Delhi District Court
Yogesh @ Satbir S/O Lt. Sh. Rajender ... vs . on 31 January, 2011
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IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 49/09
Unique Case ID No. 02402R0059082009
State
Vs.
1. Yogesh @ Satbir S/o Lt. Sh. Rajender Singh, R/o Vill. Ritoli Kaboolpur, PS
Beri Distt. Rohtak Haryana, A/P House of Satbir Chauhdary, New
Seelampur.
2. Shabir Chaudhary S/o Nazim Chaudhary, R/o E16K/324, Jhuggi New
Seelampur, Delhi
Permanent Add: Village Hasaulipur Shahpur, Distt. Muzaffar Nagar, U.P.
FIR No. 298/08
PS Seelampur
U/s 302/201/365/364 IPC.
Date of Institution : 16.03.09
Date of reserving the Judgement : 20.01.2011
Date of Pronouncement : 31.01.2011
J U D G E M E N T : Prosecution's case emanates from the fact that on 04.08.08, complainant Rukhsana came to police station and lodged a complaint to the effect that she along with her family members reside at house No. C29, Bankwali Colony, Seelampur, Delhi. On 10.07.08, after leaving her husband at the house, she had gone to her parental house at Lal Kuan, Hauzi Khasi. On 19.07.08, she had talked with her husband on telephone. On 20.07.08 at about 10pm, she rang up her husband and then somebody named himself as Kamal and then disconnected the phone. On 21.07.08, she returned back to her house at Seelampur. But her husband was not available at the house. She inquired about S.C. No. 49/09 Page 1/24 2 him in the neighbourhood and came to know that on 20.07.08, he was seen going with Nasir @ Chibbla. She searched for her husband. She suspected that her husband has been abducted by Nasir @ Chibbla and has been kept somewhere, as Nasir has also not returned back to his house. She prayed for an action against Nasir @ Chibbla. On the basis of this statement, case under section 365 IPC was registered. Investigation was handed over to ASI Raj Kumar. During the course of investigation, on 09.08.08 Akhtar, real brother of deceased, came to police station and made a statement before ASI Raj Kumar. He also suspected Nasir @ Chibbla, Yogesh etc in abduction of his brother. Search was made for Dilshad, but no clue could be found. On 21.11.08, ASI Amrik Singh of Special Cell, Lodi Colony informed PS Seelampur, that accused Yogesh @ Satbir has been arrested in case FIR No. 64/08 under section 25 Arms Act, PS Special Cell, Lodi Colony, and he has made disclosure statement regarding this case. Thereafter, he was formally arrested in this case. His police remand was also taken, but no recovery could be effected. On 28.11.08, section 302/201 IPC was added. Further investigation was carried out by Inspector Ved Singh Malik. Despite efforts, other accused could not be arrested. As such challan was filed against Yogesh @ Satbir.
2. On appearance of accused, arguments on charge were heard. Prima facie charge for offence punishable under section 364/365 IPC was made out against him, to which charge he pleaded not guilty and claimed trial.
3. Thereafter on 29.03.09, accused Sabir Chaudhary was arrested and supplementary challan was filed against him. Charge for offence punishable under section 364/365 IPC was framed against him also, to which charge he pleaded not guilty and claimed trial. S.C. No. 49/09 Page 2/24
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4. Prosecution has examined as many as 10 witnesses in support of its case.
PW1 HC Dal Chand was working as duty officer on 04.08.08. On the statement of Rukhsana, he recorded FIR No. 298/08, copy of which is Ex.PW1/A. PW2 Akhtar is the brother of Mohd. Dilshad. He has unfolded that Mohd. Dilshad was his elder brother. He used to reside as tenant at the house of one Ayub Rampuria, a property dealer at New Seelampur. On 19.07.08, he received a phone from his brother Dilshad on his mobile phone No. 97559269964 in the evening. He inquired from him as to when he was coming to Delhi. He told him that he was coming to Delhi that day itself. Dilshad used to work as TSR driver. He asked him to meet him at TSR stand at Seelampur. He met his brother at TSR stand in Seelampur. Dilshad was very afraid and perplexed at that time. His wife and children had gone to her parents house at Lal Kuan, Delhi. He inquired from his brother as to why he had called him there. Dilshad informed him that before 810 days, some people shot Shamim Bhagat and in that incident, Shabir Chaudhary, brother of Shamim Bhagat along with Babar Chaudhary, Nasir Chibbla, Yogesh @ Satbir, Billoo, Akram Kana, Jafar Kankataa and Femida wife of Shabir Chaudhary were involved. His brother also informed him that he had witnessed the occurrence by these persons. Shamim Bhagat used to reside in another gali and therefore was on visiting terms with his brother Dilshad. One person, namely, Salim @ Roti, Asgar, a resident of Amroha was identified as assailants in killing Shamim Bhagat. His brother informed him that these persons were having suspicion over him in getting Shamim Bhagat killed. He asked his S.C. No. 49/09 Page 3/24 4 brother Dilshad to vacate the room from the area of Seelampur, if those persons were having suspicion upon him. His brother asked him to arrange for a rented room and that he is unable to manage another room. On next day, that is, on 20.09.08 in the morning hours, he received a telephone call from his wife from Meerut and she inquired from him as to when he was coming back to Meerut. He told her that after going to the market, he will reach Meerut in the evening. At about 12pm, he received telephone call from his brother Dilshad on his mobile phone and he inquired from him regarding his whereabouts and asked him to meet in the evening. In the evening, he went to Seelampur and when he entered into Bankwali Gali, Seelampur, he saw his brother standing in the street and at that time Sabir Cahudhary, Babar Chaudhary, Nasir @ Chibbla, Yogesh @ Satbir and one or two other persons, whose name he did not recall, were also present in the street along with his brother Dilshad. They were about to go somewhere. He asked his brother as to where he is going with these persons. He told him that all these persons were having some confusion and he was going along with them to remove that confusion. He informed his brother that he was going to Meerut and also asked him to make a call to him. Thereafter, he went to Meerut. He did not receive any call from his brother nor could make any call to him, as his wife was unwell and remained so for 56 days. As such he remained busy in getting her treatment. During these 67 days, he received telephone call from his Bhabhi, namely, Rukhsana two or three times and she asked him to reach Delhi immediately as whereabouts of Dilshad were not known. In the morning, he reached Delhi and went at his inlaws house. All the family members were weeping as whereabouts of Dilshad were not known. S.C. No. 49/09 Page 4/24
5 Thereafter, he along with younger brother went to Seelampur and met Ayub Rampuria and asked him regarding his brother. He showed his apprehension regarding involvement of Sabir Chaudhary, on which Ayub Rampuria told him that Sabir Chaudhary is a person of good repute and he cannot do any untoward incident to Dilshad. He suspected that Ayub Rampuria was having good relations with Sabir Chaudhary as both were in the same profession. Ayub Rampuria was misguiding him, inasmuch as, initially he informed him that Dilshad is still alive and there is nothing to worry about him and that other persons of the locality had seen his brother at various places. He also called police officials to lodge missing report of Dilshad. Police officials, however, threatened him not to name the persons, who were not involved. He told police officials not to threaten him and subsequently stated that he himself had seen all these persons while they were taking his brother. Ayub Rampuria threatened him not to lodge report regarding his brother Dilshad. Various efforts were made to lodge the complaint with police, but police officials were not paying heed to him or to lodge the report. Ultimately, he met the DCP concerned. Thereafter, a case was registered on the complaint of Rukhsana on 04.08.08. Even after registration of the case, police officials carried out the investigation in a very casual manner. They had been running from pillar to post, but nothing concrete was done. After four months, he received a call from Special Cell, Lodi Colony, and police officials inquired regarding whereabouts of his brother Dilshad. He told them that his brother has been murdered. He was informed that one of the accused has been arrested and sent to Jail and he was further assured that now remaining investigation will take place. He further went on deposing that he has been S.C. No. 49/09 Page 5/24 6 receiving threats from family members of accused persons. Babar Chauhdary, brother of Sabir Chaudhary, was threatening him to compromise the matter as has been done in three other murder cases. He apprehended danger to his life. In crossexamination, he deposed that he saw accused Yogesh and Sabir Chaudhary for the first time in the police station. Name of Sabir Chaudhary, Babar Chaudhary, Nasir Chibbla, Yogesh @ Satibr and another were not known to him nor he knew them from before, when he had seen them on 20.07.08. He admitted that after having conversation, all those persons went towards one direction while his brother went in other direction. He further admitted that his wife remained ill for a period of 10 days and that on 24.07.08 his brother Dilshad was present at Meerut and remained there for about one or two hours and then left the house. He admitted that he had raised suspicion regarding missing of his brother Dilshad upon Nasir Chibbla and his associates and that name of Sabir is mentioned in his complaint as informed to him by persons of locality. He further deposed that he had been making inquiries from mohalla people of Seelampur about whereabouts of his brother Dilshad, but nobody told him about his whereabouts. People of mohalla, after consulting some other persons of the locality, had given complaint to the Commissioner of Police, wherein suspicion was raised on Nasir Chibbla about disappearance of Dilshad. He admitted that neither he nor any other persons of the locality expressed any suspicion on anyone else except Nasir Chibbla. He had asked Mohalla persons to write in the application that he was apprehending danger to his life and his family members at the hands of Nasir Chibbla, but he did not disclose that he had any apprehension from S.C. No. 49/09 Page 6/24 7 Sabir Chaudhary. He went on stating that Mohalla persons might have written name of Sabir Chaudhary in the application, but the same was not read over and explained to him.
PW3 SI Surender Ojha joined investigation of the case along with ASI Raj Kumar.
PW4 M.N. Vijayan, Nodal Officer, brought the summoned record pertaining to call details of mobile No. 9211035162 for the period from 19.07.08 to 06.08.08 and proved the same as Ex.PW4/A. He also brought subscriber application form of aforesaid mobile number in the name of one Sita, resident of J1602/1603, J Block, Jahangirpuri, Delhi, and proved photocopy of the same as Ex.PW4/B. PW5 Smt. Rukhsana is the complainant and is wife of Dilshad. She has deposed that on 10.07.08, she had gone to her mother's house from C6, Bankwali Gali, Seelampur, to Hauzi Qazi Delhi. On 19.07.08, she had talked to her husband, who had asked her to return back to house as a week has elapsed. She told him that she would come on next day. On 20.07.08, she made a call from mobile phone of her brother at about 11pm, and at that time some other person came on the line and gave his name as Kamal. Thereafter phone was disconnected and since then mobile phone of her husband is discontinued. On 24.07.08, she went to her house and found the room locked from outside. She searched with him in the nearby vicinity, but could not find him. Ultimately, when her husband could not be traced, she lodged missing report and raised suspicion on one person, namely, Chibbla as he visited their room two or three times and on inquiries she came to know that Chibbla had taken her husband.
S.C. No. 49/09 Page 7/24
8 PW6 SI Mukesh Kumar Jain prepared scaled site plan Ex.PW6/E. PW7 ASI Amrik Singh was posted at Special Cell, Lodi Colony, on 20.11.08 and has deposed that he had taken investigation of the case in case FIR No. 64/08 under section 25 Arms Act, PS Special Cell, Lodhi Colony, when SI Rana produced accused Yogesh @ Satbir and one pullanda duly sealed, form FSL, seizure memo etc. On 21.11.08, ASI Raj Kumar came to police station and he handed over copy of disclosure statement and other documents to him.
PW8 ASI Raj Kumar has deposed that after registration of FIR No. 298/08, investigation of the case was handed over to him. Complainant Rukhsana was present in the police station. He along with her went to her house. He made inquiries and searched for accused Nasir Chibbla, but he could not trace. He sent message regarding missing of Dilshad. Hue and cry was also got published in the newspaper, but Dilshad could not be traced. On 09.08.08, Akhtar, brother of Dilshad came at police station and his statement under section 161 Cr.P.C was recorded. He also received the complaint given by Akhtar on 19.08.08. Search for accused persons was made, but could not be traced. On 21.11.08, he received information from Special Cell, Lodi Colony, regarding arrest of Yogesh @ Satbir, who had made disclosure statement regarding involvement in this case. Accordingly, he went to PS Special Cell, Lodi Colony and collected documents from ASI Amrik Singh. Thereafter, accused Yogesh was formally arrested in this case. After obtaining his police remand, accused took them to East Yamuna Nahar, Barot and pointing out memo Ex.PW8/C was prepared by stating that he along with other accused persons strangulated Dilshad and thrown his dead body in the Nahar. S.C. No. 49/09 Page 8/24
9 Search for dead body was made in Nahar and inquiries were also made from public persons, but nothing could not ascertained. Even record of police station Barot was checked, but no clue could be received. Thereafter, they went to police station Baghpat and made inquiries regarding dead body of Dilshad and also checked record of PS Baghpat, but nothing could be ascertained. Thereafter, he had also taken draughtsman to Barot at the place pointed out by accused Yogesh and he prepared rough notes over there.
PW9 Inspector Ved Singh Malik has deposed that on being entrusted with investigation of this case, he searched for remaining accused persons. Accused Satbir Chaudhary was arrested in FIR No. 268/08, PS Seelampur, by Inspector N.R. Lamba and then he was arrested in this case also on 30.03.09, vide his arrest memo Ex.PW9/A. On 31.03.09 ASI Raj Kumar along with Constable Jasbir Singh went with accused Satbir Chaudhary and pointing out memo was prepared at the instance of accused Satbir Chaudhary.
PW10 Inspector N.R. Lamba has deposed that on 29.03.09, he received secret information that accused Satbir Chaudhary wanted in case FIR No. 261/08 and FIR No. 297/08 had come to his native village Harsoli, Distt. Muzaffarnagar and he could be apprehended, if raid is conducted. On this information, he along with other police staff went to Muzaffarnagar and accused Sabir Chaudhary was arrested from his house at village Harsoli. He made disclosure statement recording this case.
5. In order to afford an opportunity to explain circumstances appearing in evidence against them, accused persons were examined under section 313 Cr.P.C. They have pleaded their innocence and alleged false S.C. No. 49/09 Page 9/24 10 implication in this case.
6. Accused Sabir Chaudhary further stated that he along with his wife had been living in village Harsoli, Distt. Muzaffarnagar, since 2002 and he had a factory by the name of Decon Cast Pvt. Ltd., Beghraj Pur Industrial Area, Muzaffarnagar, U.P. His wife Smt. Fehmida had been a member of Zila Panchayat from 2005 to 2010. He had also contested the election of MLA from Khatauli Vidhan Sabha in the year, 2007. He had his ration card and election card of village Harsoli and he had been living there since then. His brother shamim Bhagat was murdered on 08.07.08 and on receipt of information, he came to Delhi, took the dead body of his brother from mortuary GTB Hospital to Harsoli and performed burial in village th Harsoli on 09.07.08. As per customs, the 10 day ceremony was also performed at village Harsoli on 19.07.2008 and he was present there th along with his family and thousands of villagers of village Harsoli and 40 ceremony, as per Muslim customs, was performed at village Harsoli by him and his family members. When police came to arrest him, villagers gathered there and told the police that he was present in village Harsoli and had not gone from there and remained there and that police was arresting him falsely. He had examined four witnesses in support of his defence.
7. DW1 Aslam is the auto driver. He has deposed that on 24.07.08, Dilshad was going on Brahmpuri Road. Dilshad saw him and called him. He asked him (witness) to leave him near Seelampur Gurudwara by his auto, which he was driving at that time. He inquired from him as to where he was going and he informed him that he was going to Meerut to see his ailing Bhabhi there. He left him near Gurudwara Seelampur. S.C. No. 49/09 Page 10/24
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8. DW2 Shri Imam Ali has deposed that accused Sabir is resident of his village Harsoli, Distt. Muzaffarnagar. On 08.07.08, Sabir was present in village. He received telephone call that his brother Shamim Chaudhary @ Bhagat has been shot dead by some persons. Thereupon, he along with Sabir and other villagers reached Delhi. Dead body of Shamim Bhagat was taken from GTB Hospital at about 34pm and burial took place on 09.07.08. Almost more than 1000 persons attended the last rites of th Shamim Bhagat. On 19.07.08, the 10 day of Shamim Bhagat was observed where many persons of village, including him, were present. Sabir Chaudhary and his family members were also present. Sabir Chaudhary remained in the village on 20.07.08 because his relations were th also present there. The 40 day was also observed and the accused Sabir Chaudhary and his family members were present there. He being pradhan of village had talks with Sabir Chaudhary on 20.07.08 as well as th on 40 day in regard to arrangement. When police came to arrest accused Sabir Chaudhary, people of village including him and Chairman th collected there and told the police that Sabir was present in village on 19 th and 20 of July, 2008. They also gave in writing to police, but they refused to accept. He produced the paper signed by him and some other villagers, including Chairman, which is Ex.DW2/A.
9. DW3 Sh. Tiras Pal Malik was member of Zila Panchayat and has th th deposed to the same effect as DW2 that on 19 /20 072008, Sabir Chaudhary was present at his village Harsoli. DW4 Mustafa deposed that he was working as partner with accused Sabir and was running factory in the name and style of Devconcast Pvt. Ltd, situated at G25, Industrial Area, Begrajpur, Distt. Muzaffarnagar. He has also deposed that on S.C. No. 49/09 Page 11/24 12 19/20072008, Sabir Chaudhary was present at village.
10. Accused Yogesh @ Satbir did not prefer to lead any evidence in his defence.
11. I have heard Sh. Ravinder Khandelwal, ld. Prosecutor for the State and Sh. B.K. Sharma, Advocate, for accused Sabir Chaudhary, Sh. Pradeep Tewatia, Advocate, for accused Yogesh @ Satbir, and have perused the record.
12. It was submitted by Sh. B.K. Sharma, Advocate, for accused Sabir Chaudhary that prosecution is relying upon the last seen evidence. However, even that is not proved, inasmuch as, PW2 Akhtar, brother of Dilshad, merely deposed that he saw his brother standing with the accused. He did not even speak that he had seen him going with the accused persons. Even otherwise, in crossexamination, the witness has clearly deposed that Dilshad had even come to his house at Meerut to see his ailing wife on 24.07.2008. That being so, even last seen evidence is not proved. Moreover, last seen evidence simpliciter is not sufficient to prove that accused has committed murder of Dilshad. This case is based on circumstantial evidence and complete chain in the link is required to be proved. In the instant case, the chain has not even started. Therefore, question of completion of link in the chain is out of question. He relied upon a number of judgements in support of his submissions. It was further submitted that Sabir Chaudhary was not even present in Delhi and was at his village and the defence witnesses have proved this fact. It was submitted that defence witnesses are required to be given same credence as that of prosecution witness. As such, it was submitted that prosecution has miserably failed to prove its case beyond reasonable doubt against S.C. No. 49/09 Page 12/24 13 accused Sabir Chaudhary and as such he is entitled to be acquitted.
13. Sh. Pradeep Tewatia, Advocate, for accused Yogesh submitted that in the initial complaint made by Rukhsana, wife of Dilshad, name of Yogesh @ Satbir did not even find mention. Moreover, last seen evidence means that after that particular date the deceased was not seen. However, in crossexamination PW2 Akhtar deposed that Dilshad had gone to his village at Meerut on 24.07.08, and as such at least on 20.07.08 he was alive. Under these circumstances, it was submitted that prosecution has not be able to prove its case and accused is entitled to acquittal in the case.
14. Rebutting submissions of ld. counsel for the accused, it was submitted by ld. Prosecutor that there is last seen evidence, inasmuch as, PW2 Akhtar has clearly deposed that accused persons were suspecting hand of Dilshad in murder of Shamim Bhagat and for that purpose they had taken him with them. After 20.07.08, Dilshad was not seen anywhere. He further referred to testimony of Akhtar for submitting that threats were being given to this witness and therefore when he appeared in cross examination he tried to take different stand. However, that is of no consequence, inasmuch as, he has clearly identified both accused persons in his examinationinchief. After 20.07.08 till date, Dilshad has not been seen alive by anybody. That being so, it was submitted that it were the accused persons, who took Dilshad with them in order to dispose him off. As such prosecution has been able to establish its case beyond shadow of reasonable doubt and accused persons are liable to be convicted of the offences against them.
15. I have given my considerable thoughts to respective submissions of S.C. No. 49/09 Page 13/24 14 the ld. counsel for the parties and have perused the record.
16. Perusal of aforesaid evidence led by the prosecution goes to show that basically it is relying upon "last seen evidence", inasmuch as, PW2 Akhtar had deposed that on 19.07.08 he had received telephone call from his brother and thereupon he met him, at that time Dilshad was very afraid and perplexed and informed him that Shamim Bhagat was shot dead 810 days prior thereto and Sabir Chaudhary, Yogesh @ Satbir and others were involved. He had witnessed the scene of occurrence of shooting. Since Dilshad was born in Meerut, these persons were raising suspicion upon him in getting Shamim Bhagat killed. Thereupon, Akhtar asked him to change the rented accommodation. Thereafter, on 20.07.08 again on the asking of Dilshad, he went to meet his brother and met him. When he entered the bankwali gali, Seelampuri, he saw his brother standing with Sabir Chaudhary, Babar Chaudhary, Nasir Chibbla, Yogesh @ Satbir and one or two more persons. On inquiry, he was informed by his brother that he was going with these persons in order to remove their confusion. There is force in the submission of the ld. counsel for the accused that thereafter there is nothing in the testimony of this witness to show that in fact Dilshad went with these accused persons. Moreover, in crossexamination he completely demolished the case of prosecution by deposing that accused persons and their associates went in one direction while Dilshad went in other direction. He even went on deposing that on 24.07.08 Dilshad had even come to Meerut to see his ailing wife. That being so, if Dilshad was seen alive on 24.07.08, then question of last seen evidence on 20.07.08 does not arise. Even if it is taken that examinationinchief of this witness was recorded on 22.08.09 and thereafter his crossexamination was S.C. No. 49/09 Page 14/24 15 recorded on 17.12.09 and 16.01.10 and therefore there is time gap between his examinationinchief and crossexamination and in his examinationinchief he had apprehended danger to his life at the hands of accused persons and their associates. Therefore something must have happened during this period for which reason he may have taken the changed stand. Even if this submission is accepted and only examination inchief of witness is considered, even then the same does not proves the case of prosecution beyond reasonable doubt, inasmuch as, at the cost of repetition, it may be mentioned that testimony of witness was confined to the fact that in Bankwali street, when he met his brother Dilshad, he only told him that he was going with accused persons in order to remove their confusion. But there is no subsequent averment that he had actually gone with them. ld. counsel for the accused relied upon 1997 (2) CCC 101 Raj Mani vs. State. That was the case under section 302 IPC and one of the piece of evidence relied upon by the prosecution was last seen evidence. It was held by Hon'ble High Court that merely because accused had left the place in the company of deceased and returned alone would not be sufficient to held him guilty of committing murder, and the circumstances creates suspicion against the accused, but it does not establish the charge of murder. Reliance was also placed on Mohd. Zakir vs. State, 2005 (1) JCC 346, where also it was observed that last seen evidence again itself be a clincher in absence of explanation given by the accused to the witness have been shown as false by the positive evidence. The gap between last seen and body recovered cannot be said to be of close proximity so as to discard the possibility of any other person other than accused having committed the crime. Reference was made to State of S.C. No. 49/09 Page 15/24 16 Maharashtra vs. Annappa Badu Kartage, 1980 SCC (Cr.)155, V. Singh vs. State, 2002 (8) SCC 45, Chaudhary vs. State 2001 RCR (Cr.)31 where it was held that solitary circumstance of last seen evidence is innocuous and has no meaning. Reliance was also placed on 2006 I AD (Cr.) SC 649, Ramreddy Rajesh Khanna Reddy and another vs. State of Andra Pradesh where it was observed that last seen theory comes into place where the time gap between point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. Similar view was reiterated in 1998 (II) AD (Delhi) 673 Dinesh Kumar vs. State, AIR 1998 SC 2899, State of Punjab vs. Swaroop Singh where it was held by Hon'ble Apex Court that evidence of a witness that both accused and deceased were last seen together is not sufficient to give rise to inference that from this circumstance alone it is proved that accused committed murder of deceased. Substantially similar view was taken in 2004 (1) AD (Cr.) DHC 14, Manpreet Singh and others vs. State where also it was held that the mere fact that deceased was last seen with accused by itself is not sufficient to bring home guilt of the accused. 1997 JCC 450, Raj Mani vs. State was again the case, where it was held that only factor (last seen together) could not be proved beyond all reasonable doubt of offence which is based on suspicion and the suspicion however strong cannot take place of proof. In view of these catena of decisions relied upon by the ld. counsel for the accused, firstly last seen evidence as deposed that PW2 Akhtar in his examinationinchief is demolished by his cross examination, wherein he deposed hat accused persons went in one S.C. No. 49/09 Page 16/24 17 direction and his brother went in another direction. Moreover, according to him, after 20.07.08 his brother even came to his house in Meerut on 24.08.08. Even otherwise, this factum of last seen together simpliciter is not sufficient to raise any inference that it were accused persons, who had taken Dilshad with them and thereafter committed his murder, inasmuch as, absolutely no evidence has come on record as to what has happened with Dilshad.
17. The other piece of evidence relied upon by the prosecution is the disclosure statement made by both accused persons and thereafter pointing out memo prepared at their instance. Disclosure statement is made by accused while in custody before the police officer under section 25 Arms Act. It is the case of prosecution that as and when accused were arrested they made disclosure statement. Such a statement is made by an accused while in custody before the police officer u/s 25 of Evidence Act. Therefore, it is relevant to refer to the provisions of Sections 25, 26 and 27, which are reproduced as under : "25. Confession to police officer not be proved. No confession made to a police officer shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him. No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
(Explanation. In the section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the S.C. No. 49/09 Page 17/24 18 powers of a Magistrate under the Code of Criminal Procedure, 1882.
27. How much of information received from accused may be proved Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact there by discovered may be proved."
18. From the perusal of the above provisions of law, it can be seen that a fact discovered on information supplied by the accused in his disclosure statement, is a relevant fact and that is only admissible in evidence if some thing new is discovered or recovered from the accused, which was not within the knowledge of the police before recording the disclosure statement of the accused.
19. The question arising in the present case has been considered in many cases already decided, some of which are as under : In Ram Kishore vs. State, reported as 1990 (2) Chandigarh Criminal Cases 205, it has been laid down that the prosecution has tried to built up their case on the disclosure statement of the accused which to our mind are of confessional nature. Section 27 of the Evidence Act lays down an exception to the rule that a confession made by an accused person whilst he is in custody must be excluded from evidence and permits the admission of such a confession under the condition prescribed by it. This section is by way of a proviso to both Sections 25 and 26. That is why this proviso has to be strictly construed and any relaxation must be sparingly allowed. The Courts have to take care that the purpose and object of Sections 25 and 26 are not rendered nugatory by any lax S.C. No. 49/09 Page 18/24 19 interpretation. The difficulty, however, great of proving that a fact discovered on information supplied by the accused is a relevant fact, can afford no justification for reading into the section something that is no there and admitting in an evidence a confession barred by section 25.
20. In Vinod Kumar & Anr. vs. State, reported as 1990 (2) Chandigarh Criminal Cases 211, a Division Bench of Hon'ble Court held that under Section 27 of the Evidence Act only that part of the statement of accused made to the police could be admissible in evidence which had led to discovery of a particular fact. In the present case, disclosure statement did not lead to the recovery of the weapon. The place of the occurrence was already known to the police before recording of the disclosure statement and thus the pointing out of the place of occurrence by accused Suresh and the memo prepared in that respect was not admissible in evidence.
21. In Mangal Singh vs. State, reported as 1995 (1) Chandigarh Criminal Cases 45, Hon'ble Court was of the view that where the information does not relate distinctly to the fact thereby discovered the admissibility of the disclosure statement of the appellant is not legally tenable under Section 27 of the Evidence Act.
22. In Jaiveer vs. State, reported as 1995 (2) Chandigarh Criminal Cases 422, a Division Bench of had laid down that the disclosure statement of the accused is not at all admissible in evidence where it has not led to any discovery of any fact which was not known to the investigating officer also under section 27 of the Evidence Act.
23. Again in Virender Kumar Yadav vs. State, reported as 1995 (3) Chandigarh Criminal Cases 236, it has been held that the confessional S.C. No. 49/09 Page 19/24 20 statement of accused which has not led to any discovery and any material fact was totally inadmissible in evidence under section 27 of the Evidence Act, and it has depreciated the tendency of lower courts to exhibit the confessional statements made by the accused to the police, during the trial which are not in accordance with the law.
24. The ration decidendi of all these cases is that only that part of the statement made by an accused to the police officer is admissible in evidence which led to discovery of a particular fact. In the instant case, absolutely no recovery has been effected at the instance of accused. As such disclosure statements made by them is inadmissible in evidence. For the same reason, mere pointing out memo prepared at their instance which does not lead to recovery is inadmissible in evidence.
25. Result of the aforesaid discussion is that except for last seen evidence, which is also not duly proved there is no other evidence to connect the accused persons with crime. It has been consistently laid down by Hon'ble Apex Court and Hon'ble High Court that where the case rests squarely on circumstantial evidence, inference of guilt can be justified only when incriminating facts and circumstances are found to be incapable with innocence of accused or guilt of any other person. The circumstances so proved should be consistent only with hypothesis of guilt of the accused and rather exclude even reasonable hypothesis of his being innocent. Of course, circumstances proved by the prosecution neet not exclude each and every hypothesis suggested by the accused, however remote and far fetched it may be. The chain of evidence produced by the prosecution must be so linked that in all human probabilities offence was committed by none other than the accused. S.C. No. 49/09 Page 20/24
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26. In the instant case, prosecution machinery was set in motion on the basis of complaint made by Rukhsana, wife of deceased Dilshad, on 04.08.08 and in this complaint she raised suspicion upon Nasir @ Chibbla to be responsible for abduction of her husband. In this complaint, there was no suspicion either on Sabir Chaudhary or Yogesh @ Satbir. However, when PW2 Akhtar made statement before the police officer, at that time he had named Sabir Chauhdary and Yogesh @ Satbir. However, as stated above, suspicion howsoever strong cannot take place of proof, when case rests solely on circumstantial evidence. However, as observed by Hon'ble High Court in Raj Mani (supra) that chain of circumstantial evidence must be so complete so as to point to the guilt of the accused alone inconsistent with hypothesis of the innocence of the accused.
27. As regards accused Sabir Chaudhary is concerned, he has taken plea of alibi by stating that on the relevant date, he was present at his village Harsoli, inasmuch as, 10th day of ceremony of his deceased brother Shamim Bhagat had taken place on 19.07.08 and since many relatives had come, therefore even on 20.07.08 he was present at his village. In order to substantiate this plea, as stated above, he has examined four witnesses. DW1 Aslam has in fact tried to corroborate the version of Akhtar (PW2) that Dilshad had gone to Meerut on 24.07.08, inasmuch as, this witness has deposed that Dilshad was auto driver and he was also working as auto driver. On 24.07.08, Dilshad was going on Brahmpuri Road. On seeing him, he called him and asked him to leave near Seelampur Gurudwara in his auto. On inquiry, he informed him that he was going to Meerut to meet his ailing Bhabhi over there. The remaining three witnesses, namely, DW2 Imam Ali, DW3 Tiras Pal Malik and DW4 S.C. No. 49/09 Page 21/24 22 Mustafa has deposed that Sabir Chaudhary was present at his village Harsoli in connection with 10th day death ceremony of his brother Shamim Bhagat. They had also attended that ceremony and even remained with Sabir Chaudhary on 20.07.08 at the village. Despite crossexamination by the ld. Prosecutor, nothing material could be elicited to discard their testimony. Moreover, DW2 Imam Ali is the Pradhan of village, while DW3 Tiras Pal Malik was a member of Zila Panchayat, as such both these persons are respectable of village and there is no reason to discard their testimony. ld. counsel for the accused has placed reliance on AIR 1981 SC 911 Dudh Nath Pandey vs. State of UP, where it was observed by Hon'ble Apex Court that defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Evidence of defence witnesses cannot be brushed aside in the instant case. More particularly keeping in view the fact that even prosecution has not been able to bring home guilt of the accused persons beyond reasonable doubt. Entire case of prosecution remained in realm of suspicion only and did not travel beyond that.
28. As held by Hon'ble Supreme Court in Swarn singh Ratan Singh Vs. State of Punjab, AIR 1957 SC 637, it was held by the Apex Court that in criminal cases mere suspicion, however, strong, cannot take place of proof. The Court must also take into consideration that an accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere suspicion, however, strong it may be, cannot take the place of legal proof.
29. Moreover, in Kali Ram Vs. State of Himachal Pradesh, AIR 1973 S.C. No. 49/09 Page 22/24 23 SC 2773, the Apex Court had observed as follows : "Another Golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused, and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. The rule regarding that benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations.
Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is exfacie trustworthy on grounds which are fanciful or in the nature of conjectures.
The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this S.C. No. 49/09 Page 23/24 24 respect, however is more apparent than real.
It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimized but not rule out altogether."
These two authorities, as detailed above, were relied upon by the Hon'ble High Court in CRL. A. No. 240/2009, dated 17th June, 2009, in case titled Shri Raj Pal Vs. State (NCT of Delhi) & Ors.
30. As such on the basis of suspicion alone accused persons cannot be convicted, inasmuch as, it is cardinal principle of criminal jurisprudence that accused is presumed to be innocent unless he is proved to be guilty of offence and onus squarely lies upon the prosecution to establish its case beyond reasonable doubt.
31. In view of the discussions made above, prosecution has failed to prove its case against the accused persons beyond reasonable doubt. That being so, accused are entitled to benefit of doubt. Accordingly, both the accused persons are acquitted of the charge. They be set at liberty, if not wanted in any other case. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta) On this 31st day of January, 2011. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
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