Amir Hamja Ansari vs State
2009 Latest Caselaw 2982 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Judgment Reserved on: 30th July, 2009
                           Judgment Delivered on: 03rd August, 2009

+                          CRL.A.254/2001

       AMIR HAMJA ANSARI                 ..... Appellant
               Through: Mr. R.M. Tufail with Mr. Sunil Sagar
                         and Mr.Vishal Sehijpal , Advocates.

                                  versus

       STATE                                     ..... Respondent
                      Through:    Mr. Pawan Sharma, APP.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the
        Digest?                                Yes

INDERMEET KAUR, J.

1. Vide impugned judgment dated 16.3.2001, the

appellant Amir Hamja Asnari has been convicted for having

murdered his wife Rukshana. He had been sentenced to

undergo life imprisonment.

2. The facts as unfolded by the prosecution are that the

appellant alongwith his wife, Rukshana and their three

children i.e. one son Haroon Ansari PW-2, one daughter

Ms.Haseena Ansari PW-4 and another daughter were

occupying two jhuggies i.e. jhuggi no.C-596 and jhuggi No.C-

556 at Bhoomiheen Camp, Govindpuri, New Delhi. The

deceased along with her two daughters were living in jhuggi

No.C-596 where she had a tailoring shop and the kitchen

was also being run from there. The other jhuggi i.e. jhuggi

no. C-556 was in the occupation of the appellant and their

son Haroon Ansari.

3. On 18.1.1999, PW-2 had left his jhuggi at about 6.00

AM to distribute newspapers. He returned back at 7.30 AM

when his sisters had already left for school. His appellant

father was found outside jhuggi no.C-596 filling water; he

thereafter served him a cup of tea. He noticed that his

mother was lying with her face covered with a quilt. PW-2

returned to his own jhuggi i.e. jhuggi no.C-556. At about

8.00 AM he saw his father, in jhuggi no.C-596, getting ready

to go for work. PW-2 went out for a stroll and returned

back after 15 minutes. At 9.00 AM when he went to jhuggi

no. C-596 he saw his mother still sleeping with her face

covered with a quilt; on removing the quilt, he found, her

lying dead with her head battered and bleeding. He

immediately informed his father who returned back from his

factory.

4. Lady Const. Geeta PW-10 on duty in the PCR received

information at 9.18 AM that one lady had been killed in the

Bhoomiheen Camp, Kalkaji. She informed the police post

Govindpuri where DD No.7 Ex.PW-1/A was recorded. This

D.D. was marked to SI Anil Kumar PW-15 who alongwith

Const. Giriraj, Const. Mahavir PW-11 and Const. Mange Lal

PW-8 reached jhuggi no.C-596, Bhoomiheen Camp where

they found a lady lying on a Thakhat; blood was oozing out

from her head and she was having injuries on her head.

Her name was revealed as Rukshana.

5. Statement Ex.PW-2/A of Mohd. Haroon Ansari son of

the deceased who was present at the spot was recorded.

Endorsement on the same was made at 10.05 AM Ex.PW-

14/A, pursuant to which the formal FIR Ex.PW-14/B was

registered by Lady SI Neeraj PW-14.

6. Photographer was called to the spot and Const.

Girdhar Singh PW-13 took three photographs of the scene of

crime, positives of which are Ex.PW-13/1 to 3 and the

negatives are Ex.PW-13/4 to 8. Site plan Ex.PW-15/A was

prepared at the instance of PW-2 and thereafter the site plan

to scale Ex.PW-5/A was prepared by SI Madan Lal PW-5.

Const. Naresh PW-9 had delivered a copy of the FIR to the

Court of the concerned Magistrate on the same day itself.

7. From the spot one Takhat, one blood stained gadda,

one pullover of the deceased, one table cloth all smeared

with blood were seized vide memo Ex.PW-11/A which were

sealed in a parcel having seal of AKG. Inquest papers were

prepared. The dead body was sent to the AIIMS hospital for

post mortem. The post mortem on the dead body was

conducted by Dr.Sudhir Gupta PW-3 who had noted five

injuries on her person having been caused by a blunt object,

all being ante mortem in nature. The post mortem had been

conducted on 18.1.1999 at 3.30 PM and had been concluded

at 4.30 PM. The time since death was noted to be about half

day plus/minus four hours i.e. between 8 to 16 hours. The

dead body was thereafter handed over to PW-2.

8. On the following day i.e. 19.1.1999 since the role of

the appellant had surfaced, the police party reached his

jhuggi. The appellant was interrogated and he made a

disclosure Ex.PW-6/A. He got recovered a danda from the

tand inside his jhuggi which as per his disclosure statement

was the weapon of offence by virtue of which he had

inflicted the injuries on his deceased wife. The recovery of

this danda had been made in the presence of a neighbour,

Khalil PW-6 and was taken into possession vide memo

Ex.PW-6/B.

9. Dr.Sudhir Gupta PW-3 vide his subsequent opinion on

the examination, of this danda i.e. the alleged weapon of

offence had opined that the injuries as noted by him in his

report Ex.PW-3/A could have been caused by this weapon.

He had proved this subsequent report as Ex.PW-3/B.

10. The blood stained clothes of the deceased including

her blood sample had been sent to CFSL for examination

which vide its report Ex.PW-15/G had opined that blood

group 'AB' was detected on the clothes of the deceased as

also on the gadda which had been seized from the spot.

This was also the blood group of the deceased and was also

detected on the wooden piece/danda which had been sent

for serological examination.

11. The trial Judge on the aforestated evidence had

returned a finding of guilt against the appellant, holding him

guilty of having committed murder of his deceased wife

Rukshana.

12. On behalf of the appellant, it has been argued that the

case of the prosecution is dented and not free from

embellishments and ambiguities; attention has been drawn

to the version of PW-2 the star witness of the prosecution, on

whose statement the FIR had been registered. It is argued

that in Court PW-2 on oath had stated that he had lifted the

quilt under which his mother was lying at about 8.35 AM

when he has found her in deep sleep and thereafter at about

9.00 AM when he again lifted the quilt from her body, he

found her lying dead. It is argued that even as per the

version of prosecution, the appellant had already left for his

work at about 8.30 AM and as such he could not have been

the assailant. Attention has also been drawn to the version

of PW-4 the daughter of the deceased who had stated that

her parents were having cordial relations. It is argued that

PW-6 Khalil before whom the alleged recovery of danda was

made is a planted witness as admittedly he is a resident of B-

Block whereas the parties were living in C- Block and it has

not been explained as to how and in what circumstances he

had been joined as a witness and why the neighbours of C-

Block had been ignored; it is argued that the testimony of

PW-6 is even otherwise suspect as he has stated that he had

received information about the death of Rukshana at about

8.30 AM when PW-2 himself had noticed his mother lying

dead only at 9.00 AM. No sketch of the alleged recovered

weapon i.e. of the danda had been prepared, dimensions had

not been mentioned; whether it was a wooden danda or a

phatta is not clear to the Investigating Officer himself. No

motive has also been elicited by the prosecution as to why

the accused would have committed such a barbaric act, the

possibility of an intruder having entered the jhuggi in this

intervening time between 7.30 AM to 9.00AM cannot be

ruled out as PW-2 the son of the deceased had categorically

stated that his father had already left for his work at 8.30

AM. These cumulative queries have not been answered by

the prosecution which dent their version, entitling the

appellant to a benefit of doubt and a consequential acquittal.

13. This is an unfortunate case where the offender and the

victim are closely related family members; accused being the

husband and deceased being his wife. The star witness is

their son PW-2 Haroon Ansari on whose statement the FIR

had been registered. Ex.PW-2/A is his statement which had

been endorsed at 10.05 AM on 18.1.1999 for the registration

of the FIR. It had been disclosed therein that on the fateful

day at 6.00 AM in the morning PW-2 had gone out to

distribute newspapers on his cycle; he returned back at

7.30 AM by which time his sisters had left for their school.

The family was occupying two jhiggies i.e. jhuggi no.C-596

and jhuggi no.C-556; the former was in occupation of his

mother and his sisters whereas the latter jhuggi was being

used by his father and himself for sleeping. When he

returned back at 7.30 AM he saw his father outside jhuggi

no. C-596 filling water. At 8.00 AM he went inside the

jhuggi i.e. juggi no.C-596 where he noticed that his mother

was lying with her face covered with a quilt. His father was

getting ready to go to the factory. He went out for a stroll

and came back after about 15 minutes. His father had

already left for his work. At about 9.00 AM he went inside

the jhuggi where his mother was still sleeping and when he

lifted the quilt from her face he noticed that her head had

been battered and blood was oozing out from her injuries.

This version of PW-2 had formed the basis of the FIR.

14. It is a settled proposition of law that a first information

report although not a substantive piece of evidence can

nevertheless be used to corroborate the statement of its

maker under Section 157 of the Indian Evidence Act or to

contradict him under Section 145 of the Indian Evidence Act.

Applying this proposition of law, the testimony of PW-2 while

deposing on oath has to be tested.

15. On oath in Court PW-2 had made a variation qua his

first version and had stated that he had uncovered the face

of his mother at 8.30AM when he had found her in deep

sleep but on the second occasion i.e. at 9.00 AM when he

removed the quilt from her face he had found her lying dead.

Having been confronted by his earlier version Ex. PW-2/A,

PW-2 had admitted that in his first version he had not stated

that he had seen his mother sleeping at about 8.30 AM. In

his cross-examination, he had, in fact, categorically admitted

that he had lifted the quilt from his mother's face only once

i.e. at 9.00 AM when he had seen blood lying near her and

blood was also oozing out from the injuries on her head and

she was lying dead.

16. From this version of PW-2, it has been established that

when PW-2 had returned back to his jhuggi at 7.30 AM on

18.1.1999 his sisters had already left for school. His father

was filling water outside jhuggi no.C-596 i.e. the jhuggi in

use by his mother and sisters and which was also the place

where the dead body of his mother was found. At 8.00 AM

he had noticed his father getting ready to go for his work;

this was in juggi no.C-596. PW-2 went out for a stroll and

did not come back for the next 15 minutes. At 9.00 AM he

had for the first time uncovered the quilt from the body of

his mother when he noticed that she was lying dead.

17. From this sequence of events what follows is that if the

offender was the appellant, he must have committed this

offence between 8.00 AM to 9.00AM. At this point, it would

be relevant to state that the post mortem of the deceased

had been started at 3.30 PM and concluded at 4.30 PM on

18.1.1999; time since death had been reported to be half

day plus/minus four hours i.e. 8 to 16 hours prior thereto. 8

hours from the time of the post mortem would approximately

be 8.00- 8.30 AM in the morning.

18. In this context, version of PW-4 daughter of the

deceased is also relevant. She has on oath stated that her

mother had died in jhuggi no.C-596 due to head injuries on

18.1.1999. On that day she had left for school at 7.30 AM

along with her younger sister. They had been informed

about the death of their mother through their brother; they

forthwith returned back from the school. PW-4 has further

stated that when she left for school her mother was alive;

she denied the suggestion that there was any ill-will between

her father and mother or that they were not sharing cordial

relations.

19. The question that has to be answered is that whether

in this intervening period between 8.00 AM to 9.00AM when

the offence had been committed, was there any possibility

of any outsider having entered the place of occurrence and

having committed the crime. Admittedly no suggestion had

been given to any witness of the prosecution that this could

have been a possibility or that the accused had been falsely

implicated and the offender was some other person.

20. In his statement under Section 313 Cr. P.C., the

accused has admitted that his wife Rukshana had been

found lying dead in jhuggi no.C-596; he had admitted that

his son had left the jhuggi at 6.00 AM for distributing

newspapers and had come back at 7.30 AM; it has also been

admitted that the dead body had been noticed by PW-2 at

9.00AM which at that time was covered with a quilt;

accused had been informed about the death of his wife by his

son. He had further stated that he had left for his work at

about 8.00AM to 8.30 AM.

21. Assuming that this version of the appellant is correct,

as per his own saying he had left for his work at about 8.00

AM to 8.30 AM and his son had noticed his wife lying dead

under the quilt at 9.00 AM. Even up to this stage i.e. till his

statement was recorded under Section 313 Cr. P.C., it is not

the case of the appellant that there was some outsider who

had entered into the jhuggi and committed the crime in his

absence; his only bald averment is that he is innocent.

22. The appellant had brought two witnesses in defence,

both of whom were neigbhours; DW-2 had admitted that he

had appeared at the asking of PW-2 and had been tutored by

him; DW-1 had stated that he had heard from his children

that on the day of the murder the appellant had been taken

away by the police; it is not the defence that the accused had

been illegally detained or tortured by the police to confess to

this crime as is the defence now propounded. Further their

versions are to the effect that there was no ill-will between

the husband and wife and the accused and the deceased

were sharing cordial relations. It is not their case that they

were anywhere in the vicinity of the jhuggi of the deceased

between 8.00 AM to 9.00 AM on 18.1.1999 i.e. the time

when the offence had allegedly been committed.

23. It is a settled proposition that there are three stages at

which the accused can put up his defence; the first stage is

when the witnesses of the prosecution have to be cross-

examined, the second stage is at the time when the

statement of the accused is recorded under Section 313 Cr.

P.C. and the last stage is the opportunity to the accused to

lead his evidence in defence. All the three stages are

independent of one another and at either of the three stages

the appellant can dent the case of the prosecution.

Unfortunately, in this case the appellant has not been able to

use either of the three stages to his advantage.

24. Prosecution has clearly established that the accused

and the deceased were last in the company of one another in

jhuggi no. C-596 and this was in the intervening period from

7.30 AM to 9.00 AM of 18.1.1999. PW-4 daughter of the

deceased had admitted that she and her sister had left for

school at 7.30 AM and at that time their mother was alive.

PW-2 had also admitted that when he returned back at 7.30

AM after distributing newspapers his sisters had left for

school and his father was outside jhuggi no.C-596 filling

water. At 8.00 AM, he noticed his father getting ready for

work and this was in jhuggi no.C-596. PW-2 went out for a

stroll. His father has left for work at 8.30 AM. This is also,

in fact, the version of the accused himself who had stated

that he had left for work at 8.00 AM to 8.30 AM on that day.

The only persons in the jhuggi between 7.30 AM to 8.30 AM

were the deceased and the accused. The deceased was

found dead at 9.00 AM by her son PW-2; all these are

admitted facts.

25. In our view, in these circumstances, the last seen

theory come into play as the time-gap between the point of

time when the accused and the deceased were last seen

alive and when the deceased is found dead is so small that

possibility of any person other than the accused being the

author of the crime becomes impossible. It is also not the

case of the accused that some other person had entered

their jhuggi at that time.

26. No doubt, Section 106 of the Indian Evidence Act does

not cast any burden upon the accused, but when he does not

throw any light at all upon the facts which ought to be

specially within his knowledge which could support any

theory or hypothesis compatible with his innocence, his

failure to adduce any explanation has to be read against him.

27. On 19.1.1999, the appellant had been queried and he

had made a disclosure statement, pursuant whereof he had

got a wooden phatta recovered from a tand inside his jhuggi.

The recovery memo of this wooden phatta is Ex. PW-6/B and

it was attested by Khalid PW-6 a public witness as also two

police officials Ct.Virender PW-7 and Ct. Mahavir PW-11.

28. PW-6 has on oath corroborated the version as

documented in Ex.PW-6/B and identified his signature at

point 'A'. He has stated that in his presence the accused had

got recovered the wooden phatta/danda; merely because he

is a resident of B-Block and not of the same lane where the

deceased and her family members were residing is no

reason to disbelieve his version or to draw a conclusion that

he was a planted witness. PW-6 has in the cross-

examination stated that the distance between his house and

the jhuggi of the deceased was about one furlong and on the

fateful day i.e. 19.1.1999 he was returning back after easing

himself when the police saw him and stopped him asking

him to join the proceedings. No suggestion has been given

to PW-6 that he is stock witness or he is deposing for any

ulterior purpose or motive. The other witnesses i.e. PW-7

and PW-11 have also corroborated the version of PW-6 on

this recovery.

29. Dr.Sudhir Gupta PW-3 had opined that this

danda/phatta could have been the cause of injury no.1 and 2

on the deceased which injuries were in the ordinary course

of nature, sufficient to cause her death. The blood stained

bedding which included the mattress, the table cloth,

sweater of the deceased as also the weapon of offence all

bore blood group 'AB' which was the blood group of the

deceased.

30. Motive has not been elicited in this case; PW-2 and

PW-4 children of the accused who had been set up by the

prosecution to disclose the ill will between the appellant

husband and his victim wife did not support this version;

motive is always an additional relevant fact and especially so

in a case of circumstantial evidence but non-proof of the

same would not render the otherwise well established

version of the prosecution suspect.

31. The evidence available on record has clearly and fully

established the close connectivity between the accused and

the crime which has been committed. No interference is

called for in the impugned judgment. The appeal is without

any merit. It is dismissed.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE

August 03rd, 2009 Nandan