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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)

V/s.

Prosecution

1 Mohd. Parwez Mohd. Anwarul Haq Age:32 years, Occ:Service, R/at.Thakurpada, Roshani Apartment, Mumbai.

2 Mohd. Tabrej Mohd. Anwarul Haq Age: 22 years, Occ:­­ R/at.Government College Hostel, R.No.259, 2 nd Floor, C. Road, Churchgate(W), Mumbai.

3 Abdul Hasib Minhajul Haq Age:23 years, Occ:Labour, R/at.Plot No.13, Shivaji Nagar, Govandi, Mumbai. And At. Dostiya, Post.Gurhanwa, Kudwa, Chainpur, Dist.East Chaparan, 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.

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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.

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S.C.No.431/11

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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.

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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.

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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.

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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.

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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.

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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.

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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.

evidence as under :

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Ex.180

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

Ex.122

Akhtar

Judgment.

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Ex.180

PW­29 Vijay Eknath Shinde

 

Ex.125

PW­30 Mohammed Hazrat Ansari

Ex.132

PW­31 Pandharinath Rajaram Yeram

Ex.137

PW­32

Dr.

Ashutosh

Harshavardhan

Ex.139

Mishram

PW­33 Pritam Dilip Shinde

 

Ex.143

PW­34 Shaikh Mehmood Shaikh Ameer

Ex.146

Jahagirdar

 

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

Ex.110

photograph

Letter of handwriting expert

 

Ex.119

E­mail

Ex.126

CDR along with certificate

 

Ex.127

Judgment.

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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.

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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.

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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

{3}

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. The circumstances should be of a conclusive nature and

{4}

tendency. They should exclude every possible hypothesis except the one

{5}

to be proved, and 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.”

Judgment.

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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

Judgment.

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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.

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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.

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Ex.180

R] Deceased Rehmat was lastly seen alive in the company of

Parwez and Hasib on 14­3­2011 at 05:16/17.

Accused

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.

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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.

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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.

CIRCUMSTANCE A:

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Ex.180

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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

State of Uttar Pradesh (2014 Cr. L. J 2371 = 2014 2 Crimes 127) relevant paragraph reads as under:

vs

Judgment.

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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

CIRCUMSTANCES B to E:

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Ex.180

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 6 th 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.

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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.

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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.

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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.

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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.

Judgment.

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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.

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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.

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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.

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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.

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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.

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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.

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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 7 th or 8 th 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.

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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.

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also corroborated by short message service extracted from mobile phone of accused Parwez.

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.

105 The said extracted

“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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.18 th 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.

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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.

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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) was regularly 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;

Judgment.

58

mentioned in sub­section(2) relate,

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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.

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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.

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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.

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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

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.

Vs

State of Rajasthan in Cri.

Judgment.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

471= 2000 1 ACR 266 SC. Para 26 of the said judgment reads as under

vs

Suresh reported in 2000 1 SCC

:

'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.

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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.

C. A. Report

Exh. 63, said Odhni was found stained with human saliva. Since it was

167 Most crucial part of said Odhni is that as per

Judgment.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

images at Exh.18/3.

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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.

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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.

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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.

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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.

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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

evidence. As per Dr. Meshram , they found following external injuries.

stage, it is necessary to have look on medical

“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.

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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.

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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.

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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.

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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.4 th July, 2014(Bombay High Court) ii) Bhanwar Singh & Ors. V/s. State of M.P., Criminal Appeal No.300 0f 2007, dt.16 th May, 2008(Supreme Court of India) iii) Sahadevan & Anr. V/s. State of Tamil Nadu, Criminal Appeal No.1405 of 2008, dt.8 th 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

Of

Maharashtra, 2006 10 SCC 681

vs

State

“ 9. In the case in hand there is no eye­witness of the occurrence

Judgment.

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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.

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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.

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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.

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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.

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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.

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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 2 nd 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.

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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.

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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

acquitted of the offence U/s.302 and 201 of Indian Penal Code.

No.3

Abdul

Hasib

Minhajul

Haq

is

hereby

7 Accused No.3 is in jail. required in any case.

He be released forthwith if not

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.

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10

Final order as to Muddemal Property is reserved.

( Pronounced in the open Court.)

Date: 7/5/2015.

Dictated on Typed on Signed by HHJ on

(SHRIKANT L. ANEKAR) ADDL.SESSIONS JUDGE GR.BOMBAY.

:Different dates. :Different dates.

:9/5/2015