CRL.L.P./386/2017 of STATE Vs SHABANA & ORS

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

..... PetitionerThrough:Ms. Rajni Gupta, APP with InspectorRamesh Dahiya & Inspector Manoj,PS-Khajoori Khas

versus

SHABANA & ORS

Through:None

..... Respondents

CORAM:

HON’BLE MR. JUSTICE SIDDHARTH MRIDULHON’BLE MR. JUSTICE A.K. CHAWLA

SIDDHARTH MRIDUL, J (ORAL)

1.The present leave petition instituted on behalf of the State, underSection 378 of the Code of Criminal Procedure, 1973 (hereinafter referred toas ‘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 casetitled as ‘State vs. Shabana & Ors.’; arising out of FIR No.49/2008; underSections 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 19.02.2008at 07:33 a.m., Head Constable Hari Shankar (PW-3), Duty officer at PoliceStation Khajuri Khas, received PCR call informing that person was lyingdead in Gali No.3, E-Block, near police station and that somebody killed himin the night. The DD No.2A [Ex.PW3/A] was conveyed to Sub-InspectorRavi Karan, who along with Inspector Ramesh Dahiya (PW-19) reached thespot and found one person, aged about 40 years, lying dead with allegedmarks of rassi/wire like object around his neck and blood emanating fromhis mouth. The respondent No.1 Shabana, the wife of the deceased Ali Jan,reached the spot and identified her husbands’ body. Based on the statementof 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 on19.02.2008 at 01:35 p.m., by Dr. Sumit Tellewar (PW-20), who opined thecause 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 approximately12 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 nightintervening 18[/]19.02.2008.

3.It is the case of the prosecution that Shabana, the wife of the deceasedwas interrogated and is stated to have made disclosure statement [Ex.PW-14/A], wherein she disclosed that there were repeated quarrels between herand the deceased in relation to the marriage of their daughter Heena. Thedeceased wanted to marry Heena with somebody in Agra, which was not inaccord with the wishes of Shabana, to get their daughter married to theaccused Faisal.It was further allegedly disclosed by Shabana that thedeceased was habituated to drinking and gambling, and used to subject her tophysical assault and beating. Further, it was allegedly disclosed that alongwith accused Faisal and his friends; accused Imran Khan and Yamin, it wasdecided to eliminate the deceased and with the common intention, aftermaking the deceased imbibe excess liquor, he was murdered by means ofstrangulation whilst he was sleeping. It was lastly allegedly disclosed thatthe accused Faisal, Yamin and Imran Khan carried the dead body of thedeceased from the rented accommodation/room of Shabana at Gali No.1, SriRam Colony, Delhi, and threw it in Gali No.3, Sriram Colony, Delhi, inorder to avoid suspicion.4.On 20.02.2008, in pursuance to the disclosure statement made byShabana and upon receipt of secret information, Inspector Ramesh Dahiya(PW-19), the Investigating Officer, arrested accused Faisal and Imran Khanfrom near the BSES office at Yamuna Vihar, Delhi [vide arrest memosEx.PW14/B and ExPW14/C, respectively]. The latter are alleged to havemade disclosure statements [Ex.PW-14/H and Ex.PW-14/J, respectively],admitting the commission of the murder of the deceased. Furthermore, theyalso 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 memoEx.PW2/A].Further, PW-19 also seized bundle of nylon rassi/rope[Ex.P2], from the shop of one Nasim Ahmed (PW-7), on the disclosurestatement of accused Imran Khan [vide seizure memo Ex.PW5/A].

Subsequently, on 21.02.2008, on receipt of secret information, PW-19is stated to have arrested accused Yamin from Wazirabad Road, Sri RamColony, Delhi [vide arrest memo Ex.PW14/K], and recorded his disclosurestatement [Ex.PW-14/M] admitting the commission of the murder of thedeceased. 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) forforensic examination. According to the FSL report [Ex.PX], the microscopiccharacteristics of fibres on cellophone tape were similar to those of the nylonrassi/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 weresimilar in respect of colour, texture, type of twist, number of strands,dimensions and U.V. fluorescence. According to the FSL report [Ex.PY], theviscera of the deceased were found containing ethyl alcohol, admeasuring232 mg/100 ml of blood.

6.On completion of the investigation, charge sheet was filed and theaccused Shabana, Faisal, Imran Khan and Yamin were charged undersections 302/34 IPC and sections 201/34 IPC, to which they pleaded notguilty and claimed trial.

7.During the trial, the prosecution has examined twenty witnesses, asunder:

“(a)PW-1 Israr Ahmad was foster brother of the accusedShabana. He stated that he had seen three boys carrying thedeceased in Gali No. 1, E-Block, Sri Ram Colony. He statedthat he had asked the said boys as to what had happened tothe deceased but they replied that the deceased had stomachpain and they were taking him to doctor.He has notidentified the accused Faisal, Imran Khan and Yamin as thesaid boys.

(b)PW-2 Aas Mohd was recovery witness in respect ofnylon Ex.P-1.He stated that police officials had taken outsomething from the drain in street No. 8 and left. He deniedthat on 20.02.2008 at about 5:00 p.m., the accused Faisal gotrecovered one 3 meter green nylon from under the stairs ofhouse of Salauddin.

(c)PW-3 HC Hari Shankar was Duty Officer, PS KhajuriKhas. On 19.02.2008 at 07.33 a.m., he recorded the PCR callvide DD No. 2A Ex.PW3/A.At 09.20 a.m., he recordedkayami DD Ex.PW3/B and got recorded the case FIREx.PW3/D and made endorsement Ex.PW3/C on the rukkaregarding registration of FIR.

(d)PW-4NurulChamanwaselderbrotherofthedeceased.He received the dead body of the deceased vidememo Ex.PW4/A. He stated that he had not visited the houseof his brother Ali Jaan.He stated that he has no personalknowledge regarding the incident.

(e)PW-5 Naseem Ahmad was the owner of hardwareshop at E-143, 60 foota Road, near Shaitan Chowk, Sri RamColony, Delhi. He stated that police officials seized bundleof rope from his shop. He could not identify the nylon Ex.P1and Ex.P2. He denied the suggestion that the accused Imranpurchased the nylon rope Ex.P1 from his shop on 18.02.2008at 07.00 p.m.

(f)PW-6 Nisar Bano was mother of the deceased.Shewas residing in Aligarh. She stated that the accused Shabanawas not happy with the engagement her daughter Heena inAgra. She stated that Rizwan, son of the deceased and theaccused Shabana knew the facts. In her cross-examination,she stated that she had visited the house of the deceased 7½months before the date of incident.She denied that herstatement was recorded by the police. She stated that Heenadied due to burn in Sikanderabad where she was married.

(g)PW-7 Ct. Mahabir Singh was the photographer.Hehad taken 10 photographs Ex.PW7/A to Ex.PW7/J of theplace of the recovery of the dead body of the deceased andnegatives whereof are Ex.PW7/K (colly.).(h)PW-8 Rizwan was the son of the deceased and theaccused Shabana. He was not examined by the InvestigatingOfficer.He appeared before the Court on 13.07.2009.Hedeposed about the incident.

(i)PW-9 Insp. Rajesh Dogra was In-charge, Crime Team.He inspected the place of recovery of the dead body.Heprepared Scene of Crime (SOC) Visitation Report Ex.PW9/A.(j)PW-10 Ct. Jaswant Singh taken rukka to the policestation.He received viscera petty, sealed parcel containingclothes and neck strapping of the deceased alongwith sampleseal 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 19.02.2008at about 7.00/7.30 a.m., he had seen the dead body of thedeceased in Gali No. 3, E-Block, Sri Ram Colony, Delhi andmade call at 100.

(l)PW-12 Mohd. Hanif was cousin brother of thedeceased. He identified dead body of the deceased as that ofhis cousin brother Ali Jan vide memo Ex.PW12/A.

(m)PW-13 Ct. Tarun Kumar Sharma taken photographs ofthe scene of crime Ex.PW7/F to Ex.PW7/J and negativeswhereof are Ex.PW13/A (colly.).

(n)PW-14 Ct. Ashok Kumar was special messenger. Hedelivered copy of FIR to Area Magistrate, Joint CP (NewDelhi Range) and DCP (North-East).

(n)PW-14 HC Virpal Singh was MHC (M). He provedrelevant entries in malkhana register regarding deposit ofarticles deposited with him.

(o)PW-15 HC Pramod Kumar was parcel depositor. Hedeposited two sealed cloth parcels and one envelope parcel inFSL, Rohini.

(p)PW-16Ct.NaseemAhmadwasanotherparceldeposited. He deposited sealed viscera box in FSL, Rohini.(q)PW-17 HC Mahesh Kumar was MHC (M). He provedrelevantentriesinmalkhanaregisterdepositofcaseproperties.

(r )PW-18 SI Mahesh Kumar was draftsman. He preparedSite Plan to the Scale of the scene of crime and place ofincident Ex.PW18/A.

(s)PW-19Insp.RameshDahiyawasInvestigatingOfficer. In his cross-examination, he stated that he had notexamined Rizwan. He stated that he had no information thatRizwan was an eye witness of the incident. He stated that hehad not made any enquiry from Hina, elder daughter of thedeceased. He stated that he had not made any enquiry from

the children of the deceased. He stated that the children ofthe deceased were staying in their house when the accusedShabana was arrested. He stated that no evidence regardingrelationship between the accused Shabana and Faisal came tohis knowledge. He stated that landlord of the house of thedeceased 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-mortemon the dead body of the deceased. He proved post-mortemreport Ex.PW20/A.He opined that time since death wasabout 12 hrs. He opined the cause of death ‘Asphyxia due toante-mortem ligature strangulation, sufficient to cause deathin ordinary course of nature’.

8.Subsequent thereto, on03.09.2012,theaccused persons wereexamined under Section 313 of the Cr.P.C., where it was claimed on behalfof Shabana that she has been falsely implicated and subjected to third degreeby the police to coerce her into signing blank papers. She denied each andevery circumstance that the prosecution alleged against her and disclaimedknowing the accused Faisal, Imran Khan and Yamin.The other accusedpersons also made similar statements.

9.Thereafter, the court having found that material circumstances andevidence have not been put to the accused persons, examined them afreshunder Section 313 Cr.P.C., so as to afford them an appropriate opportunity tovindicate their defence.

10.ShabanawasagainexaminedunderSection313Cr.P.C.on

15.10.2016, wherein she stated that her son Rizwan was not present in thehouse at the time of the incident. She has further stated that she went to thehouse 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 herhusband was drunkard and therefore she had not searched for him duringthe night. Thereafter, on 18.10.2016, the accused Faisal was examined underSection 313 Cr.P.C., wherein he has denied each and every materialcircumstance put to him. He has stated that no nylon rope, as alleged, wasrecovered at his instance. On 20.10.2016, accused Yasmin was examinedand he reiterated his earlier defence. Further, on 25.10.2016, accused ImranKhan was examined and he also reiterated his previous defence.

11.Shabana examined three witnesses in support of her defence.Theexamination in chief of the said witnesses examined by Shabana in herdefence are extracted hereinbelow:-

“DW-1 Imran was elder son of the deceased and the accusedShabana. He stated that the deceased left the house at about07:00-08:00 p.m. and thereafter, all of them slept. He statedthat the deceased did not return during the entire night. Hestated that he along with the accused Shabana searched hisfather.He stated that his grandmother had taken him andpressurized them to make false statement.He stated thatRizwan made false statement as at her instance.He statedthat his sister also pressurized but she refused to makestatement.He stated that his grandmother forcibly marriedhis sister against her wishes.

DW-2 Ikhlaq was father of the accused Shabana. He statedthat there was dispute in respect of property in Aligarh.He stated that PW-6 Nisar Bano asked to divide the saidproperty between them.He stated that the deceased wasdenied any share.

DW-3 Shahid was brother-in-law of the deceased and brotherof the accused Shabana. He stated that the deceased used toconsume liquor. He stated that Rizwan was not well and hewas in his house for treatment. He stated that he along withRizwan went to the house of the accused Shabana afterreceiving information about the incident. He stated that therewas dispute regarding ancestral property in Aligarh.Hestated that Ali Jan wanted to have the entire property whereasPW-6 Nisar Bano wanted to divide it in equal share in all hersix 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 accusedShabana; 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-8Rizwan (aged 8 years) son of Ali Jaan, MohallaCharak Wala, Aligarh.

Since the witness is minor some general questions arebeing put to him in order to ascertain whether he is able tounderstand the nature of questions put to him, or not.

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.A.No.

The answer given by the witness suggest that heunderstands the nature of questions put to him.Now aquestion is being asked from the witness to ascertain whetherhe 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 heunderstands the meaning of oath, as such, oath is beingadministered to the witness, before his examination.

My father is not alive.He has been murdered.Myfather was murdered in the night in the rented accommodationwhere we used to reside. I was present in the house when myfather was murdered.My mother had given intoxicatingtablet to me but I did not took the same and threw the sameunder the cot. The three accused persons present in the Courttoday, came to our house on the night of the incident.

On the said night, my administered intoxicating tabletto my father, and he was also made to consume liquor.Thereafter my mother after putting pillow on the legs of myfather, sat down on the same. Thereafter one of the accusedput pillow on the mouth of my father and sat over the samewhile the remaining two tied rope around the neck of myfather and strangulated my father. When I tried to raise alarmmy slapped me and threatened to kill me in the manner inwhich my father was killed. I did not tell about the incidentto anyone.

After committing murder of my father, my father wastaken on the shoulders and accused persons took out my

father from the house and while they were taking the deadbody of my father, I followed the accused persons.In thestreet, the dogs started barking at the accused persons, theaccused persons threw the dead body of my father on heapof 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 startedquarreling with each other.I can identify the plastic ropewith which my father was strangulated.

(At this stage learned counsel for the accused persons hasstated that before opening the case property the witness maybe asked about the colour and length of the rope.Requestallowed.)

The rope was of white colour. The length of the ropewas about 1-½ meters.

At this stage MHCM has produced an envelope dulysealed with the seal of the Court. The same is opened fromwhich polythene bag containing nylon of green colour istaken out and shown to the witness.The witness hasidentified the rope as the same which was used by the accusedpersons to strangulate his father.”

13.On behalf of the accused persons, it was submitted before the TrialCourt that Israr Ahmed (PW-1), who is stated to have witnessed three boyscarrying 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, ImranKhan and Yamin, as the boys seen by him. It was also submitted on behalfof 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 gotrecovered the nylon rope [Ex.P1] from under the stairs of the house ofSalauddin. 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 ropein question [Ex.P1] was allegedly sourced, has denied the suggestion that theaccused Imran Khan had purchased the said nylon rope from his shop at anypoint 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 submittedthat the deposition of Nisar Bano (PW-6), who was resident of Aligarh,was to the effect that she had visited the house of the deceased 7½ monthsbefore the occurrence of the incident.Lastly, it was submitted that thetestimony of PW-8 Rizwan was not trustworthy or credible, in view of thecircumstance that he had been tutored to make the statement against theaccused persons by PW-6, with whom he had been residing since two daysafter the date of the occurrence of the incident.

14.In this behalf, it is also observed that neither Heena, the daughter ofthe accused Shabana and deceased, who was allegedly the bone ofcontention for the quarrels between the latter couple, was not examined, norwas any of the neighbour examined. Further, the IO has failed to make anyenquiries 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 ofcorroboration, as laid down in, inter alia,State of U.P. vs. Ashok Dixit &

Anr.reported as (2000) 3 SCC 70 andSuryanarayana vs. State ofKarnatakareported 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 toascertain its credibility. PW-8 Rizwan deposed as under:-My father is not alive.He has beenmurdered. My father was murdered in the nightin the rented accommodation where we used toreside. I was present in the house when myfather was murdered.My mother had givenintoxicating tablet to me but I did not took thesame and threw the same under the cot.Thethree accused persons present in the Courttoday, came to our house on the night of theincident.

On the said night, my administeredintoxicating tablet to my father, and he was alsomade to consume liquor. Thereafter my motherafter putting pillow on the legs of my father,sat down on the same.Thereafter one of theaccused put pillow on the mouth of my fatherand sat over the same while the remaining twotied rope around the neck of my father andstrangulated my father.When I tried to raisealarm my slapped me and threatened to kill mein the manner in which my father was killed. Idid not tell about the incident to anyone.

After committing murder of my father,my father was taken on the shoulders andaccused persons took out my father from thehouse and while they were taking the dead bodyof my father, I followed the accused persons. Inthe street, the dogs started barking at theaccused persons, the accused persons threw the

dead body of my father on heap of brick in theGali. Thereafter I ran back towards my house.

Earliermyparentsusedtolivepeacefullybutlateron,onthepointofengagement of my sister, they started quarrelingwith each other. I can identify the plastic ropewith which my father was strangulated.(At this stage learned counsel for the accusedpersons has stated that before opening the caseproperty the witness may be asked about thecolour and length ofthe rope.Requestallowed.)

The rope was of white colour.Thelength of the rope was about 1-½ meters.At this stage MHCM has produced anenvelope duly sealed with the seal of the Court.The same is opened from which polythene bagcontaining nylon of green colour is taken outand shown to the witness.The witness hasidentified the rope as the same which was usedby the accused persons to strangulate hisfather.”

16.Consequently, the learned Trial Court observed as follows:-

“34.From the evidence of PW-8 Rizwan, it can be gatheredthat he claimed that the accused Shabana had given aintoxicating tablet to him which he had not taken and theaccused Faisal, Imran Khan and Yamin came to his house inthe night. He claimed that the accused Shabana administeredintoxicating tablet to the deceased and made him to consumeliquor and thereafter, the accused Shabana placed pillow onthe legs of his father and sat thereon and one of the accusedput pillow on the mouth of the deceased and sat thereon andthe remaining two accused strangulated the deceased with arope.He claimed that when he tried to raise alarm, theaccused Shabana slapped him and threatened to kill him inthe manner the deceased was killed.He claimed that theaccused persons taken the deceased on their shoulder and hefollowed them and the accused persons thrown the dead bodyon the heap of bricks in the gali. He stated that he came backrunning to his house.35.At this juncture, it would be appropriate to take note ofrelevant portion of his cross-examination which is as under:-“….Myself, my brothers, sister and my parentsused to reside together in the said tenantedaccommodation.On the day of incident, myelder brother was sent to the house of my Nana.On the day of incident myself, my brotherFarman and sister and my parents were presentin the house. …. There were five rooms in thesaid rented accommodation. We were residingonly in one room.The other rooms wereoccupied by other tenanted.It was winterseason when the incident took place. We usedto sleep after bolting the door. At the time ofincident, I did not wake up my sister. When Iwoke up, the door of the room was open. …Mysister & my younger brother did not wake up.…I woke up suddenly. Our tenanted room wassituated on the first floor.I followed theaccused persons for about 20-30 yards.I didnot wake up my sister & brother beforefollowing the accused persons. I did not raiseany alarm.I did not wake up my sister &brother after coming back to the tenanted room.…Ididnotcallanypersonsfromtheneighbouring room. …I narrated the incident tomy uncle Chaman after 1 or 2 months of thedate of occurrence when Chaman came toAligarh. My grandmother came to our house onthe next day of incident. I did not tell about theincident to my grandmother when she came toour house at Delhi.I narrated the incident tomy grandmother after about two days of theincident and I went to Aligarh after two days ofincident.My grandmother took me to thepolice station at Aligarh for narrating theincident to the police.I have come DelhiYesterday. …My father used to take liquor onevery evening.My mother never asked myfather not to take liquor. Prior to the incident,

my grandmother never visited our house. Aftermy leaving Delhi for Aligarh I have come toDelhi yesterday for the first time. …I had comein the Court on the last date. Prior to the saiddate, I did not visit Delhi in the month of April,2009. …On the day of incident, my father hadconsumed liquor all alone before I went tosleep.…I did not narrate the incident to mybrother and sister. … Police did not make anyenquiry from me, my brother or sister.Therewas no light in the room.”

36.On the careful examination of the evidence of PW-8Rizwan in the light of the evidence of PW-4 Nurul Chaman,PW-6 Nisar Bano and PW-19 Insp. Ramesh Dahiya, thisCourt is of the considered opinion that it is highly unsafe torely on his statement. PW-8 Rizwan stated that the accusedShabana had given him intoxicating tablet but he had thrownthe same under the cot and at the same time, in his cross-examination, he stated that when he woke up, the door of theroom was open.He stated that he woke up suddenly.Hestated that the accused Shabana administered an intoxicatingtablet to his father but FSL Report Ex.PX pertaining toviscera of the of the deceased does not show existence of anysedative/intoxicating substance. PW-8 Rizwan stated that hehad tried to raise alarm but the accused Shabana slapped himand threatened to kill him in the same manner in which thedeceased was killed.Quite surprisingly, he stated that theaccused persons taken the deceased on their shoulder from thehouse and he followed them.If the accused Shabanathreatened him not to raise alarm, she would not permit himto follow the accused persons when they were carrying thedead body of the deceased. PW-8 Rizwan stated that the dogswere barking at the accused persons and they had throwndead body of the deceased on heap of bricks in the gali andhe came running back to his house. PW-8 Rizwan does notstate anything regarding PW-1 Israr Ahmed who claimed thathe had seen three boys carrying Ali Jan in the street.

37.According to PW-8 Rizwan, the deceased was made toconsume liquor. In the FSL Report Ex.PY, ethyl alcohol 232mg./100 ml. of blood was found in the viscera of the

deceased.PW-8 Rizwan categorically stated that his sisterHeena and brother Farman were present in the room at thetime of incident. He stated that there were five rooms in therented accommodation. He stated that the said rooms wereoccupied other tenants. It means at the time of incident, therewere 8 persons in one room. According to the Site Plan toScale Ex.PW.18/A, the size of the room was 3.8 meter x 2.45meter which can be stated as 12.5x8 foot.It cannot bebelieved that such an incident, if had taken place in such asmall room wherein 8 persons were present, it could escapethe notice of Heena and Farman. PW-8 Rizwan could followthe accused persons to the heap of bricks despite warning ofthe accused Shabana but he did not wake-up his sister Heenaand brother Farman. PW-8 Rizwan stated that he narrated theincident to PW-4 Nurul Chaman after one or two monthsfrom the date of occurrence when he visited Aligarh. Quitesurprisingly, PW-4 Nurul Chaman has neither stated that PW-8 Rizwan was witness of the incident nor that he had toldhim anything about the incident. PW-8 Rizwan stated that henarrated the incident to his grandmother after reachingAligarh.He stated that he narrated the incident to hisgrandmother after two days from the incident. However, PW-6 Nisar Bano has not stated as to when PW-8 Rizwan told herthat he had witnessed the incident.38.PW-8 Rizwan stated that PW-6 Nisar Bano, hisgrandmother had taken him to police station in Aligarh fornarrating the incident to the police. It would be relevant tostate that PW-6 Nisar Bano has not stated so. She stated thatshe had told to the police in Aligarh regarding an attempt ofkidnapping of the children of the deceased.PW-8 Rizwanstated that the accused Shabana made the deceased toconsume the liquor but at the same time, he stated that thedeceased used to consume liquor on every evening and on thedate of incident, his father consumed liquor on alone beforehe went to sleep. PW-8 Rizwan stated that he came to theCourt 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 toDelhi yesterday i.e. 12.07.2009 for the first time. However,PW-6 Nisar Babu had different story.She went to theextent of stating that she brought Rizwan to the house of

Chaman about one month before 13.05.2009. She stated thata quarrel had taken place in her locality and she had producedPW-8 Rizwan before the police which had recorded hisstatement.This fact was neither deposed by PW-4 NurulChaman nor by PW-8 Rizwan. PW-6 Nisar Bano stated thatthe children of the deceased are staying with her since 3[rd]dayof death of the deceased. PW-6 Nisar Bano stated that PW-8Rizwan knew the fact but she did not state as to what heknew. She even could not state as to whether the deceasedwas murdered inside or outside his house.

39.To put an end, it would be relevant to state that PW-8Rizwan and his brothers and sisters were staying with PW-6Nisar Bano in Aligarh since 3[rd]day of the death of thedeceased and after arrest of the accused Shabana. She statedthat children of the deceased respect her wishes. Heena wasmarried by PW-6 Nisar Bano in Sikandarabad.She wasnever examined in this case.Neighbours/tenants of the 1[st]floor of the house of the accused Shabana were not examined.40.PW-19 Insp. Ramesh Dahiya arrested the accusedShabana on 20.02.2008 at about 1.30 p.m. from her house.According to the prosecution, the accused Shabana disclosedabout the incident in her disclosure statement. Despite that,PW-19 Insp. Ramesh Dahiya did not examine the children ofthe deceased including PW-8 Rizwan who could be the mostnatural witness. PW-19 Insp. Ramesh Dahiya stated, in hiscross-examination, that he had no information that PW-8Rizwan was an eye witness of the incident. He stated that thechildren of the deceased were staying in their residence whenthe accused Shabana was arrested. He stated that he had notmade any enquiry from Heena, elder daughter of thedeceased.

41.Finally, it would be relevant to state that this witnesscame into picture on 13.07.2009 after more than one year andsix months from the date of incident. According to him, hehad narrated the incident to PW-6 Nisar Bano two days afterthe incident.During investigation, he was not examined.This Court is of the considered opinion that he is not acredible 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 notcredible witnesses and their evidence is hearsay in nature. It has been furtherobserved by the Trial Court that there are contradictions between thetestimony of PW-6 and PW-8 and the testimony of the former does notinspire confidence. The circumstance of last scene, as deposed to by IsrarAhmed (PW-1), also does not support the case of the prosecution, as histestimony does not inspire confidence.

19.Insofar as, the alleged recovery of the nylon rope [Ex.P1] and thebundle of nylon rope [Ex.P2]; fibres of which as per the FSL report matchedwith the neck strapping of the deceased, at the instance of the accused Faisaland Imran Khan, respectively, are concerned, the Trial Court has disbelievedthe recoveries. PW-2, the recovery witness has denied that the accused Faisalgot recovered the nylon rope [Ex.P1]. Further, the owner of hardware shopfrom where the weapon of offence i.e. nylon rassi/rope [Ex.P1] allegedlywas sourced; formed part of the bundle of nylon rassi/rope [Ex.P2] seizedtherefrom, has denied that the accused Imran Khan purchased the same orthat the accused Imran Khan identified his shop as the place from where hehad purchased the said weapon of offence i.e. Ex.P1.

20.Having heard Ms. Rajni Gupta, learned APP appearing on behalf ofthe State and having perused the Trial Court Record, as well as, theimpugned judgment, we are in agreement with the determination made onbehalf of the Trial Court that the prosecution has failed to prove anycircumstance, much less than chain of circumstances, unerringly pointingtowards the guilt of the accused persons.

21.In view of the foregoing discussion, in our view, the impugnedjudgment and order dated 02.02.2017 does not warrant any interference ofthis 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

SEPTEMBER 22, 2017dn

A.K. CHAWLA, J