Jahid @ Lambu vs State (G.N.C.T. Of Delhi)
2009 Latest Caselaw 1598 Del

           THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment delivered on: 23.04.2009
+      CRL. A. 108/2009

JAHID @ LAMBU                                          ..... Appellant


                                   versus


STATE (G.N.C.T. OF DELHI)                              ..... Respondent

Advocates who appeared in this case:

For the Appellant : Mr Sumeet Verma (Amicus Curiae) For the Respondent : Mr M.N. Dudeja

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE P.K. BHASIN

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. The present appeal is directed against the judgment dated

17.09.2005 and order on sentence dated 21.09.2009 passed by the

learned Additional Sessions Judge, Delhi in connection with the case

arising out of FIR No.228/2001 registered under Section 302 IPC at

Police Station Jama Masjid. By virtue of the impugned judgment, the

appellant has been found guilty of having committed the murder of the

deceased Sanjay. Consequently, by the impugned order on sentence,

the appellant was sentenced to undergo imprisonment for life and also

to pay a fine to the tune of Rs 1,000/- for the offence committed under

Section 302 IPC. In the event of failure to pay the said fine, the

appellant was directed to undergo further imprisonment for a period of

three months.

2. The prosecution case is that on the night intervening 28 th and 29th

of August, 2001, to be precise, at 12.15 a.m. on 29.08.2001, the duty

constable Mahender sent a message to the Police Station Jama Masjid

that one Sanjay, son of Sh. Sunder Lal, resident of 128, Mohalla Chana

Gaudam, Sadar Bazar, Meerut (U.P.) and aged about 25 years has been

admitted to the hospital in a serious condition after having been stabbed

by someone. Thereafter, a D.D. entry vide No. 3A was recorded. ASI

Rishi Pal reached JPN Hospital, Delhi alongwith constable Rajeev and

obtained the MLC of the injured Sanjay. At 2.10. a.m. on 29.08.2009,

the doctor had declared the said Sanjay unfit for making a statement.

Sanjay was operated upon, but he ultimately succumbed to his injuries

on 29.08.2001 itself at 2.45 a.m. According to the learned counsel for

the appellant, this is a case based purely on circumstantial evidence.

The circumstances which have been considered by the trial court to be

sufficient for the purposes of convicting the appellant for the offence of

murder are:- (1) the alleged last seen evidence of PW-12 (Mohd

Faheem); (2) the oral dying declaration allegedly made by the deceased

Sanjay before PW-1 (Abdul Sattar); and (3) the alleged recovery of a

blood stained knife and blood stained clothes of the appellant pursuant

to his disclosure statement made upon his arrest on 31.08.2001.

3. The learned counsel appearing for the appellant submitted that

this is a case where no motive has even been sought to be established.

He submitted that the last seen testimony of PW-12 (Mohd Faheem)

cannot be relied upon inasmuch as he has turned hostile. Moreover,

even if we disregard this fact, the testimony of PW-12 (Mohd Faheem)

cannot be regarded as "last seen evidence" as it is normally understood.

The learned counsel further submitted that the so-called oral dying

declaration given to PW-1 does not create any link with the present

appellant. All that PW-1 has stated is that one person by the name of

„Lambu‟ had allegedly stabbed Sanjay. No description whatsoever of

the said person by the name of „Lambu‟ has been provided. He also

submitted that PW-1, in his testimony, stated that two other persons by

the names of Jahuddin and Raju were also present when Sanjay is

alleged to have made this oral dying declaration, but the prosecution

has not produced the said two persons as witnesses. He submitted that

even their statements under Section 161 of the Criminal Procedure

Code, 1973 were not recorded. It is of further significance that these

two persons were not produced as witnesses even though they are the

ones who took the injured Sanjay to hospital as recorded in the MLC

(Exhibit PW-16/A). Consequently, he submitted that no reliance can

be placed on PW-1‟s testimony.

4. Finally, the learned counsel for the appellant submitted that the

alleged recovery of knife and blood stained clothes by themselves

would not be sufficient to convict the appellant for the offence of

murder. For this proposition, he placed reliance on:-

1) Narsinbhai Haribhai Prajapati etc., v. Chhatrasinh and

Others: AIR 1977 SC1753;

2) Surjeet Singh and Anr. v. State of Punjab:AIR 1994 SC 110;

3) Deva v. State of Rajasthan: 1999 Cr. L.J. 265;

4) Prabhoo v. State of U.P.: AIR 1963 SC 113.

He also placed reliance on a recent decision of a Division Bench of this

court in the case of Kalloo Passi v. State [Crl. A. No.413/2001,

decided on 01.04.2009], wherein this court was of the view that mere

recoveries of blood stained clothes, pieces of two daggers and a rehri at

the instance of the appellants did not lead to the conclusion that the

appellants were the perpetrators of the crime. Placing reliance on these

decisions, the learned counsel submitted that mere recovery of the

alleged murder weapon and blood stained clothes of the accused would

not be sufficient to return a finding of guilt and to convict the appellant

for the offence of murder of the deceased Sanjay.

5. Mr Dudeja, the learned counsel appearing on behalf of the State,

supported the judgment and sentence passed by the trial court. He

submitted that the entire chain of circumstances was complete and the

trial court had rightly convicted the appellant. He submitted that the

last seen testimony of PW-12 (Mohd Faheem) coupled with the oral

dying declaration given by the deceased (Sanjay) to PW-1 (Abdul

Sattar) and the factum of the recovery of the knife and clothes at the

instance of the accused lead to the inescapable conclusion that it was

the appellant who committed the murder of the deceased Sanjay.

6. We have considered the arguments advanced by the counsel for

the parties and have also gone through the evidence on record. We find

from a reading of the trial court judgment that a great deal of weight

was given to the dying declaration allegedly made by the deceased

(Sanjay) to PW-1 (Abdul Sattar).

7. Similarly, the trial court was impressed by the fact that the

deceased had been last seen with the appellant at the tea shop run by

Mohd Faheem (PW-12). These two circumstances, according to the

trial court, were sufficient to lead to the irresistible conclusion that it

was the appellant who had stabbed deceased (Sanjay) on the night

intervening 28th/29th August, 2001.

8. Insofar as the testimony of PW-12 (Mohd Faheem) is concerned,

we find that the said witness was declared to be hostile and was cross-

examined by the learned Addl. P.P. for the State. In his examination-

in-chief, this witness had only stated that the accused used to work with

his father in the tea vendor‟s shop about one to one and a half months

ago from the "date of incident". In cross-examination by the learned

Addl. P.P., the following statements have been recorded:-

"It is correct that accused alongwith his companion Sanjay had come at our shop and sat their for 5/7 minutes and thereafter, they both had left towards Urdu Park nor I have stated so in my statement. (Confronted with statement ex. PW-12/A from portion A to A where it is so recorded). It is further incorrect to suggest that on the intervening night of 28/29.8.2001, accused Jahid came to me at about 11.30 PM and his pant and shirt were blood stained nor I have stated so in my statement. (Confronted with statement ex. PW-12/A from portion B to B where it is so recorded)."

On the basis of the aforesaid, the trial court came to the conclusion:-

"He also admitted that the accused alongwith the deceased Sanjay had come to their shop. After sitting for 5/7 minutes both Sanjay and accused Jahid had left towards Urdu Park."

9. It can be seen that the portion which we have extracted from the

cross-examination of PW-12 (Mohd Faheem) clearly indicates that the

said witness stated it to be „incorrect‟ that the appellant alongwith his

companion Sanjay had come to the said witness‟s shop and sat their for

5/7 minutes and that thereafter they both left towards Urdu Park.

Although the statement shows the word "correct", it has to be read as

"incorrect". This is because of the expression that is used in that

sentence itself wherein we find the words "nor I have stated so in my

statement". This last expression would not have been there had it been

an admission on the part of the said witness that it was correct that the

accused alongwith his companion Sanjay had come to their shop and

had sat there for 5/7 minutes. This conclusion is further established by

the fact that the said witness was confronted with the Section 161

statement of the said witness, being Exhibit PW-12/A, where it was

otherwise recorded. Moreover, the following sentence also begins with

the expression "it is further incorrect ..." This clearly means that the

previous sentence also ought to be recorded as "it is incorrect ..."

Therefore, the finding of the trial court that the said witness had

admitted that the accused alongwith the deceased Sanjay had come to

their shop and after sitting for 5/7 minutes both Sanjay and the accused

Jahid had left towards Urdu Park is not borne out by the evidence on

record. In fact, it is contrary to the testimony of PW-12 (Mohd

Faheem).

10. Apart from this, even if we assume that it had been so stated by

PW-12 (Mohd Faheem), the same cannot by itself be regarded as the

last seen evidence. There is no date or time mentioned in his testimony

as to when the said witness had seen the appellant in the company of

Sanjay and as to on which date and at what time they had left towards

Urdu Park. Consequently, no reliance can be placed on the testimony

of this witness. We may also note that technically, this could not be

regarded as last seen evidence because Sanjay was found in an injured

condition and he is alleged to have made an oral dying declaration.

Normally, the evidence which is regarded as last seen evidence is such

where the person is last seen alive and after that it is only his dead body

which is recovered. So, the testimony of PW-12 (Mohd Faheem) has to

be disregarded altogether. It may also be pointed out that in the cross-

examination of PW-12 (Mohd Faheem) by the defence counsel, the said

witness had stated that the appellant had left the service of his father

one and a half months prior to the incident and thereafter had not seen

him again and that he saw him for the first time in court on the date he

was deposing, i.e., 16.08.2004.

11. With regard to the testimony of PW-1, who is supposed to be the

recipient of the oral dying declaration made by Sanjay, we find that the

same cannot be relied upon in the manner in which the trial court has

done. There are several reasons for this. The first and foremost reason

is that the alleged dying declaration only refers to one „Lambu‟. The

said PW-1 (Abdul Sattar) has only stated as under:-

"He told me his name as Sanjay and he informed me that he had been stabbed with a knife by one Lambu. At that time, two other persons namely Jahuddin and Raju were also present there and in whose presence, injured Sanjay had named Lambu as assailants (sic). I then asked Jahuddin and Raju to take him to the hospital. Thereafter, both of them took the injured Sanjay in a Rickshaw to the hospital."

Thus, apart from the fact that there is only mention of a person by the

name of „Lambu‟, there is nothing to connect that person with the

present appellant as no description of that person other than the name

„Lambu‟ has been given. It is obvious that „Lambu‟ is usually an alias

and is not a given name. The appellant‟s name is Jahid (Zahid). It has

also not come in evidence as to whether the petitioner was normally

known as „Lambu‟ or had the alias „Lambu‟.

12. The second circumstance is that the two other persons who could

have corroborated the factum of the dying declaration, namely,

Jahuddin and Raju were not produced as witnesses by the prosecution.

In fact, the I.O. did not even bother to record their Section 161

statements. This is all the more important because the said two persons

were the ones who admittedly brought Sanjay in an injured condition to

the hospital where the MLC (Exhibit PW-16/A) was prepared. Another

circumstance, which is of significance, is the fact that PW-1 (Abdul

Sattar) is said to be the Chowkidar in Fancy Market, Meena Bazar,

Jama Masjid for the last 12-13 years. He, upon noticing the important

circumstance of Sanjay having been stabbed and being the recipient of

the alleged dying declaration, did not even bother to inform the police.

His only contribution was to have gone to the place, having allegedly

heard the dying declaration and instructed the other two persons who

were present, namely, Jahuddin and Raju, to take the injured Sanjay to

hospital and thereafter he continued to do whatever he was doing at that

time. This also creates some doubt as to the correctness and

truthfulness of the alleged dying declaration. Consequently, we are of

the view that the testimony of PW-1 cannot be given that degree of

credence, if at all, which the trial court has done.

13. This leaves us with only the circumstance of recovery of a blood

stained knife and blood stained clothes at the instance of the appellant.

We have gone through the decisions referred to by the learned counsel

for the appellant on this point. We are in agreement with the

submissions made by him that without there being any other

circumstance, the recovery of the blood stained knife and clothes by

themselves would not lead us to the conclusion that the appellant is the

perpetrator of the crime.

14. For all these reasons, we feel that there is a great deal of doubt

which surrounds this case. There is also a complete absence of motive.

Looking at the case as a whole, we are not led to the inescapable

conclusion that the appellant was guilty of committing the murder of

the deceased Sanjay. It is probable that he may have committed the

murder, but it is also possible that he may not have. The prosecution

case has not gone beyond the realm of probabilities. That is not

sufficient to convict a person. There is a great deal of doubt and the

benefit of this would go to the appellant. Consequently, we set aside

the impugned judgment and the order on sentence and acquit the

appellant. The appellant, who is in jail, is directed to be released

forthwith.

The appeal stands allowed accordingly.

BADAR DURREZ AHMED, J

P.K. BHASIN, J April 23, 2009 dutt