Delhi High Court
State vs Shabana & Ors on 22 September, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Pronounced On: 22.09.2017
CRL.L.P.386/2017 & CRL.M.A.10963/2017
STATE ..... Petitioner
Through: Ms. Rajni Gupta, APP with Inspector
Ramesh Dahiya & Inspector Manoj,
PS-Khajoori Khas
versus
SHABANA & ORS ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE A.K. CHAWLA
SIDDHARTH MRIDUL, J (ORAL)
1. The present leave petition instituted on behalf of the State, under
Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to
as 'Cr.P.C.'), assails the judgment and order on sentence dated 02.02.2017,
rendered by the Additional District & Sessions Judge, (North-East),
Karkardooma Courts, Delhi, thereby acquitting respondents 1 to 4 in case
titled as 'State vs. Shabana & Ors.'; arising out of FIR No.49/2008; under
Sections 302/201/34 of the Indian Penal Code, 1860 (hereinafter referred to
as 'IPC').
2. Briefly encapsulated, the case of the prosecution is that on 19.02.2008
at 07:33 a.m., Head Constable Hari Shankar (PW-3), Duty officer at Police
Station Khajuri Khas, received a PCR call informing that a person was lying
dead in Gali No.3, E-Block, near police station and that somebody killed him
in the night. The DD No.2A [Ex.PW3/A] was conveyed to Sub-Inspector
Ravi Karan, who along with Inspector Ramesh Dahiya (PW-19) reached the
spot and found one person, aged about 40 years, lying dead with alleged
marks of rassi/wire like object around his neck and blood emanating from
his mouth. The respondent No.1 Shabana, the wife of the deceased Ali Jan,
reached the spot and identified her husbands' body. Based on the statement
of Shabana, rukka [Ex.PW-19/A] was sent to the police station at 9:05 a.m.
and FIR [Ex.PW3/D] was registered on the same morning.
The post-mortem of the deceased Ali Jan was conducted on
19.02.2008 at 01:35 p.m., by Dr. Sumit Tellewar (PW-20), who opined the
cause of death as 'asphyxia due to ante-mortem ligature strangulation,
sufficient to cause death in ordinary course of nature'. The time since death,
at the time of conducting the post-mortem, was opined to be approximately
12 hours. In other words, based on the medical opinion of PW-20, it can be
inferred that the deceased had died at about 01:30 a.m., on the night
intervening 18/19.02.2008.
3. It is the case of the prosecution that Shabana, the wife of the deceased
was interrogated and is stated to have made a disclosure statement [Ex.PW-
14/A], wherein she disclosed that there were repeated quarrels between her
and the deceased in relation to the marriage of their daughter Heena. The
deceased wanted to marry Heena with somebody in Agra, which was not in
accord with the wishes of Shabana, to get their daughter married to the
accused Faisal. It was further allegedly disclosed by Shabana that the
deceased was habituated to drinking and gambling, and used to subject her to
physical assault and beating. Further, it was allegedly disclosed that along
with accused Faisal and his friends; accused Imran Khan and Yamin, it was
decided to eliminate the deceased and with the common intention, after
making the deceased imbibe excess liquor, he was murdered by means of
strangulation whilst he was sleeping. It was lastly allegedly disclosed that
the accused Faisal, Yamin and Imran Khan carried the dead body of the
deceased from the rented accommodation/room of Shabana at Gali No.1, Sri
Ram Colony, Delhi, and threw it in Gali No.3, Sriram Colony, Delhi, in
order to avoid suspicion.
4. On 20.02.2008, in pursuance to the disclosure statement made by
Shabana and upon receipt of secret information, Inspector Ramesh Dahiya
(PW-19), the Investigating Officer, arrested accused Faisal and Imran Khan
from near the BSES office at Yamuna Vihar, Delhi [vide arrest memos
Ex.PW14/B and ExPW14/C, respectively]. The latter are alleged to have
made disclosure statements [Ex.PW-14/H and Ex.PW-14/J, respectively],
admitting the commission of the murder of the deceased. Furthermore, they
also pointed out the scene of crime [Ex.PW14/F and Ex.PW14/G,
respectively] and accused Faisal got recovered one green nylon rassi/rope
[Ex.P1], from under the stairs of the house of one Salauddin, at B-Block,
Gali No.8, Moti Wala Chowk, Sri Ram Colony, Delhi [vide seizure memo
Ex.PW2/A]. Further, PW-19 also seized a bundle of nylon rassi/rope
[Ex.P2], from the shop of one Nasim Ahmed (PW-7), on the disclosure
statement of accused Imran Khan [vide seizure memo Ex.PW5/A].
Subsequently, on 21.02.2008, on receipt of secret information, PW-19
is stated to have arrested accused Yamin from Wazirabad Road, Sri Ram
Colony, Delhi [vide arrest memo Ex.PW14/K], and recorded his disclosure
statement [Ex.PW-14/M] admitting the commission of the murder of the
deceased. The accused Yamin pointed out the scene of crime vide pointing
out memo Ex.PW14/N.
5. The seized material was sent to Forensic Science Laboratory (FSL) for
forensic examination. According to the FSL report [Ex.PX], the microscopic
characteristics of fibres on cellophone tape were similar to those of the nylon
rassi/rope [Ex.P1]. Further, on physical examination of the nylon rope
[Ex.P1] and bundle of nylon rope [Ex.P2], it was found that they were
similar in respect of colour, texture, type of twist, number of strands,
dimensions and U.V. fluorescence. According to the FSL report [Ex.PY], the
viscera of the deceased were found containing ethyl alcohol, admeasuring
232 mg/100 ml of blood.
6. On completion of the investigation, charge sheet was filed and the
accused Shabana, Faisal, Imran Khan and Yamin were charged under
sections 302/34 IPC and sections 201/34 IPC, to which they pleaded not
guilty and claimed trial.
7. During the trial, the prosecution has examined twenty witnesses, as
under:
"(a) PW-1 Israr Ahmad was foster brother of the accused
Shabana. He stated that he had seen three boys carrying the
deceased in Gali No. 1, E-Block, Sri Ram Colony. He stated
that he had asked the said boys as to what had happened to
the deceased but they replied that the deceased had stomach
pain and they were taking him to doctor. He has not
identified the accused Faisal, Imran Khan and Yamin as the
said boys.
(b) PW-2 Aas Mohd was a recovery witness in respect of
nylon Ex.P-1. He stated that police officials had taken out
something from the drain in street No. 8 and left. He denied
that on 20.02.2008 at about 5:00 p.m., the accused Faisal got
recovered one 3 meter green nylon from under the stairs of
house of Salauddin.
(c) PW-3 HC Hari Shankar was Duty Officer, PS Khajuri
Khas. On 19.02.2008 at 07.33 a.m., he recorded the PCR call
vide DD No. 2A Ex.PW3/A. At 09.20 a.m., he recorded
kayami DD Ex.PW3/B and got recorded the case FIR
Ex.PW3/D and made endorsement Ex.PW3/C on the rukka
regarding registration of FIR.
(d) PW-4 Nurul Chaman was elder brother of the
deceased. He received the dead body of the deceased vide
memo Ex.PW4/A. He stated that he had not visited the house
of his brother Ali Jaan. He stated that he has no personal
knowledge regarding the incident.
(e) PW-5 Naseem Ahmad was the owner of hardware
shop at E-143, 60 foota Road, near Shaitan Chowk, Sri Ram
Colony, Delhi. He stated that police officials seized a bundle
of rope from his shop. He could not identify the nylon Ex.P1
and Ex.P2. He denied the suggestion that the accused Imran
purchased the nylon rope Ex.P1 from his shop on 18.02.2008
at 07.00 p.m.
(f) PW-6 Nisar Bano was mother of the deceased. She
was residing in Aligarh. She stated that the accused Shabana
was not happy with the engagement her daughter Heena in
Agra. She stated that Rizwan, son of the deceased and the
accused Shabana knew the facts. In her cross-examination,
she stated that she had visited the house of the deceased 7½
months before the date of incident. She denied that her
statement was recorded by the police. She stated that Heena
died due to burn in Sikanderabad where she was married.
(g) PW-7 Ct. Mahabir Singh was the photographer. He
had taken 10 photographs Ex.PW7/A to Ex.PW7/J of the
place of the recovery of the dead body of the deceased and
negatives whereof are Ex.PW7/K (colly.).
(h) PW-8 Rizwan was the son of the deceased and the
accused Shabana. He was not examined by the Investigating
Officer. He appeared before the Court on 13.07.2009. He
deposed about the incident.
(i) PW-9 Insp. Rajesh Dogra was In-charge, Crime Team.
He inspected the place of recovery of the dead body. He
prepared Scene of Crime (SOC) Visitation Report Ex.PW9/A.
(j) PW-10 Ct. Jaswant Singh taken rukka to the police
station. He received viscera petty, sealed parcel containing
clothes and neck strapping of the deceased alongwith sample
seal from Autopsy Surgeon and handed over to PW-19 Insp.
Ramesh Dahiya vide seizure memo Ex.PW10/A.
(k) PW-11 Laal Mohd. was the informant. On 19.02.2008
at about 7.00/7.30 a.m., he had seen the dead body of the
deceased in Gali No. 3, E-Block, Sri Ram Colony, Delhi and
made call at 100.
(l) PW-12 Mohd. Hanif was cousin brother of the
deceased. He identified dead body of the deceased as that of
his cousin brother Ali Jan vide memo Ex.PW12/A.
(m) PW-13 Ct. Tarun Kumar Sharma taken photographs of
the scene of crime Ex.PW7/F to Ex.PW7/J and negatives
whereof are Ex.PW13/A (colly.).
(n) PW-14 Ct. Ashok Kumar was special messenger. He
delivered copy of FIR to Area Magistrate, Joint CP (New
Delhi Range) and DCP (North-East).
(n) PW-14 HC Virpal Singh was MHC (M). He proved
relevant entries in malkhana register regarding deposit of
articles deposited with him.
(o) PW-15 HC Pramod Kumar was a parcel depositor. He
deposited two sealed cloth parcels and one envelope parcel in
FSL, Rohini.
(p) PW-16 Ct. Naseem Ahmad was another parcel
deposited. He deposited sealed viscera box in FSL, Rohini.
(q) PW-17 HC Mahesh Kumar was MHC (M). He proved
relevant entries in malkhana register deposit of case
properties.
(r ) PW-18 SI Mahesh Kumar was draftsman. He prepared
Site Plan to the Scale of the scene of crime and place of
incident Ex.PW18/A.
(s) PW-19 Insp. Ramesh Dahiya was Investigating
Officer. In his cross-examination, he stated that he had not
examined Rizwan. He stated that he had no information that
Rizwan was an eye witness of the incident. He stated that he
had not made any enquiry from Hina, elder daughter of the
deceased. He stated that he had not made any enquiry from
the children of the deceased. He stated that the children of
the deceased were staying in their house when the accused
Shabana was arrested. He stated that no evidence regarding
relationship between the accused Shabana and Faisal came to
his knowledge. He stated that landlord of the house of the
deceased was not examined.
(t) PW-20 Dr. Sumit Tellewar was the Autopsy Surgeon.
On 19.02.2008 at about 1.30 p.m., he conducted post-mortem
on the dead body of the deceased. He proved post-mortem
report Ex.PW20/A. He opined that time since death was
about 12 hrs. He opined the cause of death 'Asphyxia due to
ante-mortem ligature strangulation, sufficient to cause death
in ordinary course of nature'.
8. Subsequent thereto, on 03.09.2012, the accused persons were
examined under Section 313 of the Cr.P.C., where it was claimed on behalf
of Shabana that she has been falsely implicated and subjected to third degree
by the police to coerce her into signing blank papers. She denied each and
every circumstance that the prosecution alleged against her and disclaimed
knowing the accused Faisal, Imran Khan and Yamin. The other accused
persons also made similar statements.
9. Thereafter, the court having found that material circumstances and
evidence have not been put to the accused persons, examined them afresh
under Section 313 Cr.P.C., so as to afford them an appropriate opportunity to
vindicate their defence.
10. Shabana was again examined under Section 313 Cr.P.C. on
15.10.2016, wherein she stated that her son Rizwan was not present in the
house at the time of the incident. She has further stated that she went to the
house of her foster brother Israr, to know the whereabouts of her husband,
but he had not told her anything about him. She has further stated that her
husband was a drunkard and therefore she had not searched for him during
the night. Thereafter, on 18.10.2016, the accused Faisal was examined under
Section 313 Cr.P.C., wherein he has denied each and every material
circumstance put to him. He has stated that no nylon rope, as alleged, was
recovered at his instance. On 20.10.2016, accused Yasmin was examined
and he reiterated his earlier defence. Further, on 25.10.2016, accused Imran
Khan was examined and he also reiterated his previous defence.
11. Shabana examined three witnesses in support of her defence. The
examination in chief of the said witnesses examined by Shabana in her
defence are extracted hereinbelow:-
"DW-1 Imran was elder son of the deceased and the accused
Shabana. He stated that the deceased left the house at about
07:00-08:00 p.m. and thereafter, all of them slept. He stated
that the deceased did not return during the entire night. He
stated that he along with the accused Shabana searched his
father. He stated that his grandmother had taken him and
pressurized them to make a false statement. He stated that
Rizwan made false statement as at her instance. He stated
that his sister also pressurized but she refused to make
statement. He stated that his grandmother forcibly married
his sister against her wishes.
DW-2 Ikhlaq was father of the accused Shabana. He stated
that there was a dispute in respect of a property in Aligarh.
He stated that PW-6 Nisar Bano asked to divide the said
property between them. He stated that the deceased was
denied any share.
DW-3 Shahid was brother-in-law of the deceased and brother
of the accused Shabana. He stated that the deceased used to
consume liquor. He stated that Rizwan was not well and he
was in his house for treatment. He stated that he along with
Rizwan went to the house of the accused Shabana after
receiving information about the incident. He stated that there
was a dispute regarding ancestral property in Aligarh. He
stated that Ali Jan wanted to have the entire property whereas
PW-6 Nisar Bano wanted to divide it in equal share in all her
six heirs including the deceased."
12. On behalf of the prosecution, it has been asserted that the testimony of
the eye-witness Rizwan (PW-8), the son of the deceased and accused
Shabana; who was not examined by the Investigating Officer (PW-19) and
on 13.07.2017 had appeared before the Court on his own, lucidly recounted
the incident as follows:
"PW-8 Rizwan (aged 8 years) son of Ali Jaan, Mohalla
Charak Wala, Aligarh.
Since the witness is minor some general questions are
being put to him in order to ascertain whether he is able to
understand the nature of questions put to him, or not.
Q. What is your name?
A. Rizwan.
Q. What is your father's name?
A. Ali Jaan.
Q. What is your mother's name?
A. Shabana.
Q. Do you go to school?
A. I have never been to the school.
Q. With whom you have come to the Court today?
A. With my grandmother.
Q. Do you know the name of your grandmother?
A. No.
The answer given by the witness suggest that he
understands the nature of questions put to him. Now a
question is being asked from the witness to ascertain whether
he understands the meaning of oath or not.
Q. Do you understand the meaning of oath?
A. By oath I mean to speak the truth and nothing else.
The answer given by the witness suggests that he
understands the meaning of oath, as such, oath is being
administered to the witness, before his examination.
On SA.
My father is not alive. He has been murdered. My
father was murdered in the night in the rented accommodation
where we used to reside. I was present in the house when my
father was murdered. My mother had given intoxicating
tablet to me but I did not took the same and threw the same
under the cot. The three accused persons present in the Court
today, came to our house on the night of the incident.
On the said night, my administered intoxicating tablet
to my father, and he was also made to consume liquor.
Thereafter my mother after putting a pillow on the legs of my
father, sat down on the same. Thereafter one of the accused
put pillow on the mouth of my father and sat over the same
while the remaining two tied a rope around the neck of my
father and strangulated my father. When I tried to raise alarm
my slapped me and threatened to kill me in the manner in
which my father was killed. I did not tell about the incident
to anyone.
After committing murder of my father, my father was
taken on the shoulders and accused persons took out my
father from the house and while they were taking the dead
body of my father, I followed the accused persons. In the
street, the dogs started barking at the accused persons, the
accused persons threw the dead body of my father on a heap
of brick in the Gali. Thereafter I ran back towards my house.
Earlier my parents used to live peacefully but later on,
on the point of engagement of my sister, they started
quarreling with each other. I can identify the plastic rope
with which my father was strangulated.
(At this stage learned counsel for the accused persons has
stated that before opening the case property the witness may
be asked about the colour and length of the rope. Request
allowed.)
The rope was of white colour. The length of the rope
was about 1-½ meters.
At this stage MHCM has produced an envelope duly
sealed with the seal of the Court. The same is opened from
which a polythene bag containing nylon of green colour is
taken out and shown to the witness. The witness has
identified the rope as the same which was used by the accused
persons to strangulate his father."
13. On behalf of the accused persons, it was submitted before the Trial
Court that Israr Ahmed (PW-1), who is stated to have witnessed three boys
carrying the deceased Ali Jaan in Gali No.1, E-Block, Sriram Colony, Delhi,
on the fateful night, has been unable to identify the accused Faisal, Imran
Khan and Yamin, as the boys seen by him. It was also submitted on behalf
of the accused persons that Aas Mohd (PW-2), the prosecution witness to the
recovery of the nylon rope [Ex.P1], has denied that the accused Faisal got
recovered the nylon rope [Ex.P1] from under the stairs of the house of
Salauddin. It was also argued on behalf of the accused persons that Naseem
Ahmed (PW-5), the owner of the Hardware Shop from where the nylon rope
in question [Ex.P1] was allegedly sourced, has denied the suggestion that the
accused Imran Khan had purchased the said nylon rope from his shop at any
point of time. It was also submitted that the testimony of Nurul Chaman
(PW-4), the elder brother of the deceased Ali Jaan, was based on hearsay,
since he had never visited the house of the deceased. It was also submitted
that the deposition of Nisar Bano (PW-6), who was a resident of Aligarh,
was to the effect that she had visited the house of the deceased 7½ months
before the occurrence of the incident. Lastly, it was submitted that the
testimony of PW-8 Rizwan was not trustworthy or credible, in view of the
circumstance that he had been tutored to make the statement against the
accused persons by PW-6, with whom he had been residing since two days
after the date of the occurrence of the incident.
14. In this behalf, it is also observed that neither Heena, the daughter of
the accused Shabana and deceased, who was allegedly the bone of
contention for the quarrels between the latter couple, was not examined, nor
was any of the neighbour examined. Further, the IO has failed to make any
enquiries from any of the children of the accused Shabana and the deceased.
15. The learned Trial Court having considered the testimony of Rizwan
(PW-8), the child witness, in the light of the principles of rule of
corroboration, as laid down in, inter alia, State of U.P. vs. Ashok Dixit &
Anr. reported as (2000) 3 SCC 70 and Suryanarayana vs. State of
Karnataka reported as (2001) 9 SCC 129, encapsulated the testimony of
PW-8, so as to ascertain its credibility, as under:-
"33. Let us peruse the testimony of PW-8 Rizwan so as to
ascertain its credibility. PW-8 Rizwan deposed as under:-
My father is not alive. He has been
murdered. My father was murdered in the night
in the rented accommodation where we used to
reside. I was present in the house when my
father was murdered. My mother had given
intoxicating tablet to me but I did not took the
same and threw the same under the cot. The
three accused persons present in the Court
today, came to our house on the night of the
incident.
On the said night, my administered
intoxicating tablet to my father, and he was also
made to consume liquor. Thereafter my mother
after putting a pillow on the legs of my father,
sat down on the same. Thereafter one of the
accused put pillow on the mouth of my father
and sat over the same while the remaining two
tied a rope around the neck of my father and
strangulated my father. When I tried to raise
alarm my slapped me and threatened to kill me
in the manner in which my father was killed. I
did not tell about the incident to anyone.
After committing murder of my father,
my father was taken on the shoulders and
accused persons took out my father from the
house and while they were taking the dead body
of my father, I followed the accused persons. In
the street, the dogs started barking at the
accused persons, the accused persons threw the
dead body of my father on a heap of brick in the
Gali. Thereafter I ran back towards my house.
Earlier my parents used to live
peacefully but later on, on the point of
engagement of my sister, they started quarreling
with each other. I can identify the plastic rope
with which my father was strangulated.
(At this stage learned counsel for the accused
persons has stated that before opening the case
property the witness may be asked about the
colour and length of the rope. Request
allowed.)
The rope was of white colour. The
length of the rope was about 1-½ meters.
At this stage MHCM has produced an
envelope duly sealed with the seal of the Court.
The same is opened from which a polythene bag
containing nylon of green colour is taken out
and shown to the witness. The witness has
identified the rope as the same which was used
by the accused persons to strangulate his
father."
16. Consequently, the learned Trial Court observed as follows:-
"34. From the evidence of PW-8 Rizwan, it can be gathered
that he claimed that the accused Shabana had given a
intoxicating tablet to him which he had not taken and the
accused Faisal, Imran Khan and Yamin came to his house in
the night. He claimed that the accused Shabana administered
intoxicating tablet to the deceased and made him to consume
liquor and thereafter, the accused Shabana placed a pillow on
the legs of his father and sat thereon and one of the accused
put pillow on the mouth of the deceased and sat thereon and
the remaining two accused strangulated the deceased with a
rope. He claimed that when he tried to raise alarm, the
accused Shabana slapped him and threatened to kill him in
the manner the deceased was killed. He claimed that the
accused persons taken the deceased on their shoulder and he
followed them and the accused persons thrown the dead body
on the heap of bricks in the gali. He stated that he came back
running to his house.
35. At this juncture, it would be appropriate to take note of
relevant portion of his cross-examination which is as under:-
"....Myself, my brothers, sister and my parents
used to reside together in the said tenanted
accommodation. On the day of incident, my
elder brother was sent to the house of my Nana.
On the day of incident myself, my brother
Farman and sister and my parents were present
in the house. .... There were five rooms in the
said rented accommodation. We were residing
only in one room. The other rooms were
occupied by other tenanted. It was winter
season when the incident took place. We used
to sleep after bolting the door. At the time of
incident, I did not wake up my sister. When I
woke up, the door of the room was open. ...My
sister & my younger brother did not wake up.
...I woke up suddenly. Our tenanted room was
situated on the first floor. I followed the
accused persons for about 20-30 yards. I did
not wake up my sister & brother before
following the accused persons. I did not raise
any alarm. I did not wake up my sister &
brother after coming back to the tenanted room.
...I did not call any persons from the
neighbouring room. ...I narrated the incident to
my uncle Chaman after 1 or 2 months of the
date of occurrence when Chaman came to
Aligarh. My grandmother came to our house on
the next day of incident. I did not tell about the
incident to my grandmother when she came to
our house at Delhi. I narrated the incident to
my grandmother after about two days of the
incident and I went to Aligarh after two days of
incident. My grandmother took me to the
police station at Aligarh for narrating the
incident to the police. I have come Delhi
Yesterday. ...My father used to take liquor on
every evening. My mother never asked my
father not to take liquor. Prior to the incident,
my grandmother never visited our house. After
my leaving Delhi for Aligarh I have come to
Delhi yesterday for the first time. ...I had come
in the Court on the last date. Prior to the said
date, I did not visit Delhi in the month of April,
2009. ...On the day of incident, my father had
consumed liquor all alone before I went to
sleep. ...I did not narrate the incident to my
brother and sister. ... Police did not make any
enquiry from me, my brother or sister. There
was no light in the room."
36. On the careful examination of the evidence of PW-8
Rizwan in the light of the evidence of PW-4 Nurul Chaman,
PW-6 Nisar Bano and PW-19 Insp. Ramesh Dahiya, this
Court is of the considered opinion that it is highly unsafe to
rely on his statement. PW-8 Rizwan stated that the accused
Shabana had given him intoxicating tablet but he had thrown
the same under the cot and at the same time, in his cross-
examination, he stated that when he woke up, the door of the
room was open. He stated that he woke up suddenly. He
stated that the accused Shabana administered an intoxicating
tablet to his father but FSL Report Ex.PX pertaining to
viscera of the of the deceased does not show existence of any
sedative/intoxicating substance. PW-8 Rizwan stated that he
had tried to raise alarm but the accused Shabana slapped him
and threatened to kill him in the same manner in which the
deceased was killed. Quite surprisingly, he stated that the
accused persons taken the deceased on their shoulder from the
house and he followed them. If the accused Shabana
threatened him not to raise alarm, she would not permit him
to follow the accused persons when they were carrying the
dead body of the deceased. PW-8 Rizwan stated that the dogs
were barking at the accused persons and they had thrown
dead body of the deceased on a heap of bricks in the gali and
he came running back to his house. PW-8 Rizwan does not
state anything regarding PW-1 Israr Ahmed who claimed that
he had seen three boys carrying Ali Jan in the street.
37. According to PW-8 Rizwan, the deceased was made to
consume liquor. In the FSL Report Ex.PY, ethyl alcohol 232
mg./100 ml. of blood was found in the viscera of the
deceased. PW-8 Rizwan categorically stated that his sister
Heena and brother Farman were present in the room at the
time of incident. He stated that there were five rooms in the
rented accommodation. He stated that the said rooms were
occupied other tenants. It means at the time of incident, there
were 8 persons in one room. According to the Site Plan to
Scale Ex.PW.18/A, the size of the room was 3.8 meter x 2.45
meter which can be stated as 12.5x8 foot. It cannot be
believed that such an incident, if had taken place in such a
small room wherein 8 persons were present, it could escape
the notice of Heena and Farman. PW-8 Rizwan could follow
the accused persons to the heap of bricks despite warning of
the accused Shabana but he did not wake-up his sister Heena
and brother Farman. PW-8 Rizwan stated that he narrated the
incident to PW-4 Nurul Chaman after one or two months
from the date of occurrence when he visited Aligarh. Quite
surprisingly, PW-4 Nurul Chaman has neither stated that PW-
8 Rizwan was a witness of the incident nor that he had told
him anything about the incident. PW-8 Rizwan stated that he
narrated the incident to his grandmother after reaching
Aligarh. He stated that he narrated the incident to his
grandmother after two days from the incident. However, PW-
6 Nisar Bano has not stated as to when PW-8 Rizwan told her
that he had witnessed the incident.
38. PW-8 Rizwan stated that PW-6 Nisar Bano, his
grandmother had taken him to police station in Aligarh for
narrating the incident to the police. It would be relevant to
state that PW-6 Nisar Bano has not stated so. She stated that
she had told to the police in Aligarh regarding an attempt of
kidnapping of the children of the deceased. PW-8 Rizwan
stated that the accused Shabana made the deceased to
consume the liquor but at the same time, he stated that the
deceased used to consume liquor on every evening and on the
date of incident, his father consumed liquor on alone before
he went to sleep. PW-8 Rizwan stated that he came to the
Court on the last date that could be 03.06.2009 or 09.06.2009.
He stated that he had not visited Delhi in the month of April,
2009. He even stated that after leaving Delhi, he came to
Delhi yesterday i.e. 12.07.2009 for the first time. However,
PW-6 Nisar Babu had a different story. She went to the
extent of stating that she brought Rizwan to the house of
Chaman about one month before 13.05.2009. She stated that
a quarrel had taken place in her locality and she had produced
PW-8 Rizwan before the police which had recorded his
statement. This fact was neither deposed by PW-4 Nurul
Chaman nor by PW-8 Rizwan. PW-6 Nisar Bano stated that
the children of the deceased are staying with her since 3rd day
of death of the deceased. PW-6 Nisar Bano stated that PW-8
Rizwan knew the fact but she did not state as to what he
knew. She even could not state as to whether the deceased
was murdered inside or outside his house.
39. To put an end, it would be relevant to state that PW-8
Rizwan and his brothers and sisters were staying with PW-6
Nisar Bano in Aligarh since 3rd day of the death of the
deceased and after arrest of the accused Shabana. She stated
that children of the deceased respect her wishes. Heena was
married by PW-6 Nisar Bano in Sikandarabad. She was
never examined in this case. Neighbours/tenants of the 1st
floor of the house of the accused Shabana were not examined.
40. PW-19 Insp. Ramesh Dahiya arrested the accused
Shabana on 20.02.2008 at about 1.30 p.m. from her house.
According to the prosecution, the accused Shabana disclosed
about the incident in her disclosure statement. Despite that,
PW-19 Insp. Ramesh Dahiya did not examine the children of
the deceased including PW-8 Rizwan who could be the most
natural witness. PW-19 Insp. Ramesh Dahiya stated, in his
cross-examination, that he had no information that PW-8
Rizwan was an eye witness of the incident. He stated that the
children of the deceased were staying in their residence when
the accused Shabana was arrested. He stated that he had not
made any enquiry from Heena, elder daughter of the
deceased.
41. Finally, it would be relevant to state that this witness
came into picture on 13.07.2009 after more than one year and
six months from the date of incident. According to him, he
had narrated the incident to PW-6 Nisar Bano two days after
the incident. During investigation, he was not examined.
This Court is of the considered opinion that he is not a
credible witness."
17. Therefore, as an outcome, the Trial Court held the testimony of the
purported eye-witness Rizwan (PW-8), to be unreliable.
18. Furthermore, the Trial Court observed that PW-4 and PW-5 are not
credible witnesses and their evidence is hearsay in nature. It has been further
observed by the Trial Court that there are contradictions between the
testimony of PW-6 and PW-8 and the testimony of the former does not
inspire confidence. The circumstance of last scene, as deposed to by Israr
Ahmed (PW-1), also does not support the case of the prosecution, as his
testimony does not inspire confidence.
19. Insofar as, the alleged recovery of the nylon rope [Ex.P1] and the
bundle of nylon rope [Ex.P2]; fibres of which as per the FSL report matched
with the neck strapping of the deceased, at the instance of the accused Faisal
and Imran Khan, respectively, are concerned, the Trial Court has disbelieved
the recoveries. PW-2, the recovery witness has denied that the accused Faisal
got recovered the nylon rope [Ex.P1]. Further, the owner of hardware shop
from where the weapon of offence i.e. nylon rassi/rope [Ex.P1] allegedly
was sourced; formed part of the bundle of nylon rassi/rope [Ex.P2] seized
therefrom, has denied that the accused Imran Khan purchased the same or
that the accused Imran Khan identified his shop as the place from where he
had purchased the said weapon of offence i.e. Ex.P1.
20. Having heard Ms. Rajni Gupta, learned APP appearing on behalf of
the State and having perused the Trial Court Record, as well as, the
impugned judgment, we are in agreement with the determination made on
behalf of the Trial Court that the prosecution has failed to prove any
circumstance, much less than a chain of circumstances, unerringly pointing
towards the guilt of the accused persons.
21. In view of the foregoing discussion, in our view, the impugned
judgment and order dated 02.02.2017 does not warrant any interference of
this Court.
22. The leave petition is accordingly dismissed with no order as to costs.
Pending application also stands disposed of.
23. Trial Court record be sent back.
SIDDHARTH MRIDUL, J
A.K. CHAWLA, J
SEPTEMBER 22, 2017
dn
