MOHD. YASIR vs. STATE

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment reserved on:24 February, 2018
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Judgment pronounced on: 26 April, 2018

+ CRL.A. 1277/2014
MOHD. YASIR ..... Appellant
Through : Mr.Sarin Naved, Advocate.
versus
STATE ..... Respondent
Through : Ms.Aasha Tiwari, APP.
SI Ramesh Kumar, PS Chandni Mahal.
+ CRL.A. 320/2015
STATE ( GOVT OF NCT OF DELHI) ..... Appellant
Through : Ms.Aasha Tiwari, APP.
SI Ramesh Kumar, PS Chandni Mahal.

versus

MOHD. FAIZAN & ANR ..... Respondents
Through : Mr.Javed Ahmed, Advocate for R-1.
Mr.Sarin Naved, Advocate for R-2.
CORAM:-
HON’BLE MR JUSTICE S.P.GARG
HON’BLE MR JUSTICE C. HARI SHANKAR

% (JUDGMENT)

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1. On 23 November, 2012, charges were framed, against
Mohd. Yasir – the appellant in Crl Appeal 1277/2014 – and
Mohd. Faizan – the respondent in Crl Appeal 320/2015 – under
Section 302/34 of the Indian Penal Code, 1860 (IPC). Additionally,
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 1 of 76

charges were also framed, against, Mohd. Yasir under Section
392/397 IPC, and under Section 411 IPC. The trial, that ensued,
resulted in the conviction, of Mohd. Yasir under Section 302 and
Section 392 read with section 397 of the IPC, and in the acquittal,
of Mohd. Faizan, of the charges against him. Thus ultimately,
Mohd. Yasir is in appeal, before us, against his conviction, and the
State is in appeal, before us, against the acquittal of Mohd.
Faizan.

The case of the prosecution

2. The case, put up by the prosecution, was as under:

(i) Ikhtikar Ahmed (PW-8) was at his shop, located at
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1969-70, Chandni Mahal, Delhi, at about 3:30 PM on 14
June, 2012, when his nephew Mohd. Zuber approached
him, accompanied by his friend Mohd. Yasir, requesting for
a loan of ₹ 5.5 lakhs, to buy mobile phones. Mohd. Zuber
was engaged in the sale and purchase of mobile phones, and
had entered into a deal with a dealer, whereunder he had to
pay the dealer ₹ 10.5 lakhs. Out of the said amount, he had
already paid ₹ 5 lakhs, and had to pay the balance ₹ 5.5
lakhs, failing which the advance amount of ₹ 5 lakhs, paid
by him, would be forfeited. Ikhtikar Ahmed acceded to the
request, and gave, to Mohd. Zuber, the sum of ₹ 5.5 lakhs,
as asked by him, comprising 10 packets of currency notes of
rupees 100/-each and 8 packets of currency notes of ₹ 500/-
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 2 of 76

each. Carrying the said cash, Mohd. Zuber and Mohd.
Yasir left the shop of Ikhtikar Ahmed at about 5 PM.
Thereafter, Ikhtikar Ahmed communicated, several times,
with his nephew Mohd. Zuber, on his mobile No.
9268634480, and was assured that, after executing the deal,
Mohd. Zuber would return home. However, at 11:30 PM,
the mobile phone of Mohd. Zuber was „switched off‟. On
his nephew failing to return home, Ikhtikar Ahmed began to
suspect that Mohd. Yasir had kidnapped him, out of greed
for the money that he was carrying.

(ii) In the circumstances, Ikhtikar Ahmed approached the
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Police Post at Turkman Gate, at about 9:50 AM on 15 June,
2012, and recorded his complaint (Ex. PW-8/A), to the
above effect, to SI Mohit Yadav (PW-32).

(iii) In the circumstances, PW-32 SI Mohit Yadav
endorsed the statement (Ex. PW-32/A) of Ikhtikar Ahmed,
and had an FIR registered, for offence punishable under
Section 365 of the IPC.

(iv) Thereafter, PW-32 SI Mohit Yadav interrogated
Mumtaz Begum (PW-4), the mother of Mohd. Zuber, who
revealed that Mohd. Yasir had visited her house between 7
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PM and 8 PM on 14 June, 2012, whereafter Mohd. Zuber
and Mohd. Yasir left the house, together, carrying the
amount of ₹ 5.5 lakhs.
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(v) Accordingly, PW-32 SI Mohit Yadav visited the
house of Mohd. Yasir, but could not find him there.

(vi) Secret information was received, to the effect that
Mohd. Yasir, along with a friend, was present near Delite
Cinema. Accordingly, a raiding party, comprising of HC Raj
Kumar, Ikhtikar Ahmed, Ansar Ahmed (PW-9) and Nasir,
was constituted by PW-32 SI Mohit Yadav, which left for
Delite Cinema, where the secret informer pointed towards
Mohd. Yasir, who was standing there with his friend Mohd.
Faizan. Mohd. Yasir and Mohd. Faizan were, thereupon,
apprehended and brought to the Police Post, Turkman Gate.

(vii) During their interrogation, it was revealed that Mohd.
Yasir and Mohd. Faizan had murdered Mohd. Zuber, and
that the dead body of Mohd. Zuber was lying in a Santro
car, with registration No. DL-4C-J-4773, which had been
borrowed from Mohd. Maviya (PW-7), and that the amount
of ₹ 5.5 lakhs, being carried by Mohd. Zuber had also been
looted by them. The interrogation further revealed that, out
of the said amount, ₹ 75,000/-was given, by Mohd. Yasir to
Mohd. Wasim (PW-5), from whom he had taken a loan of ₹
50,000/-, and asked Mohd. Wasim to pay ₹ 25,000/- to
Mohd. Abdul Basit (PW-6), from whom he had taken a loan
of ₹ 25,000/-. Mohd. Yasir and Mohd. Faizan disclosed
that they could point out the car and the dead body,
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whereupon the Police Party, accompanied by PW-8 Ikhtikar
Ahmed, PW-9 Ansar Ahmed and Mohd. Nasir, proceeded
to Gandhi Market, Mata Sundari Road, where Mohd.Yasir
and Mohd. Faizan pointed towards the Santro car DL-4C-
J-4773, which was standing there. They also pointed towards
the dead body lying in the said car. Pointing Out Memos
were prepared accordingly. The crime team was summoned,
which inspected and photographed the car. The dead body of
Mohd. Zuber was found, in the car, between the rear and
front seats, covered with a polythene. A surgical blade was
also recovered which, as per the disclosure statement of
Mohd. Yasir and Mohd. Faizan, was the weapon of offence,
used to kill Mohd. Zuber. Fingerprints were lifted from the
car, and exhibits were seized. The key of the car was also
recovered, on a personal cursory search of Mohd. Yasir. The
dead body of Mohd. Zuber was sent to the mortuary of the
Maulana Azad Medical College (MAMC), for preservation.

(viii) Mohd.Yasir and Mohd. Faizan were, thereupon,
arrested. The personal search of Mohd. Yasir resulted in the
recovery of one Nokia make mobile phone with Vodafone
connection No. 9899367446 and ₹ 1000/-, whereas the
personal search of Mohd. Faizan resulted in recovery of one
Nokia make mobile phone with connection No. 9718321626
and cash of ₹ 600/-.

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(ix) Thereafter, the disclosure statements of Mohd.Yasir
and Mohd. Faizan were recorded, wherein they disclosed
that they had concealed their bloodstained clothes and the
amount stolen from Mohd. Zuber in their respective houses.
Additionally, Mohd. Yasir disclosed that he had hidden the
mobile phone of the deceased Mohd. Zuber at his house.
The accused Mohd. Yasir and Mohd. Faizan offered to have
the said items recovered from their respective houses.

(x) Mohd. Yasir, thereafter, led the Police Party to his
house at No. 3206, Gali Pahari Wali, Fatak Teliyan, Delhi,
wherefrom he produced bloodstained blue jeans, a brown
check shirt and bloodstained black and white Reebok shoes,
from the almirah in the courtyard. These were seized and
sealed in separate pullandas . Mohd. Yasir also produced
cash of ₹ 2.23 lakhs from the locker of the said almirah ,
which was also seized and sealed.

(xi) Mohd. Faizan led the police party to his house at
1132, Bazaar Matia Mahal, Jama Masjid, Delhi wherefrom
the almirah , he produced his bloodstained clothes,
comprising one black and grey and one blue and white shirt.
These clothes were also sealed. Mohd. Faizan also produced
a black Samsung make mobile phone, stating that it
belonged to the deceased Mohd. Zuber. The said phone was
also seized and sealed. Mohd. Faizan further produced cash
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of ₹ 245,900/- from the bed, which was also seized and
sealed.

(xii) The Police Party returned, thereafter, to the Police
Station, and further investigation was handed over to Insp.
Satish Malik (PW-33).

(xiii) The I/O Insp. Satish Malik (PW-33) proceeded,
thereafter, to the mortuary of MAMC where, after
conducting inquest, the dead body of Mohd. Zuber was sent
for post-mortem whereafter, the dead body was handed over
to his relatives. The exhibits, including viscera, blood
sample, etc., were seized by the I/O.

(xiv) The statements of PW-5 Mohd.Wasim and PW-6
Mohd. Abdul Basit were recorded, during investigation, and
the amounts of ₹ 50,000/-and ₹ 25,000/-, paid to them by
Mohd. Yasir, seized. It was revealed, therefrom, that Mohd.
Yasir had actually paid ₹ 75,000/-to PW-5 Mohd. Wasim,
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at about 2 AM on 15 June, 2012, requesting him to pay ₹
25,000/–, out of the said amount, to Mohd. Abul Basit (PW-
6), against the loan, taken by Mohd.Yasir from him.
Accordingly, Mohd. Wasim (PW-5) handed over ₹ 25,000/-
to Mohd. Abul Basit (PW-6) at 2:30 AM.

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3. On 17 June, 2012, Mohd. Yasir and Mohd. Faizan were
produced before the doctor at the Lok Nayak Jayprakash Narayan
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(LNJP) Hospital, where the blood sample was taken. They were,
thereafter, sent to judicial custody.

4. Forensic inspection of the Santro car, in which the dead body
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of Mohd. Zuber had been found, was conducted on 18 June,
2012. Some strands of hair, found on the floor of the car, were
seized and sealed.

5. All seized exhibits were sent for analysis. Certain chance
fingerprints, which were also found, were sent to the Finger Print
Bureau for the purpose of comparison. Copies of Call Detail
Reports (CDRs), and Customer Application Forms, of the mobile
phones belonging to Mohd. Yasir and Mohd. Faizan, were
obtained, collected and analysed.

6. Challan was, thereafter, filed, against Mohd.Yasir and
Mohd. Faizan, for committing offences punishable under Sections
364/365/392/397/302/411/34 IPC.

7. After complying with Section 207 of the Code of Criminal
Procedure (Cr.P.C.), the case was committed to the Court of
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Sessions on 9 October, 2012, where it was registered as Sessions
Case No 69/2012.

8. Consequent to receipt of report from the Finger Print
Bureau, supplementary challan was filed before the court of the
learned MM, which, after compliance with Section 207 of the
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Cr.P.C., was committed to the Court of Sessions on 30 April,
2013, and registered as Sessions Case 94/2013, which was clubbed
with the main Sessions Case 69/2012.

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9. On 23 November, 2012, charges were framed against
Mohd. Yasir and Mohd. Faizan under Sections 302/34 IPC, with
separate charge against Mohd. Yasir under Section 392/307 and
Section 411 IPC, and against Mohd. Faizan under Section 411
IPC. Both the accused pleaded not guilty and claimed trial.

The Evidence

10. In the backdrop of the above, it would be appropriate to
examine the evidence available in the case.

11. The prosecution led the evidence of 34 prosecution
witnesses (PW-1 to PW-34), whereas Mohd. Yasir and Mohd.
Faizan led the evidence of the four defence witnesses (DW-1 to
DW-4).

12. It would be in the fitness of things to refer to the relevant
portions of the testimonies of these witnesses, under various heads,
seriatim .

A. Events prior to the incident

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A.1 Borrowing, by Mohd. Yasir, of ₹ 50,000/-from Mohd.
Wasim (PW-5) and ₹ 25,000/-from Abdul Basit (PW-6):


13. PW-5 Mohd. Wasim, a relative of Mohd. Yasir, deposed,
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in his examination-in-chief on 15 February, 2013, that, about 2 to
2 ½ months prior to the murder of Mohd. Zuber, Mohd. Yasir
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had borrowed ₹ 50,000/- from him and that, on 15 June, 2012,
between 1.30 and 2.00 AM, Mohd. Yasir called him to his house,
where he gave him ₹ 75,000/- in cash, stating that ₹ 50,000/-, out
of the said amount, was towards repayment of the loan taken from
him, and requested him to pay the balance ₹ 25,000/- to Abdul
Basit (PW-6) from whom he had borrowed the said amount. He
further stated that, as directed by Mohd. Yasir, he paid ₹ 25,000/-
to Abdul Basit (PW-6), the very same night. He further stated that
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on the next day i.e. 16 June, 2012, on being summoned, Abdul
Basit and he went to the Police Station, where they were informed
of the murder of Mohd. Zuber, whereupon, he handed over, to the
police, the cash amount of ₹ 50,000/- given to him by Mohd.
Yasir, which was seized vide Seizure Memo Ex. PW-5/A. He
identified the said cash, which was desealed and shown to him in
Court.

14. Ex. PW-5/A, which was signed by Insp. Satish Malik (PW-
33), as well as by Const. Sandeep (PW-28) and Const. Mukesh
(who was not made a witness) notes that, on being summoned,
PW-5 Mohd. Wasim had come to the Police Station, and handed
over ₹ 50,000/-to Insp. Satish Malik (PW-33), stating that the said
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 10 of 76

amount was part of ₹ 75,000/-which had been given to him by
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Mohd. Yasir at about 2.00 AM on 15 June, 2012, purportedly
representing the amounts borrowed by him, from Mohd. Wasim
(PW-5) and Abdul Basit (PW-6). The memo notes the statement of
Mohd. Wasim that, out of the said amount of ₹ 75,000/-he had
handed over ₹ 25,000/-to Abdul Basit (PW-6).

15. PW-6 Abdul Basit identified Mohd. Yasir in Court, and
supported the above version by acknowledging that about 2 months
prior to the murder of Mohd. Zuber, Mohd. Yasir had borrowed
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₹ 25,000/-from him and that, at about 2.30 AM on 15 June, 2012,
Mohd. Wasim had come to his house and given him ₹ 25,000/-,
stating that the said amount had been given to him by Mohd.
Yasir as representing the loan taken by him from Abdul Basit. He
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further deposed that, on the next date, i.e. 16 June, 2012, Mohd.
Wasim, (PW-5) and he, ie. Abdul Basit, went to the Police station,
where they were informed about the murder of Mohd. Zuber,
whereupon he, too, handed over to the police, the cash amount of ₹
25,000/-given to him by Mohd. Wasim, which was duly seized
vide Seizure Memo Ex.PW-6/A, which was signed by him. As in
the case of Mohd. Wasim (PW-5), he, i.e. Abdul Basit also
identified, in the Court, the said cash amount of ₹ 25,000/- when
shown to him.

16. Ex. PW-6/A, i.e. the Seizure Memo relating to ₹ 25,000/-
handed over to the police by Abdul Basit (PW-6) was, for all
intents and purposes, identical to Ex. PW-5/A and it does not,
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therefore, require to be referred to in detail. Suffice it to state that
Ex. PW-6/A was also signed by Insp. Satish Malik (PW-33) and
witnessed by Const. Sandeep (PW-28) and Const. Mukesh, as well
as by Abdul Basit (PW-6).

17. Insp. Satish Malik (PW-33), in his examination-in-chief on
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15 March, 2014, also vouched for the above facts, and went on to
state that the parcels containing the amount of ₹ 50,000/-, given by
PW-5 Mohd. Wasim and ₹ 25,000/-given by PW-6 Abdul Basit,
were handed over, by him, to the MHC(M). He was not cross-
examined on this aspect. The fact of the said deposit, with the
MHC (M) [PW-34 HC Kishan Chand], by Insp Satish Malik, also
stands acknowledged by the evidence of PW-34 itself, in his
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examination-in-chief on 29 March, 2014.

18. The fact of Mohd. Yasir having borrowed ₹ 50,000/-from
Mohd. Wasim and ₹ 25,000/-from Abdul Basit, and of his having
returned the said amount, totalling ₹ 75,000/- to Mohd. Wasim
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on 14 June, 2012, thereby stands established.

A.2 Borrowing of the car by Mohd. Yasir:

19. PW-7 Mohd. Maviya, from whom Mohd. Yasir had
allegedly borrowed the Santro car, wherein the dead body of
Mohd. Zuber was found, deposed, in his examination-in-chief,
that, about three to four months prior to the murder, he had
purchased the said Santro car registered DL-4C-J-4773 from
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Mr. A.N. Sharma (PW-10) for ₹ 58,000/-. He stated that, on 14
June, 2012, from about 6.00 PM, Mohd. Yasir had “made calls”
to his mobile phone 9210099689, requesting him for permission to
borrow his car and had met him near Faiz Ilahi Masjid at about
9.30 PM; accompanied by Mohd. Zuber, reiterating the request
for permission to borrow his car for about 1 to 1 ½ hours, which he
allowed. He identified the car from the photographs ex. PW-1/1 to
PW-1/21, which were shown to him in court. He stated that, after
having left the premises in his car, he had made several attempts to
call Mohd. Yasir but did not receive any response. Ultimately, at
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about 6.00 AM on the next day 15 June, 2012, he stated that he
visited the house of Mohd. Yasir, but found him absent, though
Mohd. Zuber‟s mother and his two uncles were there. He stated
that he met Yasir, next, at about 4-4.30 PM on the same day i.e.
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15 June, 2012, at the Police Post, where he remained till about
8.00 PM, and that, during the said period, he was interrogated by
Insp. Satish Malik, (PW-33) for about 30 minutes.

20. The CDRs relating to Mobile No. 9899367446 (Ex. PW-
30/A), which was used by Mohd. Yasir, and which are supported
by the requisite certificate under Section 65-B of the Evidence Act
(Ex. PW-30/B) stand proved by PW-30 Deepak, the Nodal Officer
of Vodafone Mobile Service Ltd, vide his examination-in-chief on
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15 January, 2014, which was not subjected to cross examination.
A glance at the said CDRs reveals that, in fact, calls were made,
from No. 9899367446 to No. 9210099689 (i.e. the No. of PW-7
Mohd. Maviya) at 18:07:07, 19:19:06, 19:46:34, 20:01:42,
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20:18:32, 20:19:35, 20:50:47, 20:54:12, 21:06:33 and 21:19:40
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hours on 14 June, 2012, whereafter the calls ceased. This
vouchsafes not only the statement, of PW-7 Mohd. Maviya, that
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Mohd. Yasir had been calling him, from 6 PM on 14 June, 2012,
but that, in fact, Mohd. Yasir was desperate to be allowed to
borrow the car.

21. It is important to note, here, that the Customer Application
Form (Ex. PW-14/A) and connected documents in the form of the
Voter Identity Card, etc., which were provided by Deepak (PW-30)
indicate that the No. 9899367446 was issued, not to Mohd. Yasir,
but to Mohd. Saddam Hussain (PW-14). However, the fact that he
had allowed Mohd. Yasir to use the said No. was admitted, by
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Mohd. Saddam Hussain, in his statement, dated 25 August, 2012,
under Section 164 of the Cr.P.C. (Ex. PW-14/1) though, during
examination-in-chief before the learned ASJ, Mohd. Saddam
Hussain turned hostile, and sought to deny having ever been issued
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the No. 9899367446, as well as his statement dated 25 August,
2012 supra . The said “hostility” of Mohd. Saddam Hussain does
not, however, perturb us, as the CDRs relating to No. 9899367446,
seen in juxtaposition with the deposition of PW-7 Mohd. Maviya,
are sufficiently clinching, by way of evidence, to prove the usage,
by Mohd. Yasir, of the No. 9899367446.

22. The fact that PW-7 Mohd. Maviya was the owner of the
Santro car DL-4C-J-4773 stands proved by the deposition, in court,
of PW-10 A.N. Sharma read with PW-12 Dina Nath. PW-10 A.N.
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Sharma deposed, in his examination-in-chief on 26 August, 2013,
that he had purchased the said car, from the Santro company and
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had, on 27 June, 2010, sold the car to PW-12 Dina Nath. He
further submitted that, despite several requests on his part, PW-12
Dina Nath did not transfer the car in his name. PW-12 Dina Nath
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stated, in his examination-in-chief on 26 August, 2013, that he
had sold the said car to PW-7 Mohd. Maviya.

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23. The fact that, on 14 June, 2012, Mohd. Yasir had borrowed,
from Mohd. Maviya, the Santro car, in which the dead body of
Mohd. Zuber was later found, and that Mohd. Yasir was desperate
to get possession of the car from Mohd. Maviya, thereby, stand
proved.

B. Lending of money by PW-8 Ikhtikar Ahmed to Mohd.
Zuber and Mohd. Yasir, finding of dead body of Mohd. Zuber
next morning, apprehension and interrogation of Mohd. Yasir
and Mohd. Faizan and recoveries effected from them

24. PW-8 Ikhtikar Ahmad, the uncle of Mohd. Zuber deposed,
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in his examination-in-chief on 18 February, 2013, that, on 14
June, 2012, at about 3.30 PM, Mohd. Zuber had come to his shop
accompanied by Mohd. Yasir, requesting him to advance a loan of
₹ 5.5 lakhs, so that he could purchase mobiles, stating that he had
settled a deal with a dealer of mobiles for ₹ 10.5 lakhs, out of
which advance ₹ 5 lakhs had already been paid and that, in case he
defaulted in paying balance ₹ 5.5 lakhs, the earlier paid amount of
₹ 5 lakhs would be forfeited. He, thereupon, advanced the
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requested loan of ₹ 5.5 lakhs to Mohd. Zuber, informing his wife
(who was not made a witness) of the said fact. Mohd. Zuber and
Mohd. Yasir, thereupon left with the said amount, stating that they
would return within 2-3 hours. However, he deposed that, on their
failing to do so, he called Mohd. Zuber, on his mobile number,
9268634480, at about 11.00 PM, and was informed that the deal
had not yet been executed, and that Mohd. Zuber would return
after the goods were delivered to him. He tried the mobile No. of
Mohd. Zuber an hour later, at 12 midnight, but found the No. to be
switched off. Thereafter, he made efforts to search for Mohd.
Zuber, but without success. He further acknowledged that he did
not make any inquiry at the house of Mohd. Yasir, though he knew
him very well, being of the same biradari (caste).

25. PW-8 Ikhtikar Ahmed further deposed that, on finding it
impossible to effect any communication with Mohd. Zuber, he,
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on the next day i.e. 15 June, 2012, lodged a complaint (Ex.PW-
8/A) with the police, between 9 AM and 9:30 AM, alleging that he
suspected Mohd. Yasir to have kidnapped Mohd. Zuber.
Thereafter, at about 2.00 to 2.15 PM, he went to the residence of
Mohd. Zuber, where he was met by Mumtaz Begum (PW-4) and
Ansar Ahmed (PW-9) (the uncle of Mohd. Zuber) and Mohd.
Nasir (who was not made a witness), and found that the entire
neighborhood had gathered there. The police also arrived at the
spot, and interrogated Ansar Ahmad (PW-9) and Mohd. Nasir.
PW-8 Ikhtikar Ahmed went on to state that, at about 2.45 PM, the
police received a call that Mohd. Yasir and his friend were seen
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near the Delite Cinema, whereupon they proceeded to the spot,
accompanied by Ansar Ahmad (PW-9), and himself. Near the
Delite Cinema, they found Mohd. Yasir and Mohd. Faizan (whose
identity they did not know at the time). The Police team
apprehended Mohd. Yasir and Mohd. Faizan, and brought them
to the Police Post, Turkman Gate, where they were interrogated, on
which occasion the companion of Mohd. Yasir disclosed his name
to be Mohd. Faizan. Mohd. Yasir and Mohd. Faizan both
confessed to having killed Mohd. Zuber and concealed his body in
a Santro car, and offered to disclose the spot where they could find
the car. PW-8 further went on to state that Mohd. Faizan and
Mohd. Yasir led the police team, accompanied by Ansar Ahmed
(PW-9), Mohd. Nasir and himself, to the Santro car, where the
key of the car was produced, by Mohd. Yasir, from his pant pocket,
using which the car was opened and photographs were taken by the
members of the Mobile Crime Team, who had been called to the
spot in the meanwhile. He further deposed that, inside the car, a
dead body, wrapped in a polythene, was found, which was
discovered to be that of Mohd. Zuber was found, and that the
body bore an injury at the neck. Near the body, a blood stained
surgical blade was found, which was sealed in a pullanda and
sealed vide seizure memo Ex. PW-8/E. Apart from the said blade, a
portion of the blood stained seat cover, plastic sheet with which the
dead body had been covered and car key were also sealed and
seized vide Seizure Memos exhibited as Ex. PW-8/C, PW-8/D and
PW-8/F, all of which bore the signature of PW-8 Ikhtikar Ahmad.
Mohd. Yasir and Mohd. Faizan were arrested, thereafter, vide
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Arrest Memos Ex. PW-8/G and PW-8/H, both of which bore his
signature. They were also subjected to personal search vide
Personal Search Memos Ex. PW-8/I and PW-8/J, which were also
signed by him. The dead body of Mohd. Zuber was, thereafter
dispatched to the Hospital mortuary.

26. PW-8 Ikhtikar Ahmed went on to depose that, thereafter, the
disclosure statements of Mohd. Yasir and Modh. Faizan were
recorded, which were exhibited Ex. PW-8/K and Ex. PW-8/L, and
which were both signed by him on every page. He confirmed that
Mohd. Yasir had stated, in his disclosure statement (Ex.PW-8/A)
that he had hidden his share of the amount stolen from the deceased
Mohd. Zuber at his house, and that he could get the said amount, as
well as his blood stained clothes and shoes, recovered, and that
Mohd. Faizan in his disclosure statement (Ex.PW-8/L) stated that
he had concealed his share of the amount stolen from the deceased
Mohd. Zuber at his house, where he had also kept the mobile
phone and the blood stained clothes of Mohd. Zuber. He further
confirmed that, subsequently, Mohd. Yasir lead the police team to
his house where, from his almirah , he retrieved Rs 2.23 lakhs in
cash, blood stained jeans, a blood stained check shirt and blood
stained Reebok shoes which were all sealed with seal mark „MY‟
and seized, vide memos Ex. PW-8/M, Ex. PW-8/N both of which
were signed by him. Thereafter, Mohd. Faizan led the police team
to his house, where from the Diwan, he retrieved ₹ 245,900/-which
was sealed with a seal marked „MY‟, as well as a bloodstained
black pant and check shirt as well as one black Samsung make
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 18 of 76

mobile phone sealed and seized vide Seizure Memos Ex. PW-8/P
and Ex. PW-8/Q, which were also signed by him. He also
acknowledged that the Police team had prepared the Site Plans of
the sites of recovery, which were exhibited as Ex.PW-8/R and Ex.
PW-8/S, which were also signed by him.

27. The Call Detail Records (CDRs) of Mobile No. 9268634480,
operated by Tata Tele services, and belonging to Mohd. Zuber,
were provided by Mr. Rajeev Ranjan (PW-29), Nodal Officer, Tata
Tele services, and were exhibited as Ex. PW-29/80. Supporting
documents, in the form of the Customer Application Form, Voter
Identity Card, etc., along with the requisite certificate under
Section 65B of the Indian Evidence Act, 1872, were also produced
th
by PW-29, and proved by him in his examination-in-chief on 15
January, 2014. A perusal of the said CDRs reveals that, at 11.06
th
PM on 14 June, 2012, a call, lasting 24 seconds was, indeed,
made, to the Mobile No. of Mohd. Zuber, from the mobile No. of
PW-8 Ikhtikar Ahmed, which was 9212326134.

28. Ex. PW-8/A, when read, is found to set out the facts, relating
to the request for ₹ 5.5 lakhs, made by Mohd. Zuber to PW-8
Ikhtikar Ahmed, his lending the said amount, the departure of
Mohd. Zuber, carrying the said amount, in the company of his
friend Mohd.Yasir, and the repeated efforts made, thereafter, by
PW-8 Ikhtikar Ahmed, to contact Mohd. Zuber, as stated by him in
his deposition and referred to hereinabove. The said statement, of
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Ikhtikar Ahmed, has been signed by the Incharge Police Post
th
Turkman Gate, on 15 June, 2012.

29. It is also seen that Ex. PW-8/B to PW-8/S, the particulars of
which are as per the above statement of PW-8 Ikhtikar Ahmed,
were all signed by SI Mohit Yadav, the Incharge of PP Turkman
Gate (PW-32), and witnessed by Ikhtikar Ahmed (PW-8), Ansar
Ahmed (PW-9), Mohd. Nasir and HC Raj Kumar.

30. PW-4 Mumtaz Begum, the mother of the deceased Mohd.
th
Zuber deposed, in her examination-in-chief on 15 February, 2013,
that Mohd. Zuber used used to purchase and sell mobiles. She
th
stated that, on 14 June, 2012, at about 5.45 PM, Mohd. Zuber
reached home carrying, cash of Rs. 5.5 lakhs, which he said, he had
obtained from his uncle Ikhtikar Ahmed (PW-8), to buy mobiles.
She further stated, at about 7.00 – 8.00 PM, Mohd. Yasir (whom
she identified in Court) came to their house, whereafter Mohd.
Yasir and Mohd. Zuber left, Mohd. Zuber carrying Rs. 5.5 lakhs
in cash. She stated that Mohd. Zuber was wearing blue jeans and
red shirt with black lines and said that he was going to Karol Bagh
for buying mobiles. She identified Mohd. Yasir in court.

31. PW-9 Ansar Ahmed, the uncle of Mohd. Zuber, in his
rd
examination-in-chief on 23 April, 2013 confirmed the fact that,
th
on 15 June, 2012, he had gone to the house of his sister Mumtaz
Begum (i.e. the mother of Mohd. Zuber), on his being informed,
by her, that Mohd. Zuber had not returned home since the previous
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night, and that, while they were present there, PW-8 Ikhtikar
Ahmed came there with the police, who recorded the statement of
Mumtaz Begum. Thereafter, he confirmed having proceeded, with
the police and PW-8 Ikhtikar Ahmed to the house of Mohd. Yasir,
but found no one there, whereafter they returned to Police Post
Turkman Gate. He also stated that, at the Police Post Turkman
Gate, the Police received a call, whereafter the police officials
proceeded, which PW-8 Ikhtikar Ahmed, towards Delight Cinema,
but that he did not accompany them, as he went to perform his
prayers. (However, in cross-examination, he stated that he did not
accompany the police team as they did not ask him to do so, and
that, on that day, he did not offer prayers.) He stated that he
returned after about half an hour, and found both the accused, i.e.
Mohd. Yasir and Mohd. Faizan, at the Police Post, being
interrogated. Thereafter, about 1 ½ hours later, the Police personnel
left Police Post Turkman Gate, along with Mohd. Yasir and
Mohd. Faizan, to Mata Sundari Road, and he followed them. Once
they reached there, Mohd. Yasir gave the key, of the Santro car,
parked there, to the IO, who called for five other persons, who
arrived there, inspected the car and opened it using the key given
by Mohd.Yasir. Inside the car, they found the dead body of Mohd.
Zuber, covered in a plastic sheet. He also testified to the fact that
there was blood, in the car, at various places. He further confirmed
that photographs of the car were taken before it was opened, as
well as thereafter. He further stated that, from the car, one surgical
blade was retrieved, which was sealed and seized by the Police,
exhibited as Ex. PW-8/B, which bore his signature. He also
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confirmed that a piece of the rear seat, a piece of rexin from the
rear right side door, and the seat cover of the front seat, were also
sealed and seized, vide Seizure Memo Ex. PW-8/C, PW-8/E and
PW-9/A, all of which bore his signature. Thereafter, the Police
officials recorded the disclosure statements of Mohd. Yasir and
Mohd. Faizan. The contents of the said disclosure statements, as
stated by him, were similar to the version provided by PW-8
Ikhtikar Ahmed. He further confirmed that, after the recording of
the said statements, they proceeded to the house of Mohd. Yasir
and Mohd. Faizan, and also deposed with respect to the retrieval
of various items therefrom, at the instance of the said accused. PW-
9 identified Mohd. Yasir and Mohd. Faizan in court, as well as
the various exhibits referred to hereinabove, which were shown to
him.

32. PW-32 SI Mohit Yadav, was posted at the Police Post
th
Turkman Gate deposed, in his examination-in-chief on 28
th
January, 2014, that, at about 9:45 AM on 15 June, 2012, Ikhtikar
Ahmed (PW-8) got a statement, regarding the kidnapping of
Mohd. Zuber, recorded (Ex. PW-8/A), whereupon he made an
endorsement on the said statement and sent it to HC Raj Kumar
(who was not co-opted as a witness), for the lodging of an FIR,
under Section 365 of the IPC. He stated that, thereafter, he went
with Ikhtikar Ahmed to the residence of Mohd. Zuber, where they
met his mother Mumtaz Begum (PW-4) who, in her statement
recorded at the occasion, stated that her son Mohd. Zuber had been
last seen with Mohd.Yasir, and had not been seen since the
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previous night. From there, they proceeded to the residence of
Mohd. Yasir, where they were informed that he, too, was missing
since the previous night. Thereafter, they returned to the Police
Post at Turkman Gate, with Ikhtikar Ahmed (PW-8) and Ansar
Ahmed (PW-9) where HC Raj Kumar gave him a copy of the FIR
and the original rukka . SI Mohit Yadav further stated that, at about
2:45 PM, he received secret information that Mohd.Yasir and
Mohd. Faizan were seen near the Delite Cinema, whereupon he
proceeded to the spot, with HC Raj Kumar, Ansar Ahmed (PW-9)
and Mohd. Nasir (who was not made a witness). (In cross
examination, however, SI Mohit Yadav stated that Ikhtikar Ahmed
and Ansar Ahmed had remained at the Police Post.) Having
reached the spot near Delite Cinema, SI Mohit the other stated that
they apprehended Mohd. Yasir and Mohd. Faizan, on their being
pointed out, to him, by Ikhtikar Ahmed, and recorded their
disclosure statements. Mohd. Yasir stated, in his disclosure
statement (PW-8/K) that he had hidden the clothes and shoes, worn
by him at the time of committing the murder of Mohd. Zuber, at
his house, along with his share of the money stolen from Mohd.
Zuber. Similarly, Mohd. Faizan stated, in his disclosure statement
(PW-8/L) that he, too, had hidden his clothes, the amount stolen
from Mohd. Zuber, and his mobile phone, at his house. SI Mohit
Yadav further deposed that, from there, they proceeded to Gandhi
Market, along with Ansar Ahmed (PW-9) and Mohd. Nasir, where
Mohd. Yasir and Mohd. Faizan pointed out the Santro car to them,
regarding which separate Pointing Out Memos (Ex. PW-8/U and
PW-32/B) were prepared by him. The Mobile Crime Team was,
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thereupon, summoned, who arrived and took photographs of the
car, as well as chance prints. The key of the car, which was given
by Mohd. Yasir, was handed over to the Mobile Crime Team who,
using the same, opened the car. The dead body of Mohd. Zuber
wrapped in polythene, was found in the car, along with a surgical
blade lying near it. He stated that the surgical blade, a piece of the
bloodstained back seat cover, a piece of the polythene using which
the body of Mohd. Zuber had been covered, a piece of the
bloodstained driver seat and a piece of the bloodstained rexin,
found in the car, were sealed and seized by him vide Seizure
Memos exhibits PW-8/B, PW-H/C, PW-H/D, PW-9/D and PW-
8/D respectively, all of which were signed by Mohd. Yasir,
Mohd. Faizan, and him. The key of the car, which had been given
to them by Mohd. Yasir was also seized vide Seizure Memo Ex.
PW-8/F. In Court, he was shown Exhibits PW-1/1 to PW-1/21,
which were identified by him as the photographs of the car, taken
at the spot. Thereafter, the dead body of Mohd. Zuber was sent to
the mortuary of the Lok Nayak Jayprakash Narayan (LNJP)
Hospital (hereinafter referred to as “the Hospital”), and the Site
Plan of the area was prepared by him, exhibited as Ex. PW-8/T,
which was also signed by him, Mohd. Yasir and Mohd. Faizan.

33. PW-32 SI Mohit Yadav further stated that, from the Gandhi
Market area, they proceeded to the residence of Mohd. Yasir, who
produced, from an almirah , a bloodstained shirt, bloodstained jeans
and bloodstained Reebok shoes, which were stated, by him, to have
been worn at the time of commission of the crime. These were
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sealed and seized vide Seizure Memo Ex. PW-8/N, which was
signed by him and Mohd. Yasir. Mohd. Yasir further produced,
from the almirah , cash of ₹ 2.23 lakhs, which was also seized vide
Seizure Memo Ex. PW-8/M. He prepared a Site Plan of the said
place, which was exhibited as Ex. PW-8/R.

34. From the residence of Mohd. Yasir, according to the
statement of PW-32 SI Mohit Yadav, they proceeded to the
residence of Mohd. Faizan, who also produced, from an almirah
in the room, bloodstained pants and shirt, stating that he had been
wearing these at the time of the incident. The said clothes were,
therefore, seized vide Seizure Memo Ex. PW-8/P. Mohd. Faizan
also produced are mobile phone (seized vide Ex. PW-8/Q) and cash
of ₹ 2,45,900/- from the Diwan in the room, which was also seized
vide Seizure Memo Ex. PW-8/O. Both the said Seizure Memo‟s
were signed by Mohd. Faizan and by him, i.e. PW-32 SI Mohit
Yadav. SI Mohit Yadav further stated that he prepared a Site Plan
of the place of recovery at the residence of Mohd. Faizan, which
was also signed by Mohd. Faizan and by him, and exhibited as Ex.
PW-8/S. From the residence of Mohd. Faizan, they returned to
the Police Station, where the case property was deposited, by him,
i.e. SI Mohit Yadav, with the MHC(M). Further investigation was
entrusted to Insp. Satish Malik (PW-33). SI Mohit Yadav further
deposed that he prepared the Arrest Memos (Exh. PW-8/G and
PW-8/H), as well as the Personal Search Memos (Ex. PW-8/I and
PW-8/J) of Mohd. Yasir and Mohd. Faizan, which were signed
by the said accused and by him. In court, PW-32 SI Mohit Yadav
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identified Mohd. Yasir and Mohd. Faizan, as well as all the
exhibits referred to in his statement. The fact of deposit, by SI
Mohit Yadav, of the seized case property, with the MHC (M), also
stands acknowledged by the MHC (M) SC Kishan Chand (PW-34),
th
in his examination-in-chief on 29 March, 2014.

35. PW-1 Const. Dinesh Kumar, of the Mobile Crime Team
th
deposed, in his examination-in-chief, that, on 15 June, 2012, he
reached Gandhi Market, Mata Sundari Road along with SI Pankaj
(PW-16) and ASI Pawan Kumar (PW-3) where they noticed a
white Santro car, with registration No. DL-4CJ-4773, with its
windows closed. On opening the door of the said car, a dead body
was found in the rear seat. He further deposed that he took 21
photographs of the spot, exhibited as Ex. PW-1/1 to PW-1/21.

th
36. PW-16 SI Pankaj Kumar, in his examination-in-chief on 26
October, 2013, vouchsafed the above statement of PW-1 Const.
Dinesh Kumar, regarding the finding of the dead body in the white
Santro car DL 4 CJ 4773. Photographs Ex. PW-1/16 to PW-1/21
were shown to him, and identified, by him, as the photographs of
the car, and exhibits PW-1/1 to PW-1/15, the photographs of the
car, taken in his presence. He further stated that, when his team
reached Gandhi Market, SI Mohit Yadav (PW-32), along with his
staff, met him, and that the car had also been inspected by the
fingerprint expert ASI Pawan Kumar (PW-3). He further stated
that, after the car was opened by a member of the Mobile Crime
Team, a dead body was found wrapped in a maroon coloured
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polythene, on the rear seat of the car, and there was a lot of blood
in the car. It was further stated that the deceased had sustained an
injury on his throat, and that one surgical blade was also found on
the rear door frame at the right side of the car. He stated that, after
inspection of the scene of the crime, the crime report was prepared,
which was exhibited as Ex. PW-16/A, and which bore his
signature. Details of the fingerprints, as lifted by ASI Pawan
Kumar (PW-3), it was stated, were also contained in the said
report.

37. PW-3 ASI Pawan Kumar, the fingerprint expert of the
Mobile Crime Team, also supported the above statements, during
his examination-in-chief on 15 February, 2013, by acknowledging
th
that, at 5:20 PM on 15 June, 2012, he, along with SI Pankaj (PW-
16 and the photographer Const. Dinesh (PW-1) had reached
Gandhi Market, where they had met the police officials and the IO.
He attested to having seen the white Santro car DL 4 CJ 4773. He
stated that he was able to localise two fingerprints (Q-1 and Q-2)
on the rear view glass of the car and 8 chance prints, with one (Q-
3) on the right side of the body of the car, another (Q-4), on the left
rear window glass and 6 chance prints on the left rear window glass
inside the car (Q-5 to Q-10).

C. Registration of FIR

38. PW-2 HC Bhup Singh working as Duty Officer at PS Chadni
th
Mahal deposed that, at about 11 AM on 15 June, 2012, HC Raj
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Kumar had brought, to him, the rukka, signed by SI Mohit (PW-
32), which was endorsed by him vide Ex. PW-2/B, and that as per
the recital of evidence in the rukka, he registered FIR under Section
365 of the IPC, for kidnapping. He further stated that he gave a
copy of the FIR, and the rukka, to HC Raj Kumar, who left for the
Police station, to deliver the rukka and the FIR to the IO.

D. Dispatch of Samples to FSL

39. PW-15 HC Satish, who was working as MHC (M) and was
posted at PS Chandni Mahal confirmed, in his examination-in-chief
th
on 26 October, 2013, having sent nine sealed parcels to the
Forensic Science Laboratory (FSL), Rohini through Const. Saquid
Hussain (PW-11), and having received, from Const Saquid
Hussain, the copy of the Road certificate and original
acknowledgement issued by FSL. He further confirmed having sent
three sealed parcels, two bearing the seal of “LNH” and one
bearing the seal of “SN”, to FSL through Const. Sandeep Moun
(PW-28), and having received, later, the original acknowledgement
issued by the FSL in respect of the said exhibits. He confirmed that
all exhibits remained intact, while in his custody.

40. The above statement of PW-15 HC Satish stood vouchsafed
by the depositions of PW-11 Const. Saquid Hussain and PW-28
Const. Sandeep Moun, who confirmed having received the said
exhibits from PW-15 HC Satish, the deposit, thereof, at the FSL
Rohini, and the handing over, to PW-15 HC Satish, the original
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acknowledgement issued by the FSL and the Road certificates
relating to the said consignments. Neither of the said witnesses was
cross-examined.

E. Medical Evidence:

41. Having thus distilled the factual evidence forthcoming in the
present matter, we proceed to the medical evidence, as available
from the Hospital.

42. PW-18 HC Naveen, who, at the relevant time, was posted at
Police Post Turkman Gate, deposed, in his examination-in-chief on
th
20 November, 2013, that, as instructed by the IO SI Mohit Kumar
th
Yadav (PW-32), he, on 15 June, 2012, reached the mortuary of
the JPL Hospital, to guard the dead body of Mohd. Zuber and
th
that, on the next day, i.e. 16 June, 2012, Insp. Satish Malik (PW-
33) arrived at the hospital with Const. Brahmajeet (who was not
made a witness), and had the post-mortem, on the dead body of
Mohd. Zuber, done. He further deposed that, after the post-mortem,
the doctor handed over, to him, one pullanda duly sealed with the
seal of “MAMC JB 10”, containing the clothes of the deceased
Mohd. Zuber and another box containing his viscera, along with an
envelope addressed to the Director, CFSL, which were seized vide
Seizure Memo Ex. PW-18/A, which bore his signature. The said
deposition of PW-18 HC Naveen stands borne out by PW-18/A,
i.e. the Seizure Memo of “viscera and other articles”, which details
the above exhibits, and bears the signature of the IO inspector
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Satish Malik (PW-33), Const Brahmajeet and of himself, i.e. of HC
Naveen (PW-18).

43. PW-33 Insp. Satish Malik acknowledged, in his
th
examination-in-chief on 15 March, 2014, having taken over
investigation of the case relating to FIR No. 90/12, from SI Mohit
th
Yadav the other (PW-32) on 16 June, 2012, and having
interrogated Mohd. Yasir and Mohd. Faizan on the said day. He
identified them in Court. He further deposed that, thereafter, he
proceeded to the MAMC mortuary, accompanied by Ikhtikar
Ahmed (PW-8) and Ansar Ahmed (PW-9), who identified the dead
body as being that of Mohd. Zuber, relating to which the
statements given by them were exhibited as Ex. PW-9/B and Ex.
PW-8/B, both of which bore his signatures. (We find this to be
true, on a perusal of the said exhibits.) He further confirmed having
got the post-mortem of Mohd. Zuber done and, thereafter, having
handed over the dead body to Ansar Ahmed and Ikhtikar Ahmed.
He also confirmed the seizure of the exhibits handed over by the
doctor who conducted the post-mortem (PW-21 Dr Jatin Bodwal),
and that the Seizure Memos relating to the said exhibits were
prepared by HC Naveen (PW-18) and Const. Brahmajeet. He
confirmed that the parcels had been deposited with the MHC (M).
He, thereafter, went on to refer to the submission, by Mohd.
Wasim (PW-5), and Abdul Basit (PW-6), of the amounts of ₹
50,000/– and ₹ 25,000/–, to which reference has already been made
hereinabove. He further stated that the blood samples of
Mohd.Yasir and Mohd. Faizan were taken, sealed and seized vide
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Seizure Memo Ex. PW-19/A, whereafter they were produced
before the learned Metropolitan Magistrate and sent to Judicial
Custody (JC). The blood samples of Mohd.Yasir and Mohd.
Faizan were also deposited with the MHC (M). He further deposed
th
that, on 18 June, 2012, the Santro car, in which the body of
Mohd. Zuber had been found, was examined by a team from the
FSL, who pointed out the presence of hair strands in the car, which
were, accordingly, sealed by him with the seal “SM”, and seized,
vide Seizure Memo Ex. PW-33/C, in the presence of HC Kishan
Chand (PW-34) and HC Rakesh (who was not co-opted as a
witness). He also deposed that the chance prints, found on the car,
were sent for comparison, with a search slip, to the Finger Print
Bureau (FPB), whereas the seized exhibits were sent to FSL, for
their opinion. The weapon of offence was also sent to the forensic
department of the MAMC, for an opinion as to whether injury was
possible from the said weapon or not. He thereafter collected the
post-mortem report, as well as the CDRs relating to the mobile
phones of Mohd. Yasir, Mohd. Faizan and Mohd. Zuber.
Thereafter, he prepared the challan and filed it in the Court.

44. PW-33 Insp Satish Malik went on to depose, further, that
the opinion, from the forensic department of the MAMC, regarding
the possibility of the injury, on the body of the deceased Mohd.
Zuber, having been caused by the seized surgical blade, was
positive and that, as per the report from the FPB, the chance prints
of Mohd. Yasir were found identical with the search slip. One
more palm print, which was found, was also tested at the FPB,
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which reported that the palm print of Mohd. Yasir was found
identical with the chance print. The letter, sending the palm prints
to the FPB, signed by PW-33 Insp. Satish Malik, was exhibited as
Ex. PW-22/G.

45. PW-19 Const. Jai Singh, in his examination-in-chief dated
th th
20 November, 2013, deposed that, on 17 June, 2012, he took
Mohd. Faizan, and Const. Mansukh (who was not co-opted as a
witness) took Mohd. Yasir, to the LNG Hospital, for medical
examination, whereafter the blood samples of the said accused
were handed over, by the doctor, in separate sealed pullandas , as
well as on a gauze piece, all of which were given to the IO and
seized vide Seizure Memo Ex. PW-19/A.

46. Dr. Yousuf Azad, who prepared MLC No 107924 (Ex. PW-
20/A), of Mohd.Yasir, and MLC 107925 (Ex. PW-20/B), of
th
Mohd. Faizan, on 17 June, 2012, deposed, in his examination-in-
th
chief on 20 November, 2013, that Mohd. Yasir and Mohd.
Faizan had been brought to him by Const. Mansukh and Const. Jai
Singh (PW-19) respectively. He also confirmed the fact of his
having handed over the blood samples, as well as blood on a gauze,
of Mohd.Yasir and Mohd. Faizan, to Const. Mansukh and Const.
Jai Singh, respectively, after conducting medical examination.

47. The post-mortem of Mohd. Zuber was conducted by Dr.
Jatin Bodwal, who deposed as PW-21, and confirmed, in his
th
examination-in-chief on 20 November, 2013, that he had found
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five external injuries on the body of the deceased Mohd. Zuber,
of which Injuries No.s 1 to 4 were caused by a sharp edged
weapon, whereas Injury No. 5 was caused by blunt force trauma.
The cause of death was opined, by him, to be “haemorrhagic shock
consequent upon injury to neck vessels via Injury No 1 “which is
sufficient to cause death in ordinary course of nature”. He further
confirmed that, consequent upon post-mortem, the viscera of
Mohd. Zuber was preserved in a box, and his blood sample was
taken on a gauze, all of which were sealed with the seal of MAMC
JB 10. In re-examination, PW-21 Dr Jatin Bodwal recalled that, on
th
11 April, 2013, Inspector Satish Malik had sent the surgical blade,
retrieved from the Santro car, to him, to seek his opinion as to
whether the injuries noted in his post-mortem report could be
caused by the said blade, or not, and that, vide his report (Ex. PW-
21/C), he had opined that the injuries mentioned in his post-
mortem report could possibly be caused by the said surgical blade
or any other similar weapon.

48. The MLC report, prepared by Dr Jatin Bodwal, which was
exhibited as Ex. PW-21/B, reads, to the extent it is relevant, thus:
“Date and Time of post-mortem examination: 16/06/2012
at 10:40 AM.

I. CASE PARTICULARS:

FIR No 90/12 Dated 15/6/2012 PS Chandni Mahal

Name of the Deceased: Mohd. Zuber s/o
Zulfikar Ahmed

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IV. BRIEF HISTORY AS PER I/O:

Deceased was dead in an abandoned car near
Gandhi market on 15/6/2012. He was last seen
alive on 15/6/2012 with his friend.

VI. EXTERNAL GENERAL APPEARANCE:

Clothing: 1 bloodsoaked shirt, one trouser, one
handkerchief and 1 Cotton Belt.

Above mentioned clothes and built were sealed and
handed over to I/O.

VIII. PROBABLE TIME SINCE DEATH:

About one day.

IX. EXTERNAL EXAMINATION

1. Incised wound 13.5 cm x 5 cm x 1 cm
(horizontally placed) was present on front of neck,
6 cm below the chin in midline, 4 cm from left
angle of mandible on left side and 5 cm from the
right angle of mandible on right side. On dissection
rent was present on following tissues, neck muscles
and superficial vessel on left side, thyrocricoid
member in midline and neck muscle and superficial
vessel on right side.

2. Incised wound 10 cm x 2 cm x 0.5 cm
(horizontally placed) was present on the left side of
front of neck, with dealing in right direction, 1 cm
above Injury No 1 and underlying subcutaneous
tissue and muscles were exposed.

3. Superficial incised wound 1 cm x 0.3 cm x
0.2 cm was present on back of distal phalanx of left
thumb.

4. Superficial incised wound 1 cm x 0.3 cm x
0.3 cm was present on back of middle of left little
finger.
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5. Bruise 2 cm x 1.5 cm red, was present on
back of right shoulder, 2 cm below acromian
process.

OPINION:

The cause of death is haemorrhagic shock consequent
upon injury to neck vessels via injury No 1, which is
sufficient to cause death in ordinary course of nature.

Injury No 1, No 2, No 3 and No 4 are caused by sharp
edged weapon.

Injury No 5 caused by blunt force trauma.

All injuries are antemortem.”


Evidence from the FPB and the FSL:

49. Ct. Mahavir (PW-24), of PCR Central Zone and SI Balwant
Singh (PW-27) of PS Chandni Mahal, deposed, in their
st nd
examination-in-chief on 21 November, 2013, and 2 December,
2013, regarding obtaining of the finger prints of Mohd. Yasir
and Mohd. Faizan. PW-24 Const. Mahavir stated, in his deposition,
that Insp. Satish Malik (PW-33) had brought Mohd. Yasir, to him,
at the Dosier Cell, where finger prints of both his hands were taken,
exhibited subsequently, as Ex. PW-22/B. He identified Mohd.
Yasir in Court. SI Balwant Singh (PW-27) similarly, deposed that
the finger prints of Mohd. Faizan and Mohd.Yasir were taken in
the Court, and were subsequently exhibited as Ex. PW-27/A and
PW-27/B respectively, which bore his signatures as well as the
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 35 of 76

signatures of learned MM. Similarly, the palm prints of Mohd.
Faizan and Mohd. Yasir were also taken.

50. As already noted hereinabove, chance prints Q-1 to Q-10
rd
were sent to the FPB for analysis and opinion. A letter, dated 3
August, 2012 was also sent, by the SHO of PS Chandni Mahal
(PW-33 Insp. Satish Malik), enclosing, therewith, specimen
finger/palm prints of Mohd. Yasir and Mohd. Faizan. The report,
th
dated 25 October, 2012 of the FPB, thereon (Ex. PW-22/A), to
the extent it is relevant, read thus:
“1. Chance prints marked as Q5 and Q6 are inter-se
identical.

2. Chance print marked as Q6 is IDENTICAL with A
right thumb impression marked S-2 on the finger
impression slip of Mohd. Yasir S/O Mohd. Sadiq.

3. Chance print marked as Q8 is IDENTICAL with
Left thumb impression marked S-1 on the finger
impression slip of Mohd. Yasir S/O Mohd. Sadiq.

4. Chance print marked Q 10 is palm print, hence it
cannot be searched on the record of the Bureau.

5. Chance prints marked Q1 to Q4, Q7 and Q9 are
either faint, partial or smudged and do not disclose
sufficient number of ridge details in their relative
positions for comparison, they are UNFIT for
comparison/search.”


51. Subsequent to recovery of the single palm print, from the
th
Santro car, PW-33 Insp. Satish Malik wrote to the FPB, on 4
December, 2012 (Ex. PW-22/G), requesting for an opinion
thereon, enclosing, with the letter, specimen palm prints of Mohd.
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 36 of 76

Yasir and Mohd. Faizan. The report of the FPB (Ex. PW-22/H)
found the said palm print to be identical to that of the left palm of
Mohd. Yasir.

52. The above opinions, of the FPB were proved, by PW-22
Ravindra Kumar Jain, Inspector, Finger Print, vide his deposition,
st
before the learned ASJ, on 21 November, 2013.

st
53. The FSL, in its report dated 31 December, 2012 (Ex. PW-
23/a) signed by Indresh Kumar Misra (PW-23), stated that blood
was detected on various exhibits, submitted for analysis. Of these,
however, the serological report (Ex. PW-23/B), also signed by
PW-23 Indresh Kumar Misra, was either non-reactive or
inconclusive, with respect to all exhibits except Ex. „4c‟ (large seat
cover), „6a‟ (the shirt of Mohd. Yasir), „7a‟ (the shirt of Mohd.
Faizan), „8a‟, „8b‟ and „8c‟ (the clothes of the deceased Mohd.
Zuber and „9‟ (the gauze piece stained with the blood of the
deceased Mohd. Zuber). Serological analysis detected the blood,
on all these exhibits, to be of “A” group.

st
54. The above report, dated 31 December, 2012, was proved, by
Indresh Kumar Mishra deposing as PW-23, in his examination-in-
st
chief dated 21 November, 2013. He stated, therein that, though
blood was detected on all exhibits, grouping was possible only with
respect to Ex. 4c , 6a, 7a, 8a, 8b and 9 as being of “A” group. He
was not cross examined.

Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 37 of 76

55. DNA fingerprinting was also undertaken. As per the report,
th
dated 15 April, 2013, of the DNA Fingerprinting Unit (Ex. PW-
31/A), no DNA could be isolated from the blood sample of Mohd.
Yasir or of Mohd. Faizan, owing to degradation of the sample.
DNA fingerprinting was, however, possible, of the strands of hair
isolated from the car, but remained inconsequential, as the DNA
profile was found to be that of female.

56. Insofar as Ex. 1, 6a, 6b, 6c, 7a, 7b, 8 and 9 supra were
concerned, blood was detected, on DNA fingerprinting, on all the
exhibits except Exhibit 7b. The conclusion of the analysis, as
th
contained in the report of the DNA Fingerprinting Unit dated 15
April, 2013 (Ex. PW-31/B) may be reproduced thus:
“The DNA profile (STR analysis) performed on the
source of exhibits „1‟ (surgical blade), „6a‟ (shirt of
accused Mohd. Yasir), „6b‟ (jeans pants of accused
Mohd. Yasir), „7a‟ (shirt of accused Mohd. Faizan) and
„9‟ (blood gauze of deceased) is sufficient to conclude that
the biological stains present on the source of exhibits ‘1’
(surgical blade), ‘6a’ (shirt of accused Mohd. Yasir), ‘6b’
(jean pants of accused Mohd. Yasir) and ‘7a’ (shirt of
accused Mohd. Faizan) found similar to the biological
stain of the source of Ex. ‘9’ (blood gauze of deceased) .”

(Emphasis supplied)


57. To cut a long story short, though it was not possible to
match the blood, found on any of the exhibits, as belonging either
to Mohd. Yasir or to Mohd. Faizan, as no DNA fingerprinting, of
the blood samples of Mohd. Yasir, or of Mohd. Faizan, was
possible, DNA fingerprinting of the blood found on exhibits „1‟,
„6a‟, „6b‟ and „7a‟ was found to match with the blood contained
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 38 of 76

on the blood gauze carrying the blood sample of the deceased
Mohd. Zuber.

58. PW-31 Shashi Bala Pahuja, Senior Scientific Officer,
Biology, FSL, who had signed the DNA Fingerprinting report on
each page, was examined, with respect to the above FSL reports
and DNA profile. After recounting the details of the report, she
concluded as under:
“On examination, I conclude that DNA performed on the
source of Ex. 1 (surgical blade), Ex. 6a and Ex. 6b (shirt
and jeans pant of accused Mohd. Yasir), Ex. 7a (shirt of
accused Mohd. Faizan), Ex. 9 (blood on gauze of
deceased) is sufficient to conclude that biological stains
present on the source of Ex. 1, Ex. 6a, Ex. 6b, Ex. 7a
found similar to the biological stain of source of Ex. 9.”


59. The DNA fingerprinting that was carried out in the present
case, therefore, resulted in a forensic breakthrough, of sorts, so far
as the case of the prosecution is concerned, as it confirmed that the
blood of the deceased Mohd. Zuber was found on the shirt and
jeans of Mohd. Yasir, as well as the shirt of Mohd. Faizan.

G. Statements of Mohd. Yasir and Mohd. Faizan under
Section 313 of the Cr.P.C.

60. The statements of Mohd. Yasir and Mohd. Faizan under
rd
Section 313 of the Cr.P.C, were recorded on 3 April, 2014, in
both cases.

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61. Mohd. Yasir and Mohd. Faizan, in their statements under
Section 313 of the Cr.P.C. either denied, or professed ignorance,
with respect to all allegations against them. As such, nothing
substantial would result by referring, in detail, to their statements.

H. Defence Evidence

st
62. DW-1 Zainuddin deposed, on 1 May, 2014, that, on the night
th
of 14 June, 2012, he was witness to a quarrel between PW-8
Ikhtikar Ahmad, and the deceased Mohd. Zuber (whose name he
did not recall), and that, on his inquiry about the same, he was
rebuffed and told that it was their family dispute. He localized the
time of alleged quarrel as 11.30 PM.

63. DW-2 Mohd. Sawlin, the father of the sister-in-law of
th
Mohd. Yasir deposed that, on 15 June, 2012, at about 5.00AM,
he saw certain persons pulling/dragging Mohd. Yasir, and was
unable to intervene in the matter.

st
64. DW-3 Shahnawaj Hasan deposed, on 1 May, 2014, that
Mohd. Faizan used to work at his medical store and had last
th
visited the shop on 16 June, 2012 at 10.15AM.

65. DW-4 Mohd. Aslam, the neighbor of Mohd. Faizan,
st
deposed, on 1 May, 2014, that he had met Mohd. Faizan at about
th
4.30 PM on 15 June, 2012, whereafter his family members had
come to him and told them that Mohd. Faizan had been called by
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 40 of 76

the police, Police Post Turkman Gate. He further deposed that the
police at Police Post Turkman Gate had interrogated Mohd.
Faizan inside the police chowki, asking them to wait outside.

Impugned Judgement

th
66. In the impugned judgment, dated 17 July, 2014, the learned
ASJ analyzed the evidence available in the present case thus:

(i) The learned ASJ first addressed the reliance, by the
learned APP appearing for the State, on the fact that the
deceased Mohd. Zuber was last seen in the company of
Mohd. Yasir. The learned ASJ, accepted as correct, the fact
that an amount of ₹ 5.5 lakhs had been lent by PW-8 Ikhtikar
Ahmad to the deceased Mohd. Zuber, when he visited his
premises with Mohd. Yasir. A contention, advanced by the
defence, to the effect that the said amount had not been
reflected in the account books of PW-8 Ikhtikar Ahmad was
repelled, by the learned ASJ, observing – correctly in our
opinion – that, in India many businessmen did not maintain
detailed books of account, in respect of every transaction
undertaken by them. The fact that the IO had recovered ₹
5.43 lakhs, out of the said amount, was also treated as a
factor establishing the lending, by PW-8 Itkhtikar Ahmad, of
₹ 5.5 lakhs to the deceased Mohd. Zuber. The fact of
extension of the said loan by PW-8 Ikhtikar Ahmad to
Mohd. Zuber was also found to be corroborated by the
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 41 of 76

evidence of PW-4 Mumtaz Begum. Further, the statement of
PW-7 Mohd. Maviya, to the effect that Mohd. Yasir had
th
borrowed his car on 14 June, 2012, and that Mohd. Yasir
and the deceased Mohd. Zuber had left in the said car, was
also found to be credible. In these circumstances, the learned
ASJ held, applying Section 106 of the Evidence Act, that the
onus to explain what happened, after they had left together in
the car of Mohd. Maviya, after 9.30 PM, was on Mohd.
Yasir but that the said onus had not been discharged by him.
In these circumstances, the learned ASJ found no reason to
disbelieve the allegation, of the prosecution, that Mohd.
Yasir was the last person seen in the company of the
deceased Mohd. Zuber.

(ii) While deciding this issue, the learned ASJ opined that
there was apparent inconsistency, between the last seen
evidence and the time of death, as per the MLC Ex. PW-
21/B of Mohd. Zuber, in that the MLC opined that death had
taken place about 24 hours prior to postmortem (which took
th
place at 10.40 AM on 16 June, 2012). We do not, however,
find any such discrepancy, in view of the fact that Mohd.
Yasir was last seen, in the company of the deceased Mohd.
Zuber at 9.30 PM, when they met PW-7 Mohd. Maviya and
borrowed his car, which is not inconsistent with the opinion,
in the MLC Ex. PW-21/B, that the death had taken place
th
around 10.40 AM on 15 June, 2012.

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(iii) The learned ASJ proceeds, thereafter, to reject the
submission, advanced by learned counsel for Mohd. Yasir,
regarding the length of time between the last sighting of
Mohd. Yasir, in the company of the Mohd. Zuber, and the
time when Mohd. Zuber was supposed to have met his end,
which was more than 12 hours. He holds that, by virtue of
106 of the Evidence Act, the onus lay on Mohd.Yasir to
th
explain what had happened after 9.30 PM on 14 June, 2012,
which he had failed to do.

(iv) The learned ASJ next considers the evidence of PW-5
Mohd. Wasim and PW-6 Abdul Basit. It had been sought to
be contended, on behalf of the accused before the learned
ASJ, that no reliance could be placed on the testimony of
PW-5 Mohd. Wasim and PW-6 Abdul Basit as they had not
taken any acknowledgment from Mohd. Yasir, while
advancing loan to him. The learned ASJ holds that, in view
of the previous acquaintance between Mohd. Wasim and
Abdul Basit with Mohd. Yasir, the advancement of loan to
Mohd. Yasir, without obtaining an acknowledgment, was not
unusual.

(v) The learned ASJ, thereafter, found that the disclosure
statement of Mohd.Yasir and Mohd. Faizan had been
recorded after the dead body of Mohd. Zuber was recovered
from the Santro car and was not, in fact, recorded at Police
Post, Turkman Gate as deposed by PW-32. Even so, it was
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found that the statements of PW-8 Ikhtikar Ahmad and PW-
9 Ansar Ahmad, as also PW-32 SI Mohit Yadav indicated
that Mohd. Yasir and Mohd. Faizan had pointed out the
car and the dead body. In these circumstances, the learned
ASJ addressed the issue of whether the evidence of recovery
of dead body was admissible, not having been preceded by
any disclosure statement. On the basis of the evidence, the
learned ASJ held that the prosecution had succeeded in
proving the recovery of the car, as well as the dead body, on
the pointing out, thereof by Mohd. Yasir, but that the
evidence was insufficient to indicate such recovery on the
pointing out of Mohd. Faizan.

(vii) The learned ASJ held, further, that the presence of the
finger prints of Mohd. Yasir, in the car, has proved, beyond
all reasonable doubt that he was travelling in the car and
„probably he was driving the car”. The learned ASJ further
held that the presence of finger prints of Mohd. Yasir (Ex.
Q6, Q8 and Q10) on the rear view glass of the car indicated
that he was driving the car and he adjusted the rear view
glass as per his own convenience. The absence of any chance
prints on the steering and gear of the car, it was opined, was
insufficient to disregard the above evidence, as Mohd. Yasir
could have removed/cleaned the finger prints from the
steering or gear but forgotten to clean the prints from the rear
view glass. It was further observed, that in these
circumstances, the onus to explain his presence, in the car in
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which the dead body of Mohd. Zuber was found, was on
Mohd. Yasir which he failed to discharge.

(viii) The learned ASJ has, next, adverted to the evidence in
the form of the CDRs, and the inferences and conclusions
which, in his view, emerged therefrom. He observes, in this
regard, thus:

(a) Though the mobile No. of the deceased Mohd.
Zuber was, undisputedly, 9268634480, the alleged
mobile numbers of Mohd. Yasir and Mohd. Faizan
were disputed. PW-14 Mohd. Saddam Hussain
deposed, in his initial statement, that 9899367446 was
the No. being used by Mohd. Yasir; however, before
Court, he turned hostile. Similarly, though the
prosecution urged that Mohd. Faizan was using the
No. of a close relative Mohd. Rizwan, 9718321626,
he was not examined, despite his being present in the
Court.

(b) The fact that 9899367446 was the mobile No.
being used by Mohd. Yasir, however, stood
established from the testimony of PW-7 Mohd.
Maviya, who deposed that several calls had been
made, to his mobile phone (the No. of which was,
undisputedly 9810099689) by Mohd. Yasir, from 6
th
PM onwards, on 14 June, 2012. A perusal of the
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CDRs of mobile No. 9899367446 (Ex. PW-30/A)
revealed that 7 calls had been made, from the said
No., to PW-7 Mohd. Maviya, between 18:07:07 to
th th
21:19:40 hours on 14 June, 2012. Similarly, on 15
June, 2012, PW-7 Mohd. Maviya made 7 calls, to
mobile No. 9899367446 during the period 01:54:22 to
th
08:59:21 hours on 15 June, 2012. This indicated that
9899367446 was, indeed, the mobile No. being used
by Mohd. Yasir.

(c) Mohd. Yasir, no doubt, denied, in his statement
under Section 313 of the Cr.P.C., the allegation that he
was using mobile No. 9899367446. However, in the
absence of his citing any other No. as the one being
used by him, such denial failed to be of any
consequence.

(d) As regards Mohd. Faizan, however, the
prosecution had not been able to lead enough evidence
to establish usage, by him, of the mobile No.
9718321626.

Having thus come to the conclusion that the prosecution had
been unable to localise the mobile No. being used by Mohd.
Faizan, the learned ASJ, nevertheless, went on to embark on
a detailed analysis of the CDRs relating to mobile No.
9718321626. In our view, this analysis was superfluous,
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 46 of 76

once the learned ASJ had held that there was insufficient
evidence to establish that the said No. was being used by
Mohd. Faizan.

(ix) The learned ASJ, thereafter, proceeds to discredit the
alleged recovery, from the residence of Mohd. Yasir, of
bloodstained clothes, bloodstained shoes and cash,
reasoning, in this regard, thus:

(a) PW-32 SI Mohit Yadav, while deposing as to
the said recovery, also stated that (i) he did not
remember for how long he stayed at Meerdard Road,
(ii) he did not remember the time at which he reached
the house of Mohd. Yasir, (iii) at the said house, a
relative of Mohd. Yasir met them, and produced the
key of the house; however, he did not disclose the
name of the said relative, (iv) though the said relative
opened the lock, he did not supply a copy of the
Seizure Memo to him; neither did he record the
statement of the said relative or join any neighbour at
the time of recovery, (v) he did not remember for how
long they stayed at the house of Mohd. Yasir, (vi) at
the residence of Mohd. Faizan, though the family
members of Mohd. Faizan were present, he did not
ask them to join the proceedings; neither did he
involve any public person therein, though public
persons were available in the colony round-the-clock
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 47 of 76

and (vii) from the house of Mohd. Faizan, they
proceeded to PS Chandni Mahal; however, no arrival
entry was made.

(b) PW-8 Ikhtikar Ahmed deposed, in his cross-
examination, that his statement had been recorded
th
twice, on 15 June, 2012, firstly, when he went to
Police Post Turkman Gate to lodge the complaint and,
thereafter, at Gandhi Market. As such, the statement
of PW-8 Ikhtikar Ahmed was recorded even prior to
the alleged recovery effected from the house of
Mohd. Yasir and Mohd. Faizan. Further, PW-8
deposed that he did not visit PS Chandni Mahal, in
connection with this matter, whereas the case of the
prosecution was that his statement was recorded by
PW-32 SI Mohit Yadav after midnight at the Police
Station.

(c) Regarding arrival at the house of Mohd. Yasir,
PW-8 Ikhtikar Ahmed deposed that they reached the
said house between 9:10 and 9:20 PM, and were met
by the mother of Mohd. Yasir. As against this, PW-9
Ansar Ahmed deposed that they reached the house of
Mohd. Yasir, between 9.00 and 9.15 PM, where the
uncle of Mohd. Yasir named Shakir, met them, and
opened the lock, using the key which was in his
possession. As such, there was discrepancy in the
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versions of various witnesses, even as regards the
persons whom they encountered, when they reached
the house of Mohd. Yasir.

(e) The assertion, of the prosecution that, recovery,
from the house of Mohd. Yasir and Mohd. Faizan
was effected at night, was demolished by the evidence
of PW-34 HC Kishan Chand, who deposed that the
case properties had been deposited, with him, by PW-
th
32 SI Mohit Yadav during the day on 15 June, 2012.
On being questioned, by the Court, in this regard,
however, he clarified that his deposition was based on
his memory and improved it to say that PW-32 SI
Mohit Yadav, had deposited the pullanda in the
evening, but prior to sunset.

(f) As such, even going by the evidence of these
witnesses, two versions emerged regarding the time of
effecting the recovery of the alleged incriminating
articles from Mohd.Yasir and Mohd. Faizan. This
cast reasonable doubt regarding the very fact of the
recovery having been effected at all. Further, as the
evidence indicated that the family members of the
Mohd. Yasir were aware that the police was searching
for him, it was impossible to believe that he concealed
the incriminating articles in his house. For this reason,
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too, the factum of recovery of the incriminating
articles was doubtful.

(g) The learned ASJ further expressed doubts
regarding the evidence of ownership of the Santro Car
with registration No. DL-4C-J-4773, in which the
body of Mohd. Zuber had been found, but noted,
correctly, that the issue before the Court was not the
ownership of the car but as to whether Mohd. Yasir
had or had not borrowed the said car from PW-7
Mohd. Maviya, and that the fact of such borrowal of
the car, by Mohd. Yasir from Mohd. Maviya, stood
proved, by the prosecution, beyond all reasonable
doubt.

(h) The learned ASJ, thereafter, embarked on a
detailed examination of the disclosure statement of
Mohd. Yasir (Ex. PW-8/K). In view of Section 27 of
the Evidence Act, this analysis, in our view was
entirely unwarranted, as the disclosure statement
could be relied upon only to the extent it pertained to
the recovery of articles, by the persons making the
said statement.

(x) Having thus detailed various infirmities in the
investigation, and discrepancies in the evidence that has
emerged consequent thereupon, the learned ASJ proceeded,
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nevertheless, to convict Mohd. Yasir, under Section 302 of
the IPC, for committing the murder of Mohd. Zuber, on the
ground that the prosecution had been able to prove the
following facts/circumstances, which brought home the
offence of murder to Mohd. Yasir, beyond all reasonable
doubt:
(a) that PW-8 Ikhtikar Ahmed lent ₹ 5.5 lakhs to
th
Mohd. Yasir, at around 5 / 5.30 PM on 14 June,
2012, carrying which Mohd. Zuber left his shop, in
the company of Mohd. Yasir,
(b) that Mohd. Yasir and Mohd. Zuber left the
house of Mohd. Zuber, between 7.00 and 8.00 PM,
carrying the said amount,
(c) that PW-7 Mohd. Maviya met Mohd. Yasir
and Mohd. Zuber at 9.00/9.30 PM, near Faiz Ilahi
Masjid,
(d) that PW-7 Mohd. Maviya lent his car to
Mohd. Yasir, at his request,
(e) that, between 1.30 AM and 2.00 AM, Mohd.
Yasir met PW-5 Mohd. Wasim and gave him ₹
75,000/- stating that ₹ 50,000/- was towards the loan
taken from him and ₹ 25,000/- was towards the loan

taken from PW-6 Abdul Basit,
th
(f) that, around 2.30 AM on 15 June, 2012, PW-5
Mohd. Wasim delivered ₹ 25,000/- to PW-6 Abdul
Basit as instructed by Mohd. Yasir,
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(g) that Mohd. Yasir did not return home that
night,
(h) that, later that morning, Mohd. Yasir and
Mohd. Faizan were apprehended, and brought to P.P.
Turkman Gate,
(i) that Mohd. Yasir disclosed, in his disclosure
statement that the dead body of Mohd. Zuber was
lying in the Santro car parked at Gandhi Market,
(j) that Mohd. Yasir, thereafter, accompanied the
police team to Gandhi Market, where he pointed out
the car, in which the dead body of Mohd. Zuber was
found,
(k) that chance prints were lifted from the car,
(l) that a surgical blade was also recovered from
the car, containing the blood of Mohd. Zuber, and
PW-21 Dr. Jatin Bodwal opined that the fatal injury
sustained by Mohd. Zuber could have been caused
by the said blade,
(m) that the finger prints and palm prints of Mohd.
Yasir were found identical to the chance prints found
on the rear view glass of the car, and
(n) that Mohd. Yasir was the person last seen in
the company of deceased Mohd. Zuber, and had
failed to discharge the onus cast on him by Section
106 of the Evidence Act, to explain what had
happened after he, along with Mohd. Zuber, left in
the car borrowed from Mohd. Maviya.
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In these circumstances, the learned ASJ held that, despite
several discrepancies, both in the investigation as well as in
the evidence reconnoitered therefrom, the prosecution had
succeeded in bringing home, to Mohd. Yasir, the offence of
committing the murder of Mohd. Zuber. Mohd. Yasir was,
accordingly, convicted under Sections 302, and 392 read
with 397 of the IPC, though he acquitted Mohd. Yasir of the
charge under Section 307/411 IPC. However, it was held
that the prosecution had not been successful in establishing
its case against Mohd. Faizan, who, consequently was
acquitted of the charges against him.

st
67. Vide subsequent order dated 21 July, 2014, the learned ASJ
sentenced Mohd. Yasir to rigorous imprisonment for life and fine
of ₹ 5 lakhs and with default punishment of four years simple
imprisonment, for the offence under Section 302 of the IPC. As
such, no separate sentence was passed for the offence punishable
under Sections 392/397 of the IPC. The benefit of Section 428 of
Cr.P.C. was also extended to Mohd. Yasir.

Rival submissions before this Court

Submissions on behalf of Mohd. Yasir

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68. Mr. Sarin Naved, learned counsel appearing on behalf of
Mohd. Yasir advanced the following submissions, in support of
his client:
(i) The factum of lending, of ₹ 5.5 lakhs, to the deceased
Mohd. Zuber, by PW-8 Ikhtikar Ahmed, was not proved, as,
though Ikhtikar Ahmed admitted that though he was in the
habit of maintaining books of accounts, he acknowledged
that no entry had been made therein, regarding the lending of
₹ 5.5 lakhs to Mohd. Zuber. Moreover, the identity of the
third party, to whom the said money had to be paid, by
Mohd. Zuber, for buying the mobile phones, was never
revealed.
(ii) No reliance could be placed on the fact that Mohd.
Yasir was the person in whose company the deceased,
Mohd. Zuber had been last seen, in view of the fact that
Mohd. Yasir was stated to have been last seen in the
th
presence of Mohd. Zuber at 9.30 PM on 14 June, 2012,
whereas the death of Mohd. Zuber took place around 10.30
th
AM, on 15 June, 2012, over 12 hours thereafter.
(iii) There was no sufficient evidence, to the effect that
9899367446 was the phone No. of Mohd. Yasir. PW-7
Mohd. Maviya, had stated that Mohd.Yasir‟s No. was
95877… 727, whereas PW-14 Mohd. Saddam Hussain, in
whose name the said No. had been taken, denied knowing
Mohd. Yasir at all.
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 54 of 76

(iv) It was unbelievable that a person would, after killing a
friend for money, go around the city repaying old debts at 2
AM in the morning.
(v) PW-5 Mohd. Wasim deposed that he had met Mohd.
th
Yasir late at night on 14 June, 2012. However, there was no
evidence to support this statement. Neither was there any
evidence to suggest that Mohd. Yasir had ever taken a loan
from Mohd. Wasim in the first place.
(vi) The post-mortem report fixed the time of death of
Mohd. Zuber at around 10:30 AM, whereas the Police
alleged, on the basis of the disclosure statement of Mohd.
Yasir, that the murder had happened a few hours prior
thereto.
(vii) It was also unbelievable that Mohd. Yasir would,
after committing the murder of Mohd. Zuber, return home,
in bloodstained clothes, at a time when his relatives were
sitting in his house.
(viii) In these circumstances, the learned ASJ had rightly
disbelieved the allegation of recovery, of the bloodstained
clothes, and other articles, from the house of Mohd. Yasir.
(ix) While PW-32 SI Mohit Yadav had deposed that he
had recorded the disclosure statements of Mohd. Yasir and
Mohd. Faizan at the Police Post, before proceeding to
Gandhi Market, where the dead body of Mohd. Zuber was
discovered, the disclosure statements themselves have
averred that the dead body of Mohd. Zuber had already
been recovered prior thereto.
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 55 of 76

(x) The depositions of PW-8 Ikhtikar Ahmed, PW-9
Ansar Ahmed and PW-32 SI Mohit Yadav, seen in
conjunction, clearly indicated that the disclosure statements
of Mohd. Yasir and Mohd. Faizan were not recorded at
Police Post Turkman Gate, as stated by SI Mohit Yadav.
(xi) The alleged murder weapon did not bear the
fingerprints of Mohd. Yasir. Neither was there any
scientific evidence to connect Mohd. Yasir to the murder of
Mohd. Zuber.
(xii) The mere fact that Mohd. Yasir allegedly left the
th
house of Mohd. Zuber, with him, on the night of 14 June,
2012, did not shift the burden of proof, on him, to disprove
the allegation of his having murdered Mohd. Zuber. This
reading, of Section 106 of the Evidence Act, by the learned
ASJ, was completely flawed.

69. Mr. Javed Ahmed, appearing for Mohd. Faizan, submitted
that all the facts cited in evidence against his client could, at worst,
make out a case of his client having been seen in the company of
th
Mohd. Yasir in the late evening of 14 June, 2012, and nothing
more, especially as the fact of recovery of bloodstained clothes,
and other items, from Mohd. Faizan, have rightly been disbelieved
by the learned ASJ.

70. Ms. Asha Tewari, learned APP appearing for the State,
submitted that the evidence on record was more than sufficient to
link Mohd. Yasir as well as Mohd. Faizan to the murder of Mohd.
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 56 of 76

Zuber. She basically reiterated the case of the prosecution, which
has already been set out in exhaustive detail herein above.

Analysis

71. Before proceeding to examine the evidence, it would be
appropriate to revisit some of the basic principles relating to
appreciation of circumstantial evidence. The three broad guiding
principles, governing appreciation of circumstantial evidence, with
respect to the extent to which such evidence would bring the
offence home to the alleged offender, are, it is well settled, that (i)
the circumstances should form a complete chain, without any
“missing link”, (ii) the circumstances, seen holistically, should be
compatible only with the guilt of the accused, and incompatible
with his innocence, and (iii) the circumstances should be incapable
of any explanation or conclusion, other than that the accused had
perpetrated the crime in question.

72. The above principles relating to appreciation of
circumstantial evidence, iterated most authoritatively in Sharad
Birdhichand Sarda vs State of Maharastra, (1984) 4 SCC 116 ,
and followed in a host of decisions thereafter, are well appreciated
and well-recognised, and are, by now, part of legal lore. This Court
feels it necessary, however, to emphasise the fact that, while
applying these principles of appreciation of evidence – or, for that
matter, applying any principles for appreciation of evidence in
criminal cases – the court is required to be mindful, at every
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 57 of 76

instant, of the fact that the ultimate raison d’ etre , of the entire
forensic exercise being undertaken by it, is to punish the offender
guilty of the crime that has been committed. Judging a criminal
case is, no doubt, an exercise in forensics; the Court should,
however, be cautious not to allow it to degenerate into an exercise
in hyper-forensics. Once, applying the above principles, to the
circumstantial evidence available before it, the court is able to hold
a particular person, accused of the crime, to be, in fact, the offender
and perpetrator thereof, it is no part of the duty of the Court to
strain its sinews and ferret out, weasel-like discrepancies and
inconsistencies in the evidence before it, oral or documentary –
unless, of course, such discrepancies or inconsistencies serve to
cloud any of the circumstances, or render such circumstance or
circumstances doubtful of immediate acceptance. Once, however,
indisputable circumstances exist which, in the opinion of the court,
unerringly bring the offence home to the offender, other
inconsistencies or incongruities in the evidence would not weaken
the case against such offender. The basis of the approach of the
Court, while assessing circumstantial evidence, in a criminal case
has, therefore, to, firstly, isolate the circumstances which may be
treated as indisputable and, thereafter, examine whether such
circumstances, seen holistically and in conjunction with each other,
bring the offence unerringly home to the accused. If they do,
conviction must follow; equally, if they do not, acquittal would
result.

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73. What, then, are the circumstances which, in the present case,
may be regarded as indisputable? For this, it would, in our
opinion, be best if we were to dissect the charge, in this case, into
its essential “ingredients”.

74. The charge, against Mohd. Yasir as well as Mohd. Faizan,
as levelled by the prosecution in this case, was of committing the
murder of Mohd. Zuber, in order to purloin the amount of ₹
5,50,000/–, which he was carrying. In order to establish the charge,
the following three facts would be required to be established:
(i) that Mohd. Zuber was actually carrying ₹ 5,50,000/–,
(ii) that the said money was stolen by Mohd. Yasir
and Mohd. Faizan, and
(iii) in order to do so, Mohd. Yasir and Mohd. Faizan
committed the murder of Mohd. Zuber.

75. We proceed to examine each of these ingredients, seriatim .

76. The possession, by Mohd. Zuber, of ₹ 5,50,000/– is
attributed, by the prosecution, to the lending, of the said amount, to
him, by PW-8 Ikhtikar Ahmed, his uncle.

77. We do not find any reason to doubt the fact that PW-8
Ikhtikar Ahmed had, in fact, lent ₹ 5,50,000/– to Mohd. Zuber.
th
PW-8 has, in his examination-in-chief on 18 February, 2013,
deposed as under:
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“ On 14.06.2012 at about 3:30 PM, Mohd. Zuber
along with his friend Mohd. Yasir came to my shop.
Mohd. Zuber was dealing in sale purchase of mobile
phone but he did not have any shop. Mohd. Zuber had
asked for ₹ 5.5 lakh to purchase the mobile phone. I asked
him where he would invest the said amount, he told me
that he had already settled a deal for a sum of ₹ 10.5 lakh
and he had given ₹ 5 lakh to the dealer in advance and if
the balance amount is not paid, his advance amount would
be forfeited.

Thereafter, I asked Mohd. Zuber to wait at the
shop and I went to my house to bring the amount. I
brought ₹ 5.5 lakh from my house. I had given the said
amount to Mohd. Zuber after putting the amount in a
black colour polythene. The said amount was in the
denomination of as under:
50 currency notes of ₹ 1000/– each.
8 packets (each packet of 100 currency notes) of ₹
500/– each.
10 packet (each packet of 100 currency notes) of ₹
100/– each.

I had given the said amount to Mohd. Zuber at
about 5 AM in the presence of Mohd. Yasir. Thereafter,
both left from my shop.”

Much has been sought to be made, by the defence in this case, of
the fact that (i) though he was admittedly maintaining books of
account, PW-8 Ikhtikar Ahmed admitted that he had not entered
the above loan of ₹ 550,000/–, in the said books of account, and (ii)
Ikhtikar Ahmed had not even chosen to query Mohd. Zuber
regarding the identity of the person to whom he owed such a large
sum of money. We, however, do not find anything suspicious in
either of these circumstances, given the fact that PW-8 Ikhtikar
Ahmed was the uncle of Mohd. Zuber. We agree with the finding,
of the learned ASJ, that the entry of every such transaction, in the
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books of account, cannot be regarded as either necessary or
invariable. We have to bear in mind the fact that the transaction
was not in the normal course of business of PW-8 Ikhtikar Ahmed,
but was more akin to a gift of love and affection, and that it would
not normally be expected that PW-8 Ikhtikar Ahmed, as the uncle
of Mohd. Zuber, would enter the said transaction in his books of
account. For the same reason, we do not espy anything unusual in
PW-8 Ikhtikar Ahmed not asking for the particulars of the person
to whom Mohd. Zuber was required to make payment.

78. The fact of PW-8 Ikhtikar Ahmed having lent ₹ 5,50,000/–
to Mohd. Zuber, moreover, finds support from the evidence of
other witnesses as well. PW-4 Mumtaz Begum deposed that, on
th
14 June, 2012, Mohd. Zuber had left the house at 2.00 PM and
had returned at 5.45 PM, carrying with him ₹ 5.5 lakhs (which she
claims to have seen) which, on her enquiring, was disclosed, by
him, to have been borrowed from PW-8 Ikhtikar Ahmed.

79. The evidence of PW-5 Mohd. Wasim, and PW-6 Abdul
Basit, too, serve to support the above statement of PW-8 Ikhtikar
Ahmed. PW-5 Mohd. Wasim deposed that, at 1.30-2.00 AM, on
th
15 June, 2012, Mohd. Yasir had called him to his house and
given him ₹ 75,000/–, stating that ₹ 50,000/–, out of the said
amount, represented the loan he had earlier taken from Mohd.
Wasim and requesting Mohd. Wasim, to remit the balance ₹
25,000/- to PW-6 Abdul Basit, from whom, too, Mohd. Yasir had
borrowed the said amount. He further confirmed that he had, the
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 61 of 76

same night, given the amount of ₹ 25,000/- to PW-6 Abdul Basit.
PW-6 Abdul Basit also confirmed the fact that at around 2.30 AM
th
on 15 June, 2012, Mohd. Wasim had given him ₹ 25,000/-,
stating that the said amount had been handed over, to him, by
Mohd. Yasir. Further support, for the above, if at all it were
required, is to be found in the further deposition, of PW-5 Mohd.
th
Wasim and PW-6 Abdul Basit, to the effect that, on 16 June,
2012, they handed over the said amounts to the police authorities,
on being informed about the murder of Mohd. Zuber having taken
place in the interregnum.

80. The amounts so handed over by Mohd. Yasir and Mohd.
Faizan were sealed, with the initials „SM‟ and seized, and were
identified by PW-6 Abdul Wasim, when shown to him in Court.

81. In view of the above, we are of the considered opinion that
there can be no dispute about the fact that PW-8 Ikhtikar Ahmed
th
had, at 5.00 PM on 14 June, 2012, lent ₹ 5.5 lakhs to Mohd.
Zuber, in the presence of Mohd. Yasir, and that Mohd. Yasir and
Mohd. Zuber left his shop carrying the said amount.

82. That takes us to Chapter 2.

83. The charge against Mohd. Yasir and Mohd. Faizan, was
not that of theft of money from Mohd. Zuber, but of kidnapping
him and of subsequently committing his murder, and Mohd. Yasir
stands, convicted, by the learned ASJ, therefor. We have, therefore,
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to examine whether a complete and unbroken chain of
circumstances exists, which would indicate, unequivocally and
without any scope for doubt that, after having left the premises of
PW-8 Ikhtikar Ahmed with the amount of ₹ 5.5 lakhs in cash,
Mohd. Yasir, either himself or in concert with Mohd. Faizan,
murdered Mohd. Zuber and apportioned, between themselves, the
said amount of ₹ 5.5 lakhs.

84. Undoubtedly, the fist aspect to be examined, in this regard, is
the allegation that Mohd. Yasir borrowed the Santro car, in which
the body of Mohd. Zuber was later found, from Mohd. Maviya
th
on 14 June, 2012.

85. PW-7 Mohd. Maviya, in his deposition, stated that, since at
th
6 PM on 14 June, 2012, several calls were made, by Mohd.
Yasir on his mobile, asking for his car. We have already found
hereinabove that the CDRs relating to the mobile number of
Mohd. Maviya (PW-7) indicated that, as many as five calls were
made, to the said number, from mobile number 9899367446 which
must, therefore, be presumed the number being used by Mohd.
Yasir. The fact that the said number was being used by Mohd.
Yasir also find support from the initial statement of Mohd.
Saddam Hussain under Section 164 of the Cr.P.C, though, before
the Court, he turned hostile. However, as we have already noticed
hereinabove, in view of (i) the deposition of PW-7 Mohd. Maviya,
(ii) the CDR records of mobile No.9210099689, which was being
used by Mohd. Maviya, and (iii) the initial statement of PW-14,
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Mohd. Saddam Hussain, under section 164 of the Cr.P.C., his
subsequent resiling, from the said statement, by turning hostile, at
the stage of trial, cannot be accorded any significance.

86. PW-7 Mohd. Maviya went on to depose that, at about 9.30
PM, he was approached by Mohd. Yasir near the Faiz Illahi
Masjid, accompanied by Mohd. Zuber and that, on the persistent
requests of Mohd. Yasir, he agreed to lend his car to him for a
short while, whereupon Mohd. Yasir and Mohd. Zuber left in his
car. He also recognized his car from the photographs Ex. PW-1/1
to Ex. PW-1/21, which were shown to him in Court.

87. We, therefore, are convinced that the fact of Mohd. Yasir
having been allowed, by PW-7 Mohd. Maviya, the use of his white
Santro car and, consequently, of Mohd. Yasir and Mohd. Zuber
driving away, in the said car, from the area of the Faiz Illahi
th
Masjid, at 9:30 PM on 14 June, 2012, stands established.

88. But what next? Did Mohd. Yasir, either himself or in unholy
association with Mohd. Faizan proceed, thereafter, to murder
Mohd. Zuber, by slashing his throat, and leaving his body in their
white Santro car at Gandhi Market?

89. A brief relook at the available evidence, regarding what
transpired, after Mohd. Yasir and Mohd. Zuber left, at 9.30 PM,
from Faiz Illahi Masjid, in the car of Mohd. Maviya, would be
apposite at this juncture.
Crl Appeal 1277/2014 & Crl Appeal 320/2015 Page 64 of 76

90. PW-7 Mohd. Maviya deposed that, after Mohd. Yasir and
Mohd. Zuber left, in his car, at about 9.30 PM, he called the mobile
number of Mohd. Yasir at 11.00 PM, but that there was no
response. He further stated that, at about 6.00 AM, the next day ie.
th
15 June, 2012, he went to the house of Mohd. Yasir in search of
him, but could not find him there though the mother and uncle
(mausa) of Mohd. Zuber were there.

91. PW-7 Mohd. Maviya further deposed that Mohd. Yasir and
Mohd. Faizan were interrogated at the Police Post, Turkman Gate,
but their statements were not recorded, apparently because they
were ambivalent in nature. He, however, acknowledged that, at
about 5.00 PM, Mohd. Yasir and Mohd. Faizan led the police
team as well as himself and PW-9 Ansar Ahmed to Meerdard
Road, Gandhi Market, where they pointed out the white Santro
Car, in which the body of Mohd. Zuber was later found. He
deposed that the mobile crime team inspected the car and took the
photographs, Ex. PW-1/1 to Ex. PW-1/21 which, as already noted
hereinabove, were identified by PW-7 Mohd. Maviya as to be those
of his car. PW-8 Ikhtikar Ahmed further deposed that the dead
body of Mohd. Zuber, wrapped in a polythene, was found on the
rear seat in the said car, which was also splattered with blood on
the rear seat, foot rest and elsewhere inside it. He also testified
finger prints having been lifted by the mobile crime team, from the
car.

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92. PW-8 Ikhtikar Ahmed, too, stated, in his deposition during
trial, that the statements of Mohd. Yasir (Ex. PW-8/K) and Mohd.
Faizan (Ex. PW-8/N) were recorded by the Incharge of Police Post,
Turkman Gate and that, in the said submissions, Mohd. Yasir
disclosed having been secreted ₹ 2.23 lakhs constituting his share
in the amounts stolen from Mohd. Zuber, at his residence, along
with his blood stained clothes and Reebok shoes, while Mohd.
Faizan, similarly, deposed that his share of the booty (Rs.
2,49,000/-) was hidden at his house along with the blood stained
clothes and the mobile phone of Mohd. Zuber. Ikhtikar Ahmed
further deposed that, he, thereafter, accompanied the police team to
the residences of Mohd. Yasir and Mohd. Faizan and that while
Mohd. Yasir retrieved from his almirah (cupboard) cash of ₹ 2.23
lakhs, along with his blood stained jeans, blood-stained check shirt
and blood stained Reebok shoes, Mohd. Faizan retrieved ₹ 2.45
lakhs from the Diwan in his residence, along with his blood stained
black pant and lined shirt, and one mobile phone.

93. The fact of Mohd. Yasir and Mohd. Faizan pointing out
the Santro car at Gandhi Market and the dead body of Mohd.
Zuber being found therein, as well as the presence of the surgical
blade and blood splattered on various places in the car, also stand
vouchsafed in the deposition of PW-9 Ansar Ahmed, PW-9 further
went on to corroborate the fact of disclosure statements having
been made by Mohd. Yasir and Mohd. Faizan, followed by their
producing, from their respective residences, cash and blood stained
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clothes/shoes, as recited by PW-8 Ikhtikar Ahmed and as reflected
in the Seizure Memos drawn up on the said occasions.

94. SI Pankaj Kumar of the Mobile Crime Team (PW-16) also
deposed regarding the discovery of the dead body of Mohd. Zuber
in the white Santro car at Gandhi market, as well as of the surgical
blade in the car, along with the presence of blood at various places
in the car.

95. In view of the above evidence, we find no reason to discard
the submission, of the prosecution, that Mohd. Yasir and Mohd.
Faizan, in their disclosure statements, disclosed the places where
there were bloodstained clothes and, in the case of Mohd. Yasir,
his bloodstained shoes, were secreted, in their residences, and that,
thereafter, they first pointed out the car in which the dead body of
Mohd. Zuber was found and proceeded, later, to their respective
residences, from which the articles in question were retrieved by
them and handed them over to the Police authorities.

96. Given the fact that this is a case dependent, for its life or
death, on circumstantial evidence, we would be required to
determine whether, even at this stage, the chain of circumstances,
to link the murder of Mohd. Zuber, to Mohd. Yasir and/or
Mohd. Faizan, is complete. Insofar as Mohd. Yasir was concerned,
the evidence, as reconnoitred thus far, indicates that:
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(i) Mohd. Zuber, accompanied by Mohd. Yasir,
borrowed ₹ 550,000/– from his uncle Ikhtikar Ahmed, at
th
around 5 PM on 14 June, 2012,
(ii) at about 9:30 PM on the same day, Mohd. Yasir
borrowed a white Santro car from Mohd. Maviya, and left,
in the said car, accompanied by Mohd. Zuber,
(iii) the fact that several calls were made by Mohd. Yasir
to Mohd. Maviya between 6.00 PM and 9.20 PM, indicates
that Mohd. Yasir was in urgent and desperate need of the
car,
th
(iv) at about 1:30 AM – 2 AM on the next day, i.e. is 15
June, 2012, Mohd. Yasir handed over ₹ 75,000/– to Mohd.
Wasim,
(v) later, Mohd. Yasir accompanied the Police team to
Gandhi Market, where he pointed out the white Santro car,
(vi) the body of Mohd. Zuber was actually found in the
car, as disclosed by Mohd. Yasir, and,
(vii) later, after his disclosure statement, Mohd. Yasir
took the investigation team to his residence, wherefrom he
retrieved cash, stated by him to be his share of the amount
stolen from Mohd. Zuber, as well as his clothes and shoes,
which were bloodstained.

Insofar as Mohd. Faizan was concerned, the evidence, as emerged
up to this point, merely indicates that
(i) he, too, accompanied Mohd. Yasir and the Police
team to Gandhi Market, where he pointed out the white
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Santro car in which the body of Mohd. Zuber was found
and
(ii) later, after his disclosure statement, Mohd. Faizan
took the investigation team to his residence, wherefrom he
retrieved cash, stated by him to be his share of the amount
stolen from Mohd. Zuber, as well as his clothes, which
were bloodstained.

97. Inasmuch as Mohd. Yasir was aware of the fact that Mohd.
Zuber was carrying Rs. 5,50,000/- given to him by PW-8 Ikhtikar
Ahmed, the motive, for Mohd. Yasir to do away with Mohd. Zuber
and apprioriate the money for himself, stands established. This is
th
supported by the fact that, at 2.00 AM on 15 June, 2012, Mohd.
Yasir paid ₹ 75,000/- to Mohd. Wasim.

98. That takes us to the forensic evidence available in the
present case, as emerging from the laboratories of the reputable
Forensic Science Laboratory, Rohini.

99. The initial examination, routine as well as serological, of the
exhibits submitted to the FSL, clearly, led nowhere. Blood was,
undoubtedly, found on the large seat cover, the shirt of Mohd.
Yasir, the shirt of Mohd. Faizan, the clothes of the deceased
Mohd. Zuber, as well as the cloth piece containing the blood swab
of Mohd. Zuber, all of which were found to be of „A‟ group.
While this may conceivably justify a doubt that the blood found on
the shirt of Mohd. Yasir, the shirt of Mohd. Faizan and the large
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seat cover, belonged to the deceased Mohd. Zuber (inasmuch as
the serological analysis of the blood found on the gauze piece
clearly established the blood group of the deceased Mohd. Zuber
to be „A‟), it is not possible, any which way, to elevate the said
doubt to any level of certainty, for two reasons, viz. that (i) the
blood group of Mohd. Yasir and Mohd. Faizan were never
established, and it was quite possible that their blood group was
also „A‟ and (ii) no Rhesus Factor determination was attempted,
and, in the absence of Rhesus Factor determination, any result of
attempted blood group matching must always remain
indeterminate.

100. The results of the DNA Fingerprinting, also carried out by
the FSL were, however, far more unequivocal. The conclusion of
the DNA Fingerprinting, which already stands reproduced by us
hereinabove, clearly established that the blood found on the shirt
and jeans of Mohd. Yasir, as well as the shirt of Mohd. Faizan,
was that of the deceased Mohd. Zuber. The said DNA Fingerprint
report, as already noted hereinabove, was proved, before the court,
by PW-31 Shashi Bala Pahuja.

101. Further, the fact that the biological stains present on the
surgical blade, seized from the Santro car, were also found, in the
DNA Fingerprinting Report (Ex. PW-31/B) to be similar to the
biological stain on the gauze piece containing the blood of the
deceased Mohd. Zuber, seen in conjunction with the fact that the
surgical blade was recovered from the car in which the dead body
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of Mohd. Zuber was found, also establishes – in our view,
conclusively – that the surgical blade was indeed the weapon of
offence, with which Mohd. Zuber was killed, by slashing his
throat despite the fact that no fingerprints were actually found on
the surgical knife itself.

102. We may rely, in this regard, on a very recent decision,
th
rendered by a coordinate bench of this Court on 16 April, 2018, in
Mahender @ Ganja vs State [Crl Appeal 1025/2016] , in which the
incriminating report consequent on DNA analysis was regarded as
clinching, in order to connect the accused to the crime.

103. Decidedly, the above finding, consequent to the DNA
Fingerprinting exercise carried out by the FSL, provided one more
link, in the chain of circumstances seeking to connect Mohd. Yasir
the murder of Mohd. Zuber.

104. The last piece of evidence, to which we intend to refer, to
conclude our discussion in this case, is the report of the FPB, to
which, too, we have alluded, in detail, hereinbefore. At the cost of
repetition, it may be recounted that the fingerprint matching
exercise, conducted by the FPB, resulted in the isolation of chance
prints Q6 and Q8, as well as the palm print Q10, as being those of
Mohd. Yasir. The report of the FPB (Ex. PW-22/A) was proved by
PW-22 Ravindra Kumar Kain.

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105. The evidence of PW-3 ASI Pawan Kumar, Finger Print
Expert of the Mobile Crime Team, during trial, indicates that
chance prints Q6 and Q8, as well as palm print Q 10 were lifted
from the rear view glass installed inside the car. We agree with the
observation, of the learned ASJ, that the presence of the
fingerprints of Mohd. Yasir, on the rear view glass inside the car,
in which the body of Mohd. Zuber was found, was significant.
We also appreciate the observation, of the learned ASJ, that the
rear view glass of a car would ordinarily be handled by the driver
thereof and that, therefore, the report of the FPB indicates, prima
facie , that Mohd. Yasir was driving the car.

106. With that, in our view, the pieces of the jigsaw have fallen
completely into place. Let us proceed, therefore, to examine
whether, qua Mohd. Yasir and Mohd. Faizan, a complete picture,
incontrovertibly indicating the commission of the murder of
Mohd. Zuber, by one or both of them, has emerged.

107. In the case of Mohd. Yasir, it stands established that (i) he
was with Mohd. Zuber when PW-8 Ikhtikar Ahmed lent ₹
550,000/- to Mohd. Zuber, (iii) thereafter, he borrowed the white
Santro car, in which the body of Mohd. Zuber was later found,
from Mohd. Maviya, the evidence indicating that he was
desperate to get possession of the car (in this connection, we note
th
the fact that the repeated calls, from 6 PM to 9:20 PM, on 14
June, 2012, to the phone No. of Mohd. Maviya were all made
from the No. of Mohd. Yasir, indicating that it was Mohd. Yasir,
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rather than Mohd. Zuber, who was intent on obtaining possession
of the car), (iv) Mohd. Yasir was in the front seat of the car, and
had, in fact, operated the rearview mirror, (v) something happened,
which resulted in the blood of Mohd. Zuber landing on the shirt,
as well as the jeans, which were being worn by Mohd. Yasir in
the car, (vi) in the meanwhile, Mohd. Yasir paid ₹ 75,000/–, to
Mohd. Wasim, (viii) the bloodstained shirt, and jeans, of Mohd.
Yasir, had been hidden, by him, in the almirah in his house, along
with an amount of ₹ 2.23 lakhs, disclosed, by him, to be his share
of the amount stolen from the deceased Mohd. Zuber and (ix) he
pointed out the car, belonging to Mohd. Maviya, in which the
body of Mohd. Zuber was later found.

108. It also stands established that the person with whom Mohd.
Zuber was last seen alive was Mohd. Yasir. There is no evidence of
any intervening circumstance, or any other witness, which would
indicate that Mohd. Zuber did not continue to remain in the
company of Mohd. Yasir, till his death. Seen in totality and in
conjunction with the other available circumstantial evidence, we do
not feel that the credibility of the circumstance of Mohd. Yasir
having been the person last seen in the company of Mohd. Zuber,
stands in any way eroded by the distance of time between such
sighting and the death of Mohd. Zuber. We draw sustenance, in
this regard, from the fact that PW-8 Ikhtikar Ahmed saw them
together at 3.30 PM, PW-4 Mumtaz Begum, saw Mohd. Yasir in
the company of Mohd. Zuber, at around 8.00 PM, and PW-7
Mohd. Maviya saw them together at 9.30 PM.
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109. These facts, in our view, result in an unbroken chain of
circumstances, unerringly indicating that the fatal injury, on the
neck of the deceased Mohd. Zuber, had, in fact, been inflicted by
Mohd. Yasir, using the surgical blade which had been recovered
from the white Santro car, in which the body of Mohd. Zuber was
found. They are incompatible with any other hypothesis, and no
other premise, regarding the manner in which Mohd. Zuber met
his end, is possible.

110. In the case of Mohd. Faizan, however, the picture remains
far from complete. The evidence only goes to indicate that (i) the
blood of the deceased Mohd. Zuber was also found on the shirt
which was retrieved, by him, from the almirah in his room, along
with cash of ₹ 2.45 lakhs, stated, by him, to be his share of the
amount stolen from Mohd. Zuber, and (ii) he also pointed out the
car, in which the body of Mohd. Zuber was found. The evidence
does not disclose any point of time when Mohd. Faizan was in the
company of Mohd. Zuber. There is nothing to indicate, either,
when Mohd. Faizan joined Mohd. Yasir and Mohd. Zuber, so
as to be a participant in the commission of the crime of killing
Mohd. Zuber. Neither were the fingerprints of Mohd. Faizan
found anywhere in the Santro car, as would naturally be expected,
were he also to be actively involved in the killing of Mohd.
Zuber. On the face of it, therefore, it is not possible to hold that
Mohd. Faizan was involved, either actively or passively, in the
kidnapping, or in the murder of Mohd. Zuber, or even in the theft
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of the amount being carried by him, after having borrowed the
same from PW-8 Ikhtikar Ahmed.

Conclusion

111. The inevitable sequitur, from the above discussion, would be
that the conviction, of Mohd. Yasir, by the learned ASJ, under
Section 302, as well as Section 397 of the IPC, deserves to be
sustained, and we do so. Inasmuch as the charge under Section 307
and 411 of the IPC are concerned, the question of conviction of
Mohd. Yasir, thereunder, would not arise, in view of his
conviction under Section 302 and 397.

112. We also concur with the decision, of the learned ASJ, to
acquit Mohd. Faizan of the charges against him, which cannot be
said to have been established beyond reasonable doubt.

113. Inasmuch as we have concurred with the ultimate conclusion
arrived at by the learned ASJ, we are not expressing our opinion
with respect to the individual findings of the learned ASJ, with
some of which we have not been able to agree, as our discussion
hereinabove amply demonstrates.

114 . The sentence imposed, by the learned ASJ on Mohd. Yasir
being the minimum imposable under Section 302 of the IPC, no
occasion arises for us to interfere therein. However, we modity the
default sentence stipulated in the impugned judgment, in the event
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of non payment of fine from four years to six months Simple
Imprisonment.

115. Subject to the above limited modification, both the appeals
before us are dismissed.



C.HARI SHANKAR
(JUDGE)


S. P. GARG
(JUDGE)
April 26, 2018
gayatri


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