THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 22.03.2011
+ CRL.A. 202/1997
MOHD. BADAL ... Appellant
versus
STATE ... Respondent
Advocates who appeared in this case:
For the Appellants : Mr Sumeet Verma
For the Respondent/State : Ms Richa Kapur
AND
+ CRL.A. 278/1997
MOHD. AKHTAR ... Appellant
versus
STATE ... Respondent
Advocates who appeared in this case:
For the Appellants : Mr Sumer Kumar Sethi
For the Respondent/State : Ms Richa Kapur
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE MANMOHAN SINGH
1. Whether Reporters of local papers may be allowed to see the judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in Digest? YES BADAR DURREZ AHMED, J (ORAL)
1. These appeals are being decided by a common judgment inasmuch as they arise out of the common judgment and order on sentence dated 31.03.1997 delivered in Sessions Case No. 30/1990 CRL. A. Nos.202/97 & 278/97 Page No.1 of 15 arising out of FIR No. 77/1989 registered under Section 302/201/34 IPC at Police Station Saraswati Vihar.
2. Initially there were five accused, namely, Mohd. Akhtar, Mohd. Badal, Mohd. Rumal, Mohd. Sabir and Mohd. Zuber. Charges were framed against all the five accused under Section 302/34 IPC and Section 406/34 IPC. Additionally, Mohd. Zuber was also charged with the offence under Section 411 IPC. Initially the charges were framed on 02.03.1990. However, subsequently, at the time of recording the statement under Section 313 Cr. P.C, the learned Additional Sessions Judge noted that the charge framed gave the wrong place of occurrence and consequently charges were re-framed on 08.10.1996. Consequently, the accused desired that some of the witnesses, namely, PWs 1, 2, 11, 13, 15 and 16 be recalled for further cross-examination. This request was allowed and the said witnesses were recalled for further cross-examination. Thereafter, the statements under Section 313 Cr. P.C were recorded and the impugned judgment and order on sentence was delivered / passed.
3. By virtue of the impugned judgment, Mohd. Sabir and Mohd. Zuber have been acquitted of all charges. Mohd. Akhtar, Mohd. Badal, Mohd. Rumal were convicted under Section 302/34 IPC and in place of the offence as charged under Section 406/34 IPC, the said CRL. A. Nos.202/97 & 278/97 Page No.2 of 15 three accused were convicted under Section 379/34 IPC. Insofar as the offence under Section 302/34 is concerned, the three convicts were imposed a sentence of life imprisonment along with a fine of ` 1,000/- each and in default, they were to serve a sentence of six months rigorous imprisonment each. Insofar as the offence under Section 379/34 IPC is concerned, each of the three convicts was required to undergo rigorous imprisonment for one year.
4. The three convicts, that is, Mohd. Akhtar, Mohd. Badal and Mohd. Rumal, filed separate appeals being Crl. A. Nos. 278/1997, 202/1997 and 256/1997, respectively. Insofar as Mohd. Rumal is concerned, his appeal (Crl. A. 256/1997) was disposed of by another Bench of this Court on 19.04.2010 inasmuch as the appellant was not present and nobody was appearing on his behalf. The Court noted that the appellant was perhaps not interested in pursuing the appeal inasmuch as he had been prematurely released after having spent over fourteen years in custody upon the recommendation of the Lieutenant Governor. In those circumstances Mohd. Rumal‟s appeal was disposed of on 19.04.1010. We are, therefore, left with the present appeals which have been filed by the convicts Mohd. Akhtar and Mohd. Badal.
5. The prosecution case, as noted by the learned Additional Sessions Judge, is as under:-
CRL. A. Nos.202/97 & 278/97 Page No.3 of 15
"(i) Deceased Raj Kumar was running a video-library at his house No. 505/292, Sri Nagar, Delhi, and he used to lend T.V. and Video on hire.
(ii) On 20. 2.1989 at about 9.30 p.m. accused Akhtar, Badal, Rumal and Sabir went to the house of Raj Kumar to hire T.V, Video and cassettes of two films, namely, Wardi and Surya.
(ii) Raj Kumar left with the equipment and cassettes in a rickshaw and installed the same in a room on the second floor of house No. A-519, J. J. Colony, Shakurpur.
(iv) The room had been taken on rent a month earlier by the accused from PW 13 Angoori Devi.
(v) The accused invited Meer Singh (PW 11) and Pappu (PW16), husband and son of the landlady, to see the films in their room.
(vi) After installation of TV and video in the room of the accused, Raj Kumar came to his house for dinner and after dinner he returned again to the room of the accused.
(vii) Meer Singh and Pappu watched TV till 2.30. a.m and then they retired to sleep leaving the deceased and the four accused in their room.
(viii) On Waking up next morning, Meer Singh and Pappu found that the tenanted room was empty and four accused had disappeared.
(ix) When Raj Kumar did not return home, his brother Subhash and Ramesh (PW1) searched for him and when they could not trace him, they lodged missing report at 7.15 p.m on 21.2.89 at P.S. Saraswati Vihar.
(x) On 22.2.89 at 7. 36 a.m. an information was received at P.S. Saraswati Vihar that a gunny bag was lying near DDA Office at Road No. 43, Britannia Chowk. This information was entered at DD No. 2-A and assigned to ASI Sultan Singh.CRL. A. Nos.202/97 & 278/97 Page No.4 of 15
(xi) ASI Sultan Singh reached the spot and found a gunny bag lying in the naala (drain). The gunny bag was checked and the dead body of Raj Kumar was found in it. The body was identified by brother of the deceased.
(xii) The postmortem was conducted by Dr. L.K. Baruah (PW 5) at 4.30 p.m. on 22.2.89 and then it revealed that the death had occurred due to strangulation 36-40 hours earlier.
(xiii) On 4.4.89 accused Akhtar, Badal, Rumal and Sabir were nabbed in their jhuggi at Jamuna Pushta and the stolen video machine and cassettes were recovered from them.
(xiv) The four accused were interrogated and they led to C-43, Nathu Colony, Shahdara where accused Zuber was living as tenant. The stolen T.V. was produced by Zuber."
6. The learned counsel appearing on behalf of the appellants submitted that the aforesaid prosecution version is sought to be established on the basis of the testimonies of PW11- Meer Singh and PW16 - Pappu, who are said to be witnesses who last saw the deceased Raj Kumar alive in the company of the appellants at about 2:30 am in the early hours of 21.02.1989. The learned counsel for the appellants further submitted that the prosecution story also seeks confirmation from the alleged recoveries made at the instance of the appellants. It is alleged by the prosecution that a VCR, which belonged to the deceased Raj Kumar, was recovered from the appellant Akhtar and that two video cassettes of the Hindi films „Vardi‟ and „Surya‟, which belonged to the deceased Raj Kumar, were recovered at the instance of Mohd. Rumal. Insofar as the appellant Mohd. Badal is concerned, it is alleged CRL. A. Nos.202/97 & 278/97 Page No.5 of 15 that the TV of Crown make was recovered from the residence of the co- accused Mohd. Zuber at the instance of the appellant Mohd. Badal. The prosecution also sought corroboration from the testimonies of PWs 1 and 2, who are the brother and brother-in-law of the deceased Raj Kumar insofar as the hiring of the TV, VCR and video cassettes and the deceased Raj Kumar leaving with three of the accused persons, are concerned. The prosecution has also relied on the fact that the appellants had refused to undergo the Test Identification Parade in which they were to be identified by PWs 1 and 2.
7. According to the learned counsel appearing on behalf of the appellants the prosecution has not, at all, been able to establish the fact that PW11 and PW16 last saw the deceased Raj Kumar in the company of the appellants. They also contended that the recoveries are not free from doubt. Insofar as the appellant Mohd. Badal is concerned, the recovery stands disproved in view of the fact that the trial court itself did not accept the recovery of the TV set from the residence of Mohd. Zuber. Therefore, the allegation that Mohd. Badal led the police party to Zuber‟s residence, who produced the TV, also does not get established. Insofar as the appellant Mohd. Akhtar is concerned, the learned counsel for the said appellant submitted that the recovery of the VCR, which was allegedly at the instance of the said appellant, is not free from doubt. As such, the learned counsel for the appellants CRL. A. Nos.202/97 & 278/97 Page No.6 of 15 contended that the circumstances of last seen evidence and the recoveries were themselves on very shaky grounds and, therefore, there is no way that the appellants could have been convicted for the offences for which they were convicted by the learned Additional Sessions Judge.
8. The learned counsel for the State supported the trial court decision on all fours. She submitted that PWs 1 and 2 had clearly stated in their depositions that they had seen the three persons which included the appellants, who had come to the residence of the deceased Raj Kumar for the purposes of hiring the TV set, VCR and the two video cassettes and that they had seen Raj Kumar leaving with them in a rickshaw for the purposes of installing the same at their residence. According to the said witnesses, this was around 9:30 pm on 20.02.1989. The learned counsel for the State also submitted that the trial court has correctly accepted the testimonies of PW11 and PW16 as the last seen evidence. She further submitted that the recoveries also stood established both from the appellant Mohd. Akhtar as well as the appellant Mohd. Badal and that the trial court arrived at the correct conclusion, on the basis of the last seen evidence as well as on the basis of the recoveries, that the appellants were guilty of the offence under Section 302/34 as well as the offence under Section 379/34 IPC. She contended that no interference is called for and that the decision of the CRL. A. Nos.202/97 & 278/97 Page No.7 of 15 learned Additional Sessions Judge, both on conviction as well as on sentence, ought to be confirmed by this Court.
9. It is clear from the above resume that the case against the appellants rests entirely on the last seen evidence and the recoveries. If one of these elements is missing and does not stand established, then the case against the appellants cannot be said to have been proved beyond reasonable doubt. Let us first take the case of Mohd. Badal. Insofar as he is concerned, it is stated that he led the police party to the residence of Mohd. Zuber and it is at the instance of Zuber that the TV set is said to have been recovered. We find from the impugned judgment itself that the learned Additional Sessions Judge has disbelieved the prosecution version insofar as the recovery of the TV set from Mohd. Zuber is concerned. When this is the case, we fail to see as to how the learned Additional Sessions Judge could have foisted the recovery of the TV set on the appellant Mohd. Badal. The consequence of this discussion is that the alleged recovery of the TV set at the instance of the appellant Mohd. Badal has not, at all, been established and, therefore, insofar as the appellant Mohd. Badal is concerned, there is no recovery at his instance. In the context of recoveries, we may also point out that it is PW16 Pappu, who is said to have accompanied the police party at the time of alleged recoveries. Initially, PW16 Pappu tended to support the prosecution version. CRL. A. Nos.202/97 & 278/97 Page No.8 of 15 However, after his recall, in his cross-examination he resiled from his statement with regard to the recoveries and he was also cross-examined by the learned Additional Public Prosecutor as he had resiled from his earlier statement. In his cross-examination he categorically stated that he was taken to the police station and his signatures were taken on some papers and he was made a witness by the police. He further stated that he did not go anywhere in the police van and that no article was recovered by the police in his presence. He further stated that police did not recover any VCR or TV or cassette in his presence. Ultimately, he stated that he did not know anything about the case. As pointed out above, he was cross-examined by the Additional Public Prosecutor and he stated that he knew that one should make a true statement in Court and that the statement being made on that day was true while the statement made by him earlier was made under the influence of the police. He denied the suggestion that he had been won over by the accused. It is noteworthy that this witness had come to depose from jail as he was implicated in some other murder case.
10. PW23 ASI Mahinder Singh is supposed to be a recovery witness. According to him, in his examination-in-chief, the accused Zuber produced a TV of Sonyo make and a VCR from his house. The seizure memo of the TV was marked as Exhibit PW16/G and the seizure memo in respect of the VCR was Exhibit PW16/F. Since this CRL. A. Nos.202/97 & 278/97 Page No.9 of 15 statement was not in accord with the seizure memo, the Additional Public Prosecutor had sought permission to cross-examine the witness and upon such cross-examination, this witness stated that he did not remember if the VCR was produced by Mohd. Akhtar from below a bed-sheet in his jhuggi at Yamuna Pusta. But that, after reading the contents of PW16/F, he recollected that the VCR was recovered from the jhuggi of Mohd. Akhtar. This witness has importantly stated that the video cassettes of the films were easily available in the market and that the number of the TV was not mentioned in the recovery memo and that TVs of the same make are also available in the market.
11. From the above, it is clear that there were two witnesses to the recovery. One was PW16 - Pappu and the other was PW23 - ASI Mahinder Singh. Insofar as PW16 Pappu is concerned, he has completely resiled from his earlier statement and has stated that no recoveries were made in his presence. PW23 ASI Mahinder Singh is also ambivalent about the recovery of the VCR from Mohd. Akhtar. This aspect has already been mentioned above. Therefore, we are of the view that the recovery of the VCR at the instance of Mohd. Akhtar has also not been established beyond reasonable doubt.
12. We now come to the last limb of the case and that is with regard to the last seen evidence. On going through the testimony of CRL. A. Nos.202/97 & 278/97 Page No.10 of 15 PW11 Meer Singh, we find that he has not mentioned the name of the deceased anywhere, either in his examination-in-chief or during his cross-examination. On the contrary, he has referred to the person who allegedly brought the TV, VCR and cassettes as "a servant" of the shop keeper. He has also not identified the deceased as being that person whom he had referred to as the servant of the shop keeper. Therefore, PW11‟s testimony cannot be regarded as a part of the last seen evidence because he has not identified the person whom he last saw in the company of the accused. Apart from this, PW11 has also contradicted himself by saying that after he took his meal at about 9:30 pm on 20.02.1989, he went to sleep and woke up only after 11 am the next morning. This completely contradicts the prosecution version of PW11 having seen the deceased Raj Kumar in the company of the accused persons including the appellants at about 2:30 am. We may point out that this witness has stated that he had informed the police on the day the dead body of the deceased Raj Kumar was discovered, that is, on 22.02.1989 but we find from the evidence on record that there is no such information available with the police on that date. In fact, PW11 made his statement only on 05.03.1989, that is, after 12 days of the incident.
13. Insofar as the PW16 is concerned, we have already stated that he completely resiled from all his statements to the extent that he CRL. A. Nos.202/97 & 278/97 Page No.11 of 15 stated that he did not know anything about the case and that the earlier statements made by him, which tended to support the prosecution, were made under the influence of the police. Apart from this, we find that PW16 Pappu has contradicted his father PW11 Meer Singh on several counts. One of the counts being that Meer Singh stated that his wife had gone to Rajasthan whereas PW16 Pappu states that his mother was present on that date. PW16 Pappu also stated that he did not tell police anything because of fear, but he does not explain as to why after several days he made the statement before the police. In fact, the learned counsel for the appellants had placed reliance on a Supreme Court decision in the case of Surinder Singh v. State of Punjab: 1989 SCC (Crl) 649, where the Supreme Court, in a similar situation, rejected the testimony of one of the witnesses who did not inform the police in the first instance on the ground that he had been threatened by the accused and subsequently after a few hours, he informed the police. The Supreme Court questioned the veracity of the testimony of the said witness in the following manner:-
"If he was so frightened at that time to go and tell others about the occurrence, it is not known how he was able to get over his fears a few hours later and go and inform PW3 and others about what had happened."
Similarly, in the present case, there is no explanation as to what made PW16 Pappu overcome his so-called fears and to make the statement before the police. In any event, this witness has completely resiled CRL. A. Nos.202/97 & 278/97 Page No.12 of 15 from his statements and, therefore, cannot be relied upon for the purposes of convicting the appellants.
14. We also note that the trial court took note of DD No. 13-A, which is a document which has been marked „A‟ and which is the first statement made by PW2 Subhash reporting the fact that his brother Raj Kumar was missing. In that statement, we find that PW2 Subhash has not made any mention about the accused or about any persons coming to the residence of Raj Kumar for the purposes of hiring of the TV set, VCR and video cassettes. It is only stated that Raj Kumar had gone somewhere to install the VCR and TV and that he suspected nobody.
15. The trial court has noted these facts in paragraph 7 of the impugned judgment as under:-
"7. My attention has been drawn to Mark-A , which is the copy of DD No. 13-A dt. 21.2.89. This DD entry was made at 7.15 p.m. on the report of PW 2 Subhash Chander. The story of three boys having come on the previous night does not find mention in DD No. 13-A. It simply states that on 20.2.89 at 9. 30 p.m. Raj Kumar had gone to install VCR and Colour TV somewhere. It does not say that three boys had themselves come to hire TV and VCR. Rather the information i.e. Subhash says that he does not have suspicion on anyone. Even in the FIR Ex. PW 6/A which was registered on the statement of Subhash, the description of the boys is not given. The omission, according to ld. counsel for the accused, indicates that the accused were framed in the case. I see no substance in the argument. The story that was given by Subhash at the first opportunity on 21.2.89, was not in any manner inconsistent with the version developed later. It is another thing that the Duty Officer did CRL. A. Nos.202/97 & 278/97 Page No.13 of 15 not care to record all the details. As a matter of fact, PW 2 Subhash may not have even imagined on 21.2.89 that his brother had been murdered. He had gone to the police station to lodge a missing report and that appears to be the reason why he confined himself to making a missing report. No fault can be found with the prosecution case, if Subhash did not elaborate at the earliest stage."
However, we do not find ourselves in agreement with the conclusions arrived at by the learned Additional Sessions Judge. When PW2 Subhash‟s brother had gone missing, it was all the more reason to give all details so that his brother could be located. We do not agree with the manner in which the learned Additional Sessions Judge has brushed aside the fact that DD No. 13-A does not contain any of the details which had subsequently come in at a later stage in the statement Exhibit PW2/A, which forms the basis of the ruqqa, after the dead body was discovered. We may point out that the ruqqa was sent at 9:10 am on 22.02.1989. It is for this reason also that the refusal of the Test Identification Parade by the appellants at the instance of PWs 1 and 2, would be of no consequence.
16. In view of the foregoing discussion, we are of the view that the prosecution has not been able to establish its case against the appellants beyond reasonable doubt. The appellants are acquitted of all charges. The impugned judgment and order on sentence are set aside. Consequently, the appellant Mohd. Akhtar, who is in custody, is directed to be released forthwith. Insofar as the appellant Mohd. Badal CRL. A. Nos.202/97 & 278/97 Page No.14 of 15 is concerned, he is on bail. Therefore, his bail bonds are cancelled and the sureties stand discharged. The appeals are allowed as above.
BADAR DURREZ AHMED, J MANMOHAN SINGH, J MARCH 22, 2011 SR CRL. A. Nos.202/97 & 278/97 Page No.15 of 15