JUDGMENT
Madan B. Lokur, J.
1. These two appeals are directed against a common judgment and order dated 16th August, 2001 passed by the learned Additional Sessions Judge in Sessions Case No. 134/99. Before the learned trial judge, there were three accused persons, namely, Naushad, son of Mohd. Yunus, Nadeem @ Shamshad @ Sajid @ Shadre Alam @ Anil, son of Mohd. Ahmad and Mohd. Shammi, son of Moinuddin.
In so far as Mohd. Shammi is concerned, he was convicted of an offence punishable under Section 202 of the Indian Penal Code (for short the IPC). He was sentenced on 22nd August, 2001 for the period already undergone by him in custody. Consequently, Mohd. Shammi has not filed any appeal against the impugned judgment and order.
In so far as Naushad and Nadeem are concerned, they were convicted for offences punishable under Section 302 read with Section 34 of the IPC and Section 25 and 27 read with Section 54 and 59 of the Arms Act to undergo imprisonment for life and three years rigorous imprisonment respectively. The accused were also fined and it was directed that their sentences shall run concurrently. The present appeals, therefore, have been filed only by these two accused, namely, Naushad and Nadeem.
2. The case put up by the prosecution is that on 11th November, 1996, information was received to the effect that the dead body of a person was found lying near Shah Alam Bandh. A police party reached the site and found the corpse of a male aged between 30-35 years. The body could not immediately be identified by anybody but necessary investigations were conducted by taking photographs, summoning the dog squad, taking possession of samples of blood, preparation of site plan, etc.
3. Some time later, apparently as a result of some publicity having been given, the corpse was identified as that of Meer Mustrodin Abdullah Sherwani @ Swami. It appears that he was ordinarily a resident of Assam and his body was handed over to his wife Salma Begum after a post-mortem examination was conducted.
4. When the police were investigating the case, it came to be known from Irshad that his brother Naushad was on parole and that he may be able to provide some information. It came to be known that Naushad was roaming around with his friends in a Maruti van and when that vehicle was spotted and intercepted, its driver Mohd. Shammi was interrogated. On interrogation, Mohd. Shammi disclosed that Naushad had hired the Maruti van on 8th November, 1996 for taking his friends around. On 10th November, 1996, Mohd. Shammi picked up Naushad and one Sajid along with a third person (the deceased Sherwani) from a specified location near Jama Masjid. They then went to different places and at about 7.30 pm on 10th November, 1996 they left Jama Masjid to witness Deepawali festivities at Jahangir Puri.
5. On the way, the group passed the MCD service lane which is connected to Shah Alam Bandh. At that time (about 8.30 pm), Naushad and Nadeem stopped the Maruti van and took Sherwani to a nearby pond. Naushad then caught hold of Sherwani while Nadeem took out a country made revolver (katta) and fired at the temple of Sherwani. Thereafter, the three persons, that is, Naushad, Nadeem and Mohd. Shammi returned in the van to the Jama Masjid area. Shammi dropped Naushad and Nadeem over there and went to Jahangir Puri. The next day, Shammi passed via the Shah Alam Bandh where he saw a crowd and came to know that Sherwani had died and his corpse was lying there.
6. On 13th November, 1996, Shammi was arrested and he disclosed that Naushad and Nadeem were staying in Bombay Oriental Hotel, Jama Masjid. A police party then apprehended both of them from the hotel late at night on 13th November, 1996.
7. After completion of investigations, the prosecution filed a challan under Section 173 of the Code of Criminal Procedure (for short the CrPC) and as a result the following charges were framed against the Appellants on 31st May, 1997:
That on between 10/11.11.96, at Shah Alam Band Road near the service road on the bank of Pond, Jahangir Puri, you both in furtherance of your common intention did commit the murder of Mir Mustridin Abdulla Sherwani @ Swami with the intention of causing death and that thereby you both committed an offence punishable Under Section 302/34 IPC.
A further charge was framed against Naushad, son of Yunus:
That on 29.11.96, at Jhuggi No. 533/34, K-Block, Jahangir Puri, you were found in possession of five live cartridges without any permanent license and that thereby you commit an offence punishable Under Section 25/27 Arms Act.
Against Nadeem @ Shamshad @ Sajid @ Sadary Alam @ Anil, son of Mohd. Ahmed, the following additional charge was framed:
That on 29.11.96, at Jhuggi No. 533/34, K Block, Jahangir Puri, you were found in possession of one Desi Katta and two live cartridges, which you had used on the night of 10/11-96 in the murder of Mir Mustruddin @ Abdulla in contravention of the notification of Delhi Administration and that thereby you committed an offence punishable Under Section 25/27 Arms Act.
8. According to the prosecution, Nadeem had disclosed during interrogation that he had some connection with a terrorist organization and that he had met Sherwani (apparently in Guwahati) who had cheated him of Rs. 4-5 lakhs. When Sherwani came to Delhi, he was beaten up for return of the aforesaid amount but since he did not make the payment, Nadeem hatched a plan to kill Sherwani. It is in pursuance of this plan that Nadeem along with Naushad hired the Maruti van of which Shammi was the driver. They procured a katta from someone in Malka Ganj on 10th November, 1996 and used that weapon to kill Sherwani.
9. The prosecution says that Nadeem made a disclosure statement in which he pointed out the jhuggi of Naushad from which the katta with two live cartridges was recovered. The katta also had one empty cartridge and the weapon as well as the cartridges were seized. Naushad also made a disclosure statement and five live cartridges wrapped in a polythene bag were recovered from his jhuggi and they were also seized.
10. According to the prosecution, Anmol Guest House, Wasim Guest House and Bombay Oriental Hotel were some of the hotels in the area where either the accused or the deceased were staying. The registers of these hotels were taken into possession.
11. The prosecution also says that since Naushad was involved with a terrorist organization, he had also disclosed some facts about a person named Bilal Siddiqui who was also arrested and found in possession of 2 kg of RDX. A separate case is pending in that regard and mention of that was made only for the purpose of explaining the delay in recovering the katta and cartridges from Nadeem and Naushad. We propose to advert to this a little later.
12. The learned Sessions Judge has pointed out that even though a large number of witnesses were examined on behalf of the prosecution, only a few of them were of some importance. PW-11 Dr. B.M. Charya conducted the post-mortem of Sherwani and he confirmed that the injury caused to Sherwani was as a result of a projectile being fired through a firearm and that was sufficient in the ordinary course of nature to cause death. There is also evidence from the Central Forensic Science Laboratory, Chandigarh that the cartridge that killed Sherwani could have been fired only from the seized katta and not from any other weapon.
13. The important witnesses were those who produced the registers of the three hotels named above, that is, Anmol Guest House, Wasim Guest House and Bombay Oriental Hotel.
14. PW-3 Munish Mathur was working as a Manager at Anmol Guest House and he proved the extract of the register Ex.P-12 of his hotel as Ex.PW-3/A. The two entries (No.2556 and 2557, both dated 20th October, 1996 at 4.00 pm) have been referred to during submissions made before us. Under these two entries, the names of the lodgers are shown as Mr. Meer Mustrodin Abdullah Sherwani, Mr. and Mrs. Syed Sajid Ali Gilani and Miss Dilshad (illegible), all residents of Guwahati. These persons checked out of the hotel on 22nd October, 1996 at 11.30 am. The witness stated that he could not identify the persons who stayed in the hotel. At best, his testimony can only disclose that somebody called Sherwani, Mr. and Mrs. Syed Sajid Ali Gilani and one Miss Dilshad stayed in Anmol Guest House from 20th October, 1996 to 22nd October, 1996. It may be pointed out that both the entries are in a different hand and ink and under different signatures.
15. PW-23 Shamshish Ahmed was working as a Manager at Wasim Guest House at the relevant time but had left by the time his testimony was recorded. He proved the relevant entry in the register Ex.P-10 of Wasim Guest House as Ex.PW- 23/A. The entry to which our attention has been drawn is No. 605 dated 8th November 1996. As per this entry, Mohd. Sajid son of Mohd. Yunus, Sherwani and Mohd. Irshad with family, all residents of Darbhanga, Bihar checked in at the hotel on 8th November, 1996 at about 12.30 pm and checked out the same day at about 9.00 pm. This entry is recorded by one Sajid in Hindi. The witness could not identify any person in the courtroom as being the lodgers in the hotel. This witness turned hostile and denied having made a statement before the police during investigations that Mohd. Sajid, Sherwani and Irshad had stayed in the hotel. On cross-examination by the learned APP, this witness stated that he did not remember who made the entry in the register. The testimony of this witness does not lead us anywhere at all.
16. The third important witness is PW-6 Jalaluddin Akbar of Bombay Oriental Hotel. He denied having made the relevant entry in the hotel register Ex.P-11. According to him, the entry was made by the person who stayed in the hotel from 10th November, 1996 to 13th November, 1996. The relevant entry in the register of Bombay Oriental Hotel, to which our attention was drawn, is at Sr. No. 5227 dated 10th November, 1996 which shows the names of the lodgers to be Umed Ali son of Mohd. Yunus, Meena and Sajid, all residents of Darbhanga, Bihar. They checked in at the hotel on 10th November, 1996 at 11.05 pm. This entry is signed by Umed Ali in Hindi. There is no date and hour of departure as on 13th November, 1996 Umed Ali son of Mohd. Yunus was arrested as being Nadeem while Sajid was arrested as being Naushad by the police whom he identified in the court, as the persons who had stayed in his hotel. The witness PW-6 Jalaluddin Akbar also turned hostile and could not say whether the entry in the name of Umed Ali was made by Naushad.
17. Putting the record of the registers in a tabular form, the following emerges:
Name of lodger Residence Period of stay Hotel Mr. Sherwani Gauhati 20.10.1996 Anmol Guest House Mr. and Mrs. Gilani to 22.10.1996 Miss Dilshad Mohd. Sajid s/o Mohd. Yunus Darbhanga, 8.11.1996 Wasim Guest House Mr. Sherwani Bihar Mohd. Irshad Umed Ali s/o Mohd. Yunus Darbhanga, 10.11.1996 to Bombay Oriental Meena Bihar 13.11.1996 Hotel Sajid
18. On the basis of these entries made in the registers, the case set up by the prosecution was that Umed Ali son of Mohd. Yunus who stayed in Bombay Oriental Hotel is none other than Naushad, son of Mohd. Yunus while Sajid who stated in all three hotels either as Syed Sajid Ali Gilani (Anmol Guest House) or as Mohd. Sajid son of Mohd. Yunus (Wasim Guest House) or as Sajid (Bombay Oriental Hotel) is none other than Nadeem. This conclusion is based on the testimony of PW-6 Jalaluddin Akbar who stated that the accused persons present in Court were those who had stayed in the hotel.
19. We are unable to appreciate how such an inference can be legitimately made only on the basis of the pointing out of the Appellants by PW-6 Jalaluddin Akbar in Court. In the first instance, the persons staying in Anmol Guest House were residents of Guwahati (Assam) and not Bihar. That apart, Naushad did not stay in Anmol Guest House either in his own name or under any assumed name. In so far as Nadeem @ Sajid is concerned, it is not possible to definitely say that he was the one who stayed in Anmol Guest House under the assumed name of Syed Sajid Ali Gilani with two ladies, namely, Miss Dilshad and another lady purporting to be his wife. Moreover, we do not even know who these ladies were. They were not examined to ascertain the identity of Nadeem @ Sajid.
20. In so far as the entry in Wasim Guest House is concerned, Mohd. Sajid is shown to be the son of Mohd. Yunus while according to the prosecution, it is Naushad who is the son of Mohd. Yunus and not Sajid @ Nadeem. We have not been told that Naushad son of Mohd. Yunus used an alias of Sajid son of Mohd. Yunus. What was contended before us was that Umed Ali son of Mohd. Yunus who was staying at Bombay Oriental Hotel was none other than Naushad. It is nobody's case that Naushad son of Mohd. Yunus, Mohd. Sajid son of Mohd. Yunus and Umed Ali son of Mohd. Yunus are one and the same person. We also do not know why Naushad, who is ordinarily a resident of Delhi should check into Wasim Guest House for only half day for no apparent reason. Nadeem is a resident of Jammu and Kashmir.
21. Given these facts, we find it difficult to accept the contention of learned Counsel for the State that it was Naushad and Nadeem who stayed under various assumed names with Sherwani in Anmol Guest House and Wasim Guest House prior to the murder of Sherwani. The links are far too tenuous for us to take serious note of. We also notice that the handwriting of the Appellants was not compared with the handwriting in the registers to try and ascertain whether they had stayed in the three hotels. No other material has been relied upon by the State in support of its case, other than the conjectures referred to above.
22. Merely on the basis of some entries in the registers maintained by the three hotels, we are unable to conclude that Naushad and Umed Ali are one and the same person or that Nadeem and Sajid are one and the same person.
23. In so far as the testimony of PW-6 Jalaluddin Akbar is concerned, he merely says that the Appellants were the ones who stayed in Bombay Oriental Hotel from 10th November, 1996 to 13th November, 1996. By this time, Sherwani had already been murdered and the mere presence of the Appellants in Bombay Oriental Hotel cannot link them up with the murder of Sherwani. We have already held that no connection has been shown between the various names of the lodgers in the other two hotels and the Appellants. That being so, there is nothing to link the Appellants with Sherwani who did not even stay in Bombay Oriental Hotel. Consequently, the mere identification of the Appellants as the ones who were arrested on 13th November, 1996 is wholly inadequate to hold them guilty of the murder of Sherwani.
24. In so far as the recovery of live cartridges and the katta are concerned, it may be noted that the recoveries were made on 29th November, 1996, that is, a little over two weeks after the arrest of the Appellants.
25. Learned Counsel for the State sought to justify the delay by contending that Nadeem has some involvement with a terrorist organization and the investigating officer in the present case had gone to Kashmir to investigate the links of Nadeem with the terrorist organization. The investigating officer came back to Delhi after about two weeks or so and it is only thereafter that the recoveries could be made. We find this explanation to be without any substance at all.
26. We have been taken through the record of the learned Trial Court and we find that the Appellants were remanded to police custody for a period of 14 days in view of the alleged links of Nadeem with a terrorist organization. During the period when the investigating officer was in Kashmir, the State could not have washed off its hands from the investigation of the murder of Sherwani especially when Naushad was in Delhi on police remand. Another investigating officer could have been appointed or in any case investigations could have independently continued into the murder. To wait for 14 days only because the investigating officer is not available or is busy in some other case is hardly a reason to stop investigations into a murder. In the absence of any reasonable explanation for stopping the investigation into the murder of Sherwani, the consequent delay in recovering the cartridges and katta are fatal to the case of the prosecution.
27. We also find that: (i) The investigating officer did not take the medical opinion if injury No. 1 and 2 were caused by the katta and the cartridge of which an empty case was recovered; (ii) The cartridges allegedly recovered at the instance of Naushad do not fit in the story of the prosecution; (iii) The disclosure statements recorded on 13th November, 1996 are inadmissible in evidence by virtue of Sections 26 and 27 of the Indian Evidence Act and the alleged recovery was made on 29th November, 1996, that is, after 15 days of the said statements; (iv) We cannot rule out the possibility that the katta and cartridges were planted. The impression that we get on a reading of the entire evidence is that the prosecution had decided to nail the Appellants and has tried to fit in the evidence to put the blame on the Appellants, while it should be the other way around and the evidence gathered should nail the Appellants.
28. We are of the view that the prosecution has miserably failed to connect the Appellants with the offences charged. Consequently, we have no hesitation in acquitting the Appellants. The appeals are allowed and the impugned judgment and order is set aside. The Appellants be set at liberty forthwith unless required in some other case.
29. In view of the assistance rendered by Mr. Sumeet Verma, learned amices Curiae, we direct the State to pay him one set of fee of Rs. 3,300/- within a period of six weeks from today.
