Delhi District Court
State vs . Aleem Khan & Ors. - Sc No. 59 Of 2011 1/15 on 25 August, 2012
ID No.02406R0296282011
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE-04
SOUTH EAST: SAKET COURTS: DELHI
Sessions Case No. 43/2012
ID No. 02406R0296282011
FIR No. 356/2011
U/s. 302, 201 r/w 34 IPC
PS : Sangam Vihar
State
Versus
Aleem Khan,
S/o Late Sh. Shahzad Khan
R/o L-671/8, Sangam Vihar,
New Delhi. ..........Accused No. 1
Sattar Khan
S/o Sh. Chotte Khan,
R/o House No. 1, Gali No. 31, L-1st,
Sangam Vihar, New Delhi ..........Accused No. 2
Ishaq Khan,
S/o Late Sh. Shahzad Khan,
R/o L-671/8, Sangam Vihar,
New Delhi. ..........Accused No. 3
Instituted on : 13th December, 2011
Argued on : 25th August, 2012
Decided on : 25th August, 2012
JUDGMENT
Case of prosecution On 24.08.2011, one dead body of a male aged about 30 years with multiple injuries on his body was found lying in the garbage in an open plot in the vicinity of Gali No. 4, L-Block, Sangam Vihar, New Delhi. Dead body was identified to be of one Akeel @ Akeela S/o Shahzad Khan r/o L-671/8, Sangam Vihar, New Delhi. He was allegedly known criminal of the area having involvement in several cases. After identification of the dead State Vs. Aleem Khan & Ors. - SC No. 59 of 2011 1/15 ID No.02406R0296282011 body, efforts were made to apprehend the culprits and for this, persons including his associates, rivals and relatives were interrogated. FIR No. 356/2011 was recorded under section 302/201 IPC on 24.08.2011 at 15:10 hours on the basis of statement of complainant Kailash Chand. During the course of interrogation, two real brothers of deceased namely, Aleem and Ishaq were found absent from their house even after the death of their brother. They were traced and interrogated. It is alleged that initially, they refused to have committed the crime, but on interrogation they confessed their crime and were arrested on 27.08.2011. Postmortem on the dead body was conducted. On 27.08.2011, accused persons were arrested and their disclosure statements were recorded. Crime Team inspected the spot. Exhibits were collected and site plan was prepared. It is further the case of prosecution that, at the instance of accused Ishaq two brick pieces and at the instance of accused Sttar Khan one Bamboo danda was recovered from behind the House No. L-671/8, Sangam Vihar. Bicycle and clothes, which accused persons were wearing at the time incident were also seized. On the postmortem report, Autopsy Surgeon noted twenty-three injuries and opined that time since death was about three days. Opinion regarding the cause of death was stated to be combined effect of smothering and head injury, which were individually as well as in combined effect, were sufficient to cause death in the ordinary course of nature. All the injuries were opined to be ante-mortem in nature. Viscera was preserved to rule out any concomitant intoxication. Draftsman prepared scaled site plan and exhibits were sent for seeking opinion from FSL, Rohini. On conclusion of State Vs. Aleem Khan & Ors. - SC No. 59 of 2011 2/15 ID No.02406R0296282011 investigation, charge sheet was prepared by IO/Inspector Subhash Malik and filed in the Court on 17.11.2011. After supplying copies of the documents to the accused u/s 207 Cr.P.C., Learned Metropolitan Magistrate committed the Case to the Court of Sessions.
Charges
2. On 22.03.2012, charges u/s 302 r/w 34 IPC as well as u/w 201 r/w 34 IPC was framed and served to the accused persons to which they pleaded not guilty and claimed trial.
3. The points which emerge for determination in this case are :-
(i) Whether at about 10:30 PM on 22.08.2011, at L-671/8, Sangam Vihar, New Delhi accused persons in furtherance of their common intention committed murder of Akeel S/o Late Sh. Shazad Khan?
(ii) Whether in the intervening night of 23/24.08.2011, accused persons in furtherance of their common intention caused disappearance of evidence by throwing dead body of deceased Akeel in a vacant plot, near House No. 289, Sangam Vihar?
4. To establish accusations against the accused, prosecution examined 15 witness. Gist of the testimony of the prosecution witnesses is as under:-
Prosecution Evidence
5. Sub-Inspector Naresh Kumar (PW-1), Incharge Mobile Crime Team. He deposed that on 24.08.2011, he inspected the spot i.e. open plot near L-289 and prepared report (Ex.PW1/A) at the instance of IO (PW-15). On 27.08.2011, he inspected the room at House No. 671/8, L- Block, Sangam Vihar. He prepared inspection report, which is Ex.PW1/B. State Vs. Aleem Khan & Ors. - SC No. 59 of 2011 3/15 ID No.02406R0296282011
6. Sh. Ved Prakash (PW-2), deposed that he used to sell ice on the pavement of Baandh Road, L-Block, Sangam Vihar and he did not know the boy, who purchased ice from his shop. He could not identify the said boy as several customers used to purchase ice from him everyday. He deposed that police never brought any person at his shop nor he identified any person before the police, who purchased ice. He signed the pointing out memo of the place, where he used to sell ice, which is Ex.PW2/A. He did not know anything more about this case. He was cross examined by Ld. Addl.PP for the State. In cross examination, he admitted that on 27.08.2011, police had brought a person at his shop and he identified him and stated to the police that the said person had purchased the ice of Rs. 50/- on 23.08.2011 at about 10/11:00 am. Accused Aleem Khan was shown to him and he was asked whether he was the person, who was brought by the police at his shop. PW-2 denied and stated that he could not tell as to whether he was same person, who was brought by the police on 27.08.2011.
7. Sh. Kailash Chand (PW-3) deposed that he used to run a shop at L-41 in gali no. 4, Sangam Vihar. One day before Janmashtami, at noon one pandit ji, who used to run a shop of gas cylinder in his neighbourhood, had gone in a vacant plot situated near their shop for urinating. He informed him that something was lying in the plot covered with a cloth. PW-3 deposed that then they went to the said vacant plot, they saw one dead body of a male aged about 30 years, which was lying covered with a cloth. He deposed that deceased was wearing pant and State Vs. Aleem Khan & Ors. - SC No. 59 of 2011 4/15 ID No.02406R0296282011 shirt. He made a call at 100 number from the mobile phone of a boy, who used to supply gas cylinder in the area. PW-3 deposed that police reached at the spot and recorded his statement (Ex.PW3/A). Photographs were shown to PW-3 and after seeing the dead body, he stated that those were the photographs (Ex.PW3/A-1 to Ex.PW3/A-5) of the dead body, which he had seen at the vacant plot.
8. Head Constable Phool Kumar (PW-4), joined investigation with IO. He placed on record statement of Munni Bano (PW-11) and Shakeel (PW-12), mother and brother of the deceased respectively vide memo Ex.PW4/A and Ex.PW4/B respectively. He deposed that postmortem on the dead body was conducted and dead body of Akeela was handed over to his mother and brother vide handing over memo Ex.PW4/C. PW4 deposed that after conducting the postmortem, doctor had handed over viscera, clothes, blood etc and eight pullandas in a sealed pullanda to the IO and IO prepared the seizure memo Ex.PW4/D.
9. Sub-Inspector Mahesh Kumar (PW-5), Draftsman, deposed that on 03.09.2011, he alongwith Inspector Subhash Malik visited place of incident, where dead body was found. On the pointing out of Inspector Subhash Malik, he prepared scaled site plan Ex.PW5/A.
10. Constable Anand (PW-6), Finger Print Proficient, deposed that on 27.08.2011, on receipt of a call, he alongwith SI Naresh Kumar, Incharge Mobile Crime Team and Constable Devraj reached at 671/8, L- Block, Sangam Vihar, where IO/Inspector Subhash Malik met and he directed them to inspect the spot. He tried to lift the chance prints from the State Vs. Aleem Khan & Ors. - SC No. 59 of 2011 5/15 ID No.02406R0296282011 spot, but same were not found. He deposed that Constable Devraj took the photographs of blood stained spots from the walls and other places in the room from different angles at the instance of IO. PW-6 further deposed that there were blood stains on the wall adjoining the slab and also over the plywood almirah. IO had taken the said blood stained plaster and the plywood.
11. Constable Jaiveer Singh (PW-7), Photographer, on 24.08.2011, he accompanied Sub-Inspector Naresh Kumar, Incharge Crime Team to the spot i.e. vacant plot L-4, 290, near house No. 289, Sangam Vihar and took the photographs of the dead body from different angles vide Ex.PW3/A-1 to Ex.PW3/A-5 and negatives of these photographs are Ex.PW7/A-1 to Ex.PW7/A-5.
12. Constable Vikas (PW-8), on 26.09.2011, Head Constable Gajraj MHC(M) handed over 14 sealed pullandas, viscera peti, FSL Form alongwith the sameple seal to him for deposit at FSL, Rohini. He deposited the same at FSL, Rohini and obtained acknowledgment (Ex.PW8/B), which was handed over to the MHC(M) Head Constable Gajraj.
13. Sh. Krishana (PW-9), deposed that he did not remember the date and month, but about nine-ten months ago, one day, he was going to supply the cylinder in the C-Block, Shani Bazaar. At about 11/12 noon, when he was passing through Gali No.4, he saw that public persons were gathered there. One dead body of unknown person was lying there in a vacant plot. PW-9 deposed that he could not notice the injuries and the description of the clothes on the dead body. One person namely Kailash State Vs. Aleem Khan & Ors. - SC No. 59 of 2011 6/15 ID No.02406R0296282011 Chand present there had taken his mobile phone and called at 100 number and told the address of the said place to the police and thereafter, he went to his house. He deposed that later on, police inquired from him. He deposed that he had not seen the dead body by visiting close to it. PW-9 deposed that he had only heard from the people, who had gathered near the plot that a dead body was lying therein and they had requested him to call the police at 100 number. Call to the police was made from his mobile number 9911603495.
14. Sh. Subhash Chand (PW-10), deposed that he was having a tailor shop at shop no. 6 at house no. 1048, gali no. 8, Shukra Bazaar road, Sangam Vihar, New Delhi. In the month of August, 2011, he came to know from the public persons that dead body of one Akeela, who was residing in front of his shop was found in gali no. 4, Sangam Vihar. He did not know anything else about his case. He was cross examined by Ld. Addl. PP. In his cross examination, he deposed that police had not recorded his statement and not made any inquiries from him. He denied all the suggestion put to him by Ld. Addl. PP.
15. Smt. Munni Bano (PW-11), deposed that her son Akeel (deceased) was a vagabond. Her son used to roam aimlessly and was not engaged in any activity. She did not know how her son Akeel expired. She deposed that Akeel had left their residence about 4/5 days prior to Janmashthmi last year. Two-three days after Janmashthmi, he heard that the dead body of his son Akeel was found and the same was lying at mortuary, AIIMS Hospital. She reached there and identified the dead body State Vs. Aleem Khan & Ors. - SC No. 59 of 2011 7/15 ID No.02406R0296282011 of her son. Police recorded her statement to the effect. She deposed that she did not know anything else. She was cross examined by Ld. Addl. PP. In her cross examination, she denied all the suggestions put to him by the Ld. Addl. PP. She deposed that on 25.08.2011, she had told to the police that her son Akeel had disappeared in the night of 22.08.2011 and she came to know on 24.08.2011 that in Gali No. 4, L-Block, Sangam Vihar, one dead body of a male was found in a open plot. She denied the suggestions given by Ld. Addl.PP for the State that she alongwith her elder son Shakeel Khan went to see the unknown dead body of male at the police station and the police had taken them to the mortuary, where she identified the dead body of her son Akeel. PW-11 denied that the police had recorded her another statement on 27.08.2011. She categorically denied that on 22.08.2011 at 10.30 PM her son deceased Akeel was under the influence of liquor and was abusing Sattar Khan @ Safeda, son of her sister or that deceased Akeel has taken out a bamboo danda from inside the house and started beating Sattar on intervening by her other son Aleem and then, Akeel had inflicted a danda blow on the head of Aleem. She denied that when her other son Ishaq had intervened, then Akeel had also beaten him with danda or that while all the aforesaid four persons were quarreling, they again came inside the room.
16. PW-11 denied that at that time she was also present in her compound and her son Aleem (accused) had asked her to go on the first floor. She denied that when she woke up in the morning, then the accused Aleem had told her that he alongwith Ishaq and Sattar Khan @ Safeda had State Vs. Aleem Khan & Ors. - SC No. 59 of 2011 8/15 ID No.02406R0296282011 killed her son Akeel. She specifically denied that Aleem alongwith Ishaq and Sattar Khan @ Safed told her that when Akeel fell down, then Ishaq had bring a brick nearby the gate and gave brick blow on the head and face of Akeel and despite that when they saw that the deceased was still breathing, then they had shut and pressed the mouth and nose and killed him. PW-11 denied that Aleem had threatened her not to disclose the incident otherwise they will kill her. PW-11 denied that on 23.08.2011 at about 11.00 AM, the accused persons have brought the ice and put on the dead body of Akeel along with the dhoop agarbatti in order to avoid foul's smell. She also denied that in the intervening night of 23-24.08.2011, in the midnight, Aleem, Ishaq and Sattar had come to the house and Sattar was having a bicycle and all the three persons had loaded the dead body of Akeel on the cycle and put a cloth upon that body or accused Aleem and Sattar were giving support to the said body on cycle and Ishaq had taken away the cycle in her presence from the House. PW-11 denied that when all the three persons returned to the house, they told her that they had thrown the dead body of Akeel and they again washed the floor of the house. She admitted that accused Aleem and Ishaq are her real sons and Sattar was the son of her sister. She denied that in order to save the accused, who are her sons and her nephew, she was deposing falsely.
17. Sh. Shakeel Khan (PW-12), deposed that accused Aleem and Ishaq were his brothers and Sattar was the son of his mausi (mother's sister). He deposed that Akeel (deceased) was also her brother. He deposed that Akeel had expired last year in the month of August near State Vs. Aleem Khan & Ors. - SC No. 59 of 2011 9/15 ID No.02406R0296282011 Janmashthmi Festival. His mother informed him that she had heard that somebody had killed Akeel and they had to go to the mortuary to identify his dead body. He accompanied his mother and identified the dead body of his brother Akeel in the mortuary. He did not know anything else or anything about the cause of the death of Akeel. PW-12 deposed that police had only inquired about his name and address and nothing else. He was cross examined by Ld. Addl. PP. In cross examination, he denied the suggestions put to him by Ld. Addl. PP. He denied the suggestion that on 27.08.2011, the police had recorded his statement. He admitted that he was living separately from his family for the last 15 / 16 years. He admitted he used to go on his duty at about 08.00 AM and used to return at about 08.30 PM. He denied that in the intervening night of 22-23.08.2012 at about 1.30 / 2.00 AM, his brother / accused Aleem, Ishaq and his cousin Sattar had come to his house and after knocking the door, he came out and that all the three persons had told him that they had killed Akeel and his dead body was lying in the house, which had to be disposed off and they asked him to join them in disposing off the dead body. PW-12 denied that on 23.08.2011, when he returned to his house, accused Aleem had asked him telephonically that they had thrown the dead body of Akeel in Gali No. 4, L Block and they washed the house in order to cause the disappearance of the evidence. PW-12 denied that the accused persons had told him all the facts regarding murder of deceased Akeel committed by them or he was suppressing the facts deliberately in order to save the accused persons.
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ID No.02406R0296282011
18. Constable Dev Raj (PW-13), Photographer, deposed that on 27.08.2011, he accompanied Sub-Inspector Naresh Kumar and Finger print expert Constable Anand Kumar to the spot i.e. House No. 671/8, L- Block, Sangam Vihar. At the instance of IO, he took photographs of dead body of male lying on the floor and blood appeared to have been oozed out from his body, which are Ex.PW13/A-1 to Ex.PW13/A-15.
19. Sh. Rajender Saini (PW-14), deposed that last year about one day prior to Janmashtami i.e. on 23 rd, he received a telephonic call from a police official, who informed him that a murder has taken place in the gali. He asked him to see the spot in L-Block, Gali No.4. On this information, he reached in gali No. 4, where a dead body was found lying. After six-seven days later, he was called in the Police Station and police made inquiry from him. He refused to have any knowledge or clue about the murder of dead body found in the gali No. 4. PW-14 deposed that he did not know anything else about this case. He was cross examined by Ld. Addl. PP. In cross examination, he deposed that Police did not record his statement. He denied all the suggestions put to him by the Learned Addl. PP.
20. IO/Inspector Subhash Malik (PW-15), investigated the case and prepared several documents in the course of investigation. He deposed that on 24.08.2011, further investigation of this case was assigned to him. Formal FIR (Ex.PW15/A) was already registered on the basis of statement of Kailash Chand (Ex.PW3/A) and the endorsement of Sub- Inspector Veer Singh on the same is Ex.PW15/B. He seized a saree from the State Vs. Aleem Khan & Ors. - SC No. 59 of 2011 11/15 ID No.02406R0296282011 spot vide memo Ex.PW15/C and prepared site map Ex.PA. On 25.08.2011, he prepared the death report Ex.PM and made a request Ex.PL to the doctor for conducting postmortem. After postmortem, dead body was handed over to its legal heirs vide receipt Ex.PW14/C. IO seized exhibits through the seizure memo Ex.PW14/D. He prepared the arrest memos Ex.PE, Ex.PF and Ex.PG. He prepared the personal search memos Ex.PW15/D, Ex.PW15/E and Ex.PW15/F. IO (PW-15) recorded their disclosure statement Ex.PW15/F1, Ex.PW15/F2 and Ex.PW15/F3. He prepared the site plan of the place of occurrence vide memo Ex.PD and seized the blood stained plaster from the wall vide seizure memo Ex.PH. IO prepared pointing out memo of place of occurrence and place of recovery of dead body vide memos Ex.PW15/G and Ex.PW15/H respectively at the instance of the accused persons. IO deposed that, at the instance of accused Sattar khan one danda was recovered from the area of Shamshan Bhumi, L-Block, vide seizure memo Ex.PJ and two pieces of brick were recovered at the instance of accused Isaar khan from the behind of the house of deceased through seizure memo Ex.PK. He seized clothes of accused Sattar Khan, Aleem Khan and Isaar Khan vide memo Ex.PW15/G1, Ex.PW15/G2 and Ex.PW15/G3 respectively and one bicycle Hero make at the instance of accused Sattar Khan vide memo Ex.PW15/J. He placed on record opinion received from Forensic Department, AIIMS (Ex.PW15/K).
Statement of accused persons
21. On conclusion of prosecution evidence, statement of accused persons u/s 313 Cr.P.C. were recorded. Accused persons pleaded innocence State Vs. Aleem Khan & Ors. - SC No. 59 of 2011 12/15 ID No.02406R0296282011 and false implication.
Submissions advanced
22. I have heard submissions advanced by Sh. Wasi-Ur-Rehman, Learned Addl.PP for the State as well as Sh. Niranjan Mishra, Learned Counsel for that accused persons and perused the material on record carefully.
23. Learned Addl. PP submits that the eye witnesses examined in this case have resiled from their earlier statements as they are the relatives of the accused and have intentionally suppressed the truth, but, still the case is proved because the IO (PW-15) deposed that he had written statements of eye witnesses and whatever they had stated voluntarily. Therefore, IO proved the statements of the eye-witness and other material witnesses. In these circumstances, the accused do not deserve any advantage because the witnesses have turned hostile as they are near relatives of accused persons and they have deposed falsely in order to save the accused, therefore, he argued that accused persons are liable to be convicted.
24. On the other hand Learned Counsel for the accused persons submit that accused persons have been falsely implicated by the police. He submits that since police failed to got any clue about the murder of the deceased. Two accused persons are real brother of deceased and one of them is cousin of deceased was planted in this case. It is submitted that accused persons were resided separately and there is nothing on record to show that the accused persons were lastly seen with the deceased. None of State Vs. Aleem Khan & Ors. - SC No. 59 of 2011 13/15 ID No.02406R0296282011 the independent witness have been examined. He further submit that there is nothing in the FSL report to link the accused with the offence. Conclusions
25. It may be noted that case of the prosecution is based on the evidence of eye-witness as well as circumstantial evidence of recovery of weapon. Admittedly, no eye witness has linked the accused with the offence in question. None of the eye-witness namely Munni Bano (PW-11) or Shakeel Khan (PW-12), have supported the case of prosecution. PW-11 deposed that she did not know how his son Akeel expired. Two-three days after Janamashthami, he heard that the dead body of his son Akeel was found and the same was lying in the mortuary. PW-12 deposed that he did know anything about the cause of the death of Akeel and his mother had informed him that she had heard that somebody had killed Akeel and they had to go the mortuary to identify his dead body. Sh. Ved Prakash (PW-2), ice seller deposed that about three-four months ago, one day at about 10/11:00 am, one boy had purchased ice in the sum of Rs.15/- from his shop, but he did not know the name of that boy and that several customers used to purchase ice from him every day and he was unable to recollect the identity of the accused. Sh.Rajender Saini (PW-14), Pradhan of the area deposed that he did not know anything about the case. He received a telephonic call from police and reached in gali no. 4, where a dead body was found lying. All these witnesses were cross examined by Learned Addl. PP for the State. They denied all the suggestions put to them by the Learned Addl. PP.
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26. On scrutiny of evidence on record, this Court finds that prosecution has failed to establish any of the charges beyond reasonable doubt. In the result, accused persons namely Aleem Khan, Sattar Khan and Ishaq Khan are hereby acquitted from the charges. Accused persons, who are is in judicial custody, are ordered to be released forthwith, if not wanted in connection with any other case. File be consigned to Record Room.
announced in the
open court on (VINAY KUMAR KHANNA)
25th August, 2012 Additional Sessions Judge-04
(South-East) Saket/New Delhi
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