MOHD. GULFAM Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) By this appeal, the Appellant challenges the impugned judgment dtd. 19/12/2018 whereby the Learned Additional Session Judge-03 convicted the Appellant for offences punishable under Sec. 364/302/201 Indian Penal Code (IPC) and the order on sentence dtd. 30/1/2019 directing the Appellant to undergo life imprisonment along with a fine of ?1,00,000/- under Sec. 302 IPC, in default to undergo simple imprisonment for a period of three years and further sentence to undergo rigorous imprisonment for a period of five years along with a fine of ?10,000/- under Sec. 201 IPC, in default to undergo simple imprisonment for a period of one year and further sentenced to undergo rigorous imprisonment for a period of ten years along with a fine of ?20,000/- under Sec. 364 IPC, in default to undergo simple imprisonment for a period of three years.

(2.) Appellant Mohd. Gulfam assails the impugned judgment on the grounds that the learned Trial Court referred the part of disclosure statement of Appellant in para 53 and 54 of the impugned judgment, which is not admissible in evidence. Para 53 of the impugned judgment is also contrary to law. The alleged incident had taken place on 26/6/2011, the dead body was found on 27/6/2011 however the FIR was lodged on 29/6/2011. Since 1/1/2011 to 26/6/2011 only two calls were made on 22/6/2011 and 26/6/2011 hence it cannot be said that there was proximity between the deceased and the Appellant. Further, SI Dinesh (PW-14) should not have been allowed to depose in respect of facts which were stated before him by the witnesses under Sec. 161 Cr.P.C. during the course of investigation. Learned counsel for the Appellant further contends that nothing adverse was found in the FSL report. The alleged garments were not taken into possession. The neighbors were not examined as witnesses and no recovery of weapon of offence took place. The Appellant has no history of prior criminal cases and he has been in the judicial custody for more than eight years now.

(3.) On the other hand, Ld. APP for the State submits that the accused had a clear motive behind committing the murder of the deceased, Azeema. The deceased was in relationship with the Appellant Mohd. Gulfam, who was residing in the same vicinity and was pressurising and threatening him to get married to her. On the day when the deceased went missing, she had gone with the Appellant on his motorcycle. The Appellant led the Police Team to the place of murder and also the place of scuffle between him and the deceased. Appellant was arrested only after the analysis of the Call Detail Records of his mobile phone which became available to the police on 21/7/2011. Ct. Shiv Kumar (PW-7), Abdul Aziz (PW-5), SI Dinesh Kumar (PW-14) and Insp. Vivekanand (PW-19) have deposed about the arrest of the Appellant. Abdul Aziz, father of the deceased (PW-5) identified the deceased daughter through the photograph during investigation. Sabista Khatoon (PW-2) though declared partly hostile, deposed that she facilitated telephonic conversation between the deceased and accused. The pant and T-shirt which the Appellant was wearing at the time of the incident were recovered from the cooler inside his house at the instance of the Appellant. Appellant went missing for several days after the incident. Learned APP for the State further contends that the recovery of the accused's purse from the spot of scuffle clearly establishes his presence at the spot of scuffle which was around 100-150 metres from where the dead body was recovered. Reliance is placed on the case cited as AIR 1991 SC 1853 Khujji @ Surendra Tewari Vs. State of MP.