State vs Naushad
2013 Latest Caselaw 2820 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.L.P. 55/2013
                                              Date of Decision: 08.07.2013

       STATE                                          ..... Petitioner
                          Through:   Mr. Dayan Krishnan, ASC for the
                                     State with SI Rizwan Khan, PS
                                     Welcom
                          versus

       NAUSHAD                                          ..... Respondent
                          Through:   None.

       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MS. JUSTICE INDERMEET KAUR

KAILASH GAMBHIR, J.

1. By this petition filed under Section 378(1) Cr.P.C., the petitioner

seeks Criminal Leave to Appeal to challenge the order of the acquittal dated

16.04.2012 passed by the learned Additional Sessions Judge-01, North East,

Karkardooma Courts, New Delhi thereby acquitting the respondent/accused

person of the charges framed against him under Sections 302 IPC read with

Sections 25/27/54/59 of the Arms Act.

2. Addressing arguments in support of criminal leave to appeal,

Mr.Dayan Krishnan, Additional Standing Counsel for State, submits that the

chain of circumstantial evidence is complete in the present case, which

clearly traces the guilt of the accused but yet the learned Trial Court has

passed the order of acquittal. Learned ASC also submits that the weapon of

offence was also recovered at the instance of the accused Naushad and even

blood stained clothes of the accused were found at the scene of the crime

and therefore, the prosecution has established its case beyond any

reasonable doubt to prove the guilt of the accused person. Learned ASC

further submits that the most incriminating evidence against the accused is

that the body of the deceased was recovered from the tenanted room, which

was indisputably in possession of the respondent/ accused person.

3. Based on the above submissions, learned Additional Standing Counsel

for the State submits that this is a fit case for the grant of criminal leave to

appeal so as to challenge the said order of acquittal.

4. We have heard learned counsel for the State at considerable length

and given our thoughtful consideration to the arguments advanced by him.

We have also gone through the judgment dated 16.04.2012 passed by the

learned Trial Court and the other materials placed on record.

5. At the outset, we express our great anguish and displeasure to notice

the complete failure of the prosecution in carrying out investigation in a just

and fair manner in the present case involving the murder of a married lady

aged about 30-35 years, whose body was found in a tenanted room being

part of property bearing No.H.No.B-86/4, Gali No.5, Sudama Puri, Babar

Pur, Delhi, which was under the occupancy of accused Naushad, the

respondent herein. The said incident was reported by Mohalla persons on

02.12.2009 at 11.00 p.m. when they found that the room was lying locked

from outside and a fiendish smell was coming out from there. A PCR van

had reached the spot and thereafter an information was passed on to the

concerned police station and investigation in the said crime was commenced

by Insp. R.K.Jha assisted by other police officials. In the process of

investigation, the IO of the case in the presence of the landlord of the said

tenanted room had seized the bed-sheet, two pillow covers, blanket and

cotton mattress having blood stains vide seizure memo Ex.PW-5/A. The

officer had also taken into possession an orange colour salwar suit and bra of

the deceased lying on the floor having blood stains vide seizure memo

Ex.PW5/6 and gents white shirt and a sky blue inner which was lying on

the floor vide seizure memo Ex.PW-5/B. He had also seized one lady's

purse containing an amount of Rs.85/- and one anklet vide seizure memo

PW-5/E. The accused Naushad was apprehended by the police from his

native place in Bihar and he was produced before the IO on 23 rd December,

2009. During the course of his interrogation, the accused Naushad in his

disclosure statement Ex.PW20/J had disclosed that he had murdered Bhuri

with 'churris' and he can get the weapon of offence recovered from the

tenanted room and on the same day, the accused Naushad got 'one churi'

recovered from the slab/taand of the tenanted room and three 'churris' from

the wooden almirah fitted with wall. He also disclosed that one churi which

was lifted from the slap/taand was used to commit the murder of the

deceased and other three churris were arranged by him earlier. All the 'four

churris' were sealed in four separate clothes by the police. The police had

also seized mobile phone of the deceased from the possession of the accused

Naushad vide seizure memo Ex.PW4/A. As per the post mortem, the

deceased had received 24 incised stab wounds, out of which injury

Nos.1 and 24 were post mortem in nature and injury Nos. 2 to 23

were ante mortem in nature and cause of death was due to shock as a result

of ante mortem injuries to abdominal organs caused by a sharp edged

weapon. It was further certified that injury Nos.2 to 23 were sufficient to

cause death in ordinary course of nature independently and collectively.

6. In such a shoddy manner the investigation of the present case has

taken place that it appears that the I.O. was not a properly trained officer to

undertake the task of investigation. The police failed to find out the motive

of the crime as no efforts in this direction were made. The police did not

bother even to record the mobile number from which initial complaint was

made. The police failed to take the finger prints from the spot of crime,

which is the first step to be taken by the police in any investigation. The

police could not trace out the weapon of offence from the small room of the

tenanted accommodation but later on, four 'churris' were found on the

disclosure of the accused altercating that they had no control over the said

room. The police did not take help of any witness at the time of seizure of

four 'churris' from the spot of crime. The police failed to explain as to how

they can connect the blood stained shirt and blue inner with the accused. The

police failed to find out and record the statements of two karigars who were

working with the accused tailor. The police further did not make efforts to

find out as to whether the accused was paying any rent to the landlord and if

so in what manner and any rent receipt being issued by the landlord to the

tenant. The police did not send all the 'churris' for scientific opinion. The

police failed to bring on record the IMEI number of ownership of the mobile

phone, which was belonging to the deceased and was recovered from the

possession of the accused. For any investigation into a crime there is a total

dependency on the investigating agency and it is the statutory obligation of

every investigating agency to carry out investigation into each and every

crime whether big or small in a most fair and impartial manner with

complete devotion, honesty and promptness. The investigating officer Mr.

R.K. Jha who was also a SHO of the area police station, as told to us, has not

performed his duty delinquently, fairly and honestly and due to which an

order of acquittal has been passed by the learned Trial Court against the

accused. There is enough suspicion arisen in the present state of affairs as to

whether the respondent is behind the murder of the said lady or some body

else or there may be more than one criminal behind the said ghastly murder

of a married lady 35 years of age.

7. Punishment serves as a deterrent to crime and a shield for the

innocent. Therefore, an investigating officer cannot afford to be conducting

an investigation with haste as any unscrupulous and slack approach may

prove lethal to the case. Prosecution plays a key role in assisting the court to

reach at a just decision. Evidence that challenges the credibility of the

accused or fosters even a slight doubt that if he/she was entirely blameless,

increases the burden on the prosecution to clearly prove the entire set of

facts. However, it is the cardinal principle of criminal jurisprudence that 'no

innocent man is punished and no criminal is let scot-free'. Therefore, it is

important that investigation on which the entire case of the prosecution rests

should not be done with lackadaisical approach as it forms the basis to

decide whether to save an innocent or put such grimed criminals behind the

bars.

8. While dismissing the present criminal leave to appeal we direct the

Commissioner of Police, Delhi to hold an inquiry into the role of

investigating officer Mr.R.K. Jha and other police officials assisting him in

the investigation and take prompt and suitable action against them for not

discharging their duties honestly and diligently. Compliance report shall be

filed by the police within a period of one month from the date of this order.

9. With these directions, the present criminal leave petition is disposed

of.

KAILASH GAMBHIR, J.

INDERMEET KAUR, J.

JULY 08, 2013 v