STATE Vs. AZAD KHAN

JUDGEMENT

(1.) By this application filed under Section 378 r/w Section 482 of Code of Criminal Procedure (hereinafter referred to as Cr. P.C.) the petitioner seeks grant of leave to appeal against the judgment dated 17.09.2011 passed by the court of Sh. Ravinder Dudeja, Additional Sessions Judge, North-West, Delhi in SC No. 128/09 arising out of FIR No. 68/04, thereby acquitting the accused from the charges framed against him under Section 302/34 IPC. Arguing the present criminal leave to appeal, Mr. Sunil Sharma, APP for the State submits that the order passed by the learned Trial Court thereby acquitting the accused is contrary to law and the facts of the case as the learned Trial Court has brazenly ignored the incriminating evidence proved on record clearly bringing home guilt of the accused. Counsel also submits that the learned Trial Court failed to appreciate that generally no public witnesses come forward to join the investigation in heinous cases of crime and therefore, in the absence of public witnesses the testimony of police witnesses regarding recovery of various articles at the instance of the accused should not be doubted. Counsel also submits that the learned Trial Court also failed to appreciate that the weapon of the offence and the mobile phone box having blood stained marks were recovered from the house of the accused and this evidence by itself was sufficient to nail the accused. Counsel further argued that the learned Trial Court also failed to appreciate that the accused had absconded after having committed the crime and he was arrested by the police only on a secret information. Counsel also argued that the learned Trial Court also did not appreciate that the key of the room where the deceased was found murdered was seized from the co-accused Chandan based upon the disclosure statement of the accused Azad Khan. Counsel also argued that the learned Trial Court also did not appreciate that the testimony of PW3-Sudhir Kumar Singh, PW4-Ramneet Singh and PW5-Fateh Kumar proved the recovery of the mobile phone at the instance of the accused Azad Khan. Based on these submissions, counsel urged that the prosecution proved its case beyond reasonable doubt to convict and sentence the accused for the commission of offence under Section 302/34 IPC.

(2.) We have heard the learned APP for the State and have also gone through the trial court record.

(3.) The prosecution case as set out in the charge sheet is that on 22.02.2004 telephonic information was received at PS Adarsh Nagar from an unknown person that foul smell was coming from the room situated on the first floor of the house No. B-18, Village Bhadola. On this information, DD No. 13-A was recorded. On receipt of DD No. 13-A, Inspector Rajender Bhatia, SHO, PS Adarsh Nagar along with HC Harpal Singh reached at the spot. They found that room on the first floor was lying locked from outside and foul smell was coming from the room. The lock was broken open to check the room. The body of a 40-45 years old man with a deep slit mark on his neck was lying on a cot in the room. The body could not be identified. No eyewitness was found at the spot. SHO prepared the Rukka Ex. PW-40/A and sent the same at Police Station through HC Harpal on the basis of which, FIR was registered under Section 302/34 IPC. Crime team was called at the spot. The spot was photographed. SHO prepared site plan and inquest papers. The body was sent to BJRM Hospital Mortuary. The broken lock was taken into possession. On 24.02.2004, a pan vendor Ram Dular met the IO and informed him that about 5-6 days ago, he had met the deceased Kamlesh Kumar Tiwari @ Pandit Ji in his room at the first floor at B-18, Village Bhadola and that in the gali, Azad Khan, Chandan and Guddu met him and they asked him about Pandit Ji. He told them that Pandit Ji was present in his room and that thereafter neither Kamlesh Kumar Tiwari @ Pandit Ji nor Azad Khan, Guddu and Chandan met him. Statement of Ram Dular was recorded under Section 161 Cr.P.C. The body of the deceased was identified on 27.02.2004 by Shambhi Nath Tiwari and Som Nath Tiwari to be that of their brother Kamlesh Tiwari. The post mortem of the body was conducted. On 24.03.2004, on the basis of secret information, accused Azad Khan was arrested. He gave disclosure statement confessing his guilt. He stated in his disclosure statement that they had looted Rs. 25,000/- and a mobile phone along with its charger and the box of mobile phone from the room of Kamlesh Tiwari and that he had sold the mobile phone to his friend Fateh Kumar for Rs. 2,000/-. On the pointing out of accused Azad Khan, the box of mobile phone make Nokia 3315, blue colour, IMEI No. 352539004243391 having blood spots, a phone charger having the name of Kamlesh Tiwari written on it, photograph of Kamlesh Tiwari, Rs. 2,000/- which were left over of the looted cash and a blood stained kitchen knife were recovered from his room at house No. 200, Kewal Park. Accused Azad Khan also pointed out the place of occurrence. On 26.03.2004, co-accused Chandan was produced in court on production warrants. With the permission of the court, he was arrested in this case and his disclosure statement was recorded. On the pointing out of accused Chandan, the key of the lock of the room of Kamlesh Kumar Tiwari and Rs. 1,000/- which were part of the looted cash were recovered from his room. One Bablu was arrested in case FIR No. 221/04 under Section 25/54/59 Arms Act, 1959 and made disclosure statement with regard to this case but no evidence was found against him and therefore, he was not arrested in the present case. Accused Guddu, who was named by Ram Dular, could not be arrested. During investigation, IO obtained the opinion of the doctor with regard to the recovered knife and also sent the exhibits to FSL, Rohini. Pending the receipt of FSL result, charge sheet was prepared under Section 302/34 IPC and accused Azad Khan and Chandan were sent to the court for trial.