Rajab Ali Khan v. State of NCT of Delhi

1. This is the 12th regular bail application preferred by the applicant, seeking grant of regular bail in case arising out of FIR bearing no. 420/2018, registered at Police Station Welcome, Delhi, on 22.10.2018. Factual Background

2. Succinctly, the case of the prosecution is that on 22.10.2018, a PCR call was received vide DD No. 61B regarding the disappearance of a minor girl from House No. 29, Gali No.1, Babarpur, Delhi, where she regularly attended tuition classes. Upon reaching the spot, the Investigating Officer (IO) met the complainant, Abid, who informed that his daughter had left home around 10:00 AM that morning to attend tuition in the neighborhood. However, when she did not return by 1:00 PM, the family searched for her extensively but to no avail. On the basis of Abid’s statement, the present FIR was registered initially for offence punishable under Section 363 of IPC for kidnapping.

3. During the investigation, the tutor of the missing girl, Ms. Ruksaar @ Afsa, was interrogated. She stated that the girl had left the tuition premises around 1:00 PM on 22.10.2018, and she was unaware of her whereabouts thereafter. The husband of the tutor, Rajab Ali, the present applicant, was also interrogated and he similarly claimed ignorance about the missing girl.

4. On 28.10.2018, information was received via DD No. 41B from P.S. Timarpur, Delhi, indicating that the dead body of an unidentified girl, aged about 10–12 years, had been recovered. The body was subsequently identified by the deceased’s brother, Hakim, as that of his missing sister. A message was relayed to PS Welcome, Delhi, regarding the registration of the present FIR. The body had been preserved at the Subzi Mandi Mortuary, and the IO of the present case was instructed to take appropriate further action. The IO visited the place of recovery near Biodiversity Park, Wazirabad, near Jagatpur Village, and prepared the site plan. The deceased was formally identified by her parents and brother, and subsequently, Sections 302 and 201 of IPC were added to the present FIR.

5. During further investigation, the statement of the deceased’s mother, Zeenat, was recorded. She alleged that the present accused Rajab Ali and his wife Ruksaar @ Afsa had kidnapped and murdered her daughter and disposed of her body in the area of Timarpur, Delhi. One Akbar, known to both Rajab Ali and Ruksaar, also gave a statement to the police. He stated that on the night of 27.10.2018 at about 10:00 PM, the couple came to his house, claiming that Rajab’s mother was unwell and hospitalized. As Ruksaar was eight months pregnant, Rajab had left her at Akbar’s home. On the following morning, i.e., 28.10.2018, at about 7–8 AM, Rajab had returned and taken the house key from Akbar’s wife before leaving.

6. The deceased’s body was later shifted from Subzi Mandi Mortuary to GTB Hospital, where her post-mortem examination was conducted. On 31.10.2018, the two suspects, i.e. Rajab Ali and his wife Ruksaar were made to join the investigation. It is the prosecution’s case that during sustained interrogation, Ruksaar disclosed that her husband, Rajab Ali, in connivance with her, had committed the murder of the minor girl ‘S’. Rajab Ali disclosed that he had developed a liking for the deceased girl and had requested his wife to facilitate his proximity to her. Acting on this request, Ruksaar began calling Simran to their house for tuition. At the time, Ruksaar was eight months pregnant, and according to Rajab Ali, this was one of the reasons he sought to fulfil his desires elsewhere. On 22.10.2018, when ‘S’ arrived at their home for tuition, Ruksaar took her inside a room. There, Rajab Ali gave ‘S’ a glass of water laced with sleeping pills. Once she became unconscious, he placed her inside a bag and transported her on his scooter to the second floor of his paternal house at New Jafrabad, Delhi. He then laid her on a bed, locked the room, and sexually assaulted her. He admitted to having administered sleeping pills again to ensure she remained unconscious. Rajab Ali further disclosed that the victim’s father had visited their home during this period to enquire about his missing daughter. Over the next few days, condition of ‘S’ deteriorated due to repeated sexual assault. Fearing that she might not survive and that the incident would be exposed, Rajab Ali and Ruksaar decided to eliminate her. On 27.10.2018, Rajab Ali dropped his wife at her friend Reshma’s house in Dharampura, Gandhi Nagar, and went to his house at Jafrabad, where ‘S’ was kept. Finding her conscious, he again subjected her to sexual assault. Thereafter, he smothered her with a handkerchief until she succumbed. He then packed her body in a suitcase, placed it on his scooter bearing registration no. DL 5SBB 2196, and disposed of it in the Biodiversity Park near Wazirabad. Additionally, he disclosed that he had also discarded two plastic bags containing the deceased’s clothes and other belongings in a garbage heap near Gopalpur, Wazirabad. Both the accused persons were formally arrested on 31.10.2018.

7. During the course of investigation, the accused Rajab Ali led the police to the spot where he had allegedly dumped the deceased’s body. The DVR containing CCTV footage from the vicinity of the dumping site was seized. The footage revealed that on 28.10.2018, at around 6:50 AM, Rajab Ali was seen arriving and leaving the area on a scooty bearing registration no. DL-5SBB-2196, carrying a suitcase. Based on this disclosure, the said scooty was seized and taken into police custody. Further, at the instance of the accused, a packet was recovered from the dumping site which contained one T-shirt and two cut pieces suspected to belong to the deceased. These items were seized and sent to FSL, Rohini for forensic examination. DVRs from the vicinity of the applicant’s residence were also collected, which purportedly showed him riding the scooter with a bag; these too were sent to FSL for expert analysis. Additionally, a sewing machine, allegedly used to alter the clothes of the deceased, was recovered and sent for forensic examination. Other items such as handkerchiefs, jackets, shoes, helmets, and tablets were also taken into possession and forwarded to FSL, Rohini. The crime scene was inspected by the forensic team. The post-mortem report of the deceased was subsequently received, which opined as follows: Genital: in the vaginal introitus tears were present at 5 o'clock position, ecchymosis with purple colour red bruise present between 4 o'clock to 7 o'clock position, anal canal-mucosal tears present at 2 o'clock, 5 o'clock to 8 o'clock and anal orifice shows tear at 11 o'clock.."

8. The post-mortem report confirmed that the deceased had been subjected to repeated sexual assault, leading to the addition of Section 4 of the Protection of Children from Sexual Offences Act, 2012 [hereafter ‘POCSO Act’] to the FIR. During the personal search of accused Rajab Ali, a damaged mobile phone was recovered and sent to FSL, Rohini, for examination. Subsequently, the chargesheet was filed against both accused persons for offences punishable under Sections 302/363/201/328/109/34 of the IPC, along with Section 4 of the POCSO Act. During the investigation, the FSL reports pertaining to the mobile phone and DVRs were obtained and submitted before the learned Trial Court.

9. The expert report from the Chemical Division of FSL confirmed that the tablets recovered from the possession of the applicant contained 'Clonazepam' and 'Mefenamic acid.' Further, the expert opinion from the Physics Division indicated that the articles recovered from the place where the deceased’s body was dumped matched with those recovered from the applicant’s residence. A supplementary chargesheet, incorporating the FSL findings, was filed before the learned Trial Court. Submissions Before the Court

10. The learned counsel appearing for the applicant argues that the applicant has been in judicial custody for about 07 years, even though the applicant has been falsely implicated in the present case and he has nothing to do with the alleged offence. It is also contended that the case of the prosecution is solely based on circumstantial evidence and the chain of commission of offence is incomplete and suspicious. It is argued that the material witnesses have already been examined and since the trial will take some time to conclude, the applicant be granted regular bail.

11. The learned APP for the State, on the other hand, argues that there is no reason for the complainant in this case to falsely implicate the present applicant. It is argued that the circumstantial evidence and the chain of circumstances is not only complete, but the FSL report also points out and corroborates the case of the prosecution, which sufficiently points out the guilt of the present accused/applicant. The learned APP, in this regard, draws this Court’s attention to the forensic, physical and medical evidence in this case, and prays that the present bail application be dismissed.

12. This Court has heard arguments addressed on behalf of both the sides and has perused the material available on record. Analysis & Findings

13. Firstly, it is apposite to note that the present application is the 12th bail application filed by the applicant. Adverting to the merits of the case, heard arguments and perused the file, this Court observes that although learned counsel for the applicant has contended that there is no incriminating material on record sufficient to establish even a prima facie case against the accused, and has addressed the Court at length on the evidentiary aspects, this Court deems it appropriate to refer to the material available on record for the purpose of deciding the present bail application.

14. The allegations against the applicant Rajab Ali are that in conspiracy with his wife, he had lured the minor victim to their house under the guise of giving tuitions for Namaz classes, administered sedatives to her, and subjected her to repeated sexual assault. Thereafter, noticing her deteriorating condition, he had allegedly murdered her by smothering. He is further accused of disposing of the body in a remote area and attempting to destroy incriminating evidence. The role attributed to him is not only central but also indicative of premeditated and heinous conduct.

15. As per the mother’s statement recorded before the learned Trial Court, on 22.10.2018 at about 10:00 AM, she had taken her minor daughter to the house of the accused, Rajab Ali and Rukhsar, who were teaching her how to offer namaz. After handing over the child, the door was locked from inside and the mother left for work. When she returned around 1:00 PM and found her daughter missing, she inquired from the accused, who claimed the child had already left. Thus, her statement forms crucial last seen evidence, placing the victim in the exclusive company of the accused just before her disappearance.