Delhi District Court
State vs (1) Shamim on 19 August, 2017
IN THE COURT OF SH. SANJAY BANSAL:
SPECIAL JUDGE (NDPS) / ASJ / (NORTH EAST):
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No. 44847/2015
CNR No. DLNE01-000359-2014
STATE Versus (1) SHAMIM
S/o Late Sarfuddin
R/o H.No. 317, Near Shamshan Ghat,
Azad Enclave, Pooja Colony,
Loni, Ghaziabad, UP.
(2) BALVINDER SINGH
S/o Late Gyan Singh
R/o H.No. 268, Near Shamshan Ghat,
Azad Enclave, Pooja Colony,
Loni, Ghaziabad, UP.
&
Village Grupar,
Distt. Navan Shahar, Punjab.
FIR No. : 261/13
PS. : New Usmanpur
U/s. : 328/379/304/411/34 IPC
Chargesheet Filed On : 25.01.2014
Date Of Allocation : 07.04.2014
Judgment Reserved On : 19.08.2017
Judgment Announced On : 19.08.2017
JUDGMENT:
1. Sudhir Kumar, a Gunner Operator in the Army, was posted in Alwar. He proceeded on leave to go to his native village in District Hardoi, UP, as his father was ill. He left Alwar on 28.07.2013 for New Delhi by train. He was to change his train at New Delhi. He reached New Delhi. However, he did not reach his destination. Rather, on 30.07.2013, his body was found floating on the banks of Yamuna River between 1 st Pusta and 2nd Pusta, Usmanpur. Few public persons noticed the dead body. One of them informed the police. SC No. 44847/15 State Vs. Shamim & Anr. Page 1 of 23
2. After arrival of the police, the body was taken out. One identity card was found from his clothes from which his identity came to be known. One mobile phone number was also found written on a slip. The said number was contacted which was of a relative. News of death of Sudhir Kumar was given to the relatives. The Regiment of the deceased was also informed.
3. The relatives arrived at Delhi. After formal identification of the dead body, post mortem was got conducted. The officials from the Regiment also arrived. Later on, one Naib Subedar Gajraj Singh gave a written complaint on 07.08.2013 detailing all the facts. One mobile phone number of the deceased was revealed in the said complaint as 8107673452. From the Call Detail Record (CDR) of the said number, it was found that the said number was being run on mobile phone having IMEI No. 358273036958260. The said mobile phone instrument was put on tracing.
4. From the CDR, it was revealed that the said mobile phone of the deceased was being used on mobile number 9718955565 belonging to one Balvinder Singh. He was contacted and arrested. Mobile phone and SIM card were seized. He disclosed that he had obtained the mobile phone from one Shamim for Rs. 300/- and Shamim had told him that it was stolen phone. Shamim was found to be in JC in another case. He was formally arrested and his disclosure statement was recorded. He disclosed that he had given water mixed with intoxicating tablets to the deceased and had brought the deceased in that condition to Yamuna Pusta. He also disclosed that he had taken bag, mobile SC No. 44847/15 State Vs. Shamim & Anr. Page 2 of 23 phone and purse of the deceased and had pushed deceased into the water of the river. He also disclosed that he had used mobile phone on mobile phone number of his wife Noor Jahan which was 8510933446 for two days. Thereafter he sold the said phone to his neighbour Balvinder for Rs. 300/-.
5. Noor Jahan was contacted. She produced the phone on which her mobile number was earlier being used. It was also seized.
6. Viscera report confirmed presence of Diazepam in the body of the deceased.
7. After completion of investigation, chargesheet was filed u/s. 328/379/304/411/34 IPC against accused Shamim and only u/s 411 IPC against accused Balvinder.
8. After compliance of section 207 CrPC, learned ACMM committed the case to Court of Sessions as offences u/s. 328/304 IPC were exclusively triable by it.
9. Vide order dated 02.06.2014, my learned Predecessor framed charges for offences u/s. 328/304/379/411 IPC against the accused Shamim and u/s 411 IPC against accused Balvinder Singh. Both accused pleaded not guilty and claimed trial.
10. In order to prove the charges, the prosecution examined as many as 27 witnesses.
SC No. 44847/15 State Vs. Shamim & Anr. Page 3 of 23
11. Statements of both the accused u/s 313 CrPC were recorded. They did not lead any evidence in defence.
12. Evidence led by the prosecution is as follows:
MATERIAL / INJURED / EYE WITNESS(ES)
13. There is no eyewitness in this case. There is no injured witness either.
14. PW-1 is Sh. Shiv Kumar. He deposed that in the month of October/November 2013, police officials of PS New Usmanpur came to him and inquired about Sardar Balvinder Singh. He deposed that he told the police officials that he knew Sardar Balvinder Singh and he used to sell rice on cycle. He also told that he used to talk with Sardar Balvinder Singh on telephone occasionally. PW-1 did not tell anything further in the witness box. As such PW-1 was cross-examined by learned Addl. PP for the State.
15. In the said cross-examination, PW-1 denied the suggestion that he knew that accused Balvinder Singh had purchased a mobile phone from accused Shamim and that PW-1 knew Shamim as well. He also denied that any mobile phone make Nokia was recovered from Noor Jahan i.e. wife of accused Shamim which was containing SIM of mobile no. 8510933446. He was confronted with his statement Ex.PW1/A. PW-1 identified his signature on the seizure memo Ex.PW1/B but stated that the same was blank when he signed it. PW-1 did not remember if accused Balvinder Singh was using mobile phone no. 9718955565. SC No. 44847/15 State Vs. Shamim & Anr. Page 4 of 23 There is no cross-examination on behalf of accused.
16. PW-2 is Basey Ram. He also deposed that he knew accused Balvinder Singh and he used to sell rice on pheri. He also said that he had never talked to him on mobile phone. PW-2 was also declared hostile and cross- examined by learned Addl. PP for the State.
17. In the said cross-examination, PW-2 denied the suggestion that he used to talk with accused Balvinder Singh on his mobile number 9718955565. He was confronted with his statement Ex.PW2/A.
18. PW-3 is Vinod Kumar. He deposed that on 09.01.2014, police officials came to him and made enquiries about one Pawan Kumar after showing photocopy of his voter I card. PW-3 told the IO that the said Pawan Kumar had resided in their house as tenant for about 5 years and, thereafter, he had left their house and shifted somewhere else. PW-3 did not have the new address of Pawan Kumar. He also informed that Pawan Kumar was having voter ID card containing his address.
19. PW-4 is Rajesh Pal. He was the person who had informed the police about dead body of the deceased. He deposed that on 30.07.2013 at about 8.00 a.m., while he was passing on Usmanpur Pushta, he saw a crowd near Zero Pushta. He saw a dead body of a male person in the water near pipe line of Jal Board. He informed the police from his mobile No. 9810039031. Thereafter, he had left from there. There is no cross-examination. SC No. 44847/15 State Vs. Shamim & Anr. Page 5 of 23
20. PW-9 is Sunil Kumar. He was the person from whose shop accused Balvinder Singh had purchased SIM of mobile no. 9718955565. PW-9 deposed accordingly. He identified his signature on copy of the Customer Application Form (CAF) Ex.PW6A. He deposed that it was accused Balvinder Singh who purchased the mobile number from his shop. He also informed that prior to Balvinder Singh, the said mobile number was purchased by one Pawan Kumar but due to negative report, it was closed and re-issued to accused Balvinder Singh. He identified accused Balvinder Singh as well.
21. In cross-examination, PW-9 was confronted with his previous statement Ex.PW9/DA wherein fact of the number having been issued initially to Pawan Kumar and closed later on due to negative report was not mentioned.
22. PW-12 is Gajraj Singh, Naib Subedar. He is an official from Regiment of the deceased. He deposed that deceased Sudhir Kumar was working as constable in their Regiment bearing no. 15221653 L and he was working as Gunner Operator in the Regiment. He deposed that after taking C.L. for 6 days, deceased Sudhir had left and he had boarded train from Alwar, where their Regiment was, on 28.07.2013 at 05.00 pm. for reaching Sarai Rohilla Railway Station, Delhi. He also stated that after reaching there, deceased Sudhir was to board the train from New Delhi Railway Station to reach his village. He also told that when deceased left the regiment, he was having one bag with him containing some articles including mobile phone bearing no. 8107673452, one bank card and his I-card. He further deposed that on 30.07.2013, they had SC No. 44847/15 State Vs. Shamim & Anr. Page 6 of 23 received information from PS New Usman Pur regarding the recovery dead body of Sudhir Kumar from Yamuna Khadar, Delhi. Upon this, on 31.07.2013, PW-12 along with their Major Sh. A.K. Rai had reached at the mortuary of GTB Hospital where they had seen the dead body of Sudhir Kumar. He also deposed that on 07.08.2013, he had reached at PS New Usman Pur where he had lodged his report to the police mentioning aforesaid facts which is Ex.PW12/A.
23. Deposing further, PW-12 told that on 15.01.2014, Insp. Jitender Singh had come to their Regiment and made enquiries from him and recorded his statement. He told the mobile number of deceased as 8107673452.
24. PW-15 Smt. Noorjahan is wife of accused Shamim. She deposed that Shamim was a drug addict. She also stated that there were some cases of theft against him. She deposed that accused Shamim had taken a SIM card having no. 8510933446 in her name but in fact he was using it. She deposed about police officials seizing the said SIM card and mobile phone. She deposed that once Shamim had brought an old mobile and put her SIM of above number in the said mobile and used the same for few days. After few days, accused Shamim gave the said mobile to someone. She deposed that police informed her later on that her husband Shamim had brought the said mobile and bag containing clothes after stealing from somewhere. She deposed about handing over her mobile and SIM card of above number to the IO vide seizure memo Ex.PW1/A. She identified her mobile phone make Nokia bearing IMEI No. 354587/05/390923/8 having SIM card of IDEA. Mobile is Ex.P-1. SC No. 44847/15 State Vs. Shamim & Anr. Page 7 of 23
25. She also identified other mobile phone make Nokia along with SIM card of IDEA bearing IMEI No. 358273/03/695826/3. Mobile is Ex.P-2. This is the mobile phone of the deceased.
26. She was cross-examined by learned Addl. PP. In the said cross- examination, she identified co-accused Balvinder Singh as her neighbour but she could not say if Shamim had given the mobile phone Ex.P-2 to Balvinder or not. She was confronted with her previous statement Ex.PW15/A in this regard.
27. PW-24 Maan Singh is elder brother of the deceased. He deposed about identifying dead body of the deceased in the mortuary vide Ex.PW23/B. He also deposed about receiving dead body of deceased vide Ex.PW23/F after the postmortem. He could not tell complete number of the mobile phone of deceased but told initial digits as 81 and last two digits as 52. He stated that he could not identify the mobile phone of the deceased.
28. PW-25 Rajesh Kumar is also relative of the deceased. Deceased was his brother-in-law (saala). He also deposed about identifying dead body of deceased vide Ex.PW22/D and receipt of dead body vide Ex.PW23/F. INVESTIGATION WITNESS(ES)
29. PW-16 is Ct. Sanjay Kumar. He was photographer of the Mobile Crime Team. He alongwith other staff had reached between 1 st Pusta and 2nd Pusta, Usmanpur where he saw a dead body of a man was lying in water. At the instructions of IO, PW-16 had taken 10 photographs with different angles. SC No. 44847/15 State Vs. Shamim & Anr. Page 8 of 23 Photographs are Ex.PW16/A-1 to Ex.PW16/A-10. Negatives are Ex.PW16/B-1 to PW16/B-10.
30. PW-17 W/Ct. Reshma had joined the investigation on 11.11.2013. She alongwith other police officials and one public person namely Shiv Kumar witnessed meeting one Noorjahan outside H.No. 317, Pooja Colony, Loni, Ghaziabad, UP. She deposed that Noorjahan produced a mobile phone make Nokia carried by her before the IO which contained one SIM Card of IDEA Company. She deposed that IO had checked the number of SIM Card which was found to be 8510933446. She deposed that IO seized mobile phone and SIM and mentioned IMEI No. and mobile No. in the seizure memo. She identified her signature on the seizure memo Ex.PW1/A. She identified the mobile phone make Nokia bearing IMEI No. 354587/05/390923/8 having SIM Card of IDEA. Mobile with SIM Card is Ex.P-1.
31. PW-18 Ct. Gajender had remained with the IO in the initial investigation. He was with the IO on 30.07.2013 when at about 8.44 a.m., on receipt of DD no.12A, he alongwith SI Dharmender had reached Yamuna Khadar between First and Second Pushta, Usmanpur. He deposed about seeing dead body in the water. He also deposed about visiting the mortuary on 31.07.2013 on which date postmortem was got conducted. He deposed that the doctors had handed over sealed viscera peti, sealed envelope and sample seal to him after postmortem. He handed over the same to IO vide seizure memos Ex.PW18/A and Ex.PW18/B. He deposed that on 03.08.2013, some documents of deceased SC No. 44847/15 State Vs. Shamim & Anr. Page 9 of 23 were handed over to Sh. Gajraj Singh vide memo Ex.PW18/C. Photocopies of said documents were kept on record by IO SI Dharmender and same are Mark PW18/X (Adhaar Card), Mark PW18/Y (I-card) and Mark PW18/Z ( ATM card).
32. PW-19 Insp. Jitender Singh is the further IO. He had received information about user of mobile phone of the deceased by accused Balvinder Singh. He alongwith Ct. Pawan (PW-20) reached the house of Balvinder Singh and mobile phone was produced by him. It was found to be mobile phone of the deceased. The mobile phone was seized vide memo Ex.PW19/B. Accused Balvinder Singh was arrested vide arrest memo Ex.PW19/C and his personal search was conducted vide memo Ex.PW19/D. He had also made disclosure statement Ex.PW19/A. He deposed that wife and son of accused Balvinder Singh had pointed out the house of accused Shamim which was in the same colony. Shamim was not present at his house. PW-19 met his wife Noorjahan and she informed that Shamim was in jail. PW-19 enquired from her about the SIM card which was used in the mobile instrument of deceased and she informed that the said SIM was in the mobile of his son who was not present at the house.
33. On 11.11.2013, PW-19 alongwith W/Ct. Reshma (PW-17) had reached the house of accused Shamim where his wife Noorjahan produced a mobile phone containing SIM bearing no. 8510933446. Mobile phone make NOKIA of grey and black colour alongwith SIM was seized vide seizure memo Ex.PW1/A.
34. On 26.11.2013, PW-19 alongwith PW-20 had reached Jail No. 8, SC No. 44847/15 State Vs. Shamim & Anr. Page 10 of 23 Tihar Jail after obtaining permission from learned MM to interrogate the accused Shamim. In the jail, PW-19 interrogated accused Shamim and recorded disclosure statement Ex.PW19/E. He arrested accused Shamim vide memo Ex.PW19/F.
35. He deposed about preparation of pointing out memo Ex.PW19/G at the instance of accused Shamim on 27.11.2013 when he was on PC remand. He also recorded supplementary disclosure statement of accused Shamim which is Ex.PW19/H.
36. During investigation, PW-19 had collected certified copies of CDR, CAF alongwith certificate of mobile numbers bearing no. 9718955565, 8510933446 and 8107673452 from service providers and placed the same on record. He also collected leave record of deceased Sudhir Kumar from his office. The same record is collectively Ex.PW19/I. On receipt of viscera report already Ex.PW11/A. He moved an application Ex.PW19/J for obtaining subsequent opinion about the death of deceased. Dr. Vishwajeet Singh gave subsequent opinion Ex.PW19/K on the back side of the said application. Cause of death remained the same as given in the PM report.
37. PW-20 is Ct. Pawan. He deposed on the same lines as PW-19.
38. PW-21 is Insp. Shyamji Srivastava. He was also one of the IO. On 14.08.2013, he had prepared site plan Ex.PW21/A at the instance of SI Dharmender. He also sent request letter for forwarding the same to Airtel Ltd. for SC No. 44847/15 State Vs. Shamim & Anr. Page 11 of 23 providing the CDR of mobile phone no. 8107673452 to DCP, North-East. On 22.08.2013, he got deposited the exhibits at FSL, Rohini through Ct. Devender.
39. PW-22 is Inspector Ravi Kumar. He was I/C Mobile Crime Team, North-East, Delhi. On 30.07.2013, at about 9.00 am, after receiving information from Police Control Room, he alongwith Ct. Sanjay, photographer reached the spot at about 9.30 am. He inspected the site. He saw a dead body in the water. The body was taken out from water. One I-card, aadhar card and other papers were recovered from pocket of trouser of the dead body. He prepared scene of crime report Ex.PW22/A.
40. PW-23 SI Dharmender Kumar is the initial IO. On 30.07.2013 at about 08.45 a.m., Duty Officer handed over DD No. 12A to him which was regarding presence of a dead body on the bank of river Yamuna near zero pusta, New Usmanpur. Copy of DD No. 12A is Ex.PW23/A. On receipt of the same, he alongwith Ct. Gajender (PW-18) reached on the bank of river Yamuna at zero pusta at about 09.00 - 09.15 a.m. He deposed that they found dead body of a male person in the water on the bank of river Yamuna. He with assistance of 2-3 persons took out of the dead body from water. PW-23 conducted search of the dead body and in the search, he found one I-card on which 'Sudhir Kumar' was written and Aadhar Card in the same name. He also found one piece of paper on which mobile number was written. He deposed that he dialed the said mobile number and it was picked up by a relative of the deceased. He informed him about the recovery of the dead body. He deposed about calling the Crime Team. SC No. 44847/15 State Vs. Shamim & Anr. Page 12 of 23 He sent dead body to Mortuary, GTB Hospital through Ct. Gajender and got it preserved there. Carbon copy of the application for preservation of dead body is Ex.PW23/B.
41. On 31.07.2013, after identification of dead body by the relatives vide Ex.PW23/C and Ex.PW23/D, he prepared inquest papers Ex.PW23/E (colly.). He submitted the papers to the doctor for postmortem of deceased Sudhir Kumar. He handed over dead body to the relatives vide receipt Ex.PW23/F. He deposed that Ct. Gajender produced one sealed envelope alongwith sample seal of 'JSV' and one viscera box sealed with the seal of 'JSV' to him which was seized vide seizure memo Ex.PW18/A and Ex.PW18/B. He deposed that on 03.08.2013, Niab Subedaar Gajraj Singh came to him and submitted request letter Ex.PW23/G for obtaining I-Card and Aadhar Card of deceased Sudhir Kumar as it was required for departmental proceedings. He deposed that on 07.08.2013, complainant Gajraj Singh came to police station and produced his complaint Ex.PW12/A on which he made endorsement and prepared rukka Ex.PW23/H. He got registered the FIR. After registration of FIR, investigation was assigned to Inspector Investigation Sh. Shyamji Srivastava. He also deposed about preparation of site plan Ex.PW21/A at his instance. MEDICAL/EXPERT WITNESSES
42. PW-5 is Dr. Vishwajeet Singh. He conducted postmortem on the dead body of the deceased on 31.07.2013. His report is Ex.PW5/A. The cause of death was, "asphyxia as a result of ante-mortem drowning". SC No. 44847/15 State Vs. Shamim & Anr. Page 13 of 23
43. PW-11 is Dr. Jitendra Kumar. He had examined the viscera at FSL on 22.08.2013. His report is Ex.PW11/A. He found traces of Diazepam in exhibits 1AA, 1AB and 1AC. Metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits '1AD'. Ex.1AA is stomach pieces of small intestine with contents. Ex.1AB is pieces of liver, spleen and kidney. Ex.1AC is blood sample and Ex.1AD is preservative sample.
FORMAL WITNESS(ES)
44. PW-6 is Amar Nath, Nodal Officer, Idea Cellular Ltd. He produced original Customer Application Form of Mobile No. 9718955565. It was issued in the name of Balvinder Singh. Certified copy of CAF is Ex.PW6/A. Copies of supporting documents were also annexed. PW-6 also produced Call Details Record (CDR) of the aforesaid mobile number w.e.f. 05.07.2013 to 02.08.2013 which is Ex.PW6/B. He also produced certified copy of CAF of mobile no. 8510933446 alongwith copy of ID. It was issued in the name of Noorjahan. Certified copy of CAF is Ex.PW6/C. CDR of the said mobile number w.e.f. 05.07.2013 to 02.08.2013 is Ex.PW6/D. He also produced the Call Details Record of IMEI No. 358273036958260 for the period w.e.f. 25.07.2013 to 16.10.2013 which is Ex.PW6/E. The certificate u/s 65-B of the Indian Evidence Act for the aforesaid CDRs is Ex.PW6/F.
45. In cross-examination on behalf of accused Balvinder, he stated that the number 9718955565 was earlier issued in the name of one Pawan Kumar but SC No. 44847/15 State Vs. Shamim & Anr. Page 14 of 23 due to negative report, it was allotted to Balvinder Singh.
46. PW-7 is HC Yashvir Singh. He deposed that on 30.07.2013, he was on duty as Duty Officer at PS New Usmanpur w.e.f. 8:00 am to 4:00 pm. On that day, at about 8:44 am he received an information about lying a dead body near Zero Pusta, Usmanpur where water of Yamuna was there. He recorded the information vide DD No. 12A and informed SI Dharmender to take necessary action. He has brought original DD register containing DD No. 12A. Copy of DD No. 12A is Ex.PW7/A.
47. PW-8 is HC Dinesh Chand. He deposed that on 07.08.2013, he was posed at PS New Usmanpur, Delhi and was on duty as Duty Officer w.e.f. 4:00 pm to 12:00 midnight. On that day, at about 6:35 pm SI Dharmender produced a rukka before him. On the basis of said rukka, he got registered FIR of this case through computer operator. He made endorsement Ex.PW8/A on the rukka. After registration of FIR, he handed over rukka and copy of FIR to Insp. Shyamji Srivastav. Copy of FIR is Ex.PW8/B. Certificate of 65-B of the Indian Evidence Act bearing signature of SHO at point X is Ex.PW8/C.
48. PW-10 is HC Sonu Kaushik. He had prepared scaled site plan Ex.PW10/A. He had visited the site on 22.01.2014.
49. PW-13 is Ct. Lovesh. He deposed that on 25.11.2013 on the instructions of IO, he had collected FSL result and exhibits of this case from FSL, Rohini which were sealed with the seal of FSL. After returning from FSL office, he SC No. 44847/15 State Vs. Shamim & Anr. Page 15 of 23 had handed over the same to MHC(M) HC Narender.
50. PW-14 HC Narender Kumar was MHC(M) at the relevant time. On 18.10.2013, he received one mobile phone from Insp. Jitender Singh for deposit. He made entry in register no. 19 in this regard, copy of which is Ex.PW14/A. On 11.11.2013, Insp. Jitender Singh had deposited one another mobile make NOKIA in malkhana vide entry at serial no. 2544, copy of which is Ex.PW14/B. He also deposed about deposit of viscera peti and FSL result by Ct. Lovesh and copy of the relevant entry is Ex.PW14/C.
51. PW-26 is HC Raj Kumar. He was also MHC(M). He produced the record of deposit of one envelope with seal of JSV on 02.08.2013 by SI Dharmender. Entry no. 2285 was made in register no. 19, copy of which is Ex.PW26/A. He also deposed about deposit of one sealed box with seal of JSV on 04.08.2013 vide entry no.2295, copy of which is Ex.PW26/B. On 22.08.2013, this sealed box was got deposited in FSL Rohini through Ct. Devender vide RC No.130/21/13. He also produced record of deposit of one mobile phone make Nokia 1209 on 18.10.2013 by Insp. Jitender Singh vide entry no. 2507, copy of which is Ex.PW26/C. Another mobile phone make Nokia with Idea SIM was deposited in the malkhana on 11.11.2013 by Insp. Jitender Singh vide entry no. 2544 in register no.19, copy of which is Ex.PW26/D. Copy of RC No.130/21/13 is Ex.PW26/E.
52. PW-27 is Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd. He produced CAF alongwith a copy of Employment Certificate submitted as identity SC No. 44847/15 State Vs. Shamim & Anr. Page 16 of 23 proof by the subscriber for issuance of mobile No. 8107673452. Mobile No. 8107673452 was subscribed to by Sh. Sudhir Kumar i.e. the deceased. A certified copy of Customer Application Form (CAF) alongwith copy of Employment Certificate submitted by the subscriber is Ex.PW27/A. CDR of this mobile number for the period 25.07.2013 to 02.08.2013 is Ex.PW27/B. Certificate under section 65B of the Indian Evidence Act is Ex.PW27/C. Location chart is Ex.PW27/D. STATEMENTS OF ACCUSED PERSONS
53. Incriminating circumstances appearing in evidence against both the accused were put to them as required U/s. 313 Cr.P.C.
54. Accused Shamim stated that he had found the mobile phone of the deceased in service lane of Shastri Park from where he was passing. He stated that he used the said mobile phone for some days and later on gave the same to co-accused Balvinder Singh for some days. He stated that before Balvinder could return the phone to him, the police apprehended Balvinder. He stated that he did not commit any offence.
55. Co-accused Balvinder stated that he was falsely implicated and did not commit any offence. Regarding the use of mobile phone of deceased by him, he stated that he had taken the said mobile phone from accused Shamim who had pledged the same with him for Rs.300/-. He stated that when he demanded back his money, accused Shamim told him that he had no money and asked him SC No. 44847/15 State Vs. Shamim & Anr. Page 17 of 23 (Balvinder) to keep using the said phone and for this reason Balvinder kept using it.
56. Accused persons did not examine any witness in defence. SUBMISSIONS OF THE PARTIES
57. I have heard Sh. R.K. Tanwar, learned Addl. PP for the State and Sh. Harinder Chowdhary, learned Amicus Curiae for accused Shamim and Sh. Abdul Sattar, learned Legal Aid Counsel for accused Balvinder.
58. Learned Addl. PP submitted that there is sufficient material on record to prove the charge against both the accused. He heavily relies upon the CDRs which show that mobile phone of the deceased was used on the mobile number of wife of accused Shamim and thereafter by co-accused Balvinder on his number.
59. On the other hand, learned Counsel for accused Shamim argued that there is no evidence against him which shows that he had killed the deceased. He submitted that accused has explained the user of the mobile phone. He referred to the statement of accused Shamim and highlighted that the accused had found the phone on the road side and used it. He pointed out that there is no eyewitness.
60. Learned Counsel for co-accused Balvinder submitted that he has also explained the possession of the mobile phone.
SC No. 44847/15 State Vs. Shamim & Anr. Page 18 of 23 FINDINGS
61. From the submissions of the Ld. Counsels, the following points for determination arise in the present case:
i). Whether the deceased Sudhir Kumar was killed by accused Shamim?
ii). Whether co-accused Balvinder received the mobile phone of the deceased having knowledge or reason to believe that it was stolen property?
62. As the record reveals there is no eyewitness. The case is based on circumstantial evidence.
63. The law regarding cases based on circumstantial evidence is well settled. The famous case of Sharad Birdhi Chand Sarda v. State of Maharashtra, AIR 1984 SC 1622 is the guiding judgment. The five golden principles reiterated in the said judgment may be noted as below:
i). the circumstances from which the conclusion of guilt is to be drawn should be fully established;
ii). the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
iii). the circumstances should be of a conclusive nature and tendency;
iv). they should exclude every possible hypothesis except the one SC No. 44847/15 State Vs. Shamim & Anr. Page 19 of 23 to be proved; and
v). there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
64. The charge u/s 328 IPC and 304 IPC is only against accused Shamim.
65. The only connecting circumstance against accused Shamim is the user of mobile phone of the deceased. CDRs and CAFs conclusively show that mobile phone of the deceased was used initially on the mobile number of Noorjahan i.e. wife of accused Shamim and later on by co-accused Balvinder. Accused Shamim has himself stated that he had given the phone to Balvinder. Accused Balvinder also accepts that he had used the said phone.
66. The deceased was posted in the Army. He was a Gunner Operator in the Army. He was posted in Alwar. He left his unit on 28.07.2013 for his village as his father was ill. He had to change the train at Delhi. The body of the deceased was found on the bank of Yamuna river on 30.07.2013. Postmortem report reveals that he had died because of asphyxia due to drowning. The viscera report reveals traces of Diazepam in his body. Diazepam is an intoxicating substance. This indicates that this substance Diazepam was administered to the deceased and somehow he came to the Yamuna and drowned. Due to the effect of Diazepam, deceased could not make any effort to save himself.
SC No. 44847/15 State Vs. Shamim & Anr. Page 20 of 23
67. No external injuries were found on the dead body. On internal examination, lungs were found softened and mud particles were found present in trachea, primary and secondary bronchi. Time since death was about 3 days.
68. There is no witness who had seen accused Shamim with the deceased at any point of time. There is no investigation at all as to at which time deceased had arrived at New Delhi Railway Station and where he had proceeded from the said station. There is nothing on record except the disclosure statement of accused Shamim which shows as to how Diazepam was administered to the deceased. The disclosure statement of accused Shamim made to the police officials that he had administered the same to the deceased is inadmissible in law. This being the position, the only connecting circumstance is user of mobile phone of deceased by accused Shamim as is reflected from the CDR Ex. PW6/B and D.
69. The explanation of accused Shamim is that he had found the mobile phone on road side and used the same. The explanation furnished by accused Shamim is a plausible explanation. The same is coherent with his defence. The defence taken by the accused is a plausible defence. The same cannot be brushed aside as improbable or impossible explanation. Considered so, the requirements of the test laid down in the Sharad Birdichand's case are not fulfilled. The chain of the circumstances is not complete. The circumstances brought on record do not exclude the hypothesis that accused Shamim is innocent. The possibility of some other person who might have administered SC No. 44847/15 State Vs. Shamim & Anr. Page 21 of 23 Diazepam to the deceased cannot be ruled out. The user of the mobile phone of the deceased on the phone number of the wife of the accused is not such a circumstance which conclusively shows that it was the accused Shamim who caused death of the deceased. The prosecution has failed to establish that it was accused Shamim who administered Diazepam to the deceased.
70. Thus the charge for the offences punishable u/s. 328/304 IPC fails.
71. Further it cannot be said that the accused committed theft of the mobile phone of the deceased. The plea of the accused that he had found the phone on the road side cannot be disbelieved. Therefore, accused Shamim cannot be held guilty of the offence u/s 379 IPC either.
72. However, accused Shamim is guilty of criminal misappropriation of the mobile phone of the deceased. Even if he happened to find the phone of the deceased on road side, he was not supposed to use the same. The accused should have made efforts to find out the true owner and return the phone. Therefore, accused Shamim is guilty of the offence punishable u/s 403 IPC. There is no impediment in convicting accused Shamim for the offence punishable u/s 403 IPC though there was no charge for the same. It being minor offence than u/s 379/411 IPC, accused Shamim can be convicted u/s 403 IPC.
73. As far as accused Balvinder is concerned, he has sufficiently explained his possession. He cannot be said to have received the phone knowing it to be stolen property. Therefore, he is entitled for acquittal. SC No. 44847/15 State Vs. Shamim & Anr. Page 22 of 23
74. Prosecution fails to prove the charge against accused Balvinder Singh. Therefore, accused Balvinder Singh is hereby acquitted of the charge framed against him in this case. Accused Balvinder Singh is required to furnish bail bonds as per Sec. 437-A CrPC within three working days.
75. Accused Shamim is acquitted of the charges u/s 328/304/379/411 IPC. However, he is convicted for the offence punishable u/s 403 IPC.
76. Let he be heard on sentence.
Announced in open court on 19th day of August, 2017.
Digitally signed by SANJAY BANSAL
SANJAY Location:
BANSAL Karkardooma Court
Date: 2017.08.21
16:35:15 +0530
(Sanjay Bansal)
Special Judge (NDPS)/ASJ/
NE/KKD Courts/Delhi.
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