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Judgment. 1 S.C.No.431/11 Ex.180
IN THE COURT OF SESSIONS FOR GREATER MUMBAI
SESSIONS CASE NO.431 OF 2011
The State of Maharashtra(at the instance of CST Railway Police Station C.R.No.A38/2011) ......Prosecution
V/s.
1 Mohd. Parwez Mohd. Anwarul HaqAge:32 years, Occ:Service,R/at.Thakurpada, Roshani Apartment, Mumbai.
2 Mohd. Tabrej Mohd. Anwarul HaqAge: 22 years, Occ:R/at.Government College Hostel,R.No.259, 2nd Floor, C. Road,Churchgate(W), Mumbai.
3 Abdul Hasib Minhajul HaqAge:23 years, Occ:Labour,R/at.Plot No.13, Shivaji Nagar,Govandi, Mumbai.
AndAt. Dostiya, Post.Gurhanwa,Kudwa, Chainpur, Dist.EastChaparan, StateBihar. ..... Accused
Mr. S.M Pandit, APP for the State.Mr. Shaikh, Adv. for accused No.1.Mr. Khan, Adv. for accused No.2 and 3.
CORAM: H. H. THE ADDITIONAL SESSIONS JUDGE SHRIKANT L. ANEKAR
COURT ROOM NO.58.
DATE : 7th May 2015.
Judgment. 2 S.C.No.431/11 Ex.180
J U D G M E N T (Delivered on 752015)
1 The accused are facing charge for offence under Section 302,
201 of Indian Penal Code at the instance of CST Railway Police Station,
having allegedly committed murder (by strangulation) of Rehmat, the
wife of accused No.1 Parwez and abandon her dead body in a Trolley
Bag in a Local Train at Mumbra, to disappear the evidence of crime.
2 Factual matrix of the case of the prosecution, as unveils from
the record is as under:
ASI Mokashi was attached to CST Railway Police Station,
Mumbai and was on duty as Station House Officer in the night
intervening between 14/3/2011 to 15/3/2011. He received a wireless
message from police control room that a abandoned bag is lying on
platform No.12 at Sandhurst Road Railway Station, Mumbai. On
getting this information, Shri. Mokashi immediately informed this fact
to Vijaysingh Thakur (the First Informant/ PW1) on his mobile phone
and asked him to verify the facts.
3 Shri Thakur proceeded in search of such bag along with
Police Constable Bhandavlkar and found one Trolley bag of light green
colour near electric pole No.25. Shri. Thakur tried to ascertain as to
whether it belonged to anybody. However, there was nobody nearby
the said bag to claim it. He raised suspicion, he tried to take smell but it
was absent.
Judgment. 3 S.C.No.431/11 Ex.180
4 Shri. Thakur then opened the chain of the bag by about one
foot and tried to peep in. He found human legs in the bag. He
therefore, opened the chain and found that one dead body was kept in
the bag in a folded condition. Shri.Thakur immediately informed above
facts to ASI Mokashi. He also found one Shashi Gohil present there, who
informed about the said bag to the Police Control Room.
5 After sometime, police party of CST Railway Station
appeared on the spot and it was noticed that the said bag contained
dead body of one lady aged about 25 years, with ligature mark on her
neck and multiple injuries on her person. Since the death was
apparently homicidal, disclosing above referred fact, Vijaysingh Thakur
lodged his report alleging the offence of murder against unknown
accused. On the said report, offence vide C.R.No.38/11 under Section
302, 201 came to be registered.
6 PI Shri. Yeram PW31 proceeded with the investigation and
firstly drawn the inquest and sent the dead body for postmortem. He
then recorded spot panchanama. The clothes of the deceased which
consist of a Chudidar Pyjama and Kurta (there was no odhni/ duppata)
on her person were seized under panchanama.
7 The postmortem of the said unknown female was conducted
at J.J. Hospital by the team of three doctors. They have recorded
provisional cause of death of said unknown female to be because of
'compression of neck with subgaleal haematoma'. At the same time, they
preserved sample for chemical analysis and also retained tissues for
DNA examination. It also revealed that the said lady was carrying
Judgment. 4 S.C.No.431/11 Ex.180
pregnancy having fetus in her uterus. The tissue samples of fetus were
also collected for DNA profiling. This is probably because the identity of
the said dead body was not revealed.
8 Further investigation was then taken up by PI in charge of
the Police Station Shri. Jadhav PW37. Since it was a case of murder of
unknown lady, he sent the details along with photographs of the said
lady to all the police stations and dispatched all India Level Wireless
Messages. Similarly, he published the details and photo of the said lady
to print and electronic media. Shri. Jadhav during his investigation has
then issued letters to Railway Authority and RPF to preserve CCTV
footage captured by the cameras installed at various railway stations.
9 Investigating machinery was clueless till they receive phone
call of one Abdul Hamid Shaikh resident of Mumbra on 16/3/11
informing that the deceased lady which he saw on the television is his
neighbour. Said witness visited police station on 17/3/11 along with
his wife Fahmida PW12. The said couple identified the dead body as
well as the clothes on her person to be that of Rehmat Parwez Haq the
wife of accused No. 1 Parwez.
10 Upon getting information from the two witnesses, needle of
suspicion tilted towards the husband of said Rehmat i.e. accused Parwez
and therefore, initially, his brother Tabrej was arrested and thereafter,
accused No.1 Parwez as well as accused No.3 Hasib were arrested. The
mother of Rehmat approached police. She identified dead body of her
daughter Rehmat. Her blood sample was drawn for DNA profiling
under Exh.110(Colly.).
Judgment. 5 S.C.No.431/11 Ex.180
11 It is the case of prosecution as revealed from the
investigation, that accused No.1 Parwez performed 'Nikaha' with
deceased Rehmat on 1012010. It revealed that he was residing with
Rehmat at Prakash Complex, Santosh Nagar, Mumbra. It revealed that
accused Parwez falsely disclosed to his nearer and dearer and
neighbours that he is working as Doctor at K.E.M. Hospital at Mumbai.
It revealed that he contracted second marriage with Arshiya PW9 on
4/12/10 and was residing with her at Flat No.303, Roshani Apartment,
C Wing, Thakurpada, Mumbra being tenant of Ayesha Sakharekar
PW11. It also revealed from the investigation that accused No.1 Parwez
did not disclose either to deceased Rehmat about his marriage with
Arshiya PW9 and vice versa.
12 As per prosecution deceased was suspecting that accused
would perform second marriage. As per prosecution, accused Parwez
wanted to continue his matrimonial relations only with Arshiya, being
from a well off family as compared to deceased Rehmat. For this, he was
compelling deceased Rehmat to reside at her parent's home at Kundva
Chainpur, State of Bihar. For this purpose, accused Parwez disclosed to
the neighbours and others including Fahmida(PW12) that he is going
to shift at Delhi as he has secured a job. He therefore, disclosed that he
is leaving for Delhi and left from the flat at Prakash Complex, Santosh
Nagar, Mumbra. He booked railway ticket for deceased Rehmat and
accused No.3 Hasib for Delhi. Accordingly, deceased Rehmat and
accused No.3 Hasib left Mumbai by Dadar Amrutsar Train on 6/3/11 to
go to Delhi. They were to join accused Parwez at Delhi. Fahmida
(PW12) accompanied the deceased to the Mumbra Railway Station to
seeoff.
Judgment. 6 S.C.No.431/11 Ex.180
13 It is a case of prosecution that in fact accused Parwez did not
leave for Delhi as disclosed to his neighbour Fahmida. He eloped from
said area, but was at Mumbra itself with his second wife Arshiya PW9.
14 It is a case of prosecution that, accused Parwez then
accompanied Arshiya PW9 by a train on 9/3/11 and dropped her at
Khandva State of M.P. Accused Parwez however continued his journey
for Delhi informing Arshiya that he is going to get a job.
15 It is a case of prosecution that after reaching Delhi, deceased
Rehmat realised having been cheated by accused Parwez and therefore,
insisted upon him to reach her again at their place at Mumbra, Dist.
Thane. She refused to go to her parents house. She disclosed above facts
to Fahmida PW12 on mobile phone. As per prosecution, husband of
Fahmida PW12 agreed for the stay of Rehmat at their house along with
his other daughters.
16 It is the case of prosecution that because of adamant
behavour of deceased Rehmat, accused Parwez started for Mumbai
along with deceased Rehmat and accused No.3 Hasib. They reached
Dadar Railway Station early in the morning on 14/3/11 which was
recorded/captured by CCTV cameras installed at Dadar Railway Station.
At per prosecution, accused Parwez and Hasib had taken Rehmat to
Mumbra, which was recorded/captured by CCTV cameras installed at
Mumbra Railway Station. As per prosecution accused Parwez taken the
deceased at 303, Roshni Apartment, Thakurpada, Mumbra, where he
was residing with Arshiya PW9.
Judgment. 7 S.C.No.431/11 Ex.180
17 It is a case of prosecution that in the said Flat, with the help
of accused Tabrej, Rehmat was murdered by strangulation and by
inflecting multiple injuries on her person. After folding her dead body, it
was kept in green colour Trolley bag, which was gifted to Arshiya PW9
by her parents, in her marriage. The said bag was then abandoned in a
local train at Mumbra Railway Station, by accused Parwez and Tabrej,
which was also recorded/captured by a CCTV cameras installed at
Mumbra Railway Station. As per prosecution, accused Tabrej was
wearing a Tshirt having digit 93 on his back. The said bag was then
found at Sandhurst Road Railway Station, by First Informant Shri
Thakur.
18 Accused No.1 Parwez was arrested from Khandva Madhya
Pradesh while he was at house of parents of Arshiya PW9. He was
found in possession of one Mobile Phone of Zen make having IMEI No.
356379010828497 and 35637901082505 with Sim Card No.
89917990209118080736 having Phone No. 919702181561. A railway
ticket from Khandva to Mumbai of Journey date 1632011. Bunch of
keys etc. Panchanama Exh.35 to that effect was drawn.
19 Before the arrest of accused Parwez, accused Tabrej and
Hasib were arrested from Mumbai. Tabrej was found in possession of a
Mobile Phone etc. for which Panchanam was drawn. During course of
interrogation of accused, accused Tabrej gave memorandum statement
on 21/3/2011 leading to recovery of odhani/dupatta of the deceased
from one bag kept in flat bearing No.303 of Roshani Cooperative
Housing Society, Thakurpada, Mumbra, Dist. Thane. Keys of the said
house were supplied by accused Parwez. Search of the said premises
was carried out in which diary, medical books, stethoscope, one
Judgment. 8 S.C.No.431/11 Ex.180
MarriagePhoto Album and other articles were seized under
panchanama. Room No. 259 of accused Tabrej in the Elphiston Collage
Hostel was searched, in which the said Tshirt having digits 93 on the
back, news paper cutting in respect of detection of dead body of Rehmat
etc were found.
20 The mobile phone which accused No. 1 Parwez was found
using, was found during their personal search. It revealed that accused
Parwez was using the mobile phone number which was standing in the
name of Mohd. Javed Abdul Mannan Shaikh PW28, who is his close
relative. His statement was recorded. Similarly, the application form
submitted by him to Idea Cellular Company was also secured from the
said Company.
21 Mobile call details record (CDR) of phone number of accused
Parwez and that of accused Tabrej were secured from the cellular
company. Similarly, the contents of the mobile phones and memory
card of accused No.1 and 2 were extracted from Forensic Science
Laboratory, Mumbai for which necessary hard disk was supplied. The
same were also taken by way of print outs.
22 Muddemal articles like cloths found on the dead body,
duppata/odhni recovered at the instance of accused Tabrej, receipt book
of the cloths maintained by Shri. Mohd. Imran Jafar Alam Shaikh,
23 DNA profiles/reports in respect of accused Parwez, deceased
Rehmat and the foetus found in her womb were collected. Similarly the
DNA report of deceased Rehmat and her Mother were also secured. It
revealed that accused Parwez is biological father of the foetus found in
the womb of Rehmat. PW14 Surma Abdul Bari Shaikh found to be
Judgment. 9 S.C.No.431/11 Ex.180
biological mother of Rehmat. DNA of accused Tabrej and Hasib did not
match with that of Rehmat or the foetus.
24 During investigation, statement of as many as 39 witnesses
were recorded.
25 The video footage of relevant period captured by CCTV
cameras installed at Dadar Railway Station, Mumbra Railway Station
preserved in Digital Video Recorder (DVR)were secured. Certificate
about its authenticity was secured from Mr. Pritam Shinde PW33. The
footage was sent to Forensic Science Laboratory for opinion as to the T
Shirt seized from the room of Accused Tabrej etc. Still photo images of
the said footage were secured in a Compact Disk and the same were
developed as Digital Photos by Shri Ikke PW39.
26 The diary found in the house of accused Parwez at 303
Roshni Apts. Mumbra, specimen handwriting of accused Parwez and the
Railway Reservation Form, sized from the office of Railway, were sent
to Handwriting Expert for opinion. Its opinion was secured .
27 After completion of investigation, charge sheet came to be
filed.
28 The learned Magistrate by order committed the case for trial.
29 My learned predecessor framed charge for the offence
punishable under section 302, 201 of Indian Penal Code. The accused
pleaded not guilty to the charge.
30 In order to prove the charge, the prosecution has examined
as many as 39 witnesses and has also relied on some documentary
Judgment. 10 S.C.No.431/11 Ex.180
evidence as under :
PW1 Vijaysingh Gajjusingh Thakur Ex.19
PW2 M. Rehman Ex.22
PW3 Anita Keshav Bhosale Ex.24
PW4 Mohd. Rehman Shaikh Ex.26
PW5 Shaikh Motiullhaq Daud Ex.28
PW6 Bablu Ramashray Chaurasiya Ex.29
PW7 Pankaj Premaji Waghela Ex.31
PW8 Anand Anil Sande Ex.32
PW9 Arshiya Mohd. Parwez Ex.37
PW10 Anil Niranjandas Bairagi Ex.39
PW11 Ayesha Faizan Sakhrekar Ex.42
PW12 Fahmida Abdul Hamid Shaikh Ex.44
PW13 Manoj Prabhakar Dhagvat Ex.45
PW14 Surma Abdul Bari Shaikh Ex.50
PW15 Chanduprakash P. Sharma Ex.72
PW16 Gulab Pandharinath Nalawade Ex.74
PW17 Shankar Shivalingappa Savnur Ex.76
PW18 Kiran Vasant Bagekar Ex.79
PW19 Rizvana Ibris Qureshi Ex.85
PW20 Mohd. Imran Zafar Alam Ex.86
PW21 Shrikant Hemant Lade Ex.88
PW22 Rajendra Ramchandra Mavle Ex.89
PW23 Sudhakar Sonappa Davare Ex.90
PW24 Sumitra Kishor Salunkhe Ex.98
PW25 Gorakhnath Ramdas Khande Ex.101
PW26 Bharat Bhimrao Gaikwad Ex.103
PW27 Vilas Nilkanth Parab Ex.107
PW28 Mohd. Javed Abdul Mannan
Akhtar
Ex.122
Judgment. 11 S.C.No.431/11 Ex.180
PW29 Vijay Eknath Shinde Ex.125
PW30 Mohammed Hazrat Ansari Ex.132
PW31 Pandharinath Rajaram Yeram Ex.137
PW32 Dr. Ashutosh Harshavardhan
Mishram
Ex.139
PW33 Pritam Dilip Shinde Ex.143
PW34 Shaikh Mehmood Shaikh Ameer
Jahagirdar
Ex.146
PW35 Dilip Ramkrishna Yadav Ex.149
PW36 Shekhar Mallappa Sanghreddy Ex.152
PW37 Ashokkumar Mahadev Jadhav Ex.156
PW38 Pramod Deepchand Yadav Ex.167
PW39 Subhas Ikke Ex.169
Complainant Ex.20
Panchanamas Ex.25, 27, 30,Ex.33, 34, 35
Nikahnama Ex.38
Leave and license agreement Ex.43
Statement of Tabrej Ex.46
Panchanamas Ex.47,48, 77
P.M. Reports Ex.51
C.A. Reports Ex.52 to 70
Report Ex.75
Examination report Ex.80
Details of analysis in the form of CDs Ex.81
Letters dated 23/3/2011 including
photograph
Ex.110
Letter of handwriting expert Ex.119
Email Ex.126
CDR along with certificate Ex.127
Judgment. 12 S.C.No.431/11 Ex.180
Copies of driving licence Ex.128 & 129
Panchanama Ex.138
Final cause of death certificate Ex.140
Certificates under Sec. 65 B of Evidence Act Ex.145
12 pages of specimen handwriting Ex.147
Panchanama Ex.148
12 pages of specimen handwriting Ex.150
6 pages of special handwriring Ex.153
Letter to C.A. Ex.163
Panchanamas Ex.151, 154,
Ex.164,168,171
Handwriting expert opinion Ex.165
Certificate issued by Pritam Shinde PW33 Ex.173
Correspondence Ex.21, 82,83,84.99,102,104,105,
106,108,110,112,114,116,118,
119,141,144,157,159,160,161,
162,163.
31 After recording the statement of the accused under section
313 of Criminal Procedure Code, in which the accused have denied all
the incriminating circumstance against them. I have heard the learned
Addl. Public Prosecutor and learned advocate for the accused. I have
carefully went through the notes of arguments and authorities relied on
by both learned advocates.
32 Following points arise for my determination and I have
recorded my findings thereon with the reasons given thereunder:
Judgment. 13 S.C.No.431/11 Ex.180
Points Findings
1 Whether the prosecution has proved that, dead body found in Green Colour Bag at Standhrust Road Rly. Station on 1532011 was that of Rehmat w/o Parwez Haq ?
Yes.
2 Whether prosecution has proved that, the accused in furtherance of their common intention have committed murder of Rehmat, wife of accused No. 1 Perwez ?
Proved against accused No. 1 and 2 only.
3 Whether prosecution has proved that, accused with an intent to disappear the evidence of crime, carried the dead body of Rehmat in the Green Colour Bag to Mumbra Railway Station and abandoned the dead body of Rehmat in the said Bag in a Local Train at Mumbra Dist. Thane, Railway Station ?
Proved against accused No. 1 and 2 only.
4 What order ? As per final order below.
R E A S O N S
AS TO ALL THE POINTS :
33 As all the points are interrelated, they are taken up for
common discussion.
34 Before I embark upon the disputed facts, it would be proper
to first make a brief mention of admitted and undisputed facts. Accused
have not disputed inter se relationships between them. Accused Parwez
has admitted that Arshiya PW9 was his wife. He admitted that he was
residing with her at 303, Roshni Apartment, Thakurpada, Mumbra Dist.
Thane. Accused Parwez has admitted his personal search panchanama
Judgment. 14 S.C.No.431/11 Ex.180
Exh.35 under which Mobile Phone of Zen Make with given number sim
card and one memory card, Leather wallet having licence, PAN Card,
Train Pass, one Railway Reservation Ticket from Khandwa to Dadar etc.,
currency notes and bunch of Keys were found with him at the time of
arrest.
35 Admittedly, there is no eye witness to the incident and the
case is entirely based on circumstantial evidence. In view of this, I
propose to reproduce important principles led down by Hon'ble
Supreme Court in Sharad Sarda's case (1984 SCC Criminal page 487).
“{1} The circumstance from which the conclusion of guilt is to be
drawn should be fully established. The circumstances
concerned 'must or should' and not 'may be' established.
{2} The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that
the accused is guilty.
{3} The circumstances should be of a conclusive nature and
tendency.
{4} They should exclude every possible hypothesis except the one
to be proved, and
{5} There must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion with the innocence
of the accused and must show that in all human probability,
the act must have been done by accused.”
36 It is also well settled that false defence raised by accused is
Judgment. 15 S.C.No.431/11 Ex.180
additional circumstance to fill in the gaps in the case of prosecution.
37 In a case based on circumstantial evidence it would be
proper to first recapitulate the circumstances, which the prosecution
proposes to rely upon to prove the guilt of the accused. In present case,
from the facts alleged, the prosecution is relying on following
circumstances and additional circumstances to prove that accused
before the court are the authors of crime.
CIRCUMSTANCES
A] Dead body of a lady found on 1532011 in a Green Colour Trolley
Bag on Platform No. 1/2 at Standhrust Road Railway Station was that
of Rehmat daughter of Surma Abdul Bari Shaikh and wife of accused
No. 1 Parwez Haq.
B] That accused Parwez and deceased Rehmat married to each other on
1212010 at Dabri Dist. Najabgarh and were residing as husband and
wife between July 2010 till 6 th March 2011, in a room let out to him at
Prakash Complex, Santosh Nagar, Mumbra Dist. Thane. And that the
said room is near the room of Fahmida (PW 12),
C] That accused Parwez contracted second married wiht Arshiya PW9
on 2122010 at Sailana District Ratlam State of Madhya Pradesh.
D] That accused Parwez and Arshiya PW9 were residing as husband
and wife at 303, Roshni Appartment, Thakur Pada, Mumbra as tenants
of Aayesha PW11 during 6122010 till 932011.
Judgment. 16 S.C.No.431/11 Ex.180
E] That the accused Parwez did not disclose about his marriage to
deceased Rehmat to Arshiya PW9 and vice a versa.
F] Accused Parwez decided to continue her matrimony only with
Arshiya PW9 and to desert deceased Rehmat by compelling her to stay
at her Mother's place.
G] Accused Parwez with a view to desert deceased Rehmat from his life
falsely disclosed his neighbours that he is shifting to Delhi along with
deceased Rehmat, on account of a new job.
H] Accused Parwez eloped/vanished from the said place stating that he
is going to Delhi. But he was very much at Mumbra at 303, Roshni
Apartment with Arshiya PW9.
I] Accused Parwez reserved two tickets of DadarAmrutsar Train No.
11057 from Dadar to Delhi in the name of deceased Rehmat and
accused No.3 Hasib, for their journey on 632011.
J] Accused Parwez also booked one ticket of same train from Dadar to
Khandwa in the name of Arshiya PW9 for her journey on 932011. He
accompanied her till Khandwa Station and continued his journey to
Delhi by the same train.
K] That deceased Rehmat found that accused Parwez was not at Delhi.
She realised that she has been cheated by accused Parwez.
Judgment. 17 S.C.No.431/11 Ex.180
L] That accused Parwez started insisting deceased Rehmat to stay at her
mother's place. However deceased Rehmat was not willing to go to her
mother's place and instead wanted to stay with accused Parwez at
Mumbra. She made accused Parwez to take her to Mumbra to stay in
the house of Fahmida PW12.
M] That accused Parwez informed on 1432011 to his wife Arshiya
PW9 that due to urgent work he had to visit Mumbai.
N] Since 2009, accused Parwez was using Idea Mobile Sim Card having
mobile number 9702181561 standing in the name of his relative Mohd.
Javed Abdul Mannan Akhtar Shaikh. Mobile Phone with IMEI No.
356379010828505 was found with accused Parwez in his personal
search.
O] Accused Parwez got down at Dadar Railway Station along with
deceased Rehmat and accused No.3 Hasib on 1432011 at early
morning at 03: 32 Hrs by a Train and was recorded/captured by CCTV
cameras installed there and was recorded in Digital Video Recorder.
P] Thereafter Accused Parwez then got down at Mumbra Railway
Station by a Local Train along with deceased Rehmat and accused No.3
Hasib on 1432011at 05:16/17 Hrs and was recorded/captured by
CCTV camera installed there and was recorded in Digital Video
Recorder.
Q] Mobile tower locations about the use of mobile phone of accused
Parwez shows that accused was at Mumbra at all material time.
Judgment. 18 S.C.No.431/11 Ex.180
R] Deceased Rehmat was lastly seen alive in the company of Accused
Parwez and Hasib on 1432011 at 05:16/17.
S] That accused Tabrej was using Idea Company Mobile Phone having
number 9702988355, standing in his name. Accused Parwez was in
constant contact with accused Tabrej on mobile phone on reaching
Mumbai on that day.
T] That accused Parwez took Rehmat to 303, Roshni Apartment, Thakur
Pada, Mumbra, where accused Tabrej was present.
U] That the said TShirt Article 5 having digits 93 carved on it's back,
was found in Room No. 259 of accused Tabrej at Elphiston College
Hostel. That Duppata/Odhni of Rehmat, which is part of Kurta and
Paijama found on her dead body was found concealed in a Bag kept at
303, Roshni Apts. at the instance of accused Tabrej.
V] Trolley Bag Article1 in which dead body was found was out of the
gift articles received by Arshiya PW9 in her marriage, from her parents.
It was lying in her house at 303, Roshni Apartments, Thakur Pada,
Mumbra.
W] Accused No. 1 Parwez and accused No. 2 Tabrej were found at
Mumbra Railway Station at 21:58 Hrs on 1432011 along with Trolley
Bag Article1 and was recorded/captured in CCTV Camera installed at
the said Railway Station. Trolley Bag Article1 was found on Platform
No. 1/2 at Standhrust Road Railway Station on 1532011 at about 2:05
Judgment. 19 S.C.No.431/11 Ex.180
Hrs by Thakur PW1 having dead body of Rehmat with ligature mark
and other injuries all over the body.
X] Mobile Tower Location in respect of Mobile Phone Numbers (in
CDR) shows that accused Parwez and Tabrej were at Mumbra Railway
Station at 21:58 Hrs. on 1432011.
Y] Accused Tabrej had TShirt Article5 before the court on his person
when he was carrying Trolley Bag Article1 at Mumbra Railway Station.
Z] Semen/Sperm stains of accused Parwez found on the Pyjama found
on the person of the deceased Rehmat.
ADDITIONAL CIRCUMSTANCES
AA] False denial of Relationships by accused Parwez and Tabrej with
deceased Rehmat.
AB] No complaint being filed by accused Parwez about missing of his
wife Rehmat at any time.
AC] That the conduct of the accused prior to and since the incident has
been highly unnatural.
AD] False plea of alibi raised by accused Parwez.
38 Now it is to be seen whether the prosecution has proved the
above circumstances by cogent and reliable evidence ? By taking up
Judgment. 20 S.C.No.431/11 Ex.180
each and every circumstance one by one I propose to address as to
whether the circumstances taken together form a chain leading to only
hypothesis that the accused alone is the author of the crime and rule out
the possibility of his innocence.
39 At this stage it is worth to note the observations of Hon'ble
Supreme Court in State of H.P. vs. Lekh Raj (2000) 1 SCC 247 which
has led down present day situation and the approach of the court while
appreciating the evidence. It reads as under :
“The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal Jurisprudence cannot be considered to be a Utopian thought but has to be considered as part and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosion cannot be given a bonus in favour of those who are guilty of polluting society and the mankind."
Judgment. 21 S.C.No.431/11 Ex.180
CIRCUMSTANCE A:
40 If we consider the defence set up by the accused, the accused
persons have denied that dead body found in green colour trolley bag
was that of Rehmat wife of accused No.1 Parwez. During cross
examination to relevant witnesses as well as while answering in
response to the questions during statement U/s.313 of Cr.P.C., the
accused persons have denied even relationship of accused No.1 Parwez
with Rehmat to be that of husband and wife. During course of
arguments learned advocate for the accused has admitted the fact that
accused No.1 and 2 are real brothers intersay and accused No.3 being
their first cousin. He also admitted that the accused No.1 Parwez was
married to Arshiya PW9. He however, merely suggested while arguing
that even if the fact of marriage between accused No.1 Parwez and
deceased Rehmat is accepted, it will not take case of prosecution to any
end because under the personal law of accused Parwez, he can perform
more than one marriage. However, as could be seen that accused No.1
Parwez has not admitted that Rehmat was his wife.
41 In view of above, prosecution was obliged to prove beyond
doubt that the dead body which was found in green colour trolley bag
on platform No.1/2 at Sandhurst Road Railway Station on 15/3/11 was
that of Rehmat which was daughter of Surma Shaikh PW14 and wife of
accused No.1 Parwez.
42 On this point, it is first necessary to examine the evidence of
Shri. Thakur PW1. As per his evidence, he was attached to GRP at CST
Railway Station, Mumbai. On 14/3/11, he was on night duty between
Judgment. 22 S.C.No.431/11 Ex.180
8.30 p.m. to 8.00 on the next day and was assigned duty at Sandhurst
Road Railway Station.
43 As per PW1 Shri. Thakur, he received a phone call of ASI
Shri. Mokashi who was Station House Officer of CST Railway Station at
about 2.05 a.m. on 15/3/2011. Shri.Mokashi informed him having
received wireless message from control room to the effect that one
abandoned bag is lying on platform 1/2 of the Sandhurst Road Railway
Station. PW1 Shri.Thakur was called upon to make necessary inquiry
and report.
44 Shri. Thakur PW1 then searched above such bag and found
same near Pole No.25. He was accompanied by Shri.Bhadvalkar another
P.C. on duty. Shri. Thakur found that there was nobody around the bag.
Therefore, he tried to take smell obviously because he carried suspicion.
He tried to open chain and found that human legs were in the bag. He
immediately reported the matter to Shri. Mokashi on phone accordingly
and police staff appeared on the spot.
45 As per Shri. Thakur, the bag was opened and it was found
that dead body of young lady was kept folded in the bag having ligature
mark on he neck with injuries over her body. He therefore, lodged
report Ex.20 against unknown accused. It may be noted her that in view
of multiple injuries found on the body, PW1 though it was case of
murder by unknown accused, and therefore, lodged such report. When
confronted with the trolley bag before the Court, he identified the same
which is Art.1.
Judgment. 23 S.C.No.431/11 Ex.180
46 During the course of cross examination, there is hardly any
challenge to the evidence of this witness having found green colour
trolly bag containing dead body of female. It is conspicuous to note
here that it is brought on record that clothes like Salwar Kameez were
on the person of the dead body but he has not been questioned as to
whether there was Dupatta/Odhani on the dead body.
47 As could be seen from the evidence of PW1 Shri. Thakur, in
response to phone call of Station House Officer Shri.Mokashi, he visited
platform No.1/2 of Sandhurst Road Railway Station and found green
colour trolley bag Art.1 lying abandoned containing dead body of a
lady. He has set criminal law in motion by lodging FIR Ex.20.
48 In this regard, the prosecution has also placed in to service
the evidence of M. Rehman PW2 and Pankaj Waghela PW7. As could
be seen from their evidence, a green colour trolley bag was found at
Standhurst Road Railway Station in abandon condition. During their
cross examination no much controversy has been created as to the fact
of detection of abandon bag containing a dead body of a lady.
49 From the above referred evidence of Shri Thakur, M.
Rehman and Pankaj Waghela, this court has no hezitation to record the
finding of fact that green colour trolley bag was found at said railway
station in abandon condition and the bag contained a dead body of a
lady.
50 It is now crucial to examine as to whether the prosecution
has proved the identity of the dead body found in the said bag. In this
Judgment. 24 S.C.No.431/11 Ex.180
context, as per evidence of Shri. Jadhav PW37, on receipt of
investigation of this crime on 15/3/11, he issued State level and All
Indian level wireless messages as well as details of dead body were
given on Print and Electronic Media. As per his evidence, dead body
was sent to J.J. Hospital because DNA testing was not available at St.
George Hospital where dead body was initially sent by Shri. Yeram
PW31 who carried initial investigation. On careful reading of cross
examination of Jadhav PW37, there is no challenge even by suggestion
of denial that State level and All India level wireless messages were sent
and details of dead body were published on Print and Electronic Media.
51 This takes up to the evidence Fahmida PW12. Fahmida
PW12 is a lady residing at No.204, B wing, Prakash Complex, Santosh
Nagar, Mumbra, Dist.Thane. As per her evidence, accused Parwez
approached through one Ganesh Bitla for a room on rent. As per
evidence, this was in somewhere June, 2010. She claimed that one
room was then selected in the said apartment on First Floor, B wing. It
was given on rent to accused No.1 Parwez since 2010. As per PW12,
accused Parwez started residing in the said room alongwith Rehmat as
his wife. He disclosed that he was working as Doctor in KEM Hospital.
52 As per Fahmida PW12, on 16/3/11, while watching Aaj Tak
News Channel, she came across news item about detection of dead body
in a bag at Sandhurst Road Railway Station and the fact of the said
dead body was also displayed. She immediately identified the said
photograph to be that of her neighbour. She accordingly contacted
police control room and then to CST Railway Station. On the next day,
she visited police station. She was taken to hospital for identification of
Judgment. 25 S.C.No.431/11 Ex.180
the dead body. She claimed that she identified dead body to be that of
Rehmat wife of accused No.1 Parwez. Fahmida also identified the
clothes of the deceased to be the one which gifted to her and were got
stitched from tailor known to her.
53 For the limited purpose of identification of dead body of
Rehmat by this witness, if we carefully scrutinize the cross examination
of Fahmida PW12, it is significant to note that her evidence that she
saw photographs of deceased Rehmat on the TV while watching Aaj Tak
News Channel and visit to CST Railway Station has not been challenged
at all. She deposed that she visited J.J. Hospital to identify the dead
body. An attempt was made to question her that deceased Rehmat
might have disclosed her falsely that she got married to accused No.1
Parwez. However, it is further got confirmed from her mouth that
deceased Rehmat was saying that accused Parwez was her husband and
they were residing there as husband and wife. She was also questioned
about first husband of Rehmat. But she claimed no knowledge about
further details. She however confirmed that first husband of Rehmat
was mentally challenged and Rehmat had given Talakh to him. With
this material, there is hardly any substance in questioning this witness
as to whether she had occasion to see any document of Talakh. Fact
remains that deceased and accused Parwez were residing as husband
and wife in Prakash Complex being neighbours of this witness has not
been challenged at all.
54 Prosecution has also relied on evidence of Mohammed
Hazrat Ansari PW30. As per PW30, he knows accused Parwez as well
as deceased Rehmat being from same village. As per his evidence on
Judgment. 26 S.C.No.431/11 Ex.180
12/1/10, accused Parwez and deceased had been to him at village
Dabri, Najabgarh disclosing that they wanted to marry each other. This
witness called for Kazi and with the help of one Nek Mohammed, Ful
Mohammed and other five to six persons, Nikah was performed on
Meher of Rs.51,000/ offered by accused Parwez. He has produced
photocopy of Nikahnama at X1. He claimed that Nikahnama bears his
signature and that of Nek Mohammed, so also Parwez and deceased
Rehmat.
55 During cross examination of this witness, he admitted that
parents of Rehmat were not with her. It is rather confirmed that said
marriage took place in his house No.26. He however, claimed no
knowledge about marital status or otherwise of deceased Rehmat. He
admitted that as per Islamic Law, married woman cannot have
subsequent marriage during lifetime of her first husband. He admitted
that Muslim man can perform four marriages.
56 It was argued on behalf of accused that whether Rehmat was
already married lady whether Talakh was given to her by her previous
husband has not been brought on record and therefore, there is doubt
about legality of marriage between accused Parwez and Rehmat. I may
note here that this Court is not expected to examine legality of the
marriage. Apart from this, fact that accused Parwez himself had taken
her to PW30 for performing Nikah itself indicates that he was rest
assured that he can validly marry Rehmat under his personal law.
57 Objection was raised while exhibiting Nikahnama as proved
document and therefore, it appears that it was marked X1 for
Judgment. 27 S.C.No.431/11 Ex.180
identification. During the course of arguments, no submissions were
made on behalf of the accused. What is important to note here is the
fact that nature of document i.e. Nikahnama is such that it's first
copy/primary evidence must necessarily be with the accused Parwez
and deceased Rehmat. Therefore, primary evidence of said document
being in the custody of accused, prosecution cannot be expected to
produce the same. This being so, photocopy which is brought on
record, on which PW30 has admitted his signature to have been made
while the said Nikahnama prepared. Above evidence is sufficient to
prove the said document. It is rather pertinent to note that from the
mouth of PW30 which is brought on record that contents of Nikahnama
were narrated and explained by accused Parwez to the Kazi. Accused
himself has offered Meher of Rs.51,000/. With above material on
record, there is hardly any doubt about genuineness and authenticity of
the Nikahnama produced by this witness from his proper custody. Said
document can very well be looked into as secondary evidence as it is
proved that primary evidence is in the custody and power of accused.
Therefore, I have no hesitation to read the Nikahnama as proved
document and I propose to mark it as Ex.132/X1 being a proved
document.
58 In this context, the prosecution has also relied on evidence of
Surma Shaikh PW14 who is mother of deceased Rehmat. She claimed
that Rehmat was married to one Nirale but he was dumb. Therefore,
Rehmat got Talakh from him. She was residing with her. She deposed
that Rehmat then married to accused Parwez in the year, 2010. She
claimed that Rehmat was residing with accused No.1 at Mumbra. As per
her evidence, whenever she used to make a phone call, Rehmat was not
Judgment. 28 S.C.No.431/11 Ex.180
allowed to speak with her in detail and she used to talk to her only for
two minutes. As per her evidence, she was called at CST Railway
Station and was informed that Rehmat is no more.
59 During cross examination, Surma Shaikh PW14 was
questioned about first marriage of Rehmat which she admitted to have
taken place in her presence. It is brought on record from her mouth
that Rehmat has given Khula (Talaq) to her first husband Nirale and
because of that he was angry. She admitted that she did not attend
marriage of Rehmat with accused Parwez.
60 As could be seen that defence has brought on record that
Rehmat had given Talaq to her earlier husband and that is how, she
performed Nikah with accused Parwez. The fact that PW14 did not
attend marriage of Rehmat indicate that it was without her knowledge
or wish. The period when the said marriage was performed is
corroborated by by Fahmida PW12. If we consider evidence of PW30
about marriage of accused Parwez and Rehmat in January, 2010, and
the fact that as per Fahmida PW12, Rehmat started residing near her
house in July, 2010 and was carrying pregnancy of about four months
are indicative of the fact that what is deposed about marriage between
accused Parwez and deceased Rehmat by PW30 is a fact proved. Co
habitation of accused Parwez with deceased Rehmat in Prakash
Complex adjacent to Fehmida PW12 as husband and wife is
corroborative fact of marriage between them.
61 An attempt was made by the defence advocate to argue that
since first husband of Rehmat did not gave Talaq to her, she could not
Judgment. 29 S.C.No.431/11 Ex.180
have given Khula. And this would show that Rehmat continued to be
the wife of said Nirale and so called marriage of accused Parwez can not
be said to be legal. This Court is unable to accept above proposition.
This is because, to the satisfaction of accused Parwez, there was valid
separation between Rehmat and her first husband and therefore he
contracted marriage with her. This court is not expected to record any
finding as to validity of the marriage between Parwez and Rehmat. Fact
that they were residing as husband and wife is enough material as
proved from Fahmida PW12 to conclude that they were husband and
wife.
62 Above all these, the prosecution has preserved samples of
dead body found in the bag while drawing postmortem. In this context,
as per Dr. Ashutosh Mishram PW32 while conducting autopsy of the
dead body on unknown lady found in the bag, samples were drawn for
DNA. As per his evidence, fetus was found in the uterus of the said
dead body and its samples were also drawn for DNA.
63 To the above evidence of Dr. Ashutosh Mishram PW32
about drawing of samples and being preserved and being sent for
analysis, there is virtually no challenge. Even there is no suggestion that
no such samples were drawn for DNA profiling. In response to question
U/s.313 of Cr.P.C., there is no challenge to that effect.
64 In this regard, as per Shri.Jadhav PW37, blood samples, nail
clipings, heirs, vaginal swab and other samples of fetus were retained
and were sent to CA vide Ex.108. As per Jadhav PW37, on 23/3/11,
mother of deceased Rehmat by name Surma Shaikh PW14 visited the
Judgment. 30 S.C.No.431/11 Ex.180
police station and identified dead body to be that of her daughter. Her
blood samples were drawn for DNA profiling and same were sent for
analysis. Said document and evidence of Shri. Jadhav being
unchallenged needs to be accepted as it stands. It may not be out of
place to mention here that the defence has not controverted the
evidence of carriers of muddemal and samples i.e. Khande PW25,
Gaikwad PW26 and Parab PW27. Except suggestions of denial there is
virtually no cross examination to said witnesses.
65 As per Shri. Jadhav, blood samples of accused Parwez were
also drawn for DNA profiling under letter to Saint George hospital. Said
letter is at Ex.163. It is significant to note that there is no challenge to
the above evidence of Shri.Jadhav and the documents produced at Ex.
163. Since the samples were drawn by Government Hospital,
presumption attached to Section U/s.114 of Indian Evidence Act, official
acts must have been performed by the Doctors in discharge of their
official function. It has to be presumed that all precautions must have
been taken while drawing samples. Even otherwise, while answering
statement U/s.313 of Cr.P.C., accused did not deny having drawn his
samples but has rather claimed that he is unaware of it ! As per Shri.
Jadhav all the samples were sent to analyser under letter Ex.102. The
report of DNA profiling is then proved in the evidence of Dr. Shrikant
Lade PW21.
66 Evidence of Dr. Shrikant Lade PW21 would show steps
taken by him while examining the samples sent to the Laboratory. As
per Shri. Lade, Salma Khatun Abdulbari Shaikh vide Case No. DNA
144/11, of their laboratory, was found to be biological mother of
Judgment. 31 S.C.No.431/11 Ex.180
Sternum of unknown female having DNA case No.132/11. As could be
seen from the record, the samples of blood etc. of dead body found in
the bag were sent to the analysis of DNA case NO.132/11. Similarly as
per Shri. Lade, DNA case of their Laboratory No.136/11 of accused
Parwez revealed that he is biological father of DNA of Placenta of fetus
found in the womb of dead body found int he bag. He proved the
reports Ex.56 which reads as under:
“1) Salma Khatun Abdulbari Shaikh of F.S.L.M.L. Case No.DNA 144/11 is concluded to be biological mother of DNA of Sternum of unknown female of F.S.L.M.L. Case noDNA132/11. 2) DNA of Sternum of unknown female of F.S.L.M.L. Case no.DNA132/11 and Mohd.Parwez Anwarul Haaq is concluded to be the biological parents of DNA of Placenta of fetus of Unknown female of F.S.L.M.L. Case No.DNA 136/11. 3) Mohd. Tabrez Mohd. Anwarul Haq is excluded to be the biological father of DNA of Placenta of fetus of Unknown female of F.S.L.M.L. Case No.DNA 136/11. 4) Abdul Hasib Mohd. Minhajul Haq Shaikh is excluded to be the biological father of DNA of Placenta of fetus of Unknown female of F.S.L.M.L. Case No.DNA 136/11”.
67 Cross examination of PW21 Shri. Lade consists of bare
denial and nothing else. Apart from it, while answering in response to
statement under Section 313 of Cr. P. C., the accused have claimed no
knowledge of the said findings. They have not disputed the fact of
drawing their blood samples for DNA testing and the results. There is
no denial to the results also.
68 So far acceptability of DNA findings, I may usefully refer to the landmark judgment of Hon'ble Supreme Court in Dharam Deo Yadav ..vs.. State of Uttar Pradesh (2014 Cr. L. J 2371 = 2014 2 Crimes 127) relevant paragraph reads as under:
Judgment. 32 S.C.No.431/11 Ex.180
“ 34. The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is madeup of a double standard structure consisting of a deoxyribose sugar and phosphate backbone, crosslinked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. The most important role of DNA profile is in the identification, such as an individual and his blood relations such as mother, father, brother, and so on. Successful identification of skeleton remains can also be performed by DNA profiling. DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the Court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory. Close relatives have more genes in common than individuals and various procedures have been proposed for dealing with a possibility that true source of forensic DNA is of close relative. So far as this case is concerned, the DNA sample got from the skeleton matched with the blood sample of the father of the deceased and all the sampling and testing have been done by experts whose scientific knowledge and experience have not been doubted in these proceedings. We have, therefore, no reason to discard the evidence of PW19, PW20 and PW21. Prosecution has, therefore, succeeded in showing that the skeleton recovered from the house of the accused was that of Diana daughter of Allen Jack Routley and it was none other than the accused, who had strangulated Diana to death and buried the dead body in his house.”
69 With overall evidence of witnesses and identification of the
dead body by nearers and dearers coupled with DNA findings at Ex.56,
this Court has no hesitation to record the finding of fact that dead body
found in green colour trolley bag Art.1 was that of Rehmat wife of
Parwez. She was daughter of Surma/Salma Shaikh PW14. In result,
Circumstance A expressed above stands proved beyond any doubt.
Judgment. 33 S.C.No.431/11 Ex.180
CIRCUMSTANCES B to E:
70 As discussed above, while assessing circumstance A, there is
clear evidence of Fahmida PW12 that accused Parwez and deceased
Rehmat were residing as husband and wife adjacent to each her house
in Prakash Complex, Mumbra. She has gone to the extent of deposing
that Rehmat has kept some of her luggage in her house while leaving for
Delhi along with accused No.3 Hasib. Evidence of this witness is natural
and inspires confidence of this Court, because nobody would admit that
she owe some goods, which this witness has admitted to have kept by
Rehmat at her place. There is absolutely no challenge to her evidence
that accused Parwez occupied said room in July, 2010 and left
somewhere prior to 6th March, 2011.
71 So far as marriage of between accused Parwez and Arshiya
PW9, the same has not been disputed and it is rather an admitted fact.
Even otherwise evidence of Arshiya PW9 on this point is not under
challenge. She has produced Nikahnama from her proper custody. She
has also claimed that she has filed divorce proceeding against accused
No.1 Parwez and all these facts are not under challenge by the accused.
As per Arshiya PW9, after her marriage with accused Parwez, she was
brought at Mumbra and they were residing at husband and wife at 303,
Roshni Apartment, Thakurpada, Mumbra between 6/12/10 to 9/3/11.
72 On this point, prosecution has also examined Ayesha
Sakhrekar PW11 who is owner of the said premises and through her
evidence, leave and licence agreement came to be proved at Ex.43. In
Judgment. 34 S.C.No.431/11 Ex.180
fact, the evidence of Ayesha Sakhrekar PW11 is a admitted fact by the
accused in response to answers in statement under Section 313 Cr. P. C.
73 What could be seen from the evidence of Fahmida PW12
and Arshiya PW9, that during overlapping period from December, 2010
to March, 2011 i.e. for about three months, accused Parwez was
residing at both the above places along with Rehmat and Arshiya PW9
as their husband.
74 The basic thrust of the case of the prosecution is that the
accused Parwez did not disclose about her marriage to Arshiya PW9. At
the same time he did not disclose having contracted second marriage
with Arshiya PW9, to his first wife Rehmat. On this point, obviously
nature of fact (non disclosure by accused) is such that prosecution can
not be expected to have a clear evidence as to knowledge of first
marriage and second marriage respectively to Rehmat and Arshiya and
it being not disclosed by accused Parwez. At least accused Parwez has
not claimed in his statement under Section 313 Cr. P. C. that he did
disclose about his first marriage with Rehmat to Arshiya and about his
marriage with Arshiya to Rehmat. Arshiya in her evidence (para 14)
has specifically deposed that she was not knowing Rehmat nor came to
know from accused Parwez that he was married to Rehmat. To this
piece of evidence of Arshiya, there is virtually no denial.
75 On this point, evidence of Fahmida PW12 would show that
Rehmat was suspecting that accused Parwez is going to perform second
marriage and therefore, there used to be quarrels between them. It is
pertinent to note that relations between Fahmida and deceased were so
Judgment. 35 S.C.No.431/11 Ex.180
close that as per Fahmida, she gifted dress material to her and got it
stitched from tailor known to her. She also accompanied Rehmat while
purchasing Nose Ring/ Chamki. She fairly admitted during cross
examination that she purchased said dress material from footpath and
therefore, cannot be accepted to have its bill.
76 In this regard, prosecution has also examined Mohd. Alam
PW20 who is lady tailor from Mumbra. As per this witness, he got
stitched clothes for Rehmat. He also produced a bill book having receipt
No.246 at Ex.87.
77 Cross examination to this witness would show that he met
deceased Rehmat on two occasions. He went to the extent of claiming
that there is another customer Rehmat, but she was accompanied by
one Faizali. This answer during cross examination has confirmed the
identity of deceased Rehmat to be the one who was accompanied by
Fahmida PW12 to PW20. This witness has also identified photograph of
deceased Rehmat to be the same Rehmat for whom he got stitched
Dress/clothes Art.2 .
78 It is also significant to note that the sample pieces of the
clothes affixed at receipt Ex.246 and clothes Art.2 were sent for opinion
of C.A. In fact, the clothes Art.2 and its Odhani which is part of Art.2
are the same clothes which were got stitched by Fahmida for deceased
Rehmat.
79 On analysis of Kurta, Paijama found on the dead body and
the Odhani at the instance of accused Tabrej (marked as Article 2 before
Judgment. 36 S.C.No.431/11 Ex.180
the court) along with the pieces of cloths attached to the receipt book
Exh. 246, it was found as follows:
“ Cloths of Exhibits 1,2,3 and corrosponding cloth piece from
receipt No. 246 of receipt book exhibit 4 tally among
themselves in respect of hue, apperance, design, physico
textile and thermal characteristics'
80 In the light of above report, and thick relations between
deceased Rehmat and Fahmida PW12, it was very natural for Rehmat
to disclose about her personal relations with her husband. It has not
been suggested to Fahmida that Rehmat in fact had knowledge that
accused Parwez had contracted second marriage with Arshiya PW9.
The fact that there used to be frequent quarrel because Rehmat was
suspecting that Parwez is going to perform second marriage itself
indicates that Rehmat was unaware of second marriage of Parwez with
Arshiya PW9.
81 As against above, as per evidence of Arshiya PW9, the
marriage proposal of accused Parwez was given by him while at
Khandva, Madhya Pradesh. As per her evidence, accused Parwez
disclosed that he was taking education in medical college and after
completion of his MBBS, he had plans of marriage. Her evidence would
show that the marriage was thus performed on 4/12/2010. She
produced Nikahnama in Urdu Script at Ex.38.
82 It is pertinent to note that cross examination to Arshiya PW9
is not on the line that Parwez did disclose to her about her first
Judgment. 37 S.C.No.431/11 Ex.180
marriage with the deceased. Above all, when admittedly, Nikahnama
Ex.38 is signed by accused Parwez. Admittedly, accused Parwez has
disclosed his marital status as unmarried in the said document. That
would show that the fact of first marriage with deceased Rehmat was
suppressed by accused Parwez while contracting Nikahnama with
Arshiya PW9. The cross examination to PW9 is not on the line that fact
of first marriage of Perwez was known to her. At the same time, he did
not disclose Parwez having performed second marriage with Arshiya
PW9 on 4/12/2010.
83 It was strongly argued on behalf of learned advocate for the
accused that as per Mohammedan Law, accused Parwez being Muslim
can perform four marriages and it is not prohibited. He, therefore,
contended that second marriage of accused with Arshiya PW9 is of no
consequence.
84 I have given thoughtful consideration to the above argument.
However, above argument if fallacious and misdirected. Here, the
Court is not questioning the fact of second marriage of accused Parwez
with Arshiya PW9, but the question is absence of knowledge or non
disclosure by accused Parwez about his marriage with Rehmat to
Arshiya and his second marriage with Arshiya to deceased Rehmat. This
nondisclosure has its own consequence and bearing in the light of fact
that accused Parwez was proved to be residing with his both the wives
simultaneously in two different places at Mumbra between December,
2010 to March, 2011.
85 During the course of cross examination to either Arshiya
Judgment. 38 S.C.No.431/11 Ex.180
PW9 or to Fahmida PW12, no attempt was made to suggest that
accused Parwez did disclose about his marriage either with Arshiya
PW9 or with Rehmat so as to say that there was no controversy
between Arshiya PW9 and deceased Rehmat. With above material on
record, I have no hesitation to conclude that the prosecution has proved
Circumstances B to E expressed above beyond all reasonable doubt.
CIRCUMSTANCES F to M:
86 Circumstance G basically pertains to motive suggested
behind the commission of crime. It is a feeling prevailed in the mind of
accused Parwez. One cannot expect the prosecution to lead any
evidence about such feeling. This feeling of accused, therefore, will
have to be perceived and gathered from various circumstance emerging
from the evidence of witnesses so also the conduct of the accused.
87 It is momentous to note here that as per Fahmida PW12,
ever since the accused Parwez secured ranted accommodation in
Prakash Complex, he disclosed that he is a Doctor working with KEM
Hospital, Mumbai. The accused has all the through denied that he is a
Doctor or has disclosed the above facts to anybody. It is, therefore,
necessary to minutely scrutinize the evidence of Fahmida PW12.
During entire cross examination to Fahmida, there is even no whisper
denying her version that accused Parwez has disclosed himself to be a
Doctor and working with KEM Hospital. There is even no suggestion to
her that she is deposing false about such disclosure. In fact such
disclosure is inevitable, because there is no denial to the evidence of
Arshiya PW9 that accused claimed himself to be the Doctor.
Judgment. 39 S.C.No.431/11 Ex.180
88 What is important is the fact that sudden surrender of
tenancy by accused Parwez and his disclosure that he is going to shift at
Delhi as he has secured new job. In this regard, as per Fahmida PW12,
accused Parwez left the said premises disclosing that he has secured a
job at Delhi and would be shifting to Delhi. On this point also, there was
no cross examination on behalf of accused. The accused has merely
denied having disclosed such facts to Fahmida as already discussed.
There is no reason for Fahmida to depose false against accused because
she had good relations which were developed with Deceased Rehmat. It
is proved from the evidence of Fahmida and Arshiya that accused was
very much present at Mumbra till 9/3/2011 till he accompanied Arshiya
up to Khandwa, State of Madhya Pradesh by Train, by which they
traveled together.
89 In view of fact that accused Parwez has denied that he is a
Doctor by profession, his house search i.e. 303, Roshni Appartment has
revealed that Books used in the study of Medical Science, Stethoscope
usually used by Doctors were found in his house. If accused has not
disclosed himself as a Doctor, a common man is not likely to have such
books and apparatus at his home. Arshiya PW9 being wife of accused
Parwez has also corroborated that accused Parwez claimed himself to be
the Doctor working at K.E.M. Hospital Mumbai. For all these proved
facts, there is no explanation coming forward from accused Parwez.
He did not disclose as to what were the circumstances in which he
suddenly decided to shift at Delhi. There is no explanation as to what
made him to keep bag and baggages in the house of Fahmida PW12
and to send Rehmat and accused Hasib to Delhi ?
Judgment. 40 S.C.No.431/11 Ex.180
90 Evidence of Fahmida PW12 shows that initially accused
Parwez left for Delhi and after shifting bag and baggages to her room,
Rehmat went to Delhi along with accused No.3 Hasib. She went on to
depose that she herself dropped Rehmat to Mumbra Railway Station on
6/3/11 to see off as they were to travel by DadarAmritsar Train.
91 In this regard, the prosecution has secured/seized the
reservation application form at Ex.147(colly.). In fact, reservation
application form is showing the application/requisition for journey on
6/3/11 by DadarAmritsar Train No.11057. Said Form and specimen
handwriting of the accused Parwez were sent to hand writing expert. It
is pertinent to note here that specimen handwritings of accused Parwez
were obtained under panchanama on various pages as deposed by
Shaikh Mehmood PW34, Dilip Yadav PW35 and Shekhar Sanghreddy
PW36. As per their evidence, accused Perwez was asked to write the
matter from the diary which was seized from the house search of
accused Parwez at 303, Roshni Apartment, Thakurpada, Mumbra. Said
diary is at Art.22. Above evidence is also confirmed by Shri. Jadhave
PW37. Correspondence proved from Shri Jadhav would show that above
material was sent to Handwriting Expert. The handwriting expert after
due comparison of all the handwritings sent to him has recorded
opinion that matter/writting which is marked as Q8 AB on the said
reservation form and the specimen writings at S1 to S42 at Ex.147 to
153(colly.), as well as natural writings appearing on the diary Art.22 are
written by the same author. The opinion of handwriting expert has
been admitted by the accused which is at Ex.165. (Advocate for the
accused No.1 endorsed on the original opinion itself whereas advocate
Judgment. 41 S.C.No.431/11 Ex.180
for other accused endorsed on the photocopy of the opinion which is
mentioned in the Roznama dated 29/1/2015). With said expert
opinion there is no room of doubt that it were accused Perwez who has
secured the said reservation.
92 In the light of said opinion, it is crystal clear that it was
accused Parwez who has applied for reservation of deceased Rehmat
and accused Hasib on 6/3/11 from Dadar to New Delhi. There is
virtually no explanation coming forward from accused Parwez as to
what made him to make such application for reservation and what were
the circumstances which made him to sent deceased Rehmat along with
accused No.3 to New Delhi. In the entire statement U/s.313 of Cr.P.C.,
the accused Parwez and Hasib are silent about above referred
circumstances.
93 What could be gathered from the said reservation Form, in
fact deceased Rehmat and accused Hasib have traveled by the said Train
on 6/3/11 because it was Fahmida PW12 who had reached Rehmat to
Mumbra Station. Since the accused have denied the relationship with
the deceased, it is not explained as to what made him to have such
reservation ? This circumstance shows previous conduct of the accused
relevant in itself.
94 Apart from this, the prosecution has also examined Sumitra
Salunkhe PW24. She is Incharge Chief Reservation Officer at Dadar
Railway Station. She deposed that pursuant to request letter Ex.99, she
furnished reservation charge of train No.11057(old Train No.1057)
Dadar to Amritsar dated 6/3/11. This is computer generated copy of
Judgment. 42 S.C.No.431/11 Ex.180
S8 boggy. The chart is marked Art.26. She deposed that names of the
passengers in reservation chart in the said boggy were confirmed as
appearing in it.
95 It appears that objection was raised to mark said chart as Ex.
26. During cross examination, she admitted that she has not prepared
chart Ex.26 and does not know about the factual contents. However,
her evidence that the chart taken out by way of computer generated
copy print out is not under challenge. There is no challenge to her
evidence as regards authenticity and genuineness of the said chart.
Since PW24 is reservation supervisor and is custodian of the record,
chart which is coming from her proper custody will have to be read in
evidence being proved document. Said chart is nothing but entries
made by the Railway Authorities in discharge of their official functions.
In absence of any evidence to the contrary, presumption as contained
U/s.114 of Evidence Act will have to be raised with regard to the duties
performed by PW24. Apart from it, contents of said chart about
confirmation of reservation of deceased Rehmat and accused No.3 Hasib
is well corroborated by reservation application form Ex.147 as stated
above.
96 What is significant from the above material is the fact that
the accused Parwez left his house at Prakash Complex at Mumbra
claiming that he is going to Delhi and this happened somewhere prior to
6/3/11 as deposed by Fahmida PW12.
97 In this regard, evidence of Arshiya PW9 is of great
importance. Since her relations with accused Parwez being wife and
Judgment. 43 S.C.No.431/11 Ex.180
husband is not under challenge, she is best witness to disclose
whereabouts of her husband at a particular point of time. As per
Arshiya, PW9, in January, 2011, her parents had been to Mumbai to
fetch her back to Khandva. Her parents stayed at her place for about 4
to 5 days and thereafter she left to Khandva along with her parents on
10/1/11. Thereafter, accused Parwez had been to Khandva to fetch her
back. As per her evidence, she along with accused Parwez returned to
their place at Mumbra on 14/2/11.
98 As per Arshiya PW9, after about 15 days thereafter, accused
Parwez was to go to Delhi as he was to secure a job in the State of
Bihar. To this evidence, there is no challenge. This would show that
accused Parwez did not visit Delhi but it was in fact on 9/3/11, only
accused Parwez and Arshiya left Mumbra to reach Khandva. If we
consider the evidence of Fahmida PW12, the accused left his house at
Prakash Complex stating that he had to go to Delhi. However, as per
evidence of Arshiya PW9, the accused was at 303 Roshni Apartment at
least between 14/2/11 to 9/3/11. Thus, he did not go to Delhi at all
until 10/3/11. This is because as per Arshiya PW9, she got down at
Khandva whereas accused Parwez proceeded to Delhi by the same train.
99 In this regard, prosecution has also relied on reservation
application form Ex.147(colly.). In fact, these forms were confronted to
Shaikh Mehmood PW34 and these are forms which were secured from
the Railway Authorities as deposed by Shri. Jadhav PW37. As indicated
above, the accused has admitted the hand writing experts opinion at Ex.
165 which also pertains to question document i.e. Reservation
application form marked by the expert as Q7 along with S1 to S42 and
Judgment. 44 S.C.No.431/11 Ex.180
other exhibits from diary Art.22 which contains specimen and natural
handwriting of accused Parwez.
100 In view of said reservation form and the evidence of Arshiya
PW9, it is clear that Arshiya PW9 travelled from Delhi to Khandva on
9/3/11. Said reservation form proved to be in the hand writing of
accused Parwez speaks in volume. It is significant to note that the
accused Parwez did not obtain his own reservation along with Arshiya
PW9 but has accompanied her up to Khandva and from Khandva
continued his journey to New Delhi by same train.
101 The evidence discussed above would crystallize that in fact
when Rehmat reached New Delhi somewhere on 7th or 8th of March,
2011, obviously accused Parwez was not at New Delhi because he was
along with Arshiya PW9 and reached New Delhi somewhere on
10/3/11.
102 In this regard, therefore, evidence of Fahmida PW12 is
relevant. As per Fahmida, after she dropped Rehmat to Mumbra
Railway Station on 6/3/11, on 8/3/11, she received a phone call of
Rehmat. As per Fahmida, Rehmat told her that though she reached at
Delhi, Parwez is not staying at Delhi and he has cheated her. Rehmat
further disclosed to her that she was at Delhi Railway Station only and
that she has been informed by accused Parwez that she should go to her
parents place. Rehmat also disclosed to Fahmida that she was not ready
to go to her parent's place and she disclosed accused Parwez that she
wanted to reside with him only.
Judgment. 45 S.C.No.431/11 Ex.180
103 The close relationship between Fahmida PW12 and
deceased Rehmat has already been noticed. Therefore, it was very
obvious for Rehmat to make a phone call to Fahmida and to share about
her well being or otherwise on reaching Delhi. Ideally speaking, unless
shared by Rehmat, Fahmida could not have gathered any knowledge as
to the whereabouts of accused Parwez because she had no opportunity
or source to know the facts at any time from any source except from
Rehmat. Very interestingly, the defence has not at all challenged the
above evidence of Fahmida during her cross examination. There is even
no whisper or suggestion of denial to the above referred evidence of
Fahmida. Since it is Fahmida who had talked with Rehmat and
Fahmida has deposed before the Court as to what is disclosed to her by
Rehmat and she having perceived it being disclosed by Rehmat on
phone, at no rate it could be said to be hearsay evidence. At the most,
disclosure by Fahmida that Rehmat told her that accused Parwez told
Rehmat to go to her parents place would be hearsay evidence. Even if
that aspect is deleted from the evidence of Fahmida, her consistent
evidence as to what she has talked with Rehmat will have to be
accepted as it stands.
104 Relationship between accused Parwez and deceased Rehmat
was deteriorating at least after he contracting marriage with Arshiya
PW9. As could be seen from the evidence of Fahmida PW12, Rehmat
was suspecting either accused Parwez has contracted second marriage
or his likely to contract another marriage. But it seems that she was not
certain that accused Parwez has contracted marriage with Arshiya
PW9. It is pertinent to note that the evidence of Fehmida PW12 that
accused was insisting Rehmat to stay at Delhi or at her parents place is
Judgment. 46 S.C.No.431/11 Ex.180
also corroborated by short message service extracted from mobile phone
of accused Parwez.
105 The said extracted SMS (Short Message Service) were
proved from PW18 Kiran Bagekar at Ex.80. What is received to
accused Parwez are two SMS on 21/2/11 are as follows.
“AP jab mere kodawa nahi dejyega to may dilli ve nahi aungi
jab dukhka sahara nahi ha to mujhe kharcha dijye may dilli
nahi jaungi mujhe elajka jarurinahi dawkaj”
“May dilli nahi jaun gi tikat wapis kardijye may nahi jaun gi
piliz ap mujh bakas jijye mere ko janeka dilna hi ha mera
dilro raha ha sory baksdijye”
106 As could be seen from said messages, which are in coming
messages, sender was obviously Rehmat. She has made complaint
against Parwez about his conduct in insisting her to stay at Delhi.
Except above inference, no inference could be drawn from the said SMS.
Because accused is silent in his statement U/s.313 of Cr.P.c. As to who is
sender of the said messages and why he or she is saying so. In response
to question Nos.90 to 92, accused Parwez is absolutely silent offering
any explanation about such messages. It is not his case either during
cross examination to Arshiya PW9 that said messages were made by
her, not during cross examination he has claimed that the same were
sent by Arshiya. Since the said SMS was opened and read by accused as
could be seen from Ex.80, his explanation was very much warranted if
at all there was any explanation available to him.
Judgment. 47 S.C.No.431/11 Ex.180
107 The mater does not stop her but as per Fahmida PW12,
Rehmat wanted to stay with her. Since Fahmida did not agree to it,
Rehmat contacted her husband Abdul Hamid and upon his approval,
Rehmat was allowed to stay at their place. Admittedly, Rehmat did not
visit their place thereafter. This seems to be very natural looking at the
relationship between Rehmat and Fahmida. It is interesting to note that
contents of Mobile Sim and Memory Card of accused Parwez and Tabrej
have been extracted by Forensic Science Laboratory Kalina. The said
reports are at Exh. 81 proved from Kiran Bagekar PW 18 who is
Scientific Officer with Forensic Science Laboratory Kalina. To this
witness there is virtually no cross examination on above aspect. As could
be seen from the SMS sent to accused Tabrez, he has written following
SMS on 21/2/2011 , obviously by accused Parwez :
“Maine abhi fehmida ko fone karke
bola h rahmat ko dwa k liya 300
rupya dede, me aane k baad dunga,
ho ske to kl sham me hi chale jao.”
108 If we consider above message which is in Hindi, accused
Tabrez is informed by accused Parwez that he (Parwez) has requested
Fahmida PW12 by making phone call that she should give Rs. 300 to
Rahmet and he would repay it on his return. He also requested her to
take Rehmat on next day evening (obviously to the Doctor).
109 What is important to note that accused are silent about
exchange of such SMS, while answering in statement under Section 313
Judgment. 48 S.C.No.431/11 Ex.180
of Cr. P.C. It is not their case that they are known to some other Rehmat
or Fahmida, than before the court. In absence of such case being made
out, the defence of bare denial is of no avail to the accused. The facts
proved in fact shows that accused are falsely denying their relationship
with the deceased Rehmat and acquaintance with Fahmida PW12.
110 Above SMS shows that accused Parwez was relying on
Fahmida PW12 in case of his absence. Therefore, evidence of Fahmida is
relevant because in all human probabilities after accused Parwez
reached New Delhi on 10/3/11, he insisted Rehmat to go to her
parent's place. And Rehmat refused to stay at her parent's place. Upon
her insistence and adamant behaviour, accused probably agreed to have
reach her at the place of Fahmida PW12. However it seems that he had
no intentions to allow Rehmat to stay in the house of Fahmida. This is
because it is nobody's case that Fahmida was informed by accused
Parwez about his intention to keep Rehmat at her place. This would
have been most natural conduct on the part of any husband like Parwez.
Such nondisclosure shows that there was something different in the
mind of accused Perwez.
111 What is significant to note here is the fact that till 8/3/11,
while sharing with Fahmida PW12, Rehmat wanted to stay at Mumbra
only. Therefore, what must have transpired between the accused
Parwez and deceased Rehmat from 10/3/11 onwards is something
which could be within the knowledge of accused Parwez alone. Because
Rehmat is no more alive.
112 At this stage, evidence of Arshiya PW9 needs careful
consideration. As per Arshiya PW9 accused Parwez accompanied her
Judgment. 49 S.C.No.431/11 Ex.180
up to Khandva on 10/3/11 and proceeded for Delhi. This would show
that accused must have reached New Delhi either in night of 10/3/11 or
on the next morning i.e. on 11/3/11. As per Arshiya PW9, she tried to
contact Parwez on phone on 12/3/11 and 13/3/11, but Parwez did not
receive her call. Only in night of 13/3/11, when she made a phone call,
it was attended by a lady. Probably at that time, accused Parwez was
accompanied Rehmat and probably Rehmat picked up the said phone
call.
113 Very interestingly, Arshiya PW9 disclosed that on 14/3/11
when she made a phone call to accused Parwez, Parwez informed her
that he had to go to Mumbai urgently. To the above evidence of Arshiya
PW9, there is virtually no challenge on behalf of accused. Looking at
Arshiya's relations with accused Parwez, she had no reason to depose
what has transpired between that period. It is very easy to claim for
accused that because she had developed bad relations with accused
Parwez and has lodged divorce proceedings, she is deposing false.
However, she had no reason to depose false more so when accused
Parwez has no explanation as to his whereabouts between 12/3/11 to
14/3/11.
114 As could be seen from the above assessment of evidence of
the witnesses and documentary evidence produced on record,
prosecution has successfully established circumstances F to M stated
above.
CIRCUMSTANCE N.
115 It is the case of prosecution that accused Parwez has been
Judgment. 50 S.C.No.431/11 Ex.180
using Idea mobile Sim card No.9702181561. In this regard, evidence of
Mohd. Javed is placed into service. He is examined as PW28. As per
Mohd. Javed, he is a businessman and originally hails from State of
Bihar. He has been staying at Mumbra since last 15 years. He deposed
that accused Parwez is his relative through his maternal aunt. He
claimed that he heard that accused Parwez was taking education in
medicine. He deposed that mobile Sim card No. 9702181561 is in his
name. He claimed that accused Parwez had to him in the year, 2009
and requested him to fill up application form to obtain the mobile Sim
card. As per this witness, he signed the said application form and
supplied photo copy of his driving licence to accused Parwez. Very
interestingly, said application form was secured from the mobile service
provider by the prosecution and was confronted to this witness. This
witness has identified his signature on said application form at Ex.128,
so also his photograph and copy of his driving licence. He deposed that
it was accused Parwez who obtained mobile sim card on the basis of
documents supplied by him and the application signed by him. He
specifically deposed that he himself never used said mobile sim card at
any time and it was accused Parwez who was using it.
116 During cross examination, it is not the case of accused that
Mohd. Javed PW28 is on inimical terms with him so as to deposed false
against him. It is rather brought on record that he has made signatures
on three different places and accused Parwez informed him that he does
not have identity proof and therefore, wanted to have mobile phone Sim
card in the name of the witness. He clarified that he did not suspect
accused Parwez until police contacted him. He flatly denied that he was
threatened by the police and deposing false. As could be seen, there is
Judgment. 51 S.C.No.431/11 Ex.180
virtually no challenge to the evidence of this witness. Looking at the
truthfulness of this witness, there is no reason to disbelieve him.
117 As per prosecution, accused Parwez was using the said
number of IDEA Cellular Company and for that reliance is placed on the
personal search panchanama of accused Parwez at the time of his arrest.
Interestingly, personal search panchanama of arrest of accused Parwez
has been admitted by the defence at Ex.35.
118 As could been seen from the said personal search
panchanama, accused was found in possession of one mobile phone of
Zen make having two IMEI numbers i.e 1) 356379010828497 and 2)
356379010828505. These IMEI numbers are of great importance while
assessing other evidence led by the prosecution.
119 On the basis of this number alone, it can be ascertained as to
whether the mobile phone instrument having such identification
number was used to make calls from a particular mobile Sim card
number of any of the service provider.
120 In view of evidence of Mohd. Javed and personal search
panchanama of accused Parwez at Ex.35, prosecution has successfully
established circumstance N disclosed above.
CIRCUMSTANCE O TO R.
121 As could be seen from the case of the prosecution, the
accused Parwez and Hasib accompanied by deceased Rehmat got down
at Dadar Railway Station in the early morning on 14/3/11 and from
Judgment. 52 S.C.No.431/11 Ex.180
there, they reached Mumbra Railway Station by local train. As per
prosecution, this is supported by mobile tower locations where the
mobile phone of accused Parwez was used. It is thus, deceased Rehmat
was lastly seen alive in the company of the accused Parwez and Hasib
on 14/3/11 at about 5.16 hours.
122 In order to prove the above circumstances, the prosecution
has relied on CCTV footage recorded in Digital Video Recorder installed
at Dadar Railway Station and Mumbra Railway Station. The footage is
copied in Compact Discs, which are produced at Article 23 to 25 which
were marked as exhibit through the evidence of Chanduprakash
Sharma PW15, Gulab Nalawade PW16 and Shankar Savnur PW17 so
also identified by Pritam Shinde PW33. The challenge to the evidence of
PW 15 to 17 is only on the point that they have not drawn the
panchanama while accepting or delivering the said CD's. However such
challenge would hardly be given importance in view of the fact that as
per PW33 (who has derived data in it) the said CD's are same and
contain same data and can not be tampered.
123 Prosecution has examined Pritam Shinde PW33 to prove
various CD's containing the data copied from digital video recorder of
the respective railway stations. As per Pritam Shinde PW33, in the
year, 2011, he was working as technician with Snyder Electric Indian
Pvt. Ltd. The said company received order of installing CCTV cameras
at various railway stations and locations of Central Railway, Harbor
Railway Line and railway stations between Vashi and Thane Railway
Stations. As per his evidence, accordingly, CCTV cameras were
installed. He claimed that 14 CCTV cameras were installed at Mumbra
Judgment. 53 S.C.No.431/11 Ex.180
Railway Station, platform and bridge. Similarly cameras were installed
at Dadar Railway Station.
124 As per his evidence, digital video recorders were installed
and were kept in the office/cabin of Station master of each Railway
Station and the footage used to be captured all the 24 hours of all the 7
days of week. He deposed that they used to maintain such record for 15
days. The said company used to maintain the entire record and used to
supply copy, if required. As per his evidence, he alone was allowed to
access the digital video recorder being in charge of 53 locations at the
material time.
125 As per his evidence, on receipt of intimation from RPF about
supply of CCTV footage of Mumbra Railway Station as on 14/3/11, he
was called at Mumbra Railway Station on 23/3/11. On the request of
officer of RPF, in a blank compact disk supplied to him, he obtained
copy of CCTV footage from digital video recorder installed at that
station and handed over the said compact disk to the said officer. When
confronted with the compact disk Art.23(colly.), he deposed that it
contains the data captured by camera No.8 installed at Mumbra Railway
Station. He identified all the three CDS Art.5,6 and 7 to be the very
same in which data was copied by him. He also clarified that CD Art.7
contains data recorded by camera No.3 whereas CD Art.5 contains data
captured by camera No.13 on platform No.2. He confirmed that it
contains the very same data which he copied from digital video
recorder.
126 Pritam Shinde PW33 has then clarified that in similar
Judgment. 54 S.C.No.431/11 Ex.180
fashion, he accessed digital video recorder installed at Dadar Railway
Station and supplied the same in a blank CD provided to him which
contains data recorded by camera No.16 installed at platform No.7.
Said CD is at Art.24.
127 As per Pritam Shinde PW33, he issued certificate to GRP
police having taken out data from respective digital video recorder and
the said certificate is at Ex.145 and Ex.173. (Ex.173 was admitted in
view of pursis given by both the parties on 11/2/15.
128 As per cross examination to Pritam Shinde PW33, he
clarified that the contents of CD cannot be tampered nor CCTV footage
can be hacked. He admitted that no panchanama was drawn by RPF
police while obtaining the CDs from him. The rest of the cross
examination is rather informative or getting knowledge from the
witness than challenging the steps taken by him. He admitted that his
appointment letter Ex.144 contains signature of authority signatory of
the company but he does not know his name. In any event, this witness
had no reason to depose false as to what he has said about his capacity
in the company.
129 It was strongly argued that whether the CD supplied to this
witness was blank or not has not been ascertained. It is also argued that
because no panchanama was drawn while accepting said CD from the
witness, it looses evidentiary value.
130 It may be noted here that as per Pritam Shinde PW33 , he
was supplied with blank CD to copy the data from digital video
Judgment. 55 S.C.No.431/11 Ex.180
recorder. Once he was satisfied that it was blank CD, there is no further
question arisen to carry out any test etc. Even otherwise, it is hard to to
digest that he could have generated fabricated recording that too for
RPF police. So far as nondrawal of panchanama is concerned, the
action of RPF police cannot be questioned because RPF police were
discharging their public functions.
131 It is nobody's case that said RPF officer had any reason to
create the false record against the accused. Therefore, presumption
U/s.114 of Indian Evidence Act will have to be raised in respect of
official acts performed by RPF police.
132 It is significant to note that as per Shri. Jadhav PW37, on
receipt of investigation, he immediately informed RPF to preserve and
to supply the CCTV footage. Letters Ex.159 and 163 would show that
he has called for CCTV footage of relevant period dated 14/3/11 and it
was according to the said correspondence by responsible public officer,
RPF authorities have secured the same with the help of Pritam Shinde in
the various CDs at Art.5 to 8. Therefore, so far as obtaining of CCTV
footage by Pritam Shinde PW33 is concerned, it is absolutely valid he
being only person who is authorised to access it and to supply its copy.
133 In this regard, learned advocate for the accused have relied
on judgment of Hon'ble Supreme Court in Anvar P.V. V/s. P.K. Basheer
& Ors., Civil Appeal No.4226 of 2012, dt.18th September, 2014. As
per his contention, in view of law laid down in the said authority, CCTV
footage contained in CD Art.23 to 25 cannot be looked into.
Judgment. 56 S.C.No.431/11 Ex.180
134 I have given careful consideration to the argument in the
light of authority cited in Anvar's case(cited supra). In this regard, it
may be noted that admittedly, the original data/CCTV footage
containing recording used to be stored in digital video recorder installed
at various Railway Stations in the cabin of Station Master. Looking at
nature of device i.e. digital video recorder, it cannot be expected to
carry same all the through in the Court because it will hamper further
recording. Therefore, in view of Section 65 of Indian Evidence Act,
when said original digital video recorder is such, it cannot be moved to
the Court of law and its secondary evidence is admissible.
135 What is laid down in para 10 onwards of the judgment in
Anvar's case(cited supra) is that on satisfaction of preconditions
mentioned in Section 65 B of Indian Evidence Act as amended by
Information Technology Act, such secondary evidence is admissible if all
the requirements U/s.65(B) of Indian Evidence Act are satisfied.
Section 65 B of Indian Evidence Act runs as under.
1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copies in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document,if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of the fact stated therein of which direct evidence would be admissible.
2) The conditions referred to in subsection(1) in respect of a computer output shall be the following, namely:
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any
Judgment. 57 S.C.No.431/11 Ex.180
activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affecct the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause(a) of subsection(2) wasregularly performed by computers, whether
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production or that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions
Judgment. 58 S.C.No.431/11 Ex.180
mentioned in subsection(2) relate,
and purporting to be signed by a person occupying, a responsible official position in relation to the operation of the relevant device or the management of the relevant activities(whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,(a) information shall be taken to be supplied to a computer if it
is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b)whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information,, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or(with or without human intervention) by means of any appropriate equipment. Explanation. For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.]
136 Keeping in mind above provisions, if we consider the
evidence of Pritam Shinde PW33 in the light of certificate issued at Ex.
145 and 173, he has certified that he alone being technician in charge of
all the sites was authorised to access digital video recorders installed at
various railway Stations (emphasis by me ). He clarified that data
captured by the CCTV footage used to be recorded in said digital video
recorder all the through. During the relevant period dated 14/3/11, all
the CCTV cameras were in working condition on both the Railway
Stations and he himself has obtained the relevant footage from digital
Judgment. 59 S.C.No.431/11 Ex.180
video recorder in CD Art.23 to 25 and supplied it to RPF officer. He
certified that said digital video recorder used to be maintained in usual
course of business and data obtained by him in CD's has not been
tampered and it contains the true recording by the digital video
recorder. On minute reading of evidence of Pritam Shinde PW33 and
the certificate issued by him, it qualifies all the requirements of Section
65(B) of Indian Evidence Act. Therefore, in view of judgment of
Hon'ble Supreme Court in Anwar's case(cited supra), data contained in
CD's Art.23 to 25 can very well be looked into.
137 Admittedly, all the four CD's were played/run before this
Court on earlier occasion and the same were run/played on 20/3/15 in
presence of learned APP and learned advocates appearing for the
accused in the open Court. Except for the objection stated above, there
is virtually no challenge by the accused about the authenticity and the
contents of the data.
138 Learned advocate for the accused has strongly contended
that faces of the passengers appearing in CCTV footage captured by all
the cameras are not clear and therefore, it cannot be said that it were
the accused Parwez and Hasib who were found to be accompanied by
Rehmat at the relevant time on 14/3/11.
139 What is significant here is the fact that accused in their
statement under Section 313 Cr. P. C. are silent as to the above facts.
They have merely denied about the taking of CCTV footage and the
evidence of Pritam Shinde PW33. The accused nowhere denied that
they have not traveled to Mumbai and reached at Dadar on early
Judgment. 60 S.C.No.431/11 Ex.180
morning on 14/3/2011 as claimed by the prosecution by proving CCTV
footage. They have not positively claimed that they have not traveled
by any train nor have reached at Dadar Railway station on 14/3/2011
at early morning or have then traveled to Mumbra by local train. This is
very crucial because of other evidence led by the prosecution.
140 In this context, Digital photographs at Article 18 to 18/4 are
produced in the Court. It may not be out of place to mention here that
said digital photographs are nothing but Still Images of CCTV footage
contained in Compact Discs Article 23 to 25. It may be mentioned here
that the prosecution has sent said Compact Discs to the Forensic Science
Laboratory so as to prepare still images. For this the prosecution has
examined Subhas Ikke PW39. As per this witness by letter Exh. 106, the
Compact Discs were sent to Forensic Science Laboratory Kalina. On
30/1/2012 one sealed envelop was received which contained a Compact
Disc and a report marked at Exh.170. After drawing Panchanama Exh.
171 the said Disc was opened on the Computer of the Police Station,
which contained four folders having 22 photographs. He got it
developed and the CD was leased. He identified the said photographs to
be same which are Article 18 to 18/4.
141 Cross examination to PW 39 it is rather confirmed that
Fahmida PW12 and her husband were shown the said photographs and
they identified accused in the same. This is in fact corroborated by
Fahmida PW12 in her evidence to the effect that she was shown the said
photographs after 910 months of the incident. PW 39 denied that the
photographs are not clear to identify. He denied that he manipulated
the photographs.
Judgment. 61 S.C.No.431/11 Ex.180
142 As could be seen that instead of challenging the evidence of
PW39, there is confirmatory cross examination in which there is no
challenge as to the fact of receipt of CDs containing 22 photographs and
he having developed it properly. Similarly there is no challenge that 22
photographs at Article 18 to 18/4 to be the same.
143 It may be mentioned here that since the photographs Article
18 to 18/4 are digital photographs and still images of the same footage
captured by CCTV camera there was no further need to prove it. Since
the still images are prepared by Forensic Science Laboratory Kalina, at
the most it could be said that the running form in CD's has been
converted in still form in one CD which is part of Panchanama Exh. 171.
Said digital photographs do not generate any negative being still images
of a data captured by CCTV. As such said photographs could be read in
evidence as they stands. For this I may take useful recourse to the
Jugement in Vaman Narain Ghiya ..Vs.. State of Rajasthan in Cri.
Appeal No. 70/2009 dated 15/1/2014. Since the prosecution has duly
proved the Compact Discs at Article 23 to 25 by proving the certificate
under Section 65 B of Evidence Act, from Pritam Shinde PW33, said
photographs could safely be read in evidence. It can not be forgotten
that there is virtually no challenge to the fact that the said CD's were
sent to Forensic Science Laboratory Kalina who have
developed/converted in still photographs at Article 18 to 18/4. The
process undertaken by Forensic Science Laboratory Kalina is well taken
care by Section 292 (as amended by Section 25 of Cr. P. C. Amendment
Act 2005) and Section 293 of Code of Criminal Procedure.
Judgment. 62 S.C.No.431/11 Ex.180
144 Above 22 photographs were shown to Fahmida PW12 in the
Court. She deposed that in the said photographs shows that accused
Parwez is accompanied by Rehmat and accused Hasib is beside them.
Cross examination of PW12 on this point would show that she could not
disclose as to the place where said photographs were taken. She
admitted that the same were not taken in her presence. She admitted
that Faces in the photographs are not visible and there are so many
people of similar features. She however denied that on seeing/viewing
the said photographs she will not be able to say as to who is the person.
She admitted that Rehmat was not wearing Veil. She admitted that
Parwez used to wear shirt and pant and used to put in the shirt in the
pant. She admitted that none of the person in the photographs
including the person identified as accused Parwez is having shirt in the
pant. She denied that she identified the accused in the photographs on
the say of police.
145 As could be seen that basic thrust of the cross examination of
PW 12 is that the faces in the photographs are not clear. The core
question is whether a person like Fahmida PW12 who has developed
close relations with Rehmat and was knowing accused Parwez at least
for 9 months, prior to such identification being his neighbour, could not
have identified them without clear faces ? The answer is certainly 'No'.
This is because when a person is well known, he could be identified very
easily from his physique, way of walking, gestures etc. In present case
also Rehmat was like a close friend of Fahmida, who had gifted cloths to
her. They being neignbours, were knowing each other since July 2010.
Similarly accused Parwez was husband of Rehmat to whom she was
knowing since July 2010. Accused shifted his bag and baggages to her
Judgment. 63 S.C.No.431/11 Ex.180
house obviously to take away on some day. As such looking at the close
relationship, the image or personality of Rehmat and that of Accused
Parwez was well known to Fahmida, sufficient for her to identify them
in photographs at Aticle 18 to 18/4. Photographs contain various
minute details like cloths on the person of a couple who are walking,
substantial part of their face, hair style etc. All these factors are
sufficient for Fahmida PW12 to identify them to be deceased Rehmant
accompanied by accused Parwez and Hasib.
CIRCUMSTANCE S TO U.
146 To prove the mobile phone number being used by accused
Tabrej, the evidence of Vijay Shinde PW29 who is Nodal Officer of
IDEA Cellular Ltd is to the effect that mobile No.9702988355 standing
in the name of accused Mohd. Tabrej. This evidence is admitted by
accused Mohd. Tabrej in response to question No.133 during statement
U/s.313 of Cr.P.C. Thus, with the evidence of Shri. Shinde and
admitted by accused Mohd. Tabrej, this court has no hesitation to
conclude that the prosecution has proved that the accused Tabrej was
using the said mobile phone number every since it was applied to the
Cellular company.
147 Through Shri. Shinde, PW29, CDR details in respect of said
mobile phone has been proved at Ex.127(colly.). On first page on Ex.
127, as per Shri.Shinde, it contains details of mobile tower and the site
at which it is installed. Thereafter, there is a chart showing the details
like date and time of call, its duration and the calling number and the
receiving number, IMEI code etc. If we carefully examine the CDR
Judgment. 64 S.C.No.431/11 Ex.180
details which are duly proved in view of certificate U/s.65B of Indian
Evidence Act proved through Shri.Vijay Shinde who is Nodal Officer,
one will find that accused Parwez who was using the mobile phone of
his close relative Mohd. Javed Abdul Mannan Akhtar PW28 having
phone No. 9702181561 was in constant contact with accused Tabrej If
we carefully examine columns and the site address of the tower
location, where both the phone numbers were operated, it is mentioned
that on 14/3/11 between 7.58 a.m. to 10.37 a.m., there are as many as
four calls between accused Parwez and accused Tabrej. On comparative
reading of the tower location and the CDR details, first call made by
accused Parwez to accused Tabrej was initiated from tower having last
digit 50323 which is having site name as Ganesh Krupa and site address
as opposite Parsik Tunnel, old MumbaiPune Road, Mumbra. If we
consider the column No.A number, which is admittedly a calling number
and B number which is receipant, two calls made between 7.58 a.m. to
8.19 a.m., they were operated from very same tower location i.e.
Opposite Rashid Tunnel, old MumbaiPune Road, Mumbra. Since the
calling party at 8.11 a.m. was accused Tabrej and and the recipient of
the said call was accused Parwez, it is clear from the evidence of Shri.
Shinde that when said call was initiated by accused Tabrej, he was
operating from the tower location i.e. Ganesh Kripa, Parsik Tunnel, old
MumbaiPune Road, Mumbra. This would show that accused Tabrej
was present at Mumbra at the relevant time.
148 What is significant to note is an admitted fact that the
accused Tabrej was residing in Elphinston College Hostel, Room No.259
situated near Church Gate Railway Station. If that be so, core question
as to how the accused Tabrej has operated his mobile phone early in the
Judgment. 65 S.C.No.431/11 Ex.180
morning on 14/3/11 from Mumbra. It is not his case either suggested
to Shri. Shinde or claim U/s.313 of Cr.P.C. that he handed over his
mobile phone to somebody for use and said person has used his mobile
phone from Mumbra. It is also not case of the accused Tabrej that his
mobile phone was misplaced or stolen so as to say that it was not used
by him from given mobile tower situated at Mumbra. Therefore, it
could safely be inferred that accused Tabrej was at Mumbra on 14/3/11
early in the morning at about 7.58 a.m.
149 Combine reading of the evidence of Printam Shinde PW33
(as regards proof of CCTV footage) and that of Fahmida PW12 would
show that the accused Parwez was found getting down at Dadar
Railway Station by Train and then reaching at Mumbra by Local Train
which was also captured by CCTV camera installed at Mumbra Railway
Station. It was clear from the evidence of Fahmida PW12 that Parwez
was accompanied by deceased Rehmat. The mobile tower location and
the CDR would show that the call made by the accused Parwez at 3.15
a.m. to phone No.8103138442 was made by operating tower situated at
Varsha Adarsh Cooperative Society, tower location No.405799144283
which is situated near Kurla Railway Station Kurla. Probably this call
was made before train could reach at Dadar. The CCTV footage at
Dadar Railway Station shows that after alighting from train, accused
Parwez and Rehmat were proceeding towards bridge from the platform
at about 3.32 a.m. This Court can take judicial note of the fact that the
train which was coming towards Dadar could have reached at Dadar
from Kurla within 10 to 12 minutes.
150 On careful reading of the said CDR details, one would find
Judgment. 66 S.C.No.431/11 Ex.180
that the accused Parwez made said call at 7.58 a.m., to accused Tabrej
from tower location situated at Mumbra which shows that at that time
he was vary much at Mumbra. This is because as per CCTV footage of
Mumbra Railway Station shown in Compact Disc Article 23 and
photographs Art.18/2 to 18/14, accused Parwez was found along with
Rehmat at Mumbra Railway Station at about 5.17 a.m.
151 The important aspect now is the material to show that the
accused have taken Rehmat to 303, Roshni Apartment, Thakurpada,
Mumbra. It was argued by defence that there is no evidence to show
that accused and deceased Rehmat were at said place 24 Hrs. prior to
postmortem. This is because as per Dr. Mesharm PW 32, the time of
death must be prior to 24 Hrs. prior to postmortem, which comes prior
to 4.15 p.m. on 14/3/2011.
152 Admittedly there is no direct evidence of any witness who
had seen accused taking Rehmat to 303, Roshni Appartment. This is
obvious because it was wee hours when accused Parwez and Rehmat
got down at Mumbra Railway Station, as proved from CCTV footage in
CD Article 23 and photographs Exh. 18. It is unusual to expect that at
such early morning, it is possible even for neghbours of 303, Roshni
Appartment to notice the movements of their neighbours, least to be
said about passerby.
153 The prosecution for this purpose is relying on two instances.
One is recovery of Odhani of the dress of Rehmat which was on her
person when her dead body was found, at the instance of accused
Tabrej. Second instance is the trolley bag Art.1 in which the dead body
of Rehmat was found, which was gifted to Arshiya PW9 in her marriage
Judgment. 67 S.C.No.431/11 Ex.180
and said bag was lying at 303, Roshani Apartment, Thakurpada,
Mumbra.
154 The prosecution has relied on the evidence of Shri. Yeram
PW31. As per PW31, on 20/3/11, accused Tabrej voluntarily made
statement to him, that Scarf/Odhani has been kept at 303, Roshni
Apartment, Thakurpada, Mumbra. Same was recorded in presence of
panchas. Accused then led them to the said place at Mumbra. As per
Shri. Yeram the keys of the said premises were supplied by accused
Parwez who was arrested at that time. As per Shri.Yeram, accused
Tabrej took out one black hand bag from the loft in the kitchen of the
said premises and took out Scarf/Odhani with chocolate white colour
design which is made part of Art.2. He identified said hand bag Article
21, which was shown to Manoj PW13 a public panch acted to
panchanama.
155 It would not be out of place to mention here that at one
place Shri Yeram has stated Parwez has made such statement. It was
argued by defence that there is doubt about such statement being made
by accused Tabrej. On careful reading of the evidence of Shri Yeram he
has deposed as follows :
“On 20/3/2011 when accused Mohd. Parwez was in our custody he intend to give a disclosure statement. I then called panchas and in their presence he had disclosed that he is willing to show the spot where the deceased who was his sister in law was killed and the scarf by which the deceased was killed as well as the spot where the dead body of the deceased was shifted.”
(emphasis supplied by me)
156 What can be seen that though some part of above evidence is
Judgment. 68 S.C.No.431/11 Ex.180
inadmissible, but the witness (Shri Yeram) was clear that it was the
statement of accused who is brother in law of the deceased. As such it is
highly probable that while stating the name of accused, Shri Yeram got
confused or since the names of accused are quite similar, while
recording the deposition there was mistake while recording the name.
This possibility just can not be ruled out because there is correction
made by my learned predecessor in subsequent part of the deposition
about the name of accused by correcting name of Tabrej in place of
Parwez. As such there is no force in the above argument of defence.
157 Prosecution has also relied on panch witness Bablu
Chaurasiya PW6 who acted as public punch for panchanama Ex.30.
Similarly prosecution has examined Manoj Dhagvat PW13 who acted as
panch to the memorandum and recovery panchanama Ex.46 ad 47.
158 There is hardly any material in the cross examination of
PW6 and PW13 to disbelieve them. They have in fact corroborated the
evidence of Shri. Yeram as regards the search of room of accused Tabrej
at Elphiston College Hostel as well as memorandum given by accused
Tabrej leading to recovery of Dupatta which is part of Art.2. There is
nothing to show that said panch witnesses are subject of influence of
police.
159 Much was argued by defence about Odhni being part of
Article 2. It is claimed that it was already with police along with Kurta
and Pyjama, but has been got up. But the witnesses like Shri. Thakur
PW1, M. Rehman PW2, Anita PW3, Pankaj PW7 are very consistent in
their evidence that only Kurta and Paijama were found on the dead
Judgment. 69 S.C.No.431/11 Ex.180
body of Rehmat. Similarly Fahmida PW12 was also shown the said
cloths. It was only when she was shown Odhni during her evidence, it
appears that since it was part of same suit, it was marked as Article 2.
This can not amount to a fact that Fahmida admitted that she was
shown said Odhni. In fact she has clarified in her examination in chief
itself that said Odhni was shown to her on 21/3/2011 only. Since it
was marked as collective article along with Kurta and Paijama, no
advantage could be taken there form.
160 As discussed above, Odhani which is part of Art.2 was sent
along with Kurta and Pyjama found on the person of deceased Rehmat
to the C.A. Similarly receipt book No.246 having pieces of cloths
produced by tailor Mohd. Imran Zafar Alam PW20 were sent for
analysis. The report of analysis is at Ex.63 as mentioned above would
show that Odhani found at the instance of accused Tabrej from flat No.
303, Roshni Apartment, Thakurpada was part of Kurta and Pyjama
found on the person of deceased.
161 The detection of Odhani of the said dress on the person of
deceased Rehmat is very crucial because inspite of fact that keys of said
house were with accused Parwez, accused Tabrej was knowing as to the
exact location of said Odhani (black bag Article 21). This establishes the
special knowledge to the accused Tabrej and his intention to conceal
said Odhani in a black hand bag that too on loft of the kitchen.
162 In this regard, I propose to reproduce section 27 of Indian
Evidence Act.
S. 27 : How much of information received from accused may be
Judgment. 70 S.C.No.431/11 Ex.180
proved : Provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused of any offence,
in the custody of a police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved.
163 Thus in order to make a fact, on the information of the
accused admissible, it must be in consequence of information given by
the accused while in the custody of a police officer. It is also made clear
that such information if leading to discovery of fact so disclosed it itself
is relevant.
164 Once the recovery of Duppata/odhni of Rehmat is accepted
to be at the instance of accused Tabrez, three possibilities would appear
as held in State of Maharashtra ..vs.. Suresh reported in 2000 1 SCC
471= 2000 1 ACR 266 SC. Para 26 of the said judgment reads as under
:
'We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was conceded by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.'
Judgment. 71 S.C.No.431/11 Ex.180
165 In present facts of the case, it was for accused Tabrez to tell
the court with mere probabilities about other two possibilities indicated
above, by Hon'ble Supreme Court. However the accused has not
explained anything about it in his statement under Section 313 of Code
of Criminal Procedure. The Duppatta/Odhni which is part of Article2
was sent for Chemical Analysis as to its fabric. By a Letter proved from
Shri Jadhav PW37, opinion was sought about the fabric of the Salwar
and Payjama found on the dead body of Rehmat and the Odhni which
was found in a bag kept in 303, Roshni Appartment. As discussed
above, Chemical Analyzer found both matches each other and the fabric
is same vide Exh. 63. It is unusual to believe that deceased Rehmat
would have worn only Salwar and Kurta while returning from Delhi.
Detection of Odhni/Duppata of same set of Dress shows her presence in
303, Roshni Apartment, Thakur Pada, Mumbra.
166 Said recovery at the instance of accused Tabrej also shows
his presence at 303, Roshni Appartment along with Rehmat. Such
inference is inevitable because accused Tabrej has not explained other
to situations in which he could be said to have knowledge of said Odhni
at that place. Apart from it, while discussing evidence as regards
various circumstance, it is found that since early morning, accused
Tabrej was at Mumbra and was using his mobile phone from tower
location at Mumbra. He has not explained as to when he parted from
his brother Parwez on 14/3/2011. All there circumstance clearly
establish active involvement of accused Tabrej in the crime.
167 Most crucial part of said Odhni is that as per C. A. Report
Exh. 63, said Odhni was found stained with human saliva. Since it was
Judgment. 72 S.C.No.431/11 Ex.180
part of Kurta and Paijama of deceased Rehmat, it was for accused Tabrej
to explain about detection of human saliva, necessarily to be that of
deceased, found on it. Said fact is so relevant that it shows knowledge
to accused Tabrej as to the existence of Rehmat, what happened to her
etc. Non explanation of above material by accused Tabrez clearly
implicate him in a crime.
168 As per evidence of Shri Yeram PW31, after arrest of accused
Tabrej from Elphiston College Hostel, his room No. 259 was searched
under panchanama Ex.30. As per his evidence, apart from other
articles, paper cutting of Mumbai Mirror having photograph of dead
body of deceased was found. He also deposed that a Tshirt having
digits 93 embossed at the back was found at said room.
169 Public Panch Bablu Chourasia PW6 has been examined to
support the said seizure. As per this witness on visit to said Room No.
259 of the Hostel, accused Tabrej collected the key's from the Manager
and opened the room. As per this witness, articles like mobile phone,
newspaper cutting in respect of deceased Rehmat, one TShirt having
figure 93 in it's back, photographs of Rehmat etc were recovered from
said room. Needless to say that the witness has admitted Articles 4 to 8
stated above, which were shown to him.
170 Cross examination of both the above witnesses is of denial of
what they have deposed. PW6 could not recollect as to whether the
Hostel Manager was a lady or a man. Rest of the cross examination
consist of suggestions of denial. Except that there is nothing fruitful to
disbelieve said witnesses.
Judgment. 73 S.C.No.431/11 Ex.180
171 The only precaution that this court has to examine, is to rule
out the possibility of planting. Looking at the paper cutting of Mumbai
Mirror, the same is such that it is not proper to act upon the same. It is
also because the news was already published and was known to the
police. As regards T Shirt Article 5 is concern, it's planting as argued by
the defence can not be accepted. There is strong reason to this
inference. The fact that said TShirt having 93 figure on it's back has
any significance in the case was disclosed to the police machinery only
on receipt of CCTV footage of Mumbra Railway Station. Till that time
there was no reason to know that said TShirt has any significance in
the case. As could be seen from the evidence of Pritam Shinde PW33,
there is no challenge to his version that CCTV footage of Mumbra
Railway Station was given only on 23/3/2011 and not before that.
Whereas TShirt Article5 was found on 19/3/2011 itself. As such the
case of planting of said TShirt has to be ruled out. Similarity articles
like photographs of deceased Rehmat, Railway Pass etc. are not the
articles which could be said to have been planted by police.
172 For above reasons, this Court is of the opinion that the
evidence of Shri Yeram and Chourasia to the extent of seizure of said T
Shirt Article5 can very well be acted upon, by ignoring the recovery of
News Paper Cutting. Other articles would hardly be said to be
incriminating the accused.
CIRCUMSTANCE V :
173 It is the specific case of the prosecution that trolley bag Art.1
Judgment. 74 S.C.No.431/11 Ex.180
in which the dead body of Rehmat was found is out of gift articles
received by Arshiya PW9 in her marriage with accused Parwez. It was
received to her from her parents and at the material time, said bag was
lying in 303 Roshni Apartment, Thakurpada, Mumbra.
174 To prove this fact, the prosecution is relying on the evidence
of Arshiya PW9. She deposed in her evidence that apart from various
articles which she received in marriage, she also received trolley bag
Art.1. All these articles were lying in her house at 303 Roshni
Apartment. She also clarified that she received all the articles on
execution of bond from the Court. Much was argued that she claimed
to have received all the articles, but trolley bag Art.1 is fact lying in the
Court. Obviously, whatever she has received as per order of the Court
are the articles which were lying at 303, Roshni Apartment,
Thakurpada, Mumbra after arrest of accused. It is nobody's case that
even trolley bag Art.1 was received by Arshiya as per order of the Court
and this was taken by him from 303, Roshni Apartment, Thakurpada,
Mumbra. As such, argument has no force.
175 The identity of trolley bag Art.1 to be the same which was
received by Arshiya in her marriage was challenged. During cross
examination, Arshiya was suggested that Arshiya has admitted that her
parents have purchased most of the articles of her marriage. She has
not purchased bag Art.1 and had no occasion to see said bag before her
marriage. She, however, disclosed that said bag was purchased from
Shivam Stores at Ratlam. She admitted that there may be so many such
bags available in the market. Very interestingly during cross
examination, it is brought from her mouth that there was identification
Judgment. 75 S.C.No.431/11 Ex.180
mark on the handle of the said bag by marker pen and on that basis, she
has identified said bag to be the very same which she received in her
marriage. What is significant to note from the answer elucidated during
cross examination is that reason for the witness to identify the bag is
still confirmed leaving no room of doubt that she could have identified
said bag on the basis of said identifying mark appearing on the handle
of the bag. Even the witness has claimed that she had seen such
numbers by market pen on the bag before the Court. In fact on
examination of Art.1 before the Court, there is number in Hindi script
on the handle of bag Art.1 made of white ink/paint.
176 It is seen that marriage of Arshiya with accused Parwez was
performed on 4/12/10. Admittedly they started residing at Roshni
Apartment, Thakurpada, Mumbra after marriage till the incident.
Therefore, time and again Arshiya had gone to see the said bag for the
period of more than three months. Therefore, the nature of the bag, its
identifying futures, colour etc. were well engrossed on her memory
sufficient for her to identify the same before the Court. The time gap is
very short because the evidence of Arshiya was recorded in December,
2012. Therefore, she had no difficulty to identify the bag which she had
seen only in March, 2011. For this reason, there is no reason to doubt
that trolley bag Art.1 is the same which was received by Arshiya in her
marriage by way of gift from her parents.
177 By way of corroboration, the prosecution has examined Anil
Niranjandas Bairagi PW10 before the Court. As per this witness, he is
running Shivam General Stores at Ratlam, State of Madhya Pradesh. He
claimed that bag Art.1 was purchased from his shop and and the said
Judgment. 76 S.C.No.431/11 Ex.180
fact was disclosed by him to the police when the police had been to his
shop in the month of March, 2011. As per this witness, he sold the said
bag to Rizvana Qureshi PW19 mother of Arshiya PW9. During cross
examination to this witness, it is brought on record that though he is not
maintaining any record of sale and purchase of the bags and will not be
able to identify each and every bag which he sold but it is brought from
his mouth that he himself has mentioned code number on the bag by his
own handwriting by marker ink pen. He also claimed that number
appearing on the handle of the bag is written by him. Rest of the cross
examination consists of bare suggestion of denial.
178 It is seen from the evidence of Niranjandas Bairagi PW10
that he could identify trolley bag Art.1 to be sold from his shop on the
basis of numbers written by him on the handle of the bag to be the
identifying mark sufficient for him to identify said bag. This witness is
no way concerned with accused and therefore had no reason to depose
false on oath. Therefore, I have no hesitation to accept his evidence in
toto.
179 Apart from above, prosecution has also examined Rizvana
Qureshi PW19 who is mother of Arshiya PW9. As per Rizvana, bag
Art.1 was purchased from Bairagi's shop at Ratlam. She identified bag
Art.1 before the Court to be the very same which was purchased by her.
180 Cross examination of Rizvana Qureshi PW19 is on the line
that she has not obtained signature of Parwez on the list of articles
gifted to him. I am afraid that said cross examination would not serve
any purpose looking at the relation between Rizvana and accused
Judgment. 77 S.C.No.431/11 Ex.180
Parwez wee that motherinlaw and soninlaw. It is unusual to accept
that with such relations, nobody would obtain acknowledgment of the
articles that too which are gifted in the marriage.
181 Rizvana Qureshi PW19 has admitted that there are so many
bags available in the market like Art.1. She also admitted that she did
not disclose any identifying mark on the bag. However, such answers
would hardly matter in view of her evidence that said bag was
purchased from Niranjandas Bairagi PW10 from Ratlam. There is
corroborative evidence of Niranjandas Bairagi PW10 that there is
sufficient identification of bag Art.1 to be the very same which was sold
by him to Rizvana PW19.
182 Therefore, taking into account evidence of above three
witnesses, I have no hesitation to conclude that trolley bag Art.1 is the
same which was received by Arshiya PW9 in her marriage with accused
Parwez and was lying at 303 Roshni Apartment, Thakurpada, Mumbra
at material time. Hence, circumstance “V” proves beyond doubt.
CIRCUMSTANCE W TO Y :
183 As discussed above, Pritam Shinde PW33 has secured CCTV
footage of Mumbra Railway Station on 23/3/11 in respect of footage
captured on 14/3/11 at about 21.58 hours. As per his evidence,
compact disk Art.23 was supplied by him to the concerned RPF officer
after copying the date from DVR installed at Mumbra Railway Station.
He confirmed that it contains the footage between 14.40 p.m. To 12.20
p.m. On 14/3/11.
Judgment. 78 S.C.No.431/11 Ex.180
184 Since said CCTV footage is directly proved through Pritam
Shinde PW33, along with certificate U/s.65B of Indian Evidence Act,
which is at Ex.145 and 173. Since the said CD was sent to Forensic
Science Laboratory to have still images/photographs, taking charge of
CD is duly proved from evidence of Chanduprakash PW15, Gulab
Nalawade PW16 and Shankar Savnur PW17. These are police
personnel who have taken charge of CDs from RPF officials along with
respective letters and handed it over to I.O.
185 It was argued on behalf of accused that no panchanama was
drawn while accepting CDs. Core question is whether tampering of
such CDs was possible or was in fact done. As per Pritam Shinde
PW33, there was no scope for tampering of the date contained in the
disk. Apart from it, there is no cross examination to any of
Chanduprakash PW15, Gulab Nalawade PW16 or Shankar Savnur
PW17 that they have manipulated or tampered or had occasion to
tamper date in the CDs. I may note that said three witnesses were
performing their public duty being responsible police personnel.
Therefore, presumption U/s.114 of Indian Evidence Act is attached to
their actions. In absence of any tangle evidence it is because they are
police officers, their evidence cannot be doubted.
186 As per Shri. Ikke PW39, CDs were sent to Forensic Science
Laboratory to have still photographs of its contents. He accordingly
received CDs which is part of Ex.170 which contains 22 photographs in
different folders which were developed and placed on record Art.18/3.
As already discussed, with these photographs and its proof in the form
Judgment. 79 S.C.No.431/11 Ex.180
of CD containing CCTV footage, there is no difficult to look into the said
photographs.
187 Fahmida PW12 was confronted with photographs during her
evidence in which she identified accused No.1 and 2 to be the persons
who were carrying trolley bag. She has admitted that she is unaware as
to when these photographs were obtained, but fact remains that her
admission relates back to the contents of CCTV footage which is from
Mumbra Railway Station as deposed by Pritam Shinde PW33. With
combined reading of evidence of both the above witnesses, it is rather
proved on record in the light of CD Art.23 and the still images Art.18/3
that accused No.1 and 2 are seen carrying the trolley bag at Mumbra
Railway Station between 21.58.43 to 21.58.48 hours.
188 At this stage, it is necessary to look into the CDR and mobile
tower locations at Ex.127(colly.) proved from the evidence of Shri. Vijay
Shinde PW29, Nodal Officer working with IDEA Cellular Company. On
minute examining of CDR in respect of mobile phone used by accused
No.1 Parwez on 14/3/11 in between 7.58 a.m. on 14/3/11 till 10.33
a.m. 15/3/11, mobile phone of accused No.1 Parwez having No.
9702181561 was continuously used from mobile tower location No.
4457991750323 site name as Ganesh Kripa having address at opposite
Parsite Tunnel, old MumbaiPune Road, Mumbra of relevant details i.e.
IMEI number of the mobile phone found in possession of accused
Parwez at the time of his personal search etc have been tallied in the
said CDR at Ex.127(colly.)
189 At the same time, mobile phone of accused Tabrej bearing
Judgment. 80 S.C.No.431/11 Ex.180
No.9702988355 was used from very same tower location ever since
1.33 p.m. On 14/3/11 till 11.27 p.m. On that day. It is also conspicuous
to note that few calls made by accused Tabrej or received by him
between 10.02.46 p.m. To 10.9.33 p.m. On 14/3/11, wherein mobile
tower location No.4057991750312 being site name Kwaja Palace having
site address Kwaja Palace Limited opposite Railway Station Mumbra has
been used. This would conspicuously show that accused Tabrej was at
Mumbra Railway Station during that time. Since last call was made by
using mobile tower location at Ganesh Kripa, examining CCTV footage
proved by Pritam Shinde PW33 and identified by Fahmida PW12, it is
conclusively established that accused Tabrej was at Mumbra Railway
Station when the said trolley bag was carried by him.
190 There is one more aspect as regards the identification of
accused Tabrej to be the person who was pulling the said trolley bag
and was followed by accused Parwez and the said circumstance is the T
shirt on the person of accused Tabrej at the same time. It is conspicuous
from contents of CCTV footage as well as still photographs Art.18/3,
person pulling trolley bag had T shirt having figures 93 in big digits on
the back of the T shirt. As already discussed, CCTV footage were
obtained only 23/3/11. Therefore, nobody had knowledge as to what is
captured in CCTV footage. Therefore, what is proved on record in the
form of circumstance “U” discussed above is recovery of T shirt Art.5
having digits 93 on its back.
191 The CCTV footage Art.18/3 so also photographs of accused
Tabrej and T shirt Art.5 were sent to Forensic Science Laboratory,
Kalina for their opinion vide Ex.106. Forensic Science Laboratory after
Judgment. 81 S.C.No.431/11 Ex.180
due examination of all the material has sent report Ex.80 which is
proved from the evidence of Kiran Bagekar PW18. As could be seen
from the evidence of Kiran Bagekar PW18, after analysis said report
was prepared. Cross examination to Shri. Bagekar is rather
confirmatory as regards the CD which was sent to Forensic Science
Laboratory. It is also confirmed that photographs marked at Ex.G, H.
and I by the expert were sent for analysis. Obviously, he admitted that
he himself can not identify the person in T shirt. Thus, there is hardly
any challenge to his evidence as regards report Ex.80.
192 As could be seen that photograph of said T shirt was for
examination and as per result, it is observed that T shirt marked 93
owned by a man in photograph clip(Art.18/3/) is found similar to the T
shirt of which the photograph is proved at Ex.9. Similarly T shirt
appearing in the photograph clip of Olive Green Colour which is
produced before the Court at Art.5 is found similar to the T shirt in the
photograph. Of course, the expert can opine about similarity and they
cannot conclude by way of finding which is sent.
193 What is epochal in this case is that said T Shirt having 93
digits on its back itself is unique in nature. Since it was found in
possession of accused Tabrej in his room 259 of Elphiston College
Hostel and that it is proved from mobile tower and CDR details Ex.
127(colly.) that he was at Mumbra Railway Station at material time, in
all human probabilities, their is no other inference but the presence of
accused Tabrej on the Railway Station having said T Shirt on his person
could be drawn. It is more so because Fahmida PW12 has also
identified accused Tabrej in said CCTV footage in the form of still
Judgment. 82 S.C.No.431/11 Ex.180
images at Exh.18/3.
194 In view of above assessment of the material, prosecution
has successfully proved circumstance W to Y indicated above.
CIRCUMSTANCE Z :
195 As could be seen from the evidence of inquest Panch Anita
Bhosle PW3 semen stains were found near the private part of deceased
Rehmat. The Pyjama Article2 was sent for Chemical Analysis. As per
Exh. 63 semen stains which were found on said Pyjama were referred to
DNA analysis.
196 DNA analysis was carried out, in which said semen stains on
Pyjama were also analysed. Results of analysis at Exh. 69 reads as
follows :
“ 1) The DNA profile of semen detected on ex 2 pyjama and blood sample of Mohd. Parwez Anwarul Haq are identical & from one and same source of male origin DNA profiles match with the maternal and paternal alleles in the source of blood. 2) The DNA profile of semen detected on ex2 pyjama and blood sample of ex 2 Mohd. Tabrez Mohd. Anwarul Haq are not identical & not from one and same source of male origin DNA profiles did not match with the maternal and paternal alleles in the source of blood. 3) The DNA profile of semen detected on ex 2 pyjama and blood sample of ex 3 Abdul Hasib Mohd. Minhajul Haq Shaikh are not identical & not from one and same source of male origin DNA profiles did not match with the maternal and paternal alleles in the source of blood.
197 As can be seen from the Statement of Accused Parwez
under Section 313 Cr. P. C., he claimed no knowledge of such matching
of DNA. As already discussed there is virtually no challenge as regards
drawing of samples and the authenticity of the process undertaken by
Judgment. 83 S.C.No.431/11 Ex.180
Forensic Science Laboratory Kalina. The same is admissible under
Section 292 and 293 of Cr. P. C.
198 It was argued on behalf of accused that even if it is proved
that semen stains were that of accused Parwez, it is not of any
consequence, being husband of deceased Rehmat. On careful
consideration of above argument, it is significant to note that accused
Parwez has not admitted he being husband of the deceased Rehmat. He
did not disclose any reason for witnesses to depose false about such
relationship. He did not disclose, if not marital tie, in which
circumstance he was residing with Rehmat. In view this, when there is
overwhelming evidence to show that he married to Rehmat and was
residing as husband and wife near the house of Fahmida PW12, false
defence of denial raised by accused goes against him. Half hearted
admission by the advocate for accused about such relationship at the fag
end during arguments can not mean that accused has admitted or
explained above circumstance appearing against him.
199 Detection of semen of accused Parwez on the Pyjama of
deceased Rehmat have far reaching consequence so far as his complicity
in the commission of crime. Accused Parwez is silent in explaining as to
when after 6/3/2011 he was in the company of Rehmat. At what time
he left the company of the deceased ? As per Fahmida PW12, few days
prior to 6/3/2011 accused disappeared from the Prakash Complex
saying that he was going to Delhi. Thus at any rate if accused Parwez
was not in the company of deceased Rehmat at least since 6/3/2011,
and that be so, in absence of any explanation coming forward from
accused Parwez, detection of his semen stains on the Pyjama of the
Judgment. 84 S.C.No.431/11 Ex.180
deceased speaks in volume. On proof of this circumstance beyond
doubt, the prosecution has conclusively established that accused Perwez
was not only in the company of deceased Rehmat, but was intimate with
her, just prior to her death i.e. prior to 4.15 pm on 14/3/2011.
ADDITIONAL CIRCUMSTANCES
200 By way of additional circumstances, most important
circumstance which is already assessed is false denial of relations by
accused No.1 and 2 with deceased Rehmat. As already indicated, there
is half hearted admission during course of arguments which cannot be
equated with clear admissions. When it is proved on record with
overwhelming evidence that deceased Rehmat was wife of accused No.1
Parwez and sisterinlaw of accused Tabrej, their false denial about
relationship fill in gaps even if left out in the chain of circumstance.
201 All the through the accused Parwez has not explained about
his conduct in disclosing to Rehmat and neighbours like Fahmida that
he is proceeding to Delhi before 6/3/11. It is in fact proved from the
evidence of Arshiya PW9 that accused Parwez was very much at 303,
Roshni Apartment, Thakurpada, Mumbra at material time. This conduct
of accused No.1 Parwez is highly unnatural because he has disclosed
false information about he proceeding to Delhi at any time. At the same
time, it is proved on record that accused Parwez himself has secured
reservation for his wife Rehmat to be accompanied by accused No.3
Hasib on 6/3/11. He being husband of Rehmat, his conduct is highly
unnatural because Rehmat is not traceable at least since 8/3/11 because
she made last call to Fahmida on that day. When it is proved from the
Judgment. 85 S.C.No.431/11 Ex.180
evidence of Arshiya PW9 that accused Parwez accompanied her till
Khandva, State of Madhya Pradesh and has proceeded to Delhi, in all
probabilities, he must have reached Delhi on 10/3/11. The conduct of
the accused in not disclosing about whereabouts of his wife Rehmat
speaks in volume. If Rehmat was missing, natural conduct of accused
Parwez being her husband would have been to lodge missing complaint.
However, there is no such conduct coming forth from the accused
Parwez.
202 On the top of everything, while answering statement U/s.313
of Cr.P.C., accused Parwez has claimed that at the time of incident, he
was at Khandva, State of Madhya Pradesh. This plea of alibi is false to
the knowledge of accused because as per Arshiya PW9, accused Parwez
left for Delhi on 10/3/11 and returned to Khandva only on 17/3/11 in
the early morning. When it is proved on record that accused Parwez
made phone call to his wife Arshiya on 14/3/11 that he is going to
Mumbai, it is established that he was at Mumbai at relevant time.
Therefore, his false plea about his absence at Mumbai between 14/3/11
to 17/3/11 is also one of the additional circumstance which fill in lapse
if at all left out in the chain of circumstances indicated above.
203 It is well settled that above referred additional
circumstance would work as connecting link or additional link to show
complicity of the accused to the crime and therefore, all such
circumstance go against the accused No.1 and 2.
CONCLUSION
204 In view of above assessment of evidence on record,
Judgment. 86 S.C.No.431/11 Ex.180
circumstances as stated above at Sr. Nos. A to Z stands proved. Once it
is proved that deceased Rehmat was in the custody of accused Parwez
on 1432011 in the early morning hours, the fact of detection of her
odhani at 303 Roshni Apts. Mumbra, the fact that Trolley Bag Article 1,
in which dead body of Rehmat was found was lying at said premises,
being gift article received by Arshiya in her marriage with accused
Parwez, clearly establish that she was at said place after she was seen in
the company of accused Parwez. Even if it is said that there are some
missing circumstance, in fact there are no, then the additional
circumstance indicated above would fill in the gaps left out.
205 As per the evidence of Dr. Meshram that the death of
Rehmat was prior to 24 Hrs. of postmortem. That means she died prior
to 4 pm on 14/3/2011. With this material evidence, considering daily
pursuits that must have been followed by Rehmat after 6/3/2011 at no
rate such semen stains of accused could have found on her person. In
the light of evidence in the form of CCTV footage captured at Dadar and
Mumbra Railway Stations, there is no escape from the legal inference
that accused Parwez was with the deceased. It is rather conclusively
proved that accused Parwez was very much in the company of the
deceased at least after reaching Mumbra Railway Station on 14/3/2011,
early in the morning.
206 At this stage, it is necessary to have look on medical
evidence. As per Dr. Meshram , they found following external injuries.
“1 Ligature mark around the neck situated at the level of thyroid cartilage, more prominently visible on left lateral side of neck from center to mid line. The hyoid bone shows
Judgment. 87 S.C.No.431/11 Ex.180
bilateral fracture at the junction of body and cornue. 2) Right Black Eye, 3) Contusion on right cheek region of size 12 x 14 cms red colour, muscle deep, 4) Contusion behind and posterial to right ear six 4 x 4 cms, 5) Contusion of right horhead 2 x 2 cms muscle deep, 6) Contusion of left horhead 2 x 3 cms muscle deep, 7) Contusion of left cheek 3 x 1 cms muscle deep, 8) Abrasion behind left ear 2 x 3 cms., 9) Contusion upper lip 2 x 1 cms, 10) Contusion lower lip 2 x 2 cms, 11) Contusion left shoulder top 4 x 3 cms, 12) Contusion left lower limb 1.5 x 1 cms, 13) Petechial haemorhages over chest, chin, shoulder, skulp region.”
At the same time he found following internal injuries.
“1) Sub galeal Hemotoma over right side of 12 x 8 cms., 2) Sub galeal Hemotoma right and left occipitial region of size 18 x 2.5 cms. 3) Brainsub arachnoid hemorrhage at places, 4) Sub Pleural hemorrhage, 5) Blood in trachea,, 6) Lungs shows hemorrhages, 7) Blood within oral caveties, 8) Uterus foetus present.”
207 It was argued by learned advocate for accused that as
mentioned in Postmortem notes, there were 15 injuries on the person of
deceased, as such there has to be bleeding so also from the mouth of the
deceased Rehmat, when she was found in the Trolley Bag. If that be so
there should have been trail of blood if the bag Article 1 would have
been brought from 3rd floor, where Flat No. 303 is situate at Roshani
Apts. Mumbra. As per his submissions since no blood stains or any other
evidence was found at said flat, the prosecution has failed to prove that
Flat No. 303 Roshni Apts is the place where Rehmat was murdered.
208 I have given thoughtful consideration to above argument. To
better appreciate this argument, at the outset it is to be noted that
evidence of Dr. Meshram would show that there was ligature mark on
Judgment. 88 S.C.No.431/11 Ex.180
the neck of the dead body. Same is corroborated by Thakur PW1, M.
Rehman PW2, Anita PW3, Pankaj Waghela PW7, who have seen the
dead body when it was found in the Trolley Bag Article 1. There is no
cross examination to said witnesses to show that there was noticeable
bleeding either from the mouth of the body or from the injuries on her
person. In view of this matter, it is clear that there was no bleeding.
What is admitted to be the bleeding from mouth is a blood as noted in
Postmortem report Exh.51 in column No. 13. What is also noted is the
fact that the mouth was closed and the tongue was inside the mouth,
And blood was seen within oral cavity. Thus there was no profuse
bleeding so as to say that it could have failed. It is also significant to
note that as per Inquest Exh.25 there was little blood that came out of
the mouth. Not only this, Kurta and Payjama at Article 2 were sent to
chemical analyzer. Its report at Exh. 63 would show that there was no
blood detected on the same.
209 Above material would show that there was no such active
bleeding from the injuries on the person of Rehamt due to which there
could have been blood in the Trolley Bag Art. 1, which in turn could
have fallen on the floor, staircase etc. from where the said Bag was
carried. For this reason there could be no trail of blood, as argued by the
defence.
210 Above all, as per Dr. Meshram, Rehmat died of strangulation.
The external injuries found on her person are mentioned in column No.
17 of Postmortem Notes. The same are contusions and abrasions only.
There is nothing to show that there was profuse bleeding from the
injuries, rather it could not have been, because contusions and abrasions
Judgment. 89 S.C.No.431/11 Ex.180
will not cause such illustrious bleeding. As such there could be no such
trail of blood, which the inmates of Roshni Apartments could have
noticed, from where the Trolley Bag Article 1 was taken to Mumbra
Railway Station.
211 In the result of above assessment of medical evidence,
detection of semen, CCTV footage, there is no room of doubt that
Rehmat was in the company of accused Parwez and Tabrej and Hasib
after she was found alive at Mumbra Railway Station.
212 So far as accused Hasib is concerned, unlike accused Tabrej
there is virtually no evidence on record to ascertain his whereabouts
after he was seen at Mumbra Railway Station on 14/3/2011.
Admittedly he was not residing at Mumbra, it is seen from the evidence
of Shri. Jadhav PW37 that though Mobile Phone was seized from him
on his personal search, its CDR were not obtained. It could be said that
since the same were not showing his presence at Mumbra area, the
same were not produced/proved. There is nothing that is recovered or
discovered at his instance. In such circumstance, except the fact that he
accompanied deceased Rehmat to Delhi on 6/3/2011 and returned on
14/3/2011 along with accused Parwez and deceased Rehmat, there is
nothing to implicate him in the crime.
213 The time of death of Rehmat is prior to 4 pm on 14/3/2011.
With proved evidence on record, she was seen alive in the company of
accused No. 1 and 2 at 5.15 am. Detection of Odhni of deceased at 303,
Roshni Apartments, Thakur Pada, Mumbra, the fact that her dead body
was found kept in Trolley Bag Article1 which was lying at said flat go
Judgment. 90 S.C.No.431/11 Ex.180
to show that she was taken to said flat only. On proof of said fact,
Section 106 of Indian Evidence Act would come in to play. It was for
accused to explain as to what happened with Rehmat after she was
taken to 303, Roshni Apartments, Thakur Pada, Mumbra ?
214 By relying on authorities in i) Mahammad Shabbir Akbar
Shaikh V/s. The State of Maharashtra, Criminal Appeal No.484 of
2012, dt.4th July, 2014(Bombay High Court) ii) Bhanwar Singh &
Ors. V/s. State of M.P., Criminal Appeal No.300 0f 2007, dt.16th
May, 2008(Supreme Court of India) iii) Sahadevan & Anr. V/s. State
of Tamil Nadu, Criminal Appeal No.1405 of 2008, dt.8th May,
2012(Supreme Court of India), it was argued by defence that 'deceased
last seen with accused' theory can not be used in this case due to time
gap between the time of death and the time when accused were
allegedly found with the deceased.
215 On careful reading of above authorities, in fact non of them
is identical with the facts of present case. As such non of them could be
applied to the present facts. In present case, in fact it is not only proved
that deceased was last seen alive in the company of accused persons but
it is also proved that she was in the custody of No.1 and 2 at 303,
Roshni Apartments, Thakur Pada, Mumbra.
216 On this point, I may reproduce para 9 of the judgment of
Hon'ble Supreme Court in Trimukh Kirkan ..vs.. State Of
Maharashtra, 2006 10 SCC 681:
“ 9. In the case in hand there is no eyewitness of the occurrence
Judgment. 91 S.C.No.431/11 Ex.180
and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.”
217 In para 11 of above case, Hon'ble Supreme Court has ruled as
follows :
“11. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh MANU/SC/0585/2003 : 2003CriLJ3892 ). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: (b) A is charged with traveling on a railway without ticket. The
Judgment. 92 S.C.No.431/11 Ex.180
burden of proving that he had a ticket is on him.
Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.”
218 In present case also deceased Rehmat was in the custody of
accused. When accused No. 1 and 2 were only inmate in the house no.
303 Roshni Appartments, along with deceased, they are under
obligation to explain the facts within their special knowledge. However,
the accused has remained silent so far as all the incriminating
circumstances proved against them. The accused are silent as to what
happened after Rehmat was taken to said Flat ?
219 Since such explanation is not coming forward, there is no
force in the submissions of learned advocate for accused that there is
huge gap between 5 am on 14/3/2011, when Rehmat was alive and the
time when her dead body was found to Thakur PW1 at 2 am on
15/3/2011. In fact such argument is fallacious because as per Dr.
Mesharm the death was prior to 24 Hrs. of postmortem (emphasis by
me). Since it is a case of death by strangulation, it is practically
impossible to give exact time of death. When it was prior to 24 Hrs. of
postmortem, it must have been any time between 5 am to 4 pm on
Judgment. 93 S.C.No.431/11 Ex.180
14/3/2011.
220 The mobile phones of accused No. 1 and 2 were sent to
Forensic Science Laboratory Kalina to extract it's contents. As per
evidence of Kiran Bahekar PW18, contents of mobile phone of both the
accused were extracted by using proper forensic method. He has proved
the entire report alongwith extracts at Ex.80(colly.). The SMS (short
message services) shared between the accused Tabrej and accused
Parwez after incident clearly demonstrates that even accused Tabrej had
participated in the commission of the crime i.e. Murder of Rehmat.
Thee is outgoing message from out box of the message window of
accused Tabrej. Following are the messages sent obviously to accused
Parwez.
“N.B.T. me diya he k wo ladies 4 mahine se pregnent
thi.or delhi police ne mum.police se contact kr bataya
k ek ladki delhi se mumbai bhagi hui he”
“Mumbai miror me v wahi news foto k sath diya he jo nbt me
diya he”
221 With above messages, it is crystal clear that because accused
Tebrez was culprit of the crime, was in constance contact with accused
No.1 Parwez and was supply the information to him so far actions of
police are concerned. Probably, therefore, Dr. Mishram has also opined
that causing of 15 injuries on the person of Rehmat with strangulation is
job of more than one person.
222 As the accused Parwez and Tabrej are silent as to when they
Judgment. 94 S.C.No.431/11 Ex.180
parted from the company of Rehmat in that morning, except said
accused, no one else could have committed her murder in 303, Roshni
Apartments Thakurpada, Mumbra.
223 Accused with intention to cause death of Rehmat
Strangulated her with Duppata/Odhni. The fact that said Dupata (part
of Article 2) was found at the instance of accused Tabrez, his
involvement in the actual crime is also established. Mobile Towar
location at Exh. 127, of his mobile phone would show that since
morning he was at Mumbra. Similarly CCTV footage of Mumbra
Railway Station as identified by Fahmida PW12 would show that he was
was the one who was pulling the Trolley Bag Article1 which proved to
have contained the dead body of Rehmat. With detection of Odhni
which is part of Article2 at his instance from 303, Roshni Apartment
clearly establish his involvement in the commission of crime with
accused Perwez.
224 As could be seen that the circumstances taken together
forms a chain. From the chain so established, there is no escape from
the conclusion that within all human probabilities accused No. 1 and 2
alone have committed murder of Rehmat. The probabilities are such
they are incapable of explanation to any hypothesis other than that of
the guilt of the said accused and are inconsistent with their innocence.
225 As such, I have no hesitation to conclude that accused No. 1
and 2 have committed murder of Rehmat by strangulation and by
assaulting her. The injuries on the person of Rehmat corroborate this
inference. As such, the accused Parwez and Tabrej are the authors of
Judgment. 95 S.C.No.431/11 Ex.180
crime and none else. With number on injuries on the person of Rehmat,
the ligature mark shows that she died a homicidal death. The
surrounding circumstance emerging from the record, the intention and
knowledge to cause death is well underlined. For these reasons,
ingredients of Section 300 of Indian Penal Code punishable under
Section 302 of Indian Penal Code are conclusively established.
226 So far as offence under Section 201 of I.P.C. is concern, there
is overwhelming evidence on record that it were accused Perwez and
Tebrez who were seen along with the Trolley Bag Article1 at Mumbra
Railway Station at late night on 14/3/2011. With proved facts, after
committing murder of Rehmat, in order to disappear the evidence of
crime i.e. dead body, they have folded the dead body and kept in the
said bag. The said bag was then abandoned in a local Train at Mumbra
Railway Station, the same was found by Shri. Thakur PW1. The accused
have also concealed the Odhni Article2 which was evidence of Crime.
With clear and unambiguous evidence, I have no hesitation to hold that
prosecution has proved charge under Section 201 of I.P.C. against
accused Perwez and Tebrez.
227 In view of conclusion drawn, I answer points accordingly and
I hold said accused guilty for the offence punishable under sections 302
and 201 of Indian Penal Code and proceed to hear the accused on the
point of sentence.
(Shrikant.L.Anekar) Addl. Sessions Judge,
Gr. Mumbai
Judgment. 96 S.C.No.431/11 Ex.180
228 I have heard the accused on the point of sentence. Both the
accused Parwez and Tabrej claimed that they have not committed any
offence and they are innocent. Learned advocate for the accused prayed
for leniency to accused.
229 Learned APP submitted that Rehmat was carrying pregnancy
from accused Parwez at the time of incident. He claimed that evidence
would show that accused after committing heinous crime have
destroyed the evidence by putting dead body in trolley bag. He claimed
that no leniency should be shown to the accused as they have no right
to be in the society.
230 After considering the rival submissions, it is seen from the
record that accused No.1 Parwez was married to Rehmat and it being
his marriage. It is proved on record that by suppressing said fact of said
marriage, he contracted 2nd marriage with Arshiya PW9. Circumstances
have shown that he had no intention to continue his matrimonial
relations with deceased and therefore, tried to compel her to go to her
parents place and on her refusal has committed heinous crime with the
help of his brother Tabrej.
231 Brutality or inhuman treatment of the crime is to the extent
that Rehmat was carrying pregnancy from accused Parwez, even the
said fact did not prevailed upon the accused to be merciful to Rehmat.
With this barbarity, there are as many as 15 injuries on the person of the
deceased. It is also proved that after strangulation and after inflicting
severe blows, her dead body was kept in trolley bag and then was
abandoned in local railway at Mumbra Railway Station. In view of this,
Judgment. 97 S.C.No.431/11 Ex.180
brutality of the crime and conduct of the accused Parwez, the Court is of
considered view that he has no right to be part of society at any time in
future and deserves stringent sentence. This is also because, Rehmat
was a timid woman who believed him to be a human being, but accused
Perwez has betrayed her faith and therefore, this is a fit case where the
accused Parwez be sentenced to imprisonment for life with direction
that he shall not be released from captivation until his life. This is to
prevent any further crime or cheating as played with deceased as well as
Arshiya PW9 by not disclosing about his first marriage.
232 So far as accused Tabrej is concerned, it appears that he has
helped his brother in committing crime. However, looking at his tender
age, I do not propose to pass such a strict sentence on him. Above
character of sentence would meet the ends of justice. Hence, I pass
following order.
O R D E R
1 Accused No.1 Mord Parwez Mord Anwarul Haq and
accused No.2 Mohd. Tabrej Mohd. Anwarul Haq are hereby convicted
under section 235(2) of Criminal Procedure Code for the offence
punishable under Section 302 of Indian Penal Code and each one of
them is sentenced to suffer imprisonment for life and to pay a fine of Rs.
1,000/ (Rupees One Thousand) in default to undergo rigorous
imprisonment for six months.
2 Accused No.1 Mohd. Parwez Mohd. Anwarul Haq and
accused No.2 Mohd. Tabrej Mohd. Anwarul Haq are hereby convicted
Judgment. 98 S.C.No.431/11 Ex.180
under section 235(2) of Criminal Procedure Code for the offence
punishable under Section 201 of Indian Penal Code and each one of
them is sentenced to suffer imprisonment for 5 years and to pay a fine
of Rs.1,000/ (Rupees One Thousand) in default to undergo rigorous
imprisonment for six months.
3 Sentence for both the offence shall run concurrently.
4 Accused No.2 be given set of U/s.428 of Code of Criminal
Procedure.
5 The accused No.1 Mohd. Parwez Mohd. Anwarul Haq shall
not be released from captivation/imprisonment until his life.
6 Accused No.3 Abdul Hasib Minhajul Haq is hereby
acquitted of the offence U/s.302 and 201 of Indian Penal Code.
7 Accused No.3 is in jail. He be released forthwith if not
required in any case.
8 Accused No.3 is directed to execute bail of Rs.15,000/ with
one solvent surety in like amount in view of Section 437A of Code of
Criminal Procedure.
9 Copy of this judgment be given to Accused No.1 Mohd.
Parwez Mohd. Anwarul Haq and accused No.2 Mohd. Tabrej Mohd.
Anwarul Haq free of cost.
Judgment. 99 S.C.No.431/11 Ex.180
10 Final order as to Muddemal Property is reserved.
( Pronounced in the open Court.)
Date: 7/5/2015. (SHRIKANT L. ANEKAR) ADDL.SESSIONS JUDGE GR.BOMBAY.
Dictated on :Different dates.Typed on :Different dates.Signed by HHJ on :9/5/2015