from the STD booth at Kamla Nagar main market at around 09.15 pm. He testified that State vs. Irfanuddin : 10 : accused Irfan and Azhar had made their respective disclosure statements Ex. PW­3/A and Ex. PW­3/B in his presence.

PW­ 4 is Ct. Nahar Singh, who stated that on 09.6.1995, he was in PS Chandni Mahal when the duty officer had handed over the copy of FIR to him at around 5.45 pm to be given to SI Jai Raj. He went along with the complainant and had handed over the copy of FIR to SI Jai Raj near the Masjid and also produced the complainant before him.

PW­ 5 is Mohd. Ayub, who used to visit Dubai for business purposes to bring electronic goods to India. He testified that accused Irfan had gone with him to Dubai on two occasions in the year 1990 and 1993; that he had lent a sum of Rs.2000/­ to accused Irfan while returning from Dubai as he needed this money to make payment of custom duty. He testified that accused Irfan had handed over his passport as security to him for guarantee to return the said sum of Rs.2000/­. The said amount was not returned by him, hence the passport of accused Irfan was retained by him. The said passport was produced by him before the SHO Insp. Aas Mohd. He further testified that Insp. Aas Mohd. told him that the passport was of one Azroodin. He testified that he was illiterate and hence had not read the name of the passport holder. However, he testified that the said passport State vs. Irfanuddin : 11 : Ex. PW­5/A was the same which was handed over to him by accused Irfan and which he had given to the police, who seized it vide seizure memo Ex. PW­5/B. PW­ 6 is Naseer Ahmad, who was running an iron shop in Loha Market, Seelampur for the past 15­16 years. He testified that 2/3 years back accused Irfan and one other boy had come to his shop along with ten police persons and police had seized one oxygen gas cylinder, one cooking gas cylinder, one gas cutter and two rubber pipes from his shop. These articles were produced before the witness and were identified as Ex. P­1 to P­5. However, he denied that accused had disclosed to the police before him that he had melted the pistol used by him in the murder of Iqbal in the said shop by means of gas cutter and cylinder in the presence of Anwar Khan. On being cross­examined by Ld. Addl. PP for state, he admitted his signatures on the pointing out memo Ex. PW--1/C, but denied its contents. The witness denied that this document was prepared by the police at his shop at the pointing out of accused. He denied that accused Irfan had made any such disclosure about using the gas cutter, cylinder etc. for melting the pistol. The witness identified that Anwar (who was present in the court that day) was the same person, who had come to his shop with the police. State vs. Irfanuddin : 12 : PW­ 7 is Acharya Prakash Chand Fluria, who was the first person to see the dead body. He was the Secretary of Residents Welfare Associate, Faridabad NIT. He testified that on 10.06.1995 he had gone for a morning walk towards Paharis. He smelt bad breath beneath paharis at talhati. When he went near the direction of bad smell, he found a dead body lying there. It was wearing black coloured pant, which was half torn and the baniyan in a torn condition and one white shirt was lying at some distance. It was also having shoes. It appeared as if the flesh had been eaten by the animals at some places and appeared to have been lying there for 1½ to 2 days. He collected 2­3 persons and informed the police chowki, Faridabad NIT and lodged the report. He testified that subsequently, he came to know that the dead body was of one Iqbal of Delhi.

PW­ 8 is Masqoor Rashid, Incharge Kabristan, Feroj Shah Kotla, where the dead body of Iqbal had been buried on 11.6.1995. He had testified that dead body was again dug out and exhumed after 4/5 months. He placed the relevant entry of the kabristan record bearing No.105 of the month of June 1995 wherein the relevant records were entered at page No. 10422 in Urdu and copy of which was Ex. PW­8/A. Ex. PW­8/B was the copy of order of SDM allowing the exhumation of the dead body from the graveyard. Ex. PW­8/C was the copy of the application moved by Mohd. State vs. Irfanuddin : 13 : Ramzan, father of deceased, to the SDM. Ex. PW­8/D was the copy of order of Secretary of Kabristan directing the witness (Incharge, Kabristan) to assist for exhumation of dead body.

PW­ 9 was Mohd. Shakil (brother of deceased), who was aged 16 years at the time of deposition in the court i.e. on March 1999. He testified that in the year 1995 he was working at his father's hotel Kamaal. He testified that on 06.6.1995 his brother Iqbal was taken by accused Irfan (present in the court) on his motorcycle No.2022 from Kamaal hotel towards gate Chowk side. Accused had come to the hotel at around 10.00 or 10.30 am. He talked to his brother for sometime and then took his brother on his motorcycle. His brother did not return; nobody took the non­ return of his brother seriously. Next day morning, matter was reported to the police by his father Ramzan. Thereafter one unknown person telephoned at Kamaal hotel and told his brother Salim that dead body of Iqbal was lying in the bushes near the way leading to Batkal Lake. They searched for the body on 7.6.95 and 8.6.95, but the same could not be traced. On 09.6.95, the dead body of Iqbal was found at Batkal Lake, all this while the dead body was searched by him, his father, his brother Salim, police officer Jairaj and both the accused. This witness testified that they suspected the behaviour of accused during the search of dead body as State vs. Irfanuddin : 14 : accused was himself leading ahead and had gone straight to the place where the dead body was found. The said dead body was traced first of all by accused Irfan exactly according to the information received on the phone. After recovery of dead body, Haryana police also reached there. Postmortem was got done by Delhi police on 10.6.1995 after which the dead body was buried. The dead body was again taken out after 4/5 months and sent for postmortem. He also testified that during the course of investigation one ring was got recovered by accused Mohd. Azhar from Mata Sundri Road from a park. Then, said from Delhi gate kabristan. He also testified that Irfan got recovered the motorcycle. The sealed cloth parcels having the seal of AM was produced from the maalkhana and opened in the court. The ring was taken out and shown to the witness who stated that ring which Azhar had got recovered was having a white Nag (stone) while the ring produced in the court was having a green stone (nag).

The witness was recalled for cross­examination after lunch. The motorcycle was produced in the court and was identified as Ex. P­1 by the witness as the same on which the accused had taken the deceased on 6.6.95. He also testified accused Irfan had got one spectacle recovered, but he did not remember from where the same was recovered. A sealed cloth State vs. Irfanuddin : 15 : parcel was produced, out of which one spectacle was recovered. The witness identified it as the same which was got recovered by accused Irfan and which belonged to his deceased brother. The spectacle was Ex. P­2. He testified that the ring produced in the court was of the same size as the ring got recovered by accused Azhar and the shape of the ring was also the same. Subsequently, he also said that this ring was the same which was got recovered by accused Azhar. He could not identify it earlier due to some misunderstanding. The said ring was Ex. P­3. He also identified the photographs mark A to E of the dead body, which were taken by the police at the spot. (It may be noted that witness has made these improvements about identifying the ring after the break for lunch). Similarly, he made further improvements and stated that he had wrongly stated before lunch that ring was got recovered from Mata Sundri road, but it was got recovered from Azhar at his house. He identified his signatures on the seizure memo of ring Ex. PW­9/B, seizure memo of spectacle Ex. PW­9/C and identification memo by accused Azhar as Ex. PW­9/D. He also identified the photographs of Yusuf Ex. PW­9/E and stated that Yusuf used to visit their hotel.

PW­10 is Mohd. Ramzan­­ father of deceased. He had testified that he was running Kamaal Hotel at main bazar, Turkman Gate. He had State vs. Irfanuddin : 16 : seven sons. His son Iqbal--deceased was also working with him at Kamaal Hotel. It is his case that on 6.6.1995 at about 10.00 am accused Irfan had called deceased Iqbal from his house to the Hotel. Thereafter, Iqbal did not return either at the hotel or the residence and thus they reported the matter to the police on 7.6.1995. He even, sent his son Jamshed to the house of accused Irfan to enquire about his whereabouts. A telephone call came at the hotel from one Javed enquiring whether Iqbal had returned home. Then, a second telephone call came at the hotel from one Rafiq and this caller had stated that the dead body could be found at the address on a road leading to Batkal Lake from Faridabad near the flats on the way to the Lake. He had stated that the dead body would be found either in the bathroom of any flat or in the dustbin of this locality. He stated that he identified the voice of second caller as that of accused Mohd. Azhar. He along with his sons Shakil, Jamshed, Salim, Raies, Rashid, Jamil, Hauzi Karamillahi, other relatives, both the accused and four police officials had gone in search of the dead body and dead body was found at the place as disclosed in the telephonic information. The dead body was having cut mark on the neck and one arm, eyes and hairs were missing. There were bullet marks on the shirt pieces. He further, testified that after about one and a half month of murder, accused Irfan had come to his house wearing the ring belonging to his son Iqbal. When he and his family members enquired from Irfan about State vs. Irfanuddin : 17 : the ring, he told that the ring was given by his son Iqbal to him in Manali. When, he looked at the photographs of his son in Manali, he found that his son was wearing that ring. He also testified that at the time of leaving the house on 6.6.1995, his son was wearing this silver ring with green nag on it, which was not found on the dead body of Iqbal. He also testified that after about a month and half of arrest of accused Irfan, he had got recovered the motorcycle on which he had taken his son Iqbal. Seizure memo in respect of the same was Ex. PW­10/A. Ex. PW­10/B was the pointing out memo, which was prepared at the instance of accused Irfan, who had led the police party to the place of occurrence in Faridabad district at a pahari. He also testified that he had given his consent Ex. PW­10/C for exhuming the dead body of his son from the graveyard for another postmortem. His statement was Ex. PW­10/D in this respect. He further stated that accused Irfan had made the disclosure statement to the police in his presence and the said disclosure statement was Ex. PW­10/E. The disclosure statement of accused Azhar was Ex. PW­10/F. In pursuance thereof the next day accused Azhar and Irfan led the police party to Kabristan near Hotel Ranjit and they pointed out and got recovered one spectacle which the deceased was wearing. This spectacle was recovered from inside the graveyard near the outer boundary wall. The broken pieces of spectacles were seized and sealed in his presence. Thereafter, accused Azhar led the police to his house State vs. Irfanuddin : 18 : at Turkman Gate and got recovered the ring kept in a suitcase. The witness deposed that the said ring belonged to his deceased son. The same was seized and sealed. The witness identified the spectacle Ex. P­2 produced in the court as the same which his son was wearing and which had been got recovered by accused Irfan from the kabristan. He also identified the ring Ex. P­3 produced in the court as the same, which his son Iqbal was wearing and that this ring was got recovered by accused Azhar from his house. This ring was of silver and had a green nag.

The witness also submitted the photocopy of the FIR registered in this case as Ex. PW­10/G and the photocopy of missing report lodged by him on 7.6.1995 as Ex. PW­10./H. He also deposed about his son having got the alphabet 'N' tatooed on his right hand; that his son had gone to Kullu Manali with accused Irfan, his wife Nusrat and accused Azhar and his family. He also deposed that accused Irfan suspected his son of having illicit relations with his wife and was thus, jealous of him. He produced the photographs in the court showing his son with the wife of Irfan as Ex. PW­ 10/J, K and L. He further deposed that the dead body of his son was searched by the Haryana police and they had found a purse containing photographs and visiting cards. The said purse was produced in the court in a mutilated condition by MHC(M) PS Chandni Mahal and the witness State vs. Irfanuddin : 19 : identified the same as the purse recovered from the dead body of his son. The purse contained six passport size photographs of his son and twelve visiting cards, out of which six were of Hotel Kamaal and other six were of other persons. The said photographs were Ex. PW­10/N­1 to PW­10/N­6 and visiting cards were Ex. PW­10/P­ to PW­10/P­12. The witness identified these to be the same which were recovered from the dead body of his son on that day, time and place by the Haryana police vide a seizure memo. Photocopy of which was Ex. PW­10/Q. PW­11 is Sadiq Ali, who was a friend of deceased and testified that he was the friend of deceased since first to sixth class. He, deceased Iqbal, accused Irfan and Azhar were all friends together. Iqbal had started working in the hotel of his father known as Kamaal Hotel. He testified that 2­3 boys named Anna, Zawar and Sharif used to come from Dubai and stay at Kamaal Hotel. Besides these, there were 3­4 more boys who used to visit the Hotel, but he did not know their names. He testified that deceased Iqbal used to go to airport to bring these persons to hotel and sometimes he used to sit together with these guests for tea etc. He, however, stated that he had no knowledge if the accused persons also used to go to airport to receive them; that accused had developed intimacy with these guests and had started taking expenses from them.

State vs. Irfanuddin : 20 : However, this witness was declared hostile by Ld. Addl. PP for State as he testified that he did not know when Iqbal was murdered; he did not see Iqbal going with accused persons on 6.6.1995 at around 10.15­ 10.30 am on their motorcycle No.2022. Despite the cross­examination by the Ld. Addl. PP for state, this witness denied having stated to the police that one year prior to this incident, Boby had met Iqbal in his hotel and had stated that some persons would come from Dubai and would stay in his hotel and he should take care of them and give them full facilities and not to ask for any payment. He also denied that Bobby had telephoned from Dubai to Iqbal from one Irfan Goga, who told Iqbal that boys would be brought to his hotel by Bobby or his persons and if they did not make any payment, Iqbal should inform him so that he could send the amount through hawala. He also denied that he had stated to the police that Ms.Shaily was the sister of Boby and used to live in Bombay and had come to Hotel Kamaal and stayed there. He deposed that he never saw accused Azhar in hotel Kamaal. He also denied that accused Irfan was in the habit of spending money and Sayed Azhar and Yusuf used to give money to him for meeting his expenses. He also denied that before coming in contact of Sayed Azhar and Yusuf, accused Irfan used to take his expenses from deceased Iqbal and after his friendship with Sayed Azhar and Yusuf, he State vs. Irfanuddin : 21 : started living separately from Iqbal. He also denied that he ever stated to the police that on 6.6.1995 at about 10.15­10.30 am deceased Iqbal had gone with accused Irfan on his motorcycle No.2022.

PW­12 is Ct. Samundar Singh, from PP Ankher, PS NIT Faridabad, who had brought the DD register containing DD No.3 and 15 recorded on 10.6.1995 and 15.6.1995. As per DD No.3 ASI Om Parkash and Ct. Sukhbir Singh had made their departure entry for patrolling on 10.6.1995. DD no.15 A was recorded on 15.6.1995 showing the return of ASI Om Parkash at PP Ankher at 7.15 pm. The said DD entries were Ex. PW­12/A and PW­12/B. PW­13 is Saleem­­ brother of the deceased, who stated that in the year 1995 he used to work as Manager in the Kamaal Guest House belonging to his father from 8.00 pm to 8.00 am. He testified that both the accused persons were friend of Iqbal since childhood. They used to visit the guest house and used to spend most of their time there. In the year 1994, accused Irfan had brought one Md. Yusuf and Azhar to his Guest House. Since then, they used to stay there. They became friendly with other customers Rafiq and Boby. On 06.6.1995, he was present at his hotel at around 10.15­10.30 am when he saw his brother Iqbal going with accused State vs. Irfanuddin : 22 : Irfan on his motorcycle Yamaha No.2022. Thereafter, his brother did not return. His father had lodged a missing report. Subsequently, on 10/11.6.95 he came to know that his brother had been murdered and his dead body was lying in Faridabad. A telephone call was received by his father at his Guest House stating that dead body might be lying in Faridabad. The dead body was found in the dustbin at Faridabad. He identified the dead body of his brother, his clothes, belt and shoes. He stated that they had suspected Irfan as he sent one boy towards the dustbin in search of the dead body.

PW­14 is HC Hari Chand of PS NI T Faridabad, who was summoned to produce the case property in the court. He testified that on checking in the maalkhana, he found that clothes of the deceased were destroyed substantially by white ants and whatever was left was just the eaten up cloths by the white ants and could not be produced in the court. The other articles sent to FSL, Madhuban, Karnal were produced which on opening were found to contain blood stained earth with small twigs and bunch of hair, which were collectively Ex. PW­14/1. This witness produced the register No.19 on the next day and testified that on 14.6.1995, he was working as MHC(M). On that day SI Azad Singh, Incharge PP Dabua, PS NIT Faridabad had deposited two sealed parcels with him. One parcel was State vs. Irfanuddin : 23 : stated to contain the cloths of deceased Iqbal and other parcel was stated to contain blood and hairs of the deceased. Besides this, he had also deposited one sealed parcel containing the viscera of the deceased. He had also deposited the jamatalashi articles of the deceased i.e. black purse, six passport size photographs and twelve visiting cards vide entry No.447 in register No.19, photocopy of which was Ex. PW­14/A. Both these parcels and viscera were sent to FSL Madhuban on 26.6.95. The said two sealed parcels were received back in the maalkhana with the seal of FSL On 13.11.1995 as per entry No.683 in the register No.19 as Ex. PW­14/B. He also produced the DD entry No.44 dated 1.10.1999 regarding eating up cloths of deceased Md. Iqbal. The said DD entry was Ex. PW­14/C. He testified that on 30.9.1999, when he inspected the maalkhana, he found that the clothes of the deceased were eaten up by the insects so he made this entry NO.24 , copy of which was Ex. PW­14/D. He further testified that on 17.1.1996, he had handed over the Jamatalashi articles of Iqbal vide RC. No.10/MM, photocopy of which was Ex. PW­14/E. PW­15 is Insp. Balwant Singh, who had handed over the photocopies of passport files of Mohd. Azhruddin and Yusuf to Insp. Aas Mohd. The said photocopies are collectively Ex. PW­15/A. State vs. Irfanuddin : 24 : PW­ 16 is HC Krishan Chand, who was the duty officer at PS Chandni Mahal on 7.6.1995 and had recorded the missing report lodged by Md. Ramzan on that day vide DD No.21­A. He deposed that the said DD had been destroyed as per rules vide order of DCP Ex. PW­16/A, carbon copy of the same was proved as Ex. PW­10/H. PW­17 is Insp. Virender Dutt, who had recorded the first disclosure statement of accused Irfan and accused Azhar on 30.10.1995 as Ex. PW­3/A and Ex. PW­3/B wherein they had disclosed that Irfan had lured away the deceased and taken him to Faridabad jungles in a jeep with other associates and it was the other person who had shot at the deceased.

PW­18 is SI Virender Singh, who had apprehended both the accused persons at the instance of a secret informer on 30.10.1995 while patrolling in the area of Bungalow Road, Maurice Nagar and in whose presence the disclosure statement Ex. PW­3/A and Ex. PW­3/B were made by the accused persons.

PW­19 is Sh. Anil Dutt, who was running a photo studio at Faridabad and had taken four photos of the dead body on 10.6.1995. The negatives of the same were proved as Ex. PW­19/1 to PW­19/4 and State vs. Irfanuddin : 25 : photographs of dead body were Ex. PW­19/5 to PW­19/8.

PW­20 is Dr. S.K. Khanna, who had conducted the second postmortem on the body of the deceased after exhuming from graveyard and had submitted his report as Ex. PW­20/A. He had testified that no information regarding cause of death could be given after examining the body as the body was almost skeletalized and some bones were found missing. There was no evidence suggestive of death due to fire arm injury. However, he also testified that it could not be possible to rule out that the deceased had sustained fire arm injuries prior to death as the fire arm injury may only effect the soft body and may not leave any evidence on the bones.

PW­21 is Jamshed Ali, brother of deceased, who testified that on 6.6.1995 at around 10.20 am, he was standing at Turkman chowk to hire a three wheeler, when he had seen his brother Iqbal going on motorcycle No.2022 with accused Irfan.

PW­22 is Dr. R.K. Kaushal, FSL Madhuban, Karnal, who had received the parcel of blood stained clothes of the deceased in their department on 6.11.1995 and had examined the same for gun shot discharged residue and had testified that lead was detected in traces from State vs. Irfanuddin : 26 : the margins of holes on the shirt and it could be said that holes on the shirt had been caused by bullet projectiles. Copy of the said report was Ex. PW­ 22/A. PW­23 is Ct. Brahm Prakash, who was posted at PS NIT Faridabad on 26.6.95 and had taken the two sealed parcels from the maalkhana to FSL Madhuban, Karnal.

PW­24 is Dr. S.K. Dhattarwal, who had conducted the postmortem examination on the dead body of Mohd. Iqbal on 11.6.1995. The dead body was partially skeletolized at that time and foul smell, maggots, epidermis peeled off. The cloths that were sealed at that time were the shirt, baniyan and hanky. He had testified that the left hand of the dead body was missing, body smudged with sand and gnawing effect was present at multiple places on the body. There was an incised wound of neck in the middle anteriorly measuring 15x7 cm, bone deep, cutting laryngeal cartilages and other deeper structure with evidence of ecchymosis. He had opined that cause of death was neck injuries described homicidal in nature and time since death was five days back. He had exhibited his detailed report as Ex. PW­24/A. State vs. Irfanuddin : 27 : PW­25 is SI Gian Singh, who was also posted at NIT Faridabad on 10.6.1995 and at around 9.50 am, he had received a written statement of Acharya Prakash Chand and on the basis of the same, he had recorded the DD No.9. The copy of the original DD was Ex. PW­25/A and the original statement was Ex. DX/A. PW­26 is SI Om Prakash, who testified that on 10.6.1995 he was posted as Incharge PP Ankher, PS NIT Faridabad. He testified that on that day one Archarya Prakash Chand had come to PP and given his statement that dead body of a male was lying in the khud bushes of hills of Sector­21C and foul smell was coming. He recorded his statement as Ex. DX/A, made his endorsement Ex. PW­26/A and sent the same to PS NIT Faridabad, through Ct. Sukhbir Singh. On the basis of this, DD­9 was recorded; SHO was informed. Thereafter, he along with Ct. Paltoo Ram and Acharya Prakash Chand reached the bushes where the dead body was found lying. While they were inspecting the spot, Delhi police staff along with Ramzan, Salim and another person reached there. Ramzan identified the dead body of his son Iqbal. The purse, found on the body of the deceased containing photographs and visiting cards, was taken into possession vide seizure memo Ex. PW­13/D. Blood stained earth and blood containing hairs etc were taken into possession vide seizure memo Ex. PW­ State vs. Irfanuddin : 28 : 13/E. He conducted the inquest proceedings Ex. PW­13/B. He recorded the statement of Sadiq and Mohd. Salim. Statement of Liyaqat Ali was Ex. PW­26/B and that of Mohd. Salim regarding identification of dead body was Ex. PW­13/C. The body was sent for postmortem. On 11.6.1995 the postmortem was conducted and body was handed over to the relatives of the deceased. The case property was deposited in the maalkhana, PS NIT Faridabad on the same day. On 14.6.1995 case FIR No.521/95 u/S. 302/201 IPC was registered at PS NIT Faridabad and investigations were handed over to SI Azad Singh. He had joined the investigations with SI Azad Singh and had handed over the sealed parcels to him which he seized vide memo Ex. PW­26/C. The witness identified the black coloured purse produced in the court and passport size photographs and visiting cards as the same which were recovered from the dead body of the deceased on that day.

PW­27 is HC Sarika, who testified that on 09.6.1995, she was posted as Duty Officer at PS Chandni Mahal. Ramzan had come to the PS at around 5.00 pm on 09.6.95 and had got recorded the FIR No.112/95 u/S. 365 IPC. The copy of the said FIR was Ex. PW­10/G. PW­28 is SI Jai Raj Singh, who stated that on 07.6.1995 he was State vs. Irfanuddin : 29 : posted at PS Chandni Mahal, when DD No.21­A was marked to him for enquiry. Wireless message was flashed. On 09.6.1995 case FIR No.112/95 was registered on the statement of Ramzan. While Ramzan was at the PS on that day, a telephone call was received by Ramzan from his Manager Dalbir, who informed him that the dead body of his son was lying towards Batkal Lake near Faridabad. Hence, at around 6.30 pm, he along with Mohd. Ramzan and other relatives and friends reached NIT Faridabad, but the dead body could not be traced. He stayed at Faridabad while Ramzan and other relatives came back to Delhi. He again started searching the dead body. Ramzan and his relatives and friends met him at about 7.00­7.15 am. Ramzan told him that he had received another telephone call in the morning that the dead body was lying somewhere in the paharis after going ahead of Cement Pul (bridge). The area described in the telephone call fell in PP Ankher, hence he went there where he was met by Ct. Sukhbir Singh, who informed that a call had already been received in the PP about a dead body lying in the paharis of Ankher. They went there and found the dead body lying in a mutilated and decomposed condition. The dead body was identified by Ramzan and his relatives. The witness further testified that inquest proceedings were conducted by Haryana Police, but he had recorded the statement of PW Shakil, Ramzan and Kale, Ct. Nahar Singh, Ct. Pawan and Acharya Prakash Chand during the investigation of the case. State vs. Irfanuddin : 30 : Since, the case FIR was registered in PS NIT Faridabad, he had sent the case for cancellation. However, the same was re­opened on the arrest of the accused persons by the Special staff on 30.10.1995 and was transferred to Insp. Aas Mohd. For further investigations. Insp. Aas Mohd. had formally arrested the accused; taken their personal search; interrogated them and made their disclosure statement Ex. PW­28/C and PW­28/D. PW­29 is Insp. Aas Mohd., who testified that on 31.10.1995 a DD No.10­A was recorded in the PS about the apprehension of accused Irfanudin and Azhar and their having confess to conduct the murder of Iqbal. On receipt of this information, he reached the office of Special Staff, North­District where the investigation of case was handed over to him. He obtained the disclosure statement of accused persons made by them earlier which was Ex. PW­3/A and Ex. PW­3.B. He had also obtained the personal search of accused Irfanuddin, photocopy of which was marked PW­29A. He then reached the court, where both the accused were produced before the court by Spl. Staff and got accused persons transferred to the concerned Ld. MM. On the permission of Ld. MM, he then, interrogated both the accused persons and recorded disclosure statement Ex. PW­28/C of accused Irfan and Ex. PW­28/D of accused Azhar. He testified that on 1.11.1995 accused Irfan led the police party in front of House NO.985, Gali Madrasa Hussain State vs. Irfanuddin : 31 : Baksh, Jama Masjid and got recovered one black colour Yamaha Motorcycle disclosing that this was the same motorcycle on which he had taken deceased Iqbal on 6.6.1995 at around 10.15 am from Hotel Kamaal, the same was seized vide memo Ex. PW­10/A. Thereafter, accused Irfan led the police party to the place of occurrence i.e. Sector­21­C, Faridabad and pointed out towards paharis vide pointing out memo Ex. PW­10/B as the same place where he along with other associates had taken to Mohd. Iqbal and shot him to death. They went to PS NIT Faridabad where a case FIR No.521/95 was already registered in connection with the recovery of dead body of Mohd. Iqbal, which was found there. They were informed that the clothes of the deceased were sent to FSL, Madhuban, Haryana. He collected the articles recovered from jamatalashi of the dead body i.e. a purse containing visiting cards and photographs of the deceased and deposited the above articles in the maalkhana PS Chandni Mahal. He testified that he again interrogated both the accused persons on 3.11.1995 and recorded the disclosure statement of accused Irfan as Ex. PW­29/A, wherein he disclosed that he had committed the murder of Mohd. Iqbal after taking him away on his motorcycle. Accused disclosed that the revolver used in the commission of murder of Iqbal was melted in shop No.30­A, Loha Mkt, Seelampur with the help of gas cutter. Pointing out memo of shop was Ex. PW­1/C and from the shop one oxygen gas cylinder, one LPG gas cylinder, two pipes and State vs. Irfanuddin : 32 : one gas cutter was got recovered and taken into possession vide seizure memo Ex. PW­1/B. Thereafter, accused Irfan led the police party to Seelampur near Red Light, Zafrabad road and pointed out the place where he had thrown the melted pistol vide pointing out memo Ex. PW­1/A. He testified that accused Irfannuddin had got recovered one passport in the name of Azharuddin on which photo of Irfannudin was pasted which was taken into possession vide seizure memo Ex. PW­5/B. He further testified that on 09.11.1995 after obtaining the permission from the SDM, dead body of Iqbal was got exhumed from the graveyard and he prepared the inquest proceedings Ex. PW­29/B. Application for exhuming the dead body given by him to the SDM was Ex. PW­29/C. Postmortem of the dead body was got conducted. On 10.11.1995 witness again interrogated accused and made their disclosure statements Ex. PW­10/A of accused Irfan and Ex. PW­ 10/F of accused Azhar. He testified that on the pointing out of accused Irfan, he had got recovered one pair of goggles, which was worn by deceased Iqbal and which accused had taken off after commission of murder. The goggles was taken into possession and was seized and sealed vide memo Ex. PW­9/C. Site plan of recovery of goggle was Ex. PW­29/D, pointing out memo of goggle was Ex. PW2/A. Thereafter, accused Azhar led the police party to his house and got recovered one white mettle ring which was studded with green stone. The same was seized and sealed vide State vs. Irfanuddin : 33 : memo Ex. PW­9/B. The site plan of recovery of ring was Ex. PW­29/E. He deposited the articles in the maalkhana of PS Chandni Mahal; recorded the statement of the witnesses. He testified that accused Saeed Azhrudin @ Azhar @ Soni and Yusuf @ Yunus could not be traced. Thereafter, he collected the postmortem report and scaled site plan Ex.PW­29/F. He also collected the FSL report from Madhuban Karnal and the same was Ex. Pw­ 29/G. After completion of the investigation the challan was filed in the court. The witness identified the case property being the same recovered from the possession of accused. Goggles belonging to deceased Iqbal was Ex. P­2, ring was Ex. P­3, motorcycle No.DL­1sF­2022 was Ex. P­1. He testified that he formally arrested both the accused persons and took their personal search vide memo Ex. PW­28/A and Ex.PW­28/B. PW­30 is Dalbir Singh, who worked at Hotel Kamaal as waiter and then as a Manager. He testified that he had last seen Mohd. Iqbal on 6.6.95 at about 9.00 am or 10.00 am when Mohd. Iqbal had come to Kamaal hotel and then left for calling some electrician. Thereafter, he never saw Mohd. Iqbal. He further stated that on 09.6.1995 he received a telephone call at about 3.00 pm or 4.00 pm from a person who gave his name as Rafiq and said that the dead body of Mohd. Iqbal was in the hill area of Suraj Kund, Faridabad. He gave this information to Mohd. Ramzan, State vs. Irfanuddin : 34 : who along with some persons went in search of the dead body on the same day, but the same could not be found. On 10.6.1995, he received another telephone call from a person, who gave his name as Rafiq that the dead body was in the same area a little ahead near a Cement Pul (bridge) in a flat. On the same day i.e. 10.6.1995, Mohd. Ramzan and others went in search of the dead body.

In their examination u/Sec. 313 CrPC before the court, both the accused persons i.e. Irfanuddin and Azhar have denied all the incriminating evidence put to them and stated that they were falsely implicated in this case. There other two accused namely Sayed Mohd. Azharudin and Yusuf Khan were declared P.O. vide order dated 22.2.1996 I have heard the Ld. Addl. PP for state and counsel for accused persons at length and have gone through the record carefully.

Ld. Addl. PP for state has argued that from the evidence adduced on record the prosecution has established the guilt of the accused persons. It is argued that as per the statement of the witnesses PW­9, PW­ 10, PW­13 and PW­21, the deceased Iqbal was last seen alive in the company of accused Irfan on 6.6.1995 going on his motorcycle No. DL­1CF­ State vs. Irfanuddin : 35 : 2022 being driven by accused Irfan and Md. Iqbal was riding pillion. It is further argued by her that thereafter deceased Iqbal never returned home. A missing report was lodged on 7.6.1995 by his father Mohd. Ramzan in the PS Chandni Mahal. Wireless messages were sent and he was also searched for amongst the relatives and friends, but could not be found. Then, a telephone call was received at Hotel Kamaal and in pursuance thereof the dead body was found in the bushes of Ankher paharis, Sector 21­C, PS NIT Faridabad. It was also argued by her that it has been established that after 4½ months i.e. on 30.10.1995 accused persons were apprehended by Special Staff, North­Distt. and had made a disclosure statement Ex. PW­3/A and Ex. PW­3/B admitting their guilt wherein accused Irfan had admitted having taken away Iqbal with him towards Batkal Lake and having committing his murder. In subsequent interrogation, accused Irfan had also disclosed that thereafter, he had melted the gun from which he had fired at Iqbal. He had melted the said gun at the shop of godown of PW­6 in the presence of PW­1 and thereafter had dumped the melted heap of iron in the dustbin near Zafrabad traffic signal. He had also disclosed that after committing the murder of Iqbal he had removed his ring and spectacles and had given the same to Mohd. Azhar. On his advice, he had broken the same and thrown it on the other side of the boundary wall of kabristan near Hotel Ranjit on Mata Sundri Road, Faridabad, so that no doubt could be cast on State vs. Irfanuddin : 36 : them.

It was also argued by Ld. Addl. PP for state that the ring that deceased was wearing was removed by accused Irfan and had handed over to co­accused Azhar. In pursuance to the disclosure statements, the accused persons pointed out the place of occurrence where Irfan had shot at Iqbal. He also led the police party to the godown/shop of Naseer Ahmad PW­6 at Loha Mandi, Seelampur, where he had melted the pistol used by him in committing the murder. The police had seized the gas cutter, cylinder and rubber pipes vide seizure memo Ex. PW­1/B. He also pointed out the dustbin where the said heap of melted piston iron was dumped by him. The said pointing out memo was Ex. PW­1/B. He also led the police party to the kabristan from the side boundary wall of which, he got recovered the broken pieces of spectacles vide seizure memo Ex. PW­9/C, which was identified by Ramzan (PW­10) as the pieces of spectacles belonged to his son Iqbal and which he was wearing when he had last left the house. In pursuance to the disclosure statement, Azhar had led the police party to his house and had got recovered the ring from a suitcase therein which ring was identified by Ramzan­father of deceased, as the ring belonged to his son. The said ring was seized vide memo Ex. PW­ 9/B. State vs. Irfanuddin : 37 : The ld. Addl. PP for state has also argued that from the testimony of the witnesses the motive behind the murder is also proved as it has been testified by PW­10 Mohd. Ramzan, who had stated that one Azhar and Yusuf also known as Dubai walas (both P.O. in this case) used to come and stay at his hotel Kamaal after giving their fictitious details and that his son was murdered due to the conspiracy between these two dubaiwalas and accused Irfan and Azhar. His son was also friendly with Nusrat­­wife of accused Irfan and had got the letter 'N' tattoed on his right hand. His son had gone with the accused and his wife and family to Manali a few days before and had taken photographs of himself with the wife of accused on which accused had started suspecting Iqbal of having illicit relations with his wife and accused was thus, jealous of Iqbal.

On the other hand, counsel for accused has argued that accused persons have been falsely implicated in this case; that there was no evidence whatsoever to connect the accused persons to the murder of deceased Iqbal; it is also argued by him that the story of deceased being last seen live with accused Irfan is only an after thought which story has been introduced only after the alleged disclosure statements of the accused persons was obtained under threat and coercion. It is argued that accused had not committed the murder of deceased Iqbal; that they had not made any disclosure as alleged State vs. Irfanuddin : 38 : and nothing had been recovered at their instance or from their possession. They were made to sign blank papers and recovery of ring and spectacles had also been planted on the accused persons.

Now, first to take up the fact of the deceased being last seen alive with accused Irfan.

As per the prosecution's case, this fact had been so stated by the witnesses PW­9, PW­10, PW­11, PW­13 and PW­21. It is seen that PW­9 Shakil, PW­13 Salim and PW­21 Jamshed are all brothers of deceased Iqbal. PW­10 was the father of the deceased and PW­11 was a friend of deceased Iqbal.

At the outset it is noted that PW­11 Sadiq Ali did not support the case of the prosecution and was declared hostile. In the witness box, he testified that he had not seen the deceased Iqbal going with accused Irfan on 6.6.1995 at around 10.15 or 10.30 am on the motorcycle No. DL­1CF­ 2022. Even though, he was confronted with portion marked 'L' to 'L' of his statement before the police, he denied this fact totally. PW­9 Shakil was the brother of the deceased and was aged about 16 years at the time of his deposition in the court. That means he was about 12 years of age at the time of the alleged incident. With respect to this fact of having last seen State vs. Irfanuddin : 39 : Mohd. Iqbal alive in the company of accused Irfan, he had testified that in the year 1995 he used to work at Hotel Kamaal, which belonged to his family; that his brother Iqbal was taken by accused Irfan on 6.6.1995 on a Motorcycle No. 2022 from Hotel Kamaal. He stated that his brother Iqbal was sitting rear while accused Irfan was driving the motorcycle. Irfan had taken Iqbal on the motorcycle towards the gate chowk side. He, subsequently, stated that at that time his brother Iqbal, he and accused Irfan were present at the hotel. Accused Irfan had come to the hotel at around 10.00­10.30 am. After coming to the hotel, accused had talked to his brother Iqbal for sometime and thereafter, taken Iqbal on his motorcycle. Thereafter, only Irfan returned and his brother did not return.

PW­10 Mohd. Ramzan--father of the deceased­­ on the other hand had stated that on 6.6.1995 at around 10.00 am, accused Irfan had called for Iqbal from his house to Hotel Kamaal and thereafter his son did not return back either in the hotel or the residence. In the further examination on the subsequent date, the witness had stated that on 6.6.1995 at around 10.00­10.15 am his son Iqbal had left his house in the company of accused Irfan on a motorcycle, which was being driven by accused Irfan.

State vs. Irfanuddin : 40 : PW­13 is Saleem--the other brother of the deceased, who was about 25 years of age at the time of his deposition in the year 1999 and testified that he used to work as Manager in the Hotel Kamaal at night from 8.00 pm to 8.00 am. His brother Iqbal also used to come there and see the work or Management; accused Irfan was close friend of Iqbal since childhood and used to visit and spend most of his time at the guest house. On 6.6.1995, he was present at the above hotel. At around 10.15­10.30 am, he saw his brother Iqbal going with accused Irfan on his motorcycle Yamaha No. 2022. In the cross­examination this PW­13 had stated that on that day, Irfan had come there on his motorcycle. He had come upto the first floor on his counter and at that time Iqbal was in some room. Irfan called for Iqbal in his presence and went down. Iqbal also came in a minute or two and he sat on the pillion of the motorcycle of accused Irfan and went away. Irfan returned to the hotel at noon time, but Iqbal did not come. Irfan enquired about Iqbal. Irfan again came at around 8/9 pm. He also testified that on that day, Iqbal was to be on duty from 8.00 am. He (witness) had left at 8.00 am, but had come back to take his daily expenses of Rs.10/20 from the hotel. He had taken Rs.10/20 from Iqbal and had come down and was waiting for his friends on the ground floor who used to go with him to college.

State vs. Irfanuddin : 41 : PW­21 Jamshed Ali is the other brother of the deceased, who has testified that on the said date on 6.6.1995, at around 10.00­10.15 am, he was standing at Chowk Turkman Gate as he had to hire a three wheeler scooter for going to Mayapuri Kabari Market. He saw that his brother Iqbal was going on his motorcycle with accused Irfan. Motorcycle was being driven by accused Irfan and Iqbal was sitting on the pillion seat of the motorcycle No. 2022.

It is seen that all these witnesses, who had last seen the deceased Mohd. Iqbal going with accused Irfan on his motorcycle are the brothers and father of the deceased. PW­11 Sadiq Ali­­ friend of deceased had turned hostile. Counsel for the accused has argued that they are all interested witnesses and have introduced the story as an after thought after the arrest of accused persons; that, in fact, none of them had actually seen the deceased going with accused Irfan on that day and that is why they had not questioned the accused or named accused Irfan in the missing report or in the FIR lodged by Mohd. Ramzan--father of deceased.

On the other hand, Addl. PP for state has argued that it has come in the evidence of all these witnesses that both accused were good friends of the deceased and they spent most of their time at Kamaal Hotel State vs. Irfanuddin : 42 : every day and were even friendly with their customers and hence they had not doubted their involvement at all in the murder of their son Iqbal.

I am unable to accept this contention of the Ld. Addl. PP for state. How so were close the friendship may have been between the deceased and the accused, if the family members of deceased had last seen their brother/son (deceased) going with the accused and his son never returned, it is not possible that they would not ask accused about the whereabouts of the deceased. Especially, when finally his dead body was recovered after three days. Natural human conduct would have been that these witnesses would have asked the accused, even if they did not doubt him at all, as to where the deceased had gone with him and where he had left him last. But there seems to be no such queries or questioning by the family members or by the police. Leave aside a friend, even if the deceased had gone away with his other brother, in the natural course of human conduct, the father would have asked the brother as to where he had left the deceased last and would have traced his whereabouts from that point. If these witnesses had actually seen the deceased going last with accused Irfan and when Iqbal had not returned, in the natural course of human conduct, it was expected that they would ask Irfan as to where he had last left the deceased and they would have picked the thread for searching him State vs. Irfanuddin : 43 : from that point where he was last left by the accused. But, no such efforts had been made by any family members. All the family members would be so disturbed on Iqbal going missing and then finding his dead body that in the natural course they would have all been after accused Irfan to tell what happened after he had taken the deceased away from the hotel on his motorcycle. Father of the deceased did not even mention this fact of the deceased having gone last with the accused on his motorcycle on that day when he filed his missing report on 7.6.95. Not only that when subsequently, the FIR No.112/95 was registered on 9.6.1995 and when these witnesses were present with the police in the PS and had gone further in search of the dead body, even then none of them had mentioned this fact to the police that Iqbal had last left the house with accused Irfan.

Rather, PW­9 Mohd. Shakil in his cross­examination had stated that all of them i.e. PW­10 Mohd. Ramzan, PW­21 Jamshed and PW­13 Salim were present in the hotel on 09.6.1995 when the police recorded their statements on 09.6.1995. But none of them told the police that their brother Mohd. Iqbal was taken by accused Irfan on his motorcycle No.2022 from Hotel Kamaal. He stated that he had already told his father before 09.6.1995 that his brother Iqbal had gone with accused Irfan on 6.6.95. As per the statement of Mohd. Ramzan PW­ 10, this fact was in his personal State vs. Irfanuddin : 44 : knowledge also. Similarly, PW­21, who is the other brother had also stated in the cross­examination that he had told this fact to his father and his father had told this fact to SI Jai Raj Singh. But in his cross­examination he had stated that he had gone to the PS three days after 6.6.95 and remained there for about one hour and from there they had gone to Faridabad, but he did not tell the police that he had seen Iqbal going with accused Irfan on his motorcycle. He stated that he had told this fact to his father and his father had told this fact to SI Jai Raj Singh. However. PW­10 Ramzan nowhere states that he was so informed by this witness PW­9 or PW­21. Rather, the story given by this witness about last seen deceased Iqbal with accused Irfan, is contradictory to the story given by PW­9 and PW­13 in as much as PW­9 and PW­13 have stated that accused Irfan on 6.6.95 had come to Hotel Kamaal on his motorcycle at around 10.00­10.15 am and had taken deceased Iqbal from there on his motorcycle. Whereas the case of PW­10­ father of deceased is that, that on 6.695 at around 10.00­10.15 am accused Irfan had come to their house on his motorcycle and had taken away Mohd. Iqbal from home. There is contradiction in the statements of PW­ 9 and PW­ 13 also on this fact. While PW­ 9 says that only he was present at the Hotel Kamaal besides Iqbal on 6.6.1995; PW­ 13 says that he was also present there.

Then there is another version as stated by PW­30 Dalbir Singh, State vs. Irfanuddin : 45 : who had worked first as waiter and then as Manager at Hotel Kamaal. He stated that last time he saw Mohd. Iqbal on 6.6.1995 when he had come to Hotel Kamaal and had then left for calling some electrician. When PW­ 10 had lodged the missing report on 7.6.1995 and the FIR on 09.6.95 with the police, then he had only mentioned that his son Iqbal had left from home to call some electrician and never returned thereafter.

That aside the fact remains that if this fact was really within the knowledge of the witnesses, it is not possible that they would neither take the lead from accused Irfan to trace their son Iqbal nor mention his name to the police about having last seen him while lodging the missing report on 7.6.1995 or while recording the FIR on 09.6.1995. Rather, when the FIR was registered in this case on 09.6.1995, on the statement of PW­10, he stated to the police that on 6.6.1995 at around 10.30 am, his son Mohd. Iqbal had left home to call the electrician, but did not return thereafter. In the said statement to the police he also only suspected on one Mohd. Rafiq of Bombay, who was one of his hotel customers.

I am, thus, of the opinion that the factum of deceased Iqbal having been last seen with accused, has not been conclusively established by the prosecution beyond reasonable doubt. The testimony of the witnesses State vs. Irfanuddin : 46 : as discussed above is contradictory to each other and the subsequent conduct of the witnesses vis­a­vis accused Irfannudin also casts a doubt on this story being true.

Besides this, the other point which has been strongly argued by the Ld. Addl. PP for state is that in pursuance to the disclosure statement, the accused person had pointed out the place of occurrence where he had shot at deceased Mohd. Iqbal i.e. bushes of paharis of Sector 21­C, PS NIT Faridabad vide pointing out memo Ex. PW­10/B, and the place where he had melted the pistol used by him in shooting at Iqbal i.e. shop No.30­A, Loha Market, Seelampur, Delhi, vide pointing out memo Ex. PW­1/C. The accused had also led the police party to Seelampur near red light, Zafrabad and pointed out a place where he had thrown the melted pistol in a dustbin, vide memo Ex. PW­1/A. Ld. Addl. PP for state has further argued that accused Irfan had also led the police party and pointed out the dustbin where he had thrown the melted heap of pistol iron. Besides this, it is also argued that both the accused persons had also led the police to the kabristan near Ranjit Road Red Light, Gandhi Mkt. and had got recovered the broken pieces of goggles/spectacles by the side boundary wall of the kabristan, which was seized and sealed vide seizure memo Ex. PW­9/C. The site plan from where the goggle was recovered was Ex. PW­9/D. This State vs. Irfanuddin : 47 : place was also pointed out by accused Azhar vide memo Ex. PW­2/A. The said goggle was identified by PW­10 Mohd. Ramzan to be the same which his son was wearing. It is also argued by Ld. Addl. PP for state that thereafter accused Azhar, while in police custody had led the police party to his house and thereafter he had got recovered a silver ring studded with green coloured stone. The said ring was also identified by PW­10 Mohd. Ramzan as the ring belonging to his son and which his son was wearing when he last left the house. The said ring was seized and sealed vide memo Ex. PW­9/B. This ring and spectacle were produced in the court in sealed condition and were identified by the witness PW­10 as Ex. P­3 and P­2 respectively. The same were also identified by PW­29 Insp. Aas Mohd as the articles which had been recovered at the instance of both the accused persons.

On the other hand, counsel for accused has argued that recovery of these articles at the instance of accused persons was also false and the same had been planted on them only to substantiate the false disclosure statements written by the police.

As regards the recovery of the spectacles, it is seen that the said State vs. Irfanuddin : 48 : spectacles/goggles had been allegedly recovered at the instance of the accused from the kabristan, Ranjit Road near red light, Gandhi Market, Ranjit Nagar Crossing. It had been allegedly disclosed by the accused Irfan as per memo Ex. PW­9/C that after murdering Iqbal, he had removed his goggles and broken the same and thrown it near the boundary wall of the kabristan. On checking inside the kabristan, the same was found lying into pieces by the outer wall of the kabristan, near Rajit Hotel, Mata Sundri Road, Faridabad. It is seen that the said recovery has been made on 11.11.1995 from a public place. The alleged incident is of 6.6.1995 and recovering a broken pair of goggle from a public place after more than five months at the instance of accused persons creates a doubt and does not sound convincing enough to hold the accused persons guilty. It is also seen that while identifying the dead body of his son or while making the missing report or subsequent report, at no point of time did the complainant Mohd. Ramzan PW­10 ever state to the police that his son was wearing a pair of goggles when he left the house/hotel/guest house or that the said goggles were missing when he identified the dead body in the paharis of Faridabad.

As regards the recovery of ring at the instance of accused Azhar,­­­ PW­10 Mohd. Ramzan (father of deceased) had stated that his son Iqbal was wearing silver ring with green nag in it when he left the house State vs. Irfanuddin : 49 : with Irfan on 6.6.1995. He had stated that his son Iqbal used to wear this ring and was wearing this ring when he had gone to Manali with accused and his family. However, it is seen that the witness made no mention about this fact when he identified the dead body of his son Iqbal. There is no statement to this effect that his son was also wearing silver ring with green nag which was missing. There is no statement of this witness to show that he told the police at any time before recovery of this ring that his son Iqbal was wearing the said ring at the time of leaving his house or that accused Irfan had come to his house wearing this ring and he had questioned him or that he suspected accused thereafter. Had he really seen his son Iqbal leaving house wearing this ring, he would not have let go of accused Irfan when he allegedly saw him wearing that ring when he came to his house one and a half month after the death of his son.

Similarly, it is contrary to human conduct that if one was to believe that accused had removed the goggles and ring from the deceased and he had thrown the goggle out of fear of getting identified, it is against the human logic that he would have decided to retain the ring which was another article belonging to the deceased and could have traced to him. Least of all would one accept him to wear the said ring and go to the house of deceased to meet his family. It is against the human conduct that State vs. Irfanuddin : 50 : accused would have removed the said ring from the dead body and then worn it throwing all cautions to winds and wearing the same to the house of the deceased. It is against human logic that he decided to throw one article i.e. goggle of the deceased out of the fear of being identified, but decided to keep his other article with him. If one was to believe that he had actually done so and that he could convince the family of deceased with his answers that deceased had given the said ring to him in Manali, there is no reason why he subsequently (allegedly) gave the ring to Azhar for keeps. If he was scared he would have thrown the ring away and if he felt that he could convince the family of deceased, he could have continued to wear the same. But there is no logic why after having worn the same to the house of deceased, he would give the same to co­accused Azhar for keeping. There is no sufficient evidence to show that the deceased was actually wearing this ring at the time when he last left his house/hotel. There is no evidence that the said ring belonged to the deceased. Only piece of evidence that prosecution has placed on record to prove this fact is the photographs Ex. PW­ 10/J, Ex. PW­ 10/K and Ex. PW­ 10/L produced by PW­ 10, Mohd. Ramzan­­ father of deceased. It is stated by PW­ 10 that these photographs were taken whn his son had gone to Manali and he was seen wearing this ring in Manali. However, on perusal of the photographs, it is not possible at all to say that deceased was wearing any silver ring with a green nag in it in State vs. Irfanuddin : 51 : any of these photographs. It is also seen that PW­ 9 Shakeel in his statement before the court has stated that the ring was silver with a white nag in it. Thus, the recovery of ring at the instance of accused persons after their disclosure would not in itself be of much consequence.

The counsel for accused has placed before me the judgment of Hon'ble Supreme Court in the case 'State of Himachal Pradesh vs. Wazir Chand & Ors.' AIR 1978 SC 315, wherein it was held as under:­ "Where there was long delay between the fatal attack and the arrest of certain accused and recovery of certain articles belonging to the deceased and it was also not clear from the memo of recovery that the articles were recovered on the information of the accused and the accused was not charged for retaining stolen property, the recovery could not be relied upon as suggesting participation of the accused in the fatal attack. This would be so even if recovery was believed to be at the instance of the accused in question."

Ld. Addl. PP for state has also argued that there is sufficient evidence to prove that accused had a motive to do away with Mohd. Iqbal. According to the prosecution, some customers used to come to the guest State vs. Irfanuddin : 52 : house belonging to Mohd. Ramzan, where his children including the deceased also used to work. One person named Boby and his associate used to come and stay in the said hotel. According to the prosecution, that Boby also had connections with other persons in Dubai including one Irfan Goga, who used to deal in gold smuggling. They also used to loot the other passengers bringing gold at the airport. This way rivalry between the two groups of his customers had erupted. The members of the other group including Sayed Azhar and Yusuf (Co­accused who are PO), who had also developed friendship with the present accused persons and Mohd. Iqbal and had murdered Boby and now decided to do away with Iqbal as he was a threat to their smuggling business. It is also the case of the prosecution that Yusuf & Sayed Azhar had roped in accused Irfan to do away with Iqbal for this purpose. Though, accused was not willing in the beginning because of the friendship between them, he agreed to do the same out of greed and also out of revenge i.e. accused Irfan suspected Iqbal of having illicit relations with his wife Nusrat; Iqbal tatood 'N' on his right arm and sometimes back they had gone to Manali for holiday where the deceased had photographed himself with his wife Nusrat, which made accused Irfannuddin jealous of him and hence he had agreed to kill him. State vs. Irfanuddin : 53 : To establish this angle of motive, prosecution had produced PW­11 Sadiq Ali (friend of deceased) and PW­10 Mohd. Ramzan (father of deceased).

PW­11 Sadiq Ali--friend of deceased, whose statement was recorded u/S. 161 CrPC by the police stated that about one year prior to the incident Boby had met Iqbal in his hotel and stated that some persons from Dubai would come to his hotel and he should take care of them and give them full facilities and not ask them for any payment if they did not pay so and to take that money from him. It was also recorded in the statement before the police that one Irfan Goga had telephoned Iqbal from Dubai stating that whoever was brought to the hotel by Boby or his persons, should be looked after and if they did not make any payment, he should inform him so that he could send the amount through hawala. As per the statement before the police, he had also given the names of Rafiq, Riaz, Kumar, Jeetu, Aftab and Vivek who used to stay in the hotel besides Zawar, Anna and Sharif and who had good friendship with Iqbal. It was also recorded in the statement of this witness (PW­11) before the police that Shelly was the sister of Boby. She used to live in Bombay and had come to Kamaal Hotel and had stayed there. Azhar also used to come to the hotel. It was also recorded that one boy Azhar along with 3­4 boys also stayed in State vs. Irfanuddin : 54 : the said hotel in the year 1994; that the second group comprising of that boy Azhar and others did not mix with the first group. Those boys used to talk sometimes to accused Irfan and with him and used to spend money on accused with open heart; that accused Irfan was in the habit of spending money and had no source of income; that said Azhar and Yusuf (of the second group) used to give him money for meeting his expenses and hence Irfan had come under their control; that accused Irfan had also lent his motorcycle for their use; that accused Irfan used to enter their room in the morning and go home by night. It was also recorded that before coming in contact with Sayed Azhar and Yusuf, accused Irfan used to take his expenses from Mohd. Iqbal and after his friendship with Syed Azhar and Yusuf he started staying away from Mohd. Iqbal. Witness PW­11 had also stated in the statement before the police that in March 1995 when Boby was murdered, he had seen Boby going from Hotel with accused persons and Yusuf. It was recorded that on 6.6.1995 at around 10.15­10.30 am, he had seen deceased Iqbal going with accused Irfan on his motorcycle No.DL­1CF­ 2022 and that after death his dead body was found on 10.6.1995 from the bushes of Mewla Maharajpur. However, when the witness appeared in the witness box, he did not support the case of the prosecution. Even when confronted with his statement he denied each and every portion of it. He reiterated that he had not made any such statement with the police; that he State vs. Irfanuddin : 55 : was called in the PS and was given beatings and made to sign on blank papers.

There is no other witness to substantiate this angle of motive. As regards the other angle that accused Irfan used to suspect deceased Iqbal of having illicit relations with his wife, only one witness PW­10 had spoken about the same. In his examination in chief, PW­10 had stated that his son Iqbal was friendly with the wife of accused Irfan; that the name of the wife of the accused was Nusrat and his son had got an alphabet 'N' tatooed on his right arm; that his son had gone with accused Azhar and his family, Irfan and his wife Nusrat to Kullu Manali where Iqbal had got himself photographed with Nusrat--wife of Irfan; that accused Irfan had started suspecting his son of having illicit relations with his wife and was thus, jealous of his son. However, it is seen that this fact has not been disclosed by this witness (PW­10) to the police at any point of time. He has come up with this motive only after the accused stated these facts in his disclosure statement after arrest. Before that his conduct does not show that he ever suspected accused. Had he felt that accused was jealous of his son, he would have been conscious of the fact that his son had last gone with the accused and would have questioned him, but he did not even show his suspicion towards the accused while lodging the missing report to the police State vs. Irfanuddin : 56 : or at the time of lodging the FIR or at any time during the investigations. It is the case of all the family members of the deceased that they never suspected the accused as he was good friend of deceased. This angle has been brought in only after the accused were arrested and made their disclosure statements to this effect. The photographs Ex. PW­10/J, K and L were produced by the witness for the first time in the court and had not been given to the police before that at any time. Hence, it also casts a doubt over the story of the witness (PW­10) that he knew that accused Irfan was jealous of his son or suspected his son of having illicit relations with Nusrat

--wife of accused Irfan. If the witness had been really so suspicious, he would have narrated these facts to the police in his statement and would have submitted the said photographs.

I am, thus, of the opinion that prosecution has also failed to establish conclusively that accused person had a motive strong enough to decide to do away with the deceased Iqbal, who was such a close friend of his.

Ld. Addl. PP for state has argued that there was another set of facts, which pointed to the complicity of the accused persons in committing the crime. It is argued that there is evidence that accused persons had State vs. Irfanuddin : 57 : always accompanied the police party in search of the deceased; that father of deceased had stated in the FIR that he had received a call from one Rafiq at his residence on 09.6.1995. He was a customer of his hotel from Mumbai and hence he suspected that Rafiq had abducted his son Iqbal with wrong intentions. It is argued that in his evidence before the court, PW­ 10 had stated that accused had led the police party to the place of occurrence and had pointed out the place. It is further argued that PW­ 10 and the other witnesses had admitted that accused persons had accompanied the police party whenever they had gone in search of the deceased and that it was the accused who had gone ahead and pointed out at the place from where the dead body was found. This witness had also stated that the second call which he received was that of accused Mohd. Azhar. Rather in his cross­ examination, he also talks of a third call received by him in which he identified the voice of caller as of Mohd. Azhar who informed him that 'where you had gone earlier, you must proceed 1 kmtr. further and on the right side there is a dustbin where dead body can be found'.

I am unable to accept this contention of the Ld. Addl. PP for state. First and foremost, there is no documentary evidence to show that in fact the accused persons at any time accompanied the police party in search of the dead body. When, it is the case of all the family members that they State vs. Irfanuddin : 58 : did not doubt the accused and that he had gone in search of the dead body, then there is no reason why accused was not made the witness to any of the proceedings nor their statements recorded to this effect by the police at any time. Only the statements of the brother and the father were recorded about having gone in search of the dead body. For that matter, the dead body of Iqbal was identified by PW­11, the other friend of the deceased Iqbal and not by the accused persons and hence it is doubtful whether the accused persons had in fact, accompanied the police party in search of the dead body. More so, when the evidence of PW­10 is on shaking grounds, who is not consistent about the facts and the facts disclosed in his statements are not corroborated by the facts disclosed in the statements of the other witnesses. While he has stated that on 10.6.1995, they had gone in search of dead body after having received the call at the hotel again giving the details of the spot where the body could be found, it is seen that in fact, the dead body had already been found by the Haryana Police of PS, NIT Faridabad as per the statement of PW­7 Acharya Prakash Chand, who had first spotted the dead body and PW­25 SI Gian Singh, who had recorded the DD No.9 on the statement of the said Acharya Prakash Chand. There is also the statement of PW­6 SI Om Prakash, Incharge PP Ankher, PS NIT Faridabad, who had gone to the spot with Acharya Prakash and discovered the dead body in the khud bushes of hills of Sector­21, State vs. Irfanuddin : 59 : Faridabad. Hence, even if the accused persons were present there, it cannot be said that they had led the police party to the spot where the dead body was found lying. It is stated by the witness PW­10 Ramzan that accused persons were with them, when they had gone in search of the body. It was also submitted by him that he suspected the accused as he was leading ahead and had asked one of the persons to go towards the dustbin in search of the dead body. However, it is in contradiction to the statement of PW­28 SI Jai Raj Singh, who stated that Ramzan had met him in the morning at around 7.00­7.15 am at Faridabad and had informed him about having received another telephone call in the morning telling where the body was lying. It has been stated by PW­28 that they had thereafter, gone to PP Ankher, as the area described in the telephone call fell within the jurisdiction of that PP. There they were informed by Ct. Sukhbir about having received a call already about lying of a dead body there in the paharis. Hence, this belies the statement of the PW­10 that accused Irfan had been leading ahead of the party which was searching the dead body of Md. Iqbal or had asked anyone to go towards the dustbin to look for the dead body as the dead body had already been found by the police officials of PP Ankher by that time. It is also noted with concern that none of these witnesses i.e. PW­ 9, PW­ 10 and PW­ 13, who had gone in search of the dead body had stated that the dead body had already been recovered by the State vs. Irfanuddin : 60 : Faridabad police in the jungles when they reached the spot where the dead body was found lying.

It is also noted that PW­10 Mohd. Ramazan had stated that the telephone caller had given his name as Rafiq but he identified his voice to be that of Azhar. However, there is no investigation on this point at all. There is nothing to connect that the telephone call was actually made by accused Azhar. If he had really recognized the voice of the caller that it was Azhar, in the normal course he would have immediately told the police while recording the FIR. In the FIR, he had stated that the telephone call had been received by him from one person named Rafiq, who was a customer of his from Bombay. But at that time had he really recognized that the voice was of Azhar, he would have told this fact to the police. But no investigation had been made on this at all. This is besides the fact that it is also doubtful that he had received the call himself. PW­30 Dalbir Singh, Manager of hotel Kamaal had stated that he had received the call and informed about the same to PW­10, who at that time was sitting in the PS. Hence, when the call had not been received by PW­10 there is no question of his being able to identify that the same was in the voice of accused Azhar.

State vs. Irfanuddin : 61 : As regards the cause of death, it is seen that initially the postmortem of the dead body was conducted on 11.6.1995 by PW­24 Dr. S.K. Dhattarwal. According to his report Ex. PW­24/A, there was an incised wound of neck situated in middle anteriorly measuring 15x7 cm bone deep, cutting laryngeal cartilages and other deeper structure with evidence of echymosis. It was opined that cause of death is neck injuries described homicidal in nature i.e. the cause of death was initially opined by the doctor as the incised injury on the neck, which was bone deep. It may be noted that when the dead body was recovered, it was partially skeletonized; foul smell was present with maggots and epidermis peeled off. The left hand was missing. The body was smudged with sand and gnawing effect was present at multiple places. Skin and soft tissues were missing and underlying bones of skull, abdomen, left fire arm etc. were exposed. A perusal of the photographs Ex. PW­19/5 to PW­19/8 taken at that time also show that body could not have been identified as the face was totally decomposed and only the skeleton bones could be seen. Similarly, the skin and soft tissues on the upper limb anteriorly, upper chest anteriorly, lower half abdomen were also missing exposing the bones.

Then, after arrest of the accused persons and their disclosure that he had committed the murder by firing gun shots at the deceased State vs. Irfanuddin : 62 : Mohd. Iqbal, the dead body of the deceased was exhumed from the graveyard and sent for postmortem again. As per report Ex. PW­20/A, of Dr. S.K. Khanna, PW­20, no conclusive opinion regarding cause of death could be given as the body was almost skeletolised and some bones were found missing. There was no evidence suggestive of death due to fire arm injury. However it was also opined that it could also not be possible to rule out that the deceased had sustained fire arm injuries prior to death.

At that time, the blood stained cloths of the deceased had also been examined by the FSL expert, who had been examined as PW­22, Dr. R.K. Kaushal, who gave his opinion that there were holes on the shirt which could have been caused by bullet projectiles. However, it is seen that this shirt had not been produced in the court. The same is stated to have been eaten up by the white ants, which is also doubtful. The witness PW­14 HC Hari Chand has testified that on 17.1.1996, he had handed over the said jamatalashi articles vide RC No.10/MM, photocopy of which was Ex. PW­ 14/E. As per this RC, the jamatalashi articles i.e. purse with passport size photographs and visiting cards were sent to PS Chandni Mahal through SI Jai Raj Singh on that day. It is seen from the testimony of this PW­14 that on that day, the parcels containing the blood earth control and the hairs of the deceased and other parcel containing the cloths of the deceased had State vs. Irfanuddin : 63 : been received back from the FSL Madhuban, Karnal on 13.11.1995. There is no explanation as to why these parcels were also not handed over to SI Jairaj Singh.

To recapitulate, what is there before the court in this case is­­ there is the dead body which had already been recovered; accused persons are arrested five months after the discovery of the dead body. The only thing recovered in pursuance to their disclosure statement is the ring and the goggles, which recovery is also doubtful. The theory of the deceased having been last seen in the company of the accused is also doubtful as appears to be an improvement and after thought after the disclosure made by the accused persons. We only have the circumstantial evidence in this case and the chain of the circumstantial evidence is not so complete as to prove the guilt of the accused persons beyond reasonable doubt. No direct evidence had been adduced by the prosecution to connect the accused with the crime. The circumstances on which the prosecution has based its case are not fully and cogently established and do not point definitely towards the guilt of the accused. There is only the disclosure statement of accused persons, which did not lead to disclosure of any new fact not known to police earlier, not did it lead to disclosure of a fact in exclusive knowledge of the accused.

State vs. Irfanuddin : 64 : I am, thus, of the opinion that the benefit of doubt has to be given to the accused persons. The accused are thus, acquitted of the charges levelled against them. File be consigned to record room. ANNOUNCED IN THE OPEN COURT.

 
ON   DATED  20.12.2007
                              
                                 
J.                                                  (R.KIRAN NATH)
                                             ASJ/ SPL. JUDGE(NDPS) : DELHI.




State vs. Irfanuddin
                                               : 65 :

                                                State vs. Irfanuddin etc.
                                                SC No:   122/1.
                                                FIR NO: 112/95.
                                                PS: Chandni Mahal
                                                U/Sec. 302/364/201/120­B/34 IPC

20.12.2007

Present:           Addl. PP for state 
                   Both accused on bail

Vide separate judgment of date, I have acquitted both the accused persons of the charges levelled against them. File be consigned to record room.

(R. KIRAN NATH) ASJ/Spl. Judge (NDPS) Delhi/ 20.12.2007 State vs. Irfanuddin