Delhi District Court
St. vs . Karim @ Jalela, Hari Dutt & Sartaj @ ... on 1 February, 2019
IN THE COURT OF SHRI SANDEEP YADAV
ADDL. SESSIONS JUDGE02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
SC No. 1661/16
FIR No. 157/13
U/s: 302/34 IPC
PS: Hazrat Nizamuddin
State
Versus
1. Karim @ Jalela
S/o. Sultan Ahmed
R/o. Khusro Park, Basti Nizamuddin
New Delhi.
2. Hari Dutt Pant @ Bahadur
S/o. Manorath Dutt Pant
R/o. H.No. T86, Sarai Kale Khan
New Delhi
Also At:
Goan Sukhsar PS Gadha Chowki
Distt. Kachanpur.
Nepal.
3. Sartaj @ Allaharakha
S/o. Bachan Khan
R/o. H.No. 816, Pocket No. 11, Sec. 66
Narela, New Delhi.
..... Accused
Date of Institution : 30.09.2013
Date of Arguments : 14.01.2019
FIR No. 157/13 1/25
St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha
Date of Judgment : 29.01.2019
Judgment : Accused Karim @ Jalela -
Convicted.
Accused Hari Dutt - Acquitted.
Accused Sartaz @ Allaharakha -
Convicted.
JUDGMENT
1. Prosecution version flowing from charge sheet is that an information regarding stabbing of a person in graveyard, Lala Lajpat Rai Marg, was received at PS Hazrat Nizamuddin on 28.05.2013. The said information was diarized vide DD No. 22A and thereafter, SI Chhail Bihari (PW 16) alongwith one constable reached Kabristan, Punch Piran at Lala Lajpat Rai Mark. Inspector Binay Singh (PW21) alongwith Ct. Upkar also reached there at about 4 PM and found that one boy aged about 2425 years was lying unconscious in pool of blood inside the kabristan. Crime team was called. Government vehicle was called at the spot. Injured was taken to AIIMS Trauma Centre through SI Abhishek (PW7). Inspector Binay Singh made inquiries at the spot and reached AIIMS Trauma Centre with SI Chhail Bihari. Name of injured was revealed as Raja. Inspector Binay Singh collected MLC of injured and injured was declared brought dead by the doctor. Inspector Binay Singh prepared ruqqa Ex. PW7/A and sent the same to Police Station through SI Abhishek and FIR under Section 302 IPC was registered. Thereafter, Inspector Binay Singh (PW21) came back at the spot. Crime team inspected the place of occurrence and Inspector Binay Singh (PW21) collected crime team report. Inspector Binay Singh (PW21) FIR No. 157/13 2/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha collected blood in gauze, blood stained soil as well as plain soil from the spot and seized the same vide seizure memo's Ex. PW16/A, Ex. PW16/D. Pair of chappal was also lifted from the spot and seized vide seizure memo Ex. PW16/B. On 29.05.2013, Inspector Binay Singh (PW21) prepared inquest papers and dead body of deceased was identified by his relatives. On the application of Inspector Binay Singh (PW21), postmortem on the body of deceased was conducted and dead body was handed to the relatives of deceased. Inspector Binay Singh (PW21) recorded statement of witnesses including Mujib Ahmad, who had informed police about the incident at 100 number. Inspector Binay Singh (PW21) also recorded statements of three children who were playing near the place of occurrence at the time of incident. From the version given by witnesses, Inspector Binay Singh (PW21) came to know that deceased Raja was last seen in the company of accused Karim @ Jalela and Allaharakha. Thereafter, search of suspects was conducted and on 04.06.2013, on the basis of secret information, accused Hari Dutt and Karim @ Jalela were apprehended from under Defence Colony Flyover. Both accused Hari Dutt and Karim @ Jalela disclosed that their two other associates namely 'X' (juvenile in conflict with law) and Sartaz @ Allaharakha were also with them at the time of incident and Raja was beaten by them on the issue of dividing of share of booty obtained by them after snatching incident in the area of PS Lodhi Colony. Accused Karim @ Jalela took police party to MCD Toilet near Sun Light Colony towards Sarai Khale Kha and from the garbage lying near railway track, got recovered one blood stained tshirt which he disclosed to have worn at the time of incident. The said tshirt was seized FIR No. 157/13 3/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha vide seizure memo Ex.PW7/L. Thereafter, accused Karim @ Jalela and Hari Dutt took police party to one Dinesh Paswan to whom one mobile phone was sold by accused Sartaz @ Allaharakha which contained his voice recording. Dinesh Paswan was interrogated and produced one mobile phone of Karbonn make which he stated to have purchased from accused Sartaz @ Allaharakha. The mobile phone was seized and checked and it was found to contain memory card which had the voice of accused Sartaz @ Allaharakha talking to one lady wherein he admitted that he had caused death of Raja. The mobile phone was seized vide seizure memo Ex. PW7/D. The conversation contained in the mobile phone was saved in the official computer from the memory card of mobile phone by Inspector Binay Singh. On 06.06.2013, SI Dinesh apprehended 'X' (juvenile in conflict with law) from Madhubani, Bihar and brought him to Delhi and produced him in the concerned Court and his police custody remand was obtained. On 08.06.2013, 'X' got recovered one shirt and a knife from a place in defence colony. Since 'X' was juvenile in conflict with law at the time of commission of crime, separate proceedings qua him were carried out. On 21.03.2013, accused Sartaz @ Allaharakha surrendered in Saket Court and was arrested vide arrest memo Ex. PW15/A with permission of learned Metropolitan Magistrate. Two days police custody of accused Sartaz @ Allaharakha was obtained. During police custody, accused Sartaz @ Allaharakha took police party to defence colony ganda nala and got recovered one shirt and one knife. Accused Sartaz @ Allaharakha disclosed that the shirt which was recovered at his instance was worn by him at the time of incident. The shirt and knife were seized vide memo Ex. PW15/D FIR No. 157/13 4/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha and E. On 17.07.2013, SI Mahesh Sharma, draftsman from Crime Branch was called and he took rough notes and measurement from the spot for preparing site plan. Exhibits of case were sent to CFSL, CBI, Lodhi Road for examination on 19.07.2013. On 17.08.2013, statement of 'R' (real identity concealed as he is a child witness) was got recorded under Section 164 Cr.PC. On 12.08.2013, after obtaining permission from the Court, voice sample of accused Sartaz @ Allaharakha was obtained and sample voice and voice contained in the mobile phone which is stated to have been sold by accused Sartaz @ Allaharakha to Dinesh Paswan were sent to CFSL, CBI, Lodhi Road for examination. After conclusion of investigation, charge sheet was laid before the Court. Accused Karim @ Jalela, Sartaz @ Allaharakha and Hari Dutt were chargesheeted under Section 302/34 IPC. Committal proceedings were completed and all three accused persons were charged under Section 302 IPC. Accused persons pleaded not guilty which necessitated the trial and prosecution examined 24 witnesses to substantiate the charge against accused. Accused persons were examined under Section 313 Cr.PC wherein they denied all incriminatory evidence and circumstances against them. No defence witness was examined.
2. I have heard Sh. A.T. Ansari, learned Addl. Public Prosecutor for State as well as Sh. Ramesh Rawat, learned Legal Aid Counsel for all accused and carefully perused the record.
3. Submissions of Sh. Ramesh Rawat, learned Legal Aid Counsel for all accused may be noted down as under :
FIR No. 157/13 5/25St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha
(i) PW 1 Zakir Hussain did not identify accused Sartaz @ Allaharakha;
(ii) PW 2 Mujeeb Ahmed did not identify any of accused
persons;
(iii) PW 3 Mohd. Umar turned hostile and was not able to
identify accused persons;
(iv) In cross examination, PW 5 Ms. Guljar deposed that she
has not seen accused persons;
(v) PW 8 Dinesh Paswan deposed that mobile phone was
sold to him by accused Karim @ Jalela while case of prosecution is that the mobile phone belonged to accused Sartaz @ Allaharakha and was sold by accused Sartaz @ Allaharakha to PW 8;
(vi) PW 8 Dinesh Paswan could not identify the mobile phone which he purchased from accused Sartaz @ Allaharakha in the Court;
(vii) PW 10 'R' did not name accused Hari Dutt in his deposition as one of the persons who assaulted deceased Raja;
(viii) PW 10 'R' identified one of the accused as 'X' (juvenile in conflict with law) in the Court while proceedings against juvenile in conflict with law were being conducted before Juvenile Justice Board and 'X' was not present in the Court when PW 10 was examined ;
(ix) PW 10 'R' deposed that Raja was aged about 15 years while as per postmortem report, age of Raja was approximately 2425 years; and
(x) PW 8 Shabana Parveen in her deposition has stated that FIR No. 157/13 6/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha the person who came to call her brotherinlaw Raja was wearing yellow shirt and in next part of her deposition, she has identified the person who had spoken with Raja as Hari Dutt. However, the yellow shirt was recovered pursuant to disclosure statement of accused Sartaz @ Allaharakha.
4. PW 1 Zakir Hussain, inter alia, deposed that on 28.05.2013, he alongwith his friend Kitab was going to take petrol on their bike, he was beaten by 45 persons and robbed of Rs.5,000/; PW 1 Zakir Hussain raised alarm and thereafter, his friend Bobby reached the spot who apprehended one of those boys whose name came to be known as Allaharakha; Allaharakha is stated to have told PW 1 that accused persons namely Raja and his associates have given beating to him and robbed him. However, PW 1 Zakir Hussain deposed that he cannot identify accused Allaharakha in the Court due to lapse of time. PW 1 Zakir Hussain was declared hostile and was cross examined by learned Addl. Public Prosecutor but he did not support the case of prosecution.
5. PW 2 Mujeeb Ahmed in his statement before police is stated to have seen accused persons committing the crime and he made call at 100 number. However, PW 2 also turned hostile and deposed that he cannot identify the boys who were apprehended in kabristan at the time of incident.
6. PW 3 Mohd. Umar also turned hostile and stated that he has FIR No. 157/13 7/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha not given any statement to police.
7. PW 4 ASI Sajjan Kumar was posted as ASI/Incharge Crime Branch on 28.05.2013. He inspected the spot and prepared scene of crime report Ex. PW4/A.
8. PW 5 Ms. Gulzar, who is wife of deceased, inter alia, deposed that on 28.05.2013 at about 7 AM, three persons came to her house to call her husband and thereafter, her husband accompanied those persons and did not return back; on the same day at about 4 PM, PW 5 came to know that her husband was murdered; PW 5 pointed towards accused Karim, Hari Dutt and Allaharakha and deposed that these the are persons who came to her house and took her husband at about 7 AM on 28.05.2013. PW 5 further deposed that on 11.05.2013, she delivered a female child and thereafter, remained in hospital for about eight days. PW 5 further deposed that Shabana Parveen (PW8) who is her sister and used to reside with her due to her illness. PW 5 deposed that her sister was also present at her house to look after her on 27.05.2013. In cross examination, PW 5 deposed that she has not seen accused persons. PW 5 further deposed in cross examination that on the date of incident in the morning, she was admitted in hospital and returned back to her house at about 3:30 PM. PW 5 further deposed that accused Allaharakha is not present in the Court.
9. It is obvious that PW 5 Ms. Gulzar after identifying the accused in the Court as the same persons who had taken her husband with FIR No. 157/13 8/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha them on 28.05.2013, took U turn in cross examination and deposed that she has not seen accused persons. Therefore, identity of accused as same persons who have committed the crime was not established from deposition of PW 5.
10. Ms. Shabana Parveen, sisterinlaw of deceased was examined as PW 8, (it is clarified that two witnesses namely Shabana Parveen and Dinesh Paswan were examined as PW 8 and for the sake of convenience, they will be referred to by their names). Ms. Shabana Parveen, inter alia, deposed that her younger sister was married with Raja Arif; on 28 th date of a month in the year 2013, she had gone to meet her sister, who was is hospital; Ms. Shabana Parveen met her brotherinlaw Raja Arif and stayed in his jhuggi as her sister was attending her sick daughter in Safdarjung Hospital; next day at about 7 AM, one person who was having some injury in his feet and was wearing peeli shirt came to call the brotherinlaw of Shabana Parveen for taking him for some work; two more persons were standing at a little distance; Raja went alongwith them; Shabana Parveen remained at the house; at about 1 AM, Shabana Parveen received telephonic call from her sister to search Raja in the nearby area; Raja could not be searched by Shabana Parveen; later Shabana Parveren came to know at about 4:30 PM that Raja was murdered in the area of Panch Piran Graveyard. Ms. Shabana Parveen identified the dead body of Raja in AIIMS Hospital. Ms. Shabana Parveen deposed that she can identify those persons who had taken Raja with them on that day. Ms. Shabana Parveen after having a look at accused persons in the Court identified three accused FIR No. 157/13 9/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha persons being same persons who had taken Raja with them. Ms.Shabana Parveen pointed towards accused Hari Dutt as the person who had talked with her and spoken with Raja whereas two other accused persons were standing at a little distance. Ms. Shabana Parveen deposed that she knew one of the accused as Allaharakha and pointed towards Karim saying that his name is Allaharakha. Ms. Shabana Parveen was allowed to be cross examined by learned Addl. Public Prosecutor and thereafter, Ms. Shabana Parveen correctly identified accused Allaharakha. However, in cross examination, Ms. Shabana Parveen deposed that persons who met Raja and called him to come with him was accused Hari Dutt. Ms. Shabana Parveen deposed that she could not see other accused persons as they were standing a little distance and therefore, she could see their back portion only. Ms. Shabana Parveen admitted that she was told by police officials one day after the incident that accused Allaharakha and Karim were involved in the death of her brotherinlaw. Ms. Shabana Parveen further admitted that she has not seen accused Karim and Allaharakha on the date of incident. Thus, net result is that Ms. Shabana Parveen clearly identified accused Hari Dutt as the person who had spoken with Raja while she failed to identify the two other accused.
11. PW 6 HC Mohd. Tahir was working as Duty Office on 28.05.2013 at PS Hazrat Nizamuddin and registered FIR in the present case on the basis of ruqqa and DD No. 22A given to him by SI Abhishek. PW 6 HC Mohd. Tahir also recorded DD No. 26A on 28.05.2013 at 6:25 PM, when information was received from AIIMS Trauma Centre that injured FIR No. 157/13 10/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha Raja was declared brought dead by the doctor.
12. PW 7 SI Abhishek Singh went to the spot with government vehicle on the request of Investigating Officer Inspector Binay Singh and took the dead body of deceased Raja from place of occurrence to AIIMS Trauma Centre. As per deposition of PW 7, after sometime, Inspector Binay Singh also reached there, prepared ruqqa Ex. PW7/A and handed over same to PW 7 for registration of FIR. PW 7 SI Abhishek Singh got the FIR registered and came to the spot and handed over copy of FIR and ruqqa to Inspector Binay Singh. PW 7 SI Abhishek Singh was associated with investigation of this case on 04.06.2013, when accused Karim @ Jalela and Hari Dutt were apprehended from under Defence Colony Flyover on the basis of secret information. PW 7 SI Abhishek Singh again joined investigation on 05.06.2013 when secret informer informed the Investigating Officer that one mobile phone was sold by accused Allaharakha to a kabadiwala at Okhla Railway Station. PW 7 SI Abhishek Singh alongwith Investigating Officer Inspector Binay Singh and other police officials reached there and apprehended Dinesh Paswan, who according to PW 7, identified both accused Karim @ Jalela and Hari Dutt as the same persons who came to him with one more person for selling mobile phone and he purchased the same for Rs.500/. PW 7 SI Abhishek Singh proved the seizure memo of mobile phone as Ex. PW7/D. PW 7 SI Abhishek Singh was also part of investigating team which was led by accused Karim @ Jalela and juvenile in conflict with law on 08.06.2013 to service road near Defence Colony. PW 7 SI Abhishek Singh was also FIR No. 157/13 11/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha witness to recovery of blood stained black shirt at the instance of 'X'. PW 7 SI Abhishek Singh also deposed about recovery of one blood stained green colour tshirt at the instance of accused Karim @ Jalela and according to PW 7 it was disclosed by accused Karim @ Jalela that said tshirt was worn by him at the time of incident. The said tshirt was seized vide seizure memo Ex. PW7/L. PW 7 SI Abhishek Singh further deposed that on 12.08.2013, he went to CFSL, CBI, Lodhi Road on the direction of Inspector Binay Singh for recording voice sample of Allaharakha; Allaharakha was produced before CFSL, CBI, Lodhi Road from Tihar jail; CFSL officials recorded voice sample of Allaharakha and handed over one kingston 2 GB Micro SD card to PW 7 SI Abhishek containing voice sample of accused Allaharakha which was seized vide seizure memo Ex. PW7/M and PW 7 SI Abhishek Singh deposited the same in the malkhana on the direction of Investigating Officer. PW 7 Abhishek Singh further deposed that on 11.08.2013, Inspector Binay Singh prepared compact disc of conversation found in the data card of mobile phone which was produced by Dinesh Paswan and Inspector Binay Singh kept the said compact disc in an envelope and seized the same vide seizure memo Ex. PW7/N. PW 7 SI Abhishek Singh identified accused Karim @ Jalela, Hari Dutt and Allaharakha in the Court. PW 7 SI Abhishek Singh also identified the mobile phone which was produced by Dinesh Paswan and knife and shirt recovered at the instance of 'X', the tshirt recovered at the instance of accused Karim @ Jalela, compact disc seized by Investigating Officer and micro SD card which was seized by PW 7 after voice of accused Allaharakha was recorded by CFSL, the compact disc which was prepared FIR No. 157/13 12/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha by Inspector Binay Singh on the official computer after taking data from memory card of mobile phone recovered from Dinesh Paswan containing voice of accused Allaharakha.
13. PW 7 SI Abhishek Singh was cross examined by learned defence counsel and he denied the suggestion that voice of accused Allaharakha was forcibly got recorded on the mobile phone to implicate him in this case.
14. PW Dinesh Paswan (PW8), inter alia, deposed that he was present at his place of work and one boy came to him with mobile phone of white colour; there were two other boys who had come alongwith that boy; Dinesh Paswan purchased the mobile phone on payment of Rs. 500/. Dinesh Paswan identified accused Karim @ Jalela as the person who had sold the mobile phone to him. Dinesh Paswan then deposed that after sometime police came in search of that mobile phone and Dinesh Paswan informed the police about purchasing of said mobile phone which was seized by police vide seizure memo Ex. PW7/B.
15. PW 10 'R' is the star prosecution witness as he is stated to be playing with the children near the place of occurrence when the offence was committed. PW 10 'R' who was minor was examined in vulnerable witness deposition complex in order to assess the maturity of witness and to understand as to whether he is competent witness. Learned Predecessor before recording the deposition of PW 10 'R', put certain questions to him FIR No. 157/13 13/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha and after being satisfied that the witness is intelligent and understands question and can answer them in proper manner, learned Predecessor proceeded to examine the witness.
16. PW 10 'R', inter alia, deposed that on the date of incident at about 3 PM, he was bringing food and when he reached near kabristan at Nizamuddin, he saw that some persons were stabbing Raja by knife; Raja was earlier known to PW 10 as he used to work on a khira shop where PW 10 also used to work earlier; PW 10 'R' saw that two persons were stabbing while the third one was holding Raja; PW 10 'R' gave names of those persons as Jalela, Allaharakha and 'X', juvenile in conflict with law. PW 10 'R' further deposed that Jalela and Allaharakha were stabbing Raja on his stomach and chest with knife and 'X', juvenile in convict with law, had caught hold of Raja from back side. PW 10 'R' further deposed that he can identify accused persons if shown to him. PW 10 'R' was shown accused Jalela through video link and he identified accused Jalela as the same person who stabbed Raja with knife. PW 10 'R' was also shown accused Allaharakha through vide link and he identified accused Allaharakha as the same person who stabbed Raja with knife. The third accused was identified by PW 10 'R' as 'X' who had caught hold of Raja. While recording the testimony of PW 10 'R', the Court observed that witness has repeatedly said that accused persons will kill him after coming out of jail. PW 10 'R' further deposed that two of his friends were with him at the time of incident and persons asked him to go from there and in the meanwhile, one person came on motorcycle and after seeing him, accused persons ran away from FIR No. 157/13 14/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha the spot. PW 10 'R' further deposed that police made inquiry from him about the incident and he told true facts to police. PW 10 'R' further deposed that he came to the Court and appeared before a Judge where his statement was recorded. PW 10 'R' identified his signatures on his statement Ex. PW10/A recorded under Section 164 Cr.PC. In cross examination, PW 10 'R' deposed that Raja was aged about 15 years. PW 10 'R' further deposed that he has never seen accused persons in his area prior to the date of incident. While being cross examined, PW 10 deposed that accused were shown to him in the Police Station when he went there. However, when PW 10 was reexamined by learned Addl. Public Prosecutor with the permission of Court, he deposed that he has not seen accused persons in Police Station. PW 10 'R' denied the suggestion that he has deposed in the Court at the instance of police officials simply because he was playing in the park at the time of incident.
17. PW 12 Inspector Mahesh Kumar, who is Draftsman posted in Crime Branch, PHQ, visited the place of occurrence on the request of police of PS Hazrat Nizamuddin, took rough notes and measurement of place of incident at the instance of Inspector Binay Singh and prepared scaled site plan Ex. PW12/A.
18. Next important witness is PW 21 Inspector Binay Singh who is the Investigating Officer in this case. PW 21 Inspector Binay Singh deposed about proceedings conducted and steps taken by him before and after registration of FIR. PW 21 Inspector Binay Singh, inter alia, deposed FIR No. 157/13 15/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha that on 28.05.2013, after receiving information regarding stabbing of a person in graveyard vide DD No. 22/A Ex.PW 21/A. SI Chhail Bihari alongwith Constable went to the spot; PW 21 Inspector Binay Singh alongwith Ct. Upkar also reached Kabristan, Panch Piran at Lala Lajpat Rai Marg at about 4 PM and found one boy aged about 2425 years who was lying unconscious in a pool of blood inside the kabristan, crime team was called; injured was taken to AIIMS Trauma Centre through SI Abhishek in government vehicle; PW 21 Inspector Binay Singh made inquiries at the spot and thereafter, reached AIIMS Trauma Centre with SI Chhail Bihari, collected MLC of injured Raja who was already declared dead by the doctor; PW 21 Inspector Binay Singh prepared ruqqa Ex. PW7/A on DD No. 22A and give the same to SI Abhishek; SI Abhishek came back to the spot; crime team inspected the spot and PW 21 Inspector Binay Singh collected crime team report. PW 21 Inspector Binay Singh further deposed that from the spot, blood in gauze, blood stained soil as well as plain soil was lifted and sealed. PW 21 Inspector Binay Singh further deposed that pair of chappal was also lifted from the spot. PW 21 Inspector Binay Singh then deposed about preparation of inquest papers on 29.05.2013 and postmortem of deceased pursuant to application Ex. PW20/C moved by PW 21. PW 21 Inspector Binay Singh further deposed that he examined public witnesses and came to know that deceased Raja was lastly seen in the company of accused Karim @ Jalela and Allaharakha @ Sartaz. PW 21 Inspector Binay Singh further deposed about arrest of accused Karim @ Jalela and Hari Dutt on 04.06.2013 on the basis of secret information. PW 21 Inspector Binay Singh deposed that both accused were produced in the FIR No. 157/13 16/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha Court and their police custody remand was obtained on 05.06.2013. PW 21 Inspector Binay Singh further deposed that accused Karim @ Jalela took police party to MCD toilet near Sun Light Colony towards Sarai Kale Kha and from near garbage lying near railway track, he got recovered one blood stained tshirt which he disclosed to have been worn by him at the time of incident, the tshirt was seized vide seizure memo Ex. PW7/L. PW 21 Inspector Binay Singh then deposed that accused Karim @ Jalela and Hari Dutt took police party to Dinesh Paswan to whom one mobile phone was sold by accused Allaharakha @ Sartaz which contained voice recording; Dinesh Paswan produced mobile phone of Karbonn make which he purchased from accused Allaharakha @ Sartaz; the mobile phone was seized and was checked and it was found to contain memory card which had voice of Allaharakha talking to a lady admitting that he has caused death of Raja. PW 21 Inspector Binay Singh further deposed that he prepared script Ex. PW21/D of voice conversation found in the memory card. PW 21 Inspector Binay Singh further deposed that this conversation was saved in official computer from the memory card of mobile phone. PW 21 Inspector Binay Singh then deposed about arrest of accused Allaharakha on 21.06.2013 at Saket Courts with the permission of concerned Court. PW 21 Inspector Binay Singh deposed that two days police custody remand of accused Allaharakha was obtained and accused Allaharakha took police party to defence colony ganda nala and pointed out the place in the nala under stone from where one shirt and one knife was got recovered. Accused Allaharakha disclosed that the shirt which was recovered was worn by him at the time of incident. Sketch of knife Ex. PW15/C was FIR No. 157/13 17/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha prepared and knife was seized vide seizure memo Ex. PW15/E while shirt was seized vide seizure memo Ex. 15/D. PW 21 Inspector Binay Singh then deposed that on 19.06.2013, exhibits of case were sent to CFSL,CBI, Lodhi Road through Ct. Rajender. PW 21 Inspector Binay Singh then deposed about recording of statement under Section 164 Cr.PC of 'R' on the application Ex. PW21/G moved by PW 21. PW 21 Inspector Binay Singh then deposed that he had obtained copy of statement under Section 164 Cr.PC from learned Metropolitan Magistrate vide application Ex. PW21/H. PW 21 Inspector Binay Singh further deposed that on 11.08.2013, he had copied data from memory card of mobile phone of Allaharakha and said data was converted in the compact disc and the said compact disc was sealed in an envelop with the seal of BS and was seized vide memo Ex. PW 7/N and deposited in the malkhana. PW 21 Inspector Binay Singh then deposed that on 12.08.2013, SI Abhishek had taken permission from the Court for recording voice sample of accused Allaharakha and took him to the office of CFSL, CBI, Lodhi Road, where sample of voice of accused Allaharakha was got recorded. The voice sample of accused Allaharakha was got converted on a SD card of 2 GB memory Kingston make which was seized by SI Abhishek. PW 21 Inspector Binay Singh deposed that result of biological examination Ex. PW21/J and serological examination Ex. PW21/K was obtained by him and was filed in the Court vide his application Ex. PW 21/I. PW 21 Inspector Binay Singh then deposed that result of CFSL regarding voice sample from physics division was also obtained and result of CFSL Ex. PW21/L was filed through supplementary charge sheet. PW 21 Inspector Binay Singh was cross examined by learned FIR No. 157/13 18/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha defence counsel.
19. Postmortem on the body of deceased was conducted by Dr. Asharam Gorchiya, Senior Resident, Trauma Centre, AIIMS. The postmortem report prepared by Dr. Asharam Gorchiya was proved as Ex. PW23/A in the testimony of PW 23 Dr. Sanjeev Lalwani, who deposed that he is aware of handwriting and signatures of Dr. Asharam Gorchiya as he has worked under PW 23 during his tenure in the hospital. PW 23 Dr. Sanjeev Lalwani deposed that cause of death given by Dr. Asharam Gorchiya in this case is shock and hemorrhage as a result of multiple stab injuries to chest and abdomen caused by a sharp object.
20. PW 24 Amitosh Kumar, Sr. Scientific Officer (Physics), CFSL, CBI was assigned the task of examining two sealed parcels containing one compact disc and one micro SD card received from CFSL from the office of Addl. DCPI (SouthEast). PW 24 Amitosh Kumar examined the compact disc and micro SD card which were found to have contained questioned conversation and specimen voice sample of accused Allaharakha. PW 24 Amitosh Kumar further deposed that he examined aforesaid exhibits qua specimen voice sample of accused Allaharakha and found that voice mark Ex. Q1(I)(A) was probable voice of accused Allaharakha contained in exhibit Mark S1(I)(A) on the basis of auditory and spectrographic examination. PW 24 Amitosh Kumar proved his report as Ex.PW21/C. FIR No. 157/13 19/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha
21. Evidence adduced by prosecution has to be analyzed and assessed to find out as to whether charge as framed against accused persons has been proved or not. So far as accused Hari Dutt is concerned, the only evidence against him is the deposition of Shabana Parveen (PW8), sister inlaw of deceased, who identified him as the person who met deceased Raja at his house and called him to take with him. There is no other evidence showing involvement of accused Hari Dutt in the crime. After arrest of accused Hari Dutt, no incriminatory fact or circumstance was discovered pursuant to his disclosure statement. Recovery of facts pursuant to disclosure statement of accused Hari Dutt viz. One golden chain, one wrist watch, some coins and Rs. 1,500/ were not connected with this case.
22. It is the case of prosecution that accused Hari Dutt and Karim @ Jalela disclosed name of other accused persons involved in this case. However, name of other accused persons were already known to police through statement of 'R' recorded under Section 161 Cr.PC on 28.05.2013.
23. Another recovery effected on the basis of disclosure statement of accused Hari Dutt is the mobile phone which was sold by accused Allaharakha to Dinesh Paswan. However, in his deposition in the Court, Dinesh Paswan stated that mobile phone was sold to him by accused Karim @ Jalela. Therefore, recovery of mobile phone from Dinesh Paswan pursuant to disclosure statement of Hari Dutt will not prove his involvement in the crime. Even otherwise, the said mobile phone is not an incriminatory evidence against accused Hari Dutt as will be discussed in FIR No. 157/13 20/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha the later part of this judgment.
24. Sole testimony of Shabana Parveen (PW8) that accused Hari Dutt had spoken with Raja and called him to take with him is not sufficient to convict accused Hari Dutt. Accordingly, it is concluded that charge under Section 302/34 IPC could not be proved against accused Hari Dutt and he deserves acquittal.
25. So far accused Karim @ Jalela and Sartaz @ Allaharakha are concerned, PW 10 'R'' is a relevant witness. Statement of PW 10 'R' was recorded under Section 164 Cr.PC. However, Investigating Officer chose not to cite learned Metropolitan Magistrate, who recorded statement of PW 10 'R' under Section 164 Cr.PC, as prosecution witness in the charge sheet. However, PW 10 'R' while being examined in the Court deposed that he had come to the Court and appeared before a Judge where inquiry was made and his statement was recorded. PW 10 'R' further deposed that he put his thump impression on his statement recorded before learned Metropolitan Magistrate. Statement under Section 164 Cr.PC was shown to PW 10 'R' and after having a look at the same, PW 10 'R' identified his thump impression at point A on statement Ex. PW 10/A. Hence, statement Ex. PW 10/A recorded by learned Metropolitan Magistrate was proved in accordance with law. Even otherwise, in Gurvind Palli Annarao Vs. State of Andhra Pradesh reported at 2003 Crl. L.J 3253, it has been specifically observed that statement of a witness recorded under Section 164 Cr.PC is a public document which does not require any formal proof. Hence, FIR No. 157/13 21/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha summoning of Magistrate by Sessions Court to prove contents of said document is improper.
26. In his statement recorded under Section 164 Cr.PC, PW 10 'R' has stated that he was playing with his friends at kabristan and he knew deceased Raja as he was his friend. PW 10 'R' has further stated in his statement under Section 164 Cr.PC that he saw Raja while being stabbed by accused Allaharakha, Karim and 'X' (juvenile in conflict with law). PW 10 'R' has specifically mentioned in his statement under Section 164 Cr.PC that he knew Allaharakha, Karim and 'X' as they live in a nearby street. While being examined in the Court, PW 10 'R' reiterated the version given by him in his statement under Section 164 Cr.PC and identified accused Karim and Allaharakha as same persons who had stabbed deceased Raja with knife. The fact that PW 10 'R' in his testimony wrongly identified third accused as 'X' (juvenile in conflict with law) will not make PW 10 an unreliable witness. PW 10 'R' is consistent so far as identification of accused Sartaz @ Allaharakha and Karim @ Jalela is concerned, considering the version given by him in his statement under Section 164 Cr.PC. Accused persons have not come up with any convincing explanation as to why PW 10 'R' has identified them, if they were not involved in the incident. Accused persons have not hinted at any previous enmity between them and PW 10. On the other hand, accused persons appeared to have threatened PW 10 'R' at some point of time as PW 10 'R' while being examined in the Court repeatedly said after seeing accused persons that they will kill him after coming out of jail. Therefore, identity FIR No. 157/13 22/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha of accused Karim @ Jalela and Sartaz @ Allaharakha as persons who assaulted deceased Raja with knife is clearly established from the statement Ex. PW 10/A given by PW 10 before the learned Metropolitan Magistrate under Section 164 Cr.PC as well as his testimony before the Court.
27. Testimony of PW 10 'R' is corroborated by scientific evidence available on record. Exhibits of case viz. Blood with cotton, earth control, blood stained soil, shirt of 'X', tshirt of accused Karim @ Jalela, shirt of accused Sartaz @ Allaharakha, knife recovered from accused Sartaz @ Allaharakha, clothes of deceased Raja and dried gauze piece of deceased, were sent for examination to Central Forensic Science Laboratory. Investigating Officer/PW21 Inspector Binay Singh collected result of Biological Examination Ex. PW21/J and Serological Examination Ex. PW 21/K. As per CFSL result Ex. PW21/J (Biological), DNA profile generated from the blood on shirt of accused Sartaz @ Allaharakha and tshirt Karim @ Jalela and knife recovered from accused Sartaz @ Allaharakha was found to be consistent with DNA profile of deceased Raja. Thus, the version given by PW 10 'R' that deceased was assaulted with knife by accused Karim @ Jalela and Sartaz @ Allaharakha is fully corroborated by CFSL result (Biological Examination Ex. PW 21/J) as well as postmortem report Ex. PW23/A according to which cause of death in this case is shock and hemorrhage as a result of multiple stab injuries to chest and abdomen caused by a sharp object. Further, as per Serological Report Ex. PW 21/K, blood group detected from blood sample taken from the tshirt of accused Karim @ Jalela and knife recovered from accused Sartaz @ Allaharakha FIR No. 157/13 23/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha matched with the blood group of deceased Raja.
28. This is the clinching evidence which linked accused Karim @ Jalela and Sartaz @ Allarahakha with the crime committed in this case. Accused persons have not explained as to how DNA profile of blood found on their shirt/tshirt as well as on the knife recovered from accused Sartaz @ Allaharakha matched with the DNA profile of deceased Raja, if they are innocent.
29. Another scientific evidence viz. Report of Forensic Expert Ex. PW 21/L is also on record. The voice recorded in the mobile phone recovered from accused Dinesh Paswan matched with voice sample of accused Sartaz @ Allaharakha. As discussed above, accused Sartaz @ Allaharakha is stated to have admitted to his crime in the conversation found recorded in the mobile phone recovered from Dinesh Paswan. However, PW 21 Inspector Binay Singh copied the voice from mobile phone on a compact disc and thereafter, sent the same for forensic examination. Therefore, integrity of data contained in the mobile phone recovered from Dinesh Paswan becomes doubtful, particularly in the light of suggestion put by accused persons to PW 7 SI Abhishek that voice of accused Allaharakha was forcibly got recorded on the mobile phone to implicate him in this case.
30. In any case, Dinesh Paswan identified accused Karim @ Jalela as the person who sold the mobile phone to him, while it is the case of FIR No. 157/13 24/25 St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha prosecution that the mobile phone was sold to Dinesh Paswan by accused Allaharakha. Therefore, prosecution cannot draw any support from Forensic Expert report Ex. PW21/L.
31. From above discussion, it is clear that prosecution has proved on record that accused Karim @ Jalela and Sartaz @ Allaharakha in furtherance of their common intention, assaulted deceased Raja with knife as a result of which Raja died. Thus, prosecution has successfully proved the charge under Section 302/34 IPC against accused Karim @ Jalela and Sartaz @ Allaharakha beyond reasonable doubt. Accordingly, accused Karim @ Jalela and Sartaz @ Allaharakha are convicted under Section 302/34 IPC.
32. However, charge could not be proved against accused Hari Dutt. Accordingly, accused Hari Dutt is acquitted. Accused Hari Dutt be released, if not required in any other case.
Accused Karim @ Jalela and Sartaz @ Allaharakha be heard on the point on sentence on 31.01.2019. Copy of this judgment be given to convict Karim @ Jalela and Sartaz @ Allaharakha, immediately. Copy of this judgment be also sent to concerned Superintendent, Jail, Tihar.
Announced in open Court
On 29.01.2019 (Sandeep Yadav)
ASJ02/South East District
Saket Courts/New Delhi.
FIR No. 157/13 25/25
St. Vs. Karim @ Jalela, Hari Dutt & Sartaj @ Allaharakha